W. K. v. M. S.

Citations

• 212 Conn. App. 532

Syllabus

The defendant appealed to this court from the judgment of the trial court granting the plaintiff's application for an order of civil protection. The court held an evidentiary hearing on the application, during which the plaintiff testified. The defendant did not testify and was not present at the hearing but was represented by counsel, Z. The court found that the defendant's position was less credible because he did not appear at the hearing. The court also took judicial notice of a summary process complaint filed against the defendant by a housing authority and con- cluded that the allegations of serious nuisance in the complaint but- tressed the credibility of the plaintiff because the allegations were similar to the plaintiff's. The housing authority had withdrawn the summary process action prior to the evidentiary hearing. Held: 1. The trial court erred when it, sua sponte, took judicial notice of the contents of the summary process complaint against the defendant with- out giving him notice and an opportunity to be heard: although Z attempted to be heard at the evidentiary hearing on the court's decision to take judicial notice of the summary process complaint, the court did not give Z an opportunity to voice her concern with its decision, and, at the conclusion of the hearing, Z attempted to make the court aware that the summary process action had been withdrawn; moreover, the court failed to inquire into the basis for the housing authority's allega- tions or why it withdrew the action; furthermore, the court's error was compounded by its statements that the allegations of the summary process complaint buttressed the plaintiff's credibility. 2. The trial court erred by finding the defendant less credible because he did not appear at the hearing: the court took into account the defendant's conduct, namely, his failure to appear, which was not evidence, to help it decide a substantive issue; moreover, because the defendant, who was represented by counsel, did no