author: BEACH, J.

text:
    SEAN O’KANE A.I.A. ARCHITECT, P.C. v. GORAN PULJIC ET AL.
    (AC 35245)
    Beach, Sheldon and Keller, Js.

      Argued October 29, 2013—
    officially released March 18, 2014

      Alan R. Spirer, for the appellant (plaintiff).

      Michael V. Pepe, with whom were Justin Garcia and, on the brief, Raymond A. Garcia, for the appellees (defendants).
   Opinion

BEACH, J.

The plaintiff, Sean O’Kane A.I.A. Architect, P.C., appeals from the judgment of the trial court in favor of the defendants, Goran Puljic and Melinda Pul-jic. The plaintiff claims that the court erred in (1) concluding that his breach of contract claim was barred by the statute of limitations; (2) finding that the parties did not enter into a “standstill” agreement, thus tolling the statute of limitations; and (3) concluding that the count of his complaint alleging unjust enrichment was barred by the doctrine of laches. We affirm in part and reverse in part the judgment of the trial court.

The action was commenced by service of process on June 29, 2010. The plaintiff later filed an amended complaint alleging (1) breach of contract for failure to pay for architectural services, and (2) unjust enrichment. By way of special defenses, the defendants alleged that the breach of contract claim was barred by the applicable statute of limitations, General Statutes § 52-576, and that the unjust enrichment claim was barred by the doctrine of laches. In the plaintiff’s reply to the defendants’ special defense asserting the statute of limitations, the plaintiff alleged, as a “matter in avoidance,” that the parties had agreed not to “bring claims against one another” until after arbitration proceedings involving the builder, a third parly, were concluded, and thus the statute of limitations had been tolled.

The parties entered into a stipulation agreeing to bifurcate the trial, under which the facts and issues relating to the defendants’ special defenses would be decided prior to the adjudication of the other facts and issues in this case. Accordingly, the court, in its November 28,2012 decision, addressed only the special defenses alleging that any recovery was barred by the statute of limitations and laches.

The following facts were found by the trial court. In December, 2000, the plaintiff and Melinda Puljic executed a contract for architectural services (contract). The contract was addressed to: “Mr. & Mrs. G. Puljic.” Both defendants were the owners of a house in Darien. Pursuant to the contract, the plaintiff was to perform restoration and alteration work on “two adjacent houses built almost 200 years ago, improved with additions and alterations joining the two houses into one building.” On October 10, 2001, both defendants and E. M. Rose Builders, Inc. (Rose), entered into a construction contract (construction contract) pursuant to which Rose commenced work. The plaintiff was not a party to the construction contract. The goal of the project was to complete the house by December, 2002.

The plaintiff submitted twenty-three serially numbered invoices to the defendants for architectural services. The defendants paid invoices one through seventeen, but failed to pay invoices eighteen through twenty-three. The total of the unpaid invoices was $92,201.35, which the plaintiff claimed in damages in his complaint. The unpaid invoices were for work allegedly done during the period from July through December, 2002. No invoices were submitted into evidence for architectural services rendered after December 31, 2002, and there was no testimony that any such invoices were prepared. All invoices were addressed and billed to both defendants.

The court found that the breach of contract claim was barred by § 52-576, and that the unjust enrichment claim was barred by the doctrine of laches. This appeal followed.

HH

The plaintiff first claims that the court erred in concluding that the breach of contract claim was barred by the six year statute of limitations set forth in § 52-576. He specifically argues that the court erred in concluding that the continuous representation doctrine did not apply. He contends that pursuant to the architectural contract and the construction contract, his services on the project were to continue until the project was complete—in other words, until the issuance of the certificate of occupancy and zoning compliance on September 25, 2005. He argues, therefore, that under the continuous representation doctrine, the breach of contract claim accrued on September 25, 2005, and the action was commenced within six years of that date. We disagree, and affirm the court’s holding that the breach of contract claim is barred by the statute of limitations.

Section 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . “[I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted. . . . While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. . . . The true test for determining the appropriate date when a statute of limitations begins to run is to establish the time when the plaintiff first successfully could have maintained an action. That is, an action cannot be maintained until a right of action is complete and hence, the statute of limitations cannot run before that time.” (Citation omitted; footnote omitted; internal quotation marks omitted.) I. Rosenfield v. David Marder & Associates, LLC, 110 Conn. App. 679, 685-86, 956 A.2d 581 (2008). The question of whether a party’s claim is barred by the statute of limitations is one of law subject to plenary review. Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 407-408, 957 A.2d 836 (2008).

Several doctrines tolling the statutes of limitations have emerged for policy reasons. The continuing course of conduct doctrine, the continuous treatment doctrine, and the continuous representation doctrine present similar solutions to similar problems. The plaintiff argues that this case is appropriately subject to the continuous representation doctrine. That doctrine, however, has been applied thus far only to contexts involving attorneys, where ethical considerations inform the preference to delay accrual, from the time of the act or omission complained of until the attorney’s representation has ended. “[O]ur Supreme Court [in DeLeo v. Nusbaum, 263 Conn. 588, 596-97, 821 A.2d 744 (2003)] adopted a modified continuous representation doctrine for cases of alleged legal malpractice during litigation, tolling the statute of limitations contained in § 52-577 when a plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period. . . . The court [in DeLeo] noted that it anticipate [d] that these standards would be applicable to all attorney malpractice cases [but] acknowledged that the implications of tolling for attorney-client relationships in the context of litigation may not be the same as those for other attorney-client relationships. Accordingly, [the] holding [was] limited to cases in which an attorney is alleged to have committed malpractice during the course of litigation.” (Citation omitted; emphasis altered; internal quotation marks omitted.) Piteo v. Gottier, 112 Conn. App. 441, 447, 963 A.2d 83 (2009); see also Rosato v. Mascardo, 82 Conn. App. 396, 407, 844 A.2d 893 (2004) (“[T]he holding of DeLeo is quite limited. In a footnote, the court explicitly limited its holding to ‘cases in which an attorney is alleged to have committed malpractice during the course of litigation.’ . . . Because the breadth of the holding was limited even within the context of legal malpractice, this court declines to read that holding expansively and to apply it to cases involving medical malpractice.”).

Although he seeks to benefit from the doctrine he labels the “continuous representation doctrine,” the plaintiff relies on cases that, strictly speaking, do not involve continuous representation, but rather hold that, in some instances, bills are not due and owing until after the job for which they were incurred is complete. These cases are more apt, yet are ultimately unavailing.

In Gaylord Hospital v. Massaro, 5 Conn. App. 465, 466, 499 A.2d 1162 (1985), the plaintiff hospital provided services to the defendant’s spouse pursuant to a contract signed by the plaintiff. The action for payment was brought more than six: years after the patient was hospitalized but less than six: years after the patient was released. Id. This court held that because the finder of fact determined that the contract contemplated a continuous, indivisible course of treatment, the action did not accrue until the completion of treatment, and thus was not barred. Id., 469. The court expressly stated: “In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted. . . . Where services are continuously rendered over an expended period of time under an express or implied contract which does not fix the term of employment nor the time when compensation shall be payable, many courts have regarded the contract as an entire one, raising an implied condition that the compensation shall not be due until the termination of the service, so that the statute of limitations will not begin to run against the claim for compensation until the employment is ended.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 467-68.

In the present case, in contrast, the contract specified the time that periodic invoices were due. Under a section entitled “billings and payments,” the contract provided that “[i]nvoices for services shall be submitted monthly and are due upon receipt and are past due fifteen (15) days after the invoice date.” Therefore, although the contract provided that the plaintiff was to perform services that could conceivably continue until the completion of the project, the contract also divided payment into monthly segments and provided that the plaintiff was to bill each month for work performed and that the invoices were to be paid within fifteen days of the invoice date. Invoices eighteen through twenty-three pertained to discrete services provided during certain time frames. Hence, a breach of contract for nonpayment of each invoice would have occurred when the deadline for payment arrived, fifteen days after the invoice date, and no payment was made.

Further, even if the contractual expectation of continuous performance, as described in Gaylord Hospital, were read by implication into the contract, relief would be thwarted by the court’s findings that the plaintiffs services were complete by and the contract was terminated no later than February 3, 2003. The findings are not clearly erroneous. See Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003) (“With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” [Internal quotation marks omitted.]). The “scope of work” section of the contract did not specifically provide that the plaintiff would assist the defendants in obtaining a certificate of occupancy. On cross-examination, the plaintiff admitted that the tasks detailed in the “scope of work” section of the contract were completed by the end of 2002. No invoices were submitted for architectural services rendered after December 31, 2002. From the fact that the defendants did not hire another architect, the court could have inferred that the architectural services were completed. Further, Goran Puljic stated to the plaintiff in January or February, 2003, that “I have paid you enough,” and wrote in a January, 2003 e-mail to the plaintiff that “I don’t think we need anything from you right now. ” From this evidence, it was not clearly erroneous for the court to determine that the contract was terminated in February, 2003. For the foregoing reasons, we conclude that the continuous representation doctrine or similar principles do not apply in this case, and therefore the plaintiffs claim is without merit.

II

The plaintiff next claims that the court erred in determining that the parties did not enter into a “standstill” agreement, under which the plaintiff agreed not to bring an action against the defendants until the conclusion of a dispute between the defendants and their contractor, Rose. As a result, the plaintiff argues, the statute of limitations was tolled until the resolution of the dispute in January, 2007. We disagree.

The record reveals that the defendants had filed a counterclaim alleging, in part, that “the plaintiff and the defendants agreed that they would not bring claims against one another related to the project until after the litigation between defendants and their contractor was resolved.” That allegation was later withdrawn and an amended counterclaim was filed. This withdrawn pleading, and the plaintiffs cursory agreement with it at trial, constitute the sole evidentiary support for the plaintiffs claim. The court found that such an agreement had not been made.

The court found that Rose called the plaintiff, on April 27 and June 6, 2005, as a witness in its arbitration hearing involving the defendants. The arbitration proceeding was resolved in January, 2007, in Rose’s favor. The court did not agree with the plaintiffs argument that the defendants were bound by a judicial admission in their counterclaim that a standstill agreement had been entered into. The court concluded that because the defendants withdrew the pleading in which the statement appeared, the statement was no longer a binding judicial admission, but rather had become an evidential admission that could be explained or denied at trial. The court found that the plaintiff offered no credible evidence of a standstill agreement. The court noted that the entirety of the evidence of a standstill agreement was, in essence, a withdrawn pleading and the plaintiffs affirmative answer when asked at trial if he agreed with the allegations of the defendants’ counterclaim pertaining to the existence of a standstill agreement. No documentary evidence was offered in support of this claim.

The plaintiff argues that the court ignored the defendants’ evidence. The court found credible the testimony of Goran Puljic that he never entered into a standstill agreement with the plaintiff, and found the plaintiffs testimony regarding the existence of a standstill agreement not to be credible. It was within the province of the trial court to determine credibility, and it did not err in so doing. “The sifting and weighing of evidence is peculiarly the function of the trier [of fact]. . . . [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party. . . . That determination of credibility is a function of the trial court.” (Citations omitted; internal quotation marks omitted.) Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 764 A.2d 199 (2001). Accordingly, the plaintiffs claim is without merit.

Ill

The plaintiff last claims that the court erred in concluding that the count of his complaint alleging unjust enrichment was barred by the doctrine of laches. We remand the case for resolution of the issue of laches by the trial court.

“The equitable remedy of unjust enrichment may be invoked when justice requires that a party be compensated for . . . services rendered under a contract, and no [legal] remedy is available by an action on the contract. ... As an equitable right, unjust enrichment is based on the principle that in a given situation, it is contrary to equity and good conscience for the defendant to retain a benefit [that] has come to him at the expense of the plaintiff. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citation omitted; internal quotation marks omitted.) Nation Electrical Contracting, LLC v. St. Dimitrie Romanian Orthodox Church, 144 Conn. App. 808, 815, 74 A.3d 474 (2013).

“[T]he defense of laches does not apply unless there is an unreasonable, inexcusable, and prejudicial delay in bringing suit. . . . Delay alone is not sufficient to bar a right; the delay in bringing suit must be unduly prejudicial.” (Citations omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). “Whether the defense of laches was applicable to [an] action ... is a question of law. When there is a question of law, our review of the court’s decision is plenary.” Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005). Laches may be available as a defense to an equitable cause of action, whereas the statute of limitations is applicable to legal causes. Id., 281-82.

The court found that the seven and one-half year delay in bringing the action was prejudicial to the defendants. The court reasoned that the plaintiff sought $92,201.35 in damages, a 1.5 percent monthly service charge as provided for in the contract, plus interest. The court assumed that the service charge would commence on the date of the last bill, February 3, 2003, and concluded that the defendants potentially were facing a monetary claim in excess of $255,213.29. The court computed the potential harm in delay by reference to damages provided for in the contract.

The plaintiff contends that he properly claimed unjust enrichment as to Goran Puljic because he was not a party to the contract, but as joint owner of the house in Darien, he benefited from the plaintiffs architectural services and did not pay for all of the services; he thus was unjustly enriched. He argues that the court erred in applying contract provisions in its assessment of the prejudice necessary for application of the special defense of laches. The defendants, on the other hand, argue that the court’s finding regarding prejudice was proper and, in the alternative, that Goran Puijic was in fact a party to the contract, and, thus, the claim against him was also subject to the statute of limitations defense. They argue that, although only Melinda Puijic signed the contract, both defendants were actually parties to it because the contract was addressed to “Mr. and Mrs. G. Puijic” and Goran Puijic testified that he engaged the plaintiff.

The plaintiffs claim regarding laches depends, in part, on whether Goran Puijic was a party to the contract. If he was a party to the contract, then a claim for unjust enrichment as to him would not be appropriate. See Feng v. Dart Hill Realty, Inc., 26 Conn. App. 380, 383, 601 A.2d 547 (“[p]roof of a contract enforceable at law precludes the equitable remedy of unjust enrichment”), cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). If, however, Goran Puijic was not a party to the contract, then the plaintiff could appropriately claim unjust enrichment as to him. The court apparently found it unnecessary to decide whether Goran Puijic was a party to the contract, because it found that the defense of laches barred the claim in any event. We note, however, that the court applied an incorrect standard regarding the prejudice component of laches. Damages can be assessed pursuant to an unjust enrichment claim only when no contractual relief is available. The potential assessment of contractually mandated damages, then, cannot constitute prejudice for the purpose of laches as a defense to unjust enrichment.

Whether Goran Puljic’s signature was required in this case to form an enforceable contract between him and the plaintiff or whether a contract existed between him and the plaintiff regardless of the lack of his signature, are questions of fact to be decided by the trial court. See, e.g., Schwarzschild v. Martin, 191 Conn. 316, 321-22, 464 A.2d 774 (1983) (“[i]n the absence of a statute requiring a signature . . . parties may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated” [internal. quotation marks omitted]); MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 93 Conn. App. 451, 454, 889 A.2d 850 (2006) (existence of contract question of fact to be determined by trier of fact).

Accordingly, we remand the case to the trial court for a determination of whether Goran Puljic was a party to the contract. If the court finds that he was not a party, then the trial court must determine whether the defendants’ special defense of laches bars the unjust enrichment claim against him. If, on the other hand, the court finds that he was a party to the contract, then the court must render judgment in his favor on that claim under the statute of limitations.

The judgment is reversed with respect to the unjust enrichment count of the complaint and the case is remanded for further proceedings in accordance with the preceding paragraph. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The court stated that “[a]ny issue as to whether the proper plaintiff is Sean O’Kane individually, Sean O’Kane Architect AIA or Sean O’Kane, AIA Architect, P.C., is not relevant to either the statute of limitations or laches defense, which are the only two issues before this court in these bifurcated proceeding[s].” For the sake of clarity, references in this opinion are to Sean O’Kane individually.”

       Citing authority such as Lee v. Brenner, Saltzman & Wattman, LLP, 128 Conn. App. 250, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011); and Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988), the court referred specifically to the continuing course of conduct doctrine rather than the continuous representation doctrine. The court, however, found facts applicable to both doctrines, which are quite similar in theory and in effect. The plaintiff claims that the facts of this case compel the conclusion that the statute of limitations ought to be tolled. We determine, however, that the continuous representation doctrine does not apply in the factual context of this case.

       The court concluded, on alternate grounds, that the plaintiff could not prevail on his claim that the statute of limitations had been tolled by the continuous representation doctrine because he pleaded only a standstill agreement, and not the continuous representation doctrine, as a matter in avoidance.
      The defendants, citing Practice Book § 10-57, argue that the continuous representation doctrine must be affirmatively pleaded in avoidance of the defendants’ special defense of the statute of limitations. Section 10-57 provides in relevant part: “Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply.” The plaintiff argues that § 10-57 does not apply because “[a] plaintiff is required to affirmatively plead claims in avoidance of the statute of limitations such as facts evidencing a tolling of the statute of limitations. . . . However, the continuous representation doctrine is not a tolling doctrine . . . [it] merely determines the accrual of the right of action and does not suspend or toll an action that has already accrued.” (Citation omitted.)
      We do not necessarily agree. The plaintiffs stance is premised on the proposition that “tolling” must be an interruption within the prescribed period, rather than a delay at the outset. Our case law, however, rather clearly refers to tolling as also encompassing a delay in accrual of the cause of action. See DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003); see also 51 Am. Jur. 2d 546, Limitation of Actions § 148 (2000). The continuous representation doctrine tolls the accrual of the cause of action, essentially deferring it until representation has ended, despite the fact that the actionable iiyury or harm may have already occurred. See, e.g., Deleo v. Nusbaum, supra, 586-97 (describing continuous representation doctrine as “tolling” statute of limitations).

       The plaintiff also relies on Mitchell v. Guardian Systems, Inc., 72 Conn. App. 158, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). In that case, the plaintiff sought attorney’s fees, and the issue was whether the action was barred by the statute of limitations. Id., 160-61. The services for which the fees were charged had been performed more than six years prior to the commencement of the action, but the finder of fact found that the representation had terminated within six years, and the action was not barred. Id., 161. “When the claim for attorneys’fees is based upon continuous legal representation, the statute of limitations does not begin to run until the legal services are complete .... The statute of limitations is tolled during the pendency of the continuous representation.” Id., 164. The attorney had the ethical duty to represent the plaintiff until he was relieved of his obligation. Id. In the present case, the court found that the “representation” by the plaintiff had been terminated prior to the six year period, and, in any event, the contract specifically set the dates that payments were due.

       The contract provides, under a section entitled “scope of work,” that the plaintiff would provide the following architectural services for the project: “Field measuring, photography, existing condition drawings, design and construction drawings, specifications, budget estimates and consultation for the proposed additions and alterations to the above residence. The drawings shall consist of small scale plans and sketches at the preliminary design stage followed by complete construction drawings, engineered framing plans, elevations, sections, details and lighting plans at appropriate scales as necessary for the proper construction of the Work. Also included shall be window, door and finish schedules as well as a Project Manual of specifications. Site visits shall be made at regular intervals to review the performance and quality of the construction.”

       The dates for invoices eighteen through twenty-three range from August, 22, 2002 until February 3, 2003, all of which are outside the six year limitation period.

       See footnote 5 of this opinion.

       The plaintiff makes additional arguments including the following: the court “appears to labor under the misapprehension that the plaintiff was engaged to render only design services”; the court’s observation that the plaintiff was not a signatory to the construction contract “misses the mark”; “the court makes much” of the fact that the plaintiff was called to testify as a witness by Rose but that fact “is of no moment”; the fact that the plaintiff did not bill the defendants for consultation services and contract administration does not change the fact that the plaintiff continued to render services pursuant to the contract; both parties stated at trial that the defendants did not terminate the contract; and the court noted that the defendants did not hire another architect or designate another architect pursuant to the construction contract. None of these arguments alter our conclusion that the continuous representation doctrine or other doctrine delaying accrual did not toll the statute of limitations.

       See, e.g., Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985) (“statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them”).

       The court found that the plaintiff had not pleaded in avoidance of the defendants’ special defense of laches, but nevertheless addressed the claim.


source: Caselaw Access Project

license: Public Domain

text:
    DOMENIC CAMMAROTA v. ANTHONY M. GUERRERA
    (AC 34521)
    Beach, Bear and Keller, Js.

      Argued September 18, 2013—
    officially released March 18, 2014

      John R. Williams, for the appellant (plaintiff).

      Dennis J. Kokenos, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, Domenic Cammarota, appeals following the judgment of the trial court directing a verdict in favor of the defendant, Anthony M. Guerrera. The plaintiff claims that the court erred in granting the motion for a directed verdict as to the counts of his complaint alleging (1) professional negligence and (2) breach of fiduciary duty. We agree with his first claim and disagree with his second claim.

Evidence introduced at trial includes the following relevant facts, which we construe in the light most favorable to the plaintiff. See Curran v. Kroll, 303 Conn. 845, 855-56, 37 A.3d 700 (2012). The plaintiff and his brother, Alfonso Cammarota, were involved in the development of real property. They retained the defendant as counsel, and the defendant prepared an agreement that was agreed to by the plaintiff and by Alfonso Cammarota, who signed it both individually and on behalf of Bella Investors, LLC, his construction company, in December, 2004. The agreement conveyed real estate known as 3404 Madison Avenue in Bridgeport (property), in which the plaintiff and Alfonso Cam-marota each owned a 50 percent interest, to 3404 Madison Avenue, Inc. The plaintiff was president, secretary and treasurer of the stock corporation, 3404 Madison Avenue, Inc.; the plaintiff and Alfonso Cammarota each owned 50 percent of the shares of stock in 3404 Madison Avenue, Inc. The agreement further provided that Bella Investors, LLC, would construct six condominium units on the property and that “the net proceeds of the first three units nearest Madison Avenue would belong to [the plaintiff] and the net proceeds of the three units further from the street shall belong to [Alfonso Cammarota].” The agreement provided for the payment of construction costs.

Following the construction of the condominium units, a check for $215,000 payable to the plaintiff was handed to Alfonso Cammarota by either the defendant or an employee in the defendant’s law office. Three checks payable to 3404 Madison Avenue, Inc., in the amounts of $269,003.68, $12,558.41, and $189,005.48, respectively, were also delivered to Alfonso Cammar-ota. The check payable to the plaintiff was deposited, without proper endorsement, into the account of Alfonso Cammarota in May, 2005. The plaintiffs action is based on the supposition that the defendant tortiously delivered the plaintiffs check to Alfonso Cammarota.

The plaintiff testified that he had had “concem[s] about [Alfonso Cammarota] which I expressed to [the defendant].” The plaintiff did not discover that the checks had been given to Alfonso Cammarota until he went to the defendant’s office to collect his share of the proceeds, where the defendant informed him that he had previously handed the checks, including the one payable to the plaintiff, to his brother.

The plaintiff initiated an action against the defendant alleging legal malpractice, conversion and breach of fiduciary duty. At a jury trial, the plaintiffs counsel offered evidence through the testimony of the plaintiff, the defendant, and Vincent Longo, an employee at the bank where the check was deposited. After the plaintiff had rested, the defendant moved for a directed verdict as to all three counts of the plaintiffs complaint. The court granted the motion. This appeal followed.

“Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Citation omitted; internal quotation marks omitted.) Curran v. Kroll, supra, 303 Conn. 855-56.

“A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict. . . . [T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor. . . . [W]hether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” (Citations omitted; internal quotation marks omitted.) Schweiger v. Amica Mutual Ins. Co., 110 Conn. App. 736, 739, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

I

The plaintiff first claims that the court erred in granting the motion for a directed verdict as to the count of the complaint alleging professional negligence or legal malpractice. The plaintiff raises two reasons why in his view the court erred in dismissing this count. The court erred, he argues, in dismissing the claim on the grounds that expert testimony, required in most professional negligence or legal malpractice actions, was lacking and any delict on the part of the defendant did not proximately cause harm to the plaintiff. We agree with the plaintiff.

A

The plaintiff argues that the court erred in holding that he was required to present expert testimony to prove his claim of professional negligence. We agree.

First, it is not at all clear that the count actually sounded in professional negligence. In order for a claim to sound in professional negligence, it must be alleged that (1) the defendant is sued in his or her capacity as a professional, (2) the alleged negligence is of a specialized professional nature that arises out of the professional relationship, and (3) the alleged negligence is substantially related to the professional conduct and involved the exercise of professional judgment. See Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).

The plaintiff alleged legal malpractice, but the labeling of the claim is not necessarily dispositive. “[T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . Furthermore, in determining the nature of a pleading filed by a party, we are not bound by the label affixed to that pleading by the party.” (Citation omitted; internal quotation marks omitted.) Selimoglu v. Phimvongsa, 119 Conn. App. 645, 651-52, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).

The count alleged that the defendant prepared contractual documents outlining the plans for construction of the condominium units and distribution of the eventual proceeds. Assets from the sale of the units were deposited in the defendant’s trust account. Certain amounts were due to the plaintiff individually. Without right, the defendant delivered all proceeds to Alfonso Cammarota. The plaintiff claimed that this behavior on the part of the defendant was negligent and fell below the minimum standard of care.

The evidence in dispute at trial did not involve an arcane issue implicating professional judgment. Rather, evidence was introduced to show that the defendant prepared a check payable to the plaintiff, but handed it to Alfonso Cammarota, who arranged to have it deposited in a bank account not belonging to the plaintiff. Although the language in the complaint could reasonably be construed to describe the exercise of professional judgment—such as contract interpretation and professional obligations—the evidence, also consistent with the complaint, suggested a more straightforward scenario easily understandable by one not versed in the law.

There may be some ambiguity, then, as to whether the action realistically soundéd in professional negligence or in ordinary negligence. If the case ultimately required resolution of the question of whether the defendant committed professional negligence, then ordinarily expert testimony would be required to prove the applicable standard of care and, perhaps, deviation from the standard of care. “The determination of whether expert testimony is needed to support a claim of legal malpractice presents a question of law. . . . Accordingly, our review is plenary. . . . Generally, to prevail on a legal malpractice claim, in Connecticut, a plaintiff must present expert testimony to establish the standard of proper professional skill or care. . . . Not only must the plaintiffs establish the standard of care, but they must also establish that the defendant’s conduct legally caused the injury of which they complain.” (Citation omitted; internal quotation marks omitted.) Moore v. Crone, 114 Conn. App. 443, 446, 970 A.2d 757 (2009). If, on the other hand, the case realistically required resolution of an issue of ordinary negligence, then the usual rule is that expert testimony is not required, but rather the jury is to apply the standard of the reasonably prudent person in the same circumstances. See, e.g., Marfyak v. New England Transportation Co., 120 Conn. 46, 48, 179 A. 9 (1935). Even in cases clearly alleging professional negligence, however, expert testimony is not required if the issues in dispute are not beyond the knowledge of the ordinary juror. “[Legal] malpractice claims do not necessarily require expert testimony. Although a court requires expert testimony to establish the relevant standard of care in most cases . . . [s]ome aspects of a [legal] malpractice action are considered to be within the realm of a jury’s knowledge . . . and, thus, do not require expert testimony.” (Citations omitted; internal quotation marks omitted.) Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn. App. 360; see also Ciarlelli v. Romeo, 46 Conn. App. 277, 283, 699 A.2d 217 (1997) (“[w]hile expert testimony is permitted in a great many instances, it is required only when the question involved goes beyond the field of ordinary knowledge and experience of judges and jurors” [emphasis omitted]).

The question of whether expert testimony is required is not resolved by characterizing the case as sounding in legal malpractice or ordinary negligence, but rather by determining whether the issue, unaided by expert testimony, is within the realm of a jury’s ordinary knowledge. Thus, professional negligence claims do not necessarily require expert testimony, and claims of ordinary negligence may require expert testimony. The appropriate question is whether the issue can be reliably decided by a jury without the assistance of expert testimony. The court reasoned that expert testimony was required because the act of giving the checks to Alfonso Cammarota properly was viewed in the context of complicated transactions in which the defendant had a longstanding relationship with both parties. The defendant had drafted the agreement and the documents of incorporation, and Alfonso Cammarota’s role included obtaining and paying subcontractors. If resolution of the matter depended on the interpretation of complex contractual language or the application of standards peculiar to the practice of the legal profession, then expert testimony may well be required if the plaintiff is to prevail.

Viewed most favorably to the plaintiff, however, this case presented a simple matter of the defendant’s handing a person a check, payable to someone else, after the defendant had been warned about that person. Although the jury may well not have made inferences nor drawn conclusions favorable to the plaintiff had the case reached the jury, the scenario was one which, in the light viewed most favorably to the plaintiff, was comprehensible by an ordinary juror. The question of whether handing a check to the wrong person constitutes negligence is within the common experience of the jury and does not require the use of peculiar or specialized knowledge. See Hatchett v. W2X, Inc., 993 N.E.2d 944, 965-67 (Ill. App. 2013) (expert testimony not needed in claim of legal malpractice where attorney, inter alia, gave to third party sale proceeds check payable to client), cert. denied, 996 N.E.2d 13 (Ill. 2013); Asphalt Engineers v. Galusha, 160 Ariz. 134, 135-36, 770 P.2d 1180 (App. 1989) (negligence obvious so as not to require expert testimony where complaint alleged that attorney failed to follow instructions to deliver client’s check owed to third party but rather put check in file with “void” written on it); see also 7 Am. Jur. 2d 273, Attorneys at Law § 225 (2007) (“[t]he most appropriate application of the common knowledge doctrine regarding the necessity of expert testimony in a legal malpractice action involves situations where the carelessness of the defendant attorney is readily apparent to anyone of average intelligence and ordinary experience”).

As previously discussed, the court viewed the case as one involving more complex issues not readily resolved without the assistance of expert testimony. A court is not to grant a motion for a directed verdict, however, unless the jury could not reasonably have reached a verdict in the plaintiffs favor, under the construction of the case most favoring the plaintiff. Because one construction of the case, viewed most favorably to the plaintiff, did not require expert testimony, the court erred in directing a verdict as to the legal malpractice count on the ground that the plaintiff failed to present expert testimony.

B

The plaintiff next argues that the court erred in granting the defendant’s motion for a directed verdict as to the count of professional negligence on the ground that the plaintiff had not presented evidence of proximate cause as a matter of law. We agree.

As stated previously, “[w]hether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary.” Curran v. Kroll, supra, 303 Conn. 855.

The court concluded that granting the defendant’s motion for a directed verdict as to the count alleging legal malpractice or professional negligence was appropriate for the additional reason that the plaintiff had not presented sufficient evidence to establish proximate cause. The court stated that there was no evidence that the defendant knew or had reason to know that Alfonso Cammarota would create a separate bank account and would deposit the checks, including the check payable to the plaintiff, in that account. The court reasoned that exhibit 5 demonstrated that it was the action of Alfonso Cammarota, perhaps in concert with Vincent Longo, a bank employee who deposited the plaintiffs check into Alfonso Cammarota’s account without a proper endorsement, that caused harm to the plaintiff, rather than any action of the defendant.

“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries .... The first component of legal cause is causation in fact .... The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . . The second component of legal cause is proximate cause .... [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). Proximate cause has been defined in case law as “[a]n actual cause that is a substantial factor in the resulting harm .... The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield, a workable degree of certainty. . . . Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another’s injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. ... In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice . . . This definition of proximate cause implicitly includes . . . [a limitation on] the defendant’s liability to foreseeable bounds.” (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 441 n.17, 820 A.2d 258 (2003).

“The question of proximate causation . . . belongs to the trier of fact because causation is essentially a factual issue. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Internal quotation marks omitted.) Turrell v. Dept. of Mental Health & Addiction Services, 144 Conn. App. 834, 845, 73 A.3d 872, cert. denied, 310 Conn. 930, 78 A.3d 857 (2013).

The plaintiff presented evidence that the defendant or one of the defendant’s employees gave a check payable to the plaintiff to Alfonso Cammarota, that a bank employee let him deposit it without a proper endorsement, and that the plaintiff in some manner warned the defendant about Alfonso Cammarota. Whether the defendant’s actions were a substantial factor in the check being placed in Alfonso Cammarota’s bank account without a proper endorsement, as tempered by the concept of foreseeability; see Barry v. Quality Steel Products, Inc., supra, 263 Conn. 441 n.17; is a question properly for the jury. The defendant’s handing the check to Alfonso Cammarota rather obviously satisfied the “but for” test for causation. The further issue of proximate cause was appropriately one for the jury to decide. We conclude that the court improperly granted the defendant’s motion for a directed verdict as to the claim sounding in professional negligence.

II

The plaintiff last claims that the court erred in granting the motion for a directed verdict as to his claim of breach of fiduciary duty. We disagree.

The court reasoned that granting the defendant’s motion for a directed verdict as to the count alleging breach of fiduciary duty was proper because there was no evidence of fraud, self-dealing or conflict of interest on the part of the defendant. The plaintiff argues that the court erred in determining that there was no conflict of interest. He contends that the following evidence presented was sufficient for a jury to conclude that there was a breach of fiduciary duty: there was an attorney-client relationship in which the plaintiff entrusted his affairs to the defendant, and the defendant delivered checks payable to the plaintiff and the plaintiffs corporation to Alfonso Cammarota, despite being on notice of a financial conflict of interest between the plaintiff and Alfonso Cammarota. The plaintiff acknowledges in his brief that not every breach of duty in the context of an attorney-client relationship is a breach of fiduciary duty. “Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty.” Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 57, 717 A.2d 724 (1998).

“[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The universe of fiduciary relationships is not static. Rather than attempt to define a fiduciary relationship in precise detail and in such a manner to exclude new situations, we have instead chosen to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other. . . . [Although we have not expressly limited the application of . . . traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which we have invoked them have involved such deviations.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Di Teresi v. Stamford Health System, Inc., 142 Conn. App. 72, 94, 63 A.3d 1011 (2013). A “breach of a fiduciary duty implicates a duty of loyalty and honesty.” Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 57.

The first component of a breach of fiduciary duty is present in this case because an attorney-client relationship imposes a fiduciary duty on the attorney. See Matza v. Matza, 226 Conn. 166, 184, 627 A.2d 414 (1993). With regard to the second component, the court properly determined that, as a matter of law, there was no conflict of interest in a traditional sense.

The plaintiff does not indicate what specific type of conflict of interest was presented by the evidence, but in his brief he seems to refer to a concurrent conflict of interest based on a dual representation of the plaintiff and Alfonso Cammarota. Rule 1.7 (a) of the Rules of Professional Conduct provides: “Except as provided in subsection (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a ch-ent. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another chent, a former ch-ent or a third person or from the lawyer’s own interests. ” Rules of Professional Conduct 1.7, commentary. Rule 1.7 of the Rules of Professional Conduct “concerns conflicts of interest that may arise when an attorney represents a chent and such representation will be directly adverse to another chent.” Cheverie v. Ashcraft & Gerel, 65 Conn. App. 425, 434, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001).

The plaintiff did not submit evidence that the defendant’s representation of him was directly adverse to that of Alfonso Cammarota, nor can it logically be inferred that any misplaced loyalty motivated the handling of the check. There simply was nothing in the legal representation of them that presented a professional conflict of interest. Rather, the plaintiff presented evidence that he warned the defendant about Alfonso Cam-marota and that the defendant or someone in his office gave the four checks—including one made out to the plaintiff—to Alfonso Cammarota. There has been no suggestion that the defendant intended to benefit Alfonso Cammarota at the expense of the plaintiff. Any construction of a scenario involving divided loyalty or adverse interests would be, on the evidence presented in this case, a product of unmitigated speculation and conjecture, which is an impermissible basis on which to deny a motion for a directed verdict. See Curran v. Kroll, supra, 303 Conn. 856. On the evidence presented, the defendant’s act in giving the checks to Alfonso Cam-marota may have presented a jury question regarding negligence, in that there perhaps may have been a breach of a duty to exercise ordinary care, but did not demonstrate a breach of the duty of loyalty or honesty. Negligence alone is insufficient to support a claim of a breach of fiduciary duty. “Professional negligence alone . . . does not give rise automatically to a claim for breach of fiduciary duty. Although an attorney-client relationship imposes a fiduciary duty on the attorney . . . not every instance of professional negligence results in a breach of that fiduciary duty. . . . Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty.” (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 56-57. Because the duty of loyalty and honesty is not implicated by the facts viewed most favorably to the plaintiff, the court acted properly in granting the defendant’s motion for a directed verdict with respect to the count of the complaint alleging breach of fiduciary duty.

The judgment is reversed as to the legal malpractice count, and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The court also directed a verdict as to the final count of the three count complaint, which alleged conversion. The court’s judgment as to this count has not been challenged on appeal.

       See footnote 6 of this opinion.

       This count alleged that “the defendant was negligent in his handling of the plaintiffs affairs and fell below the minimum standard of care for an attorney in the practice of his profession.” For convenience, we use the terms “legal malpractice” and “professional negligence” interchangeably.

        Trimel arose in the context of a claim of medical, not legal, malpractice. The considerations as to what sorts of activities implicate professional judgment, and thus what sorts of claims aptly fall into the category of professional negligence, are the same.

       Alfonso Cammarota was the contractor on the project. The plaintiff testified that he did not attend any of the closings.

       The evidence regarding the “warning” was not precise. The evidence, however, must be considered in the light most favorable to the plaintiff.
      On direct examination, the plaintiff was asked, “[D]id you explain to the defendant your desire that your financial interest should be protected in this transaction?” The plaintiff responded “yes” and elaborated, “I said how do I know . . . that I’m gonna end up with my share, and [the defendant] said, it’s in the contract.”

        The defendant’s counsel asked on cross-examination if the plaintiff had the opinion that Alfonso Cammarota was “a crook” when he “started this transaction.” The plaintiff responded, “[a] little bit, yeah.” The defendant’s counsel questioned whether the plaintiff had ever told the defendant that he “should not trust [Alfonso Cammarota].” The plaintiff answered, “Not in those words. I had questioned the contract.”
      The following colloquy subsequently occurred between the plaintiff and the defendant’s counsel:
      “[The Defendant’s Counsel]: And . . . you’ve already testified that you didn’t tell [the defendant] that ... he had to be aware of [Alfonso Cam-marota]?
      “[The Plaintiff]: I did. I actually ... I thought I did.
      “[The Defendant’s Counsel]: You already said in sum [Alfonso Cammarota] was a crook.
      “[The Plaintiff]: I didn’t say—no. I . . . didn’t say that he was a crook. I have concem[s] about my brother which I expressed to [the defendant], I didn’t use that word, ‘crook,’ no.”

       If consideration of the case had required resolution of a legal question, such as whether the defendant exercised acceptable legal judgment in determining to whom the check ought to be payable, the result may have been different.

       Exhibit 5 was a memo to Vincent Longo, a bank employee, indicating that bank policies had not been followed when the check payable to the plaintiff was deposited into Alfonso Cammarota’s bank account without proper endorsement.

       We note that wrongful depositing of a check may be within the foreseeable scope of the risk created by negligently transferring the check. See Barry v. Quality Steel Products, Inc., supra, 263 Conn. 441 n.17.

       There also was no evidence presented of fraud or self-dealing. The plaintiff does not contest the court’s conclusion in this regard.

       In addition to “where an attorney’s own interest conflicts with his client’s best interest; see Phillips v. Warden, 220 Conn. 112, 137-40, 595 A.2d 1356 (1991); a nonexhaustive list of recognized conflicts of interest include the following: representation of codefendants by a single attorney; see State v. Williams, 203 Conn. 159, 167, 523 A.2d 1284 (1987); where interests of an attorney’s client conflict with interests of a former client of the attorney; see State v. Bunkley, 202 Conn. 629, 652, 522 A.2d 795 (1987); and where an attorney may be a necessary witness. See State v. Crespo, 246 Conn. 665, 684, 684 n.14, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct 911, 142 L. Ed. 2d 909 (1999); see also generally Rules of Professional Conduct 1.7 through 1.11.” Abrams v. Commissioner of Correction, 119 Conn. App. 414, 419 n.4, 987 A.2d 370, cert. denied, 295 Conn. 920, 991 A.2d 564 (2010).

       “[A] violation of a rule of professional conduct does not give rise to a cause of action nor should it create any presumption that a legal duty has been breached.” (Internal quotation marks omitted.) Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 636 n.17, 850 A.2d 145 (2004); see also Rules of Professional Conduct, scope. The code, however, is useful in describing conflicts.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. JOSEPH EDWARDS
    (AC 34279)
    Lavine, Beach and Bear, Js.

      Argued November 15, 2013—
    officially released March 18, 2014

      Deren Manasevit, assigned counsel, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and John E. Barney, assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The dispositive question in this appeal is what constitutes a change of address for the purposes of our sex offender registration statutes. The defendant, Joseph Edwards, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 (a), following an arrest on a charge of failing to register as a sex offender in violation of General Statutes § 54-251 (a) and (e). On appeal, the defendant claims that the court erred when it interpreted § 54-251 and that there was insufficient evidence to prove that he violated his probation. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The following evidence, as adduced at the probation violation hearing, is relevant to our resolution of this appeal. As a result of previous criminal convictions, the defendant is required to register as a sex offender for life. In June, 1999, the defendant was convicted of first degree robbery and sentenced to twenty years incarceration, execution suspended after ten years, followed by five years probation. The defendant’s probationary period for the robbery conviction began on December 17, 2008, and continued to December 17, 2013. As a standard condition of probation, the defendant agreed not to violate any criminal laws. On August 13, 2010, the defendant was arrested for failing to notify the Commissioner of Public Safety (commissioner) of an address change pursuant to § 54-251. Thereafter, the defendant was charged with a violation of probation.

At the probation violation hearing conducted on October 26, 2011, the court heard testimony from two witnesses and the defendant. Brian Reilly, a West Haven police officer, testified that the address on file with the Connecticut Sex Offender Registry for the defendant was 73 Fresh Meadow Road. He stated that on August 12, 2010, he received a complaint from the owner of a warehouse located at 15 Center Street that the defendant, who had been renting a storage space since May, 2010, had been living in the warehouse. Reilly testified that on August 12, 2010, he went to 73 Fresh Meadow Road to verify that the defendant was still residing there. Reilly testified that he found no evidence that the defendant was living in the residence at 73 Fresh Meadow Road.

Carla Scinto, the defendant’s probation officer, testified that the defendant told her that he had been evicted from the home on 73 Fresh Meadow Road on July 13, 2010, and that he had been living in his box truck on the rear of the property. The defendant, on the other hand, testified that in June, 2010, he had been evicted from 73 Fresh Meadow Road, but that he had continued to live inside the home on 73 Fresh Meadow Street on the second floor. He also stated that the electric bill remained in his name through September, 2010. Finally, he testified that when the police arrested him, they found him at 73 Fresh Meadow Road.

The court found by a preponderance of the evidence that the defendant had violated § 54-251 (a) and (e) because he was homeless and did not inform the commissioner of this fact. Accordingly, the court found that the defendant had violated the term of his probation that he not violate any criminal laws. The court stated: “[W]hether he was living in a warehouse or whether he was living in a truck on the property does not satisfy the requirement of keeping the registry informed as to what your residential address is. . . . Living in a truck does not equal a residence; it equals homeless. Living in a warehouse equals homeless. And because he was homeless he had the obligation to keep the [commissioner] notified of the fact that he was now homeless. . . . So, the court does find by a preponderance of the evidence that the defendant violated his conditions of probation, specifically the first condition that he not violate any laws of the state of Connecticut or the United States.” (Emphasis added.) The trial court revoked the defendant’s probation and sentenced him to the remaining portion of his suspended sentence. This appeal followed.

On appeal, the defendant claims that the court misinterpreted § 54-261 and that there was insufficient evidence to support the court’s finding that the defendant had violated his probation by failing to inform the commissioner of an address change pursuant to § 54-251 (a) and (e). The defendant claims that the court erred when it interpreted the term “change of address” as used in that statute. We agree with the defendant.

We begin by setting forth the legal principles and the standard of review pertinent to our discussion. “To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

“A challenge to the sufficiency of the evidence is based on the court’s factual findings. The proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. ... A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence 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; emphasis added; internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 80-81, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003).

“The requirements of the statute present a question of statutory construction over which we exercise plenary review. . . . When construing a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretative guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . We presume that the legislature did not intend to enact meaningless provisions. . . . [Statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant ....

“[W]hen the statute being construed is a criminal statute, it must be construed strictly against the state and in favor of the accused. . . . [C]riminal statutes [thus] are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . Rather, penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create. . . . Further, if, after interpreting a penal provision, there remains any ambiguity regarding the legislature’s intent, the rule of lenity applies: It is a fundamental tenet of our law to resolve doubts in the enforcement of a [Pjenal [C]ode against the imposition of a harsher punishment.” (Citations omitted; internal quotation marks omitted). State v. Drupals, 306 Conn. 149, 159-60, 49 A.3d 962 (2012).

To determine whether the court properly found that the defendant changed his residence address, and thereby violated § 54-251 (a) and (e) by not informing the commissioner of this change, we must ascertain what constitutes a residence address for the purposes of our sex offender registration statutes. The defendant argues that the court improperly construed the term “change of address” and that the court erred when it concluded that becoming homeless necessarily means there has been a change of address. The state, on the other hand, argues that the court properly construed § 54-251 (a) and (e) to require sex offenders to notify the registry when they become homeless.

In State v. Drupals, supra, 306 Conn. 163, our Supreme Court held that the term “residence address” means “the act or fact of living in a given place for some time . . . .” The Supreme Court also noted that, “[t]he definition of residence we adopt today furthers the purpose of [ § 64-251], which is to allow the [commissioner] to keep track of the registrant’s location . . . .” Id., 166. Moreover, our Supreme Court noted that the legislature intended “residence address” to be “synonymous with ‘place of residence,’ or more precisely, to denote the physical description of where the registrant resides.” Id., 161 n.7.

Having reviewed the record, we determine that the court’s implicit conclusion that homelessness always equals a change of address was in error. The fallacy of the court’s conclusion is demonstrated by this case, in which there were two scenarios that were entertained by the court, one that had the defendant living in the warehouse, and the other that had him living in his truck on the premises of 73 Fresh Meadow Road. Although the defendant in both instances could be considered homeless because he had been evicted and was without a dwelling, he would have experienced a change of address only if he was found to have been living in the warehouse. Living in the truck on the premises of 73 Fresh Meadow Road would not be a change of residence address because the defendant’s location remained the same.

We conclude therefore that in order to establish that the defendant had violated his probation by failing to notify the commissioner of a change of residence address pursuant to § 64-251 (a) and (e), it was incumbent on the state to prove that the defendant acquired a residence address different from the one on file with the registry. In this case, that meant proving that the defendant was “living in a given place for some time”; State v. Drupals, supra, 306 Conn. 163; at some location other than 73 Fresh Meadow Road.

On the basis of our review of the record, it is clear to us that the court based its finding that the defendant violated the terms of his probation on an erroneous view of the law, specifically that a finding of homelessness always constitutes a change of address. The court made no other findings supporting the conclusion that the defendant changed his residence address, such as ruling that the defendant was living in the warehouse. We therefore conclude that the court’s finding that the defendant violated his probation as a result of having violated the criminal law of this state was clearly erroneous.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       General Statutes § 54-251 provides in relevant part: “(a) Any person who has been convicted ... of a criminal offense against a victim who is a minor or a nonviolent sexual offense, and is released into the community . . . shall, within three days following such release . . . and whether or not such person’s place of residence is in this state, register such person’s name, identifying factors, criminal history record and residence address . . . with the Commissioner of Emergency Services and Public Protection, on such forms and in such locations as the commissioner shall direct .... If any person who is subject to registration under this section changes

        such person’s address, such person shall, without undue delay, notify the Commissioner of Emergency Services and Public Protection in writing of the new address ....
      “(e) Any person who violates the provisions of subsection (a) of this section shall be guilty of a class D felony, except that, if such person violates the provisions of this section by failing to notify the Commissioner of Emergency Services and Public Protection without undue delay of a change of name, address or status or another reportable event, such person shall be subject to such penalty if such failure continues for five business days.” (Emphasis added.)

       The defendant also claims that § 54-251 is unconstitutionally vague as applied to him. We do not reach this claim in view of our conclusion that the judgment of the trial court must be reversed.

       Following the revocation of the defendant’s probation, the state nolled the failure to register charge, which was the basis of the defendant’s violation of probation.

       We note that the Commissioner of Public Safety is now called the Commissioner of Emergency Services and Public Protection, and § 54-251 was revised by Public Acts 2011, No. 11-51, § 134 (a) to reflect that change. For purposes of clarity, we refer to the current revision of the statute.

       After filing this appeal, the defendant filed a motion for articulation, which was denied.

       The state argues that the “judicial gloss” provided by State v. Winer, 112 Conn. App. 458, 963 A.2d 89, cert. denied, 292 Conn. 903, 973 A.2d 107 (2009), requires that any registrant who is homeless update the commissioner on a daily basis. We reject this expansive reading of Winer as it has no support in the plain language of § 54-251. Whether a person has a home or is homeless for the purposes of the statute is not determinative. Under the statute a person needs to provide notification of a change of address. To be sure, a homeless registrant may be required to frequently update authorities of changes of address, but this frequency is not the product of being homeless per se, but rather flows from being transient. For example, a homeless person may elect to sleep on a particular park bench, so long as he has informed the commissioner of his location and returns to that particular bench daily, he may be considered in compliance. See, id., 466 (noting that registrant may “indicate that they are sleeping under a bridge”). We read the holding in Winer as merely rejecting the argument that a homeless person cannot comply with § 54-251 for lack of a residence address. Id., 465-66.
      We observe that compliance with the sex offender registration statutes is often complicated by homelessness. See State v. Drupals, supra, 306 Conn. 165 (noting that transitory nature of homelessness complicates sex offender registration). Although we recognize this problem, our legislature has not implemented provisions that directly address the problem of the transient registrant. Compare Cal. Penal Code § 290.011 (a) (transient offenders must register every thirty days and report all “places where he or she sleeps, eats, works, frequents, and engages in leisure activities”).

       In response to a question from this court during oral argument, the state indicated that the defendant would have experienced a change of address even if he was found to have been living on the porch of the dwelling at 73 Fresh Meadow Road. The state contends that once he was evicted, the defendant’s address was changed, notwithstanding the fact that his physical whereabouts remained the same. We reject this expansive reading of § 54-251. There is nothing in the statute that suggests that a registrant needs to specify where on a particular piece of property he is actually residing. Thus, the proposition that a registrant must inform the commissioner that he is living in a truck, tent, or on the porch of the dwelling house is not supported by the language of the statute. Accordingly, there is no authority to suggest that the defendant was not in fact in compliance if he was found to be living in his truck at 73 Eresh Meadow Road.
      We note that other appellate courts have reached similar conclusions. In State v. Stratton, 130 Wn. App. 760, 762, 124 P.3d 660 (2005), an appellate decision from Washington state, the defendant was a sex offender who was required to notify the police of changes to his address. The defendant purchased a new home and registered the address accordingly. Id. Months later, the defendant defaulted on the purchase and voluntarily moved out of the dwelling house. Id. The defendant, however, continued to live in his car, which he parked in the house’s driveway. Id., 763. At trial, the court found that he was “transient” and rendered a judgment of conviction. Id., 764. On appeal, the Washington Court of Appeals reversed the judgment and reasoned: “[The defendant] continued to sleep at the [home]; he also got his mail there and continued to receive telephone service .... [He] had no definite departure date. . . . [The defendant’s] living situation fits the definition of residence as a ‘place’ where he was abiding or dwelling, and it was ‘fixed’ in that it was not subject to change or fluctuation.” Id., 766; see also Robinson v. State, 6 So. 3d 677, 678-79 (Fla. App. 2009) (sex offender who listed homeless shelter that did not accept sex offenders as his residence did not experience change of address when he slept outside shelter).

       The state presented no evidence that established that the police were unaware of the defendant’s location, nor any evidence that the defendant was attempting to avoid registering a new address. When he met with his probation officer, he was candid about the pending eviction. Moreover, the state has not contested the fact that when the defendant was arrested on August 13, 2010, he was taken into custody at 73 Fresh Meadow Road.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER LISBOA
    (AC 35572)
    Graendel, Beach and Alvord, Js.

      Argued January 21—
    officially released March 18, 2014

      S. Max Simmons, assigned counsel, for the appellant (defendant).

      Maria del Pilar Gonzalez, special deputy assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Matthew Crockett, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Christopher Lisboa, appeals from the judgment of the trial court, rendered after a trial to a three judge court, of conviction of murder in violation of General Statutes § 53a-54a and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). On appeal, the defendant claims that the evidence was insufficient to sustain his conviction. We affirm the judgment of the trial court.

This case arises from a physical altercation between the defendant and the victim, George Rios, that left Rios dead in the defendant’s apartment and the defendant charged with murder and assault in the first degree. Prior to trial, the defendant waived his right to a jury trial and elected to be tried by a three judge panel pursuant to General Statutes § 53a-45 (b). A nine day trial followed, at the conclusion of which the panel found the defendant guilty on both counts. Pertinent to the present appeal is the panel’s finding that it “unanimously finds the defendant guilty, in that the defendant, acting with the intent to cause the death [of Rios], did in fact cause the death of [Rios].” The court thereafter merged the murder and assault convictions and sentenced the defendant to a term of incarceration of forty-eight years, execution suspended after twenty-five years, followed by ten years of special parole. This appeal followed.

On appeal, the defendant claims that the evidence adduced at trial was insufficient to establish that he intended to cause the death of Rios. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the [trier of fact] are so unreasonable as to be unjustifiable. This court cannot substitute its own judgment for that of the [trier of fact] if there is sufficient evidence to support [its] verdict.” (Citations omitted; internal quotation marks omitted.) State v. Sadowski, 146 Conn. App. 693, 695-96, 79 A.3d 136 (2013), cert. denied, 311 Conn. 903, 83 A.3d 604 (2014).

To convict the defendant of minder in violation of § 53a-54a, the state was required to prove beyond a reasonable doubt both that the defendant caused the death of Rios and that the defendant intended to cause his death. The defendant in this appeal does not contest the panel’s finding that he caused Rios’ death. Rather, his sole claim is that the evidence does not support a finding that he intended to do so. Contrary to the defendant’s contention, we conclude that a reasonable view of the evidence exists that supports the panel’s finding that he intended to cause the death of Rios.

The panel was presented with evidence that the defendant and the victim formerly were roommates who frequently partied together and “got into the business” of drug dealing. By all accounts, the two had a combustible relationship, which resulted in a fistfight at the Windham Heights housing complex in Willimantic in late July, 2009. In his August 22, 2009 statement to the state police, the defendant stated that at the conclusion of that fight, “[w]e stood up [and] shook hands and said it was good and parted ways on good terms.”

The two partied together approximately one week later, consuming alcohol and drugs into the early morning hours. While at an apartment the defendant shared with Jennifer Stewart, another fight ensued between the defendant and Rios. As the defendant recounted in his police statement, Rios “hit me in the head several times, and we were pushing each other around. [Stewart] witnessed this fight. During the fight I got thrown into the refrigerator and dislocated my shoulder. . . . [Stewart] took me to the hospital.” When the defendant returned to his apartment, he discovered that Rios had stolen his laptop computer, his gold chain, a box containing thousands of dollars and “about eight ounces of weed,” his portable gaming device, and his friend’s 2002 Jaguar automobile, which he had borrowed.

Two days later, the defendant, as he articulated in his police statement, “put out a hit on [Rios] for what he had done to me. ... I put the word out on the street that I would pay two thousand [dollars] to anyone that brought [Rios] to me. I did not care how they brought him to me or what they had to do to get him to me. If someone brought him to me I was going to beat him up. I did not tell anyone to kill him but I may have said that I wish he would die.”

Days before Rios’ death, the defendant noticed a hunting knife at the home of his girlfriend, Chrimson Strede. The knife, which was admitted into evidence at trial, was black with a rope covered handle and a six inch blade. Officer Fabian Silva of the Willimantic Police Department testified at trial that the knife looked “like a hunting knife” that was used in the military. When the defendant indicated that he liked the knife, Strede gave it to him. Stewart testified at trial that this knife was the weapon that the defendant used to stab Rios to death in the early morning hours of August 22, 2009.

The panel also heard testimony that, at the defendant’s behest, Stewart lured Rios into their apartment to enable the defendant to assault him. On the evening of August 21, 2009, the defendant encountered Joel Rodriguez, a neighbor, while outside his apartment. Strede testified that the defendant informed Rodriguez that he was looking for Rios and cautioned him that “something was going to go down that night.” Around midnight, the defendant and Strede returned to his apartment and waited in his bedroom for Stewart’s signal that Rios had arrived. Strede testified that upon receiving her signal, the defendant stated, “he’s here, he’s here . . . and [the defendant] ran out of the room.” Stewart testified that when the defendant emerged from his bedroom, he immediately “bum-rushed” Rios. She clarified that, by that term, she meant that the defendant “ran up on” Rios, and the two became “like, locked and they went from one part of the room to the other, to the other and then [Rios] dropped right in front of my door. . . . [During the altercation] they hit the [television] . . . and then they went to the couch on the other side of the room and then [Rios’] body dropped.” Medical Examiner Ira Kanfer testified at trial that Rios suffered seven “sharp force injuries” to his face, forehead, left arm, left leg, left hand, and left chest. Kanfer provided his expert opinion that all of the injuries sustained by Rios were consistent with the knife in question that belonged to the defendant. Kanfer explained that the stab wound to Rios’ chest, which was approximately three inches deep and four centimeters wide, penetrated his heart’s left and right ventricles, killing him. Although paramedics responded to the apartment and transported Rios to Windham Hospital, he was pronounced dead on arrival.

In this appeal, the defendant does not contest the panel’s finding that he caused the death of Rios by stabbing him in his apartment on August 22, 2009. Instead, he challenges the panel’s finding that he did so with the requisite intent. “To establish a violation of § 53a-54a, the crime of murder, the state must prove beyond a reasonable doubt that the defendant, with intent to cause the death of another person . . . cause[d] the death of such person .... [T]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Citation omitted; internal quotation marks omitted.) State v. Aviles, 107 Conn. App. 209, 217, 944 A.2d 994, cert. denied, 287 Conn. 922, 951 A.2d 570 (2008).

“Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one. . . . [The trier of fact is] not bound to accept as true the defendant’s claim of lack of intent or his explanation of why he lacked intent.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 114 Conn. App. 738, 744, 971 A.2d 63, cert. denied, 293 Conn. 901, 975 A.2d 1277 (2009). “Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Internal quotation marks omitted.) State v. Salaman, 97 Conn. App. 670, 677, 905 A.2d 739, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

The evidence in the present case substantiates the panel’s finding that the defendant possessed the intent to cause Rios’ death. By his sworn admission in his statement to the police, he placed a $2000 bounty on Rios because he wanted to exact revenge on Rios in the form of a physical attack. He admitted that, at that time, he “may have said that I wish [that Rios] would die.” The defendant conspired with Stewart to entice Rios to the apartment, where he secretly lay in waiting armed with the hunting knife, so that he could physically attack him. Regarding the manner in which that weapon was utilized, it is undisputed that, during the attack on August 22, 2009, the defendant stabbed Rios seven times, including a blow in which the knife plunged three inches into Rios’ chest, penetrating his heart’s left and right ventricles. See State v. LaSalle, 95 Conn. App. 263, 272, 897 A.2d 101 (jury reasonably could infer intent to kill from evidence that defendant stabbed victim and penetrated lung and aorta), cert. denied, 279 Conn. 908, 901 A.2d 1227 (2006). In his recorded statement to the police, which was introduced into evidence at trial, the defendant acknowledged that during the assault he “pushed the knife into [Rios].” The panel, as trier of fact, was free to infer that the defendant intended the natural consequences of that conduct. See State v. Salaman, supra, 97 Conn. App. 677.

The defendant nevertheless argues that the evidence of his conduct immediately following his stabbing of Rios indicates that he did not intend to cause his death. Specifically, he argues that testimonial evidence that he rendered aid to Rios and was visibly upset undermines any claim that he harbored such intent.

Strede, who remained in the defendant’s bedroom at the time of the stabbing, testified that she eventually “got up, and I came out of the bedroom, and I saw [Stewart] standing in the doorway to the kitchen and the living room. ... I went into the living room [and] I saw [the defendant] holding a towel on [Rios’] stomach.” Strede testified that the defendant was kneeling beside Rios’ body “and he was just yelling like, ‘He’s dying; he’s dying.’ And ... he kept saying, ‘What do I do; what do I do.’ ” Javier Ramos, an acquaintance of Stewart’s who was in her bedroom at the time of the stabbing, likewise entered the living room and saw the defendant “hovering over [Rios], checking on him . . . .” Ramos immediately fled the apartment. As he did so, Ramos heard the defendant say, “Call 911, I think he’s dying.” When the police later arrived at the apartment, the defendant was visibly upset, in a state of shock and crying.

At the same time, it is undisputed that the defendant and Stewart concocted a home invasion story following the stabbing and “right before” Stewart placed a 911 call to the police. During that call, Stewart falsely stated that “it was a home invasion . . . [Rios] came in . . . and came at [the defendant] with a knife.” Although she saw the defendant applying a towel to Rios’ stomach, Strede also testified that she witnessed the defendant wipe off the knife with the towel and then place the knife in Rios’ hand. Stewart offered similar testimony. When Strede knelt in front of the defendant to see if he was okay, the defendant instructed her “not to say anything about wiping the knife to the cops.” Both Strede and Stewart testified that they thereafter provided false statements to the police in an effort to protect the defendant.

On that evidence, the panel reasonably could have concluded that the defendant’s conduct evinced a consciousness of guilt. As this court observed in State v. LaSalle, supra, 95 Conn. App. 272, “evidence that the defendant attempted to conceal the murder by washing the knife that he used to kill [the victim was] conduct by the defendant after the crime [that] reflected the defendant’s consciousness of guilt . . . .” The evidence that the defendant and Stewart fabricated the home invasion story prior to placing the 911 call, that he cleaned the knife and told Strede not to tell the police that he did so, and that he then placed the knife in Rios’ hand is all evidence the panel, as trier of fact, could credit in evaluating the defendant’s conduct, from which intent may be, and usually is, inferred. See State v. Cobb, 251 Conn. 285, 385, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). We also note that a defendant may be found to possess the requisite intent to cause the death of a victim in instances in which he “summoned medical assistance” to the scene of the crime; State v. Downey, 45 Conn. App. 148, 155-56, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997); as well as in instances in which a defendant “attempted to provide medical assistance to the victim . . . .” State v. Colon, 272 Conn. 106, 229, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).

Furthermore, the applicable standard of review neither requires nor permits this court to view the evidence and the reasonable inferences drawn therefrom in a light most favorable to the defendant and contrary to the panel’s verdict. It is well established that “proof beyond a reasonable doubt [does not] require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 519, 782 A.2d 658 (2001). Construing the evidence in the light most favorable to sustaining the verdict, the panel reasonably could have concluded beyond a reasonable doubt that the cumulative force of the evidence established the defendant’s intent to cause Rios’ death. Accordingly, the defendant’s claim of evidential insufficiency fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a)- provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such iqjury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       At oral argument before this court, counsel for the defendant argued, with respect to the applicable standard of review, that our Supreme Court in State v. Bennett, 307 Conn. 758, 59 A.3d 221 (2013), misapplied that standard and “got it wrong from start to finish.” We decline to address that allegation other than to note that “as an intermediate appellate body, we are not at liberty to discard, modify, reconsider, reevaluate or overrule the precedent of our Supreme Court.” DePietro v. Dept. of Public Safety, 126 Conn. App. 414, 422 n.3, 11 A.3d 1149, cert. granted on other grounds, 300 Conn. 932, 17 A.3d 69 (2011) (appeal withdrawn June 26, 2012).

       The defendant’s roommate, Jennifer Stewart, testified as to her firsthand knowledge that the defendant engaged in the sale of heroin and marijuana.

       Stewart testified that she feigned interest in Rios and told him that the defendant had moved out of her apartment. When asked if the defendant told her what he planned to do to Rios, Stewart answered in the negative, stating: “Not specifics. To my knowledge, it was just going to be a fight.”

       Stewart testified that she had agreed to alert the defendant that Rios had arrived at their apartment by calling him “a couple of times. Just call and hang up and then call back without having a conversation.” The defendant received such calls at approximately two o’clock in the morning of August 22, 2009.

       The knife was admitted into evidence at trial.

       Ramos testified that he fled because he was on parole and fearful of the consequences of his presence when the police arrived.

       The defendant’s August 22, 2009 statement to the police contains a similar narrative. The defendant stated in relevant part: “On August 21,2009, sometime around midnight into the early morning hours of August 22, 2009 I was at my apartment with my roommate [Stewart] and my current girlfriend [Strede]. ... I was still standing in the kitchen about to go back into my bedroom . . . when I heard a noise, the door to the kitchen opening. I looked and I saw [Rios] coming into the house with a big ass fucking knife and I ran towards the living room. [Rios] came in behind me and swung at me with the knife and I grabbed his whole arm with the knife and I pushed his arm towards his body. We were all over the fricken place and I got the knife out of his hand and I swung the knife at him. He got the knife again and then he was lying on the floor in the living room. There was blood everywhere, and I was screaming call 911,1 think he’s dead.”