W. K. v. M. S.

212 Conn.App. 532

275 A.3d 232

W. K.

v.M. S.^*

AC 44543

Appellate Court of Connecticut.

Argued February 2, 2022

Officially released May 17, 2022

Sally R. Zanger, Middletown, for the appellant (defendant).

Bright, C. J., and Alvord and Lavine, Js.

LAVINE, J.

The defendant, M. S., appeals from the judgment of the trial court granting an application for a civil protection order filed by the plaintiff, W. K.¹ On appeal, the defendant claims that the court erred (1) when it, sua sponte, took judicial notice of the contents of a summary process complaint against him without giving him notice and an opportunity to be heard, (2) by finding the defendant less credible because he did not appear at the hearing, (3) when it, sua sponte, took judicial notice of and relied on a previous application for a protective order filed by the defendant against the plaintiff without giving the defendant notice and an opportunity to be heard, and (4) by finding sufficient evidence to grant the application for the order of civil protection. We agree with the defendant's first and second claims and, accordingly, reverse the judgment of the court and remand this case with direction to vacate the order of civil protection. Because we conclude that the court committed reversible error with regard to those claims, we need not address the remaining claims.

The following procedural history is relevant to this appeal. The parties are neighbors and have lived in adjoining apartment units in Torrington since July, 2020. Both parties have called the police to report various disputes between them, and the police have instructed the parties to stay away from one another. Additionally, the plaintiff reported to the police dangerous actions that the defendant allegedly had taken against other neighbors.

On January 5, 2021, the plaintiff, pursuant to General Statutes § 46b-16a, filed an application for an order of civil protection against the defendant and obtained an ex parte order of civil protection against the defendant.²

In his application, the plaintiff made the following allegations. The defendant had: "vandalized [the plaintiff's] apartment"; "made false accusations to the police trying to get [the plaintiff] arrested"; "[thrown] a rock, causing [the plaintiff] injury"; "thrown feces at [the plaintiff's] window"; "smashed [the plaintiff's] window"; "poisoned [the plaintiff's] garden with ammonia or urine, not sure which"; "[drawn] swastikas outside of [the plaintiff's] door"; "given [the plaintiff] the Nazi salute"; and made anti-Semitic remarks directed at the plaintiff. The plaintiff also alleged that, "[a]fter a failed [frivolous] attempt to get a restraining order against [the plaintiff], [the defendant] punched [the plaintiff's] car and left a note admitting to it." On a separate occasion, he alleged, a witness saw the defendant "[put six] M-90 explosives under [the plaintiff's car] ...."³ The plaintiff further alleged: "There is a 911 call in which [the defendant can be heard] threatening [the plaintiff] and behaving violently ...." Additionally, the plaintiff stated that the defendant "is being evicted" and that the Housing Authority of the City of Torrington (housing authority) "has records of times and dates of the dozens of incidents." On January 13, 2021, the defendant filed an objection to the ex parte civil protection order.

The court held an evidentiary hearing on the plaintiff's application for a protective order on January 29, 2021. The plaintiff testified about the allegations in his application and did not offer any exhibits. The defendant did not testify and was not present at the hearing.⁴ The defendant's attorney, Sally Zanger, called Officer Joseph DeGoursey of the Torrington Police Department as a witness to testify about police reports prepared by the department. The defendant, through Zanger, offered into evidence four police reports detailing incidents between the plaintiff and the defendant, as well as the defendant's alleged conduct toward others in the neighborhood. The reports were admitted into evidence as full exhibits.

In issuing the order of civil protection, the court stated: "In making its decision, the court ... notes the following factors. Number one, the court is the ultimate arbiter of credibility in a courtside case. The court can also take judicial notice of its own files, both in this case and in other cases.

"That being said, the court finds that [the defendant's] position is much less credible, rendered so by the fact that [the defendant] chose not to appear today. [The defendant's] position is, also, much less credible because the court takes judicial notice of the summary process file in which lawyers, who are bound by the Rules of Professional Conduct, made allegations of serious nuisance, many of the same of which—I'm issuing my ruling, counsel, don't raise your hand—they made many of the same allegations, which buttresses some of the allegations that the [plaintiff] made today.

"The court also finds that a couple of weeks ago there was a reverse civil protective order hearing, in effect, in which [the defendant] was trying to get a protective order against [the plaintiff] and Judge Shaban decided there was not enough evidence there for that."

The court, pursuant to § 46b-16a, issued an order of civil protection against the defendant and stated: "The court has no doubt that this is a neighbor dispute. The court has no doubt that there are mental health issues involved on behalf of the [defendant]. However, the court finds that the [defendant] has thrown a rock at the [plaintiff], the [defendant] has brandished bug spray at the [plaintiff], the [defendant] has brandished a flashlight at the [plaintiff],⁵ the [defendant] has made anti-Semitic remarks against the [plaintiff].

"Therefore, the court is going to issue a civil order of protection with the following terms. The [defendant] is to surrender or transfer all firearms and ammunition; the [defendant] is not to assault, threaten, abuse, harass, follow, interfere with or stalk the protected person. I don't think I can order a stay away because their doors are right next to each other. [F]or the present time, I think that would [be] impossible to enforce." (Footnote added.)

When the court stated that it was taking notice of "the summary process file," it was referring to a summary process complaint filed by the housing authority against the defendant on August 10, 2020. On January 19, 2021, the housing authority withdrew its action against the defendant. Following the court's oral ruling granting the order of protection and as the court was transitioning to its next case, Zanger attempted to inform the court that the summary process action had been withdrawn. The following exchange occurred between Zanger and the court:

"[Zanger]: (Inaudible) matter was withdrawn.

"The Court: Thank you. I didn't hear what she said; did you?

"[The Clerk]: I don't think we wanted to."

The court did not inquire further about Zanger's remarks.

On the day of the hearing, following its oral decision, the court issued a written order stating: "This order shall supplement and clarify the court's remarks from the bench in granting this civil protective order. The court did not find, as independent facts, the allegations of the summary process matter against the [defendant], which has been withdrawn. However, the court found that the allegations of serious nuisance included in that action, which were made by attorneys who are bound by the Rules of Professional Conduct, including rules 3.3 and 4.1, as well as by [§] 10-5 of the ... Practice Book, buttress the credibility of the [plaintiff] when he testified as to threatening actions taken against him by the [defendant]." This appeal followed. Additional procedural history will be set forth as necessary.

I

The defendant claims that the court erred when it, sua sponte, took judicial notice of the contents of a summary process complaint against him without giving him notice and an opportunity to be heard. We conclude that the court's taking of judicial notice was improper both in form and in substance. We agree that the court should have given the defendant notice and an opportunity to be heard. The more concerning error, however, was the court's reliance on the allegations in the summary process complaint in finding the plaintiff credible in the present case. We will address that error further in part III of this opinion.

The following additional procedural history is relevant. The summary process complaint filed by the housing authority contained, among other things, the following allegations: (1) "[O]n or about July 18, 2020, the defendant lit and threw a fire bomb (M-90s)⁶ at the direction of a porch of a biracial couple who live across the street from [the] defendant's unit" (footnote added); (2) "[o]n or about July 16, 2020, the defendant placed three ... M-90s under another tenant's car"; (3) "[o]n July 20, 2020, the defendant chased a neighboring tenant into [the] tenant's apartment and threatened [the] tenant with a flashlight"; and (4) "[o]n or about July 16, 2020, the defendant threw M-90s out of [the] defendant's unit and almost hit a child across the street from [the] defendant's unit ... [and] [t]he local police department has been called several times." On January 19, 2021, the housing authority withdrew its action against the defendant. At the January 29, 2021 hearing in the present case, the court, sua sponte, took judicial notice of the complaint. When the court stated that it was doing so, Zanger raised her hand. The court did not permit her to speak.

"A trial court's determination as to whether to take judicial notice is essentially an evidentiary ruling, subject to an abuse of discretion standard of review. ... In order to establish reversible error, the [defendant] must prove both an abuse of discretion and a harm that resulted from such abuse. ... In reviewing a trial court's evidentiary ruling, the question is...