Mirjavadi v. Vakilzadeh

• Decision Date: 24 September 2013
• Docket Number: No. 18813.,18813.
• Citation: 74 A.3d 1278,310 Conn. 176
• Court: Connecticut Supreme Court
• Parties: Leyla MIRJAVADI et al. v. Anthony VAKILZADEH et al.

310 Conn. 176

74 A.3d 1278

Leyla MIRJAVADI et al.

v.Anthony VAKILZADEH et al.

No. 18813.

Supreme Court of Connecticut.

Argued Dec. 5, 2012.

Decided Sept. 24, 2013.

Lloyd D. Pedersen, with whom, on the brief, was Catherine A. Stewart, Hartford, for the appellant(defendantMaria Varone).

Brenden P. Leydon, Stamford, for the appellee(named plaintiff).

NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

ZARELLA, J.

The named plaintiff, Leyla Mirjavadi,¹ brought this action in negligence against the defendantMaria Varone, among others,² following the abduction of the plaintiff's two year old daughter by the daughter's father, from whom the plaintiff was seeking a divorce, during a visit supervised by the defendant at a shopping mall.The defendant appeals from the judgment of the Appellate Court, which reversed the judgment of the trial court in favor of the defendant on the ground that the trial court's flawed analysis of causation and foreseeability, in combination with two clearly erroneous factual findings, undermined the Appellate Court's confidence in the trial court's conclusion that the defendant had not been negligent.The defendant claims that the Appellate Court's conclusions were incorrect and that reversal of the judgment was unwarranted.The plaintiff argues to the contrary.We affirm the judgment of the Appellate Court.

The following relevant facts and procedural history are set forth in the Appellate Court's decision.“The plaintiff and Orang Fabriz were Iranian citizens, married to one another,³ who came to the United States in 1995 with [their daughter] Saba to visit relatives.While in the United States, the plaintiff filed for divorce from Fabriz and was granted political asylum.The plaintiff was represented by attorney Barbara Green during the divorce proceedings.

“While the divorce was pending, Fabriz was granted visitation rights with respect to Saba.It was agreed, however, that these visits would be supervised at all times.Initially, the supervised visitations occurred at the house of the plaintiff's brother ... but the location had to be moved due to outbursts by Fabriz.After one visit was held at the Stamford police station, the plaintiff and Fabriz agreed to hold visits at the office of a family therapist, Barbara Ivler.Eventually, because these visits were successful, Ivler recommended that the visits occur in a more natural setting.To facilitate visitation outside Ivler's office, the plaintiff, upon Green's recommendation, hired the defendant to supervise them.

“On October 5, 1996, the defendant supervised an afternoon visit between Fabriz and Saba scheduled to last from 2 until 5 p.m. at the Stamford Town Center mall.As was the usual practice, the plaintiff took Saba to the mall and left her with the defendant for the visit.Also, as had become the usual practice, the uncle of both the plaintiff and Fabriz, Anthony Vakilzadeh, was present to participate in the visit.

“At the beginning of the visit, the defendant accompanied Fabriz, Saba and Vakilzadeh to a restaurant in the mall.Soon after entering the restaurant, Fabriz left with Saba and went to a bookstore across from the restaurant.When the defendant could not locate Fabriz and Saba in the bookstore, Vakilzadeh told her that Fabriz [might] be shopping with Saba for a coat or that he[might] be resting somewhere because he had not been feeling well that day.Vakilzadeh later that day told the defendant that, according to his wife, Fabriz had left the mall to go to Washington, D.C., for legal advice.

“Unbeknownst to the defendant, prior to the October 5, 1996 visit, Vakilzadeh had purchased two airplane tickets to Turkey for Fabriz and Saba.Additionally, Fabriz had arranged, using Vakilzadeh's credit card, for a limousine to transport him to the mall on October 5, 1996, and then to take him and Saba to John F. Kennedy International Airport (JFK airport).The police later determined that Fabriz and Saba had left the United States on a 6 p.m. flight on October 5, 1996, from JFK airport to Istanbul, Turkey.The plaintiff has not seen Saba since October 5, 1996, and has not received any communication from her during this period....

“The plaintiff commenced this action on July 14, 1998.Once the plaintiff withdrew her complaint as to Vakilzadeh, Green, and Green [and]Gross, P.C.; see footnote 2 of this opinion; the court ultimately was asked to determine liability only as to the defendant for negligence and breach of fiduciary duty.Specifically, the plaintiff alleged that the abduction was caused by the defendant's negligence and carelessness because she had failed to supervise the visitation properly in order to prevent Saba from being kidnapped; she had failed to report the kidnapping immediately to any authority or to the plaintiff; she had misrepresented the time the kidnapping occurred; she had failed to ensure that Fabriz did not have his passport during a supervised visitation; she had failed to prevent the kidnapping; she had failed to keep a proper lookout for Saba; she had been inattentive to her duties during the visit; and she had permitted Fabriz to be with Saba unsupervised.

“At the conclusion of trial, the court found in favor of the defendant, stating that [it was ‘unable to attach liability to [the defendant's] alleged failures' and that]‘[e]ach time a liability exposition has been attempted in draft by the court, its elements appear shaky, not cumulative, and hugely overwhelmed by the superseding intentional (and criminal) conduct of ... Fabriz and ... Vakilzadeh coupled with the uncertainty of the sporadic and vague information [the defendant] was provided along the continuum of the ongoing divorce.’ ”Footnotes altered.)Mirjavadi v. Vakilzadeh,128 Conn.App. 61, 63–65, 18 A.3d 591(2011).

The plaintiff appealed from the trial court's judgment to the Appellate Court, claiming that several of the trial court's factual findings were clearly erroneous because they were unsupported by the record or contradicted by the evidence.The plaintiff specifically claimed that the trial court improperly found that (1) the abduction could have occurred as late as after 4 p.m., (2)the parties had agreed to allow a law student to serve as a substitute supervisor for visitations if the defendant was unavailable, and (3) the original purpose of the supervised visitations, which was to thwart an attempted abduction, had been minimized by the date of the kidnapping.Id., at 67, 18 A.3d 591.

The Appellate Court agreed with the plaintiff that the first two findings were clearly erroneous and that the erroneous findings were harmful.Id., at 68–71, 18 A.3d 591.The court determined that the third purported finding as to the purpose of the supervised visitations, however, was “more akin to a legal conclusion” regarding causation and the foreseeability of an abduction;id., at 72, 18 A.3d 591; and that the trial court's analysis with respect to that claim was flawed.Id., at 73, 18 A.3d 591.Thus, because the trial court's flawed analysis of foreseeability, together with its two clearly erroneous factual findings, undermined the Appellate Court's confidence in the trial court's conclusion that the defendant had not been negligent, the Appellate Court reversed the trial court's judgment and remanded the case for a new trial.Id., at 77, 18 A.3d 591.

The defendant sought review of the Appellate Court's judgment with respect to all three findings, but this court limited certification to the first two findings.⁴Accordingly, the parties did not address the Appellate Court's decision as to the plaintiff's third claim regarding the purpose of the supervised visitations.We subsequently ordered supplemental briefing to address that claim,⁵ however, and, upon reviewing the parties' arguments, we agree with the Appellate Court that the trial court's foreseeability analysis was fundamentally flawed.

I

We first consider whether the Appellate Court properly concluded that the trial court's finding regarding the purpose of the supervised visitations by the time of the abduction was more akin to a legal conclusion subject to plenary review than a factual finding subject to a determination as to whether it was clearly erroneous.Although the defendant does not directly address this issue, the plaintiff contends that, “[a]s [the] issues developed in the case, in particular, after the postargument second articulation by the trial court and supplemental briefing by the parties, what originally had been cast as a factual finding became more clearly viewed as a legal conclusion subject to plenary review.”The plaintiff adds that, “[p]articularly, when a postargument articulation by the trial court itself refocuses the issues, it is proper for the reviewing court to determine and apply the appropriate standard of review to those issues regardless of how they were initially couched.”We conclude that the Appellate Court properly recast the plaintiff's original claim as a challenge to the trial court's legal conclusion regarding the foreseeability of an abduction.

It is well established that “[t]he ... determination of the proper legal standard in any given case is a question of law subject to our plenary review.”Fish v. Fish,285 Conn. 24, 37, 939 A.2d 1040(2008);see alsoHartford Courant Co. v. Freedom of Information Commission,261 Conn. 86, 96–97, 801 A.2d 759(2002).We thus exercise plenary review of the Appellate Court's decision to apply plenary review to the trial court's decision in the present case.Crews v. Crews,295 Conn. 153, 161, 989 A.2d 1060(2010).

The procedural history of this claim is complicated.In its memorandum of decision, the trial court made only one indirect reference to the purpose of the supervised visitations.Early in its recitation of facts, the court stated that, during the pendency of the divorce, “the earlier visitations between [Fabriz] and [Saba] were held at the home of a relative....