212 Conn.App. 532
Conn. App. Ct.2022Background:
- Neighbors in adjoining Torrington apartments with history of disputes and police involvement; plaintiff filed ex parte civil protection application (Jan 5, 2021) alleging vandalism, a thrown rock, feces at window, smashed window, anti‑Semitic remarks and symbols, and placement of M‑90 firecrackers under vehicles.
- Housing Authority filed a summary process complaint against the defendant (Aug 10, 2020) alleging similar serious nuisance conduct; that summary process action was withdrawn on Jan 19, 2021.
- Hearing on the plaintiff’s civil protection application held Jan 29, 2021: plaintiff testified; defendant did not appear or testify but was represented by counsel (Zanger), who introduced four police reports into evidence.
- Trial court, sua sponte, took judicial notice of the summary process complaint and stated the housing authority’s allegations "buttress[ed]" the plaintiff’s credibility; court also stated defendant’s position was less credible because he did not appear.
- Court issued a civil protection order (firearm surrender, prohibitions on threats/harassment); defendant appealed arguing (inter alia) improper judicial notice without notice and impermissible credibility finding based on nonappearance.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court properly took judicial notice of and relied on the contents of the Housing Authority’s summary process complaint without giving notice or a hearing to defendant | The court may note existence and content of court files and the similar allegations support the plaintiff’s credibility | Taking judicial notice of adjudicative allegations that are susceptible to contradiction without notice deprived defendant of opportunity to explain or contradict; reliance on those allegations to find facts was improper | Court erred: judicial notice of existence/content might be allowed, but taking and relying on unproven adjudicative allegations without notice/opportunity to be heard was improper and harmful |
| Whether court properly found defendant less credible because he did not appear at hearing | Plaintiff’s testimony was credible; nonappearance supports adverse inference | Defendant was represented by counsel and did not testify; absence is not evidence and cannot support a credibility finding about a non‑testifying party | Court erred: cannot make a credibility determination about nonappearing, non‑testifying defendant; reliance on absence as diminishing credibility was improper |
| Whether the errors were harmless or required reversal of the protective order | The total record supported findings and order | The combination of reliance on withdrawn/unproven allegations and the adverse credibility assessment caused harm warranting reversal | Errors were not harmless; reversal and vacatur of the civil protection order directed |
Key Cases Cited
- Moore v. Moore, 173 Conn. 120 (distinguishes judicial notice for legislative vs adjudicative facts)
- Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747 (court may not use a party’s courtroom conduct as substantive evidence on unrelated issue)
- Rogalis, LLC v. Vazquez, 210 Conn. App. 548 (abuse of discretion standard for evidentiary rulings)
- State v. Gaines, 257 Conn. 695 (court files may be judicially noticed for existence/content but not truth of allegations)
- Fox v. Schaeffer, 131 Conn. 439 (judicial notice of files does not establish truth of facts stated therein)
- O’Connor v. Laroque, 302 Conn. 562 (illustrative discussion of judicial notice limits)