text:
    ERIC SAPPER v. JANE M. SAPPER
    (AC 28272)
    DiPentima, Gruendel and Mihalakos, Js.

      Argued April 23
    officially released July 8, 2008

      William S. Palmieri, for the appellant (plaintiff).

      Donald W. Celotto, Jr., for the appellee (defendant).

      Noah Eisenhandler, for the minor children.

      Thomas A. Esposito, guardian ad litem for the minor children.
   Opinion

GRUENDEL, J.

The plaintiff, Eric Sapper, appeals from the judgment of the trial court dissolving his marriage to the defendant, Jane M. Sapper. On appeal, he claims that the court (1) exhibited bias against him at trial and in its memorandum of decision and (2) abused its discretion in entering certain financial orders. We reject the first claim and disagree with the second claim, thus affirming the judgment of the trial court.

The parties married in March, 1988, and subsequently had two children, who were ages fourteen and fifteen at the time this dissolution action commenced in the fall of 2004. The matter proceeded to trial nearly two years later on September 11, 2006, and totaled three days. By memorandum of decision filed October 18, 2006, the court, Alvord, J., found that the parties’ marriage had broken down irretrievably and, accordingly, rendered judgment of dissolution. The court entered various financial orders concerning, inter alia, child support, the sale of the marital residence, attorney’s fees and “[a]ny inheritances due [the defendant] based upon the death of her father . . . .” From that judgment, the plaintiff appeals.

I

We first turn to the plaintiffs claim that the court exhibited bias against him at trial and in its memorandum of decision. This claim was not preserved in the trial court, as the plaintiff made no mention of his concern to the court and made no motion either to have the trial judge recuse herself or for a mistrial. We do not ordinarily consider claims that were not specifically raised in the trial court. See Brehm v. Brehm, 65 Conn. App. 698, 702-703, 783 A.2d 1068 (2001), and cases cited therein. “It is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial.” Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990). Furthermore, the plaintiff has not sought review of his unpreserved claim under the plain error doctrine. See Practice Book § 60-5; cf. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982) (granting plain error review to claim of judicial bias). As our Supreme Court has instructed, a party seeking review of unpreserved claims under the plain error doctrine must affirmatively request such review. State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002). On that basis alone, the plaintiffs claim fails.

Nevertheless, an allegation of judicial bias implicates the basic concepts of a fair trial. “[A]n accusation of prejudice against a judge . . . strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary.” (Internal quotation marks omitted.) Cameron v. Cameron, supra, 187 Conn. 168. Because of the enormity and extent of the allegation levied by the plaintiff in the present case, we invoke our inherent supervisory authority over the administration of justice. See Practice Book § 60-2. On our thorough review of the record and transcripts in this case, we conclude that the plaintiffs allegation is baseless.

The plaintiff first asserts in his brief that “from the very beginning of the trial, the court’s language evidenced hostility toward the plaintiff . . .’’To support this contention, the plaintiff refers to two comments made by the court, indicating that “[t]his is not good” and that “I’m going with what the defense says.” The plaintiff isolates these comments from the context in which they arose. Just before the court made the comments and while the plaintiff was testifying about certain basic predicate facts, the following colloquy occurred between the plaintiff and his attorney:

“[The Plaintiffs Counsel]: Sir, were you married to the defendant in this matter, who is seated here at counsel table?
“[The Plaintiff]: Yes.
“[The Plaintiffs Counsel]: And what was the date of your marriage?
“[The Plaintiff]: Now you’re asking me all these real tough questions. Uh, the date. Let’s see.”

When the plaintiff was unable to come up with a date, and after the court had invited his attorney to refresh the plaintiffs recollection by examining the complaint, the plaintiff asked, “Was it the seventeenth? Am I right on that?” At that moment, the court stated, “This is not good.” Shortly thereafter, the defendant offered to stipulate that the date of the marriage was March 20,1988. The plaintiff and his attorney proceeded to argue between themselves about whether the marriage occurred in 1987, as alleged in the complaint, or 1988, as stipulated by the defendant. The court then stated: “Scrivener’s error on the complaint. We’re correcting it to March 20, 1988. He doesn’t seem to know, and they say it is 1988. So, I’m going with what the defense says.” The plaintiff then moved to amend his complaint, and, upon learning that the court already had done so, counsel for the plaintiff thanked the court. To allege bias on the part of the court from that effort to clarify this simple detail is to completely ignore the context in which the comment was made.

The plaintiff then makes the following assertion in his brief: “Early on in the presentation of the plaintiffs case, the court became increasingly intolerant.” To support that allegation, the plaintiff quotes the court’s statement that “I never anticipated this. My . . . trials in Hartford never. . . went this way yet. ... I never thought it would . . . .” Once again, the plaintiff ignores the context of the court’s statement. Beginning on page thirty-eight of the transcript of the first day of trial and continuing for twenty pages, counsel for the plaintiff laboriously introduced exhibits, one by one. When the defendant’s counsel pointed out to the court that this process was unnecessarily time-consuming and in violation of the court’s standing orders, the court agreed, making the quoted comment. The court went on to inform counsel for the plaintiff that “from now on, if you’re with me, deal with the exhibits before we start.” We cannot conclude that the court exhibited bias toward the plaintiff simply because it asked him to comply with that court procedure.

The plaintiffs remaining allegations of bias on the part of the court are directed at the court’s memorandum of decision. We briefly analyze this attack on the court. The plaintiff argues: “In a footnote, the court quotes, referring to the plaintiff, that it is he who has violated a ‘social contract’ in an earlier divorce about which the court knows nothing.” (Emphasis added.) The memorandum of decision indicates that the footnote was not the court’s opinion but, rather, a direct quotation from the “assessment of the Sapper family” prepared by psychologist John T. Collins, the custody evaluator. That report was introduced into evidence by the plaintiff as plaintiffs exhibit forty-eight. Thus, it was from the plaintiffs initiative that the court knew the fact quoted.

The plaintiff also complains that the court used strong language in rendering its decision. We are aware of no authority, nor has the plaintiff provided any, indicating that a trial court is prohibited from expressing its factual findings and conclusions of law in strongly worded terms. So long as they are legally and logically correct and find support in the record, the court is free to convey its conclusions in whatever manner it deems appropriate. Although the court must be mindful of its duty to “have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding”; (internal quotation marks omitted) State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975), quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942); the court remains free to state its ultimate conclusions in strong language when the evidence before it so demands. We carefully have considered each of the plaintiffs allegations as to the language employed by the court in its memorandum of decision. The statements at issue all find support in the evidence presented to and credited by the court. They further reflect the tone of this unfortunate proceeding and pale in comparison to language contained, for example, in Collin’s report. We conclude that the court’s comments do not reflect actual bias and do not raise a reasonable question of impartiality.

Finally, we emphasize that “[o]ur Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” (Internal quotation marks omitted.) Fiddelman v. Redmon, 31 Conn. App. 201, 213, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993), quoting Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). In the face of such brazen partiality as alleged in his appellate brief, it was incumbent on the plaintiff to properly present that allegation to the trial court at trial via a motion for disqualification or a motion for a mistrial.

II

The plaintiff next assails several financial orders entered by the court. As to each, we conclude that the court did not abuse its discretion.

“In fashioning its financial orders, the court has broad discretion, and [jJudicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow eveiy reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Sander v. Sander, 96 Conn. App. 102, 105, 899 A.2d 670 (2006). Further, “[i]n distributing the assets of the marital estate, the court is required by [General Statutes] § 46b-81 to consider the estate of each of the parties. . . . General Statutes § 46b-81 (a) provides in relevant part: At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . . Courts are not required to ritualistically recite the criteria they considered, nor are they bound to any specific formula respecting the weight to be accorded each factor in determining the distribution of marital assets.” (Citation omitted; internal quotation marks omitted.) Mann v. Miller, 93 Conn. App. 809, 812, 890 A.2d 581 (2006).

A

The plaintiff first claims that the court abused its discretion in fashioning its child support order. Specifically, he alleges that the court ignored a significant change in his economic circumstances due to his “life threatening illness.” The plaintiff, however, offered no expert testimony regarding that alleged illness.

The plaintiff also argues that the court improperly relied on his December 6, 2004 financial affidavit when he had filed a more recent one with the court. For two reasons, that claim is problematic. First, we note that the “more recent” affidavit, introduced into evidence as plaintiffs exhibit forty-nine, is not certified. On the certification section of that document, the date is not provided, and neither the affiant nor a notary or commissioner of the Superior Court signed the requisite boxes.

Second, the more recent affidavit avers that the plaintiff had a net weekly loss of $847 in wages, which would amount to an annual loss of more than $44,000. By contrast, his December 6, 2004 financial affidavit listed a net weekly wage of $800. In its memorandum of decision, the court discredited the more recent affidavit. It stated: “The evidence provided at trial, relative to [the plaintiffs] business income and earnings, was vague and not credible.” In so concluding, the court compared both affidavits and emphasized that, despite the alleged net weekly loss of $847 in wages, the more recent affidavit listed more than $1300 in weekly expenses. It is well established that “[t]his court will not revisit credibility determinations.” Landry v. Spitz, 102 Conn. App. 34, 49 n.9, 925 A.2d 334 (2007). The court was entitled, in its role as sole arbiter of credibility, to discredit the plaintiffs unsigned affidavit.

The court was presented with ample evidence, both documentary and testimonial, concerning the plaintiffs earning capacity and economic circumstances, which support its determination. On our review of the record, we perceive no abuse of discretion.

B

The plaintiff also challenges the court’s orders regarding the marital residence. As part of its judgment of dissolution, the court ordered the sale of the marital residence at 1 Vienna Lane in Clinton. Following the sale, the net proceeds were to be distributed as follows. First, $19,000 shall be deposited in the respective college funds of the minor children, a payment to be deducted from the defendant’s share of the net proceeds. Second, any outstanding judgment liens, past due expenses and utilities shall be paid from the plaintiffs share of the net proceeds. Third, an additional $10,000 shall be deposited in each of the respective college funds for the minor children. Fourth, the defendant shall receive her $85,000 contribution to the residence and the plaintiff shall receive his $27,000 contribution. Finally, the court ordered that “[o]f the remaining proceeds, if any, and taking into account fault in the breakdown of the marriage, [the defendant] shall receive 80 percent and [the plaintiff] shall receive 20 percent.”

On appeal, the plaintiff alleges that “[i]n exorcising [sic] her wrath toward and contempt for the plaintiff, the court has lost sight of the fact that the defendant serially purloined the entirety of her nearing college age children’s college funds . . . .” To the contrary, the court made the following factual findings in its memorandum of decision concerning the liquidation of the college funds: “The problems in this marriage began when [the parties’] children were very young. One of the problems was financial; [the plaintiff] blames [the defendant] for spending family funds on her unsuccessful antiques business. However, their financial stressors actually were apparent much earlier and largely were created by [the plaintiff]. After the birth of their first child, [the plaintiff] controlled the family’s finances. He allocated an insufficient weekly sum, in cash, to [the defendant] to pay all the expenses of the household, including the mortgage and all the children’s expenses. This weekly sum never increased and was necessarily supplemented by the plaintiffs part-time earnings. When she did not have enough money to cover that week’s bills, [the defendant] was told by [the plaintiff that] she could ‘earn’ extra household cash in exchange for engaging in marital sex. Faced with this alternative, often she took the week’s shortfall out of her small inheritance from her grandmother. . . . She then depleted the modest balance remaining in her pension plan. Finally, to cope with the severe household budget deficit [the defendant] opened an antiques business, in March, 2001. When that business failed to generate enough cash to pay the household bills, [the defendant] used periodic withdrawals from [the college funds of the minor children], . . . Both parents were aware of this invasion of [the] college funds.” In his appellate brief, the plaintiff concedes that evidence exists in the record to support the court’s factual findings. He argues, however, that “on the entire evidence, this court must be left with the definite and firm conviction that a mistake has been committed.” We disagree. The court properly considered the liquidation of the college funds in ordering their replenishment as part of the distribution of the marital property.

The plaintiff also claims that the court improperly considered the issue of fault in awarding the defendant 80 percent of the remaining proceeds of the marital estate. He is mistaken. General Statutes § 46b-81 (c) requires a trial court to consider various factors in fashioning financial orders in dissolution proceedings, including “the length of the marriage [and] the causes for the annulment, dissolution of the marriage or legal separation . . . .” (Emphasis added.) The evidence adduced at trial supports the court’s determination that the plaintiff was responsible for the breakdown of the parties’ marriage. “In reviewing the trial court’s decision, we are mindful that the trial court is accorded wide discretion in a dissolution action in distributing the marital property.” Lopiano v. Lopiano, 247 Conn. 356, 375, 752 A.2d 1000 (1998). We also are mindful of “the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Parley v. Parley, 72 Conn. App. 742, 745, 807 A.2d 982 (2002). Those factors often are not fully reflected in the cold, printed record available to us. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The court did not abuse that discretion in its orders regarding the marital residence.

C

The plaintiff next claims that the court abused its discretion in ordering him to pay certain attorney’s fees. That claim requires little discussion. General Statutes § 46b-62 authorizes the trial court to order payment of attorney’s fees in dissolution actions. “Whether to allow counsel fees [under § 46b-62], and if so in what amount, calls for the exercise of judicial discretion. . . . An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Kunajukr v. Kunajukr, 83 Conn. App. 478, 489, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004). In addition to the evidence presented at trial, the court had before it the fact that prior to trial, the plaintiff had filed standing trial management orders that included a witness list containing the names and addresses of fifty-eight individuals and a list of eighty-six proposed exhibits. At trial, the plaintiff called four witnesses. In light of the foregoing, we cannot say that the court abused its discretion in ordering the plaintiff to pay the defendant $5000 in attorney’s fees and all fees incurred by the guardian ad litem and attorney for the minor children.

D

The plaintiffs final claim is that the court abused its discretion in ordering that “[a]ny inheritances due [the defendant] based upon the death of her father are her sole property.” We repeat that the court “is accorded wide discretion in a dissolution action in distributing the marital property.” Lopiano v. Lopiano, supra, 247 Conn. 375. The record reveals that the defendant’s father died on April 26, 2006, more than nineteen months after the parties separated and the plaintiff commenced this dissolution action. In addition, the parties presented no evidence to the court concerning the value of the estate, making it improper for the court to consider the estate in its property distribution. See Krafick v. Krafick, 234 Conn. 783, 792-93, 663 A.2d 365 (1995) (court must value property prior to distribution determination). That fact, considered in tandem with the other evidence presented at trial, persuades us that the court was well within its discretion in entering the aforementioned order.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to Practice Book § 67-13, the guardian ad litem for the minor children filed a statement adopting the brief of the defendant in this appeal. It stated: “It is the position of the guardian ad litem that the trial court correctly found as it did when it considered and applied the child support guidelines when determining that part of the financial orders. The trial court did not exhibit bias against the plaintiff; rather, both parties were given equal opportunities to plead their cases and put on their evidence. Finally, all of the trial court’s orders affecting the minor children were made taldng into consideration their best interests. The court should also note that the [elder] minor child . . . reached the age of majority on January 17, 2007.”

       The file contains 217 pretrial motions, of which the plaintiffs appellate counsel deemed more than 100 necessary for inclusion in the printed record on appeal.

       Raising a claim of bias on the part of a judge against a particular party is a serious business and should not be undertaken without a sound basis in the record. See rule 8.2 (a) of the Rules of Professional Conduct (“[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge”).

       Let it be clear that in so concluding, this court has made no finding as to whether counsel for the plaintiff violated rule 8.2 (a) of the Rules of Professional Conduct.

       We note that the plaintiff presents his allegations of judicial bias in language that itself is very provocative. For example, the plaintiffs appellate brief alleges that the court has forsaken “any vestiges of restraint and impartiality” and has “followed its personal feelings in derogation of the evidence.”

       In preparing his assessment of the Sapper family, Collins conducted a total of eighteen interviews of the parties and the minor children over the course of seven months. His thirty-one page report, introduced into evidence by the plaintiff, details the interaction of the family members, their individual histories and personal issues. The report also details voice mail and e-mail messages sent to the defendant by the plaintiff. Offensive language permeates the report. As one of many examples, Collins notes that the plaintiff called the defendant a “fucking cunt” and a “bitch” in the presence of the minor children. Collins’ report contains other quotations from the plaintiff and minor children that are even more graphic and profane.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    SHERIF M. LAWENDY v. CONNECTICUT BOARD OF VETERINARY MEDICINE ET AL.
    (AC 27830)
    DiPentima, Harper and Hennessy, Js.

      Argued December 4, 2007
    officially released July 15, 2008

      Emily V. Melendez, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellants-appellees (defendants).

      Laurel Fedor, for the appellee-appellant (plaintiff).
   Opinion

HENNESSY, J.

The following facts, found by the board, and procedural history are necessary for our resolution of these appeals. Prior to and during the incident giving rise to this litigation, the plaintiff held a Connecticut veterinary license. On September 30, 2004, the department presented the board with a statement of charges against the plaintiff that charged him with a violation of § 20-202 (2) and (8). The plaintiff filed an answer to the charges on December 10, 2004. The board held an administrative hearing on February 9, 2005, at which the parties were represented by counsel. From about June, 2001, through about July, 2003, Elena Alvarez was not licensed to practice veterinary medicine in Connecticut. During this time, Alvarez was employed by the plaintiff, who allowed her to perform neutering surgeries on male shelter cats. The board found that the department met its burden of proof with respect to all charges, citing General Statutes § 20-197. The board found that the plaintiffs claimed defense that he was allowed to supervise his staff in such procedures under the Connecticut board of veterinary medicine rules of practice was not valid because the regulations do “not authorize veterinarians to aid and abet the unlicensed practice of veterinary medicine.” The board further rejected the plaintiffs claim that Alvarez was training under him to become licensed in Connecticut in his hospital, because no evidence was presented that Alvarez was involved in educational training, and the veterinary hospital was not an educational institution or laboratory.

The plaintiff appealed from the decision of the board on August 23, 2005, pursuant to General Statutes § 4-183 (a). After the parties filed briefs, the court, Hon. Howard T. Owens, Jr., judge trial referee, issued its memorandum of decision on June 15, 2006. The court agreed with the plaintiff that the department failed to meet its burden to show negligence under § 20-202 (2) because there was no evidence produced that any feral cat had been actually injured. In making this finding, the court cited RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994), for the proposition that “[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” The court upheld the board’s decision that the plaintiff violated § 20-202 (8) and the board’s rejection of his claim that he was providing educational training at his “hospital.” The court further found that the plaintiff had sufficient notice of the charges against him and that admission of the prior disciplinary action against him as relevant evidence was reasonable. Last, the court found that it was unclear as to whether Alvarez was able to testify and that the plaintiff was not substantially prejudiced by the admission of Alvarez’ signed affidavit.

The defendants filed their appeal on July 3, 2006, and the plaintiff filed his cross appeal July 12, 2006.

General Statutes § 4-183 (j) governs appellate review of agency decisions. “[W]e note that our review of an administrative appeal is limited. Our Supreme Court has established a firm standard that is appropriately deferential to agency decision making, yet goes beyond a mere judicial rubber stamping of an agency’s decisions. . . . Courts will not substitute their judgment for that of the agency where substantial evidence exists on the record to support the agency’s decision, and where the record reflects that the agency followed appropriate procedures.” (Citations omitted; internal quotation marks omitted.) Menillo v. Commission on Human Rights & Opportunities, 47 Conn. App. 325, 331, 703 A.2d 1180 (1997).

“Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.) State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 494, 709 A.2d 1129 (1998). Our task is to review the court’s decision to determine whether it comports with the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., and whether “the court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.” (Internal quotation marks omitted.) Ferreira v. Zoning Board of Appeals, 48 Conn. App. 599, 605, 712 A.2d 423 (1998).

I

APPEAL BY BOARD AND DEPARTMENT

The defendants’ appeal centers around the court’s ruling that actual injury is necessary for a finding of negligence under § 20-202 (2). In reaching its conclusion that the board had improperly disciplined the plaintiff for a violation of § 20-202 (2), the court noted that “[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury”; (internal quotation marks omitted); and concluded that “the board erred in finding that the plaintiff was negligent . . . absent a showing of actual injury.” The defendants argue that § 20-202 (2) does not require proof that an animal had sustained actual injury in order to discipline a veterinarian for “negligence towards animals and birds”; General Statutes § 20-202 (2); and that it was improper to apply a common-law tort standard to an administrative disciplinary action. The plaintiff claims that the tort standard is the appropriate standard. We agree with the defendants.

We recognize that the common-law tort standard was appropriately set forth by the court, but it overlooks the implication in administrative case law that the tort standard is not necessarily applicable to this type of case. See Solomon v. Connecticut Medical Examining Board, 85 Conn. App. 854, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005); Wasfi v. Dept. of Public Health, 60 Conn. App. 775, 761 A.2d 257 (2000), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001). Solomon addresses negligence in the practice of medicine and the opinion focused on the “threat” that the physician’s practice of medicine posed to the health and safety of persons. (Emphasis added.) Solomon v. Connecticut Medical Examining Board, supra, 858, 867. Wasfi deals directly with the statute at issue here. Wasfi v. Dept. of Public Health, supra, 779. In reaching its conclusion, this court was “fmjindful of the board’s purpose of insuring proper veterinary care and the protection of the public health, considering the convenience and welfare of the animals being treated . . . .” (Internal quotation marks omitted.) Id., 793; General Statutes § 20-196. The veterinarian in Wasfi argued that his misconduct did not seriously injure the animal he had treated, but this court believed that the argument “missjed] the point” that the misconduct at issue could demonstrate “a risk that he would perform below the standard of care in the future.” Wasfi v. Dept. of Public Health, supra, 794. “It is rational to allow the board, comprised in part of professionals, to protect the quality of the profession and the care given to animals by adjudicating alleged instances of unskillfulness or misconduct by licensed practitioners.” Id., 790. Further, the board’s findings that the veterinarian’s conduct deviated from the standard of care to such an extent that sanctions on his license were warranted was a proper exercise of the board’s authority under § 20-202 (2). Id.

The charges brought against the plaintiff by the department and determined by the board were a disciplinary action, and the court improperly restricted the definition of negligence as used in § 20-202 (2) to the common-law tort standard. In the interest of judicial economy, we have reviewed the record and determined that there was substantial evidence to support the board’s finding of negligence on the part of the plaintiff. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). Accordingly, we conclude that the court improperly overturned the board’s finding with respect to negligence.

II

CROSS APPEAL BY PLAINTIFF

A

The plaintiffs first claim on cross appeal is that the court improperly failed to remand the case to the board after overturning the board’s finding with respect to § 20-202 (2). Because we concluded in part I of this opinion that the board’s finding of negligence should be upheld, it is not necessary to review this claim because it is moot. See Ayala v. Smith, 236 Conn. 89, 94, 671 A.2d 345 (1996).

B

The plaintiffs next claim is that he was not provided with sufficient notice of the charges against him because the statement of charges did not reference § 20-197. He argues that he was prejudiced by the inadequate notice because he was prevented from preparing an adequate defense. The defendants argue that upon review of the charges, it is clear that the board was required to make a determination of whether an unlicensed person was practicing veterinary medicine and that further, the plaintiff was not and could not himself be charged with a violation of this statute because he was at all times a licensed veterinarian. We agree with the defendants.

Recent case law sheds light on this issue. “[T]he purpose of notice is to advise the party of the law and fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law.” Cornelius v. Dept. of Banking, 94 Conn. App. 547, 556, 893 A.2d 472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006).

The statement of charges alleged in relevant part that “[f]rom about June, 2001, through about July, 2003, [the plaintiff] employed an unlicensed person, Elena Alvarez. During that time period, [the plaintiff] allowed Elena Alvarez to perform neutering surgeries on male cats. . . . The above described facts constitute grounds for disciplinary action pursuant to ... § 20-202, including but not limited to: [a] § 20-202 (2); and/ or, [b] § 20-202 (8).”

Pursuant to the statute, an individual violates § 20-202 (8) by employing a person unlawfully practicing veterinary medicine. The theory of the case and the listing of § 20-202 (8) as one of the charges clearly apprised the plaintiff of the laws that he was charged with violating and the legal theory behind the violation. The plaintiff had notice of the charges against him and as such his defense was not prejudiced.

C

The plaintiff claims that it was improper to admit a sworn statement from Alvarez when he did not have the opportunity to cross-examine her at the hearing. The defendants correctly argue that the plaintiff did not meet his burden to show that this admission of evidence substantially prejudiced him.

The trial court in reviewing this issue asserted the correct standard of review. That court cited Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 230-31, 676 A.2d 844 (1996), for the proposition that “[t]o establish a violation of the right to cross-examination, a party who has been deprived of its opportunity to conduct a full and complete cross-examination must additionally show that such deprivation has caused substantial prejudice.”

To begin, it is unclear from the record whether the plaintiff was deprived of the opportunity to cross-examine Alvarez. The board has the authority to issue subpoenas under General Statutes § 19a-10 but was not requested to do so by the plaintiff in this case. Further, we note that in the sworn statement, Alvarez stated only that she performed cat neuters while she was employed by the plaintiff. This information had already been put forth through the investigation report, which was also admitted as evidence in this case. The plaintiff failed to show that he was prejudiced by the admission of Alvarez’ sworn statement.

D

The plaintiff also claims that the court improperly found that the veterinary hospital was not a hospital or laboratory engaged in research or studies involving the use of medical or surgical procedures under § 20-205. The defendants assert that there is substantial evidence in the administrative record to support the agency’s findings and that the findings were reasonable. We agree with the defendants.

Section 20-196-3 (c) of the Regulations of Connecticut State Agencies provides: “ ‘Hospital’ means a veterinary hospital is a facility for medical and surgical treatment of animals. The practice conducted within this facility includes the confinement as well as the treatment of patients. Veterinary service should be available 7 days a week and emergency service should be available on a 24-hour basis.” The court agreed with the defendants’ claim that the plaintiffs practice did not qualify as a hospital under this definition because the plaintiff could be reached only through an answering machine twenty-four hours per day. Further, the claimed exception is available only for “research or studies involving the use of medical [or] surgical . . . procedures . . . .” General Statutes § 20-205. The challenged procedures in this case were not conducted in an educational setting, and Alvarez’ neutering of feral cats was not part of research or a study. The court correctly found that this exception did not apply to the plaintiff.

E

The plaintiffs final claim is that the court improperly found that he assisted in the unauthorized practice of veterinary medicine under § 20-202 (8). The defendants claim that there was substantial evidence in the administrative record for such a finding. We agree with the defendants.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Internal quotation marks omitted.) Slootskin v. Commission on Human Rights & Opportunities, 72 Conn. App. 452, 457-58, 806 A.2d 87, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).

The board found that during the relevant time, Alvarez was not licensed to practice veterinary medicine in Connecticut, a fact of which the plaintiff was aware. During her employment with the plaintiff, Alvarez was allowed to perform neutering surgeries on male cats. Substantial evidence in the record supports these findings of fact, especially admissions from the plaintiff himself and a signed voluntary statement from Alvarez that she performed neutering surgeries on stray cats. Further, when a board member asked the plaintiff: “Do you believe now or did you ever believe that neutering a cat is the practice of veterinary medicine?” the plaintiff conceded, “Yes, it is the practice of veterinary medicine.”

It is clear from the record that the plaintiff knew that Alvarez was not licensed to practice veterinary medicine and that he nevertheless allowed her to practice veterinary medicine in his facility. There was substantial evidence to find that the plaintiff violated § 20-202 (8).

On the appeal, the judgment is reversed only as to the determination that the plaintiffs conduct did not constitute negligence, and the case is remanded to the trial court with direction to deny the plaintiffs appeal on that issue. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 20-202 provides in relevant part: “After notice and opportunity for hearing as provided in the regulations established by the Commissioner of Public Health, said board may take any of the actions set forth in section 19a-17 for any of the following causes ... (2) proof that the holder of such license or certificate has become unfit or incompetent or has been guilty of cruelty, unskillfulness or negligence towards animals and birds . . . .”
      We note that the board prevailed before the trial court in that the sanctions that it imposed on the plaintiff were upheld by the court. It did not prevail, however, on the allegation that the plaintiffs actions constituted negligence. Even though the court affirmed the imposition of sanctions, the board is aggrieved by the court’s ruling as to its negligence claim and, therefore, is entitled to appeal. See In re Allison G., 276 Conn. 146, 883 A.2d 1226 (2005). A reversal of the ruling on the negligence count could be relevant in any later disciplinary proceeding by the board against the plaintiff. See Statewide Grievance Committee v. Burton, 282 Conn. 1, 917 A.2d 966 (2007). In addition, the board may be said to possess an “institutional interest” in its ruling, as it will affect its decision making in the future. See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 265, 777 A.2d 645, aff'd after remand, 67 Conn. App. 316, 786 A.2d 1283 (2001).

       General Statutes § 20-197 provides in relevant part: “No person shall practice veterinary medicine, surgery or dentistry until he has obtained a license as provided in section 20-199. A person shall be construed to practice veterinary medicine, surgery or dentistry, within the meaning of this chapter, who holds himself out as being able to diagnose, administer biologies for, treat, operate or prescribe for any animal or bird disease, pain, injury, deformity or physical condition, or who either offers or undertakes, by any means or methods, to diagnose, administer biologies for, treat, operate or prescribe for any animal or bird disease, pain, injury, deformity or physical condition. . . .”

       General Statutes § 4-183 Q) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       See footnote 1 of this opinion.

       “Negligence” has been generally defined as “any conduct that falls below the legal standard established to protect others against unreasonable risk of harm . . . .” Black’s Law Dictionary (7th Ed. 1999).

       See footnote 2 of this opinion.

       General Statutes § 20-202 provides in relevant part: “After notice and opportunity for hearing as provided in the regulations established by the Commissioner of Public Health, said board may take any of the actions set forth in section 19a-17 for any of the following causes ... (8) knowingly having professional association with, or knowingly employing any person who is unlawfully practicing veterinary medicine . . . .”

       General Statutes § 20-205 provides in relevant part: “The provisions of this chapter shall not apply to any hospital, educational institution or laboratory or any state or federal institution, or any employee of, student in or person associated with any such hospital, educational institution or laboratory or state or federal institution, while engaged in research or studies involving the use of medical, surgical or dental procedures, or to the owner of any animal or livestock or his or her employee while administering to such animal or livestock.”

       See footnote 7 of this opinion.


author: BEACH, J.

text:
    JP MORGAN CHASE BANK, TRUSTEE v. ALBERT S. RODRIGUES ET AL.
    (AC 28761)
    Bishop, Beach and Robinson, Js.

      Argued April 25
    officially released July 15, 2008

      Nathalie Feola-Guerrieri, with whom, on the brief, was Daniel Shepro, for the appellants (named defendant et al.).

      Michele D. Sensale, for the appellee (plaintiff).
   Opinion

BEACH, J.

This is a mortgage foreclosure action in which the defendants Albert Rodrigues and Marie Rodrigues appeal from the judgment of the trial court granting the motion of the plaintiff, JP Morgan Chase Bank, Trustee, to strike the defendants’ counterclaim, special defenses and setoffs. On appeal, the defendants claim that the court improperly granted the plaintiffs motion to strike. We affirm the judgment of the trial court and dismiss the portion of this appeal concerning the defendants’ special defenses.

The following facts and procedural history are relevant to our resolution of the defendants’ appeal. In September, 2004, the plaintiff filed a complaint in one count against the defendants seeking a foreclosure of a mortgage, possession of the mortgaged property, a deficiency judgment, money damages, attorney’s fees, costs and interest. In its complaint, the plaintiff alleged that it was an assignee of a note and mortgage executed by the defendants in favor of Citicorp Mortgage, Inc. The plaintiff further alleged that it was now the owner and holder of the note and mortgage.

In November, 2004, the defendants filed an answer, special defenses, a counterclaim and setoffs. The defendants alleged four special defenses: estoppel on the basis of the failure to honor a forbearance agreement, estoppel on the basis of a breach of the implied covenant of good faith and fair dealing in not honoring the forbearance agreement, estoppel on the basis of the failure to provide an accounting and estoppel on the basis of a breach of the forbearance agreement.

In addition, the defendants alleged a three count counterclaim and setoff. The first count of the counterclaim alleged that the defendants “entered into an agreement of forbearance with the plaintiffs predecessor in interest.” This count alleged that the plaintiff “took the note and mortgage while in default subject to the forbearance agreement” and that the defendants made payments according to the forbearance agreement but that the plaintiff failed to honor the agreement. The defendants further alleged that the plaintiff at first denied that it took the mortgage subject to the forbearance agreement. When, at the insistence of the defendants’ attorney, the plaintiff reviewed the agreement, it still failed to honor the agreement. It instead insisted that the defendants execute another agreement and threatened foreclosure if they did not do so even though the balance stated in that new agreement was incorrect. The defendants claimed emotional distress as a result of the claimed threats of foreclosure and the plaintiffs allegedly requiring the defendants to execute another agreement. In the second count of the counterclaim, the defendants incorporated by reference the facts set forth in the first count of the counterclaim. This second count alleged that the plaintiff acted recklessly, wantonly and without regard for, and contrary to, the forbearance agreement. This count further alleged that the plaintiff wrongfully and intentionally inflicted emotional distress on the defendants. The third count of the counterclaim likewise incorporated by reference the facts set forth in the previous counts of the counterclaim and claimed a violation of the Connecticut Unfair Trade Practices Act (CUTPA). See General Statutes § 42-110a et seq.

The plaintiff thereafter filed a motion to strike the defendants’ special defenses, counterclaim and setoffs, which the court, Richards, J., granted. In response to a motion filed by the plaintiff, the court, Matasavage, J., rendered judgment on the stricken counterclaim. This appeal followed.

As a preliminary matter, we set forth the applicable standard of review. “The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552-53, 944 A.2d 329 (2008).

I

We first address the threshold jurisdictional issue of whether the defendants have appealed from a final judgment. Neither side addressed this issue in its brief. We raised the issue sua sponte and gave notice of this concern to the parties prior to oral argument. We conclude that the court’s granting of the plaintiffs motion to strike as to the defendants’ special defenses is not a final judgment.

We begin with our well settled principles relating to final judgments. “Because our jurisdiction over appeals, both criminal and civil, is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.” State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). “[W]e begin with the premise that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases . . . the subject matter jurisdiction of . . . this court is governed by statute. ... It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review . . . appellate jurisdiction is limited to final judgments of the trial court.” (Citations omitted; internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 45, 818 A.2d 14 (2003).

“The granting of a motion to strike a special defense is not a final judgment and is therefore not appealable. . . . The striking of special defenses neither terminates a separate proceeding nor so concludes the rights of the parties that further proceedings cannot affect them.” (Citation omitted; internal quotation marks omitted.) Mechanics Savings Bank v. Townley Corp., 38 Conn. App. 571, 573, 662 A.2d 815 (1995). Accordingly, we cannot consider that portion of the defendants’ appeal that pertains to the striking of their special defenses. That issue must await review, if at all, in an appeal from the final decision on the merits of the case. See id., 574.

Accordingly, we dismiss, sua sponte, the portion of the defendants’ appeal that pertains to the court’s granting of the plaintiffs motion to strike the defendants’ special defenses.

II

The defendants claim that the court improperly granted the plaintiffs motion to strike because a motion to strike is not the proper vehicle through which to address a counterclaim that is legally insufficient. Specifically, the defendants claim that instead of filing a motion to strike, the plaintiff should have filed a request to revise under Practice Book § 10-35 et seq. We disagree.

Pursuant to Practice Book § 10-39 (a) (5), when a party seeks to contest the “legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, the party may do so by filing a motion to strike the contested pleading or part thereof.” “The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). “[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action. ... A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.” (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano’s Auto Service, 4 Conn. App. 495, 496, 495 A.2d 286 (1985); see also Practice Book § 10-39. Accordingly, we conclude that a motion to strike was the proper procedural vehicle to test the sufficiency of the defendants’ counterclaim.

III

The defendants claim that the court improperly granted the plaintiffs motion to strike their counterclaim and setoffs. We disagree.

The court granted the plaintiffs motion to strike the defendants’ counterclaim. It concluded, inter alia, that it did not arise from the same transaction as the complaint. Practice Book § 10-10 provides that “[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiffs complaint . . . .” This section “is a common-sense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy.” (Internal quotation marks omitted.) Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 251, 520 A.2d 1008 (1987). “The transaction test is one of practicality, and the trial court’s determination as to whether that test has been met ought not be disturbed except for an abuse of discretion.” (Internal quotation marks omitted.) Mechanics Savings Bank v. Townley Corp., supra, 38 Conn. App. 574.

Here, the subject of the plaintiffs complaint is the foreclosure of a mortgage from the plaintiff on property at 101 Northwood Drive in the town of Easton. The transaction at issue in the complaint is the execution of the note and mortgage and the subsequent default.

We turn to the first and second counts of the defendants’ counterclaim, which alleged emotional distress. In these counts, the defendants alleged that the plaintiff at first denied that it took the note subj ect to the forbearance agreement. When, at the insistence of the defendants’ attorney, it reviewed the agreement, it still failed to honor it. Rather, it insisted that the defendants execute another agreement and threatened foreclosure if they did not do so, even though the balance in that new agreement was incorrect. The defendants claimed emotional distress as a result of the claimed threats of foreclosure and the plaintiffs alleged requirement that the defendants execute another agreement. These allegations of emotional distress relate to the behavior of the plaintiff and do not pertain to the specific subject of the plaintiffs complaint.

In Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 21, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999), a panel of this court held that the trial court did not abuse its discretion in determining that the defendants’ counterclaim alleging violation of the implied covenant of good faith and fair dealing or breach of fiduciary duty did not arise out of the same transaction as the complaint, as required by Practice Book § 10-10. The defendants’ allegations related to the conduct of an assignee of the subject notes and mortgage in selling the notes to the plaintiff for an amount less than that which the named defendant was willing to pay. Southbridge Associates, LLC v. Garofalo, supra, 15. This conduct occurred well after the loan documents were executed and, as such, did not relate precisely to the making, validity and enforcement of the notes. Id., 17. The trial court, then, did not abuse its discretion by rendering summary judgment for the plaintiff on the defendants’ counterclaim in the foreclosure action. Id., 21.

In the present case, the defendants’ allegations related to the conduct of the plaintiff that occurred after the execution of the mortgage note and with respect to documents other than the mortgage note. The disparity between the subject matter of the plaintiffs complaint and that of the defendants’ counterclaim warranted the court’s conclusion that the counterclaim did not arise from the same transaction. Accordingly, the court did not abuse its discretion in striking the defendants’ counterclaim for emotional distress.

We next address the defendants’ third counterclaim, which alleges a violation of CUTPA. In a foreclosure action, a counterclaim must relate to the making, validity or enforcement of the mortgage note in order properly to be joined with the complaint. See New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 9-11, 783 A.2d 1174 (trial court properly rendered summary judgment against defendant on ground that counterclaim not related to making, validity or enforcement of mortgage note), cert. denied, 258 Conn. 942, 786 A.2d 426 (2001); see also Southbridge Associates, LLC v. Garofalo, supra, 53 Conn. App. 16-17. There are instances in which violations of CUTPA have been upheld as valid counterclaims brought in foreclosure actions. See Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-15, 612 A.2d 1130 (1992); Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 412-15, 867 A.2d 841 (2005).

The defendants incorporate by reference into this counterclaim the same factual allegations set forth in their counterclaim for emotional distress. The defendants additionally state that the plaintiffs conduct was “grossly unfair, in bad faith, and recklessly wrongful.” The defendants alleged that the plaintiff failed to honor the forbearance agreement. They further alleged that the plaintiff threatened foreclosure if the defendants did not execute another agreement with an incorrect balance. These allegations pertain to a range of the plaintiffs conduct in connection with the forbearance agreement and the additional agreement rather than narrowly bearing on the mortgage note itself or its enforcement.

In foreclosure actions, the mortgagee’s conduct in the making of the mortgage note has been held to constitute a violation of CUTPA. See Monetary Funding Group, Inc. v. Pluchino, supra 87 Conn. App. 401; see also Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 80. Conduct on the part of the party seeking foreclosure that occurred after the loan documents were executed and not necessarily directly related solely to enforcement of the note, however, properly has been found not to arise out of the same transaction as the complaint. See Southbridge Associates, LLC v. Garofalo, supra, 53 Conn. App. 16-21. It was within the court’s discretion to conclude that the plaintiffs conduct as alleged in the counterclaim was not part of the same transaction as alleged in the complaint.

That portion of the defendants’ appeal that pertains to their special defenses is dismissed; the judgment striking the defendants’ counterclaim is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named as defendants the United States of America, the Internal Revenue Service, the state department of revenue services, Sam Melilli and Esther Melilli. At issue in this appeal is the plaintiff’s motion to strike the special defenses, counterclaim and setoffs of Albert Rodrigues and Marie Rodrigues. The term “defendants” therefore refers to Albert Rodrigues and Marie Rodrigues only.

       Practice Book § 61-3 provides in relevant part: “A judgment disposing of only a part of a complaint, counterclaim, or cross complaint is a final judgment if that judgment disposes of all causes of action in that complaint, counterclaim, or cross complaint brought by or against a particular party or parties. . . This section allows an appeal when an entire counterclaim has been stricken and judgment has been rendered thereon. Mechanics Savings Bank v. Townley Corp., supra, 38 Conn. App. 574. We will, therefore, review the judgment on the counterclaim.

       Although Monetary Funding Group, Inc. v. Pluchino, supra 87 Conn. App. 401, and Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 80, do not address the issue of whether the CUTPA counterclaim involved meets the transaction test set forth in Practice Book § 10-10, they, nevertheless give us guidance in what constitutes a valid CUTPA counterclaim in a foreclosure action. In Monetary Funding Group, Inc., the plaintiff mortgagee misled the unsophisticated defendant regarding the interest rate on the note and the amount of fees involved in the transaction and had structured the transaction to require two loans for the purpose of maximizing fees that could not have been demanded as part of a single loan transaction. We concluded that the trial court properly determined that the plaintiff violated CUTPA on the basis of its conduct in securing the mortgage note, namely that it had unclean hands and had made an unconscionable loan. Monetary Funding Group, Inc. v. Pluchino, supra, 412-15.
      In Cheshire Mortgage Service, Inc., our Supreme Court reversed the trial court’s judgment of foreclosure, determined that the mortgagee plaintiff had violated the federal Truth in Lending Act (act) by failing accurately to disclose and by including, in the finance charge, the fees charged to the defendants to record a future assignment of the mortgage, and had violated General Statutes (Rev. to 1991) § 36-2241 by having included the prepaid finance charge in the principal amount of the loan rather than categorizing it as interest. Cheshire Mortgage Service, Inc. v. Montes, supra, 94-106. The plaintiffs violation of both § 36-224Í and the act constituted an unfair trade practice under CUTPA. Id., 105-15.

       We conclude that the court did not improperly exercise its discretion in determining that the defendants’ counterclaim under CUTPA and for emotional distress did not relate to the subject matter of the complaint. “[BJecause a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done.” (Internal quotation marks omitted.) Morgera v. Chiappardi, 74 Conn. App. 442, 457, 813 A.2d 89 (2003). We make no determination as 1o the validity of the merits of these claims.
      Similarly, we express no opinion on, but leave to another day, the question of whether an abrogation of a forbearance agreement may properly constitute a special defense to a foreclosure action on the ground that it relates to the enforcement of the note.


text:
    STATE OF CONNECTICUT v. ARTHUR S.

    (AC 28391)
    McLachlan, Beach and Robinson, Js.

      Argued April 29
    officially released July 15, 2008

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victims, the street names where the defendant and victims lived or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

BEACH, J.

The defendant, Arthur S., appeals from the judgments of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1) and (2). On appeal, the defendant claims that the trial court improperly (1) admitted the portions of a witness’ written statement that were consistent with that witness’ testimony at trial and (2) failed to instruct the jury that the consistent portions of the written statement could not be used for substantive purposes. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In 1997, the defendant resided at a house in Bristol with his wife, his stepdaughter, A, and his stepson, J. At that time, A was approximately thirteen years old, and J was approximately twelve years old. A’s friend, B, who was also thirteen at the time, visited the house frequently. While living at that house, the defendant periodically engaged in sexual activity with A and B. The defendant also directed B to engage in sexual activity with J. When A was fourteen or fifteen years old, she moved with her mother and J to Hartford, and the defendant moved to a second house in Bristol. B temporarily resided with the defendant at the second house in Bristol on at least one occasion. Sexual activity between B and the defendant continued until B was eighteen years old.

The defendant’s case was tried to the jury in September, 2006. At trial, A testified regarding the defendant’s actions at the first Bristol house. Some portions of her testimony, however, were inconsistent with a signed written statement she had given to police before the trial. During its redirect examination of A, the state sought admission of A’s written statement pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Following an objection by the defendant, the state agreed that a few irrelevant sentences of the statement should be redacted. The defendant argued that only three plainly inconsistent sentences should be admitted. The court admitted a redacted version of the statement, including portions both consistent and inconsistent with A’s testimony. The court noted that “in many respects, [the statement] is inconsistent or could fairly be argued to be inconsistent with [A’s] testimony. And the balance, the part up front . . . puts it in context. The context of the beginning of the statement; the context of the allegations in question; the time frame that’s pertinent and the persons involved. So, while intrinsically, it is not inconsistent, it gives context to those statements which are. As a result, it should be introduced. Thus, everything except for the last two lines, which are not claimed, and the lines identified by the state’s attorney having to do with pornography, can be introduced as a prior inconsistent statement under State v. Whelan, [supra, 743], and § 8-5 (1) of the Connecticut Code of Evidence, provided it’s appropriately redacted.”

Following a guilty verdict by the jury on the charges of sexual assault in the second degree and risk of injury to a child, the defendant was sentenced to a total effective term of thirty years incarceration, suspended after eighteen years, and ten years probation. This appeal followed.

I

The defendant first claims that the court improperly admitted the portions of A’s Whelan statement that were consistent with her testimony at trial. The state counters that “[t]he consistent portions of A’s statements that the trial court admitted were necessary to place A’s inconsistent statements in the context of the time line of this case and the crimes charged . . . .” We agree with the state.

We begin by setting forth the standard of review. “Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Kelly, 106 Conn. App. 414, 421, 942 A.2d 440 (2008).

In general, the court should seek to avoid admitting evidence that is likely to confuse or mislead the jury. See State v. Abreu, 106 Conn. App. 278, 287, 941 A.2d 974, cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008). The principle of affording the fact finder the proper context in which to consider statements is codified in Connecticut Code of Evidence § 1-5 (a), which provides that “[w]hen a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it.” This type of determination is largely dependent on the unique circumstances in each case and, as with evidentiary issues in general, is best left to the sound discretion of the trial court.

“In State v. Whelan, supra, 200 Conn. 753, our Supreme Court adopted a rule allowing for the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. The Supreme Court deemed this type of prior statement to be an exception to the rule against hearsay under such circumstances. The Supreme Court noted that this rule will afford a jury in such a case the opportunity to assess a witness’ credibility after the witness is confronted with an alleged prior inconsistent statement. As our Supreme Court reasoned, given the opportunity for meaningful cross-examination of such a witness, the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. . . . After this type of examination, the jury can draw whatever conclusions concerning the witness’ testimony that it deems to be appropriate.” (Citation omitted; internal quotation marks omitted.) State v. Vasquez, 68 Conn. App. 194, 200-201, 792 A.2d 856 (2002).

In the present case, the court thoughtfully and carefully reviewed, line by line, the statement that the state sought to introduce as an exhibit. The court heard argument from both sides as to whether each line in question should be admitted. The court then admitted a redacted version of the statement, including both consistent and inconsistent portions of the statement. It explained its reasoning in admitting the consistent portions in terms of establishing timing and context for the inconsistent portions. The defendant argues that the court should have admitted only the three sentences that were in direct contradiction with A’s testimony. We agree with the court that under the circumstances of this case, in which the timing of the charges, as well as the ages of the victims during the conduct in question, were critical, the context is relevant. Specifically, the defendant sought to have all but three sentences redacted. Those lone three sentences refer to the defendant’s sexual conduct but, with the exception of one sentence, do not place that conduct at the first Bristol residence when A and B were thirteen years old and J was twelve years old. See footnote 2 of this opinion. The court’s analysis reflects the exercise of sound discretion. Accordingly, we reject the defendant’s claim.

II

The defendant next claims that the court committed plain error when it failed to instruct the jury on the limited purpose for which the consistent portions of the statement were admitted. The defendant neither requested a limiting instruction at trial nor raised an objection to the charge as given and therefore argues that the court should have given such a limiting instruction sua sponte. We disagree.

“The plain error doctrine is not ... a rule of review-ability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 183, 920 A.2d 236 (2007).

In the present case, we perceive no impropriety that would result in manifest injustice. The defendant cites no authority for the proposition that the court, sua sponte, must give a specific limiting instruction under the circumstances of this case. “It is well established in Connecticut . . . that the trial court generally is not obligated, sua sponte, to give a limiting instruction.” (Internal quotation marks omitted.) State v. Izzo, 82 Conn. App. 285, 298, 843 A.2d 661, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004). Furthermore, our Supreme Court, in State v. Jeffrey, 220 Conn. 698, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992), refused to afford plain error review to the defendant’s claim that the court improperly failed to give, sua sponte, an instruction concerning the limited purposes of consistent statement evidence when the defendant had neither requested such a charge nor taken exception to the charge as given. Id., 715. Accordingly, we decline to consider this claim because it fails to meet the stringent standard required for plain error review.

The judgments are affirmed.

In this opinion the other judges concurred.

       The redacted statement, in relevant part, is as follows. The defendant argues that the state should have been permitted to introduce only the plainly inconsistent portions, which are italicized.
      “From the time I was [five] years old until I was [fifteen] years old I lived [in the first residence] in Bristol. I lived there with my mother, my brother [J], and my stepfather [the defendant]. I had a friend, [B], [who] used to come over [to] the house and visit, she used to be my best friend. One time when [B] was over we went down stairs and [B] asked [the defendant] to play truth and dare. He said he would play but he wanted to change the rules. I don’t remember word for word what he said. We played the game a few times and [the defendant] dared me to have oral sex with him. This was the first time that I did this. [B] watched me have oral sex with him, and I watched her have oral sex with [the defendant] too. I think I was thirteen going on fourteen years old, when I first had oral sex with [the defendant]. I saw [the defendant] have sexual intercourse with [B], I don’t remember having intercourse with [the defendant], just oral sex. [The defendant] had sex with me and [B] a lot of times while we lived [in that residence]. I cannot remember how many times. There were times when I saw my brother [J] having oral sex with my friend [B]. This would happen when my mother was gone . . . she was never home when we had sex with [the defendant]. J did one time have oral sex with my brother . . . [the defendant] was in the room, and I think [B] was there [too].” (Emphasis added.)

       See footnote 2 of this opinion.