author: DUPONT, J.

text:
    ALLSTATE INSURANCE COMPANY v. STEPHEN PALUMBO ET AL.
    (AC 28409)
    DiPentima, Harper and Dupont, Js.

      Argued November 27, 2007
    officially released August 12, 2008

      Neil Johnson, for the appellant (named defendant).

      Jeremiah J. O'Connor, for the appellee (plaintiff).
   Opinion

DUPONT, J.

In this action for equitable subrogation, the defendant Stephen Palumbo appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Allstate Insurance Company. The defendant claims (1) that an equitable subrogation action brought by the plaintiff could not be maintained against him as the fiancee of the plaintiffs insured or as a cohabitant in the home of the plaintiffs insured and (2) that if the action was legally viable, the amount of the judgment was excessive and based on improperly admitted evidence. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to the issues raised. The trial court found that on January 31, 2002, Lisa Deveau was the owner of certain real property located at 26 Kathy Circle, Coventry. Deveau resided at the premises with her daughter and the defendant. The property was insured by the plaintiff under a homeowner’s policy in which Deveau was the named insured. On January 31, 2002, the defendant, a licensed electrician, negligently installed a heat pump and water heating element at the premises, causing a fire that resulted in damage to the structure of the house as well as damage to personal property.

The defendant moved out of the premises in October, 2005. While the defendant resided on the premises, he and Deveau shared expenses, although they had no written or oral arrangement in this regard. The occupants shared the entire house, without any one of them having exclusive use of any particular area. The defendant performed many improvements and maintenance items to the realty as though he were an owner, although he never claimed to own the real estate. The defendant conceded responsibility for the fire that damaged the premises.

The plaintiff, pursuant to its liability insurance policy, expended money as claimed by Deveau, its insured, for the repair of the realty and for the loss of personal property in the amount of $61,493.29. The plaintiff seeks reimbursement from the defendant because the plaintiff was “subrogated to any and all rights and claims which the insured had or has against the defendant to the extent of the payments made to [its] insured as a result of the fire caused by the [defendant's negligence.”

The defendant, in his amended special defenses, claimed that (1) he was an insured person pursuant to Deveau’s policy with the plaintiff and, therefore, was not subject to a negligence action by his insurance company, (2) he and Deveau, his fiancee, were in a landlord-tenant relationship, (3) he was a tenant, (4) he was a lodger and (5) subrogation was not equitable.

The court concluded that the defendant was not an insured under the language of the policy and that there was no landlord-tenant relationship between Deveau and the defendant. The court, citing Wasko v. Manella, 269 Conn. 527, 849 A.2d 777 (2004), held that the plaintiff had a cause of action for equitable subrogation against the defendant, noting that “[j]ust as . . . Deveau could have brought an action in negligence against [the defendant], so, too, can [the plaintiff] by virtue of equitable subrogation.” Accordingly, the court rendered judgment in favor of the plaintiff in the amount of $61,493.29.

I

The defendant first argues that the court improperly concluded that the plaintiff was entitled to equitable subrogation. Specifically, the defendant argues that the plaintiff is not entitled to equitable subrogation because he was a tenant or a lodger and, under the facts of this case, subrogation would not be equitable. The defendant further argues that even if he is not a tenant within the strict confines of the term, he and Deveau were in a landlord-roomer or landlord-lodger-boarder relationship, which would also fall within the provisions of the landlord and tenant statutes. We disagree.

“As our Supreme Court has explained, [t]he right of [equitable] subrogation is not a matter of contract; it does not arise from any contractual relationship between the parties, but takes place as a matter of equity, with or without an agreement to that effect. . . . The object of [equitable] subrogation is the prevention of injustice. It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, should pay it. . . . As now applied, the doctrine of equitable subrogation is broad enough to include every instance in which one person, not acting as a mere volunteer or intruder, pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter.” (Internal quotation marks omitted.) Warning Lights & Scaffold Service, Inc. v. O & G Industries, Inc., 102 Conn. App. 267, 272, 925 A.2d 359 (2007). Equitable subrogation “derives from the equitable principle against unjust enrichment . . . .” (Internal quotation marks omitted.) Id., 276. “A claimant who has established an entitlement to restitution by proving the unjust enrichment of the defendant at the claimant’s expense is ordinarily entitled to a personal money judgment against the defendant for the amount of the enrichment in money.” Restatement (Third), Restitution and Unjust Enrichment, c. 7, introductory note, p. 117 (Tentative Draft No. 5, March 12, 2007).

Briefly described, this subrogation action involves a paradigm of three participants, the plaintiff insurer, the insured, and a third person who, it is alleged by the insurer, has been unjustly enriched by the payment by the insurer of a claim covered by its contract with the insured that should have been borne by the defendant third person because of his negligence. “[S]ubrogation is a time-honored theory, and insurers who pay a loss are entitled, within the limit of subrogation doctrine, to pursue the actual wrongdoer.” 16 L. Russ & T. Segalla, Couch on Insurance (3d Ed. 2005) § 222:4.

It is important to establish the relationship between the defendant and Deveau because if the defendant had no monetary obligation arising from that relationship, such as a contract as a boarder-lodger or tenant as he claimed, or arising from his tortious conduct, he would not be unjustly enriched by the plaintiffs payment to Deveau. It is the relationship between the insured and the third person that governs whether the insurer’s payment to the insured unjustly benefited or enriched the third person because the duty owed by the third person to the insured establishes whether the former did or did not owe the latter the sum of money paid by the insurer to the insured. The duty owed is usually governed by the expectations of the parties, which may be outlined in an insurance policy or a lease. See Hartford Fire Ins. Co. v. Warner, 91 Conn. App. 685, 692, 881 A.2d 1065, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

“The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. . . . When the trial court draws conclusions of law from its balancing of the equities, however, our review is plenary. . . . Moreover, we are mindful that [s]ubrogation is a highly favored doctrine . . . which courts should be inclined to extend rather than restrict.” (Citations omitted; internal quotation marks omitted.) Wasko v. Manella, supra, 269 Conn. 542-43.

Our Supreme Court previously has considered whether to allow an action for equitable subrogation by the insurer against an insured’s tenant; see DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002); or against an insured’s social houseguest. See Wasko v. Manella, supra, 269 Conn. 527. In DiLullo v. Joseph, supra, 850-51, our Supreme Court held that “in the absence of an express agreement between the parties covering the question, there is no right of subrogation on the part of a landlord’s fire insurer against a tenant of the landlord’s premises.” The court subsequently held, in Wasko v. Manella, supra, 527, that a right of subrogation exists when a social houseguest negligently causes a fire that damages a host’s insured property. It is the defendant’s contention that he and Deveau had a landlord-tenant relationship, causing subrogation to be inequitable and barred as a matter of law. See DiLullo v. Joseph, supra, 850-51. He further contends that the court improperly found that he was more akin to a social houseguest subject to subrogation pursuant to Wasko v. Manella, supra, 527.

“A landlord-tenant relationship, in its most common and traditional form, is 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.” Rivera v. Santiago, 4 Conn. App. 608, 609, 495 A.2d 1122 (1985). A “landlord” is defined in General Statutes § 47a-l (d) as “the owner, lessor or sublessor of the dwelling unit, the building of which it is a part or the premises.” A “tenant” means “the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law.” General Statutes § 47a-l (l). A “rental agreement” means “all agreements, written or oral . . . embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises.” General Statutes § 47a-l (i). “Rent” is defined as “all periodic payments to be made to the landlord under the rental agreement.” General Statutes § 47a-l (h). Applying these definitions to the present case, we conclude that the court properly found, on the basis of the evidence admitted at trial, that the defendant and Deveau were not in a landlord-tenant relationship.

Specifically, the court found that the defendant moved into the premises in or about February, 2001, as Deveau’s “live-in boyfriend-fiance” and vacated the premises in or about October, 2005. During this period of time, Deveau and the defendant shared expenses for the residence. The defendant never made a security deposit and did not have either a written or oral lease with Deveau. They shared the expenses of the home, which varied from month to month. Deveau, the defendant and Deveau’s daughter occupied the entire house, and no one had exclusive use of one particular area. The court rejected the defendant’s contention that by virtue of their having resided together for five and one-half years and by virtue of their sharing of expenses, a landlord-tenant relationship was created between Deveau and the defendant. The court stated that “[b]y his own admission, [the defendant] conceded that he did not occupy any part of the premises to the exclusion of others, nor did he have a fixed amount of rent or a fixed period of occupancy. Based on this testimony, the court must conclude that it was never intended by the parties, either expressly or impliedly, that a landlord-tenant relationship would arise.” On the basis of our review of the record, we conclude that the court properly held that a landlord-tenant relationship did not exist between Deveau and the defendant.

The defendant further argues that even if he was not a tenant within the strict confines of the statute, he was in a landlord-roomer or landlord-lodger-boarder relationship with Deveau, subjecting him to the landlord-tenant laws, including the right of eviction through summary process. According to the defendant, these relationships turn on whether the roomer or lodger-boarder is transient. If that person is transient, i.e., a guest, that person would be excluded from the landlord-tenant laws. If, however, that person is determined not to be transient, the roomer or lodger-boarder would be a tenant “ ‘as otherwise described by law’,” according to the defendant.

We conclude, contrary to the defendant’s contention, that the court properly found, by implication, that the defendant was a social guest rather than a roomer or lodger-boarder. In determining whether the defendant was a guest rather than a roomer or lodger-boarder, “[t]he length of stay, the existence of a special contract for the room, the fact that a person has another abode and the extent to which he has made the room his home for the time being” may be considered. (Internal quotation marks omitted.) Bourque v. Morris, 190 Conn. 364, 369, 460 A.2d 1251 (1983). These are all “material circumstances in determining whether the relationship is that of a guest or a lodger.” (Internal quotation marks omitted.) Id. On the basis of our review of the record, we cannot say that the court’s factual determination that the defendant was more akin to a social guest than a roomer or lodger-boarder was clearly erroneous. We recognize that the difficulty of determining the status of the defendant arises from the fact that the defendant was more than a social guest because he contributed to the expenses of the realty but less than a tenant because he paid no fixed amount as rent, had no fixed period of occupancy and was transient because the landowner could terminate his stay at any time by terminating their relationship.

In Wasko v. Manella, supra, 269 Conn. 546, the court stated that “[i]f the insured property owner can bring an action to recover for negligently caused damages against the defendant, we see no reason why an insurer that pays for the property owner’s loss cannot also bring an action against the defendant.” We also note that “ [i]t is well settled that [an] insurer can take nothing by subrogation but the rights of the insured, and is subrogated to only such rights as the insured possesses. The principle has been frequently expressed in the form that the rights of the insurer against the wrongdoer cannot rise higher than the rights of the insured against such wrongdoer, since the insurer as subrogee, in contemplation of law, stands in the place of the insured and succeeds to whatever rights he may have in the matter. ... In short, [a] subrogee can obtain no greater rights against a third person than its subrogor had.” (Citation omitted; internal quotation marks omitted.) Wasko v. Manella, 87 Conn. App. 390, 397, 865 A.2d 1223 (2005). On the basis of the foregoing, the court here properly held that just as Deveau could have brought an action in negligence against the defendant, so, too, can the plaintiff by virtue of equitable subrogation.

This case is but an extension of Wasko v. Manella, supra, 269 Conn. 527. The defendant was more like a social houseguest of the insured because he could remain as an occupant of the insured’s home for only as long as she chose to allow him to do so and because he had few characteristics of a tenant. Whether he remained for one weekend or many weeks, the parties’ relationship did not become a business relationship or legal agreement. In an equitable subrogation action, the equities are balanced by the court. When the court draws conclusions of law to reach its conclusion as to whether the plaintiff is entitled to that remedy, our review is plenary. See id., 543. We conclude, on the basis of our plenary review, that the court properly found, by implication, that the defendant was a social guest of the insured and that the plaintiff was entitled to judgment in its favor in this equitable subrogation action.

II

The defendant next argues that the court improperly determined the amount of damages owed to the plaintiff. Specifically, the defendant contends that even if it is assumed that an action for equitable subrogation lies, the plaintiff did not meet its burden of proving either structural damage or personal property damage. We disagree.

“It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . Although damages often are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier . . . this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Wasko v. Manella, supra, 87 Conn. App. 396-97.

The defendant first argues that the plaintiff did not meet its burden of proving structural damage. In support of his argument, the defendant contends that the contract between the contractor, Connecticut Restoration Specialists, and Deveau, for structural repairs to the residence, did not comply with General Statutes § 20-429 of the Home Improvement Act, General Statutes § 20-418 et seq. Because the contract was unenforceable against Deveau, the defendant argues that it is unenforceable against him as well.

The defendant, however, did not raise this issue in his answer or by way of a special defense. It was briefly raised during the testimony of the plaintiffs expert witness and in the defendant’s closing argument. The court did not address this issue in its memorandum of decision, nor did the defendant seek an articulation as to this issue. There is, therefore, an insufficient record to review the defendant’s claim that the court improperly awarded damages for structural damage to the plaintiff due to noncompliance with the Home Improvement Act. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998).

With regard to the items of personal property that were considered a total loss, the defendant argues that the court improperly calculated the loss using replacement cost and that no evidence was submitted as to the fair market value of the property. We disagree.

“Where total loss of personal property has occurred, damages are measured by the fair value of the property at the time that it was destroyed.” Wasko v. Manella, supra, 87 Conn. App. 399. Stated another way, the loss of the contents should be “valued at their fair value or actual value at the time of the loss.” Id., 400. We conclude, on the basis of our review of the record, that the evidence was sufficient to support the court’s award of damages for loss of personal property.

The plaintiff provided evidence through exhibits and testimony as to the actual value of the destroyed items. The plaintiffs exhibit eighty-eight shows how each destroyed item of personal property was valued at its actual cash value bn the day of the fire. Mary Anne Brown, senior staff claims adjuster for the plaintiff, testified as to the process she followed to value the items that were destroyed. The plaintiff met its burden of proving damages as to the destroyed items of personal property.

With regard to items that were not considered a total loss, the plaintiff produced evidence that the property was cleaned or repaired and evidence of that cost. The defendant argues, however, that the plaintiff produced no evidence as to the fair market value of each of the repaired or cleaned items to substantiate that the cost of repairs was less than the value of the items. We conclude that the evidence was sufficient to support the judgment of the trial court with regard to the items of personal property that were cleaned or repaired.

With regard to real property, our Supreme Court has stated that “[t]he basic measure of damages for injury to real property is the resultant diminution in its value. . . . There is, however, a well established exception to this formula; such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged.” (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 59, citing Whitman Hotel Corp. v. Elliot & Watrous Engineering Co., 137 Conn. 562, 573, 79 A.2d 591 (1951). “The permissive language of Whitman Hotel [Corp.] clearly leaves the selection of the repair measure in the trial court’s discretion, limited only by the two attached provisos .... The cost of repairs, therefore, is a proxy for diminution in value caused by damage to the property. Because these are, in effect, alternative measures of damages, the plaintiff need not introduce evidence of both diminution in value and cost of repairs.” (Citation omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 59-60.

The plaintiff in Willow Springs Condominium Assn., Inc., introduced evidence of the cost of repairs of certain chimneys, decks and vents at issue. Id., 60. Our Supreme Court stated that “jajlthough it would have been proper, in light of the value enhancement limitation articulated in Whitman Hotel Corp., for the trial court to have refused to allow the jury to consider as a measure of diminution in value the plaintiffs proffered evidence of repair costs in excess of the purchase price of the property being repaired . . . this is not the situation in the case before us. There is no indication that the cost of repairing the chimneys, decks and vents would exceed the purchase price of the property being repaired.” (Citations omitted; internal quotation marks omitted.) Id. Similarly, there is no indication in the present case that the cost of repairing the items of personal property that were not considered a total loss would enhance the value of the property over what it was before it was damaged.

The court in Willow Springs Condominium Assn., Inc., continued by noting that the cost of repairs is evidence of the diminution in value resulting from the defendant’s conduct. Id., 60-61; see also Calderwood v. Bender, 189 Conn. 580, 584-85, 457 A.2d 313 (1983) (actual cost of repairing faulty septic system, as reflected in repair bill, was proper measure of damages resulting from defendant’s negligence); Whitman Hotel Corp. v. Elliot & Watrous Engineering Co., supra, 137 Conn. 573 (“[a]nd when the property injured may be repaired, if the repairs will substantially restore the property to its former condition, the cost of such repairs will ordinarily furnish proper proof of the loss” [internal quotation marks omitted]). Applying these principles to the present case, the plaintiff presented sufficient evidence to establish the cost to clean or repair those items of personal property that were not considered a total loss.

Jill Bisson, a subrogation advocate for the plaintiff, and Brown, testified regarding the items of personal property belonging to the insured that were cleaned or repaired. Specifically, the evidence indicated that the plaintiff paid $7350.94 to Bill’s Cleaning Service for cleaning services it performed at the insured’s residence. The evidence further indicated that the plaintiff paid $6260.01 to Mercury Cleaners of Hartford, Inc., for the dry cleaning of the clothing and soft goods that were in the residence and $1503 to Video Experts for repairing electronics after the fire. The documentation reflecting payment to each of these vendors was admitted into evidence without objection.

“Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 59. As stated earlier in this opinion, “[t]he determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Wasko v. Manella, supra, 87 Conn. App. 397. We conclude, on the basis of our review of the record, that the court’s determination regarding the amount of damages owed to the plaintiff is supported by the evidence in the record and is not clearly erroneous.

III

The defendant next claims that the court improperly admitted computer generated evidence in support of damages. The defendant does not refer to any specific item of evidence that he finds objectionable; he appears, rather, to be making a general challenge to the computer programs used to assist the plaintiffs expert, James Quinn, in arriving at his structural damage estimate, and Brown in arriving at her personal property estimate. The defendant claims that this evidence failed to meet the standards for reliability set forth in State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004). We disagree.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Fillion v. Hannon, 106 Conn. App. 745, 756, 943 A.2d 528 (2008).

“[Reliability must be the watchword in determining the admissibility of computer generated evidence [and] in order to lay a proper foundation for computer generated evidence, there must be testimony by a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the computer. ... In addition to the reliability of the evidence itself, what must be established is the reliability of the procedures involved, as defense counsel must have the opportunity to cross-examine the witness as to the methods used.” (Citations omitted; internal quotation marks omitted.) State v. Swinton, supra, 268 Conn. 812-13. “Because computer records are part of ordinary business activities, created for business rather than for litigation purposes, they carry with them the assurance of regularity that is a large element in establishing their trustworthiness.” American Oil Co. v. Valenti, 179 Conn. 349, 357, 426 A.2d 305 (1979).

Quinn prepared an estimate regarding structural damage and testified as to the value of the structural damage. Brown created a list of the items of personal property that had been destroyed in the fire. Brown testified about the process she followed to value the items that were destroyed. A computer program assisted Quinn regarding the structural damage estimate and assisted Brown regarding the typewritten list that she prepared. The evidence was properly authenticated and testified about by both Quinn and Brown. On the basis of our review of the record, we conclude that the court did not abuse its discretion in its evidentiary rulings.

IV

The defendant’s final claim is that the court improperly failed to preclude expert testimony that was disclosed to the defendant on the eve of trial. We disagree.

Practice Book § 13-4 (4) provides in relevant part that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision, or if an expert witness who is expected to testily is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. ...”

The defendant argues that he has been substantially prejudiced by the disclosure, yet he presented no evidence of such prejudice at the time the motion to preclude was argued, and he has not cited any prejudice in the present appeal. The defendant also claims that he had no time to “thoroughly investigate those opinions or to obtain experts of his own in rebuttal to the plaintiffs experts’ opinions.” Yet, the defendant requested no additional time to secure rebuttal experts. Accordingly, we find that the ruling of the court allowing the plaintiffs experts to testify was within its broad discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint named Rock-Vem Electric, Inc., as an additional defendant. On April 15, 2005, the plaintiff withdrew the complaint against RockVem Electric, Inc., leaving Palumbo as the sole defendant. We, therefore, refer to him as the defendant in this opinion.

       Cases involving equitable subrogation usually involve both the initial question of a defendant’s liability to a plaintiff, and, if liability exists, the monetary extent of a defendant’s responsibility. See Wesson, Inc. v. Hychko, 205 Conn. 51, 60, 529 A.2d 714 (1987); see also Wasko v. Manella, 269 Conn. 527, 849 A.2d 777 (2004). Implicit in the remand in Wasko v. Manella, supra, 269 Conn. 550, is the right of the third party to question whether the evidence at trial was sufficient to establish the amount of the loss to the subrogors’ structure and contents. In other words, the defendant can raise the issue of whether the insurer overpaid its insured.

       The persons specifically covered under the policy of insurance were the named insured or residents of the household if they were relatives or dependent persons in the care of the insured. The defendant conceded that he is not a dependent person in the care of the insured or the husband of the insured. He argued instead that he is a relative of the insured because he and she had planned to marry.

       Insurer subrogation, however, is not universally accepted, and there is considerable disagreement among commentators on the wisdom of insurer subrogation. 16 L. Russ & T. Segalla, supra, § 222:4.

       In Wasko v. Manella, supra, 269 Conn. 529, the plaintiffs, the insured homeowners, brought an action against the defendant houseguest, and the plaintiffs’ insurer was substituted as the real party in interest. In DiLullo v. Joseph, supra, 259 Conn. 848, the plaintiffs were the insured property owners and their insurer, Public Service Mutual Insurance Company.

       The court did not explicitly find that the defendant was a social houseguest but impliedly found that he was a social guest by stating: “A guest, as distinguished from a boarder, is bound for no stipulated time.” The court noted that the analysis utilized in Wasko v. Manella, supra, 269 Conn. 527, determined that “a social houseguest who negligently caused a fire was liable to the insurer which paid the claim for the insured loss.” The court concluded that because asocial houseguest in apersonal residence was not immune from liability, judgment should enter in favor of the plaintiff against the defendant.

       A “roomer” is “a person occupying a dwelling unit, which unit does not include a refrigerator, stove, kitchen sink, toilet and shower or bathtub and one or more of these facilities are used in common by other occupants in the structure.” General Statutes § 47a-l (j).

       “Ordinarily the landlord furnishes the lodger with a furnished room or rooms, whose care the landlord has, and whose habitation and enjoyment he gives to the lodger, while he himself retains the occupation. The tenant has the exclusive possession of his rooms, while the lodger has merely the use without the actual or exclusive possession, which remain in the lessor.” Mathews v. Livingston, 86 Conn. 263, 267, 85 A. 529 (1912).

       We are aware that the insurer, in recovering from the defendant the amount it paid to Deveau, will retain the premium paid by her for the insurance coverage although it will not have sustained a monetary loss arising from the insurance coverage. The premium, in essence, was a prepayment by Deveau for the risk or possibility of loss to be borne by the insurer, which loss will not now materialize, to the extent it will be paid by the defendant. The defendant, however, has made no argument or claim for a credit in the amount of the insurance premium in the event of a judgment against him in the amount paid by the plaintiff to Deveau pursuant to the insurance policy. We need not determine, therefore, whether the defendant is entitled to such a credit.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    LESTER SELIGSON v. CHARLES F. BROWER
    (AC 28913)
    McLachlan, Beach and Mihalakos, Js.

      Argued May 30
    officially released August 19, 2008

      Charles F. Brower, pro se, the appellant (defendant).

      John J. Kelly, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this breach of contract action, the defendant, Charles F. Brower, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Lester Seligson. On appeal, the defendant claims that the court improperly determined (1) that the plaintiff had performed under the contract and was entitled to payment from the defendant in the amount of $1486.65 and (2) that the defendant could not prevail on his counterclaim alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff operated a court reporting service that utilized independent contractor court reporters. The defendant and David Weiss were opposing counsel at an arbitration hearing. Weiss requested the plaintiffs court reporting services in connection with the hearing. The plaintiff sent Charles Huneke, an independent contractor court reporter, to attend the matter and to record the proceedings. On January 19, 2006, at the conclusion of the proceedings, Weiss ordered from Huneke two copies of the transcript, one for himself and one for the arbitrator. The defendant ordered one copy of the transcript for himself. Huneke informed the defendant that the transcript would be postmarked no later than two weeks from January 21, 2006.

On January 25, 2006, Huneke completed the transcript, which consisted of 561 pages. Weiss, who originally requested the plaintiffs services, was charged $5 per page, plus an attendance fee of $300. The defendant’s original bill was in the amount of $1486.65. Weiss expressed displeasure with his bill and informed the plaintiff that he had made an agreement with the defendant to split the cost of the transcript and demanded that his bill be revised downward. The plaintiff subsequently attempted to charge the defendant a higher fee of approximately $2200. The defendant refused to pay the additional amount.

On February 14, 2006, the plaintiff filed an action in the small claims session of the Superior Court. He claimed, inter alia, breach of contract and sought to recover $1486.65 in damages from the defendant. On February 24, 2006, the defendant filed a motion pursuant to Practice Book § 24-21 to transfer the matter to the regular docket, which motion was granted on that same date. Also on that same date, the defendant filed an answer and a counterclaim. In his counterclaim, the defendant alleged that the plaintiffs actions violated CUTPA.

On June 7, 2007, after a trial to the court, the court issued a memorandum of decision in which it found in favor of the plaintiff on his breach of contract claim. The court found that the parties entered into a contract for court reporting services. According to that contract, the plaintiff was to provide the defendant with a transcript of the arbitration proceeding, postmarked no later than two weeks from January 21,2006, in exchange for $1486.65 from the defendant. The court found that the plaintiff performed his part of the contract by calling the defendant and attempting to give him the completed transcript on February 6, 2006. Accordingly, the court found the defendant in breach of contract and rendered judgment in favor of the plaintiff in the amount of $1486.65. The court also rendered judgment in favor of the plaintiff on the defendant’s CUTPA counterclaim. This appeal followed.

I

The defendant first claims that the court improperly concluded that the plaintiff had performed under the contract and was entitled to payment from the defendant in the amount of $1486.65. We disagree.

“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.) Chiulli v. Zola, 97 Conn. App. 699, 706-707, 905 A.2d 1236 (2006). “Whether there was a breach of contract is ordinarily a question of fact. ... We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Citation omitted; internal quotation marks omitted.) Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn. App. 462, 471-72, 823 A.2d 438 (2003).

There is evidence in the record to support the court’s findings of performance by the plaintiff, breach of the agreement by the defendant and damages in the amount of $1486.65. Huneke testified that at the conclusion of the arbitration proceeding, the defendant ordered a copy of the transcript, for which the defendant expected to be charged, and Huneke agreed that it would be postmarked no later than two weeks from January 21, 2006. There was evidence that Huneke thereafter prepared the transcript, calculated the cost and faxed the invoice to the plaintiff, who subsequently faxed a bill in the amount of $1486.65 to the defendant on January 26, 2006. Although the plaintiff later faxed a revised bill of approximately $2200 to the defendant’s office, the court found that this did not modify the original contract. The defendant does not challenge this finding. On January 27, 2006, the plaintiff spoke with a person from the defendant’s office, who informed him that the defendant would not pay the revised bill but would pay the original bill of $1486.65. The defendant did not inform the plaintiff that he wanted to cancel the transcript order. The plaintiff did not indicate to the defendant that he would not be willing to accept $1486.65. On February 6, 2006, Huneke telephoned the defendant’s office and informed a secretary that he had the transcripts of the arbitration hearing and was going to deliver them to the defendant’s office on that day and collect the check. The court concluded that the plaintiff performed under the contract by attempting to deliver the transcript on that day. We conclude that the court’s finding that the defendant breached his contract with the plaintiff by failing to pay the sum of $1486.65 finds support in the record and, as such, is not clearly erroneous.

The defendant further argues, however, that the contract between the parties ceased to exist when the plaintiff attempted to charge a higher fee. Implicit in the court’s finding that the parties did not agree to modify the original agreement and its finding of a subsequent breach by the defendant is a finding that the contract continued to exist despite the attempted modification. We cannot say that the court’s findings in this regard are clearly erroneous.

II

The defendant next claims that the court improperly determined that he could not prevail on his counterclaim alleging a violation of CUTPA. We disagree.

CUTPA provides in relevant part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a). “It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [ W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43, 717 A.2d 77 (1998).

“It is well settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Chamlink Corp. v. Merritt Extruder Corp., 96 Conn. App. 183, 189, 899 A.2d 90 (2006).

On appeal, the defendant claims that the court improperly determined that the following conduct of the plaintiff did not amount to a CUTPA violation: (1) lying to the defendant concerning the reasons for changing the bill to reflect a higher price, (2) refusing, after January 26, 2006, to accept the originally billed amount of $1486.65, (3) berating and threatening the defendant’s secretary in a February 6, 2006 telephone conversation and (4) falsely claiming in his complaint that he tendered the defendant the transcript on January 26, 2006, and that the defendant refused to pay $1486.65 for it.

The defendant cannot prevail on his argument. The court’s memorandum of decision does not contain factual findings that the plaintiff lied concerning his reasons for increasing the bill, refused to accept payment of $1486.65 from the defendant, berated or threatened the defendant’s secretary or filed a false complaint. “Weighing conflicting evidence is a matter solely committed to a fact finder.” Verspyck v. Franco, 274 Conn. 105, 115, 874 A.2d 249 (2005). “It is well established that [tjhe trier of fact may accept or reject the testimony of any witness. . . . The trier can, as well, decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn. App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999). We do not retry the facts or pass on the credibility of witnesses and thus cannot conclude that the court’s finding that the defendant failed to prove a violation of CUTPA was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint named “Lester Seligson, d/b/a Seligson Reporting,” as the plaintiff. We note that “the use of a fictitious or assumed business name does not create a separate legal entity . . . [and that] [t]he designation [d/ b/a] ... is merely descriptive of the person or corporation who does business under some other name.” (Internal quotation marks omitted.) Bauer v. Pounds, 61 Conn. App. 29, 36, 762 A.2d 499 (2000).

       In making his argument, the defendant also claims that the following factual findings made by the court are clearly erroneous: (1) the contract price was determined by the defendant’s agreeing with Weiss to split the cost of the transcript, (2) the plaintiff sent the defendant a bill for a higher amount because the matter involved an arbitration proceeding—the defendant argues that the cause for the revision of the bills was Weiss’ displeasure with his bill, (3) Huneke concluded that the proceedings were more complex than originally anticipated and therefore charged a higher amount—the defendant argues that the fact that the matter was an arbitration proceeding had nothing to do with the charges to either attorney and (4) despite evidence that a telephone call was made on January 26, 2006, and a delivery date given of January 30, 2006, the parties did not agree that time was of the essence—the defendant claims he never made a claim that time was of the essence.
      There is evidence in the record to support the court’s findings of performance by the plaintiff, breach of the agreement by the defendant and damages in the amount of $1486.65. The other factual findings, whether or not they are clearly erroneous, are not material to our legal conclusions with respect to the issues before us. See Colliers, Dow & Condon, Inc. v. Schwartz, 88 Conn. App. 445, 446 n.2, 871 A.2d 373 (2005).

       The defendant does not dispute that there was an agreement between the parties.

       It was agreed that the transcript would be postmarked no later than two weeks from January 21, 2006, which would be, as noted by the court, February 4, 2006. The court found that although the transcript was not postmarked by February 4, 2006, hand delivery on February 6, 2006, would have put the transcript into the defendant’s hands at the same time as if the plaintiff would have mailed the transcript on February 4, 2006. The defendant makes no claim on appeal that a February 6 hand delivery date, as opposed to a February 4 postmark date, constituted a breach of contr act by the plaintiff.

       The defendant also maintains that on January 27, 2006, when the plaintiff called his office to inform him that the bill had been revised to a higher amount, the plaintiff committed an anticipatory breach of the original contract, which entitled the defendant to discharge his remaining duties of performance. The defendant did not assert this claim until this appeal, and, thus, we decline to address that claim. See In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949 (“[W]e will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than atrial by ambuscade of the trial judge.” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).
      “An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. ... Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance. . . . The manifestation of intent not to render the agreed upon performance may be either verbal or nonverbal . . . and is largely a factual determination in each instance.” (Citations omitted; internal quotation marks omitted.) Pullman, Comley, Bradley & Reeves v. Tuck-It-Away, Bridgeport, Inc., 28 Conn. App. 460, 465, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992). We further note that the facts found by the court do not necessarily compel the conclusion that an anticipatory breach had occurred. The court made no findings with respect to the plaintiffs intent when he revised the defendant’s bill to reflect a higher amount.

       We express no opinion as to whether some or all of the facts claimed by the defendant would support recovery under CUTPA.


author: BORDEN, J.

text:
    MICHAEL MITCHELL v. COMMISSIONER OF CORRECTION
    (AC 27957)
    Gruendel,- Beach and Borden, Js.

      Argued April 14
    officially released August 19, 2008

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Scott J. Murphy, state’s attorney, and, on the brief, Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BORDEN, J.

The petitioner, Michael Mitchell, appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. On appeal, the petitioner contends that he is entitled to a reversal of his conviction and a new trial because of the ineffectiveness of the legal assistance he received from his trial counsel. Specifically, the petitioner claims that he was denied effective assistance because his trial counsel failed (1) to preserve sentence review rights, (2) to present a plea bargain offer to him and to inform him of the risks of trial, (3) to object to improper statements made by the prosecutor during closing arguments to the jury, (4) to object to references to his prior criminal history, (5) to cross-examine the state’s witnesses properly and (6) to prepare adequately for trial by not locating witnesses. We affirm the judgment of the habeas court.

The following facts and procedural history provide the necessary background to the disposition of the petitioner’s appeal. The petitioner was convicted, after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (1) and 53a-70 (a) (1), and sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On direct appeal, we affirmed the judgment of conviction. State v. Mitchell, 59 Conn. App. 523, 757 A.2d 1137 (2000), cert. denied, 256 Conn. 901, 772 A.2d 598 (2001).

In the petitioner’s direct appeal, this court determined that the jury reasonably could have found the following facts. “On February 6, 1996, the [petitioner] entered the victim’s boutique in New Haven. He showed the victim his wedding band and told her that he was looking for a Valentine’s Day gift for his wife. Several customers entered and left the store while the victim showed the [petitioner] some pieces of jewelry. When the store was empty, the [petitioner] grabbed the victim’s arm and told her that he was there to rob her. Noticing a pointed object protruding from the [petitioner’s] jacket pocket, the victim gave him money from a desk drawer. The [petitioner] then pushed her into the dressing room where he sexually assaulted her. . . . He then went behind the desk, threw her purse at her and ordered her to dump everything out. He rifled through its contents and took money from another purse containing business proceeds. He then wiped the counters and the desk with a scarf from the store and, after the victim pleaded for her life, he left. The victim immediately called the police and later identified the [petitioner] as the perpetrator.

“At trial, the [petitioner] presented an alibi defense. Specifically, his girlfriend testified that she picked up the [petitioner] at his grandmother’s home on February 2,1996. She further testified that the [petitioner] stayed with her at her apartment in Bridgeport from February 2 to February 7, when she returned him to his grandmother’s home. She also testified that she shared the apartment with her niece and her niece’s boyfriend; however, the grandmother, the niece and the niece’s boyfriend were not presented as defense witnesses.” Id., 524-25.

Following his unsuccessful appeal, the petitioner brought this petition for a writ of habeas corpus. In his third amended petition, the petitioner asserted fifteen claims of ineffective assistance of counsel. In a detailed memorandum of decision, the court denied the petition, finding that the petitioner had failed to prove that he was denied effective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Certification to appeal was granted, and this appeal followed.

On appeal, the petitioner raises six claims of ineffectiveness of counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) “that counsel’s performance was deficient”; id., 687; namely, that “counsel’s representation fell below an objective standard of reasonableness”; id., 688; and (2) “that the deficient performance prejudiced the defense”; id., 687; such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 694. “Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id., 687.

“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Dwyer v. Commissioner of Correction, 69 Conn. App. 551, 561, 796 A.2d 1212, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002). With these principles in mind, we now turn to the petitioner’s claims. Additional facts will be set forth as needed.

I

The petitioner’s first two claims, namely, that trial counsel failed (1) to preserve sentence review rights, and (2) to inform him of a plea bargain offer and the risks of going to trial, are premised on issues of credibility; therefore, we will address both claims together. We reject these claims.

In its memorandum of decision, the court found, after listening to the testimony of both the petitioner and trial counsel, that the petitioner’s testimony was not credible. In ruling against the petitioner on his claim that trial counsel was deficient for failing to file for sentence review, the court noted that the petitioner recalled the sentence review papers, but neither asked for sentence review nor requested that trial counsel file for review. In addition, the habeas court concluded that the petitioner’s claim that he never saw the sentence review paper was “not credible—particularly for someone who obviously was involved in every aspect of his case . . . . ”

Turning to the petitioner’s claim that he was never informed of a plea bargain or the risks of trial, the court determined, after reading the trial transcript and hearing and seeing the petitioner testify, that the petitioner was “just not credible.” The court supported its conclusion with references to the petitioner’s testimony during both his criminal and habeas trials, the petitioner’s involvement in his criminal trial, the fact that the petitioner had been convicted under a plea for an earlier crime and the petitioner’s failure to indicate that he wanted anything other than a trial when questioned by the trial court, Damiani, J., in a proceeding prior to trial concerning a grievance that the petitioner had filed against trial counsel.

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Dwyer v. Commissioner of Correction, supra, 69 Conn. App. 561-62.

After reviewing the testimony presented at the habeas trial, we conclude that the court’s findings regarding the petitioner’s claims that trial counsel improperly failed to preserve sentence review rights and to inform the petitioner of a plea offer or the risks of going to trial were not clearly erroneous. Accordingly, the petitioner’s first two claims must fail.

II

The petitioner next claims that trial counsel did not provide effective counsel because he failed to object to statements made by the prosecutor in closing argument, which the petitioner argues were inflammatory and improper. We reject the petitioner’s claim under both prongs of the Strickland test.

During closing argument on January 12, 1998, the prosecutor stated: “He then grabs her purse, empties that out and goes through her personal belongings, and then takes, what I submit your common sense will tell you, is the rather unusual step of grabbing hold of a scarf and wiping down those areas that he has touched in an obvious attempt to eliminate fingerprints, certainly not the actions of someone who has decided to commit these offenses spin- of the moment, nor the actions, I would submit to you, of one who is a novice at committing those type of offenses.” (Emphasis added.) The habeas court determined that the prosecutor’s statements in closing arguments were proper because they accurately described what the petitioner did and that “[s]uch action certainly suggests one who has done this before or knows how he may be apprehended.”

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. ” (Internal quotation marks omitted.) State v. Batista, 101 Conn. App. 623, 634, 922 A.2d 1116, cert. denied, 284 Conn. 918, 933 A.2d 721 (2007). “Remarks that are nothing more than a permissible appeal to the jurors’ common sense do not constitute prosecutorial [impropriety].” (Internal quotation marks omitted.) State v. Ayuso, 105 Conn. App. 305, 326, 937 A.2d 1211, cert. denied, 286 Conn. 911, 944 A.2d 983 (2008). In addition, “[i]t is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Lacks v. Commissioner, 87 Conn. App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).

We agree with the habeas court that the prosecutor’s statements explaining what the petitioner did after he committed the crime and the prosecutor’s conclusions that these actions were “an obvious attempt to eliminate fingerprints” and not the actions of “someone who has decided to commit these offenses spur of the moment,” were not improper because the prosecutor merely was restating the facts and drawing a reasonable inference that anyone who would take the precaution of wiping away his fingerprints after committing a crime is likely to be someone who planned the crime in advance. Because these statements were proper, we conclude that trial counsel was not deficient in not objecting to them.

The prosecutor’s remark that the actions of the petitioner were certainly not those of “a novice” presents a closer case for prosecutorial impropriety. We need not decide that question, however, because even if we assume, without deciding, that the remark was improper, the petitioner’s claim as to that remark fails under the second prong of Strickland. To meet the second prong of the Strickland test, the petitioner must show that “counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Strickland v. Washington, supra, 466 U.S. 687. “[T]he petitioner’s burden of proving that afundamental unfairness [has] been done is not met by speculation but by demonstrable realities.” Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied. 222 Conn. 906, 608 A.2d 692 (1992). The petitioner has not demonstrated how trial counsel’s objection to the prosecutor’s limited comment would have changed the outcome of the criminal trial.

There was strong evidence evincing the petitioner’s guilt. First, the victim was certain about her identification of the petitioner as the perpetrator; she testified that she selected the petitioner’s photograph from the police photographic array with 99 percent certainty and immediately identified the petitioner when she saw him in person. Second, the victim testified that the perpetrator wore a “very thin yellow band” on his finger. The victim’s testimony was corroborated by two probation officers, both of whom stated in their testimony that, two days after the incident, they saw the petitioner and noticed that he was wearing a ring that matched the victim’s description. In addition, a similar ring was seized from the petitioner’s person when he was arrested, and that ring was offered into evidence at trial for the jury’s consideration. Furthermore, the victim testified that the perpetrator had a narrow cut near the tip of his nose; both probation officers and one of the detectives involved in the case; see footnote 2 of this opinion; testified that they observed a similar mark near the tip of the petitioner’s nose two days after the crime occurred, and a photograph of the petitioner evidencing this mark, taken three days after the incident, was entered into evidence at trial. Moreover, there was evidence of consciousness of guilt; three days after the incident, when the police were seeking to arrest the petitioner, they found him lying down and hiding in an upper floor staircase in his grandmother’s apartment building. Because no prejudice to the petitioner has been shown from the limited statement by the prosecutor, the claim that trial counsel was ineffective for failing to object to the prosecutor’s closing statements fails under the second prong of the Strickland test.

III

The petitioner’s remaining three claims all relate to the trial strategy employed by his trial counsel. He claims that his trial counsel failed to object to references to the petitioner’s prior criminal history, to cross-examine the state’s witnesses effectively and to prepare adequately for trial by not locating witnesses.

“Competent representation is not to be equated with perfection. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. . . . [CJounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 798-99, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).

A

The petitioner claims that trial counsel provided ineffective assistance in failing to object to references made to the petitioner’s prior criminal history. We disagree.

The habeas court found that at “no time did anyone indicate what the petitioner’s prior record was or why he was on probation.” The court concluded that references to the petitioner’s probation were necessary to explain the identification process; see footnote 2 of this opinion; which the petitioner asserted was improper, and to make the testimony of Heather Smith, the petitioner’s girlfriend and alibi witness, more plausible. In addition, the court determined that if the petitioner had asked for a cautionary instruction regarding the photograph that the police had of him from a prior arrest, which was used in the photographic array presented to the victim to identify him, the issue would have been highlighted for the jury. Furthermore, the petitioner concedes that the failure to request such an instruction is “not necessarily impermissible.” Moreover, the court noted that trial counsel did ask for and was given a limiting jury instruction regarding testimony referring to the petitioner’s prior criminal history. Finally, we note that the petitioner had explained to the jury how he was identified by the victim as he was leaving the probation office. See footnote 2 of this opinion. Trial counsel cannot be found to have provided ineffective assistance for failing to object to the subject matter of the petitioner’s testimony.

“[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency.” (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985). “[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn. App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).

We agree with the habeas court that trial counsel’s decision not to object to references made to the petitioner’s prior criminal history “falls within the wide range of reasonable professional assistance . . . .” Strickland v. Washington, supra, 466 U.S. 689. Therefore, this claim is without merit.

B

The petitioner asserts in his fifth claim that trial counsel’s assistance was deficient due to counsel’s failure to cross-examine the state’s witnesses adequately during the criminal trial. We disagree.

The habeas court determined that trial counsel “effectively” cross-examined the state’s key identification witness, the victim. The court also noted that had trial counsel continued cross-examination of the sympathetic victim, it “could not have helped the defense and more likely would have antagonized the jury.” In addition, the court found that trial counsel “strenuously” cross-examined the detectives in an attempt to show that the identification of the petitioner was a “suggestive process” created to ensure that he would be identified as the perpetrator. Finally, the court concluded that trial counsel conducted a “thorough cross-examination” of the state’s witnesses who were called to put the testimony of the petitioner’s alibi witness in doubt in an effort to demonstrate that the recitation of one of the state’s witnesses concerning the dates in question was incorrect.

“An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy.” State v. Drakeford, 63 Conn. App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002). Upon reviewing the record of both the trial and habeas proceedings, we are in accord with the habeas court’s conclusion that the trial attorney’s examination of the state’s witnesses was an exercise of sound trial strategy that we will not second-guess. The petitioner’s claim therefore fails.

C

The petitioner’s final claim of ineffectiveness of counsel is that trial counsel failed to prepare adequately for trial by not locating witnesses who could have bolstered the petitioner’s alibi defense, challenged the credibility of the state’s witnesses or provided exculpatory testimony. Specifically, the petitioner claims that a witness who could have provided exculpatory testimony was a man who was in the store prior to the victim’s being sexually assaulted and who signed the store’s “visitor’s book” as “Jeff.”

The habeas court found that there was “no exculpatory witness who could have influenced the trial,” given the testimony of the petitioner’s hired investigator and the prosecutor at the criminal trial, both of whom had contacted “Jeff.” The court also agreed that on the basis of the statements of an alibi witness taken by trial counsel’s investigator, additional testimony would not have been helpful to the defense and only would have invited cross-examination, thereby further weakening the defense.

Although “[constitutionally adequate assistance of counsel includes competent pretrial investigation. . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it.” (Citations omitted; internal quotation marks omitted.) Ostolaza v. Warden, supra, 26 Conn. App. 765. Moreover, “[o]ne cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.” Id.

We agree with the habeas court that trial counsel provided adequate legal assistance. Trial counsel testified during the habeas proceedings that he attempted to locate “Jeff’ through his private investigator and his own efforts but was unable to do so. Additionally, trial counsel testified during the habeas trial that he investigated the alibi witnesses whose names the petitioner had provided but chose not to call the additional alibi witnesses at trial because Smith’s testimony was so weak that calling any other witness would have served only to damage the petitioner’s case. Furthermore, the evidence at the habeas trial regarding “Jeffs” knowledge; see footnote 3 of this opinion; indicates that “Jeff’ would not have been a witness helpful to the petitioner. We conclude that trial counsel’s decision not to pursue “Jeff further as a potential witness and his decision not to call the remaining alibi witnesses were within the scope of reasonable trial strategy. Thus, the claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the petitioner had a prior felony conviction, an oral motion in limine was granted by the trial court to keep out the precise name of the crime for which the petitioner was convicted because it was the same crime as one with which the petitioner was charged in the underlying criminal case.

       Detective John Bashta along with Officer Peter Moller accompanied the victim in an unmarked police car, which was driven through New Haven to give the victim an opportunity to identify her assailant in person. The officers drove to the side of State Street in front of the Modem Apizza restaurant in New Haven just as the petitioner was leaving his probation intake interview, at which point the victim saw the petitioner and made a positive identification.

       The prosecutor testified at the habeas trial that when he contacted the man named “Jeff’ in preparation for the criminal trial, “Jeff’ claimed that he did not have any recollection of having been in the store or any relevant knowledge relating to the incident. “Jeff’ also indicated that even if he had been contacted back in 1996, he would not have been able to offer any evidence or testimony regarding the incident. When the petitioner’s investigator contacted “Jeff’ just before the habeas trial, “Jeff’ was very irate at being contacted and refused to discuss the incident.

       The habeas court refers, in its memorandum of decision, to the statements of both potential alibi witnesses, Monique Cottrell and Ancy Dumont. Only the statements of Cottrell were taken, however.

       Because the petitioner’s grandmother would have been sequestered as a witness, a decision was made, presumably by both the petitioner and his trial counsel, that she would not be called so she could come and watch the trial.


author: LAVINE, J.

text:
    IN RE FORREST B. ET AL.

    (AC 29398)
    Bishop, Lavine and Peters, Js.
    Argued May 27
    officially released August 19, 2008

      Gary J. Wilson, for the appellant (respondent mother).

      Gregory T. DAuria, associate attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Colleen Broderick and Susan T. Pearlman, assistant attorneys general, for the appellee (petitioner).

      John C. Drapp III and Joseph A. Jaumann, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The respondent mother appeals from the judgments of the trial court sustaining orders of temporary custody of her two minor children in the petitioner, the commissioner of children and families. On appeal, she claims that the court improperly concluded that the orders of temporary custody should be sustained pursuant to General Statutes § 46b-129 (b). Because we conclude that the respondent’s appeal is moot, we dismiss it.

The record contains the following facts and procedural history. On October 23, 2007, the department of children and families received an anonymous call concerning the respondent and her two children, who were living in a room at the Stratford Inn Motel. The caller mentioned deplorable living conditions, a lack of financial means and suspicions about substance abuse. Jennifer Pandera, the social worker assigned to investigate the case, visited the family shortly thereafter and conversed with the respondent for approximately two hours. On the basis of the condition of the children, the respondent’s lack of supervision over them, the squalor of the room, the family’s transience and the family’s absence of resources, Pandera determined that the children were in an unsafe environment. The petitioner then invoked a ninety-six hour administrative hold. See General Statutes § 17a-101g.

On October 26, 2007, the petitioner filed ex parte motions for orders of temporary custody as well as neglect petitions. Finding that the children were in immediate physical danger from their surroundings and that continuation in the respondent’s custody was contrary to their welfare, the court, Wolven, J., granted the motions, pending the preliminary hearing. The respondent contested the orders of temporary custody. A trial was held on November 8 and 9, 2007, at the conclusion of which, the court, Wilson, J., sustained the orders by way of an oral decision. It is from these judgments that the respondent appeals.

On January 22, 2008, a hearing on the underlying neglect petitions was held. The respondent failed to attend the hearing, and the court defaulted her for failure to appear. On May 21, 2008, the neglect petitions were resolved as to both parents. Concluding that the children were neglected, the court committed both children to the custody of the petitioner.

On May 23, 2008, the petitioner, pursuant to Practice Book § 67-10, submitted to us a memorandum of law citing In re Carl O., 10 Conn. App. 428, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987), in which this court ruled that an appeal from an order of temporary custody was rendered moot when the children were adjudicated to be neglected. Id., 434. At oral argument on May 27, 2008, the petitioner asserted that because the respondent’s children would not be returned to her custody even if she were to prevail on appeal, this court cannot provide her any practical relief. Conceding that the issue is moot, the respondent contends that the capable of repetition, yet evading review exception to the mootness doctrine applies to her appeal. We do not agree with the respondent’s contention.

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . .

“We note that an otherwise moot question may qualify for review under the capable of repetition, yet evading review exception. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” (Emphasis added; internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754-55, 826 A.2d 156 (2003).

Our case law specifically conceives of appeals from temporary custody orders as moot when the children involved are adjudicated neglected. See In re Carl O., supra, 10 Conn. App. 434; see also Pamela B. v. Ment, 244 Conn. 296, 321, 709 A.2d 1089 (1998) (“commitment of the child to the [commissioner] legally supersedes the temporary custody order”). In support of her argument that the capable of repetition, yet evading review exception applies to her case, the respondent has offered no evidence that most cases challenging a temporary custody order are, by their very nature, of such a limited duration that there is a strong likelihood that they will become moot before appellate litigation can be concluded. See Drabik v. East Lyme, 97 Conn. App. 142, 146, 902 A.2d 727 (2006). In failing to establish that the substantial majority of temporary custody orders evades review, the respondent has foundered on the first required criterion of the exception. See Loisel v. Rowe, 233 Conn. 370, 387-88, 660 A.2d 323 (1995). We thus reject the respondent’s claim that the capable of repetition, yet evading review exception applies to her appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The respondent father is not a party to this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       General Statutes § 46b-129 (b) provides in relevant part: “If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child’s or youth’s surroundings, and (2) that as a result of said conditions, the child’s or youth’s safety is endangered and immediate removal from such surroundings is necessary to ensure the child’s or youth’s safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest in some suitable agency or person the child’s or youth’s temporary care and custody pending disposition of the petition, or (B) issue an order ex parte vesting in some suitable agency or person the child’s or youth’s temporary care and custody. . . .”

       Orders of temporary custody are considered final judgments for purposes of appeal. In re Shamika F., 256 Conn. 383, 773 A.2d 347 (2001).

       Practice Book § 67-10 provides in relevant part: “When pertinent and significant authorities come to the attention of a party after the party’s brief has been filed ... a party may promptly advise the appellate clerk of such supplemental authorities, by letter, with a copy certified to all counsel of record . . . .”


author: HENNESSY, J.

text:
    STEVEN POSICK v. MARK IV CONSTRUCTION COMPANY, INC., ET AL.
    (AC 29230)
    Lavine, Beach and Hennessy, Js.
    Argued May 21
    officially released August 19, 2008

      Steven P. Kulas, with whom, on the brief, was Prescott W. May, for the appellant (plaintiff).

      Joseph A. Kubic, for the appellee (named defendant).
   Opinion

HENNESSY, J.

The plaintiff, Steven Posick, appeals from the judgment of the trial court rendered after it granted the motion to dismiss for lack of aggrievement filed by the defendant Mark IV Construction Company, Inc. The plaintiffs sole claim on appeal is that it was clearly erroneous for the court to find that the plaintiff was not statutorily aggrieved under General Statutes § 8-8 (a) (1) because he owns an easement that is within 100 feet of the defendant’s property. The defendant argues that an easement interest does not rise to the level of an ownership in land required for statutory aggrievement. We agree with the defendant.

The following facts are relevant to the plaintiffs appeal. On or about January 6, 2007, the defendant applied to the zoning board of appeals of the town of Beacon Falls (board) for a variance seeking a reduction of the excavation and grading setback from 100 feet to 50 feet for three lots. The board granted the application on February 8,2007, and notice was published on February 16, 2007, in the Waterbury Republican-American. The plaintiff brought the present action on February 23, 2007, in the Superior Court, claiming statutory aggrievement. The plaintiff has rights to an access easement to his property, which is within 100 feet of the lots for which variances were granted. The plaintiff does not claim that his property is within 100 feet of those lots. The defendant filed a motion to dismiss on April 18, 2007, on the basis of a lack of aggrievement. In a memorandum of decision, dated July 30, 2007, the court, R. Robinson, J., granted the defendant’s motion and subsequently dismissed the complaint. Finding no Appellate Court case law on the issue, the trial court agreed with the reasoning found in Superior Court case law and held that the possessor of an easement has insufficient ownership to establish standing. Following that decision, the plaintiff filed the present appeal after this court granted his petition for certification to appeal.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue. . . .

“Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved. . . . [Statutory] [standing concerns the question [of] whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. . . .

“If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . Because standing implicates the court’s subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing. . . . Furthermore, [a] trial court’s determination that it lacks subject matter jurisdiction because of a plaintiffs lack of standing is a conclusion of law that is subject to plenary review on appeal.” (Citations omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 393-95, 941 A.2d 868 (2008).

Our Supreme Court adjudicated an issue similar to the one in this case when it decided whether a life tenant had standing under § 8-8 to appeal from a decision of the planning and zoning board of the city of Milford. See Smith v. Planning & Zoning Board, 203 Conn. 317, 524 A.2d 1128 (1987). The court interpreted the language in § 8-8 (a), “any person owning land,” to include a life tenant because a “life interest remains subject to her direction and control as long as she is alive.” Id., 323. The court analyzed the privileges of the life tenant at common law, where she had undisturbed possession of the land, as well as any income or profits from the land. Id. Further, the life tenant has the right to convey and is considered “seised,” which, at common law, “meant ownership in so far as the common law admits of ownership . . .. .” (Internal quotation marks omitted.) Id.

Ultimately, whether the plaintiff in this situation is aggrieved is determined by the degree of ownership that is bestowed on a person with rights to an easement. An easement has been defined as “[a] right of use over the property of another.” Black’s Law Dictionary (6th Ed. 1990). “An easement is a privilege which one person has a right to enjoy over the land of another, for the benefit of the easement holder’s land, but it does not create an interest in the land itself.” 25 Am. Jur. 2d, Easements and Licenses § 1 (2004). “Traditionally the permitted kinds of uses were limited, the most .important being rights of way and rights concerning flowing waters.” Black’s Law Dictionary, supra. “Rights-of-way are easements of a certain type, or legally recognized property interests, of which the owner likewise is entitled to reasonable use. ... An easement is not an estate in land, but is merely an interest in land in the possession of another. An easement therefore is distinct from the right to occupy and enjoy the land itself, and common-law courts have consistently distinguished between ownership of an easement and ownership of the burdened land. Since an easement is a liberty, privilege, or advantage without profit, a distinguishing feature of an easement is the absence of all right to participate in the profits of the soil charged with it.” 25 Am. Jur. 2d, supra, § 1.

It is clear that the characteristics of an easement are very different from traditional property ownership or a life tenancy. The agreement granting the plaintiff his interest in the easement refers to it as an access easement. We interpret the language of the agreement to bestow a right-of-way to the plaintiff. An easement is a right or privilege to pass over land owned by another. The plaintiff does not have undisturbed possession of the land and does not have any right to the profit of the land. The plaintiff does not fit into the category of an owner of land because his rights and privileges do not confer a sufficient benefit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The zoning board of appeals of the town of Beacon Falls also was named as a defendant. Because it is not a party to this appeal, we refer in this opinion to the Mark IV Construction Company, Inc., as the defendant.

       In the trial proceedings and in his petition for certification to appeal, the plaintiff asserted a second claim for finding statutory aggrievement because he owns property abutting the subdivision of which the lots at issue are part. Because the plaintiff has not raised this claim in his appellate brief, we deem this claim to have been abandoned. See Harris v. Commissioner of Correction, 271 Conn. 808, 842 n.24, 860 A.2d 715 (2004).

       General Statutes § 8-8 (a) provides in relevant part: “As used in this section: (1) ... In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

       Black’s Law Dictionary defines seisin as “[possession of real property under claim of freehold estate. . . . Possession with an intent on the part of him who holds it to claim a freehold interest. Right to an immediate possession according to the nature of the estate.” Black’s Law Dictionary (6th Ed. 1990).