text:
    WENDY MCDONALD ET AL. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
    (AC 22876)
    Lavery, C. J., and Schaller and Peters, Js.

      Argued March 18
    officially released October 7, 2003

      David A. Zipfel, with whom was Donna M. Britschgi, for the appellants (plaintiffs).

      Anne Kelly Zovas, with whom, on the brief, was Courtney C. Stabnick, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiffs, Wendy McDonald and John McDonald, appeal from the summary judgment rendered in favor of the defendant, National Union Fire Insurance Company of Pittsburgh, PA, in this action to recover underinsured motorists benefits. The plaintiffs sought to recover benefits under a policy issued by the defendant to Wendy McDonald’s employer, Cumberland Farms, Inc. On appeal, the plaintiffs claim that the trial court improperly (1) determined that the monetary limits on the underinsured motorists policy had been reduced to the statutory minimum of $20,000 and (2) speculated that the defendant, rather than Cumberland Farms, Inc., would write any checks payable to claimants under the policy. We affirm the judgment of the trial court.

The following facts are undisputed. Wendy McDonald was involved in a three car accident that occurred on June 23, 1999. At the time of the accident, she was driving a car owned by Cumberland Farms, Inc., and was acting within the scope of her employment. She sustained serious injuries necessitating at least eight surgical procedures. The plaintiffs brought an action seeking damages from Janice Schofield, the driver responsible for the accident, but Schofield’s liability policy limit was $20,000, which was not enough to cover the damages sustained by the plaintiffs. The plaintiffs’ action against Schofield was settled for $20,000.

The plaintiffs then instituted this action seeking underinsured motorists benefits from the defendant, which insured a fleet of vehicles owned by Cumberland Farms, Inc., including the vehicle driven by Wendy McDonald. The operative complaint consists of two counts seeking underinsured motorists benefits from the defendant pursuant to the policy it issued to Cumberland Farms, Inc. The defendant denied most of the allegations set forth in the complaint and asserted two special defenses. In the first special defense, the defendant alleged that the plaintiffs’ action was barred by General Statutes § 38a-336 (b). In the second special defense, the defendant alleged that the plaintiffs’ damages were limited to the $20,000 policy limit less any applicable credits or setoffs available by law, statute or regulation. The plaintiffs filed a reply denying the allegations of the special defenses.

The defendant subsequently filed a motion for summary judgment. In support of its motion, the defendant argued that Cumberland Farms, Inc., had elected to reduce the limit on its underinsured motorists policy to the statutory minimum of $20,000, and that the plaintiffs, having previously received $20,000 from Schofield, therefore were not entitled to benefits under the policy. The court granted the defendant’s motion. Additional facts will be set forth as necessary.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). For purposes of a motion for summary judgment, “ [a] material fact is a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003). Having set forth that standard, we now turn to the plaintiffs’ specific claims.

I

The plaintiffs claim that the court improperly determined that the limits on the underinsured motorists policy had been reduced to the statutory minimum of $20,000. Specifically, the plaintiffs argue that the attempt by Cumberland Farms, Inc., to reduce the underinsured motorists policy limits was ineffective because (1) the informed consent form signed by Cumberland Farms, Inc., did not comply with the requirements of § 38a-336 (a) (2) and the policy was subject to a deductible. We address those arguments in turn.

A

The plaintiffs argue that the attempt by Cumberland Farms, Inc., to reduce the underinsured motorists policy limit to $20,000 was ineffective because the informed consent form signed by Cumberland Farms, Inc., did not comply with the requirements of § 38a-336 (a) (2). Specifically, the plaintiffs argue that the form signed by Cumberland Farms, Inc., did not “contain . . . the premium cost for each of the coverage options available from the insurer,” as required by § 38a-336 (a) (2) (C).

The evidence submitted by the defendant in support of its motion for summary judgment established the following additional facts, which the plaintiffs do not dispute on appeal. The automobile insurance policy provided to Cumberland Farms, Inc., by the defendant had a liability limit of $2 million. Cumberland Farms, Inc., through its risk manager, John Shankey, requested a reduction of its uninsured and underinsured coverage limits to the statutory minimum of $20,000. The informed consent form that Shankey signed did not contain the premium costs for the various coverage options available from the defendant.

The court concluded in its memorandum of decision that “it is abundantly clear from a reading of the many documents and affidavits that it was the clear intention of Cumberland Farms, Inc., [the defendant] and all of the agents and intermediaries that the fleet policy in question carried [uninsured motorists-underinsured motorists] limits of $20,000-$40,000. The plaintiff has submitted no evidence to the contrary.” The court further concluded that “[s]trict adherence to the procedures mandated by § 38a-336 (a) (2) in order to reduce [uninsured motorists-underinsured motorists] coverage simply is not required in the context of commercial fleet insurance.” We agree with the court.

Section 38a-336 (a) (2) sets forth several criteria that a written request to reduce underinsured motorists coverage must contain. To be effective, the request generally must have all of the named insureds sign an informed consent form that contains: “(A) An explanation of uninsured and underinsured motorist insurance approved by the [insurance] commissioner; (B) a list of uninsured and underinsured motorist coverage options available from the insurer . . . (C) the premium cost for each of the coverage options available from the insurer”; General Statutes § 38a-336 (a) (2); and a heading indicating the importance of uninsured and underinsured insurance.

“[0]ne of the guiding principles underlying the requirement of a written rejection of higher limits is to assure that the rejection is the product of a ‘purposeful and knowing decision’; Travelers Indemnity Co. v. Malec, 215 Conn. 399, 403, [576 A.2d 485] (1990); and that the request is an ‘informed one.’ Nationwide Mutual [Ins.] Co. v. Pasion, 219 Conn. 764, 771, [594 A.2d 468] (1991).” J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (2d Ed. 1999) § 1.10.3, p. 110.

In Frantz v. United States Fleet Leasing, Inc., 245 Conn. 727, 739, 714 A.2d 1222 (1998), our Supreme Court held that § 38a-336 (a) (2) does not require the signatures of all insured parties in the commercial fleet context. The Supreme Court reached that holding by determining that the purpose of § 38a-336 (a) (2) was to ensure that consumers made informed and conscious choices when deciding whether to reduce uninsured and underinsured insurance coverage. Id., 737-38. The Supreme Court stated that “[a]though a corporation like Fleet Leasing may be considered a ‘consumer’ of insurance in the broadest sense of that word, we do not believe that a company that, like Fleet Leasing, is covered under a commercial fleet policy, falls within the class of consumers that the legislature sought to protect in requiring the signature of all named insureds under § 38a-336 (a) (2). Fleet Leasing, like many other large corporations covered under commercial fleet policies, has departments that specialize in legal and insurance matters. It is highly likely, therefore, that the Fleet Leasing personnel who negotiated the insurance provisions of the lease contract with General Dynamics were fully aware of the relative cost of uninsured motorist coverage and the implications of their decision . . . .” Id., 739. The Supreme Court stated that it would “not ignore the fact that commercial fleet insurance gives rise to a significantly different set of expectations and considerations than does personal automobile insurance.” Id., 741-42.

Section 38a-336 (a) (2) also has been interpreted to impose lesser requirements on self-insurers. In Boynton v. New Haven, 63 Conn. App. 815, 829, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001), we held that a self-insurer does not need to provide written notice when it chooses to reduce its uninsured and underinsured coverage. We stated that “[a] literal reading of the statute would have required the [defendant], wearing its hat as insured, to file a written request with itself, wearing its hat as insurer. That reading is untenable . . . [and] it would be an exercise in futility to require the [defendant] to file a written request with itself.” Id., 828-29.

The reasoning of Frantz and Boynton dictates the resolution of the issue in the plaintiffs’ appeal. Cumberland Farms, Inc., is a large commercial entity. Its insurance premiums range from $127,459 to $518,207. Here, as in Frantz, “[i]t is highly likely . . . that the . . . personnel who negotiated the insurance provisions of the [insurance] contract . . . were fully aware of the relative cost of uninsured motorist coverage and the implications of their decision . . . .” Frantz v. United States Fleet Leasing, Inc., supra, 245 Conn. 739.

The purpose of § 38a-336 (a) (2), including the provision requiring that insurers inform consumers of the premium cost for each of the underinsured motorists coverage options available, is to facilitate consumers’ decision-making process and to ensure that they give informed consent to reduced coverage. We do not believe that a company such as Cumberland Farms, Inc., which insures a fleet of vehicles to carry on a large commercial enterprise, falls within the class of consumers that the legislature sought to protect when it mandated the disclosure of premium costs under § 38a-336 (a) (2). Consequently, the fact that the informed consent form in the present case did not contain a statement of premium costs does not defeat the election by Cumberland Farms, Inc., to reduce its under-insured motorists coverage limits to $20,000.

B

The plaintiffs also argue that the attempt by Cumberland Farms, Inc., to reduce the undeiinsured motorists policy limits was ineffective because the policy was subject to an illegal deductible. Specifically, the plaintiffs maintain that the defendant and Cumberland Farms, Inc., arrived at an arrangement, separate from the subject policy, pursuant to which Cumberland Farms, Inc., would shoulder the cost of paying any claims under the policy. According to the plaintiffs, that alleged arrangement was improper because Cumberland Farms, Inc., essentially became a self-insurer without complying with the provisions of General Statutes § 14-129 and because a deductible on an uninsured motorists policy is illegal. For those reasons, the plaintiffs assert, the request by Cumberland Farms, Inc., to reduce its policy limit was invalid. We are not persuaded.

Even if we assume arguendo that the plaintiffs are correct in their assertions that the defendant and Cumberland Farms, Inc., entered into an agreement making Cumberland Farms, Inc., financially responsible for paying claims under the subject policy and that such an agreement is unlawful, we are unable to see why those factors would render the election by Cumberland Farms, Inc., of the minimum underinsured motorists policy limit invalid and therefore entitle the plaintiffs to avail themselves of $2 million of coverage. We are not aware of any legal principle that would provide a basis for such a result.

We note that the present action is one on the underinsured motorists policy; the sole theory of liability set forth in the plaintiffs’ complaint is that the defendant has a duty under the policy to pay benefits to the plaintiffs. “In an action on an insurance policy, the conduct giving rise to the insurer’s liability is a failure to pay out the policy proceeds when the insurer is contractually bound to do so. . . . [T]he insurer’s duty to comply with the policy provisions stems from the private insurance agreement and is contractual in nature.” Lees v. Middlesex Ins. Co., 219 Conn. 644, 653, 594 A.2d 952 (1991). Pursuant to the insurance policy in the present case, the defendant is required to provide only the level of coverage that it has agreed with Cumberland Farms, Inc., to provide. As we stated in part I A, Cumberland Farms, Inc., made a valid election to purchase only the minimum level of underinsured motorists coverage.

Moreover, Cumberland Farms, Inc., does not have a duty to provide more than minimum coverage. As previously stated, it is well established that any insured may elect to carry only the statutory minimum underinsured motorists coverage of $20,000. See General Statutes §§ 38a-336 (a) (2) and 14-112 (a). It also is now well established that self-insurers need only provide that same minimum level of coverage. See Serra v. West Haven, 77 Conn. App. 267, 272, 822 A.2d 1018 (2003); Boynton v. New Haven, supra, 63 Conn. App. 827. “The applicability of the statutory minimum is reasonable because the exposure of commercial insurers is not unlimited. . . . [S] elf-insurers are entitled to the same protection as is afforded to commercial insurers.” Boynton v. New Haven, supra, 827. Thus, to an employee such as Wendy McDonald, it makes no practical difference whether the employer maintains uninsured motorists coverage by purchasing an insurance policy or by way of self-insurance; in either case, the employer may choose to provide only the minimum coverage required by statute. Thus, from the employee’s point of view, the details of the employer’s arrangements for providing the required coverage are not relevant as long as the coverage is provided.

The plaintiffs have not explained how the arrangement that they claim exists between Cumberland Farms, Inc., and the defendant would create a duty on the part of the defendant to provide more than minimum coverage. Any such arrangement would not change the plaintiffs’ entitlement under the subject policy. Thus, even if we assume that the facts asserted by the plaintiffs are true, they are not material because they do not make a difference in the result of the case. See Stokes v. Lyddy, supra, 75 Conn. App. 257. We agree with the court that there is no nexus between who ultimately pays the benefits under the policy and the effectiveness of the insured’s election of reduced coverage. As the court noted, Cumberland Farms, Inc., clearly and unequivocally elected to provide the statutory minimum coverage to its employees. The plaintiffs’ assertion of an illegal self-insurance arrangement would not invalidate that election. The court therefore properly concluded that the limits on the underinsured motorists policy had been reduced to the statutory minimum of $20,000.

II

The plaintiffs next claim that the court improperly speculated that the defendant, rather than Cumberland Farms, Inc., would write any checks payable to claimants under the policy. We are not persuaded.

In its memorandum of decision, the court stated: “The plaintiffs also suggest that the request for the reduction of coverage was ineffective because Cumberland Farms, Inc., was, at the $20,000-40,000 level, effectively a self-insured. It may well be, as suggested [previously], that there was an arrangement in effect such that Cumberland Farms, Inc., ended up paying for such claims. Yet, there is no suggestion that regardless of the specifics of the arrangement, the clear and unequivocal intent of the insurer and the insured was anything other than to provide coverage equal to the statutory minimum. I do not see how a result of the insured’s paying, one way or another, the amount of the minimum coverage has any effect on the effectiveness of the election of coverage. And, as indicated [previously], our appellate courts have consistently held that the specific requirements of § 38a-336 (a) (2) do not strictly apply to commercial fleet policies.” In a footnote, the court stated that “[a]ny check to claimants presumably would be written by National Union.” That footnote forms the basis of the plaintiffs’ claim.

The plaintiffs concede that they do “not view this factual finding in itself as important . . . .” They nevertheless cite the footnote as significant in that “ [i]t served to justify the court’s opinion . . . .” They further argue that the sentence “does illuminate the underpinnings of the court’s decision” and “is an example of the approach the court took in this case.”

We can see no way to reconcile the plaintiffs’ argument that the court’s statement “served to justify the court’s opinion” with its concession of the unimportance of the footnote. We already have determined that any arrangement between Cumberland Farms, Inc., and the defendant regarding who would ultimately provide payment for claims under the policy would be irrelevant to the plaintiffs’ case. Consequently, as the plaintiffs’ concession seems to recognize, the court’s presumption regarding who would write a check could not have made any difference in the outcome of the case. It therefore did not constitute a material fact. See id. The court properly determined that there were no genuine issues of material fact and that the defendant was entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The first count was brought by Wendy McDonald, and the second count was brought by her husband, John McDonald, under a theory of loss of consortium.

       General Statutes § 38a-336 (a) (2) provides: “Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after January 1,1994, shall provide uninsured and underinsurod motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state: ‘WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER.’ ”

       Although Boynton involved a self-insurer, “self-insurers are treated no differently than commercial insurers . . . .” Serra v. West Haven, 77 Conn. App. 267, 272-73, 822 A.2d 1018 (2003).

       General Statutes § 14-129 provides: “(a) Any person in whose name more than twenty-five motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the commissioner as provided in subsection (b) of this section.
      “(b) The commissioner may, in his discretion, upon the application of such person, issue a certificate of self-insurance when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such person.
      “(c) Upon not less than five days’ notice and a hearing pursuant to such notice, the commissioner may, upon reasonable grounds, cancel a certificate of self-insurance. Failure to pay any judgment within thirty days after such judgment has become final shall constitute a reasonable ground for the cancellation of a certificate of self-insurance.”

       Because the plaintiffs’ action was brought against the defendant insurer and not against Cumberland Farms, Inc., the plaintiffs’ argument that Cumberland Farms, Inc., is self-insured, if taken to its logical conclusion, would seem to bar any recovery. Because the plaintiffs’ entire case depends on the existence of a valid underinsured motorists policy, the plaintiffs have taken the position throughout their brief that the alleged arrangement between the defendant and Cumberland Farms, Inc., invalidated the election by Cumberland Farms, Inc., of reduced coverage, but did not invalidate the policy itself. No analysis has been provided as to the basis, in law or in fact, for drawing that distinction.
      Indeed, at certain points in their brief, the plaintiffs appear to struggle with that distinction and argue, contrary to the allegations of their complaint, that there is in fact no valid underinsured motorists policy in effect. Specifically, they state: “Viewing the facts in a light most favorable to the plaintiffs suggests there was no [uninsured motorists-underinsured motorists] coverage provided.” They further state that “viewing the evidence in a light most favorable to the plaintiffs, the defendant . . . provided no underinsured motorists coverage at all.” Those statements could be read as a concession by the plaintiffs that they have no case. Because we affirm the judgment of the court on other grounds, however, we need not make that determination.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    KATHERINE RATHBLOTT v. PAUL L. RATHBLOTT
    (AC 23122)
    Foti, Dranginis and Bishop, Js.

      Argued May 8
    officially released October 14, 2003

      William R. Donaldson, with whom, on the brief, were Marc J. Grenier and Christopher Norris, for the appellant (plaintiff).

      Paul L. Rathblott, pro se, the appellee (defendant).
   Opinion

DRANGINIS, J.

The plaintiff, Katherine Rathblott, now known as Katherine Mersereau, filed this dissolution of marriage action against the defendant, Paul L. Rathblott, in November, 1997. In a memorandum of decision dated April 6, 1999, the trial court, Harrigan, J., rendered judgment dissolving the marriage of the parties. The plaintiff now appeals from the postjudgment orders of the court, Hon. John T. Downey, judge trial referee, regarding the division of certain personal property and the costs associated with storing that property. On appeal, the plaintiff claims that the court (1) lacked jurisdiction to disturb the court’s April 6, 1999 decree of dissolution by rendering postjudgment orders regarding the sale of the parties’ personal property and (2) improperly ordered that the parties were to divide equally all postjudgment costs associated with the storage of their undivided personal property. We conclude that the court lacked authority to issue post-judgment orders respecting the parties’ personal property and the sharing of costs associated with the storage of that property. Accordingly, we reverse the judgment of the trial court.

The relevant facts and procedural history are as follows. In a memorandum of decision dated April 6,1999, the court, Harrigan, J., rendered judgment dissolving the marriage of the parties. The court also divided most of the parties’ real and personal property at that time. The memorandum of decision contains numerous provisions regarding that division. Two of those provisions are relevant to the plaintiffs appeal. First, in paragraph eighteen, the court stated: “The plaintiff is awarded her jewelry, antique boxes and art work, total value given of $19,000 by her, as her sole property.” Second, in paragraph twenty-six, the court stated: “The plaintiff and defendant are to attempt to complete the division of their furniture, furnishings and miscellaneous tangibles. If unable to do so, either party may move the court for an articulation.” Neither party appealed from the judgment of dissolution.

On July 12, 1999, the plaintiff filed a motion for contempt in which she alleged that the defendant was in contempt of the judgment of dissolution because he possessed some of the property that the court had awarded to her in paragraph eighteen of its memorandum of decision and that he had failed to deliver that property to her. That motion was never heard because the plaintiff did not pursue it, and it was marked off the court’s calendar on October 12, 1999, pursuant to Practice Book § 25-34 (c).

The parties made numerous postjudgment attempts to complete the division of their personal property; all failed. Thereafter, on April 30, 2002, approximately three years after the court had rendered judgment dissolving the parties’ marriage, the defendant filed two postjudgment motions relating to the parties’ personal property. His first motion, entitled “motion regarding personal property,” requested that the court schedule a hearing regarding the division of the parties’ personal property or, in the alternative, that the court order the parties to exchange position statements by a date certain, thereby affording the court a basis for rendering a decision regarding a division of the property. The defendant also filed a motion for an order regarding storage fees in which he alleged that after the marital home was sold, he was forced to move the parties’ as yet undivided personal property to a storage facility, and that the plaintiff had refused to contribute toward the costs of moving and storing that property. He requested an order requiring the plaintiff to pay half of those costs.

On May 13, 2002, without conducting an evidentiary hearing, Judge Downey ordered that the parties’ personal property, which was still being held in storage, be auctioned and that both parties share equally the costs associated with the storage and auction of the property. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court lacked subject matter jurisdiction to order a sale of the parties’ stored personal property because some of the property being held in storage may have been property that the court previously had awarded to her in paragraph eighteen of its memorandum of decision dissolving the marriage. In other words, she argues that in his motion regarding personal property, the defendant essentially was seeking a modification of the terms of the property settlement and that a court may not properly retain jurisdiction over orders regarding the division of marital property. We conclude that the court lacked authority to issue orders on the defendant’s postjudgment motions regarding personal property and, accordingly, reverse the judgment.

Because a determination regarding a court’s subject matter jurisdiction is a question of law, our review is plenary. Giulietti v. Giulietti, 65 Conn. App. 813, 846, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). We begin our analysis by noting that “[ujnlike jurisdiction over the person, subject matter jurisdiction cannot be created through consent or waiver. . . . Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented. . . . The court must fully resolve it before proceeding further with the case. . . . Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002).

“On its face, the statutory scheme regarding financial orders appurtenant to dissolution proceedings prohibits the retention of jurisdiction over orders regarding lump sum alimony or the division of the marital estate. General Statutes § 46b-81 (a) provides in relevant part: (a) At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . . Similarly, General Statutes § 46b-82 also provides that the court may order alimony [a]t the time of entering the [divorce] decree .... General Statutes § 46b-86, however, explicitly permits only modifications of any final order[s] for the periodic payment of permanent alimony .... Consequently, the statute confers authority on the trial courts to retain continuing jurisdiction over orders of periodic alimony, but not over lump sum alimony or property distributions pursuant to § 46b-81. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980) (§ 46b-81 deprives trial court of continuing jurisdiction over assignment of property appurtenant to dissolution proceeding).” (Internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 273-74, 752 A.2d 1023 (1999).

In the present case, however, this court has no way of knowing whether the trial court, in fact, ordered sold some of the property that it had previously awarded to the plaintiff because she never raised that issue before the court during argument on the defendant’s motion. Furthermore, the court failed to conduct an evidentiary hearing on the defendant’s motion before issuing its order.

Under such circumstances, we ordinarily would be inclined to remand the case for an evidentiary hearing. See Roberts v. Roberts, 32 Conn. App. 465, 474-76, 629 A.2d 1160 (1993). In the present case, however, we conclude that it is unnecessary to do so. We conclude, instead, that § 46b-81 authorizes the court to issue orders respecting marital property only at the time of dissolution; it does not authorize postjudgment orders for the division of marital property. Accordingly, in the present case, the court lacked authority to issue a postjudgment order that the marital property, which the court failed to assign to either party at the time of dissolution, be sold at auction.

As our Supreme Court has explained, there is a “distinction between a trial court’s jurisdiction and its authority to act under a particular statute. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . .

“Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).

It is clear that in the present case, the court had jurisdiction to make a determination regarding the division of the parties’ personal property because General Statutes § 46b-l provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in “family relations matters,” including those involving property division.

“[I]t is equally well settled [however] that [c]ourts have no inherent power to transfer property from one spouse to another; instead, that power must rest upon an enabling statute.” (Internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 272, 752 A.2d 1023 (1999). The court’s authority to transfer property appurtenant to a dissolution proceeding rests on § 46b-81. That section provides in relevant part: “At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. ...” (Emphasis added.) General Statutes § 46b-81 (a). Accordingly, the court’s authority to divide the personal property of the parties, pursuant to § 46b-81, must be exercised, if at all, at the time that it renders judgment dissolving the marriage. See Rosato v. Rosato, 77 Conn. App. 9, 14, 822 A.2d 974 (2003) (assignment of property may be made only at time of marital dissolution).

The recent case of Bee v. Bee, 79 Conn. App. 783, 831 A.2d 833 (2003), is factually distinguishable. In rendering its judgment of dissolution, the trial court in Bee ordered the defendant to transfer 50 percent of two individual retirement accounts to the plaintiff by way of a qualified domestic relations order. The court also ordered that the defendant was to retain several items of personal property and that he was to remove those items from the marital home. With respect to those two orders, the court stated that it would retain jurisdiction to ensure that its orders were effectuated by the parties.

In the present case, the court that rendered the judgment of dissolution did not exercise its authority to divide the parties’ personal property at the time that it rendered judgment dissolving the marriage, bastead, the court left it to the parties “to complete the division . . . .” Although the court did state that if the parties were unable to do so, either party could move for an articulation, an articulation is simply an explanation of a previous order or ruling. See, e.g., Connecticut National Bank v. Gager, 263 Conn. 321, 325, 820 A.2d 1004 (2003); Gilbert v. Gilbert, 73 Conn. App. 473, 476, 808 A.2d 688 (2002); State v. Constantopolous, 68 Conn. App. 879, 881 n.2, 793 A.2d 278, cert. denied, 260 Conn. 927, 798 A.2d 971 (2002). The court’s postjudgment order, therefore, contemplates that a previous ruling on the distribution had been made. There was, however, no order made regarding the distribution of the parties’ personal property, other than that the parties were to attempt to divide it. An articulation, therefore, would be of no help to the parties here, even if the parties had attempted to follow that road map by filing a motion for articulation.

We therefore conclude that the court lacked authority under § 46b-81 to issue postjudgment orders regarding the parties’ personal property long after the time of dissolution.

II

The plaintiff also claims that the court improperly ordered the parties to divide equally all postjudgment costs associated with their undivided personal property in violation of both the judgment of dissolution and a postjudgment order of the court. She argues that the defendant was barred by res judicata from seeking an order requiring her to share in the costs of the storage fees. We disagree.

“The applicability of res judicata raises a question of law that is subject to our plenary review.” Richards v. Richards, 67 Conn. App. 381, 383, 786 A.2d 1247 (2001). “The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties ... in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.” (Internal quotation marks omitted.) Id.

The following additional facts are relevant to our resolution of that issue. In paragraph fifteen of its April 6, 1999 memorandum of decision, the court stated that the “New Canaan Bank and Trust (account 6000023866), containing $42,094.64 as of January 6,1999 is awarded to the plaintiff as her sole property.” In paragraph twenty-five, the court stated: “The defendant shall be solely responsible for his listed liabilities.”

Furthermore, the record reveals that on April 15, 1999, after the court rendered the judgment of dissolution, the defendant contracted with a moving company to have the parties’ miscellaneous personal property moved and stored. In so doing, the defendant incurred costs for both moving and storage.

Thereafter, the defendant apparently withdrew funds from the New Canaan Bank and Trust account, which had been awarded to the plaintiff in the judgment of dissolution, representing, what he believed to be, the plaintiffs share of the costs to move and to store that property. On June 23, 1999, the plaintiff filed a motion for contempt, arguing that at the time of trial, the account contained $42,094.64, that the account had been awarded to her, that the defendant had paid only $8355.86 of the total amount to her and, therefore, that he should be ordered to pay to her the balance of $33,738.78. That motion was argued on July 12, 1999, before the court, Harrigan, J. During argument, the court indicated to the defendant that it would not order that he be reimbursed for storage costs, postjudgment. The court stated that it could not “settle it by tinkering with this judgment. It’s now final. If you think you’ve got an unjust enrichment, you’ll have to seek some separate litigation . . . .” The parties stipulated that the defendant would pay to the plaintiff the sum of $26,035.18, and the court denied the motion for contempt.

In the present case, it is clear that there was no final judgment on the merits regarding the storage fees and, therefore, the defendant was not barred, pursuant to the doctrine of res judicata, from seeking a partial reimbursement of those costs. We also conclude, however, that because the order regarding storage fees constituted an assignment of property and was collateral to the court’s order regarding the sale of the property, the court had no authority to make such an order post-judgment.

We appreciate the fact that the court, by ordering a practical solution to the parties’ stalemate, saw the folly of another costly and inefficient lawsuit to divide the property after so many years. The court tried to save the parties from their own gamesmanship; however, it did so in a way that we cannot affirm in light of the limitation of § 46b-81.

The judgment is reversed.

In this opinion the other judges concurred.

       The plaintiff also claims that the court deprived her of personal property without an evidentiary hearing in violation of her due process rights. In light of our conclusion that the court lacked authority to entertain the defendant’s motion regarding a division of the parties’ personal property, we decline to address the plaintiffs due process claim.

       Practice Book § 25-34 (c) provides in relevant part: “Failure to appear and present argument on the date set by the judicial authority shall constitute a waiver of the right to argue unless the judicial authority orders otherwise. Unless for good cause shown, no motion may be reclaimed after a period of three months from the date of filing. . . .”

       The defendant tiled four postjudgment motions. The court denied the first of those motions because counsel did not certify that a copy was mailed to the plaintiff or the plaintiffs counsel. The defendant filed the second, regarding discovery, on October 30, 2000. That motion was disposed of by stipulation on May 14, 2001. Pursuant to the stipulation, the plaintiff agreed to comply with the defendant’s postjudgment discovery requests by May 28,2001. Additionally, pursuant to the stipulation, the court referred motions 233 and 238, regarding the division of the parties’ personal property, to the family relations office for mediation.

       There was no explicit order that the parties share equally in the proceeds of such sale.

       We note that our holding in this appeal should not be construed as one that forecloses the parties from initiating an independent proceeding seeking a determination regarding their undivided personal properly, and the costs associated with moving and storing that property. See, e.g., Richards v. Richards, supra, 67 Conn. App. 381.


author: PER CURIAM.

text:
    TAX COLLECTOR OF THE CITY OF NEW HAVEN v. KARYN STETTINGER ET AL.
    (AC 23186)
    Foti, Dranginis and West, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      Max F. Brunswick filed a brief for the appellant (named defendant).

      Alfred J. Onorato filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Karyn Stettinger appeals following the trial court’s denial of her motion to open the judgment of foreclosure by sale, claiming that the court improperly denied her motion. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The defendant was the owner of a certain piece of property at 198 Frank Street in New Haven. The plaintiff, the tax collector of the city of New Haven, determined that property taxes had not been paid and thereafter commenced an action to foreclose the tax hens. Abode service was made on the defendant at 343 Peck Street.

The court granted the plaintiffs motion for default for failure to appear on December 27, 2001. On January 22, 2002, the court rendered judgment of foreclosure by sale. Notice of the sale was published in the New Haven Register on April 17, 2002.

On April 25, 2002, the defendant filed a “motion to open judgment to dismiss case.” In the motion, the defendant alleged that she never had resided at the address where service was made. Furthermore, the defendant claimed that she did not learn of the foreclosure sale until notice was published in the New Haven Register on April 17,2002. The defendant argued, therefore, that the court lacked jurisdiction over her and that the action should be dismissed. After hearing evidence on May 31, 2002, the court, in an oral decision, denied the defendant’s motion. This appeal followed.

It is black letter law that “[t]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction. . . .

“In many cases jurisdiction is immediately evident, as where the sheriffs return shows abode service in Connecticut. . . . When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made upon her that would give the court jurisdiction over her person, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer’s return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.” (Citation omitted; emphasis added; internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn. App. 768, 771, 789 A.2d 528 (2002).

In Collins v. Scholz, 34 Conn. Sup. 501, 502, 373 A.2d 200 (1976), the Appellate Session of the Superior Court stated that “[wjhether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriffs return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise.” See also Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 792, 437 A.2d 141 (1981).

It is well established that we review findings of fact under the clearly erroneous standard. DiVito v. DiVito, 77 Conn. App. 124, 137, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003); see also Practice Book § 60-5. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) DiVito v. DiVito, supra, 137.

Mindful of the foregoing legal principles, we now turn to the present appeal. The marshal’s return of service indicated that he had served the defendant by leaving a true and attested copy of the complaint at her usual place of abode, 343 Peck Street. The defendant, however, testified that she had never lived at 343 Peck Street and had lived continuously at 231-33 Forbes Avenue since 1997. She further testified that she owned the building at 343 Peck Street and that she did have a mailbox at that location. She also admitted that she had been served at the Peck Street locations for various other foreclosure actions.

Marshal Gerald V. Cappiello testified that he previously had gone to 343 Peck Street to do a tenant search and, while there, had spoken with the defendant. He stated that she informed him that if he had any papers for her in the future, he was to place them in her mailbox at 343 Peck Street. He further testified that he subsequently served the defendant by placing the documents in her mailbox at 343 Peck Street on five or six subsequent occasions.

The court made an express finding that the testimony of the marshal was more credible than the testimony of the defendant, and that the defendant had instructed the marshal to make service by placing the documents in her mailbox at 343 Peck Street. Furthermore, the defendant had accepted service at the 343 Peck Street mailbox for other foreclosure actions. Accordingly, the court found that in this case, valid service had been made at the defendant’s usual place of abode.

The fact that the defendant testified that she lived continuously at the Forbes Avenue address since 1997 and that her driver’s license and tax records indicate her address as being on Forbes Avenue did not mandate a finding that service be made there. Both this court and our Supreme Court have stated that “[o]ne may have two or more places of residence within a State . . . and each may be a usual place of abode. . . . Service of process will be valid if made in either of the usual places of abode.” (Emphasis added; internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, supra, 67 Conn. App. 772; see also Clegg v. Bishop, 105 Conn. 564, 570, 136 A. 102 (1927).

We conclude that it was not clearly erroneous for the court to find that the defendant did not present sufficient evidence to disprove the existence of proper-service. The court, therefore, had jurisdiction to render the judgment of foreclosure by sale against the defendant. Accordingly, the court properly denied the defendant’s motion.

The judgment is affirmed.

       The other defendants, the water pollution control authority of New Haven, South Central Connecticut Regional Water Authority and Betty Campbell are not parties to this appeal. We therefore refer in this opinion to Stettinger as the defendant.

       We note that the defendant failed to provide this court with a.signed transcript of the court’s oral decision as required by Practice Book § 64-1 (a). “We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review. . . . This court, however, has the discretion to consider an appeal on its merits despite this procedural irregularity if the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” (Citation omitted; internal quotation marks omitted.) Wachter v. UDV North America, Inc., 75 Conn. App. 538, 543 n.7, 816 A.2d 668 (2003). Because the transcript contains a concise and detailed statement of the court’s decision and reasoning, we will review the merits of the defendant’s claim.

       The parties stipulated that five other foreclosure actions had been commenced against the defendant in connection with various properties in New Haven and, in each action, the marshal’s return showed that service was made at 343 Peck Street. Service in those actions occurred in January and February, 2002. The defendant paid the taxes on those other properties, and the foreclosure actions all were withdrawn.


text:
    JASON CASIANO v. COMMISSIONER OF CORRECTION
    (AC 23358)
    Foti, Dranginis and West, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      Brian D. Russell filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, and Lisa A. Riggione and Linda N. Howe, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jason Casiano, appeals following the denial by the habeas court of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. The petitioner claims that the court improperly determined that his trial counsel, Lawrence S. Hopkins, had provided effective assistance. Specifically, the petitioner claims that Hopkins was ineffective by (1) not conducting a pretrial investigation into the petitioner’s education and substance abuse background, (2) failing to have certain witnesses testify at the hearing on a motion to suppress certain evidence, (3) coercing the petitioner to accept a plea bargain that was not offered, (4) failing to communicate with the petitioner and (5) not requesting a continuance to prepare for trial. We dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. The petitioner entered conditional pleas of nolo contendere to charges of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-49, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-48. The petitioner thereafter was sentenced to a total effective term of fifty years incarceration. The petitioner then appealed from the trial comb’s ruling denying his motion to suppress a statement he gave to the police. This court denied the petitioner’s appeal. State v. Casiano, 55 Conn. App. 582, 740 A.2d 435 (1999), cert. denied, 252 Conn. 942, 747 A.2d 518 (2000).

The petitioner subsequently filed a five count petition for a writ of habeas corpus, claiming that a variety of acts and omissions by Hopkins denied the petitioner the effective assistance of counsel. The habeas court, after hearing testimony over a period of five days, denied the petitioner’s habeas petition. The comb thereafter denied the petition for certification to appeal from the denial. This appeal followed.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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.” (Citations omitted; internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 476-77, 722 A.2d 286 (1999).

In denying the petition for certification to appeal from the denial of the petition for a writ of habeas corpus, the court stated that its “dismissal of the habeas petition was based upon the court’s factual determination after a consideration of all the evidence presented at the habeas trial and the court’s further assessment of the credibility of all witnesses who testified at the habeas trial.”

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 68 Conn. App. 190, 194, 791 A.2d 588, cert. denied, 260 Conn. 910, 795 A.2d 544 (2002). Furthermore, the habeas court had before it sufficient evidence to find as it did. There was ample evidence to support the court’s finding that the petitioner’s trial counsel was not ineffective.

After thoroughly reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, supra, 230 Conn. 612.

The appeal is dismissed.


text:
    DEY, SMITH AND COLLIER, LLC v. ANITA F. STEENSON
    (AC 23732)
    Foti, Dranginis and West, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      Vincent M. Marino and Barbara M. Schellenberg filed a brief for the appellant (defendant).

      John-Henry M. Steele filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Anita F. Steenson, appeals from the order of the trial court granting a prejudgment attachment in the amount of $66,307.40 in favor of the plaintiff, Dey, Smith and Collier, LLC. The defendant claims that the court improperly found that the plaintiff had demonstrated sufficient probable cause that a judgment would be rendered in that amount. We affirm the order of the trial court.

The following facts and procedural history are necessary for the resolution of the defendant’s appeal. The defendant, an attorney licensed to practice law in Connecticut, was associated with the plaintiff, a Connecticut law firm. Although the parties dispute the extent of the working relationship, it is clear that the terms of a “Memo of Agreement” between them governed the division of legal fees. The parties agreed that fees earned by the defendant were to be divided and disbursed on a monthly basis. For the first $10,000 in fees generated by the defendant, 45 percent went to the plaintiff and 55 percent went to the defendant. For the next $10,000, 40 percent went to the plaintiff and 60 percent went to the defendant. If the defendant generated more than $20,000 in fees, but less than $100,000, 35 percent went to the plaintiff and 65 percent went to the defendant. For fees greater than $100,000, 20 percent went to the plaintiff and 80 percent went to the defendant.

The relationship between the parties began to deteriorate, and on April 13, 2000, the defendant left the plaintiffs building and took certain files and computers with her. As a result of the defendant’s departure and removal of files, a dispute regarding fees ensued.

The plaintiff filed an application for a prejudgment attachment in the amount of $100,000. Accompanying the application was an unsigned, four count complaint that essentially alleged that the defendant had breached the contract between the parties, that the defendant was unjustly enriched and that the plaintiff was entitled to interest pursuant to General Statutes § 37-3a. After a hearing, the court granted the plaintiffs application, but only in the amount of $66,307.40.

The court based its award on testimony regarding two files. Edmund Q. Collier, a partner in the plaintiff law firm, testified that the defendant, while associated with the plaintiff, had worked on a divorce case and that the fees were approximately $60,000. He further stated that the defendant repeatedly had represented that the fee could not be collected.

Collier also testified about a dog bite case in which there was a settlement offer of $18,000. He stated that the plaintiff was entitled to a $6000 fee plus costs for that case. The defendant took the dog bite file and subsequently negotiated a settlement in the amount of approximately $30,000.

On appeal, the defendant argues that the plaintiff failed to produce sufficient evidence as to the damages it allegedly sustained. Specifically, the defendant claims that pursuant to the terms of the “Memo of Agreement,” the maximum amount of money the plaintiff would be entitled to for legal fees generated by the defendant in the amount of $60,000 was $22,500 (45 percent of $10,000, plus 40 percent of the next $10,000, plus 35 percent of the remaining $40,000; $4500 plus $4000 plus $14,000 equals $22,500). The defendant also claims that Collier’s testimony was insufficient to support a finding that the defendant had generated $60,000 in fees. Finally, the defendant claims that the evidence did not support a finding that the dog bite file supported an award of $6307.40.

We decline to review the defendant’s claim because the record before us is inadequate. The defendant failed to file a motion for articulation with respect to the amount of the attachment awarded by the court. “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The [appellant’s] failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Citation omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans Inc., 263 Conn. 191, 204, 819 A.2d 227 (2003).

Furthermore, as we often have stated, “[i]t is incumbent on the appellant to provide an adequate record for appellate review. See Practice Book § 60-5. Here, the [appellant] did not seek an articulation of the court’s findings. See Practice Book § 66-5. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claim] would be entirely speculative.” (Internal quotation marks omitted.) Santangelo v. Elite Beverage, Inc., 65 Conn. App. 618, 622, 783 A.2d 500 (2001).

In the present case, there is no factual record as to the court’s reasoning when it determined the amount of the attachment. After the court rendered its oral decision, counsel for the defendant made an oral motion to reconsider. The court denied the motion. Nevertheless, that denial did not obviate the requirement that the defendant take the necessary steps to ensure an adequate record for meaningfully appellate review. In the absence of such a record, we will not make any further inquiry.

The order is affirmed.

       The granting or denial of a prejudgment remedy is deemed a final judgment for purposes of appeal. General Statutes § 52-2781 (a).


text:
    NORA STEIN v. RICKEY A. HORTON ET AL.
    (AC 23606)
    Foti, Dranginis and West, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      David F. Borrino and Adam L. Bendett filed a brief for the appellant (plaintiff).

      Jennifer L. Booker and Scott W. Sawyer filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

In this action on a promissory note, the plaintiff, Nora Stein, appeals from the judgment of the trial court denying her motions to open the judgment and for reconsideration of the court’s dismissal of the action. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The plaintiff commenced an action to collect moneys owed to her by the defendants, Rickey A. Horton and Jason J. Horton, Sr. The court, Martin, J., granted the plaintiff s motion for summary judgment as to the defendants’ liability. The case was scheduled for a hearing in damages on May 6, 2002. When the plaintiff or her counsel failed to appear, the court, Hon. D. Michael Hurley, judge trial referee, dismissed the action. The plaintiff filed a motion to open the judgment of dismissal, which was granted by Judge Hurley. The case again was scheduled for a hearing in damages on July 15, 2002. The defendants appeared at the July 15, 2002 hearing in damages, but neither the plaintiff nor her counsel were present. In open court, Judge Hurley informed the defendants that if the plaintiffs counsel failed to appear at the next hearing in damages, the case would be dismissed with prejudice. At the August 12, 2002 hearing in damages, Judge Hurley twice called the plaintiffs case, but only the defendants were present. Judge Hurley then, in open court, dismissed the case with prejudice. Subsequently, on September 5, 2002, Judge Hurley denied the plaintiffs motion to open the judgment of dismissal and on October 10, 2002, denied the plaintiffs motion for reconsideration. The plaintiff appealed. Pursuant to the plaintiffs motion for articulation, Judge Hurley articulated his basis for dismissing the action.

“It is well established that [a] motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Searles v. Schulman, 58 Conn. App. 373, 376-77, 753 A.2d 420, cert. denied, 254 Conn. 930, 761 A.2d 755 (2000).

The judgment is affirmed.


text:
    GREGORY WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 23178)
    Foti, Dranginis and West, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      David B. Rozwaski filed a brief for the appellant (petitioner).

      Gerard P. Eisenman, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Gregory Williams, appeals from the habeas court’s judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly dismissed his petition after concluding that he did not establish that he was prejudiced by his trial counsel’s decision not to request a jury instruction on the defense of intoxication. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. The petitioner was convicted, following a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49, and assault in the first degree in violation of General Statutes § 53a-59. The petitioner was sentenced to twenty years imprisonment, execution suspended after fifteen years, plus five years probation. This court affirmed the petitioner’s conviction. State v. Williams, 44 Conn. App. 231, 689 A.2d 484, cert. denied, 240 Conn. 918, 692 A.2d 815 (1997).

The petitioner subsequently filed a petition for a writ of habeas corpus, alleging that his trial counsel, Richard Silverstein, provided ineffective assistance by failing to request a jury instruction on the defense of intoxication and failing to issue a subpoena to obtain certain records of medical treatment that allegedly would have refuted the state’s claim that the petitioner was faking an emotional illness. Following a hearing, the court denied each of the petitioner’s claims. The court thereafter granted the petition for certification to appeal to this corut.

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Greenfield v. Commissioner of Correction, 73 Conn. App. 583, 584-85, 809 A.2d 517, cert. denied, 262 Conn. 929, 814 A.2d 380 (2002).

It is the petitioner’s claim that his trial counsel’s representation was inadequate because he failed to request a jury instruction from the court on the defense of intoxication. In its memorandum of decision, the court found that the petitioner had failed to satisfy the second prong of Strickland. The court held that the petitioner was not prejudiced by the deficient performance of his counsel. The court found that “the record is devoid of evidence that would support a conclusion that if the intoxication charge had in fact been given, that the outcome of the trial would likely have been changed to the petitioner’s benefit. As a result, the petitioner’s . . . claim fails because he has not proven that if the intoxication charge had been given to the jury, such charge more likely than not would have changed the outcome of the trial.”

The petitioner’s claim fails on his misconception that “there does not have to be an actual demonstration of prejudice to meet the second prong of Strickland.” In support of his claim that there “have been findings of ineffective assistance of counsel based on trial counsel’s failure to either request or object to a jury instruction, without a showing of prejudice,” the petitioner relies on Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001), Commonwealth v. Gelpi, 416 Mass. 729, 625 N.E.2d 543 (1994), Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994), and McFadden v. State, 342 S.C. 637, 539 S.E.2d 391 (2000). That reliance, however, is misplaced. None of the cases on which the petitioner relies stands for the proposition that a petitioner can prevail on a claim of ineffective assistance of counsel without first making a showing of prejudice. Furthermore, our case law clearly states that “the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice . . . .” (Emphasis added; internal quotation marks omitted.) Alterisi v. Commissioner of Correction, 67 Conn. App. 625, 628, 789 A.2d 489 (2002). The petitioner, however, has failed to establish that he was prejudiced by his trial counsel’s representation. We therefore conclude that the court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

       The petitioner does not challenge the court’s decision in regard to his counsel’s failure to subpoena the medical records.


text:
    PATRICIA S. G. HARRIS v. JOSEPH E. SHEA, JR.
    (AC 23816)
    Foti, Dranginis and West, Js.
    Submitted on briefs September 10
    officially released October 14, 2003

      James R. Winkel filed a brief for the appellant (defendant).

      John H. Burns filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Joseph E. Shea, Jr., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Patricia S. G. Harris. On appeal, the defendant claims that the court improperly concluded that he personally borrowed funds from the plaintiff when the complaint alleged only that the defendant was a guarantor of the loan. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s appeal. In January, 2000, the defendant owned a 70 percent interest in Shea Chevrolet, Inc., a Connecticut corporation. The defendant also was the president of the corporation. The defendant’s brother, Douglas Shea, was the vice president, and the plaintiff was the office manager and bookkeeper. The parties had a family-like relationship.

On January 26,2000, the defendant asked the plaintiff to loan the corporation $25,000 because there was insufficient funds to meet its payroll obligations. The plaintiff presented the defendant with a check for the requested amount. The defendant told the plaintiff that he would repay the loan in approximately one week, after his wife returned from Florida. The court specifically found that although the plaintiff testified that the defendant had “guaranteed” the loan, that term was not used in its legal sense. Instead, the loan was made in reliance on the defendant’s personal promise, and the plaintiff expected the defendant, not the failing corporation, to repay her.

On February 4, 2000, the plaintiff received a partial payment from the corporation in the amount of $10,000. Later that month, however, the plaintiff issued a $10,000 check to the corporation. From February through July, 2000, the defendant paid the plaintiff $300 per month in interest. On June 2, 2000, the defendant sold the corporation. There was no evidence offered as to whether the defendant recognized any profit from the sale. The defendant, however, did not repay the outstanding loan to the plaintiff. The plaintiff commenced the present action with a two count complaint. The first count set forth a claim of breach of contract while the second count alleged unjust enrichment. The court rendered judgment in favor of the plaintiff with respect to the first count and awarded her $25,000. This appeal followed.

The sole issue on appeal is whether the court improperly concluded that the defendant personally had borrowed funds from the plaintiff where the complaint alleged only that the defendant was a guarantor of the loan.

As a prehminary matter, we set forth certain legal principles and the applicable standard of review. “[T]he interpretation of pleadings is always a question [of law] for the court .... The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 82, 700 A.2d 655 (1997).

“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [her] complaint.” (Internal quotation marks omitted.) Marek v. Going, 66 Conn. App. 557, 564, 785 A.2d 248 (2001), cert. denied, 259 Conn. 909, 789 A.2d 995 (2002). “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; emphasis added; internal quotation marks omitted.) Constantine v. Schneider, 49 Conn. App. 378, 387, 715 A.2d 772 (1998).

The plaintiffs complaint alleged that the defendant had asked the plaintiff to loan money to the corporation. It further stated that the defendant “orally promised the plaintiff that he would personally guarantee that the loan would be repaid [to] her promptly.” The complaint also alleged that the plaintiff loaned the money to the corporation in reliance on the defendant’s promise.

On the basis of the foregoing allegations set forth in the plaintiffs complaint, we conclude that the defendant was given sufficient notice of the facts claimed and the issues that were tried. Moreover, a broad reading of the complaint, in its entirety, supports our conclusion that the defendant was not subject to surprise or to prejudice. The complaint set forth the claim that the plaintiffs loan was premised on the fact that it would be repaid by the defendant and not the financially troubled corporation. Accordingly, we conclude that the court properly rendered judgment in favor of the plaintiff.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. VERNON VASSELL
    (AC 21716)
    Schaller, DiPentima and Mihalakos, Js.
    Argued September 12
    officially released October 14, 2003

      Frederick D. Paoletti, with whom, on the brief, was Jeffrey G. LaPierre, for the appellant (defendant).

      Joseph T. Corradino, senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Vernon Vassell, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that there was insufficient evidence produced at trial to prove his guilt beyond a reasonable doubt. We disagree.

The jury reasonably could have found the following facts. On May 26, 1997, a Memorial Day picnic took place at a house on Charles Street in Bridgeport. Late in the afternoon or early evening, a burgundy colored automobile occupied by three or four men, identified as Dwight Daly, Naja and the defendant, nicknamed Maride, arrived at the house. An argument ensued between the men who had arrived and Marcus Colbert, Terry Perkins, Eric Wells, James Harris and Glenn Jones, all of whom were already in attendance. During the argument, the defendant drew a semiautomatic pistol from his waistband and fired multiple times, striking both Colbert and Jones. The defendant and his companions then fled the scene in their automobile. Colbert was transported to St. Vincent’s Hospital in Bridgeport where he subsequently died from multiple gunshot wounds.

The defendant’s sole claim on appeal is that there was insufficient evidence from which to prove his guilt beyond a reasonable doubt. Specifically, the defendant claims that there was insufficient evidence from which the jury reasonably could have concluded that he was the actual shooter.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Bermudez, 79 Conn. App. 275, 280, 830 A.2d 288 (2003).

Counsel for the defendant, at oral argument, contended that the testimony of the state’s eyewitnesses should not be believed because of bias. It is the jury’s function, however, to determine whether any witness is biased and, if so, whether the testimony nevertheless is credible.

The defendant further contends that there was conflicting evidence at trial and that in light of the witnesses produced by the defense and the alleged bias of the witnesses offered by the state, the decision reached by the jury was unreasonable. The jury, however, is free to believe or to disbelieve witnesses and to evaluate the credibility of the testimony offered. “It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Pranckus, 75 Conn. App. 80, 87, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d 840 (2003).

In the present case, there was ample evidence to support the jury’s verdict. The state produced eyewitnesses Wells, Perkins and Harris, each of whom testified that the defendant was present at the scene and was the shooter. The testimony of Marshall Robinson, a tool marks and firearms examination expert, supported the testimony of Wells, Harris and Perkins regarding the number of gunshots fired and the existence of only one shooter. In addition, associate state medical examiner Malka B. Shah testified that the victim had died from multiple gunshot wounds.

“We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . [T]he evaluation of [a witness’] testimony and credibility are wholly within the province of the trier of fact.” (Internal quotation marks omitted.) State v. Jimenez, 73 Conn. App. 664, 668, 808 A.2d 1190, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002).

On the basis of all of the evidence heard by the jury, it reasonably could have concluded that the defendant was the shooter, thereby supporting the conclusion that he was guilty of murder.

The judgment is affirmed.

       Those witnesses were Wells, Perkins and Harris.

       The defense presented several witnesses, including Jones, Karim McCain, Nydia Cardona and the defendant. McCain served as an alibi witness, and Cardona testified that she did not see the defendant at the scene of the crime. The defendant took the witness stand to deny that he was the shooter.


text:
    JORGE ALVAREZ v. COMMISSIONER OF CORRECTION
    (AC 23604)
    Foti, Dranginis and West, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      Sebastian O. DeSantis, special public defender, filed a brief for the appellant (petitioner).

      Kevin T. Kane, state’s attorney, and Lisa A. Riggione and Linda N. Howe, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jorge Alvarez, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove his claim of ineffective assistance of counsel. Specifically, the petitioner claims that he was denied effective assistance because his trial counsel, Milo J. Altschuler, (1) failed to prepare for certain evidentiary issues, (2) made an inadequate investigation and (3) failed to object to an improper statement made by the prosecutor during closing argument to the jury. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. The petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a and sentenced to life imprisonment. On direct appeal, our Supreme Court upheld his conviction. State v. Alvarez, 216 Conn. 301, 579 A.2d 515 (1990).

The petitioner subsequently filed a petition for a writ of habeas corpus and a motion for a new trial on the basis of newly discovered evidence. The petition for a writ of habeas corpus was dismissed without a hearing on the merits. After a hearing, the court denied the petitioner’s motion for a new trial.

On March 9, 2001, the petitioner filed an amended petition for a writ of habeas corpus in which he claimed that he was denied the effective assistance of counsel because his trial counsel failed (1) to prepare the petitioner’s case properly and (2) to object to an improper statement made by the prosecutor during closing argument. After conducting a hearing, the court denied each of the petitioner’s claims. The court, thereafter, granted the petition for certification to appeal. The petitioner now appeals from the court’s finding that he was not denied the effective assistance of counsel.

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [wjhether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Alterisi v. Commissioner of Correction, 67 Conn. App. 625, 627-28, 789 A.2d 489 (2002).

“In reviewing a claim of ineffective assistance of trial counsel, we indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; it is the petitioner’s burden to overcome the presumption that his attorney’s actions or inactions were not, in fact, sound trial strategy. . . . We also must make every effort to evaluate the challenged conduct from counsel’s perspective at the time.” (Citations omitted.) Sloan v. Commissioner of Correction, 57 Conn. App. 304, 306-307, 748 A.2d 355 (2000). With those principles in mind, we address each of the petitioner’s claims in turn.

I

The petitioner first claims that his trial counsel was ineffective because counsel was not prepared for evidentiary issues involving the key component of the defense. Specifically, the petitioner contends that counsel was not prepared to argue an alternate ground for the admissibility of a statement given by Kenneth Hazard, a witness to the shooting that caused the victim’s death, in which Hazard indicated that a person named Rasheem had killed the victim. We disagree.

At trial, the petitioner’s counsel sought to introduce into evidence, through a police officer, Joseph Greene, under State v. Echols, 203 Conn. 385, 524 A.2d 1143 (1987), Hazard’s statement to the police that Rasheem had killed the victim. The trial court ruled that the statement was inadmissible hearsay. On appeal to our Supreme Court, the petitioner claimed that the trial court improperly found that Hazard’s statement was inadmissible, arguing that the statement was admissible under the residual exception to the hearsay rule. State v. Alvarez, supra, 216 Conn. 306. Our Supreme Court refused to address the claim because the petitioner did not first raise it before the trial court. Id., 307. In a footnote, however, the court determined that the statement did not fall under the residual exception. Id., 307 n.3.

As previously stated, for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that his counsel’s performance was deficient and that the petitioner suffered actual prejudice. Alterisi v. Commissioner of Correction, supra, 67 Conn. App. 627-28. The petitioner has failed to establish that he suffered actual prejudice in this case. He has failed to present any theory under which Hazard’s hearsay statement would have been admissible. Without a showing of actual prejudice, the petitioner’s claim must fail.

II

The petitioner next claims that his trial counsel made an inadequate investigation because “significant evidence” existed that another individual was the actual perpetrator. The petitioner, however, has failed to establish what that “significant evidence” is. In his brief to this court, the petitioner merely states that “[a]n adequate investigation should have located witnesses who saw a shooting or had information regarding that shooting. ... A proper investigator would have returned to that nightclub and, without scaring potential witnesses, located exculpatory material to be used by defense counsel. This did not occur in the preparation of the [petitioner’s] defense.” (Citation omitted.)

The record, however, reveals that the petitioner’s trial counsel did conduct an adequate investigation. The petitioner’s counsel hired an investigator who inspected the crime scene. The investigator and counsel talked to people in the area to gather information. Counsel reviewed the police reports and utilized the state’s open file system to gather information in support of the defendant’s claim that he was not the individual who shot the victim. Counsel also had his investigator meet with the petitioner prior to trial and spoke with him on a regular basis during the course of the trial.

The petitioner also claims that his trial counsel should have interviewed certain witnesses who could have supported the claim of third party culpability. At the habeas hearing, however, the petitioner called only one of the potential witnesses, Jeffrey Perry, who testified that he had left the scene of the shooting before the shooting occurred. “The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. ... In the absence of that showing by the petitioner, we are unable to conclude that he was prejudiced by counsel’s failure to interview the witnesses.” (Citations omitted; internal quotation marks omitted.) Nieves v. Commissioner of Correction, 51 Conn. App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).

III

The petitioner’s final claim is that his trial counsel was inádequate because counsel faded to object to certain statements made by the prosecutor during closing argument. We disagree.

The petitioner claims that he was denied a fair trial because of a single comment made by the prosecutor during closing argument that was not objected to by trial counsel. Specifically, the petitioner claims that the habeas court improperly found that he was procedurally defaulted from raising that claim because it was not raised on direct appeal and he had failed to show good cause for his failure to raise the claim at the appropriate time. At the hearing on the habeas petition, the petitioner did not offer any evidence that trial counsel's failure to object to the prosecutor’s comment during closing argument amounted to deficient performance or that the petitioner had suffered actual prejudice as a result of counsel’s inaction. Rather, the only mention of the claim during the hearing was a passing comment during summation by the petitioner’s counsel: “And I had an issue in my petition that maybe attorney Altschuler should have made an objection in closing to some of the [prosecutor’s] statements.” Accordingly, the petitioner has failed to sustain his burden of proving that counsel's performance was deficient and that he suffered actual prejudice. See Strickland v. Washington, supra, 466 U.S. 687. We therefore conclude that the habeas court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

       During closing argument, the prosecutor stated: “The final apology is one that gets us into the case, and it’s one in which I apologize if you think my conduct in the examination or cross-examination of any of these witnesses was inappropriate or if you think my conduct during this closing argument is inappropriate . . . but, in all candor, I don’t know what the appropriate way to act is when the evidence in a case has proven beyond a reasonable doubt. . . .” (Emphasis added.)


text:
    MICHAEL DUFFY v. COMMISSIONER OF CORRECTION
    (AC 23337)
    Schaller, DiPentima and McLachlan, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      Deborah G. Stevenson, special public defender, filed a brief for the appellant (petitioner).

      Christopher L. Morano, chief state’s attorney, and Ronald G. Weller and Jo Anne Sulik, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Michael Duffy, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus and his petition for certification to appeal from that denial. On appeal, the petitioner claims that the court (1) abused its discretion when it denied his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus because it incorrectly determined that he was not denied the effective assistance of counsel. We dismiss the appeal.

The following facts are relevant to the petitioner’s appeal. The petitioner entered guilty pleas under the Alford doctrine to arson in the first degree in violation of General Statutes § 53a-lll, assault in the second degree in violation of General Statutes § 53a-60 and criminal violation of a protective order in violation of General Statutes (Rev. to 1997) § 53a-110b (a), now § 53a-223. Additional charges were nolled as part of the plea agreement. The petitioner received an effective sentence of twenty-five years imprisonment, execution suspension after fifteen years, with five years probation.

In the habeas proceeding, the petitioner claimed that his trial attorney had coerced him into pleading guilty by misrepresenting the years of imprisonment that the petitioner faced if convicted on all pending charges. The petitioner claimed that his attorney told him at one time that he faced sixty-five years imprisonment and then told him at another time that he faced 165 years imprisonment. He also claimed that his attorney told him that the plea bargain would result in a sentence of eight years imprisonment, suspended after serving four years, and that he should just answer “yes” to all of the judge’s questions. All of those things, the petitioner argued, rendered the assistance of counsel constitutionally ineffective. The court rejected the petitioner’s claim, concluding that his testimony was not credible and that he had failed to prove that he was denied the effective assistance of counsel.

Specifically, the court found, after hearing the conflicting testimony of both the petitioner and his counsel, that the attorney was a credible witness and that the petitioner, himself, was not credible. Additionally, after reviewing the information in connection with the two dockets in which the petitioner had entered pleas and the transcripts of the proceedings before the trial court, the habeas court concluded that the petitioner had failed to prove that his attorney “did or said anything which was coercive and which caused the petitioner to plead guilty.” The court also concluded that the petitioner had “failed to prove that his counsel’s representation was deficient in any way or that he suffered any actual prejudice as a result of that representation.” The court, therefore, denied the petitions for a writ of habeas corpus and for certification to appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden [however] is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Bewry v. Commissioner of Correction, 73 Conn. App. 547, 548, 808 A.2d 746 (2002), cert. denied, 266 Conn. 918, 837 A.2d 801 (2003). When a habeas petition turns on the court’s assessment of the credibility of witnesses, we do not retry the case or evaluate the credibility of those witnesses; such matters are left to the trier of fact. See Boulware v. Commissioner of Correction, 66 Conn. App. 869, 972, 786 A.2d 456 (2001), cert. denied, 259 Conn. 913, 791 A.2d 564 (2002).

After having reviewed the record and the briefs, we conclude that the court had before it sufficient evidence to find as it did and that the court did not abuse its discretion in denying the petition for certification to appeal. The petitioner has failed to make a substantial showing that he has been denied a federal or state constitutional right. See Daniels v. Commissioner of Correction, 75 Conn. App. 196, 198, 815 A.2d 715 (2003). Additionally, the petitioner has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that some type of injustice has been done. See id.; see also Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

The appeal is dismissed.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).