author: ALVORD, J.

text:
    KAREN FRANDY v. COMMISSIONER OF TRANSPORTATION ET AL.
    (AC 32979)
    Lavine, Alvord and Borden, Js.
    Argued October 24
    officially released December 27, 2011

      Ronald D. Williams, Jr., for the appellant (named defendant).

      Christopher D. DePalma, with whom, on the brief, was Dennis W. Gillooly, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant commissioner of transportation, Joseph Marie, appeals from the judgment of the trial court denying his motion to dismiss the first count of the complaint filed by the plaintiff, Karen Frandy. On appeal, the defendant argues that the trial court improperly denied the motion to dismiss for a lack of subject matter jurisdiction because the written notice provided to the defendant by the plaintiff, pursuant to General Statutes § 13a-144, was fatally defective for failing to set forth a general description of the cause of the injury. Because we agree with the defendant that the plaintiff failed to file proper notice and because defective written notice under § 13a-144 implicates sovereign immunity, thereby depriving the court of subject matter jurisdiction, we conclude that the plaintiffs action under the first count of the complaint is barred. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the defendant’s appeal. On September 15, 2009, at approximately 4 p.m., the plaintiff alleges that she was riding her bicycle on the east side of State Street in North Haven when she fell from the bicycle due to a hole in the road. On November 16, 2009, the plaintiff sent a notice of claim to the defendant pursuant to § 13a-144. The notice included the following as the cause of injury: “Plaintiffs injuries were caused as a result of the defective condition of the pavement which caused her to be thrown from her bicycle.” The plaintiff served her complaint on March 31, 2010, in which she alleged for the first time that the defective condition of the pavement was a hole in the road. The defendant filed a motion to dismiss the first count of the complaint for lack of subject matter jurisdiction on August 30, 2010. After a hearing, the court denied the motion to dismiss on November 30, 2010, stating that the notice provided to the defendant was reasonable. This appeal followed.

The defendant claims that the court improperly denied his motion to dismiss based on grounds of sovereign immunity, thereby depriving the court of subject matter jurisdiction, because the plaintiffs notice of claim was defective pursuant to § 13a-144. We agree.

Our Supreme Court has stated many times that the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Amore v. Fvankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). It has also recognized that “the state can consent to be sued and that [t]he state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of [§ 13a-144]. . . . Therefore, when a plaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity.” (Citation omitted; internal quotation marks omitted.) Id., 364-65. “Section 13a-144 [however] constitutes only a limited waiver of the state’s sovereign immunity in cases involving alleged highway defects. . . . Furthermore, because the statute constitutes a break with common law, it must be strictly construed.” (Citation omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 349, 636 A.2d 808 (1994).

Section 13a-144 provides in relevant part: “No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .” (Emphasis added.) “The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity.” Lussier v. Dept. of Transportation, supra, 228 Conn. 354.

“Ordinarily, the question of the adequacy of the notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case. . . . Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements.” (Citation omitted; internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 27-28, 615 A.2d 1040 (1992).

“The purpose of the notice requirement is to furnish the commissioner with such precise information as to time and place as will enable [the commissioner] to inquire into the facts of the case intelligently . . . and to protect the state’s interests.” (Citations omitted; internal quotation marks omitted.) Id., 26. “If this purpose is to be served the ‘cause’ of the injury which is required to be stated must be interpreted to mean the defect or defective condition of the highway which brought about the injury.” Nicholaus v. Bridgeport, 117 Conn. 398, 401, 167 A. 826 (1933).

The plaintiffs notice of claim fails to state a cause of the injury as required by § 13a-144. The plaintiffs notice merely states that the cause of the plaintiffs bicycle accident was due to “the defective condition of the pavement” but it does not specify the precise nature of the claimed defect. This description patently fails to meet the statutory requirements.

“When we turn to a consideration of the notice of injury given in the case at bar, it becomes immediately apparent that it fails to specify the defect in the highway which resulted in injury to the plaintiff. The cause of the injury required to be stated must be interpreted to mean the defect or defective condition of the highway which brought about the injury. . . . Was it a large, small or medium hole, a ditch, a gully, a rut, a depression, or the elevation of a portion of the sidewalk, or perhaps the failure of the city effectively to remove snow or ice accumulated thereon? What was the city to look for in the protection and preservation of its interests, and to enable it properly to prepare a defense, if any, against the claim of the plaintiff? Certainly the use of the words neglect, maintenance and repair gives no clue whatsoever as to the direct cause of the fall in question, nor do the words give any indication of that which occasioned or produced the fall. ... In practical effect, such words amount to nothing more than the use of unnecessary embellishment in a notice of injury. It is sufficient and customary in defective highway cases to state that the cause was a specified defective condition, without further statement that it in turn was due to negligence in failing to keep the highway in repair or otherwise.” (Citations omitted; internal quotation marks omitted.) Ross v. New London, 3 Conn. Cir. Ct. 644, 646-47, 222 A.2d 816, cert. denied, 154 Conn. 717, 221 A.2d 272 (1966).

The plaintiff argues that we should read the notice of claim holistically and consider that, because she was able to pinpoint the exact location of her accident and provided that information in the notice, the notice should not be considered defective with regard to the cause of the injury. Alternatively, she argues that we should read the notice of claim in conjunction with her complaint. We disagree with the plaintiff.

In making her argument, the plaintiff first claims that she properly described the cause of the injury as a “defect” in the pavement. The plaintiff relies on Oberlander v. Sullivan, 70 Conn. App. 741, 799 A.2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002), to support this claim. In Oberlander, the notice provided that the cause of the plaintiffs injury was “[i]mproperly maintained and deteriorated pavement around water company pipe cap.” (Internal quotation marks omitted.) Id., 743. Deterioration around a water company pipe cap is a description of the condition as it is alleged to have caused the accident in that case. Here, the plaintiffs notice provided the cause of the injury as simply the “defective condition of the pavement.” This conclusory phrase is not a description of the relevant highway defect.

The plaintiff next claims that because she provided the exact location of the alleged “defective” pavement, her notice was sufficient under a reasonableness standard. The plaintiff cites no case in which a reasonableness standard was used to find a notice of claim sufficient where one of the five statutorily required elements was omitted. See Martin v. Plainville, 240 Conn. 105, 112, 689 A.2d 1125 (1997). The defendant could not be expected to gather information to protect himself in a lawsuit without knowing the nature of the defect, regardless of whether he knew exactly where the defect was located. Id., 112-13.

Finally, the plaintiff argues that we should find her notice of claim sufficient by considering it in conjunction with her complaint, in which she describes the cause of the accident as a hole in the road. “Although ... § 13a-144 provides in part that ‘[t]he requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice,’ the plaintiffs complaint was not filed within the ninety days provided under the statute. Therefore, the complaint cannot be considered for the purposes of meeting the notice requirement.” Bresnan v. Frankel, supra, 224 Conn. 25 n.2. The subject accident occurred on September 15, 2009. The complaint was served on March 31, 2010, significantly beyond the ninety day period in which notice had to be filed with the defendant. Therefore, the plaintiffs argument is without merit.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to dismiss the complaint as to the defendant and to render judgment for the defendant.

In this opinion the other judges concurred.

       The second count of the complaint was directed at the defendant town of North Haven. For clarity and convenience, we refer to the commissioner of transportation as the defendant throughout this opinion.

       We note that “the denial of a motion to dismiss based on a colorable claim of sovereign immunity is a final judgment for the purposes of appeal.” Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

       Although this case is not binding precedent, we find the reasoning of the court persuasive.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    JP MORGAN CHASE BANK, TRUSTEE v. ALBERT S. RODRIGUES ET AL.
    (AC 32547)
    DiPentima, C. J., and Alvord and West, Js.
    Argued October 20, 2011
    officially released January 3, 2012

      Daniel Shepro, for the appellants (named defendant et al.).

      Geoffrey K. Milne, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendants Albert S. Rodrigues and Marie Rodrigues appeal from the judgment of foreclosure by sale rendered in favor of the plaintiff, JP Morgan Chase Bank, Trustee. On appeal, the defendants claim that the court improperly struck two of their special defenses. We dismiss the defendants’ appeal as moot.

This court previously has set forth the following facts and procedural history of this case. “In September, 2004, the plaintiff filed a complaint in one count against the defendants seeking a foreclosure of a mortgage, possession of the mortgaged property, a deficiency judgment, money damages, attorney’s fees, costs and interest. In its complaint, the plaintiff alleged that it was an assignee of a note and mortgage executed by the defendants in favor of Citicorp Mortgage, Inc. The plaintiff further alleged that it was now the owner and holder of the note and mortgage.

“In November, 2004, the defendants filed an answer, special defenses, a counterclaim and setoffs. The defendants alleged four special defenses: estoppel on the basis of the failure to honor a forbearance agreement, estoppel on the basis of a breach of the implied covenant of good faith and fair dealing in not honoring the forbearance agreement, estoppel on the basis of the failure to provide an accounting and estoppel on the basis of a breach of the forbearance agreement.

“In addition, the defendants alleged a three count counterclaim and setoff. The first count of the counterclaim alleged that the defendants ‘entered into an agreement of forbearance with the plaintiffs predecessor in interest.’ This count alleged that the plaintiff ‘took the note and mortgage while in default subject to the forbearance agreement’ and that the defendants made payments according to the forbearance agreement but that the plaintiff failed to honor the agreement. The defendants further alleged that the plaintiff at first denied that it took the mortgage subject to the forbearance agreement. When, at the insistence of the defendants’ attorney, the plaintiff reviewed the agreement, it still failed to honor the agreement. It instead insisted that the defendants execute another agreement and threatened foreclosure if they did not do so even though the balance stated in that new agreement was incorrect. The defendants claimed emotional distress as a result of the claimed threats of foreclosure and the plaintiffs allegedly requiring the defendants to execute another agreement. In the second count of the counterclaim, the defendants incorporated by reference the facts set forth in the first count of the counterclaim. This second count alleged that the plaintiff acted recklessly, wantonly and without regard for, and contrary to, the forbearance agreement. This count further alleged that the plaintiff wrongfully and intentionally inflicted emotional distress on the defendants. The third count of the counterclaim likewise incorporated by reference the facts set forth in the previous counts of the counterclaim and claimed a violation of the Connecticut Unfair Trade Practices Act (CUTPA). See General Statutes § 42-110a et seq.

“The plaintiff thereafter filed a motion to strike the defendants’ special defenses, counterclaim and setoffs, which the court, Richards, J., granted. In response to a motion filed by the plaintiff, the court, Matasavage, J., rendered judgment on the stricken counterclaim.” JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn. App. 125, 127-28, 952 A.2d 56 (2008). The defendants appealed from the judgment.

In that appeal, the defendants claimed that the court improperly granted the plaintiffs motion to strike their special defenses, counterclaim and setoffs. Id., 126-27. We affirmed the judgment of the court with respect to the counterclaim and setoffs. Id., 131-35. In addition, we concluded that the court’s granting of the motion to strike the defendants’ special defenses was not a final judgment and dismissed that portion of the appeal. Id., 129-30.

Following our decision, a trial was held on January 12 and 13,2010. As set forth in its July 14,2010 memorandum of decision, the court, Hartmere, J., found that the mortgage loan initially had become delinquent in 1993. In 1998, the defendants acknowledged their indebtedness to Ocwen Federal Bank, FSB, the then holder of the mortgage. In March, 2000, the defendants entered into a forbearance agreement. In June, 2002, the loan servicing center, Fairbanks Capital Coip. (Fairbanks), and the defendants entered into an agreement regarding repayment. In this agreement, the defendants acknowledged the existence of the loan, the fact that they were in default and that they were unable to pay the entire amount due. Pursuant to the agreement, Fairbanks agreed not to enforce its rights in exchange for monthly payments of $5675 from July 25, 2002, through May 25, 2003. After all of these payments were made, Fairbanks agreed to reevaluate the defendants’ financial status, and the defendants agreed to resume regular monthly payments pursuant to the terms of the original loan effective June 1, 2003. The agreement specifically stated that the loan was not reinstated. The defendants also expressly acknowledged that they did not have a “claim, defense, offset or counterclaim whatsoever against [Fairbanks] with respect to the Loan.”

In June, 2003, the servicing of the loan was transferred to GMAC Mortgage Corporation and the loan was reevaluated pursuant to the terms of the 2002 agreement. In lieu of initiating a foreclosure action, a 2004 agreement was executed, and the defendants then made payments pursuant to the later agreement. The court concluded that the defendants “thereby ratified the 2004 repayment agreement and extinguished the 2002 agreement.” The court also found that the defendants breached the 2002 agreement as a result of a check from the defendants that was returned for insufficient funds in 2004.

The court then found that the defendants’ claim that the mortgage foreclosure violated the 2002 agreement on the basis of a violation of the implied covenant of good faith and fair dealing failed “as a matter of fact and law.” Specifically, the court concluded that generally the covenant of good faith and fair dealing cannot be used to achieve a result contrary to the express terms of a contract.

Ultimately, the court concluded that the note and mortgage were in default for nonpayment, the plaintiff was the owner of the note and related loan documents, and there was no equity in the property. The court further found the debt, exclusive of attorney’s fees and costs, to be $818,491.31. It rendered a judgment of foreclosure by sale. This appeal followed.

On appeal, the defendants’ sole claim is that the court improperly struck two of their special defenses. The plaintiff counters, inter alia, that the appeal should be dismissed as moot because this court cannot grant the defendants any practical relief. We agree with the plaintiff.

“Mootness implicates [the] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot .... Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary. ” (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 506-507, 970 A.2d 578 (2009); see also Chase Manhattan Mortgage Corp. v. Burton, 81 Conn. App. 662, 664, 841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d 313 (2004). The dispositive question, therefore, is whether a successful appeal would benefit the defendants in any way. See Lyon v. Jones, 291 Conn. 384, 394, 968 A.2d 416 (2009).

In their appeal, the defendants have challenged only the court’s decision to strike two of their special defenses, both of which pertained to the forbearance agreement. The defendants have not challenged the foreclosure judgment, including the court’s findings that either the forbearance agreement was extinguished or violated by the defendants. In other words, even if we were to agree with the defendants as to the propriety of the striking of the special defenses, the court’s findings and legal conclusions as to the foreclosure judgment remain in effect. See Housing Authority v. Davis, 57 Conn. App. 731, 733, 750 A.2d 1148, cert. denied, 254 Conn. 901, 755 A.2d 218 (2000); see also Lyon v. Jones, supra, 291 Conn. 394-95. This court, therefore, cannot afford the defendants any practical relief because the court’s findings that (1) the note and mortgage were in default for nonpayment by the defendants and (2) the plaintiff was the owner of the note and related loan documents remain valid, regardless of how we might rule on the striking of the special defenses. Simply put, the defendants have failed to challenge any of the court’s conclusions with respect to the foreclosure judgment, including those that related to the forbearance agreement and cannot do so at this time. Accordingly, we cannot grant the defendants any practical relief, and, therefore, the appeal must be dismissed as moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       The plaintiff also named as defendants the United States Internal Revenue Service, the state department of revenue services, Sam Melilli and Esther Melilli. At issue in this appeal is whether the court properly struck the special defenses of Albert S. Rodrigues and Marie Rodrigues. We therefore refer in this opinion to these two individuals as the defendants.

       The court found the attorney’s fees to be $38,483 and costs in the amount of $5184.26.

       Specifically, the defendants claim that the court improperly struck the first and fourth special defenses. The first special defense alleged that the plaintiff “took the note and mortgage subject to the forbearance agreement,” that it failed to honor that agreement and that accordingly it should be estopped from collecting the loan and proceeding with foreclosure. The fourth special defense alleged that the defendants substantially honored the forbearance agreement, but the plaintiff failed to do so, and therefore the plaintiff should be estopped from claiming a default and should reinstate the mortgage note.


text:
    ROBERT MARUT v. INDYMAC BANK, FSB, ET AL.
    (AC 33087)
    DiPentima, C. J., and Alvord and Bishop, Js.

      Argued October 11, 2011
    officially released January 3, 2012

      Jason E. Pearl, for the appellant (plaintiff).

      Peter A. Ventre, with whom, on the brief, was Geoffrey K. Milne, for the appellee (defendant Hunt Leibert Jacobson, P.C.).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Robert Marut, appeals from the grant of summary judgment in favor of the defendant Hunt Leibert Jacobson, P.C. The plaintiff argues that the trial court improperly (1) rendered summary judgment when genuine issues of material fact existed and (2) denied his motion to open that judgment. We disagree and, accordingly, affirm the judgment of the trial court.

This appeal arises out of a foreclosure action. In early 2008, IndyMac Bank, FSB (IndyMac), commenced a foreclosure action against the plaintiff involving property located at 100 Whitney Street in Hartford. Indy-Mac’s counsel in the foreclosure action was the defendant. On May 4, 2009, a judgment of strict foreclosure was rendered in favor of IndyMac. Pursuant to General Statutes § 47a-llb, the defendant issued a certified notice, dated August 25, 2009, to the plaintiff notifying him that he needed to contact the defendant within ten days and to remove his personal property within thirty days of the notice, or that such personal property would be disposed of pursuant to § 47a-llb (d). The certified notice, sent to 100 Whitney Street in Hartford, was returned to the defendant by the post office with a handwritten notation, “Vacant,” and was dated August 27, 2009. A number of prior communications in the foreclosure action were mailed by the defendant to the plaintiff at 979 Farmington Avenue in Berlin, including one dated May 12,2009. At the time the certified notice was sent to 100 Whitney Street, the plaintiff did not reside there, did not receive mail there, and did not have access to the property. Accordingly, the plaintiff did not receive the letter, the deadline to take action passed, and the plaintiffs personal property was removed and disposed.

As a result, the plaintiff filed this conversion action against IndyMac and the defendant by complaint dated January 8, 2010. The plaintiff claims that the defendant is responsible for changing the locks at 100 Whitney Street and removing the plaintiffs personal property. In response, on March 11, 2010, the defendant filed an initial motion for summary judgment, and the plaintiff filed an objection with supporting affidavits and exhibits. On May 21, 2010, the court denied the defendant’s motion for summary judgment. Thereafter, the defendant attempted to engage in discovery. After a number of discovery requests, the only documents provided by the plaintiff to the defendant were a two page summary of the plaintiffs interactions with IndyMac and two e-mails between the plaintiff and IndyMac.

On November 17, 2010, the defendant filed a second motion for summary judgment, and a hearing was scheduled for December 6, 2010. The plaintiff received notice on November 30, 2010, and filed a motion for a continuance and an objection to the motion for summary judgment on December 3, 2010, but provided no explanation for his anticipated absence from the hearing. On December 3, 2010, the court denied the plaintiffs continuance request. Thereafter, the plaintiffs counsel faded to appear at the oral argument on December 6, 2010, and the court stated that it would not entertain the plaintiffs objection and treated the motion for summary judgment as unopposed and, therefore, granted the defendant’s motion. The plaintiff subsequently filed a motion to open the December 6, 2010 judgment, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the standard of review. “Pursuant to Practice Book § 17-49, 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. Such questions of law are subject to plenary appellate review. ... In deciding whether the trial court properly determined that there was no genuine issue of material fact, we review the evidence in the light most favorable to the nonmoving party.” (Citation omitted; internal quotation marks omitted.) Faigel v. Fairfield University, 75 Conn. App. 37, 39-40, 815 A.2d 140 (2003).

“Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .” (Internal quotation marks omitted.) Hodgate v. Ferraro, 123 Conn. App. 443, 459, 3 A.3d 92 (2010). Furthermore, this court has stated: “It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypicaily [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.” (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn. App. 555, 565, 1 A.3d 137 (2010). A material fact is one that will make a difference in the result of the case. Double G.G. Leasing, LLCv. Underwriters at Lloyd’s, London, 116 Conn. App. 417, 426, 978 A.2d 83, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).

We now set forth the relevant law of conversion that will guide our analysis. Conversion is an “unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights. ... It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.” (Intemal quotation marks omitted.) Aetna Life & Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994). To establish a valid claim of conversion, a plaintiff must establish “legal ownership or right to possession in the particular thing . . . that the defendant is alleged to have converted.” (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 650, 804 A.2d 180 (2002).

I

The plaintiff puts forth two arguments as to why genuine issues of material fact exist and, therefore, the defendant’s motion for summary judgment should not have been granted. First, the plaintiff argues that the pleadings contain clear and genuine issues of material fact. More specifically, the plaintiff contends that the defendant’s answer, which denies multiple allegations put forth in the complaint, creates a genuine issue of material fact as to whether the defendant ever assumed or exercised control over the plaintiffs property. Although it is true that the defendant denied various allegations of the plaintiffs complaint, it is not enough for the plaintiff merely to assert the existence of a disputed issue without the support of any evidence disclosing the existence of such an issue. See Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997) (“[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence” [interna! quotation marks omitted]). The plaintiff did provide an affidavit to the court on April 21, 2010, in support of his allegations; however, that affidavit was provided in connection with the first summary judgment proceeding and was the only affidavit that the plaintiff provided. Furthermore, as the court noted in its April 27, 2011 articulation, the affidavit did not dispute the defendant’s evidence that it had no role in changing the locks. The affidavit stated that the plaintiffs personal property, prior to going missing, was last in the custody and control of the defendant; however, the plaintiff provided no supporting evidence for this conclusory statement. See Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793-94, 749 A.2d 1144 (2000) (“[a] conclusory assertion . . . does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of a motion for summary judgment”). Moreover, the documents provided by the plaintiff during discovery did not rebut the evidence provided by the defendant concerning its alleged role in changing the locks. In fact, the documentation provided only supports that the plaintiff contacted IndyMac regarding the changed locks and accessing the property, not the defendant. As a result, the plaintiff failed to establish a genuine issue of material fact because no evidence was provided to support the allegations that the defendant changed the locks on the property or removed the plaintiffs personal property.

The plaintiffs second argument concerning the presence of a genuine issue of material fact is that a factual dispute existed as to what was known, by the defendant, to be the plaintiffs “last-known address” for purposes of the notice requirement of § 47a-llb. The plaintiff argues that without the statutory notice properly addressed to the “last-known address” of the plaintiff, the defendant did not have a statutory right to remove or dispose of the plaintiffs personal property. Although this may be true, it is not relevant to the plaintiffs present cause of action for conversion. Whether or not the defendant complied with § 47a-llb is not a condition or element of conversion. Even if the defendant did not comply with the notice requirement of § 47a-11b, the plaintiffs claim of conversion against this defendant is not advanced in any way. Such a finding does not equate to evidence of control or dominion over the plaintiffs personal property by the defendant. Therefore, although the question of what exactly the defendant knew to be the plaintiffs “last-known address” might be a disputed fact, it is not material to the plaintiffs claim of conversion.

II

The plaintiffs second claim is that the court improperly denied his motion to open the summary judgment decision because he was not afforded oral argument at the hearing on the defendant’s motion for summary judgment. We disagree.

The standard of review on a motion to open a judgment under Practice Book § 17-4 is whether the trial court abused its discretion. See Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 95, 952 A.2d 1 (2008). The grounds of the motion to open were not to submit new evidence, or newly discovered evidence, but simply to hold another oral argument. The plaintiff relies on Practice Book § 11-18 (a), which states that a motion for summary judgment is subject to oral argument as of right. The court, however, is not responsible for absenteeism in the courts by either the parties or their counsel. The court afforded the plaintiff the opportunity for oral argument on December 6,2010, in accordance with Practice Book § 11-18 (a), but the plaintiff did not appear after his motion for a continuance was denied. As the court noted in its January 5, 2011 order, Practice Book § 11-18 (d) also 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.” Therefore, the court did not abuse its discretion in denying the motion to open.

The judgment is affirmed.

In this opinion the other judges concurred.

       On May 6, 2010, the plaintiff withdrew his action against IndyMac Bank, FSB, leaving Hunt Leibert Jacobson, P.C., as the sole defendant.

       General Statutes § 47a-llb (b) provides: “If all the occupants abandon the dwelling unit, the landlord may send notice to each occupant at his last-known address both by regular mail, postage prepaid, and by certified mail, return receipt requested, stating that (1) he has reason to believe that the occupant has abandoned the dwelling unit, (2) he intends to reenter and take possession of the dwelling unit unless the occupant contacts him within ten days of receipt of the notice, (3) if the occupant does not contact him, he intends to remove any possessions and personal effects remaining in the premises and to rerent the premises and (4) if the occupant does not reclaim such possessions and personal effects within thirty days after the notice, they will be disposed of as permitted by this section. The notice shall be in clear and simple language and shall include a telephone number and a mailing address at which the landlord can be contacted. If the notices are returned as undeliverable, or the occupant fails to contact the landlord within ten days of the receipt of the notice, the landlord may reenter and take possession of the dwelling unit, at which time any rental agreement or lease still in effect shall be deemed to be terminated.”

       Nothing in the record provides any explanation as to why the defendant would have changed the address it used to correspond with the plaintiff for purposes of the August 25, 2009 certified notice.

       The trial court’s order granting the motion for summary judgment stated, in its entirety: “Plaintiffs objection untimely, and his counsel failed to appear for argument. On the merits, plaintiffs objection failed to rebut defendant’s claim that there is no genuine dispute as to a material fact.”

       The defendant attached to its motion for summary judgment all of the documents it received from the plaintiff in response to its discovery requests.

       Practice Book § 11-18 (a) states in relevant part: “Oral argument is at the discretion of the judicial authority except as to motions to dismiss, motions to strike, motions for summary judgment, motions for judgment of foreclosure, and motions for judgment on the report of an attorney trial referee and/or hearing on any objections thereto. For those motions, oral argument shall be a matter of right . . . .”


author: PER CURIAM.

text:
    BRENDA UNGERLAND v. MORGAN STANLEY AND COMPANY, INC., ET AL.
    (AC 32390)
    Bear, Espinosa and Sullivan, Js.
    Argued October 17, 2011
    officially released January 3, 2012

      Thomas P. Willcutts, for the appellant (plaintiff).

      Toby S. Soli, with whom, on the brief, was George D. Sullivan, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Brenda Ungerland, appeals from the judgment of the trial court dismissing her complaint against the defendants, Morgan Stanley & Company, Inc. (Morgan Stanley), and Sharon Kells, an agent of Morgan Stanley. The plaintiff alleges that the court improperly determined that her claims amounted to a collateral attack on an arbitration award and erroneously decided as a result that it lacked subject matter jurisdiction to consider them. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of the plaintiffs appeal. The plaintiff was a customer of Morgan Stanley. In August, 2001, the defendants gave the plaintiff investment recommendations, which the plaintiff claims caused her to sustain $400,000 in principal losses. On May 14, 2002, the plaintiff instituted an arbitration proceeding with the National Association of Securities Dealers, Inc. (association), against the defendants, alleging that the defendants’ investment recommendations had been “false and fraudulent . . . .” During the arbitration proceeding, the defendants represented that certain records pertaining to the plaintiffs account had been destroyed as a result of the September 11, 2001 attack on the World Trade Center in New York City. The association issued an award of compensatory damages to the plaintiff in the amount of $9539. The plaintiff did not move to vacate, modify or correct this award.

In December, 2006, the association determined that Morgan Stanley had deliberately destroyed records relevant to various arbitration proceedings, including those brought by the plaintiff. The association instituted charges against Morgan Stanley on the basis of this finding. In 2007, the association merged with the New York Stock Exchange to form the Financial Industry Regulatory Authority (regulatory authority). Later that year, the regulatory authority accepted a “Letter of Acceptance, Waiver and Consent” from Morgan Stanley in settlement of the charges initially made by the association.

Instead of participating in this settlement, the plaintiff on June 12, 2009, filed a complaint in Superior Court in the judicial district of Hartford, alleging common-law intentional spoliation of evidence and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The plaintiff asserted that, because she could not present the records allegedly destroyed by Morgan Stanley, she could not establish a prima facie case in support of certain claims she had raised during the arbitration proceeding, resulting in her having received no award of damages for these claims. The defendants filed a motion to dismiss the complaint on July 23, 2009, contending that the plaintiff had failed to move to vacate the arbitration award in a timely fashion and that, therefore, the present action constituted an impermissible collateral attack on a valid arbitration award. The court granted the defendants’ motion on April 5, 2010. On April 26, 2010, the plaintiff filed a motion to reargue, which the court denied on June 3, 2010. The plaintiff filed the present appeal on June 24, 2010.

We review the court’s dismissal of the plaintiffs complaint de novo. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests . . . whether . . . the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo. . . . Furthermore, [w]e have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review.is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.” (Citation omitted; internal quotation marks omitted.) Caltabiano v.L&L Real Estate Holdings II, LLC, 122 Conn. App. 751, 757-58, 998 A.2d 1256 (2010).

After considering the record, briefs and arguments of the parties on appeal, we conclude that the judgment of the trial court should be affirmed. Because the court’s memorandum of decision fully addresses the claims raised in this appeal, we adopt its thorough and well reasoned decision as a statement of the facts and the applicable law on the issue. See Ungerland v. Morgan Stanley & Co., 52 Conn. Sup. 164, 35 A.3d 1095 (2010). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010).

The judgment is affirmed.

       On March 20, 2009, the regulatory authority notified the plaintiff that she had been identified as a potential claimant to a fund that had been established pursuant to the settlement to compensate victims of Morgan Stanley’s alleged misconduct. The fund required participating claimants to “waive any right to seek any other payment from Morgan Stanley that is intended as punishment for the failure to produce pre-September 11, 2001 e-mail[s].” The potential award available to each claimant through the fund was capped at $20,000. The plaintiff chose not to participate in the settlement in order to avoid waiving any potential claims against Morgan Stanley.

       In addition to her claim that the ultimate result reached by the court was in error, the plaintiff also claims that the court improperly failed to hold an evidentiary hearing concerning whether her arbitration award had been opened. According to the plaintiff, there were factual questions regarding the meaning of Morgan Stanley’s “Letter of Acceptance, Waiver and Consent.” Specifically, the plaintiff characterizes as factual the question of whether this letter opened her arbitration award. Therefore, the plaintiff asserts that due process required that an evidentiary hearing be held in order to ascertain the letter’s meaning. We do not agree. The letter is unambiguous on its face. The issue of whether it opened her arbitration award was therefore a legal question; see, e.g., O’Connor v. Waterbury, 286 Conn. 732, 744, 945 A.2d 936 (2008) (“[i]f a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review” [internal quotation marks omitted]); and due process did not require an evidentiary hearing. See Amove v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994) (“in the absence of any disputed issues of fact pertaining to jurisdiction, there was no need to hold an evidentiary hearing before deciding the motion to dismiss”).


text:
    MARGARET PEARSON v. GARY PEARSON
    (AC 32535)
    Alvord, Espinosa and Bishop, Js.
    Argued September 22, 2011
    officially released January 3, 2012

      Harold R. Burke, for the appellant (plaintiff).

      Deborah L. Grover, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Margaret Pearson, appeals from the trial court’s refusal to consider her motion to open the judgment dissolving her marriage to the defendant, Gary Pearson. The plaintiff claims that the court failed to meet its obligation to decide every matter properly before it, and that, by doing so, the court deprived her of her right to appeal the judgment of dissolution by causing the twenty day appeal period to expire without considering her motion. Because we decide that the appeal is moot, we dismiss the appeal.

The following facts and procedural history are relevant to our consideration of this appeal. On April 30, 2010, the court rendered a judgment of dissolution, dissolving the parties’ marriage. The judgment incorporated by reference a stipulation agreement entered into by the parties. The plaintiff filed a motion to open this judgment on May 11, 2010, on the ground of fraud and/ or other equitable grounds. At a hearing on June 7, 2010, the court refused to consider this motion. The court stated: “I’ve looked at the motion to open judgment and I can’t tell from the motion that was filed, May 11, 2010, what the grounds are for the opening, it — it has no factual pleadings as to what the alleged fraud or other equitable grounds are, on its face, the motion is grossly inadequate, there’s no way it can be granted. So, it won’t be reclaimed and it won’t be heard.

“If there is to be a motion to open, it will have to be a fresh one that is filed with specifics as to the grounds. So, we’re not going to hear that today, in any case.”

The plaintiff filed a motion to reargue on June 17, 2010, claiming that under Ahneman v. Ahneman, 243 Conn. 471, 706 A.2d 960 (1998), it was improper for the court to refuse to consider her motion to open the judgment. The court denied this motion on June 22, 2010, stating: “The court did not declare the plaintiffs motion a ‘nullity.’ The court pointed out to counsel that the court could not tell from the motion what were the factual bases or grounds for the opening. The pleading stated a legal basis for opening the judgment without reference to any facts from which a reasonable person could understand the factual basis. On its face, the motion was grossly inadequate since our rules require factual pleading and the motion could not be granted.” The court invited counsel to file a new motion containing specific and factual claims as to the grounds for opening the judgment. On June 24,2010, the plaintiff filed an amended motion to open the judgment, stating the same grounds as those raised in the May 11, 2010 motion, namely, fraud and that the stipulation agreement was neither fair nor equitable, but making specific factual claims. After a hearing on the merits of the motion, the court denied this amended motion on June 28, 2010. Thereafter, on July 12, 2010, the plaintiff brought the present appeal from the court’s refusal to consider her May 11, 2010 motion to open.

The plaintiff invokes Ahneman v. Ahneman, supra, 243 Conn. 484, for the principle that “where a court is vested with jurisdiction over the subject-matter . . . and . . . obtains jurisdiction of the person, it becomes its . . . duty to determine every question which may arise in the cause . . . .” (Internal quotation marks omitted.) According to the plaintiff, the court’s refusal to rule on her May 11,2010 motion to open the judgment was an abdication of its duty to decide matters properly before it. We do not reach the substance of this claim, however, because we conclude that the appeal is moot.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction.” (Internal quotation marks omitted.) Commissioner of Correction v. Freedom of Information Commission, 129 Conn. App. 425, 428, 22 A.3d 630 (2011). “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Santos v. Morrissey, 127 Conn. App. 602, 605, 14 A.3d 1064 (2011).

Although the court refused to consider the plaintiffs May 11, 2010 motion to open the judgment, the court considered and denied the plaintiffs amended motion to open after a hearing on the merits. Assuming that the court’s refusal to consider the May 11, 2010 motion to open was reversible error, the only practical relief that could be afforded to the plaintiff would be to remand the case with direction to the trial court to consider the motion on the merits. The corut, however, already has considered the motion on its merits, albeit in an amended form. Remanding the case with direction to consider the motion on the merits would not afford the plaintiff relief that she has not already received.

The appeal is dismissed.

       Although the parties did not address the issue of mootness in their briefs to this court, because it implicates our subject matter jurisdiction, we raised it sua sponte at oral argument before this court. We gave the parties the opportunity to submit briefs addressing the issue, but they declined.

       The plaintiff further argues that if, on remand, the court denied the May 11, 2010 motion to open, she would have a new twenty day period in which to appeal the judgment of dissolution. See Practice Book § 63-1 (c) (1). It is highly speculative that this would afford the plaintiff any practical relief, and we are not persuaded that it affects our mootness analysis. See DeCarlo v. Kolnaski, 13 Conn. App. 326, 328-29, 536 A.2d 598 (1988).


author: ESPINOSA, J.

text:
    FELIPE DASILVA v. COMMISSIONER OF CORRECTION
    (AC 32221)
    Beach, Robinson and Espinosa, Js.
    Argued October 13, 2011
    officially released January 3, 2012

      Diane Polan, with whom, on the brief, was S. Max Simmons, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Karen Biebolt, assistant state’s attorney, for the appellee (respondent).
   Opinion

ESPINOSA, J.

The petitioner, Felipe DaSilva, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus alleging that his trial counsel, assistant public defender Rosemary Montesi, had a conflict of interest. The petitioner claims that the habeas court improperly determined that (1) the trial court’s inquiry into Montesi’s potential conflict of interest satisfied the sixth amendment to the United States constitution, (2) the trial court obtained a valid waiver of the potential conflict from the petitioner and (3) Montesi adequately advised him of the risks of the potential conflict and obtained appropriate consent from him to continue representation despite this conflict. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our consideration of this appeal. In April, 2007, the petitioner and two others were arrested and charged with several crimes, including burglary in the third degree and larceny in the third degree. At the time of his arrest, the petitioner was on youthful offender probation. The court appointed Montesi’s office, the public defender’s office in Waterbury, to represent the petitioner on three separate files on July 6, 2007. Montesi represented the petitioner in court for the first time on July 26, 2007. At that time, Montesi did not have the police report accompanying the petitioner’s arrest and did not know that her office had represented one of the petitioner’s codefendants. The state offered the petitioner a plea bargain of seven years incarceration, execution suspended after two years. The petitioner said that he would consider the offer, and the case was continued.

At the petitioner’s next court appearance on August 2, 2007, the state lowered its offer to seven years incarceration, execution suspended after twenty months. The petitioner requested another continuance to consider this offer, which the court granted. On August 23, 2007, pursuant to the plea agreement, the petitioner pleaded guilty under the Alford doctrine to the burglary and larceny charges and admitted violating his probation. At that hearing, Montesi notified the court that her office had represented one of the petitioner’s codefendants, and she requested that the court question the petitioner about waiving any potential conflict of interest issues. The following colloquy between the court and the petitioner ensued:

“The Court: Mr. DaSilva, you have a right to have a lawyer separate from Ms. Montesi’s office. You want to go forward today with her, yes or no?
“[The Petitioner]: Yes, Your Honor.
“The Court: Has anybody forced you, threatened you in any way to make that decision?
“[The Petitioner]: No.
“The Court: Do you think it’s still in your best interests to have this done this way?
“[The Petitioner]: Yes, Your Honor.
“The Court: All right. Thank you.”

The court proceeded to sentence the petitioner to a total effective sentence of seven years incarceration, execution suspended after twenty months, with a three year period of probation. Following his release from prison on April 7, 2008, the petitioner was arrested on July 10, 2008, for interfering with a police officer. At the time of his arrest, he was still on parole. He pleaded guilty to the interfering charge, and the court sentenced him to six months incarceration, to run concurrently with the remainder of his original sentence.

On June 22, 2009, the petitioner filed a petition for a writ of habeas corpus. He alleged that his confinement in connection with the burglary and larceny convictions was illegal because the convictions were obtained in violation of his sixth amendment right to conflict free counsel. Specifically, the petitioner claimed that Montesi had a conflict of interest because a member of her office had represented a codefendant in his case. The petitioner further claimed that Montesi had failed to obtain his written waiver of this conflict and that the sentencing court failed to conduct an adequate canvass regarding the conflict.

Montesi testified at the habeas proceeding that, on August 2, 2007, she discussed the state’s second plea offer with the petitioner and also advised him that she had discovered that her office had represented one of the petitioner’s codefendants. According to Montesi, she explained that, although she did not think that there was an actual conflict of interest, the petitioner was entitled to a special public defender if he no longer wanted her to represent him. Montesi testified that, given all of this information, the petitioner indicated that he wanted her to continue representing him. Montesi did not, however, obtain a written waiver of the conflict from the petitioner as required under rule 1.7 of the Rules of Professional Conduct. She reasoned that she thought that by placing the waiver on the record at a later hearing, the resulting transcript would serve as a sufficient writing.

The habeas court denied the petition for a writ of habeas corpus in an oral decision on March 29, 2010. On April 22, 2010, the court granted the petitioner’s petition for certification to appeal, and the petitioner filed the present appeal on April 29, 2010.

Our review in this case is plenary. “Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel. . . . Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. . . . The right attaches at trial as well as at all critical stages of a criminal proceeding . . . .” (Citations omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 87 Conn. App. 568, 582-83, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).

Our Supreme Court has described a conflict of interest as “that which impedes [an attorney’s] paramount duty of loyalty to his client. . . . Thus, an attorney may be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client . . . .” (Citation omitted; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 689-90, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). “Conflicts of interest . . . may arise between the defendant and the defense counsel. The key here should be the presence of a specific concern that would divide counsel’s loyalties.” (Internal quotation marks omitted.) State v. Barnes, 99 Conn. App. 203, 217, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007).

“In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Phillips v. Warden, supra, 220 Conn. 133.

I

Before reaching the petitioner’s claims, we note that the habeas court found, and the petitioner conceded, that the circumstances in the present case gave rise to a potential conflict, but not an actual conflict. We agree. “To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party. ... A mere theoretical division of loyalties is not enough.” (Citation omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn. App. 584-85. There are no specific instances in the record that suggest that the petitioner’s interests were impaired or compromised by Montesi’s representation. Accordingly, the habeas court properly found that the petitioner had not demonstrated an actual conflict, of interest.

There was, however, a potential conflict in this case. At the sentencing hearing, Montesi represented to the court that she thought there was a potential conflict because a public defender from her office had represented one of the petitioner’s codefendants. Our Supreme Court has explained that “the trial court must be able, and be freely permitted, to rely upon [defense] counsel’s representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court.” (Citations omitted; internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 427, 802 A.2d 844 (2002). Given the facts surrounding Montesi’s representation and that Montesi stated to the trial court that there was a potential conflict, we conclude that the habeas court properly found that there was at least a potential conflict.

II

The petitioner first claims that the habeas court improperly determined that the trial court met its obligation to protect his right under the sixth amendment to representation that was free from conflicts of interest. The petitioner advances two separate grounds in this regard. First, he argues that the trial court conducted an insufficient inquiry into the details of the potential conflict. Second, he asserts that the trial court failed to obtain a valid waiver from him after Montesi notified it of the potential conflict. We are not persuaded by either argument.

A

The petitioner first claims that the trial court conducted an insufficient inquiry into the details of the possible conflict. According to the petitioner, the court failed to investigate the facts and details of Montesi’s conflict and also did not identify whether the conflict was actual or potential. The petitioner argues that these shortcomings require reversal of his conviction. We disagree.

“There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists. . . . Before the trial court is charged with a duty to inquire, the evidence of a specific conflict must be sufficient to alert a reasonable trial judge that the defendant’s sixth amendment right to effective assistance of counsel is in jeopardy. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Barnes, supra, 99 Conn. App. 216-17.

In State v. Parrott, 262 Conn. 276, 811 A.2d 705 (2003), our Supreme Court held that the defendant’s sixth amendment right to counsel free from conflicts of interest was not violated when his defense attorney refused to sit next to him during voir dire out of concern for his personal safety. Id., 288-89. On the third day of voir dire, the defendant expressed his dissatisfaction with this arrangement to the trial court. Id., 283. When the court suggested that defense counsel sit next to the defendant, counsel refused. Id., 284. The court asked the defendant if he wanted defense counsel to continue representing him, and the defendant stated that he did. Id. Defense counsel assured the court that he could represent the defendant adequately, and the court allowed things to proceed to “see how it develop[ed].” (Internal quotation marks omitted.) Id., 285. Although the Supreme Court concluded that there was a potential conflict, it held that the trial court made an appropriate inquiry given the circumstances. Id., 288-89.

In the present case, based on the circumstances, the trial court conducted a sufficient inquiry into the details of the potential conflict. Critically, at the habeas proceeding, the petitioner expressed that he had had no interest in going to trial because he had given a full confession and believed that he probably would have been found guilty. Under these circumstances, an extensive inquiry was not necessary. As in Parrott, a separate hearing was not needed to ascertain the nature of the conflict. Here, the nature of the conflict was that (1) Montesi and counsel for one of the petitioner’s codefendants both worked in the Waterbury public defender’s office, (2) the petitioner did not want to go to trial and (3) the petitioner wished to retain Montesi in light of this information. Given these circumstances, the possibility that the potential conflict could ripen into an actual conflict was nonexistent. The fact that Montesi was employed by the same office as the attorney of one of the petitioner’s codefendants possibly would raise conflict concerns only if the case went to trial. In that case, questions could arise regarding Montesi’s ability to cross-examine the petitioner’s codefendant and her ability to represent the interests of the petitioner zealously. Considering that the petitioner had expressed no interest in going to trial, however, there was no risk of these issues occurring in this case. Given the extreme remoteness of the potential conflict, the trial court’s inquiry was sufficient.

Nevertheless, the petitioner argues that the court’s inquiry contained none of the indicia of an adequate inquiry present in some federal cases that dealt with the issue. In support of this argument, the petitioner principally relies on United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), and United States v. Levy, 25 F.3d 146 (2d Cir. 1994). On the basis of these cases, the petitioner maintains that, during an appropriate inquiry, the court should have alerted him to the substance of the risks of being represented by an attorney with divided loyalties. According to the petitioner, this would entail nothing less than the court instructing him regarding the potential conflict “in as much detail as the court’s experience and its knowledge of the case will permit.”

The procedures recommended by the United States Court of Appeals for the Second Circuit in those cases are not required here. In both of those cases, the defendant was being represented by counsel who was also representing a codefendant, and, in both cases, the defendant intended to go to trial. See United States v. Curcio, supra, 680 F.2d 882-83; United States v. Levy, supra, 25 F.3d 149-50. The risk of conflict in those cases was much more pronounced than in the present case, as Montesi did not represent a codefendant and the petitioner expressed that he did not intend to go to trial. Both Curdo and Levy axe therefore distinguishable, and the sort of inquiry called for by the Second Circuit in those cases was not required here.

B

The petitioner next claims that the trial court failed to obtain a valid waiver from him regarding the potential conflict. He asserts that to have secured a valid waiver, the court needed to inquire whether he understood the risks of waiving the potential conflict and nevertheless wanted to proceed with the waiver. According to the petitioner, the court should have actively elicited narrative responses from him, rather than posing questions that could be answered with a mere “yes” or “no.” We are not persuaded.

“The scope of a court’s inquiry [into whether there is a conflict] . . . depends on the circumstances, and a court need not necessarily elicit a waiver.” (Internal quotation marks omitted.) State v. Barnes, supra, 99 Conn. App. 220. Where there is an actual or potential conflict, however, the court must obtain a valid waiver from the defendant if counsel is to continue to represent the defendant. “A valid waiver of a constitutional right . . . must be knowing and intelligent, accomplished with sufficient awareness of the relevant circumstances and likely consequences. . . . [T]he fact that a defendant, with full awareness of the circumstances and consequences of the potential conflict, waives his right to the effective assistance of counsel must appear on the record in clear, unequivocal, unambiguous language.” (Citations omitted; internal quotation marks omitted.) State v. Reed, 174 Conn. 287, 293-94, 386 A.2d 243 (1978).

Although the trial court’s inquiry of the petitioner was brief, the petitioner’s responses were sufficient under the circumstances to constitute a knowing and intelligent waiver of the potential conflict. The habeas court found that Montesi had spoken to the petitioner regarding the potential conflict in this case on August 2, 2007, before the sentencing hearing, and that the petitioner did not object to her continued representation. The petitioner then clearly and unambiguously waived the potential conflict at the sentencing hearing. Under the circumstances, this was sufficient to constitute a valid waiver of the potential conflict.

The petitioner argues that he did not have enough time to “digest” the risks posed by the potential conflict, as the court conducted its inquiry during the same hearing at which it accepted his guilty pleas and sentenced him. We disagree. As noted previously, the habeas court found that Montesi had advised him of the potential conflict on August 2, 2007; this left the petitioner nearly a month to consider whether he should obtain new counsel. By contrast, our Supreme Court has upheld a waiver where the defendant claimed that he did not know of the conflict until “minutes” before the hearing at which he waived the right to conflict free representation. See State v. Williams, 203 Conn. 159, 171, 523 A.2d 1284 (1987) (“[i]n light of the defendant’s failure to seek a continuance, we conclude that it was not unreasonable for the trial court to assume that he had had all the time he needed to consider the risks of his decision”).

Additionally, the petitioner asserts that the waiver was inadequate because the trial court did not encourage him to obtain independent counsel for advice regarding the potential conflict. This claim is without merit. The petitioner offers no support for his contention that the court was required to so advise him. In light of our conclusion that the petitioner’s waiver was made knowingly and voluntarily, it was not necessary for the court to advise the petitioner about obtaining independent counsel.

III

Finally, the petitioner claims that the habeas court improperly determined that Montesi adequately advised him of the risks of the potential conflict and obtained appropriate consent from him to continue representation despite this conflict. The petitioner argues that Montesi fell short of her duty under the Rules of Professional Conduct to ensure that he fully appreciated the risks of not obtaining new counsel. According to the petitioner, Montesi could not have advised him adequately of the risks of retaining her as his counsel because she did not understand the ethical restraints on her ability to cross-examine a codefendant in the petitioner’s case. The petitioner further urges this court to adopt rule 1.7 of the Rules of Professional Conduct as the standard against which to measure Montesi’s conduct under the sixth amendment. Therefore, the petitioner argues that because Montesi did not satisfy her ethical obligation under rule 1.7, we should hold that his right to counsel under the sixth amendment was violated. We agree with the habeas court that although rule 1.7 can inform our analysis of an alleged sixth amendment violation, it does not govern our analysis. We therefore reject the argument of the petitioner.

The United States Supreme Court has cautioned courts not to confuse ethical standards and constitutional standards. “[B]reach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel. When examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct . . . .” Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986).

Our Supreme Court has taken a similarly cautious approach, referencing the Rules of Professional Conduct in the course of analyzing alleged sixth amendment violations but never holding that they were controlling constitutional standards. For example, in Phillips v. Warden, supra, 220 Conn. 137, the court noted that “[Royalty of a lawyer to his client’s cause is the sine qua non of the Sixth Amendment’s guarantee that an accused is entitled to effective assistance of counsel.” (Internal quotation marks omitted.) The court went on to note that this duty of loyalty was “reflected in” rule 1.7 of the Rules of Professional Conduct and other disciplinary guidelines. Id.

The petitioner nevertheless argues that our Supreme Court has, in fact, used the Rules of Professional Conduct as the standard for determining violations of the sixth amendment. We do not agree. In support of his argument, the petitioner cites State v. Williams, supra, 203 Conn. 169 and n.9. In Williams, however, the court merely referenced the Code of Professional Responsibility, the precursor to the Rules of Professional Conduct, for the general ethical obligation of attorneys to exercise independent professional judgment on behalf of their clients. In light of this obligation and the status of attorneys as officers of the court, the court held that the trial court properly could rely on the assertion of counsel that he had determined that his client was adequately aware of the risks of waiving his right to conflict free counsel. Id., 169-70. Referencing the Rules of Professional Conduct for background ethical principles, as the Supreme Court did in Williams, is very different from advancing those same rules as the standard by which this court must measure alleged sixth amendment violations. Therefore, even if Montesi misinterpreted rule 1.7 of the Rules of Professional Conduct, it does not necessarily follow that the petitioner’s sixth amendment rights were violated.

We agree with the habeas court that, even assuming Montesi misunderstood rule 1.7, based on her testimony, which the habeas court found credible, the petitioner had sufficient information to waive the potential conflict in this case knowingly and intelligently. The habeas court found that Montesi advised the petitioner of the potential conflict. Montesi may have believed incorrectly that she could appropriately cross-examine the petitioner’s codefendant under rule 1.7, but the petitioner expressed that he had no intention of going to trial. Montesi was not constitutionally required to advise the petitioner of every hypothetical consequence of taking the case to trial when it was not, in fact, going to trial. We therefore conclude that the habeas court properly found that Montesi adequately advised the petitioner of the potential conflict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court did not reach the issue of whether a potential conflict adversely affected Montesi’s performance because it found that the petitioner had waived his right to conflict free counsel under the sixth amendment.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The parties disagreed about the significance of the fact that Montesi was from the same public defender’s office as counsel for one of the petitioner’s codefendants. On this point, the parties discussed Anderson v. Commissioner of Correction, 127 Conn. App. 538, 15 A.3d 658, cert. granted, 301 Conn. 921, 22 A.3d 1280 (2011), in their briefs and at oral argument before this court. In Anderson, we held that rules 1.10 and 1.11 of the Rules of Professional Conduct did not require the habeas court to impute an actual conflict among public defenders working in the same office on the basis of being members of the same “firm.” Id., 544-49. For the purposes of the present appeal, Anderson stands for the proposition that the fact that Montesi was from the same public defender’s office as counsel for one of the petitioner’s codefendants was not, on its own, enough for the habeas court to find an actual conflict of interest. Because the habeas court made no such finding in the present case, Anderson is inapposite to our resolution of this appeal.

       Rule 1.7 (a) of the Rules of Professional Conduct provides in relevant part: “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Under rule 1.7 (b) (4), a client may only waive a concurrent conflict of interest by “informed consent, confirmed in writing.” The commentary to rule 1.7 notes that “[ijnformed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client.”


author: GRUENDEL, J.

text:
    DONNA K. BARON, EXECUTRIX (ESTATE OF ANDREW E. BARON) v. GENLYTE THOMAS GROUP, LLC, ET AL.
    (AC 32636)
    DiPentima, C. J., and Gruendel and Bear, Js.

      Argued November 8, 2011
    officially released January 3, 2012

      Guy L. DePaul, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The plaintiff, Donna K. Baron, executrix of the estate of Andrew E. Baron, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner for the seventh district (commissioner), which concluded that Connecticut law did not apply to her claim for workers’ compensation benefits. We affirm the decision of the board.

Relevant to this appeal are the following facts found by the commissioner. On his date of injury, the decedent was employed as an “ ‘outside salesman’ ” by the defendant Lightolier, a division of Genlyte Thomas Group, LLC, which manufactures lighting fixtures and related products. The decedent had entered into an employment contract with the defendant at its headquarters in New Jersey approximately seventeen years prior to the date of injury. As a traveling salesman, the decedent’s sales territory consisted of the New York counties of Westchester, Rockland and Putnam. In addition, he had one client located in New Jersey. The defendant held sales meetings at its headquarters in Unión, New Jersey, three times per month, which the decedent attended. On the morning of August 4, 2005, the decedent sustained injuries in a motor vehicle accident on the Saw Mill River Parkway in New York while en route to a sales meeting at the defendant’s headquarters. The decedent died five months later and the plaintiff subsequently filed a claim for workers’ compensation benefits on behalf of his estate.

Although the decedent resided in Ridgefield, he never had any sales territory in Connecticut. He was discouraged from pursuing clients in Connecticut, as the state was the sales territory of other salespeople. Despite that restriction, the decedent gratuitously made a small number of personal visits to the Connecticut stores of some of his New York customers. The defendant neither required nor was aware of those visits by the decedent.

To facilitate the traveling nature of his employment, the defendant made cubicles and telephones available to the decedent at its New Jersey headquarters. In addition, the defendant issued him a portable laptop computer and a corporate e-mail address. It likewise issued the decedent a cell phone with a New York number to avoid incurring long distance charges for either the decedent or his customers, as his sales territory was almost exclusively in New York.

The decedent did not occupy a desk job. Nevertheless, when not on the road, the decedent often elected to work in the basement of his residence in Ridgefield. That makeshift office included a desk and chair owned by the decedent, the laptop computer and cell phone furnished by the defendant and various product catalogs, trade show banners and files. It also included a copier, a facsimile machine and certain cabinets, the ownership of which was unclear. The decedent’s use of his basement office was for his own personal convenience and not at the defendant’s behest or for its convenience. Indeed, the decedent frequently used both his residential telephone and his personal computer for work-related matters despite being provided the laptop and cell phone by the defendant. Pursuant to the defendant’s written travel policy, reimbursement for outside salespeople was not permitted for their travels from home to their first sales call of the day or from the last sales call of the day to home. Rather, it was deemed nonreimbursable commuting travel. Moreover, the plaintiff introduced no evidence indicating that the decedent ever claimed his residence as a home office for tax purposes. The commissioner thus found that the decedent’s “home was not the ‘place of the employment relationship.’ ”

In light of the foregoing, the commissioner determined that the plaintiff failed to establish a significant relationship between the state of Connecticut and either the employment contract or the employment relationship. Accordingly, she concluded that Connecticut law did not apply to the plaintiffs claim for workers’ compensation benefits. The plaintiff thereafter filed a motion to correct the findings of the commissioner, which was denied. On July 29, 2009, the plaintiff filed a petition for review of the commissioner’s decision with the board. A hearing was held on February 26, 2010. In its subsequent decision affirming the decision of the commissioner, the board concurred with her conclusion that the plaintiff failed to establish a significant relationship between the state of Connecticut and either the employment contract or the employment relationship. From that decision, the plaintiff now appeals.

The plaintiffs principal claim is that the board improperly affirmed the decision of the commissioner that Connecticut law did not apply to her claim for workers’ compensation benefits. Specifically, the plaintiff contends that the commissioner improperly determined that she failed to establish a significant relationship between Connecticut and the decedent’s employment relationship with the defendant. We disagree.

At the outset, we note that “Connecticut’s Workers’ Compensation Act (act), General Statutes § 31-275 et seq., is the exclusive remedy for injuries sustained by an employee ‘arising out of and in the course of his employment. . . .’ General Statutes § 31-284 (a). Under the act’s strict liability provisions, workers are compensated without regard to fault. In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries. . . . Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act’s exclusivity bar.” (Citation omitted.) Johnson v. Atkinson, 283 Conn. 243, 251, 926 A.2d 656 (2007), overruled in part on other grounds by Jaiguay v. Vasquez, 287 Conn. 323, 348, 948 A.2d 955 (2008).

“The principles that govern our standard of review in workers’ compensation appeals are well established. . . . The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review . . . of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner . . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . . Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

“This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Williams v. State, 124 Conn. App. 759, 763-64, 7 A.3d 385 (2010).

It is axiomatic that, to be eligible for workers’ compensation benefits, a claimant must establish a compensable injury under the act. As our Supreme Court has observed, “[problems arise . . . when employment is not necessarily fixed in Connecticut. The oftentimes transient nature of modem employment makes it difficult for states to determine which claims are compensable and which are not.” Burse v. American International Airways, Inc., 262 Conn. 31, 37, 808 A.2d 672 (2002). This is such a case.

In Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 195, 588 A.2d 194 (1991), the Supreme Court articulated a three part test to determine when Connecticut workers’ compensation law applies. That test permits the commissioner to apply Connecticut law when Connecticut is: (1) the place of the injury; (2) the place of the employment contract; or (3) the place of the employment relation. Id. The court subsequently refined that test in Burse v. American International Airways, Inc., supra, 262 Conn. 31. It held that “[t]he facts of [Cleveland] did not require us to elaborate on what we meant by ‘the place of in connection with the employment contract or employment relation, and we subsequently have not revisited the choice of law issue in workers’ compensation claims. After reviewing the sources on which we relied in Cleveland, we now clarify that this test requires, at a minimum, a showing of a significant relationship between Connecticut and either the employment contract or the employment relationship.” (Emphasis in original.) Id., 38-39. With that standard in mind, we turn our attention to the present case.

It is undisputed that the place of the decedent’s injury was in New York and that the decedent entered into his employment contract in New Jersey. Accordingly, the only issue before us is whether the plaintiff established a significant relationship between Connecticut and the employment relationship. We conclude that she did not.

The plaintiff presents a twofold basis for her position that a significant relationship existed between Connecticut and the decedent’s employment relationship with the defendant. She primarily claims that the decedent maintained a home office at his residence in Ridgefield and secondarily contends that the decedent at times worked in Connecticut “when required to travel to Connecticut customers who had purchased [the defendant’s] product from [him] in New York and then developed problems with the product . . . .” Those claims are equally unavailing.

With respect to the home office, it is noteworthy that the commissioner found that although the decedent spent time working from his basement office, his was not a “ ‘desk job.’ ” Rather, he was a “traveling salesman.” The commissioner credited the testimony of Gerard Blandina, the decedent’s supervisor, that the defendant did not direct the decedent to establish an office at his residence, or to reside in Connecticut for that matter. See Burse v. American International Airways, Inc., supra, 262 Conn. 40 (plaintiffs residence in Connecticut “bears little weight in [the significant relationship] determination, given that [the employer] did not require the plaintiff to five in Connecticut and that his employment did not necessitate such residency”). The commissioner found that the decedent’s use of his basement office was done “for his own personal convenience and not at the [defendant’s] behest or for [its] convenience . . . .” That finding is supported by the evidence in the record before us. Though it is undisputed that the decedent elected to work from his basement office on a regular basis, there is nothing in. the record to indicate that his employment relationship with the defendant so required. In addition, the plaintiff presented no evidence that the decedent claimed his residence as a home office for tax purposes or received reimbursement for travel to or from sales calls to his residence. In sum, the decision of a traveling salesman to perform certain aspects of his vocation in his home as a matter of convenience simply is insufficient to establish a significant relationship between Connecticut and his employment relationship.

The plaintiff also claims that the decedent worked in Connecticut “when required to travel to Connecticut customers who had purchased [the defendant’s] product from [him] in New York and then developed problems with the product . . . .” The evidence regarding such work is scant. The decedent did not have any sales territory in Connecticut and he was discouraged from pursuing clients in Connecticut. During the hearing before the commissioner, Blandina was questioned by the plaintiffs counsel about a scenario in which one of the decedent’s customers in New York purchased goods for a store located in Connecticut. In response, Blandina testified that “[i]f we know that that took place, we’re supposed to compensate our Connecticut sales office some percentage. The company policy is actually 15 percent. It’s called destination credit. And a destination credit is supposed to cover service. If there’s a problem on the job it’s supposed to — not always. Do we just throw it off on the other office? Sure, [the decedent] would have gotten involved multiple times, I’m sure. If a customer had a problem with one of our products in Connecticut and he couldn’t from the main office respond quickly, I’m sure [the decedent] was an aggressive guy. He would have gone after that.” From that evidence, the commissioner found that the decedent “gratuitously made a small number of personal visits to the Connecticut stores of the customers of some of his New York customers . . . .” Evidence that an employee occasionally, but infrequently, conducted business in this state supports the conclusion that a significant relationship does not exist between Connecticut and the employment relationship. See Burse v. American International Airways, Inc., supra, 262 Conn. 40.

In her hearing testimony, the plaintiff stated that the decedent on occasion would “go to New Canaan and Greenwich, mostly for jobs and job quotes.” She testified that “[i]f there were problems with lighting, he’s to go to the job site. And a lot of those job sites were in the Greenwich, New Canaan, Darien, Stamford area because the customers were on the border. Like Port Chester and a lot of their customers were in Connecticut. ... He would get calls several times a month. Whenever there was an issue of fighting or there was an architect that was — a lot of times what they did is they transferred — if an architect specified a certain name brand, he would go with the architect to see if he could transfer it or convert it.” In her decision, the commissioner chose not to credit that testimony, concluding that although the plaintiff “alleges that [the decedent] would visit customers of his sales clients to address problems and/or complaints,” no evidence existed indicating that she “had any personal knowledge of [the decedent’s] whereabouts during the course of the work week . . . .” The commissioner, as finder of fact, is the sole arbiter of credibility; Samaoya v. Gallagher, 102 Conn. App. 670, 673-74, 926 A.2d 1052 (2007); and it is within the discretion of the commissioner “to accept some, all or none of the plaintiffs testimony.” Gibbons v. United Technologies Corp., 63 Conn. App. 482, 487, 777 A.2d 688, cert. denied, 257 Conn. 905, 777 A.2d 193 (2001). We will not disturb the commissioner’s assessment of the plaintiffs testimony in that respect. Furthermore, the record substantiates the commissioner’s findings that the defendant did not direct the decedent to assist his customers at stores located in Connecticut and that the defendant was not aware that the decedent had done so on occasion.

The findings of the commissioner, which are supported in the record before us, reveal that the decedent was a traveling salesman without a desk job and whose sales territory was almost exclusively in New York. He had no sales territory in Connecticut and was discouraged from pursuing clients in Connecticut. Although the decedent utilized an office in the basement of his residence, he did so for his own personal convenience and not at the defendant’s behest. He further “gratuitously made a small number of personal visits to the Connecticut stores of the customers of some of his New York customers” on his own initiative, visits which were not required by or known to the defendant. To paraphrase the words of our Supreme Court, these contacts indicate that Connecticut had a peripheral relationship to the employment between the decedent and the defendant. Burse v. American International Airways, Inc., supra, 262 Conn. 40. We conclude that the plaintiff has not sustained her burden of establishing a significant relationship between Connecticut and the decedent’s employment relationship with the defendant. Accordingly, the commissioner properly determined that Connecticut law did not apply to her claim for workers’ compensation benefits.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff is the widow of the decedent.

       Named as defendants in this matter are Genlyte Thomas Group, LLC, Lightolier and Travelers Property and Casualty. For convenience, we refer to Lightolier as the defendant in this appeal.

       The commissioner found that “[w]hether and to what extent [the decedent] died of causes related to his August 4, 2005 motor vehicle accident ... is not before the commissioner ... in this proceeding.”

       Although the commissioner viewed the issue of whether Connecticut law applied to the plaintiff’s claim as one implicating subject matter jurisdiction, our Supreme Court has explained that it “properly is categorized as a question of conflict of laws.” Burse v. American International Airways, Inc., 262 Conn. 31, 37-38, 808 A.2d 672 (2002). We thus treat the commissioner’s dismissal of the plaintiffs claim more properly as a denial thereof. We further note that the record in the present case is silent as to whether the plaintiff pursued a claim for workers’ compensation benefits in either New York or New Jersey.

       The record before us does not contain a transcript of the February 26, 2010 proceeding.

       The plaintiff also alleges that the board improperly affirmed the denial of her motion to correct by the commissioner, arguing that the commissioner failed to incorporate certain allegedly undisputed facts into her decision. That claim is without merit. As this court recently observed, “[w]e will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. ... It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted. ... A material fact is one that will affect the outcome of the case. . . . Thus, a motion to correct is properly denied when the additional findings sought by the movant would not change the outcome of the case.” (Citation omitted; internal quotation marks omitted.) Testone v. C. R Gibson Co.,
        114 Conn. App. 210, 222, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009). Because the proposed findings would not affect the outcome of the case, the board properly affirmed the denial of her motion to correct.

       In her appellate brief, the plaintiff argues that our Supreme Court further refined the test set forth in Cleveland and Burse in Jaiguay v. Vasquez, supra, 287 Conn. 323. She is mistaken. That case involved a tort claim rather than a workers’ compensation claim, a distinction the court repeatedly emphasized. See id., 331 (“[t]his case presents an appropriate opportunity for us to reconsider and clarify the choice of law approach that is most appropriate when, as in the present case, a plaintiff who has been awarded workers’ compensation benefits brings a common-law tort action seeking damages for injuries sustained as a result of a coworker’s allegedly negligent operation of a motor vehicle”); id., 345 (concluding that three-pronged test developed in Cleveland and Burse “applies only when the case involves a claim for workers’ compensation benefits and not when, as in the present case, the case involves a tort claim”); id., 348 (overruling holding of Johnson v. Atkinson, supra, 283 Conn. 243, that “the same choice of law analysis applies to tort claims and claims for workers’ compensation benefits”). Significantly, the court in Jaiguay stated that “ [w] e have no reason to disturb [the test set forth in Cleveland and refined in Burse) insofar as it applies to cases, like Cleveland, in which the choice of law issue presented is whether a claimant seeking workers’ compensation benefits in this state is entitled to such benefits under this state’s Workers’ Compensation Act.” Jaiguay v. Vasquez, supra, 346-47.

       In articulating the three-pronged test, the court in Cleveland expressly adopted the choice of law rule recommended by the National Commission on State Workmen’s Compensation Laws and Professor Arthur Larson. Cleveland v. U.S. Printing Ink, Inc., supra, 218 Conn. 192-93. We note that those authorities described the second prong of that test as “the place of hiring” rather than the place of the employment contract. Id., 192.