author: SCHALLER, J.

text:
    JOHN D. STEVENS v. HARTFORD ACCIDENT AND INDEMNITY COMPANY
    (13337)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued April 20
    decision released September 19, 1995

      Charles J. Goddard, for the appellant (plaintiff).

      Philip F. von Kuhn, for the appellee (defendant).
   SCHALLER, J.

The plaintiff appeals from the judg-

ment of the trial court denying his application to proceed with arbitration. The plaintiff claims that the trial court improperly denied the application by deciding the residency issue (1) when the case should have been submitted to mandatory arbitration for resolution of all coverage issues, including residency, pursuant to General Statutes § 38a-336 (previously § 38-175c), (2) after a mistrial had been declared by a prior trial court following our remand in Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 615 A.2d 507 (1992), thereby mandating a complete retrial before a trial court or a panel of arbitrators and (3) without giving the parties an adequate opportunity to be heard. We reverse the judgment of the trial court.

The following facts are relevant to our consideration of the plaintiffs claims. On April 11, 1990, the plaintiff sought to compel arbitration on the uninsured motorist insurance policy held by his father on the ground that he was a resident in his father’s household. The defendant argued that residency was a question of law and a threshold issue to arbitration and, therefore, needed to be resolved by the court. The plaintiffs position was that residency was a coverage issue and, therefore, arbitrable. The plaintiff, however, agreed to have the court resolve this issue on the merits. Id., 379 n.l. Judge James D. O’Connor held an evidentiary hearing on October 3 and 4, 1990, and reserved decision. Judge O’Con-nor died without rendering judgment. Judge Arnold W. Aronson found a handwritten, unsigned document among Judge O’Connor’s papers. On the basis of that document, Judge Aronson ruled that the plaintiff was not a resident of his father’s household and, therefore, did not have standing to demand arbitration.

The plaintiff appealed Judge Aronson’s decision to this court. Id., 378. The plaintiff argued on appeal that Judge Aronson had improperly based his ruling on Judge O’Connor’s handwritten, unsigned decision. We agreed with the plaintiff and held that “the handwritten decision by Judge O’Connor, which was neither signed by him nor filed with the clerk, could not be given the force or effect of a judgment of the court.” Id., 381. We held, in addition, that “upon the death, disability or resignation of a judge of the Superior Court during the pendency of a trial or hearing to the court, a successor judge should take the following steps pursuant to the authority granted by [General Statutes] § 51-183f: (1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted; (2) determine, on the basis of such record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties; (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then; (4) upon request of any party, or upon the court’s own request, recall any witness whose testimony is material and disputed and who is available to testify without due burden; (5) take any other steps reasonably necessary to complete the proceedings; and (6) render a decision based on the successor judge’s own findings of fact and conclusions of law.” Id., 385-86.

On remand, Judge Aronson reviewed the entire existing record, testimony, and proposed findings of fact submitted by both parties. On March 3,1993, Judge Aronson issued a memorandum of decision in which he declared a mistrial. Judge Aronson found that because the credibility to be given to the testimony of two witnesses, the plaintiff and his father, was the determining factor, it would be inappropriate to decide the issue of residency without a complete retrial.

The plaintiff then reclaimed the original application to proceed with arbitration dated April 11,1990, seeking a hearing before a panel of arbitrators as opposed to a retrial before the Superior Court. On April 19, 1993, a hearing was held before the trial court, O’Neill, J., who thereafter reserved decision. Judge O’Neill subsequently issued a memorandum of decision on August 6, 1993, denying the application on the basis of the merits of the issue of residency. The plaintiff filed a motion for reconsideration dated August 13, 1993, and a hearing was held on October 25,1993. A second hearing was held on February 7, 1994, on the motion for reconsideration. Judge O’Neill denied that motion, stating, in part, that after a judge dies “the successor judge should take the following steps, and [the Appellate Court] gave us a six numbered laundry list—of the things to do, the last of which is render a decision based on the successor judge’s, that’s me, own findings of fact and conclusions of law. I thought that that’s what I was doing in my memorandum of law. I said some of those things. I reviewed the record, considered everything and see it as a termination because everybody had been working on the question of residency up to here. I didn’t see why we should suddenly change and say somebody else should work on the question of residency.” Judge O’Neill added that he did not find that proceeding with the trial had prejudiced any party.

I

The plaintiff claims that residency is a coverage issue and the case must be submitted to arbitration for resolution pursuant to General Statutes (Rev. to 1989) § 38-175c. The plaintiff asserts that § 38-175c has removed the power to waive mandatory arbitration from both parties.

“General Statutes § 38-175c requires binding arbitration for ‘final determination of insurance coverage’ with respect to uninsured motorist claims if the insurance policy includes a provision for binding arbitration.” Gaudet v. Safeco Ins. Co., 219 Conn. 391, 394-95, 593 A.2d 1362 (1991); see also Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 657, 591 A.2d 101 (1991); Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). “Our Supreme Court has made it abundantly clear that the issue of coverage is to be decided through the arbitration process and not by the courts. Security Ins. Co. of Hartford, v. DeLaurentis, 202 Conn. 178, 185, 520 A.2d 202 (1987).” Quinn v. Middlesex Ins. Co., 16 Conn. App. 209, 211-12, 547 A.2d 95, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). Our Supreme Court has held that the intent and effect of § 38-175c is to “remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” Oliva v. Aetna Casualty & Surety Co., supra, 42; see also Wilson v. Security Ins. Group, 199 Conn. 618, 622, 509 A.2d 467 (1986); Lane v. Aetna Casualty & Surety Co., 203 Conn. 258, 263, 524 A.2d 616 (1987). Since § 38-175c provides mandatory arbitration only for coverage issues, we must first determine whether residency is an issue of coverage or arbitration.

“The arbitrability of a dispute, by contrast, is a legal question for the trial court to decide as a threshold matter.” Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 806, 623 A.2d 66 (1993). “[A] coverage issue is one that is governed wholly by the policy language ... or involves the interpretation of both statutory and policy language ... or otherwise implicates the scope of coverage afforded by the terms of the policy.” (Citations omitted.) Id. “An issue of arbitrability, by comparison, is one that addresses the arbitrability of the claim and is capable of being decided by the court as matter of law irrespective of the terms of the policy.” Id., 807. “Where an issue may fairly be characterized as either (1) an issue of arbitra-bility, i.e., a question for the courts to decide in the first instance, or (2) an issue of insurance coverage, i.e., a question for an arbitrator to decide in the first instance, legislative policy requires the court to elect the latter characterization and submit the issue to the arbitrator together with all other issues of insurance coverage.” Gaudet v. Safeco Ins. Co., supra, 219 Conn. 399.

In Security Ins. Co. of Hartford v. DeLaurentis, supra, 202 Conn. 188, our Supreme Court determined that the issue of whether a policy’s uninsured motorist coverage provision extended benefits to accidents involving underinsured vehicles was essentially a coverage question. On the other hand, the question of whether the statutory duty to arbitrate coverage issues applied to motorcycle insurance policies was a threshold legal question for the court to decide. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987). The issue of whether the failure to exhaust the liability coverage of an alleged tortfeasor’s automobile liability insurance policy precluded a plaintiff from recovering underinsured motorist benefits was a coverage question. Lane v. Aetna Casualty & Surety Co., supra, 203 Conn. 266. A dispute involving whether fleet policies could be stacked and whether uninsured motorist benefits should be set off by the amount of workers’ compensation benefits collected were classified as coverage issues. Wilson v. Security Ins. Group, supra, 199 Conn. 618. In Quinn v. Middlesex Ins. Co., supra, 16 Conn. App. 213, we held that an issue as to whether the policy in question “should be construed to extend benefits to the plaintiff is a question of coverage which must be submitted to arbitration.” We conclude that, because the issue of residency determines whether the plaintiff is an intended beneficiary of the insurance policy, it is a coverage issue. The plaintiff, therefore, initially had the right to have that issue resolved by a panel of arbitrators. The plaintiff, however, waived that right by agreeing to have the trial court decide the issue. The plaintiff, however, now asserts that the waiver is ineffective because § 38-175c made submission to arbitration mandatory.

In Gaudet v. Safeco Ins. Co., supra, 219 Conn. 397, our Supreme Court determined that the “legislative purpose favoring arbitration for all uninsured motorist coverage issues would be defeated if it were available only to named insureds,” thereby allowing a plaintiff, such as the one in this case, who is not the named insured and is a potential third party beneficiary to benefit from the enactment of § 38-175c. The Supreme Court in Gaudet added that “[i]n enacting § 38-175c, the legislature thus implicitly assumed that the word ‘party’ in [General Statutes] § 52-410 would encompass all persons to whom the uninsured motorist statute gave enforcement powers.” Id. Consequently, § 38-175c gave the plaintiff the power to compel the defendant to arbitrate the issue of residency before a panel of arbitrators, however, § 38-175c does not make exercise of that power obligatory. The plaintiffs failure to enforce such a right at the appropriate time amounted to a waiver. See Security Ins. Co. of Hartford v. DeLaurentis, supra, 202 Conn. 188 (defendant’s election to arbitrate pursuant to uninsured motorist clause must be honored).

It is well established that “an arbitration clause may be waived by the parties or by the one entitled to its benefit.” Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 435, 324 A.2d 267 (1973). Going to trial, therefore, without insisting on the arbitration condition may warrant a finding of waiver. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11, 110 A.2d 464 (1954). “The essential question is whether, under the totality of circumstances, the . . . [party claiming arbitration] has acted inconsistently with the arbitration right.” National Foundation for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987). The plaintiff initially did not insist on having a panel of arbitrators determine the issue of residency; the plaintiff, instead, agreed to have the trial court decide the issue on the merits. Moreover, the plaintiff during oral argument of this appeal conceded that, in the oral argument of the first appeal, he had abandoned the issue regarding the appropriate forum to hear the issue of residency during oral arguments of the first appeal. The plaintiffs argument that § 38-175c has removed from the parties the power to waive is without merit. The plaintiff has acted inconsistently with his right to have the issue of residency be determined by a panel of arbitrators. We conclude, therefore, that the plaintiff waived his right under § 38-175c to have the issue of residency heard by a panel of arbitrators.

II

The plaintiff claims that his initial waiver of arbitration on the issue of residency was negated when Judge Aronson declared a mistrial. We must determine whether Judge O’Neill was bound by Judge Aronson’s decision declaring a mistrial in the case. “ ‘The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478.’ ” Rosenblit v. Danaher, 206 Conn. 125, 132, 537 A.2d 145 (1988). Our Supreme Court has recognized that “the law of the case doctrine is not one of unbending rigor .... A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932).” (Internal quotation marks omitted.) Rosenblit v. Danaher, supra, 132-33; see also State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965). “In essence [the law of the case] expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912).” S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 798, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). “Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. State v. Hoffler, 174 Conn. 452, 462-63, 389 A.2d 1257 (1978); State v. Mariano, [supra, 91-92].” (Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).

Under this doctrine, Judge O’Neill could have treated Judge Aronson’s decision as the law of the case, but he was not bound to do so. Because of the flexible nature of the law of the case doctrine, Judge O’Neill had the right to reconsider the mistrial decision rendered by Judge Aronson. “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. 1B Moore’s Federal Practice (2d Ed.) If 0.404 [4].” Breen v. Phelps, supra, 186 Conn. 99. Unlike Judge Aronson, Judge O’Neill found that the matter could be completed without prejudice to the parties and, therefore, rendered a decision based on his own findings of fact and conclusions of law. “From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling. 18 Wright, Miller & Cooper, [Federal Practice and Procedure: Jurisdiction] § 4478; Parmelee Transportation Co. v. Keeshin, 292 F.2d 794, 797 (7th Cir.), cert. denied, 368 U.S. 944, 82 S. Ct. 376, 7 L. Ed. 2d 340 (1961).” Breen v. Phelps, supra, 100. “In an appeal to this court where views of the law expressed by a judge at one stage of the proceedings differ from those of another at a different stage, ‘the important question is not whether there was a difference but which view was right.’ Daw son v. Orange, 78 Conn. 96, 129, 61 A. 101 (1905).” Id. Although Judge O’Neill’s decision differed from Judge Aronson’s, we cannot determine that Judge O’Neill’s decision that the case could be completed without prejudice to the parties was incorrect.

Ill

The plaintiff next argues that once Judge O’Neill determined that the matter would be completed rather than retried after the mistrial, the plaintiff should have been notified of that decision and given the opportunity to “recall any witness whose testimony is material and disputed and who is available to testify without due burden” before rendering a decision on the matter. Stevens v. Hartford Accident & Indemnity Co., supra, 29 Conn. App. 386. “ ‘[I]t is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court. Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917); 5 Am. Jur. 2d, Appeal and Error § 744.’ Dacey v. Connecticut Bar Assn., 184 Conn. 21, 23, 441 A.2d 49 (1981).” Suffield Bank v. Berman, 228 Conn. 766, 774, 639 A.2d 1033 (1994).

The right to notice is fundamental to due process and “ ‘must be granted a meaningful time and in a meaningful manner.’ ” All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 208, 567 A.2d 1156 (1989). It is well established that, “if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.” Walker v. Hutchinson City, 352 U.S. 112, 115, 77 S. Ct. 200, 1 L. Ed. 2d 178 (1956). Our Supreme Court has held that “ ‘it is a principle of natural justice of universal obligation, that before the rights of an individual be bound by a judicial sentence he shall have notice ... of the proceedings against him.’ Parsons v. Lyman, 32 Conn. 566, 576 [1863], quoting Mr. Chief Justice Marshall in The Mary, 13 U.S. (9 Cranch) 126, 3 L. Ed. 678 [1815].” Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979). “Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses. Dohany v. Rogers, 281 U.S. 362, 369, 50 S. Ct. 299, 74 L. Ed. 904 (1930).” Kron v. Thelen, supra, 193.

Once the trial court determined from the record that the matter could be completed without prejudice, the parties should have been given notice of that decision. The record reveals that, when the parties appeared before the court at the April 19,1993 hearing, they were operating on the premise that Judge Aronson’s decision was controlling. The trial court neither informed the parties that it had decided to render a decision based on its own findings and conclusions nor afforded the parties the opportunity to present evidence by recalling any witnesses whose testimony was material and disputed. Close examination of the transcript of the April 19, 1993 hearing reveals that the parties were focusing on the plaintiffs claim that the question of residency should be resolved by a panel of arbitrators and not by the court. The record is clear that neither the plaintiff nor the defendant understood that he was before the court with respect to the merits of the residency issue. The plaintiff, therefore, was denied his due process rights by not being afforded a reasonable opportunity to present his claim to the court. See Kron v. Thelen, supra, 193.

The judgment is reversed and the case is remanded for further proceedings in accordance with our decision in Stevens v. Hartford Accident & Indemnity Co., supra, 29 Conn. App. 378.

In this opinion the other judges concurred.

       General Statutes § 51-1831' provides in relevant part that “if any judge of the superior court is retired because of disability, dies or resigns during the pendency of airy proceeding before him, any other judge of that court, upon application, shall have power to proceed therewith as if the subject matter had been originally brought to him.”

       General Statutes (Rev. to 1989) § 38-175c provides in pertinent part: “(a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations .... Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. . . .”

       General Statutes § 52-410 (a) provides: “A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.”

       Because Judge O’Neill decided that he could proceed with the trial without declaring a mistrial, that decision became the trial court decision under the law of the case doctrine. Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932). The plaintiffs claim that a mistrial negated any earlier waiver is, therefore, moot. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOAN M. CHAVEZ v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
    (14443)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Considered July 19
    decision released September 19, 1995

      Lynne M. Knox, in support of the motion.

      M. Leonard Caine III, in opposition to the motion.
   PER CURIAM.

The employment security board of review (board) moves to intervene in this appeal from the Superior Court’s judgment reversing the board’s decision and remanding the case for de novo proceedings. We conclude that the board has the right to intervene in this appeal pursuant to General Statutes § 31-249c, and, therefore, we grant the board’s motion to intervene.

The plaintiff, upon leaving her employment as a mental retardation worker at the Southbury Training School, applied to the administrator of unemployment compensation and was granted benefits pursuant to General Statutes § 31-241. The appeals referee affirmed the administrator’s decision. The employer then appealed to the board, which sustained the appeal. Thereafter, the plaintiff appealed to the Superior Court. The court reversed the board’s decision and remanded the case to the board for de novo proceedings. From that judgment, the defendant now appeals.

The board moves to intervene in this appeal pursuant to § 31-249c on the ground that the Superior Court’s decision restricts the board’s authority. The board represents that it did not move to intervene in the plaintiffs appeal to the Superior Court because the board did not know that the appeal involved issues affecting its authority until the trial court issued its memorandum of decision. Whether a party may intervene at this level of appellate review pursuant to § 31-249c is a question of first impression for this court.

Section 31-249c provides in relevant part that “[t]he board shall have the right to intervene as a party in any proceeding under this chapter before a reviewing court.” The statutory scheme governing administrative proceedings provides for two levels of appellate review. General Statutes § 31-249b. The issue before us is whether the term “reviewing court” in § 31-249c encompasses this court as well as the Superior Court in the context of this administrative appeal.

In construing § 31-249c, we must adhere to “well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature. ... To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. . . . If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise.” (Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989); see also General Statutes § l-l(a).

Section 31-249c gives the board the right to intervene “in any proceeding . . . before a reviewing court.” (Emphasis added.) The use of the word “any” in this section indicates a clear legislative intent not to limit the right to intervene in appeals to the Superior Court. This conclusion is supported by the provision in § 31-249b allowing for “[a]n appeal [to] be taken from the decision of the superior court to the appellate court . . . .” Because the language of § 31-249c is clear and unambiguous, we conclude that the legislature intended the board to have the right to intervene in appeals to the Superior Court and to this court.

We note that the legislative history can be read to support a more limited scope of the statute to allow the board to intervene in only those cases where its interests are adverse to or more significant than those of the administrator. Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 3, 1991 Sess., pp. 967-68. Because our interpretation of § 31-249c, however, must be guided by the unambiguous language of the statute, which extends the statutory scope to “any proceeding . . . before a reviewing court,” the legislature must alter this construction should our con-elusion be contrary to legislative intent. Enquist v. General Datacom, 218 Conn. 19, 25, 587 A.2d 1029 (1991).

In this case, the board has moved to intervene as a defendant. In an appeal before this court, however, the board would be either an appellant or an appellee. Because the board seeks to challenge the Superior Court’s decision, we presume the board intends to intervene as an appellant.

The motion to intervene is granted and the board is granted permission, sua sponte, to file an intervenor-appellant’s brief.

       The plaintiff’s appeal to the Superior Court alleged that the board “erred in reversing the decision of the appeals referee because the board misapplied the law to the facts of this particular case and its decision is arbitrary, capricious and an abuse of its discretion.”


author: SPEAR, J.

text:
    SAWMILL BROOK RACING ASSOCIATION, INC. v. BOSTON REALTY ADVISORS, INC., ET AL.
    (13140)
    Dupont, C. X, and Spear and Hennessy, Js.

      Argued March 16
    decision released September 19, 1995

      Edward L. Marcus, with whom, on the brief, was Diane M. Lord, for the appellant (plaintiff).

      Frank C. White, Jr., for the appellees (defendant Mattabassett Group, Inc., et al.).
   SPEAR, J.

The dispositive issue in this case is whether the trial court had subject matter jurisdiction over the plaintiffs application to confirm an arbitration award, where two of the four parties involved in a real estate transaction did not sign the contract that contained an agreement to arbitrate. The trial court dismissed the application, ruling that the lack of signatures deprived the arbitrators of authority and, consequently, the court lacked subject matter jurisdiction. We reverse the judgment of the trial court.

The factual and procedural history of the case is as follows. The plaintiff, Sawmill Brook Racing Association, Inc. (Sawmill), and the named defendant, Boston Realty Advisors, Inc. (Boston Realty), signed an agreement whereby Boston Realty, or its nominee, agreed to purchase certain property from Sawmill for a price of $5,000,000. The defendant, Mattabassett Group, Inc. (Mattabassett), took title to the property as Boston Realty’s nominee. The contract contained a clause that provided an additional $1,000,000, to be added to the purchase price if the buyer obtained the necessary approvals from the city of Middletown for the development of at least 500,000 square feet of office and retail space or 500 mixed use units consisting of housing, office and retail space. Robert Mooney signed the agreement on behalf of Sawmill as its president. He also signed his consent and agreement to the terms of the contract in his capacity as a creditor and a stockholder of Sawmill. The defendant Dennis Stackhouse, president of Boston Realty and Mattabassett, signed the agreement on behalf of Boston Realty. The contract also contained a provision that allowed the buyer to offset against the $1,000,000 increase in the purchase price “the full extent of any and all indebtedness which is then outstanding from Ronald H. Mooney in favor of either Boston Realty Advisors, Inc., or Dennis Stack-house or their respective heirs, executors or assigns.” The approvals that would have entitled Sawmill to an additional $1,000,000 were not obtained.

Pursuant to the contract, Sawmill demanded arbitration of its claim that Boston Realty and Mattabassett had breached the contract by failing to use their best efforts to obtain the approvals that would have triggered the $1,000,000 increase in the purchase price. Stack-house and Mattabassett filed a counterclaim in the arbitration proceedings seeking relief pursuant to the contract, which was denied by the arbitrators. Matta-bassett also filed a motion to dismiss a declaratory judgment action brought by Sawmill on the ground that all issues regarding the contract were subject to arbitration. The arbitration hearings spanned a period of approximately three years and resulted in an award in favor of Sawmill against Boston Realty and Mattabas-sett “in the amount of one million dollars plus interest at the rate of 10 percent from April 13, 1991, to the date of payment.” The arbitrators also found that “three notes issued by Ronald Mooney in favor of Dennis Stackhouse . . . are declared to be null and void and of no force and effect.” The arbitrators finally ordered that certain Sawmill stock that was pledged as security for the notes be returned to Mooney.

Sawmill moved to confirm the award in the Superior Court. Boston Realty failed to appear, but Mattabassett and Stackhouse appeared and moved to dismiss the application and vacate the award. The trial court dismissed the application to confirm the award, ruling that the court had no subject matter jurisdiction as the arbitrators had no authority to render an award because Mattabassett and Stackhouse had not signed an agreement to arbitrate. The trial court ruled that because no one had filed a motion to correct, it could not separate out the claim against Boston Realty, a signatoiy to the agreement, and enter a “piecemeal confirmation.” Sawmill filed a motion to articulate that requested that the trial court confirm the arbitration award as to Boston Realty and Mattabassett. In its articulation, the trial court explained that the arbitrators had no jurisdiction over Mattabassett because it had not signed the contract and a “selective confirmation” of the award as to Boston Realty might affect “other matters properly before the arbitrators” or “put the award in such imbalance that it would topple the scales of justice.” Sawmill appeals from the judgment dismissing its application to confirm the award. Other facts will be discussed as necessary.

I

Sawmill first claims that the motion to dismiss filed by Mattabassett and Stackhouse was improper because General Statutes § 52-420 (b) requires that motions to vacate, modify or correct an award be made within thirty days of the notice of the award, and the motion to dismiss here was filed beyond the thirty day period.

It is axiomatic that subject matter jurisdiction can be raised at any time. Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992); Gaudio v. Gaudio, 23 Conn. App. 287, 295, 580 A.2d 1212, cert. denied, 217 Conn. 803, 585 A.2d 471 (1990). “The authority of the arbitrator is a subject matter jurisdiction issue, and as such it may be challenged any time . . . .” Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988). Therefore, the motion to dismiss for lack of subject matter jurisdiction was properly heard by the trial court.

II

Sawmill next asserts that the trial court improperly dismissed its application to confirm as to Boston Realty because it did in fact sign the contract that contained the agreement to arbitrate. Furthermore, Boston Realty failed to appear in the trial court to object to the application. We agree with Sawmill.

There is no question that Boston Realty signed the contract that contained the agreement to arbitrate and that no appearance was filed in the trial court on its behalf. Because the writing provision contained in General Statutes § 52-408 was completely satisfied, the trial court had subject matter jurisdiction. The trial court’s articulation stating in effect that it could not selectively confirm the award as to Boston Realty does not alter the granting of the motion to dismiss for lack of subject matter jurisdiction. “An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision.” (Internal quotation marks omitted.) Neri v. Neri, 35 Conn. App. 812, 818, 647 A.2d 1, cert. denied, 231 Conn. 916, 648 A.2d 154 (1994); Matka Corp. v. Automated Material Handling, Inc., 34 Conn. App. 723, 725, 643 A.2d 276 (1994). The trial court improperly dismissed the application as to Boston Realty.

Ill

Sawmill next claims that Stackhouse and Mattabas-sett are bound by the contract that contains the agreement to arbitrate despite the fact that they did not sign the contract. The trial court correctly stated that arbitration is a creature of contract and there must be an express agreement to arbitrate in order for the arbitrators to have authority and the court to have jurisdiction. Bennett v. Meader, supra, 208 Conn. 364. We disagree, however, with the trial court’s legal conclusion that Stackhouse and Mattabassett were not parties to, and therefore not bound by, the contract that contained the arbitration clause.

The trial court relied principally on Bennett in holding that it did not have subject matter jurisdiction. In Bennett, the plaintiffs withdrew a personal injuiy action after an oral agreement with the defendant’s insurer to arbitrate the claim. The arbitrator awarded damages in the amount of $5110.20, and the plaintiffs moved to vacate the award. The trial court vacated the award on the ground that § 52-408 requires that an agreement to arbitrate must be in writing to be enforceable. In affirming the trial court, our Supreme Court held that “only written agreements to arbitrate are valid. Oral agreements are not included, implicitly or explicitly, in the description of valid arbitration agreements” contained in § 52-408. Id., 359.

In Bennett, the Supreme Court specifically referred to Schwarzschild v. Martin, 191 Conn. 316, 464 A.2d 774 (1983), as clarifying the requirement of a writing pursuant to § 52-408. In Schwarzschild, the arbitration agreement was contained in an addendum to a note. The arbitration addendum was signed by the defendants but was not signed by the plaintiff. The Supreme Court held that the agreement satisfied the writing requirement of § 52-408. Schwarzschild v. Martin, supra, 321. The court stated that “[n]owhere in the statute is found the specific requirement urged on us by the defendant that the contract be signed by both parties. The statute requires only that the agreement between the parties be contained in a ‘written contract’ or ‘separate writing’; this requirement has been resolved in the plaintiffs favor by both the arbitrators and the trial court. We find no error in this conclusion.” Id., 321. The fact that it was the defendant who challenged the award, even though he signed the addendum and petitioned for an order directing the parties to proceed to arbitration, was of “paramount importance” to the court in resolving the issue. Id. The court stated that “[o]ne enjoying rights is estopped from repudiating dependent obligations which he has assumed; parties cannot accept benefits under a contract fairly made and at the same time question its validity. ... In the absence of a statute requiring a signature . . . parties may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated, such as by the acceptance of benefits under the contract.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 321-22. The court ruled: “We therefore hold that a party who signs an arbitration agreement, petitions a court for arbitration, then participates in the arbitration proceedings may not later avoid his agreement because of a claim that the other party did not sign the agreement.” Id., 322.

The present case is unlike Bennett, where the parties had no writing whatsoever. It is, however, factually similar to Schwarzschild.

Schwarzschild and the present case differ in only three respects. First, it does not appear that anyone ever petitioned the Superior Court for an order directing the parties to proceed to arbitration. Second, the parties objecting to the award, Mattabassett and Stackhouse, did not sign the agreement. Third, Mattabassett and Stackhouse did not initiate the arbitration proceedings. These differences are legally insignificant in our view. We will discuss the first and third differences together.

A petition to the Superior Court for an order to proceed to arbitration pursuant to the contract was unnecessary here. Sawmill initiated the arbitration, and Mattabassett and Stackhouse filed a counterclaim seeking relief pursuant to the agreement to arbitrate. Although Stackhouse and Mattabassett were not signatories to the contract, their assent to the arbitration proceedings is clearly demonstrated by their conduct. By filing the counterclaim, they joined in Sawmill’s request to the arbitrators to resolve their legal disputes as to the purchase and sale contract. This was the functional equivalent of Mattabassett and Stackhouse initially seeking arbitration.

The fact that the nonsigning parties, Stackhouse and Mattabassett, challenge the award here, and a signatory challenged the award in Schwarzschild, makes no difference legally. If Sawmill had been seeking to avoid an award in favor of Mattabassett and Stackhouse on the ground that they did not sign, we would have a factual situation on all fours with Schwarzschild. It would be illogical to conclude that in that situation the arbitrators would have had authority, and in the present case they do not. This would mean that subject matter jurisdiction would turn on the outcome of the arbitration, a proposition that has no support in law or logic. Under the rationale in Schwarzschild, the arbitrators have authority and the trial court has subject matter jurisdiction over the application to confirm the award, if at least one of the parties has signed the agreement to arbitrate, and the others have assented to the agreement by their conduct.

In Bennett v. Meader, supra, 208 Conn. 362, the court discussed the two policy considerations that require the “strict enforcement of the writing requirement in § 52-408.” “First, and most apparent, is that this requirement eliminates the problems of proving an oral agreement. It is likely that the parties’ understanding of a purported oral agreement to arbitrate will differ. The content of the agreement would then have to be determined by the court and this would not be as efficient or as easy as establishing the existence and content of a written agreement. The process of proving an oral agreement would not foster the stated purpose of arbitration of avoiding the formalities, delay, expense and vexation of ordinary litigation. . . . Second, because the parties must memorialize their agreement to arbitrate, it also is likely that they will establish, either separately or within the agreement to arbitrate, a written submission setting forth the arbitrable issues.” (Citations omitted; internal quotation marks omitted.) Id., 362-63. The court went on to state “[t]hus, requiring a written agreement to arbitrate also encourages the parties to devise a written submission, which will clarify the rights of the parties for the purposes of both arbitration and judicial review.” Id., 364.

Both of the policy reasons underpinning the writing requirement of § 52-408, as discussed in Bennett, are completely satisfied here. First, the writing itself eliminates any controversy as to what was agreed to by the parties and eliminates the need to prove an oral agreement. There is no dispute that Mattabassett took title to the subject property as the nominee of Boston Realty. The contract provides in its opening paragraph that it is an agreement between Sawmill as the “seller” and Boston Realty or Us nominee as the “buyer.” Section 1 of the contract provides that the buyer “agrees to purchase upon and subject to the terms and conditions hereinafter set forth.” One of the terms was the purchase price that the buyer agreed to pay, which included the additional $1,000,000 at issue in the arbitration. When Mattabassett became the buyer under the contract it obligated itself to pay the contract purchase price. In addition, § 7-B of the contract provided for an order of the bankruptcy court authorizing the sale to the buyer “in form and substance satisfactory to buyer and its counsel.” The clause also provided that “[s]aid order (or an ancillary order) shall additionally provide, in form and substance, satisfactory to buyer and its counsel, that said sale shall be made free and clear of all liens and encumbrances upon the property, with all liens and encumbrances to attach to the proceeds of sale to the extent the same are not otherwise paid and released at the time of sale.” Mattabassett was entitled to the benefit of this clause.

Mattabassett as the nominee of Boston Realty took advantage of the benefits of the contract. In the event the $1,000,000 addition to the purchase price became due under the contract, Mattabassett could offset that sum by an amount equal to any debt owed by Mooney to Stackhouse. This was certainly a contractual benefit to Mattabassett. Such an offset would extinguish any debt to Stackhouse up to the sum of $1,000,000. By agreeing to the contract by his conduct, Stackhouse became potentially hable for part of the purchase price and thus became a party to the agreement. Indeed, at the time of the transfer of title there was an outstanding indebtedness from Mooney to Stackhouse.

The second policy reason underpinning § 52-408 is that a writing encourages the parties to frame a written submission and that written submission assists the arbitrators and the court. Sawmill apparently did not file a written submission in the trial court, and we do not know if there was such a submission to the arbitrators. A written submission certainly could have been framed with relative ease, thus satisfying this policy basis of § 52-408.

The principles espoused in Schwarzschild apply here. There is an agreement to arbitrate in writing as required by § 52-408, it is signed by one of the parties, assent by the nonsigning party is clear and the party challenging the award accepted benefits under the contract. Mattabassett and Stackhouse filed a counterclaim in the arbitration proceedings seeking relief pursuant to the agreement to arbitrate. They then proceeded to arbitrate the matter over a period of approximately three years. This constituted an acceptance of the benefits of the contract to arbitrate, and estops them from asserting a claim of lack of authority.

We conclude from the signatures of Sawmill and Boston Realty plus the assent of Mattabassett and Stack-house to the contract and the arbitration proceedings, that the arbitrators did have authority to resolve the issues between the parties. The trial court, therefore, had subject matter jurisdiction.

The judgment is reversed and the case is remanded to the trial court with direction to consider Sawmill’s application to confirm the award.

In this opinion the other judges concurred.

       Sawmill is a debtor in possession pursuant to a bankruptcy petition.

       The arbitration clause of the contract provided in pertinent part: “The buyer and the seller agree that should any matter addressed by this agreement be incapable of voluntary resolution by them, said matter shall, at buyer’s sole election, either be determined by appropriate proceedings in the United States Bankruptcy Court for the District of Connecticut to the extent it maintains jurisdiction with respect thereto or be submitted to and resolved by arbitration pursuant to the commercial arbitration rules of the American Arbitration Association.”

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”

       General Statutes § 52-408 provides in pertinent part: “An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract . . . shall be valid, irrevocable and enforceable . . . .”

       Although Stackhouse was the president of Mattabassett and Boston Realty, he did not sign the agreement on behalf of Mattabassett, nor did he sign it in his individual capacity.


author: LAVERY, J.

text:
    CARL STEVE v. COMMISSIONER OF CORRECTION
    (13825)
    Dupont, C. J., and Foti and Lavery, Js.

      Argued June 2
    decision released September 26, 1995

      Deborah DelPrete Sullivan, assistant public defender, for the appellant-appellee (petitioner).

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee-appellant (respondent).
   LAVERY, J.

This is an appeal by the petitioner, Carl Steve, from a judgment of the habeas court that granted him partial relief on his claim that the respondent commissioner of correction had miscalculated the credits on his criminal sentence. The respondent cross appeals. The petitioner claims that the habeas court was incorrect (1) in not ordering the respondent to credit the petitioner fully for time served or credited against a vacated sentence, and (2) in denying the petitioner the seven day job credit and outstandingly meritorious performance award credit for the vacated sentence to reduce the five year threshold for enhanced good conduct credit. The respondent, in a cross appeal, claims that the habeas court was incorrect in determining that a prisoner serving multiple concurrent sentences is entitled to have time served on a vacated sentence calculated as postconviction confinement on a subsequent sentence for the same crime or a crime based on the same act. We agree in part with the petitioner and do not agree with the respondent. We reverse the judgment in part.

The following facts are undisputed. On June 13,1985, the petitioner was arrested in three criminal cases, judicial district of Waterbury Docket Numbers CR4-118626, CR4-118627 and CR4-118628, and held in lieu of $135,000 bond, which he was unable to post. On October 22,1985, in CR4-118626, after a jury trial, the petitioner was found guilty of robbery in the first degree and assault in the first degree. In that case the petitioner was first sentenced to the custody of the respondent on December 6,1985, for a total effective sentence of twenty years, execution suspended after sixteen years, and five years probation. The petitioner appealed the judgment of conviction in CR4-118626.

On December 30, 1985, in CR4-118628, the petitioner entered a plea of guilty to the crime of assault in the first degree and was sentenced to the custody of the respondent for a term of imprisonment of ten years, to be served concurrent with the sentence imposed in CR4-118626. On December 30, 1985, all counts in CR4-118627 were nolled. The petitioner did not appeal his conviction in CR4-118628.

On August 4,1987, the judgment of conviction of both counts in CR4-118626 was set aside and the case was remanded for a new trial. State v. Steve, 11 Conn. App. 699, 529 A.2d 229 (1987). Upon certification, the state appealed the decision of the Appellate Court to the Supreme Court, which, on June 21, 1988, affirmed the decision of the Appellate Court. State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988).

On July 21,1988, in CR4-118626, the petitioner entered pleas of nolo contendere to robbery in the first degree, and assault in the first degree and was sentenced to twenty years, execution suspended after ten years and five years probation, on each count, to run concurrently, for a total effective sentence of twenty years, execution suspended after ten years and five years probation.

From December 30,1985, through and including June 21, 1988, while the appeal in CR4-118626 was pending, and from June 21, 1988, through and including July 21, 1988, the petitioner was serving the sentence in CR4-118628.

Upon resentencing and recommitment of the petitioner in CR4-118626, the respondent calculated the new sentence as commencing on the date it was imposed, July 21,1988, with all time in confinement from June 13,1985, to July 21,1988, treated as presentence confinement and credited pursuant to the provisions of General Statutes § 18-98d. In so doing, the respondent gave the petitioner no credit in CR4-118626 from December 30, 1985, through July 20,1988, because, during that time, the petitioner, was also serving the sentence in CR4-118628.

The habeas court in its analysis considered five time periods, but only two are pertinent to this appeal. The first is the time spent in custody after imposition of the concurrent sentence in CR4-118628, but before the original sentence in CR4-118626 was vacated by the favorable decision on appeal. The second is the time spent in custody in CR4-118626 after the appeal, but before the resen-tencing. The habeas court found that the petitioner was entitled to be credited for the time spent in custody serving the vacated sentence before it was overturned on appeal. It awarded the petitioner all jail credit plus any ancillary credit, such as “good time credit,” earned by the petitioner in CR4-118626 from December 30, 1985, through August 4,1987, the date this court reversed the petitioner’s conviction. State v. Steve, supra, 11 Conn. App. 699.

The habeas court denied any credit to the petitioner after his successful challenge on appeal. That is, the court denied any credit while the state petitioned the Supreme Court for certification, which was subsequently granted, and while the Supreme Court appeal proceeded. The habeas court found that during this period of time the petitioner was in custody awaiting a new trial as a result of the Appellate Court’s reversal and that the “vacated sentence ceased being served once the appeal reversed the underlying conviction.” As to the petitioner’s second claim, the habeas court held that only good conduct credit was to be allowed. He was not to receive a deduction of time for periods of employment under General Statutes § 18-98a or an outstandingly meritorious performance award under General Statutes § 18-98b.

Before deciding the two issues raised by the petitioner on the appeal, we will decide the respondent’s cross appeal because, if we agree with the respondent, that determination will be dispositive of the entire appeal. The respondent claims that the petitioner is entitled only to presentence confinement credit on his vacated sentence. Section 18-98d (a) (2) limits the presentence credit “to aperson for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement.” (Emphasis added.) The respondent claims that since the petitioner was sentenced to a ten year concurrent sentence on December 30,1985, he was entitled to credit for presen-tence confinement on the vacated sentence only from the date of arrest until December 30,1985, when the concurrent sentence was imposed. The respondent claims that prior to 1981, the department of correction, in accordance with General Statutes § 53a-38 (c), recalculated sentences imposed after successful appeals by prisoners as commencing when the vacated sentence commenced. He further claims that our Supreme Court and this court, in a long line of cases, have ruled that a new sentence commenced when it was imposed, not when the vacated sentence was originally imposed, and that time served on a vacated sentence should not be calculated as “time served” sentence credit, but rather should be calculated as presentence confinement. The respondent cites Moscone v. Manson, 185 Conn. 124, 440 A.2d 848 (1981), Sutton v. Lopes, 202 Conn. 343, 521 A.2d 147 (1987), Casey v. Commissioner of Correction, 215 Conn. 695, 577 A.2d 1051 (1990), and Raucci v. Warden, 30 Conn. App. 190, 619 A.2d 886, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993), as binding precedent. The petitioner claims, however, that to treat the time served on the vacated sentence as presentence confinement, together with the lack of credit by virtue of § 18-98d, is aviolation of his rights under the federal and state constitutional protection against double jeopardy as set forth in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). The habeas court agreed with the petitioner that the time served on the vacated sentence up to the time of our reversal in State v. Steve, supra, 11 Conn. App. 699, was postconviction confinement. The trial court based its decision on Wright v. Commissioner of Correction, 216 Conn. 220, 578 A.2d 1071 (1990). In Wright, the respondent treated the inmate’s service of a vacated sentence as presentence confinement. While serving the sentence that was later vacated, the inmate had accumulated employment and outstandingly meritorious performance credit under §§ 18-98a and 18-98b, respectively. Because such credits maybe earned only while an inmate is in apostconviction status, the respondent refused to award those credits against a new sentence imposed on reconviction. Id., 222-23. The inmate filed a habeas corpus petition, and the habeas court ordered the respondent to reinstate the credits. Id., 223. On appeal, our Supreme Court held that while the respondent correctly treated the vacated sentence as presentence confinement, the failure to include the earned credits to reduce the new sentence amounted to a violation of the prohibition against double jeopardy. Id., 226.

We find that the holding in Wright v. Commissioner of Correction, supra, 216 Conn. 220, applies to the facts in the present case. To conclude otherwise would be to deny credit “for punishment already exacted.” Id., 226. Had the petitioner not appealed or had been unsuccessful on appeal, the respondent would have awarded full credit on the original sentence because it would be post-conviction jail time. Because the petitioner was successful in overturning the convictions, the respondent is regarding the service of the vacated sentence as “dead time” under § 18-98d.

The habeas court cited with approval Justice Shea’s concurring opinion in Wright v. Commissioner of Correction, supra, 216 Conn. 226. Justice Shea noted that § 53a-38(c) “plainly provides that all time . . . credited against the vacated sentence shall be credited against the new sentence.” (Internal quotation marks omitted.) Id., 226-27. The conclusion that this petitioner must receive credit for the time he spent in custody, plus any ancillary credits earned, despite § 18-98d, is “inescapable.” Id., 227.

We agree with the habeas court that the time served on the vacated sentence must be treated and credited as postconviction confinement. To fail to do so would be a violation of the fifth amendment guarantee against double jeopardy. North Carolina v. Pearce, supra, 395 U.S. 718-19. “The constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” Id. “Such credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc.” Id., 719 n.13.

General Statutes § 53a-38 (c) requires some form of credit for time served. The clear statutory intent is to satisfy the due process requirement that time served under a vacated sentence must be credited against a later sentence for the same act so as to comply with the dictates of North Carolina v. Pearce, supra, 395 U.S. 711. If the time served under the vacated sentence is considered presentence time, under § 18-98d, the time served after December 30, 1985, the date the second sentence began, would not be credited to the new sentence, which would be a clear violation of Pearce and its progeny. We are not overlooking binding precedent by upholding the habeas court’s determination that the petitioner be given credit on the vacated sentence as postconviction incarceration. The Supreme Court in Casey v. Commissioner of Correction, supra, 215 Conn. 699, stated: “In Sutton v. Lopes, supra, [202 Conn.] 349, this court upheld the decision of the trial court to treat time served on a vacated sentence as presentence time and to credit the time accordingly in calculating sentence credits. We rejected the claim that § 53a-38 (c) bars crediting the confinement time as such, observing that § 53a-38 (c), in keeping with the mandate of North Carolina v. Pearce, [supra, 711], is a general statutory provision which requires that a prisoner be given full credit for time served on a vacated sentence. ... It does not specify what type of credit it refers to. . . . [T]he plain language of § 53a-38 (c) requires only that some form of credit for time served be awarded . . . it is irrelevant to any other statutory credit. . . . Therefore ... § 53a-38 (c) does not bar crediting the time [served on a vacated sentence] as presentence confinement.” (Citations omitted; internal quotation marks omitted.)

In Moscone v. Manson, supra, 185 Conn. 124, Sutton v. Lopes, supra, 202 Conn. 343, and Casey v. Commissioner of Correction, supra, 215 Conn. 695, the Supreme Court upheld awards to prisoners of credit on vacated sentences that were most advantageous to the successful petitioners, that being presentence time. Here, the habeas court awarded postconviction time credit in order to comply with the Pearce rule. There is no inconsistency.

The habeas court correctly points to Wright v. Commissioner of Correction, supra, 216 Conn. 220, where the Supreme Court upheld credit for presentence confinement at the same time that it upheld credit for the seven day job credit provided by § 18-98a and the outstandingly meritorious performance credit provided by § 18-98b. Both of the latter credits apply by statute to sentenced prisoners. The Supreme Court stated in Wrightv. Commissioner of Correction, supra, 226: “We refuse, therefore, to follow the suggestion of the respondent that §§ 18-98a and 18-98b be read to apply only to an inmate serving a sentence pursuant to a valid conviction. To do so would violate the constitutional mandate of North Carolina v. Pearce [supra, 395 U.S. 711] by denying an inmate full credit for punishment already exacted in cases such as this one, where the credits were earned while serving a subsequently vacated sentence.” We distinguish Raucci v. Warden, supra, 30 Conn. App. 190, because unlike Moscone, Wright, and Casey, it did not involve the constitutional issue of double jeopardy and did not have to satisfy the mandate of Pearce. We therefore reject the respondent’s claim on cross appeal.

On his appeal, the petitioner first claims that the habeas court was incorrect in ordering postconviction confinement credit plus any ancillary credit such as good conduct earned by the petitioner in CR4-118626 from December 30, 1985, to August 4, 1987, the date of the Appellate Court decision, rather than from December 30, 1985, to July 21, 1988, the date the petitioner was resentenced.

We agree in part. The habeas court should have granted the petitioner postconviction confinement credit plus ancillary credit until July 1, 1988, ten days after the decision of the Supreme Court in State v. Steve, supra, 208 Conn. 38. Practice Book § 4048 provides in relevant part that “in any appeal by the state, there shall be a stay after the appeal has been taken which shall continue until final determination of the appeal.”

In addition, as to appeals to the Supreme Court, Practice Book § 4128 provides in part: “In any action, proceedings to enforce or carry out the judgment shall be stayed until the time to file the petition has expired; if a petition by a party or request by the appellate panel for certification is filed, the proceedings shall be stayed until the supreme court acts on the petition and, if the petition is granted, until the final determination of the cause . . . .The provisions of Secs. 4048, 4049 and 4050 shall also be applicable to proceedings concerning stays of execution.”

Also, Practice Book § 4121 provides ten days to submit a motion for reargument and Practice Book § 4122 provides for a motion for reargument en banc within the same time period. Practice Book § 4123 provides in pertinent part: “Unless the chief justice or chief judge shall otherwise direct, all proceedings to enforce or carry out the judgment shall be stayed until the time for filing a motion for reargument has expired, and if a motion is filed, until its disposition, and if it is granted, until the appeal is finally determined.”

It is clear from the rules of practice that an appeal to the Supreme Court from the Appellate Court decision stays the decision’s effects until at least ten days after the Supreme Court decision. In this case, the ten day period after the Supreme Court decision was July 1, 1988. The respondent, in his brief, states that the habeas court reached the correct result but for a different reason, claiming that the time between August 4,1987, and June 21, 1988, is presentence time, which, because of § 18-98d, is not entitled to be credited. We rejected that claim on the cross appeal. The petitioner is entitled to postconviction credit from August 4, 1987, to July 1, 1988.

The next claim by the petitioner pertains to the period from July 1,1988, the tenth day after the decision of the Supreme Court, to July 21, 1988, the date the petitioner entered pleas of nolo contendere and was resentenced in CR4-118626. The issue is whether the petitioner, who was serving a concurrent sentence between the time of his successful appeal and his reconviction and resen-tencing on the charges that had been vacated, should receive credit on the time served during that period toward those charges. The habeas court denied any credit on those charges for jail time spent after the appeal on concurrent charges from another file. The habeas court stated in its analysis with respect to post-appeal confinement that double jeopardy was irrelevant. Because the petitioner was in custody awaiting trial and not serving a sentence on the vacated charges, he was not subject to multiple punishments for the same offense for the time spent in custody awaiting a new trial. The habeas court further ruled that the petitioner was subject to § 18-98d, which denies presen-tence credit on one charge to a person who is sentenced and serving a sentence on another charge. We agree with the habeas court. In United States v. Markus, 603 F.2d 409 (2d Cir. 1979), a petitioner pleaded guilty in February, 1976, to two counts on one indictment, and to four counts on a second indictment. In April, 1976, the court sentenced the petitioner on the first indictment to terms of five and ten years to run concurrently, and on the second indictment to terms of five years, one year and one year to run concurrently with each other and consecutively to the sentences on the charges in the first indictment for a total effective sentence of fifteen years. In March, 1978, the court set aside the conviction on the charges in the first indictment. In August, 1978, the petitioner pleaded guilty to a superseding indictment and he was sentenced to five years to run consecutively to other sentences he was serving. The petitioner claimed that he was being denied credit for time served. Id., 411. The appeals court stated that the petitioner was not denied credit for time served because the bureau of prisons retroactively treated the sentence imposed on the charges contained in the second indictment as having begun in April, 1976. Id., 412. The court ruled that the time served on the charges in the first indictment had been fully credited to the sentence on the charges in the second. Id. The Second Circuit in its ruling stated: “This satisfies the dictates of North Carolina v. Pearce, supra [395 U.S. 711], which was intended to assure fundamental fairness to a sentenced defendant by precluding imposition upon him of ‘multiple punishments for the same offense,’ [id., 717], and did not consider the converse issue presented here, which is whether a prisoner convicted of multiple offenses is entitled as of right to apply one punishment to all offenses. We are confident that the Court in Pearce did not intend its decision to be construed as entitling a prisoner to double credit for time served. See in accord, Thacker v. Garrison, 527 F.2d 1006 (4th Cir. 1975) (per curiam).” (Emphasis in original.) United States v. Markus, supra, 412.

Likewise in Thacker v. Garrison, supra, 527 F.2d 1007-1008, where the petitioner’s conviction and sentence of nine to ten years was reversed on one count and the time served credited to the sentence on another count, which was consecutive, the court ruled that the petitioner, following reconviction and resentencing to a new nine to ten year sentence to run consecutively to the sentence then being served, was not entitled to have the time served on the original sentence credited on the new sentence because the credit on the vacated sentence had been applied to the consecutive sentence. In its per curiam opinion, the court stated: “Common sense and fundamental fairness require that under such circumstances the state should not ignore the period of imprisonment under the invalid sentence when an appropriate remedy is so readily available.” Id., 1008. In our opinion, this same common sense and fundamental fairness call for rejection of the argument that the petitioner should receive double credit for the time served on his original sentence in CR4-118626.

There is no claim, with respect to this issue, that any time or credit from the vacated sentence was not applied, nor is there a claim or factual predicate for a claim that the new sentence increased the severity of the punishment imposed on the petitioner. There is no constitutional basis for the petitioner to claim double credit for the time served between July 1 and July 21, 1988. The petitioner is not entitled to additional credit on this issue on his resentence on the vacated charges. We find that for the period from July 1 to July 21, 1988, the applicable statute is § 18-98d, which eliminates credit for time spent in custody while serving a sentence on another charge after the successful appeal and while awaiting retrial.

The petitioner’s final claim is that the habeas court was incorrect in holding that the seven day job credit and the outstandingly meritorious performance credit do not reduce the five year threshold to begin crediting the petitioner with enhanced good conduct. This was the issue that the Supreme Court in Seno v. Commissioner of Correction, 219 Conn. 269, 282-83, 593 A.2d 111 (1991), declined to decide. In Seno, the Supreme Court held that when the legislature changed the method of calculating statutory good time from crediting the maximum amount of good time at the outset of the prisoner’s sentence under General Statutes § 18-7a to a system of awarding good time on a monthly basis as earned under § 18-7a (c), the legislature left intact the counting of the statutory good time and the confinement time in calculating the five years when the good time is calculated at the enhanced rate of twelve days a month as opposed to the good time rate of ten days a month during the first five years. In Seno, the petitioner had claimed that credit toward the five years should be calculated on a formula of confinement plus credit time from all services including employment time under § 18-98a and outstandingly meritorious performance under § 18-98b. The Supreme Court stated: “The language and legislative history of § 18-7a (c) only support the conclusion that the respondent must consider statutory good time along with confinement time in determining when a prisoner is entitled to earn statutory good time at the enhanced rate. These sources are unin-structive with respect to the issue of whether other forms of credit time must be considered.” Seno v. Commissioner of Correction, supra, 219 Conn. 282B. The Supreme Court declined to address the employment time or the outstandingly meritorious performance time because the issue was not specifically addressed in either the parties’ briefs or at oral argument.

In declining to grant the petitioner’s claim, the habeas court reasoned that in Seno the Supreme Court determined that the enactment of § 18-7a (c) affected only the method in which good conduct was awarded and was never meant to exclude good conduct from the calculation of the starting date of enhanced good conduct credit, and maintained the status quo with respect to computing when good conduct credit accrues at the enhanced rate. The habeas court deduced that because outstandingly meritorious performance credit and employment credit were never awarded under the posting “up front” method, those credits could never be used to shorten the time when the enhanced rate would begin under § 18-7a (c). Employment and outstandingly meritorious performance credit could be earned only on the occurrence of events after the sentence, and thus those credits never contributed to the determination of how much good conduct credit was due under the enhanced rate. The habeas court further reasoned that “[b]ecause the enactment of § 18-7a (c) was regarded in Seno v. Commissioner of Correction, supra, 219 Conn. 282B, as leaving the former practices with respect to computing the starting date of the enhanced good conduct credit rate intact . . . that only good conduct credit should be added to jail credit when calculating that starting date and that employment and outstandingly meritorious performance credit remain foreign to that calculation.” We agree with the habeas court.

The petitioner has not provided us with statutory analysis, legislative history, prior administrative interpretation, or any analytical tool other than the statement that employment credit and outstandingly meritorious performance credit constitute a liberty interest subject to the guarantees of due process, accompanied by citations to U.S. Const., amends. V, XIV; Conn. Const., art. I, §§ 8, 9; Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S. Ct. 2963, 41 L. Ed. 2d 435 (1974). Wolff discusses the forfeiture of good conduct credits already earned after subsequent misconduct and is inapposite to this case. Our review of the legislative history of both statutes and their subsequent amendments does not show any intention to connect these two statutes with the reaching of the five year mark for enhanced good time. The Supreme Court in Seno v. Commissioner of Correction, supra, 219 Conn. 282B, found nothing in the language or legislative history of § 18-7a (c) that forms of credit other than statutory good time must be considered along with confinement time in reaching the threshold time for crediting enhanced good time. There is nothing in the plain language of either §§ 18-98a or 18-98b that could compel us to reach the result the petitioner advocates. There is no double jeopardy claim that the petitioner did not receive employment credit or outstandingly meritorious performance credit from the vacated sentence as required by Wright v. Commissioner of Correction, supra, 216 Conn. 220, but only a claim that the court did not include such credit in its calculation of the § 18-7a (c) five year requirement for enhanced good conduct credits. We uphold the ruling of the habeas court that §§ 18-98a and 18-98b do not affect the calculation for reaching the period of enhanced good time.

On the cross appeal, the judgment is affirmed; on the appeal, the judgment is reversed insofar as it limited the award of postconviction credit to the date of the Appellate Court’s reversal rather than ten days after the judgment of the Supreme Court, and the case is remanded to the habeas court with direction to correct the judgment in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 18-98d provides: “(a) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1,1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presen-tence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of ten dollars.
      “(b) In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction of any portion of a fine not remitted or sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against him may not be counted more than once in computing good conduct reduction under this subsection.
      “(c) The commissioner of correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person’s sentence; provided in no event shall credit be allowed under subsection (a) in excess of the sentence actually imposed.”

       General Statutes § 53a-38 (c) provides: “When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.”

       General Statutes § 18-98a provides: “Each person committed to the custody of the commissioner of correction who is employed within the institution to which he was sentenced, or outside as provided by section 18-100, for a period of seven consecutive days, except for temporary interruption of such period as excused by the commissioner for valid reasons, may have one day deducted from his sentence for such period, in addition to any other earned time, at the discretion of the commissioner of correction.”

       General Statutes § 18-98b provides: “In addition to any commutation or diminution of sentence or any meritorious time service award which may have been granted under section 18-7 or 18-7a any inmate committed to the custody of the commissioner of correction for a definite term, or for a term with a minimum sentence imposed, may have not more than one hundred and twenty days deducted from any one continuous term of imprisonment as an outstandingly meritorious performance award in the discretion of the commissioner of correction for exceptional personal achievement, accomplishment and other outstandingly meritorious performance, provided any serious act of misconduct or insubordination or refusal to conform to institution regulations occurring at any time during his confinement shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all, or any portion, of any time awarded under this section. When any prisoner is held under more than one conviction the several terms of imprisonment imposed thereunder shall be construed as one continuous term for purposes of determining eligibility for any outstandingly meritorious performance award authorized by this section.”

       General Statutes § 18-7a provides: “(a) Except as provided in subsections (b) and (c) any person sentenced to a term of imprisonment, on and after October 1,1976, and while still serving such sentence whether such sentence is for a definite, indefinite or indeterminate term, and regardless of the institution wherein the prisoner is confined may, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a commutation or diminution of his sentence in the amount of ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for a part of a month, for the sixth and each subsequent year of a sentence of more than five years. In the case of an indeterminate sentence, such credit shall apply to both the minimum and maximum term. In the case of an indefinite sentence, such credit shall apply to the maximum term only. Any act of misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such credit by the commissioner or his designee.
      “(b) Except as provided in subsection (c), any person sentenced to a term of imprisonment for an offense committed on or after July 1,1981, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.
      “(c) Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”


text:
    JOHN ANTHONY GRAHAM v. COMMISSIONER OF CORRECTION
    (13839)
    Dupont, C. J., and Foti and Lavery, Js
    Argued June 2
    decision released September 26, 1995

      Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   LAVERY, J.

This is an appeal by the petitioner from the judgment rendered by the habeas court denying his petition seeking a credit for the time spent in custody between the date his sentence was vacated on appeal and the date of its reimposition. We affirm the judgment of the habeas court.

The following facts were agreed to by the parties and are the basis on which the habeas court made its ruling. On November 28, 1983, the petitioner was sentenced in the judicial district of New London, in Docket No. 10-128110, to a total effective sentence of thirty years following his conviction by a jury of robbexy in the first degree and burglary in the first degree. On February 3, 1984, the petitioner was sentenced in the judicial district of New London, in Docket Nos. 10-128190A, 10-128190B and 10-128229, to three concurrent fifteen year terms of incarceration, concurrent to the thirty year sentence in Docket No. 10-128110, for a total effective sentence of thirty years. On May 27, 1986, in State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986), the state Supreme Court overturned the petitioner’s conviction in Docket No. 10-128110, and ordered a new trial. The petitioner’s thirty year sentence in that case was vacated. The petitioner did not appeal his convictions in Docket Nos. 10-128190A, 10-128190B and 10-128229.

On October 17, 1986, following his conviction on retrial in Docket No. 10-128110, the petitioner was resentenced in the judicial district of New London to a thirty year term of incarceration, concurrent to the sentences in Docket Nos. 10-128190A, 10-128190B and 10-128229, for a total effective sentence of thirty years.

Upon the petitioner’s resentencing, the respondent recalculated the petitioner’s thirty year sentence in Docket No. 10-128110; the respondent did not incorporate the petitioner’s time previously served from May 28, 1986, through October 16, 1986, the time during which the petitioner’s sentence was vacated.

The petitioner challenged the respondent’s failure to give him credit on this sentence for the postappeal time the petitioner was in custody on other charges. The petitioner challenged other actions of the respondent in the same action but they are not at issue in this appeal. The habeas court combined this case with another habeas action, which is also on appeal to this court. Steve v. Commissioner of Correction, 39 Conn. App. 455, 665 A.2d 168 (1995). Steve was decided before this case, and that decision is the basis of our decision in this case.

Although both cases were decided by the habeas court in the same memorandum of decision, the habeas court granted the parties in Steve certification to appeal and to cross appeal but denied the petitioner in this case certification to appeal pursuant to General Statutes § 52-470 (b). We must first decide if the habeas court abused its discretion in denying the petitioner certification to appeal. Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994).

In Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995), the Supreme Court set the standard for deciding abuse of discretion on the issue of certification in such a case. “We recognize that [i]n enacting § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Simms v. Warden, supra, 616, quoting Lozada v. Deeds, supra, 432. Thus, if an appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion. Simms v. Warden, supra, 616.” (Emphasis in original; internal quotation marks omitted.) Copas v. Commissioner of Correction, supra, 150-51.

The issue of what jail time credit, if any, is to be given to a prisoner, whose conviction on one charge is reversed and vacated, but who is confined to jail on another conviction between the vacating of the sentence, and the reconviction and reimposition of the sentence, is a case of first impression in Connecticut. We hold that the issue is debatable among jurists of reason and that a court could resolve the issue in a different manner. We conclude that as a matter of law this appeal is not frivolous and that the habeas court abused its discretion and the case is properly before us.

In Steve v. Commissioner of Correction, supra, 39 Conn. App. 467-69, we held that a petitioner who is serving a concurrent sentence between the time of his successful appeal and his reconviction and resentenc-ing on two vacated charges does not receive credit during that period toward the resentencing pursuant to General Statutes § 18-98d, which eliminates credit for time spent serving a sentence on another charge. In Steve v. Commissioner of Correction, supra, 467-69, we based our ruling on United States v. Markus, 603 F.2d 409 (2d Cir. 1979), and Thacker v. Garrison, 527 F.2d 1006 (4th Cir. 1975) (per curiam), which ruled that North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), precluded imposition of multiple punishments for the same act but does not give the petitioner who is convicted of multiple offenses a right to apply one punishment to all offenses. United States v. Markus, supra, 412. We note in this case as in Steve v. Commissioner of Correction, supra, 469, that there is no claim that any time or credit from the vacated sentence was not applied nor is there a claim or a factual predicate that the new sentence increased the severity of the punishment of the petitioner.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-470 provides: “(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.
      “(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       General Statutes § 18-98d (a) provides: “Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1,1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of ten dollars.”