author: FOTI, J.

text:
    RIVER DOCK AND PILE, INC. v. INSURANCE COMPANY OF NORTH AMERICA
    (AC 18802)
    Foil, Landau and Daly, Js.

      Argued January 14
    officially released April 4, 2000

      Charles A. Sherwood, for the appellant (plaintiff).

      Michael P. Kaelin, with whom, on the brief, was Marianne Hoffman, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, River Dock and Pile, Inc., appeals from the summary judgment rendered in favor of the defendant in this action to recover on a bond that was substituted in lieu of a mechanic’s lien under General Statutes § 49-37 (a). On appeal, the plaintiff claims that the trial court improperly (1) concluded that the action was barred by the statute of limitations embodied in § 49-37 (a) and (2) found that the defendant’s conduct did not give rise to estoppel. We affirm the judgment of the trial court.

The plaintiff, pursuant to a contract with Atlas Construction Company (Atlas), engaged as a subcontractor in underpinning and shoring work from December, 1984, to March, 1985. On April 8,1985, the plaintiff filed a mechanic’s lien in connection with the construction of a building at 200 Greenwich Avenue in Greenwich in the amount of approximately $160,000. In August, 1985, the plaintiff accepted a bond in the amount of $192,000 in lieu of its mechanic’s lien, with the general contractor, Atlas, as principal, and the defendant, Insurance Company of North America, as surety. The bond required Atlas as principal and the defendant as surety to pay any judgment that the plaintiff recovered against Atlas. In March, 1986, the plaintiff timely commenced an action to recover on the bond but withdrew that action in June, 1994. In May, 1996, a panel of arbitrators awarded $150,000 to the plaintiff in its dispute with Atlas, and in July, 1996, the award was confirmed by the Superior Court. On June 8, 1997, the plaintiff commenced the present action.

The defendant argued before the trial court that the plaintiff violated § 49-37 (a) because twelve years had elapsed since the certificate of lien was filed, and three years had expired after the first action was voluntarily withdrawn and before the present action was commenced. The plaintiff, in its cross motion for summary judgment, argued that because the bond was given voluntarily and not by order of the court, it was not created pursuant to § 49-37 (a) and therefore the procedural requirement of the statute was inapplicable. The plaintiff argued alternatively that it did commence the action within one year of the recording of the certificate, and that the defendant should be estopped from relying on the one year limitation period of § 49-37 (a) because the defendant did nothing for a substantial period of time between the commencement of arbitration and the final result of arbitration.

The court concluded that as a matter of law for the purposes of § 49-37 (a), a bond that was furnished voluntarily was no different from a bond that results from an application to the court to substitute a bond with surety. The court determined that the plaintiffs moving papers could not substantiate its claims of estoppel and noted that while “the plaintiff did commence an action within one year . . . [it] later voluntarily withdrew the action . . . [and] waited about three years before commencing this present action.” Therefore, because the time lapse between recording the lien in 1985 and the commencement of the present action was twelve years, the court granted the defendant’s motion, concluding that the plaintiffs action was precluded by the one year statute of limitation contained in § 49-37 (a).

The standard of review of a court’s decision granting a motion for summary judgment is well settled and is not challenged in this case. Practice Book § 17-49 provides that 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.” A “material fact” is a fact that will make a difference in the result of a case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). “The test is whether a party would be entitled to a directed verdict on the same facts.” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

A trial court, in deciding a motion for summary judgment, “must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 583, 646 A.2d 266 (1994), on appeal after remand, 240 Conn. 309, 692 A.2d 399 (1997). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Although the moving party must show the nonexistence of any material fact, an opposing party must substantiate its adverse claims by showing that there is a genuine issue of material fact along with the evidence disclosing the existence of such an issue. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

The bond voluntarily furnished by the defendant must be treated the same as if the bond had been furnished pursuant to a court order in accordance with § 49-37 (a). See Six Carpenters, Inc. v. Beach Carpenters Corp., 172 Conn. 1, 6-7, 372 A.2d 123 (1976). “A contrary rule would give the lienor greater rights than those prescribed by the statute, and would deny the right of a principal or surety to challenge the validity of the underlying lien as authorized by the statute. ... It . . . would discourage the substitution of bonds by agreement because of a fear of waiving defenses . . . [and] lead to public mischief by compelling judicial intervention when not needed nor desired.” (Citation omitted.) Id., 7. While we recognize the plaintiffs attempt to distinguish this case by pointing out that the basic issue in Six Carpenters, Inc., was whether the trial court had jurisdiction to review the mechanic’s hen and thereby the bond, we cannot ignore the clear language therein, which cannot be considered dicta. As a matter of law, the bond at issue is a statutory bond subject to the provisions of § 49-37.

The plaintiff argues that equity should be considered and, both at oral argument and in its brief, cited a number of compelling reasons why justice calls for the defendant to pay what it legally and morally should pay. This is not a matter of equity, however, but simply one of statutory construction and application. We agree that “[e]stoppel is to protect the innocent and is based on fair dealing and principles of morality”; Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 566, 316 A.2d 394 (1972); and that “modem estoppel ... is ... of equal application in courts of law . . . [and] establishes rights . . . [and] determines remedies.” (Internal quotation marks omitted.) Id., 564. The party claiming estoppel has the burden of proof, however, and whether that burden has been satisfied in a particular case is a question of fact. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 689, 590 A.2d 957 (1991). “[I]t is well settled that a party who has not engaged in ‘misleading conduct’ cannot be estopped.” Mellon v. Century Cable Management Corp., 247 Conn. 790, 795, 725 A.2d 943 (1999). The court concluded that no genuine issue of material fact was presented in regard to the plaintiffs claim of estoppel because “there is nothing in the moving papers filed by the plaintiff that substantiates this claim,” and the “plaintiff has not pointed to any fraudulent representations made by the defendant to induce the plaintiff to withdraw the first action after it was pending some eight years.” We conclude that summary judgment was properly rendered for the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court denied the plaintiffs motion for summary judgment.

       The plaintiffs statement of issues contained a third issue: “Did the trial court err in concluding that there was no genuine issue of material fact as to the defendant and plaintiffs motion and cross motion for summary judgment?” The plaintiff failed to brief this issue. We will not consider a claim not briefed. Jones v. Ippoliti, 52 Conn. App. 199, 201 n.4, 727 A.2d 713 (1999). The plaintiffs sole reference to this issue is in its reply brief and in a brief paragraph in its principal brief, without analysis.

       General Statutes § 49-37 (a) provides: “Whenever any mechanic’s lien has been placed upon any real estate pursuant to sections 49-33, 49-34 and 49-35, the owner of that real estate, or any person interested in it, may make an application to any judge of the Superior Court that the lien be dissolved upon the substitution of a bond with surety, and the judge shall order reasonable notice to be given to the lienor of the application. If the lienor is not a resident of the state, the judge may order notice to be given by publication, registered or certified letter or personal service. If the judge is satisfied that the applicant in good faith intends to contest the lien, he shall, if the applicant offers a bond, with sufficient surety, conditioned to pay to the lienor or his assigns such amount as a court of competent jurisdiction may aijjudge to have been secured by the lien, with interest and costs, order the lien to be dissolved and such bond substituted for the lien and shall return the application, notice, order and bond to the clerk of the superior court for the judicial district wherein the lien is recorded; and, if the applicant, within ten days from such return, causes a copy of the order, certified by the clerk, to be recorded in the town clerk’s office where the lien is recorded, the lien shall be dissolved. Whenever a bond is substituted for any lien after an action for the foreclosure of a lien has been commenced, the plaintiff in the foreclosure may amend his complaint, without costs, so as to make the action one upon the bond with which the plaintiff may join an action to recover upon his claim. Whenever a bond is substituted for any lien before an action for the foreclosure of the lien has been commenced, the plaintiff may join the action upon the bond with an action to recover upon his claim. Whenever a bond has been substituted for any lien, pursuant to this section, unless an action is brought to recover upon the bond within one year from the date of recording the certificate of lien, the bond shall be void.”

       The parties agree that the defendant, as surety, was not a party to the arbitration proceedings.

       The plaintiff claimed during oral argument that as a common-law bond, the one year statute of limitation was inapplicable to an action brought to collect on it as a security. Even if the bond was not statutory, an action might be time barred even by a six year statute of limitation, unless the statute ran from the date that the arbitration award was confirmed by the Superior Court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOE ALAMO
    (AC 19059)
    Schaller, Hennessy and Daly, Js.
    Argued November 30, 1999
    officially released April 4, 2000

      H. Jeffrey Beck, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Joe Alamo, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, the defendant claims that he is entitled to a new trial because the prosecutor committed prosecutorial misconduct during his closing argument. We decline to review this claim.

The alleged prosecutorial misconduct involves comments on facts not in evidence. The prosecutor commented that the hearing impaired victim’s exaggerated gestures and facial expressions during her testimony are common for people who are hearing impaired. In addition, the defendant argues that the prosecutor’s closing argument impermissibly burdened the defendant’s constitutional right to testify on his own behalf. To support this claim, the defendant points to the prosecutor’s comment that by the time the defendant took the witness stand at trial, identification was not an issue due to the strength of the state’s DNA evidence regarding the sperm retrieved during an examination of the victim.

The defendant failed to object to those comments at the trial. He now seeks review of these unpreserved claims pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We have consistently held that the second prong of Golding has not been met “where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial . . . .” (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 416, 743 A.2d 626 (2000). “[I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument. . . . State v. Rogers, 50 Conn. App. 467, 477-78, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998). [Moreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout trial. . . . State v. Cox, 50 Conn. App. 175, 179, 718 A.2d 60, cert. granted on other grounds, 247 Conn. 928, 719 A.2d 1170 (1998).” (Internal quotation marks omitted.) State v. Bonsu, 54 Conn. App. 229, 238, 734 A.2d 596, cert. denied, 251 Conn. 909, 739 A.2d 1249 (1999). The claimed misconduct was present in only one portion of the prosecutor’s summation. The defendant has “failed to show the presence of a pattern of misconduct that was so pervasive throughout the trial that it deprived him of his right to a fair trial.” State v. Lepri, supra, 417. Accordingly, we decline to review the defendant’s claim.

The judgment is affirmed.

       Prior to the closing of the state’s evidence, the prosecutor attempted to offer an expert witness to testify that people who are hearing impaired typically communicate with exaggerated gestures and facial expressions. The trial court did not allow the expert to testify.

         “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       “The burden is on the defendant to show that the prosecutor’s remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted. State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993).” State v. Lepri, supra, 56 Conn. App. 417 n.13.


author: LANDAU, J.

text:
    DAVID D’ADDARIO, EXECUTOR (ESTATE OF F. FRANCIS D’ADDARIO), ET AL. v. LUCIEN TRUSKOSKI ET AL.
    (AC 17723)
    Landau, Spear and Dupont, Js.

      Argued December 9, 1999
    officially released April 11, 2000

      Ridgely W. Brown, for the appellants (defendants).

      Frank W. Murphy, with whom were Kara A. T. Murphy and, on the brief, Elizabeth A. B. Suchy, for the appellees (named plaintiff et al.).

      Brendan T. Flynn, with whom, on the brief, was Barry S. Feigenbaum, for the appellee (plaintiff Hollow Tree Ridge Corporation).
   Opinion

LANDAU, J.

The defendants appeal from a declaratory judgment of the trial court granting an easement in favor of the plaintiffs. On appeal, the defendants claim that the court improperly (1) failed to conclude whether the grantor intended to benefit only a 9.8 acre parcel of land as a matter of law, (2) ignored the doctrine of stare decisis by concluding that unity of title did not have to exist for an easement to arise, (3) granted a motion to substitute a plaintiff without a short calendar hearing and failed to identify the substitute plaintiffs interest when it rendered judgment, and (4) failed to find that the plaintiffs had sustained their burden of proof. We affirm the judgment of the trial court.

This case is unique. The issue is what legal consequences flow from the fact that some of the land in question is inaccessible due to the taking by the state of Connecticut of land by right of eminent domain and due also to a natural disaster not contemplated at the time the state conveyed the subject parcels.

The following facts, as found by the court, are relevant to this appeal. At some time prior to 1962, the state acquired by eminent domain certain real property in the town of Darien to construct the Connecticut Turnpike (turnpike). In 1962, the state, acting through the commissioner of the department of highways, reconveyed 9.8 acres of the land, which was in excess of the state’s needs, to the late F. Francis D’Addario. At the time, the 9.8 acres were bounded on the north by railroad tracks, on the south and east by land owned by the state, and

on the west by land owned by Louis J. Kuriansky, trustee.

The deed conveying the 9.8 acres to D’Addario limited D’Addario’s access to the land. “It is expressly understood and agreed that all rights of access are specifically denied directly to and from other land of the [state], located on the southerly and easterly sides of the premises herein conveyed, from and to the land herein conveyed.” The deed did, however, provide a grant of right-of-way, to wit: “And the [state] does hereby give and grant unto [D’Addario], his heirs and assigns forever, a full and perpetual right of way located on land of the [state], situated in the Town of Darien, County of Fairfield and State of Connecticut, on the westerly side of Hollow Tree Ridge Road. . . . The purpose of the easement herein granted is to provide access to and from the land herein conveyed, from and to Hollow Tree Ridge Road. It is expressly understood and agreed that all rights of access are specifically denied directly to and from other land of the [state] located on the southerly side of the easement area herein granted, from and to the said area.” Without the right-of-way, the 9.8 acres was not accessible. The defendants do not contest the plaintiffs’ right to use the easement to get to and from their 9.8 acres.

In August, 1965, the defendants’ predecessor in title acquired 3.6 acres of the previously condemned land, which was also in excess of the state’s needs. The defendants’ 3.6 acres is adjacent to and directly to the east of the plaintiffs’ 9.8 acres. The deed conveying the defendants’ land from the state provides: “The above described premises are conveyed subject to such rights and easements as may appear of record and to any state of facts which an inspection of the premises may show, and especially to an easement in favor of the Town of Darien for a sanitary sewer, and to an easement in favor of F. Francis D’Addario for Ingress and Egress to and from Hollow Tree Ridge Road, both of said easements being located on the northerly 50 feet of the above described premises as shown on the map hereinafter referred to.”

In June, 1982, D’Addario acquired approximately twenty-two acres (Kuriansky land) from Kuriansky and the Bi-Cultural Day School, Inc. The Kuriansky land is adjacent to and directly to the west of the plaintiffs’ 9.8 acres. The Kuriansky land is bounded on the south by land owned by the state and to the west by the Noroton River. Prior to 1972, access to the Kuriansky land was obtained by a bridge across the river leading to Lenox Avenue in Stamford. The bridge was destroyed by a storm in 1955 and temporarily replaced by a bridge that was also destroyed by a storm in 1972. The bridge has not been replaced, and there are no plans to replace it.

Since 1972, trucks belonging to the town of Darien and the owner of a business located on the Kuriansky land have used the right-oi-way for ingress and egress from Hollow Tree Ridge Road. Although the plaintiffs produced considerable evidence to support their claim of a prescriptive easement over the right-of-way to the Kuriansky land, the court found that an easement by prescription did not exist, but that there was express or implied permission to use this right-of-way because a considerable number of trucks traveled over the 9.8 acres on a daily basis to reach the Kuriansky land prior to D’Addario’s buying the Kuriansky land and with D’Addario’s consent. By affidavit, Hector Nevard attested that he had worked on the Kuriansky property since 1937 and that “since 1972, all trucks have used the Hollow Tree Ridge Road access.” The town of Darien also crossed the right-of-way and the 9.8 acres to reach its pumping station on the Kuriansky property. The court concluded with respect to the plaintiffs’ claim of a prescriptive easement that a license or express or implied permission cannot ripen into an easement by prescription, and that without an adverse use, prescriptive rights cannot be acquired.

The dispute between the parties arose over the plaintiffs’ proposed development of their contiguous 9.8 acres and the Kuriansky land. The plaintiffs proposed a residential development consistent with the Darien designed multiple family residential zone (residential development). The defendants maintain that the right-of-way may not be used to benefit the Kuriansky land. The plaintiffs, therefore, commenced a declaratory judgment action to determine the parties’ rights with respect to use of the right-of-way and more specifically to establish that the right-of-way may be used to reach the residential development from Hollow Tree Ridge Road. The complaint alleged three counts: (1) easement by grant; (2) easement by implication and by reasonable necessity; and (3) easement by prescription. The court found for the defendants on the first and third counts, and for the plaintiffs on the second count.

“The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires construction of all its relevant provisions in the light of the surrounding circumstances. Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). On appeal the scope of review of such a question is plenary . . . .” Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992).

I

The defendants’ first claim is that the trial court improperly concluded that the state did not intend to convey a right-of-way that would benefit anything other than the 9.8 acre parcel of land. We conclude that the court properly granted the plaintiffs an easement over the right-of-way to benefit the Kuriansky land.

The essence of the defendants’ argument is that this case must be resolved by the language creating the easement in the deed by which the state reconveyed the 9.8 acres to D’Addario. The law of this state, since the early nineteenth century, has been that “[t]o ascertain the proper construction to be given the deed the trial court sought to discover the intent of the parties to the deed by permitting evidence to be introduced of the situation of the property and the surrounding circumstances at the time of the conveyance, and then looking at the terms of the deed in the light of the situation and surrounding circumstances. This accorded with our rule. Bartholomew v. Muzzy, 61 Conn. 387, 392, 23 Atl. 604 [1892]; Sweeney v. Landers, Frary & Clark, 80 Conn. 575, 578, 69 Atl. 566 [1908]; Bryan v. Bradley, 16 Conn. 474, 486 [1844]; Strong v. Benedict, 5 Conn. 210, 220 [1824].” Luce v. Niantic Menhaden Oil & Guano Co., 86 Conn. 147, 149, 84 A. 521 (1912).

The situation and surrounding circumstances that influenced the state’s conveyance of the right-of-way at issue was the creation of the turnpike. The turnpike landlocked some parcels of land that the state originally had taken but did not need after the turnpike was constructed. The state reconveyed the 9.8 acres with a right-of-way so that the land was accessible. At the time, the Kuriansky land was accessible by the Lenox Avenue bridge.

The case law of this jurisdiction demonstrates that Anglo-American common law has recognized for centuries that the owner of land shall not be denied the enjoyment and use of the land. During the nineteenth century, courts used the term right-of-way by necessity. See Collins v. Prentice, 15 Conn. 39 (1842). “It is well settled, as a part of the common law of England, that, if a man having a close, to which he has no access, except over his other lands, sell that close, the grantee shall have a way to it, as incident to the grant; for without it, he cannot derive any benefit from the grant. This rule has been established for more than two centuries .... [I]f the grantor had reserved that close to himself, and sold his other lands, a right of way would have been reserved. . . .

“The way, in the one case, in contemplation of law, is granted by deed; and in the other case, reserved. . . . For the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance, nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties.” (Citations omitted.) Id., 43-44.

Where the administrators of an estate conveyed a piece of land from the estate that “neither touched any public way, nor had appurtenant to it any such right to pass over the adjoining land of strangers to and from a public way as would secure to him the most beneficial enjoyment of his grant; they retained the locus in quo extending from the granted land to the public way. Here are all the requisite conditions for a way of necessity for all purposes over the reserved premises, there being no waiver by the grantee of his right to it.” Myers v. Dunn, 49 Conn. 71, 77 (1881).

The terms easement of necessity and easement by implication seem to have come together in an opinion written in the early part of the twentieth century. “The basis of this right is the presumption of a grant arising from the circumstances of the case. Necessity does not of itself create a right . . . but it is evidence of the grantor’s intention to convey one, and raises an implication of a grant.” (Internal quotation marks omitted.) Marshall v. Martin, 107 Conn. 32, 36, 139 A. 348 (1927).

In each of these early cases, the court imposed an easement of necessity where the grantor conveyed to the grantee “a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee.”Hollywyle Assn., Inc. v.Hollister, 164 Conn. 389, 398-99, 324 A.2d 247 (1973). Previously, this rule applied only where there was a unity of interest. Id., 399. Our Supreme Court, however, recently abrogated the unity of interest, or of title, doctrine in Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999).

Here, the trial court made no finding that the defendants’ and plaintiffs’ lands were once held in common ownership, although evidence to that effect may have been presented at trial. The court did find that the Kuriansky land was landlocked by the unusual circumstances of the state’s taking land to the south for the turnpike, the railroad tracks to the north and the natural disaster that destroyed the bridge over the Noroton River. The court also found that multiple local, state and federal agencies would have to approve replacement of the bridge and that there was no reasonable probability that the necessary approvals could be obtained. In addition, the court found that since the Lenox Avenue bridge was destroyed, many trucks used the right-of-way on a daily basis to reach a business operation or a pumping station on the Kuriansky land.

The court granted an easement of necessity over the right-of-way to the Kuriansky land, citing Marshall v. Martin, supra, 107 Conn. 32. “It may be, however, that while access to the property is not absolutely cut off, the circumstances of the case are such that the means of access available would not afford the landowner any real beneficial enjoyment of his property. Such a situation would arise when the expense of making the means of access available would exceed the entire value of the property to which access was sought. Such a means of access would be no better than none at all and there would seem to be equal reason for presuming a grant under such circumstances as in the case where there was no access. Although there are cases which hold that the way must be one of strict necessity, the weight of authority supports what seems to us to be the better rule—that the necessity need only be a reasonable one.” Id., 37.

We agree that equity requires that the plaintiffs be permitted to use the right-of-way for the beneficial enjoyment of the Kuriansky land. For centuries, our law has held that no person shall be denied the beneficial enjoyment and use of land because it is not accessible. The plaintiffs did not create the situation that has made the Kuriansky land inaccessible. The court found that the residential development, as permitted by the Darien zoning laws, will not overburden the right-of-way and that in the recent past many trucks crossed the right-of-way on a daily basis to which the defendants apparently did not object. The court, therefore, properly granted the plaintiffs an easement over the right-of-way to the Kuriansky land.

II

The defendants also claim that the court failed to find that the plaintiffs had sustained their burden of proof as required by Branch v. Occhionero, 239 Conn. 199, 681 A.2d 306 (1996). Specifically, the defendants claim that the plaintiffs failed to prove their chain of title free of encumbrances back to root title. We disagree.

We first observe that there does not appear to have been any dispute over the plaintiffs’ title to the Kuriansky land at trial, as the defendants do not cite any pleading, exhibit or portion of the transcript in support of this claim. The plaintiffs’ title is not in issue, and the easement granted to them by the trial court is not dependent on proving the absence or presence of encumbrances.

The defendants’ reliance on Branch is misplaced because that case is factually distinct from the facts before us. In Branch, the defendants claimed a right-of-way over the Branch property by deed executed by H. Pascal Beckwith in 1886. The deed reserved a right-of-way over the property to John Gardner. The Branch property separated two parcels of land belonging to Gardner. The defendants owned the parcel to the north, but none of the deeds in their chain of title made any reference to the right-of-way over the Branch property, and there was insufficient evidence to determine the dominant estate. Id., 201-203. No such situation exists in this case where the subject deed clearly identifies the dominant and servient estates.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Lucien Truskoski, Ernest Duhaime, Barbara Brown, Karen Park, Martha DiVincenzo, David Duhaime, John T. Duhaime, Fayne A. Hildebrand, Richard Duhaime, Jr., Julia Nixon, Martin McMahon, John McMahon and Fleet Bank of Connecticut.

       The plaintiffs are David D’Addario, executor of the estate of F. Francis D’Addario and individually; Lawrence D’Addario, executor of the estate of F. Francis D’Addario and individually; Albert F. Paolini, executor of the estate of F. Francis D’Addario; Ann T. D’Addario; Virginia Popel; Mary Lou Kennedy; Joan D. Benedetto; Ernest F. Benedetto; and Hollow Tree Ridge Corporation.
      AvalonBay Communities, Inc., filed a motion in this court to be added as a party plaintiff. AvalonBay Communities, Inc., had entered into a contract with the estate of F. Francis D’Addario and with Ernest F. Benedetto and Joan D. Benedetto to purchase the property owned by the plaintiffs listed in the preceding paragraph. The unopposed motion was granted.

       The briefs were submitted before our Supreme Court decided Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999). As aresult of Bolán, in which the unity of title doctrine was abrogated, the defendants abandoned this claim.

       The defendants withdrew this claim during oral argument before us.

       The state owned land contains the turnpike, a rest area, an emissions test station and a department of transportation garage.

       Pursuant to the plaintiffs’ second amended complaint, the court found that the executors of D’Addario’s estate conveyed a one-quarter interest in the 9.8 acres to the plaintiff Joan D. Benedetto by deed dated May 27,1988. The two contiguous D’Addario properties, therefore, are notin common ownership.

       The court found that, according to the Darien zoning laws, the easement would not be overburdened by use to and from the residential development and Hollow Tree Ridge Road. See Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 831-32, 717 A.2d 1232 (1998); Carbone v. Vigliotti, 222 Conn. 216, 225, 610 A.2d 565 (1992). The defendants do not challenge this finding.

       The court and the parties use the terms easement by implication and easement of necessity interchangeably. These terms are actually distinct.

        “Easement by implication. Easement created by law and grounded in court’s decision in reference to particular transaction in land where owner of two parcels had so used one parcel to the benefit of other parcel that on selling the benefited parcel purchaser could reasonably have expected, without further inquiries, that these benefits were included in sale. Boyd v. McDonald, 81 Nev. 642, [649] 408 P.2d 717 [1965].” Black’s Law Dictionary (6th Ed. 1990).

        “Easement of necessity. One in which the easement is indispensable to the eqjoyment of the dominant estate. Such arises by operation of law when land conveyed is completely shut off from access to any road by land retained by grantor or by land of grantor and that of a stranger. Tarr v. Watkins,
        180 Cal. App. 2d 362, [366-67] 4 Cal. Rptr. 293 [296-97 (1960)].” Black’s Law Dictionary (6th Ed. 1990).

       The facts of these early cases reflect the agrarian culture of the times. In most instances, a farmer conveyed a parcel of open land in the middle of his estate that may not have had access to a public right-of-way or that separated the farmer’s dwelling from his wood lot. Hence, the courts concluded that the grantee and grantor intended a right-of-way so that each could use his land.

        Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968).


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. MICHAEL ATKINS
    (AC 18693)
    O’Connell, C. J., and Schaller and Hennessy, Js.

      Argued September 21, 1999
    officially released April 11, 2000

      Cameron Dorman, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SCHALLER, J.

The defendant, Michael Atkins, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly admitted (1) a witness’ probable cause hearing testimony and (2) statements given to police officers contained in the witness’ probable cause hearing testimony in violation of the defendant’s rights of confrontation under the state and federal constitutions. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On January 29, 1991, Officer Michael Matthews of the Hartford police department, responding to a call at an address on Sumner Street in Hartford, found the victim, Hubert Pinnock, suffering from four gunshot wounds. The victim later died from the injuries. The defendant was arrested and charged with one count of murder, one count of conspiracy to commit murder and one count of carrying a pistol without a permit.

The evidence presented at the probable cause hearing consisted primarily of the testimony of Sumner Street residents. One of the witnesses, Ronnie Davis, had earner given a statement to the police. Following his testimony at the probable cause hearing, Davis was charged with perjury and hindering prosecution. When called as a witness at the defendant’s trial, Davis invoked his fifth amendment privilege against self-incrimination. At trial, the court admitted Davis’ probable cause hearing testimony into evidence, finding Davis unavailable as a result of his invocation of his fifth amendment right.

After the court determined that Davis was unavailable and that his probable cause testimony bore adequate indicia of reliability, the court reporter read to the jury the transcript of his testimony. The state then called Steven Oborski, an inspector with the state’s attorney’s office, as a witness. Oborski’s testimony addressed Davis’ conduct during an interview prior to the defendant’s probable cause hearing in which Oborski had Davis review his police statement. Oborski testified that Davis stated at that time that there were no inaccuracies in the statement and that the defendant had said, “I got him. I got him.” Oborski’s testimony elaborated on the impeachment of Davis during his testimony at the probable cause hearing.

In its instructions to the jury, the court emphasized that Oborski’s testimony was solely for impeachment purposes and not for substantive use. During deliberations, in response to a request by the jury to review Oborski’s testimony, the jury was again reminded that Oborski’s testimony was to be used only to assess the credibility of Davis. Additional facts will be discussed where relevant to the issues in this appeal.

I

The defendant first claims that the trial court improperly admitted into evidence the probable cause hearing testimony of Davis in violation of his federal constitutional right of confrontation. We disagree.

Davis, a witness for the state, testified at the defendant’s probable cause hearing that he did not see the defendant holding a weapon the night the victim was shot. He told the police that he had seen the defendant with a weapon in the past, but not on the night of the shooting. He also testified that the defendant had asked him to dispose of a jacket, but not the jacket found in a dumpster across the street from where Davis resided, which jacket did not belong to the defendant. Davis testified further that he lied when he initially made a statement to the police that he had witnessed the defendant manipulating the slide mechanism on a handgun and stating, “I got him.”

The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “In the absence of any one of [the four Golding requirements for review of an unpreserved claim] the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. We conclude that the defendant has not established that, in the circumstances presented here, a constitutional violation clearly exists.

Under federal sixth amendment review, “[c]ases involving the admission of an unavailable declarant’s prior statements . . . [give] rise to Confrontation Clause issues because hearsay evidence was admitted as substantive evidence against the [defendant].” (Internal quotation marks omitted.) State v. Outlaw, 216 Conn. 492, 503, 582 A.2d 751 (1990), quoting Delaware v. Fensterer, 474 U.S. 15, 18, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985). The sixth amendment “right of confrontation is not violated by the substantive use of a prior statement if the declarant is unavailable, and if that statement bears adequate indicia of reliability.” (Internal quotation marks omitted.) State v. Crump, 43 Conn. App. 252, 264, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996), citing State v. Outlaw, supra, 504-505.

In asserting that his rights under the confrontation clause were violated, the defendant argues that the trial court improperly admitted Davis’ probable cause hearing testimony because his “unavailability” occurred as a result of the state’s action in charging Davis with perjury. The defendant also argues that even if Davis was properly found to be unavailable, the court improperly admitted his prior testimony because it was inherently unreliable.

“In light of the fact-bound nature of the inquiry, [t]he trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable.” (Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 141, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). “In determining whether the declarant is unavailable, we employ the definitions set forth in rule 804 (a) of the Federal Rules of Evidence.” Id., 141-42. The invocation of a testimonial privilege, such as a witness’ fifth amendment right against self-incrimination, satisfies the unavailability requirement. See Fed. R. Evid. 804 (a) (1); State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980).

A finding of unavailability may be supported when “the declarant’s inability to give live testimony is in no way the fault of the State.” California v. Green, 399 U.S. 149, 166, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). The defendant does not argue that the state caused Davis to perjure himself on the stand. Instead, the defendant argues that by selectively charging Davis with perjury when it could have charged both Davis and another witness with perjury, it engaged in purposeful conduct designed to cause Davis’ unavailability at trial. The defendant offers no basis in law for this novel proposition. If the state uncovers criminal activity, it is obligated to pursue a charge against the perpetrator. Moreover, the defendant offers no explanation as to why Davis would not invoke his fifth amendment rights to preclude his testimony given the pending perjury charge. We conclude that the trial court did not abuse its discretion in finding Davis unavailable after he invoked his privilege against self-incrimination.

The defendant further argues that Davis’ probable cause hearing testimony did not bear adequate indicia of reliability and should not have been admitted. “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” (Internal quotation marks omitted.) State v. Outlaw, supra, 216 Conn. 505, quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). “Prior testimony [at a pretrial hearing] is a well rooted exception to the hearsay rule.” State v. Malone, 40 Conn. App. 470, 479, 671 A.2d 1321, cert. denied, 237 Conn. 904, 674 A.2d 1332 (1996), citing Ohio v. Roberts, supra, 72-73; State v. Mayette, 204 Conn. 571, 577, 529 A.2d 673 (1987); State v. DeFreitas, 179 Conn. 431, 452, 426 A.2d 799 (1980); State v. Weinrib, 140 Conn. 247, 249-52, 99 A.2d 145 (1953); State v. Reis, 33 Conn. App. 521, 528, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994). Moreover, “testimony given at a probable cause hearing has the identical safeguards to insure reliability and trustworthiness as the testimony given at the trial.” State v. Parker, 161 Conn. 500, 503, 289 A.2d 894 (1971).

The record demonstrates that the defendant had the opportunity to cross-examine Davis during the probable cause hearing. The test for admissibility is the opportunity “for a full and complete cross-examination.” Id., 504. It was within the trial court’s discretion, considering the absence of any restrictions on cross-examination at the time the testimony was given and the threat of a perjury charge for making a false statement, to determine whether Davis’ testimony at the probable cause hearing was reliable. See State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990) (assessing inherent unreliability of witness’ prior inconsistent written and tape-recorded statements for purpose of admission as substantive evidence against defendant when witness was available at trial). Furthermore, the court in Ohio v. Roberts, supra, 448 U.S. 73, stated that there are “guarantees of trustworthiness in the accoutrements of the preliminary hearing itself [and a court need not consider] the inherent reliability or unreliability of [a witness] and his story.” The focus of the review in determining whether the testimony bore an adequate indicia of reliability is on the nature of the proceeding under which the testimony was taken, not on consideration of witness credibility extrinsic to the proceeding. See State v. Outlaw, supra, 216 Conn. 508. The fact that Davis was charged with perjury, therefore, does not equate to a characterization of his testimony as per se unreliable, and the court possessed adequate information to determine the reliability of the testimony.

We conclude that Davis’ testimony at the probable cause hearing bore adequate indicia of reliability, and that the trial court did not abuse its discretion in allowing it to be read into evidence. Accordingly, in light of Davis’ unavailability and the reliability of the probable cause hearing testimony, no clear violation of the defendant’s right of confrontation under the sixth amendment occurred, and the defendant has not satisfled the third Golding requirement for review of his unpreserved claim.

II

The defendant next claims that the admission of certain statements used to impeach Davis during the course of his examination at the probable cause hearing violated his right of confrontation. We disagree.

During the course of Davis’ direct examination at the defendant’s probable cause hearing, the state impeached Davis with prior inconsistent statements he had made to the police. Davis’ police statement was later admitted at the probable cause hearing as substantive evidence pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant now argues that the transcript read at trial contained prior inconsistent statements made to the police, the use of which was impermissible pursuant to State v. Williams, 231 Conn. 235, 238, 645 A.2d 999 (1994). The state argues that the prior inconsistent statements were permissibly used at trial solely for impeachment purposes. We find the state’s reasoning persuasive.

The content of the transcript of Davis’ testimony read to the jury does not include any reference to the substantive use of the impeachment evidence. A Whelan statement is exceptional, and there is no reason, in light of the entirety of Davis’ testimony, to attach greater significance to the state’s impeachment at the probable cause hearing than would be attached to the impeachment of a witness under normal circumstances. Furthermore, as we noted in part I of this opinion, the state presented at trial the testimony of Oborski, who had taken the police statement from Davis. The trial court emphasized twice in the jury instructions that Oborski’s testimony was to be considered solely for the purpose of impeachment of Davis’ probable cause hearing testimony. Given the use of Oborski’s testimony, which was similar to the use of the police statement for impeachment of Davis at the probable cause hearing, it is reasonable that a jury would apply the limiting instructions to the impeachment testimony from the probable cause hearing. In any event, the defendant did not seek any limiting instruction for Davis’ testimony and, considering the limiting instruction for Oborski’s testimony, it is not “reasonably probable that the jury was misled by the failure [of the court sua sponte] to give a limiting instruction.” State v. Huckabee, 41 Conn. App. 565, 575, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996), citing State v. Fleming, 198 Conn. 255, 269, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The defendant also argues that prior inconsistent statements offered under Whelan at a prior proceeding may not be used in a subsequent proceeding when the witness is unavailable under Williams. The defendant’s reliance on Williams is misplaced. Williams addressed the subsequent use at trial of a Whelan statement in the case of an unavailable witness. See State v. Williams, supra, 231 Conn. 250. The case before us involves the use for impeachment purposes of prior inconsistent statements, not the offer of prior inconsistent statements as substantive evidence under Whelan. The defendant cites no authority precluding the use of prior inconsistent statements elicited in the course of another proceeding when the prior statements were used for impeachment purposes. There is no reason that a jury would attach Whelan significance to the impeachment testimony without an affirmative act by the court or counsel, and there is no indication that Whelan was raised or discussed during the trial. Accordingly, the defendant’s claim does not satisfy the third Golding requirement.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-56 (a.) provides: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide."

         General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       Although the defendant argues violations of his rights of confrontation under the state and federal constitutions, we will address only the claim of a violation of the defendant’s federal constitutional right because the defendant has failed to provide an independent and adequate state constitutional analysis. See State v. Genotti, 220 Conn. 796, 811-12, 601 A.2d 1013 (1992); State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991); State v. Geisler, 25 Conn. App. 282, 283 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).
      The right of confrontation guaranteed by the sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”

       The court instructed the jury as follows: “Now, there was also testimony regarding a prior inconsistent statement. This was the testimony of Inspector Steven Oborski following tire reading of the transcript of the testimony of Ronnie Davis from a prior proceeding. Now this testimony was offered by the state to attack some statements made by Davis and read to you in the transcript by showing alleged inconsistencies. The alleged inconsistencies attested to you by Inspector Oborski are only to be considered by you with respect to the credibility of Ronnie Davis and not for substantive purposes; that is, not to show what actually happened that night. Again, with respect to the credibility of Ronnie Davis, you may give the alleged comments whatever weight you deem appropriate, if in fact you believe such comments were made as attested.”

       In Golding, our Supreme Court concluded that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.


author: SPALLONE, J.

text:
    TAVARES COSBY v. COMMISSIONER OF CORRECTION
    (AC 19828)
    Lavery, Zarella and Spallone, Js.

    Submitted on briefs January 24
    officially released April 11, 2000

      Vicki H. Hutchinson, special public defender, filed a brief for the appellant (petitioner).

      Richard F. Jacobson, special assistant state’s attorney, filed a brief for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SPALLONE, J.

The petitioner, Tavares Cosby, appeals from the habeas court’s dismissal of his petition for a writ of habeas corpus. The petitioner claims that the court improperly denied his petition when it concluded that the petitioner was not deprived of his fundamental constitutional right to effective assistance of counsel. We affirm the judgment of the court.

The following procedural history is relevant to the disposition of this appeal. After a jury trial, the petitioner was found guilty of the crime of robbery in the first degree in violation of General Statutes § 53a-134 and assault in the first degree in violation of General Statutes § 53a-59. Thereupon, the petitioner appealed to this court, which upheld the conviction. State v. Cosby, 44 Conn. App. 26, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997). Thereafter, the petitioner filed a petition for a writ of habeas corpus. At the habeas hearing, the petitioner complained that, although he requested that defense counsel call his mother, sister and girlfriend as witnesses, they were not called to testify at trial. The petitioner also asserted that there were at least twenty other witnesses who never were called to testify and that defense counsel failed to conduct an adequate investigation to seek out any of these witnesses. Our thorough review of the record, transcripts and briefs reveals, however, that there is no merit to the petitioner’s claim on appeal.

The determined facts under consideration in an appeal from a denial of habeas relief may not be disturbed unless they are clearly erroneous. Rouillard v. Commissioner of Correction, 35 Conn. App. 754, 759, 646 A.2d 948, cert. denied, 231 Conn. 945, 653 A.2d 827 (1994). It is for the habeas court as the finder of fact to determine the credibility of and the effect to be given to the testimony. Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912 (1993), aff'd, 231 Conn. 274, 648 A.2d 876 (1994). The reviewing court cannot retry the case or pass on the credibility of witnesses. State v. Branham, 56 Conn. App. 395, 398, 743 A.2d 635, cert. denied, 252 Conn. 937, 747 A.2d 3 (2000).

A criminal defendant is entitled, under the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the constitution of Connecticut, to effective assistance of counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700-701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). A criminal defendant is not constitutionally entitled to error free representation. Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992). “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lozada v. Warden, 223 Conn. 834, 842-43, 613 A.2d 818 (1992).

Phrased otherwise, “[a] petitioner claiming ineffective assistance of counsel must satisfy a two-pronged test: (1) that his attorney made errors so serious as to cease functioning as counsel, and (2) that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, [supra, 466 U.S. 694].” Rouillard v. Commissioner of Correction, supra, 35 Conn. App. 759. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 222 Conn. 87, 92, 608 A.2d 667 (1992). A reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Stricklands v. Washington, supra, 689. Also, the “petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Siano v. Warden, 31 Conn. App. 94, 97, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).

Here, defense counsel testified that his investigation disclosed that any testimony, at the time of trial, of the petitioner’s mother, sister and girlfriend would not have helped the petitioner. Counsel stated further that an investigation failed to disclose the names of any of the twenty witnesses alleged by the petitioner to have been in the vicinity of the crime two hours before it occurred. The victim had testified that the petitioner was in a crowd of people across the street from the crime scene and had threatened him at that time. State v. Cosby, supra, 44 Conn. App. 28.

The petitioner has failed to show that defense counsel’s performance failed to comply with the standards recited previously. The court, therefore, acted properly, lawfully and in accordance with applicable law when it dismissed the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court thereafter granted the petitioner’s petition for certification to appeal from the dismissal of the petition for a writ of habeas corpus.


author: SPEAR, J.

text:
    EMPIRE PAVING, INC. v. CITY OF MILFORD
    (AC 18233)
    Spear, Mihalakos and Daly, Js.

      Argued September 29, 1999
    officially released April 11, 2000

      Dominic J. Caciopoli, for the appellant (plaintiff).

      Matthew B. Woods, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, Empire Paving, Inc. (Empire), appeals from the judgment of the trial court rendered in favor of the defendant, the city of Milford (city), on Empire’s claim that the city breached the parties’ sewer construction contract. Empire claims that the trial court improperly rejected its claims for additional compensation for (1) extra paving work that was approved by the city and (2) higher than anticipated pavement cutting costs that resulted from Empire’s reliance on the city’s inaccurate boring logs. We affirm the judgment of the trial court.

The trial court found the following facts. On December 2, 1991, Empire and the city entered into a contract pursuant to which Empire agreed to install 6500 linear feet of sewage pipe for $677,801. Empire claimed that it was entitled to additional compensation for paving that was beyond that called for in the contract. Change order request number five was in the amount of $28,879 for additional paving that was caused when a newly dug gas main trench “slid” into the sewer trench in some areas. The city allowed $9431 in additional compensation on this change order. Change order request number nine, in the amount of $20,805.25, was for repairing areas adjacent to the sewer trenches that were in poor condition. The city allowed $3116.74 on this request. The conditions reflected in these two change orders necessitated a greater width of paving than was originally anticipated in the contract.

Change order request numbers two and ten relate to Empire’s claims for additional costs incurred in cutting the pavement with a saw. When Empire encountered pavement thicknesses ranging from 0.4 to 0.6 feet, as opposed to depths of 0.1 to 0.2 feet indicated in the city’s boring logs, it was required to use a “road saw cutter” instead of a “pizza wheel” at an additional cost of $2.05 per linear foot. Request number two in the amount of $20,991.18 was for a claimed 9752 linear feet of “extra depth” saw cutting. Request number ten in the amount of $19,211.46 was for another 4744 linear feet of such cutting. Metcalf and Eddy, Inc. (engineers), the engineering firm designated in the contract, denied both of the change order requests.

Empire brought suit, claiming, inter alia, breach of contract with respect to change orders two, five, nine and ten. The trial court rendered judgment for the city, and this appeal followed.

I

Empire first claims that it was entitled to additional compensation for extra paving as per change order requests numbers five and nine. The trial court concluded that the amounts allowed by the city were proper.

The court found: “The dispute between the parties centers around the ‘payment width’ of the sewer trenches utilized in calculating the additional compensation due [Empire] for paving performed beyond the width of said sewer trenches. The narrower the trench, the better for [Empire]; the wider the trench, the better for the [city]. [Empire] utilized a payment width of six feet (6’) in calculating its claims. The [city] utilized a payment width of nine feet (9’).”

Empire notified the engineers by letter dated February 27, 1992, that it intended to use a trench width of six feet. Change order request number five, relating to the gas main trench, was not submitted until May 1, 1992, and change order request number nine, relating to the repair of adjacent paving, was submitted on May 12, 1992. The work described in the change order requests was performed during March and April, 1992. The engineers notified Empire by letter dated May 21, 1992, that the additional pavement was indeed required, but rejected the six foot payment width as “invalid.” The engineers substituted a nine foot width and calculated the amount due on that basis.

First, we address our standard of review and, thereafter, the reviewability of Empire’s claims. With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The trial court’s legal conclusions are subject to plenary review. “ [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” Id., 221. Where the contract language relied on by the trial court to resolve the dispute is definitive, the interpretation of the contract is a matter of law and our review is plenary. Chance v. Norwalk Fast Oil, Inc., 55 Conn. App. 272, 280, 739 A.2d 1275, cert. denied, 251 Conn. 929, 742 A.2d 361 (1999); Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 124, 739 A.2d 280 (1999).

Empire’s claim is that change order requests five and nine were, in fact, offers to enter into a separate contract that the city accepted by its silence, thereby creating “a separate binding agreement to perform additional work.” The operative amended complaint on which the parties proceeded to trial alleges a breach of the existing sewer construction contract and makes no claim that there was a separate binding contract created by the city’s silence in the face of the change order requests. Because this claim was not presented to or decided by the trial court, we decline to review it. See HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 361, 727 A.2d 1260 (1999); Polizos v. Nationwide Mutual Ins. Co., 54 Conn. App. 724, 732, 737 A.2d 724, cert. granted on other grounds, 251 Conn. 916, 740 A.2d 865 (1999).

In resolving Empire’s alternative claim that the city wrongfully refused to pay the amounts claimed on change orders five and nine in breach of the sewer construction contract, the trial court relied on § CA.4 of the contract. That section is titled, “Authority of the Engineer,” and it provides in relevant part that “[t]he Engineer shall be the sole judge of the intent and meaning of the Drawings and Specifications and his decisions thereon and his interpretation thereof shall be final, conclusive and binding on all parties. . . .”

We conclude that § CA.4 of the contract defeats Empire’s claim. That clause required Empire to send a written protest to the city within ten days of the engineers’ decision as to payment width if it disagreed with the nine foot determination. Section CA.4 provides in relevant part: “[U]nless the Contractor files such written protest . . . within such ten (10) day period, he shall be deemed to have waived all grounds for protest of such direction, instruction, determination, or decision . . . The trial court viewed Empire’s failure to protest the engineers’ decision as fatal to its claims. We agree because the plain language of § CA.4 permits no other result.

Empire also claims that, pursuant to § CA.28 of the contract, the engineers did not have authority to resolve the change order requests but merely to pass them on with a recommendation to the owner. Section CA.28 provides a procedure for resolving claimed breaches of the contract and has nothing to do with processing change order requests. Change order requests were permitted by the contract, as previously noted, and cannot be classified as claims for damages for breach of the contract.

Empire further contends that its claims should not be precluded because the engineers’ measurements were arbitrary and not done in good faith. The trial court found to the contrary.

Empire’s primary attack on this finding is that the city allowed the trenches to be covered up before responding to the change order requests. The trial court found that the change order requests were submitted after the work was completed. This finding is supported by the evidence and is not clearly erroneous.

Empire also contends that the engineers’ measurements were “demonstrably wrong.” This claim failed in the trial court because the court concluded that the photographs that Empire relied on to support its claimed payment width were “inconclusive.” The court also noted that the “[e]ngineer[s’] agent’s measurements show six feet at certain points but his measurements averaged out at over nine feet.” Our review of the evidence leads us to conclude that the trial court’s findings that the engineers’ measurements were rational and not done in an arbitrary manner were not dearly erroneous.

II

Empire also claims that it should be compensated for additional costs that it incurred in cutting the pavement because it relied on the inaccurate boring log information provided by the city to estimate the cost of such pavement cutting. On the basis of the city’s boring logs that showed pavement depths of 0.1 and 0.2 feet, Empire estimated that a pizza wheel would be sufficient to cut through the pavement.

Our review of the trial court’s legal conclusion that the contract language on this issue was definitive and barred Empire’s claims is plenary. See Chance v. Norwalk Fast Oil, Inc., supra, 55 Conn. App. 280. The trial court properly determined that §§ IB.6 and IB. 7 of the construction contract bar Empire’s claims.

Section IB.6 of the construction contract provides that “[b]idders must satisfy themselves by personal examination of the site of the Work and by such other means as they may wish, as to the actual conditions there existing, the character and requirements of the Work, the difficulties attendant upon its execution, and the accuracy of all estimated quantities stated in the Bid.” Section IB.7 provides in relevant part: “All information given on the Drawings or in the other Contract Documents relating to subsurface and other conditions . . . is from the best sources at present available to the Owner. All such information is furnished only for the information and convenience of bidders and is not guaranteed . . . .” That section goes on to provide: “It is agreed and understood that the Owner does not warrant or guarantee that the subsurface or other conditions . . . will be the same as those indicated on the Drawings or in the other Contract Documents . . . .”

Yet another part of § IB. 7 provides that “[i]t is further . . . understood that no bidder or contractor shall use or be entitled to use any of the information made available to him or obtained in any examination made by him in any manner as a basis of or ground for any claim or demand against the Owner . . . arising from or by reason of any variance which may exist between the information made available and the actual subsurface or other conditions . . . actually encountered during the construction work . . . ,”

Empire mounts a twofold attack on the court’s conclusions. First, Empire claims that these contract clauses present an ambiguity that should have been resolved by resort to the parties’ contentions concerning their respective understandings of the agreement. The claimed ambiguity is that the city represented that the information provided as to pavement thickness was the best available, although it knew that the information was not the best available and was in fact wrong. Second, Empire claims that these clauses should not be dispositive because, as a practical matter, bidders cannot be expected to tie up municipal streets to do their own test borings. Empire asserts that these clauses should, therefore, be disregarded where actual conditions are different from conditions that were anticipated on the basis of the city’s information. We will address these contentions in turn.

We first reject the ambiguity claim because we conclude that the contract language clearly and unambiguously provided that bidders could not rely on information provided by the city to support a claim such as this one. Pursuant to the plain language of the contract, bidders were warned to satisfy themselves as to existing conditions and the requirements of the work. Section IB. 7 specifically states that the city neither warrants nor guarantees that the “subsurface or other conditions” will be as indicated in the contract documents furnished by the city. These clauses are dispositive of Empire’s claim.

The second aspect of this claim must also fail. In Dills v. Enfield, 210 Conn. 705, 717, 557 A.2d 517 (1989), our Supreme Court decided that “only in the most exceptional circumstances have courts concluded that a duty is discharged because additional financial burdens make performance less practical than initially contemplated.” In an earlier case, the court rejected a similar claim that contract language can be disregarded where the contractor encounters a situation that is different from what was expected on the basis of information provided by the municipality. In Maskel Construction Co. v. Glastonbury, 158 Conn. 592, 596, 264 A.2d 557 (1969), our Supreme Court held that the trial court improperly resorted to evidence of a custom in the trade that required an owner or a municipality to pay extra costs arising out of “conflicts.” Such conflicts represented the difference in the actual conditions that were found by the contractor and the information that was shown on the owner’s maps or plans. The Supreme Court held that “[e]ven if the existence of such a custom in the sewer construction trade had been proved, it nevertheless could not vary the specific terms of the contract . . . .” Id. Here, Empire is asking us to do that which our Supreme Court has forbidden.

The judgment is affirmed.

In this opinion the other judges concurred.

       Empire also claims that the trial court improperly relied on paragraph three of § IB.7 of the contract, discussed in part II of this opinion, because that clause violates public, policy. This claim was not raised in the trial court, and we therefore decline to review it. Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .”

       Section CA.25 of the contract provides for extra work and payment for such work. The first paragraph of § CA.25 provides: “The Contractor shall perform any extra work (work in connection with the Contract but not provided for herein) when and as ordered in writing by the Engineer, at the unit prices stipulated in the Contract for such work or, if none are so stipulated, either (a) at the price agreed upon before such work is commenced and named in the written order for such work, or (b) if the Engineer so elects, for the reasonable cost of such work, as determined by the Contractor and approved by the Engineer, plus a percentage of such cost, as set forth below. No extra work shall be paid for unless specifically ordered as such in writing by the Engineer.”

       A pizza wheel is a circular device that is used to cut pavement up to a certain thickness. It is less expensive to use than a road saw cutter, which is used to cut thicker pavement.

       Empire presents a mixture of claims without adverting to the standard of review with respect to each claim. Practice Book § 67-4 (d) provides in relevant part: “The argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied . . . .”

       Section CA.28 provides in relevant part: “If the Contractor makes claim for any damages alleged to have been sustained by breach of contract . . . he shall, within ten (10) days after occurrence of the alleged breach . . . file with the Engineer a written, itemized statement.....Within ten (10) days after the timely filing of such statement, the Engineer shall file with the Owner one copy of the statement, together with his recommendations for action by the Owner . . . .”

       See footnote 3.

       It is this clause that Empire attacks as violative of public policy and, therefore, unenforceable. The claim is not renewable, as noted in footnote 1.


text:
    CONTINENTAL CAPITAL CORPORATION v. CARMELA LAZARTE ET AL.
    (AC 19423)
    Foti, Landau and Sehaller, ,1s.
    Argued January 10
    officially released April 11, 2000

      Brenden P. Leydon, with whom was Peter V. Lathouris, for the appellant (named defendant).

      Kimberly A. Pisinski, with whom, on the brief, were David F. Borrino, Keith K. Fuller and F. Erik Kaneko, for the appellee (plaintiff).
   Opinion

FOTI, J.

The named defendant, Carmela Lazarte, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, Continental Capital Corporation, and the denial of the defendant’s motion to open the judgment. The defendant claims that the trial court improperly (1) denied her motion to open as untimely, (2) set law days commencing within the appeal period and (3) defaulted the defendant for failure to disclose a defense. We reverse the judgment of the trial court and remand the matter for further proceedings.

The plaintiff commenced this mortgage foreclosure action in November, 1998, and on January 8,1999, filed a demand for disclosure of defense. On January 13, 1999, the defendant filed her disclosure of defense. On January 21, 1999, the plaintiff filed a motion for default for failure to disclose a defense along with a motion for judgment of strict foreclosure. The plaintiffs motions were scheduled for the short calendar of February 1, 1999. Neither the defendant nor her counsel appeared at the short calendar assignment. The court defaulted the defendant for failure to disclose a defense and rendered a judgment of strict foreclosure against her. Although the judgment was rendered on February 1, 1999, notice of the judgment was not issued until February 5,1999. On February 1,1999, the court set law days to run on February 22, 1999, as to the defendant, and February 23,1999, as to Green Tree Financial Servicing Corporation, the other defendant in this action. Issuance of notice of the law day to the defendant occurred on February 8, 1999.

On February 23, 1999, the defendant filed her motion to open the judgment on the ground that she was defaulted improperly. The court denied her motion as untimely because it was filed after the defendant’s law day had run.

The sole issue in this case is whether the court improperly concluded that the defendant’s motion to open was untimely and thereby refused to entertain it. We agree with the defendant that the court should not have refused to hear the motion on its merits.

It is clear, and the plaintiff agrees, that the appeal period did not commence until the clerk issued the notice of judgment on February 5, 1999, and that the court set law days within the appeal period. The plaintiff, however, argues that because the defendant’s motion to open, although filed within the period of appeal, was filed after the running of her law day, her right to redeem had expired and she lost all of her rights, including her right to appeal. We disagree.

The court did not rule on the merits of the defendant’s motion, but instead concluded as a matter of law that her motion was untimely. When the court draws conclusions of law, our review is plenary and we must decide whether those conclusions are legally and logically correct. Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).

In setting the defendant’s law day as February 22, 1999, the court did not allow the defendant the full period of twenty days to appeal pursuant to Practice Book § 63-1. See Marine Midland Bank v. Ahern, 51 Conn. App. 790, 794, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000). Law days in a strict foreclosure cannot run if a motion to open is filed during the appeal period but is yet to be ruled on. D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 17.06, pp. 260-61; see also Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 348-49, 579 A.2d 1054 (1990). Law days are ineffective while the appeal period is pending. To conclude otherwise would be tantamount to depriving a party of judicial review and, therefore, of due process of law.

The right to appeal from a judgment of strict foreclosure is meaningless if the beneficial right of redemption is no longer available. “It is fundamental to the judicial process that a party’s right to judicial review shall not be obliterated or undermined by the unauthorized exercise of jurisdiction by the court whose doings are, or may be, subject to review. ... A party accorded the right of appellate review is entitled to the full and unhampered exercise of that right in accordance with the applicable rules of practice or statutes. This the defendant was deprived of, and so, he was deprived of due process of law.” Hartford National Bank & Trust Co. v. Tucker, 181 Conn. 296, 298, 435 A.2d 350, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980).

A party may not effectively be deprived of the right to appeal within the twenty days by having the law day pass within that time, thereby causing a loss of the right of redemption. The defendant’s motion, therefore, cannot be deemed to be untimely filed under these circumstances; she must be afforded due process in the form of a hearing and a determination on the merits of her motion to open.

The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Green Tree Financial Servicing Corporation also was a defendant in this action, but it is not a party to this appeal. We therefore refer to the named defendant, Carmela Lazarte, as the defendant.

       The plaintiffs motion for default for failure to disclose a defense was marked “oral argument is not requested” and “testimony is not required.”

       Practice Book § 63-1 (a) provides in relevant part: “Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given. . . .”