C. W. v. Warzecha

314 A.3d 617

225 Conn.App. 137

C. W.

v.Keith J. WARZECHA^*

(AC 45775)

Appellate Court of Connecticut.

Argued October 16, 2023

Officially Released April 30, 2024

Christopher P. Kriesen, Hartford, for the appellant (defendant).

Kenneth R. Slater, Jr., Hartford, with whom, on the brief, was Daniel J. Krisch, for the appellee (plaintiff).

Suarez, Clark and Prescott, Js.

SUAREZ, J.

₁₄₁The defendant, Keith J. Warzecha, appeals from the judgment of the trial court in favor of the plaintiff, C. W., on her claim for negligent infliction of emotional distress. On appeal, the defendant claims that (1) the trial court abused its discretion by asking him questions during the trial, sua sponte, that went beyond the scope of what was permissible, (2) the evidence presented at trial did not support a finding of negligent infliction of emotional distress,¹ and (3) ₁₄₂"this court [should] grant [his] motion to dismiss when the trial court did not act on it." We affirm the judgment of the trial court.

The following facts, as found by the court or which are otherwise undisputed, and procedural history are relevant to our resolution of the defendant’s claims on appeal. Since January, 2008, the plaintiff has resided with her son and daughter in a home that she owns. The plaintiff owns and operates a business that transports special needs children to and from school. Between 2012 and 2015, the plaintiff periodically operated her business from her home. In 2016, the plaintiff operated her business from a principal location outside of the town in which her home is located and had additional operations in surrounding towns.

At all relevant times, the defendant resided in a home that was located diagonally across the street from the plaintiff’s home. The defendant was employed as an agent with the federal Drug Enforcement Administration (DEA). Between 2012 and 2015, the defendant became concerned that the plaintiff was operating a commercial transportation business from her home after he observed an increase in the number of cars and the amount of traffic in the neighborhood that was associated with the plaintiff’s business. He noticed that individuals wearing shirts with the logo of the plaintiff’s business would park their personal vehicles near the plaintiff’s home, drive off in vans associated with the plaintiff’s business, and return later in the day to switch vehicles. In 2015, the defendant complained to the zoning department of the town in which he and the plaintiff ₁₄₃resided and discovered that the plaintiff did not have a permit to operate her business from her home.

After meeting with one or more zoning department officials, the defendant began to document his complaints with photographs, digital recordings, and a detailed written timeline of the comings and goings of the plaintiff, her family, and others based upon his personal surveillance of the plaintiff’s property.² The defendant digitally recorded the plaintiff’s residence continuously, twenty-four hours per day, seven days per week. The defendant would also take photographs of the plaintiff’s property from his vehicle using a zoom lens. Although the defendant stopped taking photographs of the plaintiff’s property in approximately January or February, 2016, he continued to conduct video surveillance of the plaintiff’s home until the time of trial and would regularly review the digital recordings. The defendant did not trespass on the plaintiff’s property or enter her home to take his photographs or video recordings, and all of the plaintiff’s activity that he documented occurred in areas open to public view.

The defendant submitted his documentation, including his digital recordings, photographs, and a surveillance report of what he believed to be the plaintiff’s alleged zoning violation, to the town’s zoning department. On November 18, 2015, a zoning enforcement officer issued a cease and desist order to the plaintiff, claiming that the operation of her business violated the town’s zoning regulations. In response, the plaintiff ₁₄₄contacted the local police department and complained to the defendant’s supervisors at the DEA about his surveillance of her property. The plaintiff thereafter installed surveillance cameras outside of her home that recorded twenty-four hours per day, seven days per week, and captured images of the defendant’s home. As animosity escalated between the parties, the plaintiff would occasionally walk by the defendant’s home and raise her middle finger toward his cameras, which she knew were recording her.

The plaintiff commenced the present action by writ of summons and complaint on April 29, 2018. In her three count complaint, the plaintiff alleged that over a two year period between October, 2015, and November, 2017, the defendant invaded her privacy by visually surveilling, photographing, and video recording her residence; following her in his car; photographing her minor child at her home and while he was at a neighbor’s house; using a zoom lens to photograph through the plaintiff’s front door as a visitor entered; spying on her from neighboring properties; peering into her home as she watched television; and driving slowly past her home. In count one, the plaintiff sought compensatory and punitive damages for invasion of privacy and alleged that the defendant’s conduct caused her fear, anxiety, and severe emotional distress. In count two, sounding in intentional infliction of emotional distress, the plaintiff alleged that such conduct was extreme and outrageous, malicious, and intended to cause the plaintiff to suffer emotional distress. In count three, the plaintiff alleged negligent infliction of emotional distress and that the defendant knew or should have known that his conduct was likely to cause the plaintiff to suffer emotional distress so severe that it could cause physical illness. On January 11, 2021, the defendant filed an answer to the complaint, denying the plaintiff’s material allegations.

₁₄₅On May 4, 2022, the court, Rosen, J., held a bench trial that was conducted remotely. The court heard testimony from the plaintiff, her son, her friend, and the defendant. On August 18, 2022, the court issued a memorandum of decision in which it found in favor of the plaintiff on count three of her complaint for negligent infliction of emotional distress.³ The court reasoned that "[t]he defendant’s conduct over a two year period of, inter alia, photographing and [video recording] the plaintiff from his car, from across the street, and [from] other vantage points, photographing her children and the comings and goings of invited guests, his use of 24/7 surveillance on her home, driving slowly past her home, and documenting in great detail all of her activities created an unreasonable risk of causing the plaintiff emotional distress. Her distress was foreseeable, given the pervasive nature of the surveillance and monitoring, with 24/7 [video recording] continuing to the present time. Indeed, the defendant was aware that his conduct angered, annoyed, and distressed the plaintiff. For example, he submitted into evidence photographs or stills from [video recordings] showing the plaintiff raising her middle finger at him while being photographed or [video recorded]. She further established that the distress she experienced was severe enough that it might result in illness or bodily harm and was caused by the defendant. She characterized the impact of the defendant’s conduct on her life as ‘devastating.’ His conduct created such a level of fear and anxiety that the plaintiff refused to open her windows or curtains or let her children play outside alone. She lost her sense of privacy and became more socially isolated because no one wanted to visit her at her home." The court awarded the plaintiff $10,000 in compensatory damages. This appeal followed. Additional facts and procedural history will be set forth as necessary.

₁₄₆I

The defendant claims, for the first time on appeal, that the court abused its discretion by asking him questions during the trial, sua sponte, that went beyond the scope of what was permissible. The plaintiff argues that this court should not review the defendant’s claim because he did not preserve it at trial and did not adequately brief it before this court. We agree with the plaintiff.

[1–3] "Our appellate courts, as a general practice, will not review claims made for the first time on appeal…. [A]n appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level…. [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court…. [T]o permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party." (Citations omitted; internal quotation marks omitted.) Westry v. Litchfield Visitation Center, 216 Conn. App. 869, 878–79, 287 A.3d 188 (2022); see also Practice Book § 60-5 (court shall not be bound to consider claim unless it was distinctly raised at trial).

[4–7] Furthermore, "[i]t is well settled that [w]e are not required to review claims that are inadequately briefed…. We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly…. [F]or this court judiciously and efficiently to consider claims of error raised on appeal … the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed." (Internal quotation marks omitted.) Nowacki v. Nswacki, 129 ₁₄₇Conn. App. 157, 163–64, 20 A.3d 702 (2011). "Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is...