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TOWN OF BETHLEHEM ET AL. v.
FREDERICK ACKER ET AL.
(35463)
Beach, Keller and Borden, Js.
Argued February 11—officially released October 14, 2014
(Appeal from Superior Court, judicial district of
Litchfield, Trombley, J.)
Steven A. Colarossi, for the appellant-cross appellee
(named defendant).
Anthony F. DiPentima, for the appellee-cross appel-
lant (named plaintiff).
Opinion
BEACH, J. These appeals arise from an action alleging
animal neglect brought by the plaintiffs, the town of
Bethlehem (town) and Judy E. Umstead, town animal
control officer, against the defendants, Frederick Acker
and Connecticut Pets Alive, Inc., also known as the
Society for the Prevention of Cruelty to Animals of
Connecticut (SPCA of Connecticut), a nonprofit dog
rescue facility.1 On November 8, 2012, the plaintiffs
seized approximately sixty-five dogs from the defen-
dants’ facility pursuant to a search and seizure warrant
that had been issued on facts showing that the dogs,
which were being kept in an uninsulated barn with an
average temperature of 30 degrees Fahrenheit, were
neglected, in violation of General Statutes § 22-329a.
After a hearing, the trial court concluded that the
smaller breed dogs were neglected and transferred own-
ership of the smaller breed dogs to the town. The court
also concluded that the larger breed dogs were not so
neglected and ordered those dogs to be returned to
the defendants. The court also ordered the parties to
‘‘identify and agree as to how many of the smaller breed
dogs were removed by the plaintiff[s] and are currently
in [the plaintiffs’] custody,’’ and to cooperate to find
appropriate homes for those dogs.2 This appeal and
cross appeal followed.
On appeal, Acker claims that: (1) the court erred in
concluding that the smaller breed dogs were neglected
because (a) the court relied on a temperature standard
that does not legally exist, (b) the court’s finding that
the dogs were ‘‘kept in temperatures in or below the
thirties’’ was clearly erroneous, (c) the court erred in
concluding, as a matter of law, that ‘‘the doctrine of
predictive neglect’’ can be used to satisfy the neglect
requirement of § 22-329a, and (d) § 22-329a is unconsti-
tutionally vague as applied to the facts of this case
because it does not define neglect; (2) the court erred
in refusing to admit three forms of rebuttal testimony
offered by the defendant; and (3) the court erred in
granting the town’s request for injunctive relief. On
cross appeal, the town claims that the court erred in (1)
‘‘making individual subjective determinations of neglect
based upon whether the animals seized were ‘small
breed dogs’ or ‘those dogs not of the smaller breed’,’’
and (2) concluding that the larger breed dogs were
not neglected.
We conclude that (1) the court applied the correct
legal standards and properly determined that the
smaller breed dogs were neglected and that the larger
breed dogs were not neglected; (2) § 22-329a is not
unconstitutionally vague as applied to the facts of this
case; (3) the court did not err in declining to admit the
rebuttal testimony offered by the defendants; and (4)
the court did not err in granting the plaintiffs’ request
for injunctive relief and properly transferred ownership
of the smaller breed dogs to the town. The court’s order
directing the parties to agree among themselves which
of the dogs removed from the defendants’ facility are
smaller breed dogs, however, is vague. We therefore
reverse the judgment of the court only with respect to
its dispositional order and remand the case for further
proceedings, consistent with this opinion, in order (1)
to determine the precise number of dogs seized from
the defendants, and (2) to identify those dogs currently
in the plaintiffs’ possession who were adversely
affected by the cold temperatures and those who
were not.
The following facts, as found by the court, and proce-
dural history are relevant to our resolution of the issues
before us. On or about October 1, 2012, Acker began
operating a dog rescue facility in a leased barn in the
town. The barn was part of Sugar Mountain Farm and
was accessible via 310 Watertown Road in Morris.3 The
town provided Acker with a town kennel license for
the facility, which provided that the barn may house
up to eighty dogs.
On October 10, 2012, the owner of property located
at 310 Watertown Road made a roaming dog complaint
to the town animal control office after seeing a small
white dog loose in the area. Umstead was assigned to
investigate the complaint. When Umstead arrived at 310
Watertown Road, she observed a barn surrounded by
outdoor pens containing seventy-six dogs of various
sizes. Seventeen of the dogs were smaller in size and
were shivering in the rain. Umstead noted that the tem-
perature was 52 degrees Fahrenheit, according to her
town issued phone. Umstead spoke with Susan Fernan-
dez, one of the defendants’ employees, who informed
her that the barn was part of the defendants’ animal
rescue facility and that a dog had escaped. Before leav-
ing the facility, Umstead handed Fernandez and another
employee her business card and told them to call her
if they found the missing dog.
On October 11, 2012, Umstead received a phone call
from an employee of Sugar Mountain Farm. The
employee stated that she had seen a small white dog on
the side of Route 63, near the entrance to 310 Watertown
Road. Umstead responded and found a small white dog
on the side of Route 63. The dog, however, had died
and appeared to have been hit by a car. Umstead trans-
ported the deceased dog to Watertown Animal Hospital,
where it was checked for identification via an implanted
microchip. The microchip identified the dog as belong-
ing to the SPCA of Connecticut. Umstead then trans-
ported the deceased dog to 310 Watertown Road where
she spoke with Acker, who identified himself as the
director of the SPCA of Connecticut and identified the
dog as having come from his facility. Umstead then
issued Acker a roaming dog infraction for violating Gen-
eral Statutes § 22-364a.
On October 13, 2012, Umstead visited the defendants’
dog rescue facility. Unable to enter the barn because
no employees were present, Umstead sought to mea-
sure the interior temperature of the barn by standing
outside the barn and pointing a laser temperature gun
at a closed glass window. Umstead recorded a tempera-
ture of 28 degrees Fahrenheit. She then issued a written
warning informing the defendants that ‘‘[p]ursuant to
[Connecticut] General Statute[s] [§] 53-247 animal cru-
elty, you are hereby warned that you are in violation
of said law for at least [seventy-five] dogs on the prop-
erty. On Saturday [October 13, 2012] at 6:30 a.m., the
temperature in the closed barn housing said dogs was
28 degrees [Fahrenheit], recorded by Raytek mini temp
laser gun. This recording was done by animal control
and state police. This constitutes failure to give animals
proper care, and protect from the weather. You must
provide heat for all of the dogs to a temperature of at
least 55 degrees [Fahrenheit].’’
On October 17, 2012, Umstead again visited the defen-
dants’ animal rescue facility. This time, Umstead was
accompanied by Richard Gregan, an animal control offi-
cer with the state Department of Agriculture, and Ser-
geant Goncalves, a Connecticut State Police Officer.
Umstead observed that seventy-one dogs were being
housed in outdoor pens. Upon entering the barn,
Umstead observed that there were no heat sources.
Umstead spoke with one of the defendants’ employees,
who informed her that an additional forty-one dogs
would be arriving that evening. Umstead reminded the
employee that the town kennel license limited the total
number of dogs allowed at the animal rescue facility
to eighty dogs. She also informed the employee that
she was concerned as to whether the heating in the
barn was adequate to protect the dogs from cold tem-
peratures. Later that day, Umstead received a voice
mail from Acker in which he stated that every night the
smaller breed dogs were taken to the Monroe Town &
Country Veterinary Hospital where they were kenneled.
Gregan later contacted the veterinarian at the hospital,
David Basak-Smith, who informed him that the hospital
was not kenneling dogs on the defendants’ behalf.
At approximately 7:40 a.m. on November 8, 2012,
Umstead and state police Trooper Matthew Eagleston
arrived at the defendants’ facility to check on the condi-
tion of the animals. Unable to enter the barn because
no employees were present, Umstead proceeded to
measure the interior temperature of the facility by
standing outside the barn and pointing the laser temper-
ature device at a closed barn window. There was testi-
mony at trial that the laser temperature device reported
a temperature of 30 degrees Fahrenheit, on average.
Shortly after Umstead measured the temperature,
Meghan Amarante, one of the defendants’ employees,
arrived at the facility. Umstead spoke to Amarante and
asked her to sign a consent to search form. After receiv-
ing permission to enter the barn, Umstead entered and
observed sixty dogs in small crates. Umstead noticed
‘‘two small electric radiator type heaters’’ and that there
was ‘‘no visible insulation’’ in the facility. Using the
same laser temperature device, Umstead measured the
interior temperature a second time, this time by stand-
ing inside the barn and pointing the laser temperature
at various areas inside the barn. The evidence presented
at trial indicated that the second temperature recording
was approximately 30 degrees Fahrenheit.
At approximately 9 a.m., Umstead, concerned about
the health of the dogs, applied for a search and seizure
warrant. At approximately 12:30 p.m., the court, Mar-
ano, J., granted the application, thereby permitting
Umstead, pursuant to § 22-329a (b), to take physical
custody of all domestic animals found at 310 Watertown
Road. The warrant and subsequent seizure were based
on allegations that the animals were ‘‘neglected or found
cruelly treated in violation of § 53-247’’ because they
were being kept in an uninsulated shelter with an inte-
rior temperature of approximately 30 degrees Fahr-
enheit.
At approximately 3 p.m., Umstead, Eagleston,
Gregan, Goncalves, and veterinarian William Bradley
Davis, arrived at the defendants’ facility to execute the
warrant. When they arrived, Umstead noted that there
was no food or water in the crates containing the dogs,
and that ‘‘[s]ome [of the crates] had a lot of feces in them
and it was cold.’’ She also noted, and photographed, a
small dog who was visibly shaking in the cold tempera-
ture. Believing that the animals were neglected, the
plaintiffs seized ‘‘approximately sixty-five dogs’’ from
the defendants’ facility.4 Four of the dogs needed imme-
diate medical care and were taken to a veterinarian. The
remaining dogs were taken to various animal control
facilities throughout Connecticut. Several dogs who did
not receive immediate veterinary care later received
treatment for fleas and tapeworms.
On November 9, 2012, the plaintiffs filed an applica-
tion for an order to show cause and an application for
a temporary injunction, in which the plaintiffs sought
a temporary injunction prohibiting Acker from owning,
possessing, or controlling any animal.5 The plaintiffs
also filed a verified petition, pursuant to § 22-329a (c).
In the petition, the plaintiffs alleged that the recorded
temperature of approximately 32 degrees Fahrenheit
constituted neglect in violation of § 53-247 and asserted
the statutory right, pursuant to § 22-329a (b), to ‘‘take
physical custody of any animal upon issuance of a war-
rant finding probable cause that such animal is
neglected or is cruelly treated in violation’’ of § 53-247.
The petition sought, inter alia, a court order vesting the
town with temporary and permanent custody of the
seized dogs, as well as an order prohibiting Acker from
owning any of those animals. The court issued an order
to show cause, commanding the defendants to appear
before the court on November 19, 2012.
Beginning on November 19, 2012, the parties engaged
in a six day trial before the court, Trombley, J., on the
plaintiffs’ application and the court’s order to show
cause. On February 14, 2013, the court issued its find-
ings of fact and conclusions of law orally from the
bench. The court concluded that (1) the plaintiffs had
proven, by a fair preponderance of the evidence, that
on November 8, 2012, the ‘‘smaller breed dogs’’ were
neglected, and the court thus transferred ownership of
the smaller breed dogs to the town; and (2) the plaintiffs
had failed to prove, by a preponderance of the evidence,
that the ‘‘larger breed dogs’’ were neglected and thus
ordered that those dogs be returned to the defendants.
The court required the parties to meet in order to reach
an agreement regarding the exact number of dogs seized
and the number and identities of the smaller breed dogs.
The court also ordered the defendants to reimburse the
town for food, shelter, and care of the smaller dogs at
the statutory sum of $15 per day per dog; see General
Statutes § 22-329a (h); for the period November 8, 2012,
to February 14, 2013, in addition to paying for veterinary
bills for treatment provided to the smaller dogs during
that time period. This appeal and cross appeal followed.
Additional facts will be set forth as necessary.
I
ACKER’S APPEAL—NEGLECT OF SMALLER
BREED DOGS
Acker argues that the court erred in determining that
the smaller breed dogs were neglected pursuant to § 22-
329a. Specifically, he contends that (1) the court
improperly relied on a temperature standard that does
not legally exist; (2) the court’s finding that the dogs
were ‘‘kept in temperatures in or below the thirties’’
was clearly erroneous; (3) the court erred in applying
the doctrine of predictive neglect; and (4) § 22-329a
is unconstitutionally vague as applied to the facts of
this case.
A
Acker contends that the court’s conclusion that the
smaller dogs were neglected resulted from the court’s
use of a 55 degree Fahrenheit minimum temperature
standard. He argues that the use of this temperature
standard was incorrect, as a matter of law, because
neither the animal seizure statute, § 22-329a, nor the
specifically referenced penal statute, § 53-247, establish
a specific minimum temperature standard applicable
to nonprofit animal rescue facilities. He further argues
that the temperature standard employed by the court
was inappropriate because § 22-336-19 of the Regula-
tions of Connecticut State Agencies, which requires a
55 degree Fahrenheit temperature standard, applies
only to municipal dog pounds; there was no evidence
presented that the defendants’ facility was, at any time
relevant to these proceedings, a dog pound as defined
by the regulations.6 Acker also argues that the plaintiffs’
reference to § 22-344-7 of the Regulations of Connecti-
cut State Agencies, which applies to commercial ken-
nels, was irrelevant because it does not set, as Umstead
claimed at trial, a 55 degree temperature standard, but
rather only a ‘‘reasonable’’ temperature standard. We
are not persuaded. We conclude that the court properly
concluded that the smaller dogs were neglected and
that this conclusion was not based on an erroneous
statement or application of the law regarding animal
neglect.
The following additional facts are relevant to our
resolution of Acker’s claim. In its oral decision, the
court stated that on the basis of the evidence and testi-
mony presented: ‘‘[T]he court finds that as to the small
dogs, or the smaller breed dogs, the [town] has proven
by a fair preponderance of the evidence that they were
neglected within the meaning of §§ 22-329a and 53-247,
as interpreted by our Supreme Court in [State ex rel.
Gregan v. Koczur, 287 Conn. 145, 947 A.2d 282 (2008)]
and in light of the doctrine of predictive neglect.’’ The
court’s conclusion that the smaller dogs were neglected
was therefore based on two independent legal grounds:
(1) §§ 22-329a and 53-247, as interpreted by our
Supreme Court in Koczur, and (2) the doctrine of pre-
dictive neglect.7
We first address the standard of review applicable
to Acker’s claim. On appeal, our function is to determine
whether the trial court’s conclusion was legally correct
and factually supported. The meaning of neglect as used
in § 22-329a is a question of statutory interpretation,
over which our review is plenary. See, e.g., id., 152.
‘‘The application of a statute to a particular set of facts
is a question of law.’’ (Internal quotation marks omit-
ted.) In re Cameron C., 103 Conn. App. 746, 750–51,
930 A.2d 826 (2007), cert. denied, 285 Conn. 906, 942
A.2d 414 (2008). We therefore review Acker’s defini-
tional claim under the plenary standard of review.
‘‘The process of statutory interpretation involves a
reasoned search for the intention of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case . . . .’’ (Internal
quotation marks omitted.) Wasko v. Manella, 269 Conn.
527, 534–35, 849 A.2d 777 (2004). In seeking to deter-
mine that meaning, we first consider ‘‘the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) State ex rel. Gregan v. Koczur, supra, 287 Conn.
152–53. In the present case, we conclude, following
an examination of the language of § 22-329a and its
relationship to other statutes, that failure to provide
dogs with adequate protection from the weather consti-
tutes neglect.
Section 22-329a (b) provides in relevant part that ‘‘any
animal control officer . . . may take physical custody
of any animal upon issuance of a warrant finding proba-
ble cause that such animal is neglected or cruelly
treated in violation of section 22-236, 22-415, 53-247,
53-248, 53-249, 53-249a, 53-250, 53-251 or 53-252 . . . .’’
Section 22-329a (b) does not contain an independent
definition or standard of neglect. Instead, as the court
correctly noted, § 22-329a incorporates by reference the
standards of the specific statutes enumerated therein.
State ex rel. Gregan v. Koczur, supra, 287 Conn. 153.
The court correctly recognized, and the parties agreed,
that § 53-247 is the only relevant statute listed in § 22-
329a that applies to the defendants’ conduct. Accord-
ingly, to determine what constitutes neglect under § 22-
329a under the factual circumstances of this case, we
look to the language of § 53-247. Section 53-247 (a)
provides in relevant part: ‘‘Any person who . . .
deprives of necessary sustenance . . . any animal, or
who, having impounded or confined any animal, fails
to give such animal proper care or . . . fails to supply
any such animal with wholesome air, food and water,
or . . . having charge or custody of any animal . . .
fails to provide it with proper food, drink or protection
from the weather . . . shall, for a first offense, be fined
not more than one thousand dollars or imprisoned not
more than one year or both . . . .’’ (Emphasis added.)
It is reasonable to conclude that the neglect referred
to in § 22-329a includes the failure to provide necessary
protection from the weather.
Section 53-247 does not define or provide standards
for what constitutes ‘‘proper . . . protection from the
weather . . . .’’ General Statutes § 53-247 (a). More-
over, there is no provision in the statutory scheme that
contains such a definition. We therefore turn for guid-
ance, as directed by case law, to related provisions that
provide guidance for determining what is ‘‘proper . . .
protection from the weather . . . .’’ General Statutes
§ 53-247 (a).
We turn, then, to the Regulations of Connecticut State
Agencies. At trial, the parties and the court, correctly
recognized that there is a gap in our regulatory scheme;
although there are regulations that further define stan-
dards for ‘‘proper . . . protection from the weather’’
applicable to commercial kennels, municipal and town
dog pounds, and pet stores, there are no such regula-
tions that specifically pertain to nonprofit animal rescue
shelters. Although these regulations perhaps do not pre-
cisely fit, by direct definition, the scenario before us,
they are nevertheless instructive.8 Additionally, we note
that the court properly took judicial notice of these
regulations, as both parties had notice and copies of
the regulations, and neither party objected.
Section 22-344-7 of the Regulations of Connecticut
State Agencies, effective January 6, 1970, applies to
commercial kennels and provides that ‘‘[t]he kennel
temperature shall be maintained at a reasonable and
suitable level to promote the health and comfort of the
type of dog or dogs housed.’’ (Emphasis added.) Section
23-344-18a (a), effective April 26, 1989, applies to pet
shops and provides that ‘‘[p]et shops shall be suffi-
ciently heated to protect animals from the cold and to
provide for their health and comfort at all times. The
temperature of the air surrounding animals shall be
maintained, under normal conditions, at a minimum of
65 [degrees Fahrenheit] and a maximum of 78 [degrees
Fahrenheit], except for those animals which require
higher temperatures. Animals shall be provided protec-
tion from the direct rays of the sun.’’ (Emphasis added.)
Section 22-336-19 (a), effective April 26, 1993, applies
to ‘‘dog pounds’’9 and provides that ‘‘[t]hermostatically
controlled clean and sanitary heat shall be provided to
maintain a minimum temperature of fifty-five (55)
degrees Fahrenheit at floor level. At no time shall the
indoor temperature of the dog pound where dogs are
housed exceed ninety (90) degrees Fahrenheit.’’
(Emphasis added.)
Those regulations provide context for the court’s con-
clusion that interior temperatures of 30 degrees Fahren-
heit—far lower than analogous standards for other
types of dog facilities—constituted neglect with respect
to the smaller breed dogs. The court neither adopted
nor applied an improper legal standard. The court did
not legislate a new standard applicable to rescue facili-
ties; rather, it determined only whether, on the facts of
this case, the defendants provided proper protection.
The court’s conclusion is factually supported as well
by ample evidence in the record. First, the evidence
submitted at trial supports the court’s finding that the
interior temperature of the barn on November 8, 2012,
was approximately 30 degrees Fahrenheit. See part I B
of this opinion. Second, the record before us includes
testimony from veterinarians and animal control offi-
cers that establishes that interior temperatures of 30
degrees Fahrenheit are not adequate for smaller breed
dogs, especially given that many of the dogs in the
defendants’ care came from warmer climates such as
California and South Carolina. Third, there was testi-
mony from Umstead, Davis and Gregan that on Novem-
ber 8, 2012, they witnessed some of the smaller breed
dogs shivering in the cold and exhibiting visible signs
of stress.10 Therefore, on the basis of the record before
us, we conclude that the court properly determined that
the smaller dogs were neglected.
B
Acker appears to argue that the court’s finding that
the dogs were ‘‘kept in temperatures in or below the
thirties’’ was clearly erroneous because (1) ‘‘the only
measurement of temperature was not reliable,’’11 and
(2) some of the defendants’ employees testified at trial
that the interior temperature was not intolerable due
to the presence of indoor heaters. We disagree.
‘‘[A]ppellate review of a trial court’s findings of fact
is governed by the clearly erroneous standard of review.
The trial court’s findings of fact are binding upon this
court unless they are clearly erroneous in light of the
evidence and the pleadings in the record as a whole.
. . . We cannot retry the facts or pass on the credibility
of the witnesses. . . . A finding of fact is clearly errone-
ous when there is no evidence in the record to support
it . . . or when although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed.’’ (Internal quotation marks omitted.)
In re Kelsey M., 120 Conn. App. 537, 543, 992 A.2d 372
(2010). With those principles in mind, we will review
the evidence presented at trial in order to determine
whether the court’s determination is supported by the
evidence in the record.
Extensive evidence was presented at trial regarding
the interior temperature of the facility on the morning
of November 8, 2012. Umstead testified that she
recorded an interior temperature of 32 degrees Fahren-
heit—measured by using a laser temperature device
while standing in the interior of the facility. Davis, a
veterinarian, who was present at the time of the seizure,
testified that the temperature inside the facility was 30
degrees Fahrenheit and that some of the areas were
lower in temperature.12
In addition to evidence regarding the interior temper-
ature of the facility, substantial evidence regarding the
heating infrastructure in place at the facility was pre-
sented at trial. It was undisputed that there was no
insulation in the facility and that the only source of
heat was two or three small space heaters. Acker testi-
fied that the facility was a work in progress and that
insulation, lighting, and an industrial heater had not yet
been installed as of November 8, 2012. These improve-
ments, however, according to Acker, had been com-
pleted as of January 17, 2013.
There was also testimony from Basak-Smith, the
defendants’ veterinarian, that Acker’s statement to
Umstead that the smaller dogs were taken to Monroe
Town & County Veterinary Hospital each night to pro-
tect them from the cold was untrue. On the basis of
the evidence presented at trial, we conclude that the
court’s finding that the interior temperature was 30
degrees Fahrenheit was not clearly erroneous.
Acker points to testimony from two employees, Fer-
nandez and Amarante, who testified that the tempera-
ture inside the facility was comfortable. Amarante
testified that she was present at the facility on the
morning of November 8, 2012, and was washing all of
the dogs’ food and water bowls. She testified that she
was able to work comfortably wearing a thermal shirt
and a sweatshirt, without a winter coat. Acker argues
that if ‘‘the temperature in the [facility] was below freez-
ing, the ability of . . . Amarante to wash bowls would
have been impossible as water pipes would have frozen
. . . .’’ Fernandez testified that she believed the temper-
ature in the facility was approximately 50 to 55
degrees Fahrenheit.13
We do not determine the credibility of witnesses. See,
e.g., Gaynor v. Hi-Tech Homes, 149 Conn. App. 267,
272, 89 A.3d 373 (2014) (‘‘[w]e cannot retry the facts
or pass on the credibility of the witnesses’’ [internal
quotation marks omitted]). We are satisfied that the
court’s finding was supported by evidence in the record.
C
Acker argues that the court erred in concluding, as
a matter of law, that ‘‘the doctrine of predictive
neglect’’14 can be used to satisfy the neglect requirement
in the animal seizure statute, § 22-329a. He also argues,
alternatively, that even if the court correctly concluded
that the doctrine of predictive neglect can be used to
satisfy the neglect requirement, the court applied an
improper legal standard—that is, the court should have
applied a standard of proof greater than preponderance
of the evidence.15 The town argues that the court prop-
erly utilized the doctrine of predictive neglect in reach-
ing its conclusions of law and maintains that the court
was correct in applying the preponderance of the evi-
dence standard.
In its oral decision, the court stated: ‘‘[A]s to the small
dogs, or the smaller breed dogs, the [town] has proven
by a fair preponderance of the evidence that they were
neglected within the meaning of §§ 22-329a and 53-247,
as interpreted by our Supreme Court in Koczur and in
light of the doctrine of predictive neglect.’’
The court based its conclusion that the smaller breed
dogs were neglected on two independent grounds: (1)
as a result of their exposure to interior temperatures
averaging 30 degrees Fahrenheit, the smaller dogs were
‘‘in danger of imminent harm and were, therefore,
neglected’’ pursuant to § 22-329a and § 53-247 (a); and
(2) the doctrine of predictive neglect. Because we con-
clude that the court properly based its finding of neglect
on the standards set forth in §§ 22-329a and 53-247 and
Koczur, we need not determine the validity of the
court’s second finding grounded in the doctrine of pre-
dictive neglect.
D
Acker claims that ‘‘the ‘neglect’ standard as applied
to the [present] case is impermissibly vague and thus
constitutes a deprivation of [his] due process rights.’’
He argues that he did not have fair notice of the law
due to ‘‘the absence of a statutory definition of what
constitutes a suitable temperature for a rescue shelter
. . . .’’ (Citation omitted.) We disagree.
As a preliminary matter, we address the town’s asser-
tion that this claim is not reviewable because it was
not properly preserved for appellate review and that
Acker has not satisfied the requirements for appellate
review set forth in State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989). Acker did not raise the
claim at trial and did not request review of this claim
on appeal pursuant to Golding, but nevertheless seeks
review of his claim.16
A defendant, on appeal, ‘‘can prevail on a claim of
constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation clearly exists and clearly deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis
in original; footnote omitted.) Id.
Because Acker does not satisfy the third prong of
Golding—that a constitutional violation clearly exists
and clearly deprived him of fair trial—we conclude that
he cannot prevail on this claim.
‘‘A statute . . . [that] forbids or requires conduct in
terms so vague that persons of common intelligence
must necessarily guess at its meaning and differ as to
its application violates the first essential of due process.
. . . Laws must give a person of ordinary intelligence
a reasonable opportunity to know what is prohibited
so that he may act accordingly. . . . A statute is not
void for vagueness unless it clearly and unequivocally
is unconstitutional, making every presumption in favor
of its validity. . . . To demonstrate that [a statute] is
unconstitutionally vague as applied to [him], the [defen-
dant] therefore must . . . demonstrate beyond a rea-
sonable doubt that [he] had inadequate notice of what
was prohibited or that [he was] the victim of arbitrary
and discriminatory enforcement. . . . [T]he void for
vagueness doctrine embodies two central precepts: the
right to fair warning of the effect of a governing statute
. . . and the guarantee against standardless law
enforcement. . . . If the meaning of a statute can be
fairly ascertained a statute will not be void for
vagueness since [m]any statutes will have some inher-
ent vagueness, for [i]n most English words and phrases
there lurk uncertainties.’’ (Internal quotation marks
omitted.) State ex rel. Gregan v. Koczur, supra, 287
Conn. 156.
We interpret Acker’s claim to be that § 22-329a is
unconstitutionally vague as applied to the facts of this
case because the failure to provide ‘‘protection from
the weather,’’ which is specifically prohibited by § 53-
247 (a) and which provided the basis for the trial court’s
conclusion that he was subject to § 22-329a, constitutes
an elusive standard of neglect, and that neither § 22-
329a nor § 53-247 ‘‘provide for any temperature stan-
dards for rescue shelters’’ such as the defendants’
facility.
We agree with Acker that the phrase ‘‘proper . . .
protection from the weather’’ as used in § 53-247 (a)
may be susceptible to some degree of interpretation.
Our careful review of the record in the present case,
however, satisfies us that the defendants’ conduct came
within the ‘‘statute’s unmistakable core of prohibited
conduct . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Ehlers, 252 Conn. 579, 584, 750
A.2d 1079 (2000). The court found that on November
8, 2012, the defendants kept approximately sixty-five
dogs in small crates in an uninsulated barn. The barn
was heated by only two small space heaters. The court
found that the evidence demonstrated that the interior
temperature of the barn was approximately 30 degrees
Fahrenheit. The court found that the smaller dogs were
shivering due to the cold temperatures. The court also
found that the evidence amply demonstrated that the
smaller breed dogs and larger breed dogs would cope
differently with cold temperatures. We conclude that a
person of ordinary intelligence would know that keep-
ing smaller breed dogs in an uninsulated space with
an interior temperature of approximately 30 degrees
Fahrenheit constitutes failure to provide proper protec-
tion from the weather. We conclude, therefore, that
§ 53-247 (a) is not vague as applied to the facts of this
case by § 22-329a. See State ex rel. Gregan v. Koczur,
supra, 287 Conn. 157.
II
ACKER’S APPEAL—REBUTTAL EVIDENCE
Acker next claims that the court erred in not allowing
certain testimony to be admitted in rebuttal regarding
(1) the ‘‘applicable standards of care for dogs in rescue
facilities’’; (2) ‘‘care of a select group of the seized
animals, which had been relocated to a municipal dog
pound in which they were observed outside on a very
cold evening’’; and (3) ‘‘the use of space heaters in
another rescue shelter.’’
We first set forth the standard of review governing
Acker’s evidentiary claims. ‘‘Unless an evidentiary rul-
ing involves a clear misconception of the law, the [t]rial
court has broad discretion in ruling on the admissibility
. . . of evidence. . . . The trial court’s ruling on evi-
dentiary matters will be overturned only upon a show-
ing of a clear abuse of the court’s discretion. . . . We
will make every reasonable presumption in favor of
upholding the trial court’s ruling . . . . The harmless
error standard in a civil case is whether the improper
ruling would likely affect the result. . . . When judging
the likely effect of such a trial court ruling, the reviewing
court is constrained to make its determination on the
basis of the printed record before it. . . . In the
absence of a showing that the [excluded] evidence
would have affected the final result, its exclusion is
harmless.’’ (Citation omitted; internal quotation marks
omitted.) Dinan v. Marchand, 279 Conn. 558, 567, 903
A.2d 201 (2006).
A
Acker claims that the court abused its discretion and
that he was deprived of his constitutional right to due
process when the court did not permit him to introduce,
as rebuttal evidence, the testimony of Jimmy Gonzalez,
chief animal control officer for Bridgeport, regarding a
‘‘standard of care for animal rescue facilities.’’ We
disagree.
The following additional facts are relevant to our
resolution of Acker’s claim. On November 19 and 20,
2012, the plaintiffs called Umstead as a witness.
Umstead testified that her main concern regarding the
animals was that they were being kept in 30 degree
Fahrenheit temperatures. When asked about the basis
of her opinion that the dogs were neglected, Umstead
referenced §§ 22-336-13 to 22-336-30 of the Regulations
of Connecticut State Agencies. The defendants’ attor-
ney conducted a cross-examination of Umstead, in
which she asked Umstead to explain further the factors
that led her to conclude that the dogs were neglected.
On cross-examination, Umstead testified that, although
the regulations referenced did not apply specifically to
rescue facilities, such as the defendants’ facility, they
did provide temperature guidelines Acker should keep
in mind in running his animal rescue operation.
On December 12, 2012, after Gonzalez was sworn in
as a witness for the defendants, the following collo-
quy occurred:
‘‘[The Defendants’ Counsel]: . . . [W]hat kind of
training have you had to become an animal control
officer?
‘‘[Gonzalez]: Um, myself, I’ve taken many different
online courses, I am a humane education instructor for
the Police Officers Standards and Training Counsel. I
am also a certified pet first aid and CPR trainer for the
Red Cross.
‘‘[The Defendants’ Counsel]: Thank you. And were
you present when Ms. Umstead was testifying about
her certifications?
‘‘[Gonzalez]: Yes, I was. . . .
‘‘The Court: Counsel, was he present at the time that
the dogs were seized by way of a warrant?
‘‘[The Defendants’ Counsel]: He was not present that
day, Your Honor. No.
‘‘The Court: Are any of the dogs in the Bridgeport
facility under his control?
‘‘[The Defendants’ Counsel]: No, Your Honor.
‘‘The Court: What is the purpose of his testimony?
‘‘[The Defendants’ Counsel]: The purpose of his testi-
mony Your Honor, is that he is an animal control officer
with credentials and experience necessary to refute the
testimony of Ms. Umstead as to the standard of care
that is routinely provided, not only by animal control,
but also by those who house large quantities of animals.
‘‘The Court: The standard of care was established
through the [town’s] perspective by the doctor who
testified; that’s the standard of care that the court’s
going to accept in light of the testimony from both sides
as to what was at that facility. This gentleman wasn’t
at the facility; this gentleman doesn’t have any control
over any of the animals that were taken; I don’t see any
relevance . . . to anything he’s going to tell me . . . .
‘‘[The Defendants’ Counsel]: Your Honor . . . I don’t
believe it is fair to [Acker] for this court to make a
finding that the [town’s] expert veterinarian is the only
one who can establish a standard of care when a veteri-
narian’s standard of care may be quite different than
the standard of care commonly adopted by those who
house large numbers of animals on a temporary basis.
And I wanted it noted on the record that those are
completely separate standard[s] of care similar to the
standard of care provided by, for example, a personal
physician versus a free clinic, a similar analysis. [Acker]
has had zero opportunity to present any expert witness
as to our position of the standard of care, and that is
the purpose of this witness.
‘‘The Court: Well, do you plan to present the veterinar-
ian? I understand that you have a veterinarian that’s
going to testify.
‘‘[The Defendants’ Counsel]: I do have a veterinarian.
‘‘The Court: Then your veterinarian can tell me about
the standard of care for dogs, large and small, that was
testified to by the [town’s] veterinarian, and I could
then make a determination as to which expert testimony
I believe with regard to the standard of care. . . . And
by the way, the standard of care is set forth in the
statute and by the Supreme Court decision that I pointed
out this morning. That’s the standard of care that the
court’s going to follow.
‘‘[The Defendants’ Counsel]: So, to be very clear, Your
Honor is stating that the only person you will listen to
regarding standard of care is a veterinarian?
‘‘The Court: And my interpretation of the statute and
the case . . . that I referred to this morning.
‘‘[The Defendants’ Counsel]: But Your Honor allowed
Ms. Umstead to testify about the standard of care. She’s
an animal control officer, and she was allowed to testify
about the standard of care. I believe I have a right
to refute her testimony [with testimony] from another
animal control officer.
‘‘The Court: All right. Attorney [for the plaintiffs], let
me ask you a question. Are you going to, in rebuttal,
produce another animal control officer to contradict
what you anticipate [Gonzalez is] going to say?
‘‘[The Plaintiffs’ Counsel]: Your Honor, if we’re going
to go down this ridiculous—
‘‘The Court: That’s exactly what you’re going to do,
isn’t it?
‘‘[The Plaintiffs’ Counsel]: —course of action I will
produce all 163 animal control officers in . . . Con-
necticut.
‘‘The Court: Yeah, well, we’re not going there.’’
Our law provides trial courts ‘‘wide discretion in
admitting rebuttal testimony and in determining rele-
vancy. . . . A plaintiff’s rebuttal testimony is ordinarily
limited to such purposes as refuting the defendant’s
evidence and impeaching or rehabilitating witnesses.’’
(Citations omitted.) Beinhorn v. Saraceno, 23 Conn.
App. 487, 493, 582 A.2d 208 (1990), cert. denied, 217
Conn. 809, 585 A.2d 1233 (1991). ‘‘In considering
whether a trial court has abused its discretion, appellate
courts view such a trial court ruling by making every
reasonable presumption in favor of the decision of the
trial court.’’ (Internal quotation marks omitted.) Hack-
ling v. Casbro Construction of Rhode Island, 67 Conn.
App. 286, 291–92, 786 A.2d 1214 (2001).
Acker contends that Umstead articulated a standard
of care that did not apply to the defendants because
the 55 degree Fahrenheit minimum temperature
requirement she referred to in her testimony applies
only to dog pounds, which the regulations define as an
entity managed or controlled by a city or municipality.
Acker contends that the defendants should have been
able to introduce the testimony of Gonzalez regarding
the applicable standard of care for animal rescue opera-
tions in order to rebut the testimony of Umstead, and
that the court’s exclusion constituted an abuse of dis-
cretion. The town contends that the court did not abuse
its discretion because Gonzalez was not present at the
facility at the time the animals were seized. The town
also argues that the defendants were not deprived of
the opportunity to offer rebuttal evidence regarding the
standard of care at animal rescue facilities because the
court allowed them to offer the testimony of Basak-
Smith on the issue of the standard of care for animal
rescue facilities.
The court articulated several reasons for not allowing
the testimony of Gonzalez: (1) the ‘‘standard of care’’
the court would apply—‘‘proper . . . protection from
the weather’’—was to be found in the statutes, that is,
§§ 22-329a and 53-247 (a);17 (2) the court would permit
the defendants to introduce the testimony of Basak-
Smith, a veterinarian; and (3) the proposed line of ques-
tioning would result in protracting the proceedings sub-
stantially.
The court did not abuse its discretion in excluding
Gonzalez’ testimony. First, the court articulated several
times throughout the trial of the case that the ‘‘standard
of care’’ was statutory. Second, the defendants had the
opportunity to cross-examine Umstead. Third, the court
did not deny the defendants the ability to present any
evidence rebutting Umstead’s testimony; it permitted
the defendants to introduce the testimony of Basak-
Smith on issues including exposure to light, food and
water intake, and temperature. On the basis of the
record before us, Acker has not shown that the court’s
exclusion of Gonzalez’ testimony was a clear abuse of
discretion, as the court balanced relevance against the
consumption of time, appropriately considering judi-
cial economy.
B
Acker next claims that the court abused its discretion
in ruling inadmissible proffered testimony of Jeremy
Evan Green, a professional investigator, who observed
some of the dogs that were seized from the defendants’
facility and were then being held at the Easton dog
pound. We disagree.
The following additional facts are relevant to our
resolution of this issue. On January 18, 2013, the defen-
dants offered Green as a fact witness. The defendants’
attorney proffered that Green would provide testimony
regarding his personal observations of the seized dogs
that were being held at the Easton dog pound. The
defendants’ attorney made the following offer of proof:
‘‘[The Defendants’ Counsel]: As an offer of proof,
Your Honor, the witness has traveled to the Easton
facility, in which some of [the defendants’] dogs are
currently being housed, and has personally observed
conditions exactly the same as those conditions the
[town] is claiming are neglectful in [its] position.
‘‘The Court: Yes, but Easton isn’t involved in this case
in terms of any claim of neglect.
‘‘[The Defendants’ Counsel]: Okay. So, that was—
‘‘The Court: Only the defendant is. So, it would be
totally irrelevant to—
‘‘[The Defendants’ Counsel]: Your Honor, also—
‘‘The Court: —anything I have to decide.
‘‘[The Defendants’ Counsel]: Well, just one final argu-
ment for the record—
‘‘The Court: Okay. Yes.
‘‘[The Defendants’ Counsel]: —that Your Honor has
to make a decision as to, ultimately, will title of these
animals vest with [the defendants] or will it vest with
[the plaintiffs]? So, to that, I think the conditions that
[the plaintiffs are] currently in control of and overseeing
and causing these dogs to be housed in would be
relevant.
‘‘The Court: Well, first of all, the disposition is very
simple . . . . The statute requires a finding of neglect
as a prerequisite to vesting ownership of the animal
in the state. Under § 22-329a, an animal is either
neglected, and the reference is to [§ 22-329a] (g) (1), or
not neglected, and the reference is to [§ 22-329a] (g)
(3), regardless of who has ownership or custody of
the animal. The purpose of the statute is to protect
animals, and not to impose criminal penalties on
their owners.
‘‘So, if under [§ 22-329a] (g) (1), if the court finds
neglect, the court is obligated to vest ownership of the
animals in the town of Bethlehem, and under [§ 22-
329a] (g) (3), if the court does not find neglect, the
court would be obligated, as I mentioned to counsel,
to vest ownership in [Acker], but the court would have
to be satisfied as to where the dogs would be so that
we wouldn’t start this all over again. But, I mean, that’s
the standard I have to follow; either they were neglected
or they weren’t. And if they weren’t, you’d definitely—
then [Acker] definitely would be the custodian of the
animals subject to the issue of the [certificate of occu-
pancy] and other issues that might affect it, such as the
criminal case that we mentioned yesterday.
‘‘So, I don’t see what this witness could add to any-
thing that I have to decide, either from the point of view
of finding neglect or the point of view of the disposition.
‘‘[The Defendants’ Counsel]: Understood, Your
Honor. . . .
‘‘The Court: All right. Any other offer of proof with
regard to this witness?
‘‘[The Defendants’ Counsel]: No, Your Honor.’’
(Emphasis in original.)
Section 4-2 of the Connecticut Code of Evidence pro-
vides in relevant part: ‘‘All relevant evidence is admissi-
ble, except as otherwise provided by the constitution
of the United States, the constitution of this state, the
Code or the General Statutes. Evidence that is not rele-
vant is inadmissible.’’ ‘‘Relevant evidence’’ means ‘‘evi-
dence having any tendency to make the existence of
any fact that is material to the determination of the
proceeding more probable or less probable than it
would be without the evidence.’’ Conn. Code Evid. § 4-1.
Acker argues that ‘‘if there were eyewitness testi-
mony that dogs seized from the defendants (on account
of allegedly low temperatures in Bethlehem) had been
left outside to brave the elements during a cold night,
that would be relevant . . . .’’ We disagree.
We agree with the court that testimony regarding
conditions at a different facility was irrelevant to the
issue before the court, that is, whether the defendants
had neglected the dogs as of November 8, 2012. The
court therefore was tasked with reviewing the condi-
tions that the dogs were kept in at the defendants’
facility on November 8, 2012, and deciding whether the
dogs’ exposure to those conditions constituted neglect.
The practices and conditions at other facilities were
not material to the issue of whether the dogs were
neglected at the defendants’ dog rescue facility on
November 8, 2012. We therefore conclude that the court
did not abuse its discretion in ruling inadmissible
Green’s proffered testimony.
C
Acker claims that the court abused its discretion in
sustaining the plaintiffs’ objection to the defendants’
attorney’s proposed line of questioning of Gregan, a
state animal control officer, regarding the use of space
heaters at Last Post, an animal rescue shelter of which
he was a member of the board of directors. We disagree.
The following additional facts are relevant to our
resolution of Acker’s claim. On November 21, 2012, the
plaintiffs conducted a direct examination of Gregan.
Gregan testified that he visited the barn housing the
defendants’ dog rescue facility for the first time on
October 17, 2012, at which time he observed that the
only heat source was two small, oil filled space heaters.
Gregan testified that these space heaters were an inade-
quate source of heat, given the size of the barn and that
fact that the barn was not insulated. On January 18,
2013, the defendants called Gregan as a witness. The
defendants’ attorney sought to question him regarding
the use of space heaters at Last Post. The defendants’
attorney made an offer of proof and the following collo-
quy occurred:
‘‘The Court: I’m going to ask for an offer of proof.
‘‘[The Defendants’ Counsel]: Offer of proof, Your
Honor. This gentleman testified at this trial that those
space heaters are not appropriate, yet this gentleman’s
company that he’s affiliated with used the exact same
space heaters, had a fire, and twenty animals died. I
think that’s very relevant to impeach the witness.
‘‘[The Plaintiffs’ Counsel]: Your Honor, I can’t—my
disappointment with this line of questioning—
‘‘The Court: I can’t believe where you’re going with
this, counsel. What you’re basically telling me is that
an animal control officer who, basically, says he didn’t
think the space heaters were adequate has similar space
heaters that malfunctioned in some way and animals
died as a result?
‘‘[The Defendants’ Counsel]: Yes.
‘‘The Court: What does that have to do with his credi-
bility?
‘‘[The Defendants’ Counsel]: Well, it impeaches his
testimony that he thinks they’re inappropriate
because—
‘‘The Court: I don’t know the spacing of the space
heaters, where they were, what the BTUs were, were
they the same type. Totally irrelevant, totally.’’
‘‘A trial court has wide discretion in admitting rebuttal
testimony and in determining relevancy. . . . [R]ebut-
tal testimony is ordinarily limited to such purposes as
refuting the defendant’s evidence and impeaching or
rehabilitating witnesses.’’ (Citations omitted.) Beinh-
orn v. Saraceno, supra, 23 Conn. App. 493. ‘‘Relevant
evidence’’ means ‘‘evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence.’’ Conn.
Code Evid. § 4-1. ‘‘In considering whether a trial court
has abused its discretion, appellate courts view such a
trial court ruling by making every reasonable presump-
tion in favor of the decision of the trial court.’’ (Internal
quotation marks omitted.) Hackling v. Casbro Con-
struction of Rhode Island, supra, 67 Conn. App. 291–92.
Acker argues that Gregan testified that the space
heaters at the defendants’ facility were inadequate, and
that he should have been permitted to question him
regarding the space heaters used at Last Post because
(1) ‘‘if a rescue facility in which he had a management
role had used [space heaters], then the court could have
concluded that the use by the defendants of those same
devices was reasonable and that the use met the stan-
dard of care applicable to such rescue facilities’’; and
(2) it would impeach the credibility of Green’s previous
testimony that such space heaters were inadequate.
We disagree.
First, testimony regarding the use of space heaters
in other facilities was not relevant to the issue of
whether the defendants provided the animals at their
facility adequate protection from the weather; the issue
was not whether the use of space heaters in general
is appropriate. Second, the proposed line of questioning
did not bear on Gregan’s credibility. Even if the facts
as alleged by Acker were true, and Last Post did endure
a fire as a result of space heaters, the testimony does
not alter the credibility of Gregan’s testimony that the
space heaters alone were not adequate to heat an unin-
sulated building the size of the barn housing the defen-
dants’ dog rescue operation. On the record before us,
we conclude that the court did not abuse its discretion
in prohibiting the defendants’ attorney’s proposed line
of questioning.
III
ACKER’S APPEAL—INJUNCTIVE RELIEF
Acker’s last claim is that the court erred in granting
the injunctive relief sought by the plaintiffs because the
court’s decision was based on an erroneous statement
of law.18 We disagree.
‘‘A prayer for injunctive relief is addressed to the
sound discretion of the court and the court’s ruling
can be reviewed only for the purpose of determining
whether the decision was based on an erroneous state-
ment of law or an abuse of discretion. . . . Therefore,
unless the trial court has abused its discretion, or failed
to exercise its discretion . . . the trial court’s decision
must stand.’’ (Citations omitted; internal quotation
marks omitted.) Advest, Inc. v. Wachtel, 235 Conn. 559,
563, 668 A.2d 367 (1995).
Section 22-329a (g) (1) provides in relevant part: ‘‘If,
after hearing, the court finds that the animal is neglected
or cruelly treated, it shall vest ownership of the animal
in any state, municipal or other public or private agency
which is permitted by law to care for neglected or
cruelly treated animals . . . .’’
The following additional facts are relevant to our
resolution of this issue. On the last day of hearings, the
court informed the parties that due to the accelerated
nature of the proceedings, issuing a temporary injunc-
tion would be superfluous.19 The court indicated that
its decision regarding the injunction would be perma-
nent and would be based on all of the evidence offered
at trial. Neither party objected to this procedure.
At the close of evidence on January 21, 2013, the court
indicated that it would issue its decision on February 14,
2013. In its decision, the court stated: ‘‘The court, having
found after six days of hearing, that the smaller breed
dogs were neglected, pursuant to [§ 22-329a (g) (1)]
hereby vests ownership of the smaller breed dogs [with
the town]. . . . The court, having found after hearing
that those dogs not of the smaller breeds were not
neglected, pursuant to [§ 22-329a (g) (3)], will order
that said animals be returned to the defendant[s].’’
The court’s decision to grant injunctive relief with
respect to the small dogs was based on its finding that
the small dogs were neglected, as defined by § 22-329a,
which incorporates by reference § 53-247, which sets
forth specific types of behavior that constitute neglect.
The court, having found that the smaller breed dogs
were in fact neglected, was directed by § 22-329a (g)
(1) to grant injunctive relief. Acker has not shown that
the court abused its discretion in so ruling. We therefore
conclude that the court exercised sound discretion in
ruling on the plaintiffs’ request for injunctive relief.
IV
TOWN’S CROSS APPEAL
We now address the town’s claims on cross appeal.
The town argues that the court erred in (1) differentiat-
ing between large and small breed dogs, and (2) con-
cluding that the larger breed dogs were not neglected.
We disagree.
A
The town first argues that the court erred in making
determinations of neglect on the basis of the dogs’ breed
size and type of coat. We disagree.
The court’s decision to differentiate between the dogs
on the basis of their breed size and type of coat is well
supported by the record. Both parties’ veterinarians
testified regarding the differences between large and
small breed dogs’ temperature needs. Davis, the town’s
veterinarian, testified that when Umstead asked him
for advice about the temperature needed to maintain
dogs, he told her that ‘‘a large husky . . . or a large
furry dog would probably be fine in this weather,
depending on the housing and the protection from rain
and wind. But that small toy breeds . . . could be in
significant danger [if] temperatures dropped into the
40s and 30s. And it wouldn’t take long for a small dog
to use up its ability to keep itself warm, particularly
shorthaired dogs and depending on . . . the way [they
are] being housed. And I said that . . . consistent shiv-
ering was something that she needed to look for as an
indication, these animals were struggling to maintain
their body temperature.’’ Basak-Smith testified that ‘‘[i]t
depends on the dog. I mean, you know, my [golden
retrievers] used to like to [lie] out in the snow all day.
They preferred that. . . . [I]t depends on the dog and
their coat and their size . . . .’’ Basak-Smith noted that
many of the smaller dogs came from California and
South Carolina, and that because of their small size,
type of coat, and the fact that they came from warmer
climates, they might not have been as tolerant of
colder temperatures.
We therefore conclude that the court properly made
determinations of neglect on the basis of the dogs’ breed
size and type of coat.
B
The town argues, in the alternative, that even if the
court properly made determinations of neglect on the
basis of the dogs’ breed size and type of coat, the court
improperly concluded that the larger breed dogs were
not neglected. We disagree.
The following additional facts are relevant to our
resolution of the town’s claim. In its oral memorandum
of decision, the court stated: ‘‘As to the remaining ani-
mals, including the larger dogs, dogs of thicker coats
and dogs not of a smaller breed, as that term was used
by . . . Davis, in light of the court’s discussion herein
of the applicable statutory and case law, this court finds
that the [town] has not proven by a fair preponderance
of the evidence that those canine animals were, under
all of the facts and circumstances, neglected or that
those dogs were in imminent danger on November 8,
2012.’’
Section 22-329a (b) provides in relevant part that ‘‘any
animal control officer . . . may take physical custody
of any animal upon issuance of a warrant finding proba-
ble cause that such animal is neglected or is cruelly
treated in violation of section 22-366, 22-415, 53-247,
53-248, 53-249, 53-249a, 53-250, 53-251 or 53-252 . . . .’’
As discussed in part I A of this opinion, § 22-329a does
not provide an independent definition or standard of
neglect, but rather incorporates by reference the stan-
dards of the specific statutes enumerated therein.
Section 53-247 (a) provides in relevant part: ‘‘Any
person who . . . deprives of necessary sustenance
. . . any animal, or who, having impounded or confined
any animal, fails to give such animal proper care or
. . . fails to supply any such animal with wholesome
air, food and water, or . . . having charge or custody
of any animal . . . fails to provide it with proper food,
drink or protection from the weather . . . shall, for a
first offense, be fined not more than one thousand dol-
lars or imprisoned not more than one year or both
. . . .’’ It is reasonable to conclude that the neglect
referred to in § 22-329a includes the failure to provide
necessary sustenance, proper care, wholesome air, food
and water, and protection from the weather.
The town maintains that ‘‘[a]lthough a significant
amount of testimony offered by both sides dealt with
the temperature conditions during the seizure of the
dogs on November 8, 2012, temperature, however, was
not the only factor used by the [town] for seizing the
dogs.’’ The town contends that there was other evi-
dence, presented at trial, which indicated that the larger
breed dogs were neglected in that they were not pro-
vided ‘‘proper care’’ or ‘‘wholesome air, food and water
. . . .’’ General Statutes § 53-247 (a). The town points
to Umstead’s testimony regarding the amount of food
and water available to the dogs, and the size of the
crates and the sanitary conditions the dogs were kept
in.20 It also points to Davis’ testimony regarding the
lighting conditions in the barn, the small size of the
crates in which the larger breed dogs were kept, and
the repercussions of ‘‘[s]ignificant sensory depriva-
tion . . . .’’21
We cannot conclude as a matter of law that the town
satisfied its burden of proof or that the court erred in
concluding that it had not met its burden. We also note
that contradictory testimony was offered at trial regard-
ing the significance of the fact that Umstead did not
observe food and water bowls in the individual dog
crates. Fernandez testified that there was a feeding
schedule and that the dogs were fed one to two times
per day depending on their size. She also testified that
every day employees took the dogs outside, provided
the weather was appropriate, and put them in outdoor
pens where water was always available, while the
employees cleaned the indoor crates. At the end of the
day, the employees moved the dogs back inside and
put them back in the crates before leaving the facility.
Basak-Smith testified that it was not uncommon for
kennels and facilities like that of the defendants’ not
to keep food and water bowls in individual dog crates
twenty-four hours a day. Basak-Smith testified that dogs
should have water most of the time, but that it was
better to have dogs on a feeding schedule rather than
to give them twenty-four hour per day access to food
in their crates due to the risk that they might overeat
or spill their food.
We cannot conclude, however, as an appellate court,
that the defendants failed to provide the larger breed
dogs with ‘‘proper care’’ or ‘‘wholesome air, food and
water’’ as required by § 53-247 (a). This was entirely a
factual determination entrusted to the trial court.
The court’s dispositional order, however, which
directed the parties to determine among themselves
which dogs were smaller breed dogs and which dogs
were larger breed dogs, was insufficient.22 The court
made the order without giving the parties a compliance
deadline and without providing an alternative means
by which they could determine which dogs were smaller
breed and which were larger breed dogs, should the
parties have failed to agree. Without an agreement, and
without an alternative procedure to determine the num-
ber and identities of the dogs that were smaller breed
and larger breed dogs, the court’s orders were impracti-
cable because the plaintiffs had imprecise direction as
to which dogs to keep in their custody and which to
return to the defendants’ custody.
On Acker’s appeal, the judgment is reversed only with
respect to the order directing the parties to determine
which dogs were smaller breed dogs and which dogs
were larger breed dogs and the case is remanded for
further proceedings consistent with this opinion (1)
to determine the exact number of dogs removed and
currently in the town’s possession, and (2) to identify
those dogs currently in the town’s possession who were
adversely affected by the cold temperatures and those
who were not. On the town’s cross appeal, the judgment
is affirmed.
In this opinion the other judges concurred.
1
Of the two defendants, only Acker has appealed. For convenience, we
refer to Acker and SPCA of Connecticut collectively as the defendants, and
individually by name where necessary. The town has filed a cross appeal.
For convenience, we refer to the town and Umstead collectively as the
plaintiffs, and individually by name where necessary.
2
As of the date of oral argument before this court, the parties had not
reached an agreement regarding the exact number of dogs seized or the
number and identities of the smaller breed dogs.
3
The barn housing the defendants’ dog rescue facility was situated on
property in two towns—Bethlehem and Morris.
4
The parties were unable to agree on the exact number of dogs seized.
On the last day of trial the court instructed the parties to determine the
exact number of dogs seized and then currently in the town’s possession.
5
The second count of the verified petition sought an order from the court
precluding Acker from owning, possessing or controlling any animal and
from leasing his property to possess or house animals. The court noted that
the plaintiffs abandoned or withdrew that count at the start of closing
argument to the trial court.
6
Section 22-336-13 (a) of the Regulations of Connecticut State Agencies
defines a dog pound as ‘‘a building provided and maintained by a city or
town which is used for the detention and care of impounded dogs or other
facilities including a licensed veterinary hospital or licensed commercial
kennel which, through written agreement with the town, is used for the
detention and care of impounded dogs.’’
The defendants are correct in their assertion that their facility is not
technically a ‘‘dog pound.’’
7
The court briefly summarized the factual basis for its decision as follows:
‘‘The court disagrees with . . . Basak-Smith, who opined that if the smaller
dogs were not suffering from hypothermia, they were not neglected. Being
kept in temperatures in or below the thirties, the [town] was not expected
to wait until the smaller dogs passed . . . Basak-Smith’s litmus test and
reached a state of hypothermia, before [Umstead] seized the animals, which
prevented such from occurring. . . . As . . . Davis testified, if the town
didn’t intervene when it did, he had serious reservations that the little dogs
could survive one more night. He added that the little dogs needed care
and protection from the cold, which was not being provided.’’
8
A court is perfectly able to be guided by standards established for analo-
gous situations. Regulations clearly establish a 55 degree Fahrenheit mini-
mum temperature standard for municipal ‘‘dog pounds.’’ It hardly matters
to a dog if he is in a dog pound or a nonprofit animal rescue facility, so far
as the ambient temperature is concerned.
9
See footnote 6 of this opinion.
10
Davis testified that he ‘‘observed many of the small, toy shorthaired
breeds curled up on the floor of their kennels . . . [m]any of them curled
up in a ball, shivering violently.’’
11
Acker argues that no accurate temperature of the interior of the facility
was taken because ‘‘[t]he only measurement of the [interior] temperature
was undertaken by . . . Umstead using the [laser] temperature gun; she
acknowledged taking her initial temperature of the ‘inside’ of the rescue
facility through the exterior window of the [facility] . . . . That temperature
reading, tak[en] from outside [the facility] and shot through a closed glass
window, was the basis of the verbal warning she gave regarding temperature.
. . . [At trial] . . . Umstead was presented with the manual for the [laser]
temperature gun . . . which indicated that it could not read an interior
temperature through a closed window. At no point in . . . Umstead’s testi-
mony did she indicate that [s]he calibrated the device, sent it for servicing
or conducted any affirmative, objective test as to the accuracy of the alleged
scientific instrument.’’ (Citations omitted; emphasis added.)
We do not necessarily agree or disagree with Acker’s argument that the
interior facility temperature taken by this method may be unreliable. The
temperature reading taken externally, however, was not the only evidence
presented at trial regarding the interior temperature of the facility. In fact,
there was a great deal of other evidence regarding the interior temperature
of the facility. Additionally, Acker, in his brief, uses the word ‘‘initial’’ in
conjunction with the external temperature reading, indicating that he recog-
nized that the external temperature reading was not the only temperature
measurement taken by Umstead.
12
Acker also argues that there was no proof that the temperature had a
discernable medical impact on the dogs. He points to testimony from Davis
that the dogs ‘‘weren’t in terrible shape’’ at the time of the seizure, and
testimony from Basak-Smith that, on the basis of his understanding of the
types of dogs residing in the defendants’ facility, they could sustain tempera-
tures as low as twenty degrees.
Acker’s argument is not dispositive of the legal issues presented in this
case. Nowhere does our statutory, regulatory, or common-law scheme
require an animal to be suffering from a present illness as a prerequisite to
finding that the animal is neglected. Because the plaintiffs obtained a warrant
and the case was instituted pursuant to § 22-329a (b), rather than § 22-329a
(a), there was no need to show ‘‘imminent harm,’’ as required by § 22-329a
(a). Furthermore, Umstead testified that the small dogs were cold and
shivering. Davis also testified that the smaller dogs were ‘‘shivering vio-
lently.’’
13
Acker also claims that the court expressed a mathematically determined
equation regarding the difference in exterior and interior temperatures which
it applied in order to reach its finding regarding the interior temperature
of the facility on November 8, 2012. He contends that after hearing testimony
from kennel manager Fernandez, who was not present on the day of the
seizure, regarding her observation of the difference in interior and exterior
temperature, the court declared the following ‘‘formula’’: ‘‘And when she
was there one time, the outside temperature was 40 to 50 degrees and the
inside temperature was no lower than 50, causing me to think that if the
outside temperature was 28 to 30 degrees, according to Fernandez, the
defendant[s’] employee, the inside temperature would have been 38 to 40
degrees.’’ Acker contends there was never any basis provided as to the
accuracy of the formula proffered by the court. We disagree with this charac-
terization of the court’s statement. To take every statement made by the
court in evaluating evidence as a pronouncement of a new rule or principle
of law is to misunderstand the function of the court as trier of fact during a
bench trial. Nowhere in the court’s decision does it state that this observation
regarding Fernandez’ testimony was a formula to be used in making its
findings of fact or reaching its conclusions of law regarding neglect of the
animals. We therefore find Acker’s argument unpersuasive.
14
The doctrine of predictive neglect is rooted in child custody case law.
‘‘The doctrine of predictive neglect is grounded in the state’s responsibility
to avoid harm to the well-being of a child, not to repair it after a tragedy
has occurred. . . . Thus, [a] finding of neglect is not necessarily predicated
on actual harm, but can exist when there is a potential risk of neglect.’’
(Internal quotation marks omitted.) In re Joseph W., 305 Conn. 633, 644–45,
46 A.3d 59 (2012).
15
Acker argues that the court erred in concluding, as a matter of law,
that the doctrine of predictive neglect can be used to satisfy the neglect
requirement under the animal seizure statute, § 22-329a. He argues that the
policy underlying the doctrine of predictive neglect is rooted in child welfare
cases and, as a matter of law, has not, and cannot, be applied in animal
neglect cases.
Acker argues that alternatively, even if the doctrine of predictive neglect
did apply under the animal neglect statute, the court employed an incorrect
standard of proof. He contends that the standard of proof is not preponder-
ance of the evidence, as employed by the court, but rather clear and convinc-
ing evidence. In support of his argument, he cites the child welfare case In
re Joseph W., 305 Conn. 633, 646, 46 A.3d 59 (2012), wherein our Supreme
Court held that requiring predictive neglect to be proven only by a preponder-
ance of the evidence that there is a ‘‘potential risk’’ of neglect violated the
petitioner’s right to due process. The plaintiffs argue that Acker ‘‘expressly
waived the issue by conceding that the trial judge would be correct in his
use of the fair preponderance of the evidence standard, as opposed to the
clear and convincing evidence standard, when deciding the case.’’
16
Since the parties’ oral argument before this court, our Supreme Court
has changed the prerequisites to obtaining Golding review. In State v. Elson,
311 Conn. 726, 754, 91 A.3d 862 (2014), our Supreme Court overruled the
‘‘affirmative request’’ requirement articulated by this court in State v. Elson,
125 Conn. App, 328, 346, 353–54, 9 A.3d 731 (2010); id., 346 (‘‘as a prerequisite
to Golding review, a party must affirmatively request review pursuant to
Golding in its main brief’’ [emphasis omitted]). According to our Supreme
Court, ‘‘to obtain review of an unpreserved claim pursuant to State v. Gold-
ing, supra, 213 Conn. 239–40, a defendant need only raise that claim in his
main brief, wherein he must ‘present a record that is [adequate] for review
and affirmatively [demonstrate] that his claim is indeed a violation of a
fundamental constitutional right.’ ’’ State v. Elson, supra, 311 Conn. 754–55.
17
We note that the defendants’ offer of proof was clothed in language of
professional negligence. This case was not one sounding in professional
negligence. Although the offer of proof may have presented a degree of
useful information and may have been marginally relevant, it was not directly
relevant. Proof of the conduct of others does not prove one was not negligent;
further, it is not clear that evidence regarding temperature was to be offered
at all by Gonzalez. When the relevance is marginal, the court enjoys great
discretion in considering countervailing factors such as consumption of
time. See Conn. Code Evid. § 4-3.
18
Acker argues that the court’s decision granting the injunctive relief
requested by the plaintiffs was based on two erroneous statements of law.
´
First, he argues that ‘‘the trial court based its finding of neglect (vis-a-vis
the small breed dogs) upon the doctrine of ‘predictive neglect,’ which had
never been disclosed to the defendants until the time the decision was
announced.’’ See footnote 15 of this opinion. In part I C of this opinion we
explained that the court’s conclusion that the smaller dogs were neglected,
in violation of § 22-329a, rested on two independent grounds: (1) failure to
provide ‘‘proper . . . protection from the weather’’ in violation of §§ 22-
329a and 53-247 (a), and (2) the doctrine of predictive neglect. We concluded
that the court’s conclusion that the smaller dogs were neglected was properly
supported by the first ground; therefore, we need not determine the validity
of the court’s second ground. Here, too, Acker’s argument necessarily fails
because we need not determine the validity of the court’s second ground
of predictive neglect.
Second, he argues that the court’s finding of neglect was based on the
court’s use of an erroneous temperature standard that does not exist at law.
In part I A of this opinion, we concluded that the court’s conclusion that
the smaller dogs were neglected was correct in law; accordingly, Acker’s
argument here fails.
19
‘‘It is not uncommon for a hearing on a temporary injunction to be
converted, with the consent of the parties, to a hearing on a permanent
injunction. See Waterbury Hospital v. Connecticut Health Care Associates,
186 Conn. 247, 248, 440 A.2d 310 (1982).’’ (Emphasis added.) Doublewal
Corp. v. Toffolon, 195 Conn. 384, 392–93, 488 A.2d 444 (1985); id., 393 (‘‘[a]
trial court may not sua sponte transform applications that request temporary
injunctions into proceedings on the merits of issuance or denial of perma-
nent injunctions’’).
20
Umstead testified that when she visited the defendants’ facility she did
not see any food or water containers in the dogs’ crates. She also testified
that when she visited the defendants’ facility on October 17, 2012, that ‘‘there
were about eighty small crates, some very small, some had a lot of dogs in
them with feces and urine that they were in.’’ According to Umstead, ‘‘[t]hese
crates were way too small for [the dogs]; they need to be able to get up
[and] turn around.’’
21
Davis testified regarding his first impressions and actions on November
8, 2012: ‘‘I entered a dark, cold building with a high roof; when my eyes
adjusted to the light I could see rows and rows of small transport kennels
on the floor. I had a flashlight with me, so I immediately went around the
building, got on my knees, and looked into each of these dark crates, looking
at what was in, and just checking to see if—you know—what the conditions
of the animals [were] initially, before anything happened, before animals
were seized or a lot of people came in. . . . Some dogs, larger breed dogs,
not apparently cold, but in crates so small they could barely turn in.’’
Davis testified that ‘‘[s]ignificant sensory deprivation’’—caused by insuffi-
cient human contact, inadequate exposure to light, and the like—can result
in behavioral problems.
22
The court directed the parties to determine which of the dogs were
small dogs: ‘‘The parties need to engage in a cooperative effort to identify
those of the dogs that would be declared as smaller dogs or smaller breed
dogs, and they need to do so promptly, as those animals should suffer
no further delay in being placed with new families. A comparison of the
photographs and the medical records should resolve any disagreements as
to the exact number [of dogs] removed and currently in the [town’s] custody,
that is, whether that number is sixty-three or sixty-five.’’ There is no evidence
in the record before us indicating that the parties met and agreed upon the
number of dogs seized by the town, or identified which of those were smaller
dogs or smaller breed dogs.
The court, in its oral ruling, also deemed the thickness of the dogs’ coat
to be significant. It is clear in context that the court attempted to create
two categories: those dogs who were adversely affected by the cold and
those who were not.
On the issue of which of the dogs were adversely affected by the cold,
the evidence before this court is limited. This type of factual determination
is best entrusted to a trial court.