Burke v. Mesniaeff

• Decision Date: 07 November 2017
• Docket Number: AC 38350
• Citation: 177 Conn.App. 824,173 A.3d 393
• Court: Connecticut Court of Appeals
• Parties: Elizabeth BURKE v. Gregory MESNIAEFF

177 Conn.App. 824

173 A.3d 393

Elizabeth BURKE

v.Gregory MESNIAEFF

AC 38350

Appellate Court of Connecticut.

Argued February 15, 2017

Officially released November 7, 2017

Campbell D. Barrett, with whom were Johanna Katz and, on the brief, Anne C. Dranginis, Jon T. Kukucka, Gabrielle Levin and Naomi Takagi, pro hac vice, for the appellant (plaintiff).

Charles S. Harris, with whom was Stephanie C. Laska, for the appellee (defendant).

Lavine, Keller and Bishop, Js.

LAVINE, J.

In this personal injury action, the plaintiff, Elizabeth Burke, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, her former husband Gregory Mesniaeff. On appeal, the plaintiff claims that (1) the court improperly charged the jury on the defendant's special defense of justification and (2) the special defense of defense of others was legally and factually barred. We affirm the judgment of the trial court.

The following relevant evidence was presented to the jury. The plaintiff and the defendant married one another in 1989. On December 5, 2009, the date of the incident that is the subject of the present appeal (incident), the parties resided together in their home in New Rochelle, New York. The defendant, however, purchased a house in Sharon in 1998 and recorded the deed in his name alone. According to the defendant, the plaintiff never lived in the Sharon house, except for two weeks in August, 2002. The plaintiff, however, testified that the parties spent extensive amounts of time at the Sharon house. She testified that she had painted the interior of the house in a color scheme that she had selected, had a key to the house, and kept clothing and other personal belongings there.

The defendant was a member of a historic preservation organization called The Questers. The Questers facilitated a tour of the Sharon house that the defendant arranged to take place between 2:30 and 4 p.m. on December 5, 2009. The defendant intentionally did not tell the plaintiff about the tour, did not invite her to attend, and did not want her to attend because she was not a member of The Questers. He also was "afraid that there could be some problems if she was there."¹ The plaintiff, however, learned of the tour the morning of December 5, 2009, when she went online to find out when the Sharon Christmas tree lighting ceremony was to take place. While she was online, she saw The Questers' posting regarding the tour of the Sharon house. The plaintiff was concerned about the cleanliness of the Sharon house because the defendant set cleaning limits. She telephoned the defendant at his Manhattan office, but was unable to reach him. According to the plaintiff, the parties had plans to attend a Christmas party in Manhattan that evening, but the defendant denied having such plans.

Although it snowed on December 5, 2009, the plaintiff drove to Sharon because the defendant had been "lying to [her] about everything and [she] knew that when [she] met him in Manhattan later that night, he would deny that such a tour took place. And [she] couldn't take the lying anymore and he would deny it and [she] was hoping to talk to him and figure out why he was lying to [her] about everything." On her way to Sharon, the plaintiff called some of her friends to advise them that she was going to surprise and confront the defendant about his alleged lying. She also stopped at Powers' greenhouse and told Laurel Powers and Eddie Powers that the defendant "had been physically violent with [her] before and there was a possibility that that could happen again so [she] wanted them to make sure that they heard from [her] and to check on [her]." As a safety precaution, the plaintiff planned to arrive at the end of the tour when people were still in the house.

The plaintiff arrived at the Sharon house at approximately 4:15 p.m. Three women, Anne Teasdale, Suzanne Chase Osborne, and Lauren Silberman, were taking part in the tour when she arrived. The plaintiff did not park her car in the driveway, but near the guest cottage and walked down the driveway to the Sharon house. She entered the house by the back entry. Teasdale testified that, when the plaintiff walked into the house, she was yelling. According to one of the guests, the plaintiff was out of control when she entered the house, shrieking and yelling, "who is that woman and what is she doing in my house." One guest "didn't know if our lives were in danger [or if the plaintiff] had a gun and she was going to go after [the defendant]."

The defendant testified that when the plaintiff entered the house, she was enraged, repeatedly screaming in a shrill voice: "Who is that woman? Why is she in my house?" The defendant confronted the plaintiff and stated, "you are leaving now." The plaintiff admitted that the defendant asked her to leave. The defendant took the plaintiff by the upper right arm and walked her down the driveway. Out a window, one of the guests saw the defendant holding the plaintiff by the arm. While they were walking down the driveway, the plaintiff attempted to break from the defendant's grasp and return to the house. The plaintiff was screaming, and one of the guests "was really worried about our safety, my safety, everyone's safety."

According to the defendant, while he and the plaintiff were walking down the driveway, the plaintiff resisted and attempted to strike him in the face. He admitted that he restrained the plaintiff from returning to the Sharon house where the guests remained. He also admitted that he caused bruises to the plaintiff's upper arm, but he denied that he caused other injuries to the plaintiff.

The plaintiff's version of the incident differs from that of the defendant. She denied that she tried to strike the defendant. According to her, the defendant grabbed her by the arm, pulled her away from the Sharon house, put her in a headlock, and dragged her down the driveway and up the sidewalk toward the Sharon Center School. While he was dragging her, the defendant forcefully threw the plaintiff to the ground several times and pulled her up by her arm. The plaintiff screamed: "Help, help! Call the police!" The defendant denied throwing the plaintiff to the ground but testified that the plaintiff slipped once or twice on the snow and that he helped her up.

At the time, Pierce Kearney and his wife were driving by on their way to the Christmas tree lighting ceremony on the Sharon green. Kearney saw the plaintiff being pushed into the snow. He slowed down, opened the window, and heard the plaintiff calling for someone to call the police. Kearney thought that the defendant was handling the plaintiff in an aggressive fashion. He got out of his vehicle and approached the parties, who then separated. The defendant stated to him, "It's okay, she's my wife." Kearney got between the parties and stated, "No, this is over." Kearney's wife called the police. The defendant left the sidewalk, returned to the Sharon house, and departed with the tour guests.

The plaintiff commenced the present action on December 6, 2011.² Trial commenced on August 4, 2015. Following the presentation of evidence, the court held a charge conference on the record, at which time the court heard considerable argument from the parties' counsel with respect to its proposed instructions. The parties, however, agreed on the interrogatories that were submitted to the jury.³

The jury returned a defendant's verdict on August 18, 2015. Although the jury found that the defendant's conduct toward the plaintiff on December 5, 2009, constituted intentional assault and battery and was a substantial factor in causing the plaintiff's injuries, it also found that the plaintiff's recovery was barred by the special defenses of justification and defense of others. See footnotes 3 and 6 of this opinion. The court rendered judgment in favor of the defendant, and the plaintiff appealed.⁴

The plaintiff's claims on appeal center on the court's jury charge. We therefore set forth the applicable standard of review. "Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and ... are not to be judged in artificial isolation from the overall charge.... The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict ... and not critically dissected in a microscopic search for possible error.... The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict.... We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial....

"Our standard of review on this claim is whether it was reasonably probable that the jury was misled....

The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn. App. 555, 558–59, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001), cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002).

To determine whether the court properly charged the jury, we look to the law regarding a court's instructions. "Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case." (Internal quotation marks omitted.) Cooks v. O'Brien Properties, Inc., 48 Conn. App. 339, 350, 710 A.2d 788 (1998). "[P]leadings have their place in our system of jurisprudence. While they are not held to the strict and...