author: SCHALLER, J.

text:
    JOHN ALBERTA III v. MILDRED ALBERTA
    (AC 18271)
    Lavery, Schaller and Daly, Js.

    Argued December 2, 1999
    officially released June 6, 2000

      Michael J. McCabe, for the appellant (defendant).

      Mark M. Kratter, for the appellee (plaintiff).

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

   Opinion

SCHALLER, J.

The defendant, Mildred Alberta, appeals from the judgment rendered after a trial to the court, quieting title to a parcel of real property in the plaintiff as against the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to our disposition of this appeal. At issue in this case is title to property known as 1 Aiken Street in Norwalk (property). On January 8, 1988, the plaintiff, John Alberta III, conveyed the property to the ConnFla Development Corporation (ConnFla) by way of a quitclaim deed. On October 21, 1988, as security for a note, the plaintiff and ConnFla gave a mortgage on the property to PDC Associates (PDC). Thereafter, ConnFla conveyed the property, by way of a quitclaim deed to the plaintiff, who, in turn, conveyed it to Norton Feinstein, also by way of a quitclaim deed.

On December 7, 1990, Feinstein conveyed the property to Joseph Cioffi by quitclaim deed. On February 12, 1993, PDC initiated a strict foreclosure action against ConnFla and the plaintiff, and subsequently caused a lis pendens to be recorded on February 18,1993. At the time of the commencement of the foreclosure action and the filing of the lis pendens, Cioffi held fee simple title to the property. On March 1, 1993, Cioffi conveyed the property to the plaintiff by way of a quitclaim deed, which the plaintiff recorded the following day.

On October 22,1993, PDC filed a motion for judgment of strict foreclosure. The court granted the motion on December 13, 1993, and set January 11, 1994, as the first law day, with title to vest in PDC on January 19, if redemption did not occur. On January 10, 1994, the plaintiff filed for bankruptcy protection; the resulting automatic stay prevented title from vesting in PDC. On December 5, 1994, the bankruptcy court granted PDC relief from the automatic stay, and on February 3, 1995, the foreclosure court opened the judgment, rendered another judgment of strict foreclosure and set March 27, 1995, as the first law day. On March 27, the court granted a motion to reopen the judgment filed by the plaintiff and set another series of law days beginning on April 10, 1995. Thereafter, on April 10, 1995, the plaintiff, as a defendant in the foreclosure action, presented to the foreclosure court a stipulation that was drafted by the plaintiff and signed by him and PDC. The stipulation provided in relevant part that “the type of foreclosure shall be changed from a Strict Foreclosure to a Foreclosure by Sale.” The court, Hickey, J., took the stipulation “on the papers” and did not act on it. The law days passed without the court’s acting on the stipulation and without redemption.

On June 5, 1995, the plaintiff and PDC appeared before the court, and, on the basis of the agreement that they had reached, the plaintiff sought the reopening of the judgment. PDC agreed that it would not proceed with the foreclosure action as long as the plaintiff paid $20,000 on that day and monthly payments thereafter until the debt was satisfied. On July 8, 1996, PDC, by its president, Peter Calcagno, executed a quitclaim deed to the property to the defendant for $15,000.

By way of a complaint dated August 28, 1996, the plaintiff sought a judgment quieting title to the property in him as against the defendant. Both parties moved for summary judgment, and the court, Hickey, J., denied both motions. The parties submitted a stipulation of facts and proceeded with a trial to the court, Karazin, J. The court found that by taking the April 10, 1995 stipulation on the papers, the foreclosure court, Hickey, J., was treating the stipulation as a motion to open the judgment and that title to the property could not vest in PDC while the motion was pending. The court further found that the June 5, 1995 agreement between the plaintiff and PDC implicitly waived the operation of General Statutes § 49-15. The court rendered judgment quieting title to the property in the plaintiff as against the defendant, and this appeal followed.

Because the defendant took a quitclaim deed, she obtained the interest in the property that her grantor, PDC, had on July 8, 1996, the date of the conveyance. Our review of the undisputed facts and the relevant law leads us to the conclusion that, at the time of the transaction between the defendant and PDC, the plaintiff held title to the property and PDC was no more than an encumbrancer.

On March 27,1995, the date that the foreclosure court set the law days for the last time, the plaintiff was the owner of the property. This was by virtue of the March 1, 1993 quitclaim deed transferring the property to the plaintiff from Cioffi who, at the time of the conveyance, held fee title to the property. On April 10,1995, the first law day, the plaintiff presented to the court what was labeled a stipulation. Both the plaintiff and PDC were signatories to this stipulation. Due to the fact that it contemplated that the judgment of strict foreclosure be changed to a foreclosure by sale, the stipulation was, as a matter of law, a motion to reopen the judgment because the only way the court could change the type of foreclosure would be to reopen the judgment and render another judgment. The court, having taken the motion on the papers, transformed it into a pending motion to reopen the judgment. The motion was still undecided when the law days subsequently passed without anyone having redeemed.

Although the law days passed without redemption, title did not vest in PDC because the motion stayed the judgment of strict foreclosure. We cannot tell from the record when the court sent notice of the March 27,1995 judgment against the plaintiff, and we assume the date most favorable to the defendant, namely, March 27, 1995. Practice Book § 61-11 (a) provides in relevant part that “proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired. . . .” This rule of practice is applicable to mortgage foreclosures. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 349, 579 A.2d 1054 (1990). Practice Book § 63-1 (a) provides in relevant part that “an appeal must be filed within twenty days of the date notice of the judgment ... is given. . . .” Under Practice Book § 63-2, the appeal period extended to April 17,1995, and, therefore, the stay imposed by § 61-11 extended to that date. Because the parties filed a stipulation, which we deem a motion to reopen the judgment, within the appeal period, a judgment awarding PDC title was further stayed until such time as the court decided to accept the stipulation and to reopen the judgment plus a twenty day appeal period. See Practice Book § 63-1 (c) (1); see also Farmers & Mechanics Savings Bank v. Sullivan, supra, 346-47.

On June 5, 1995, while the April 10, 1995 motion was still pending, the court accepted the agreement of the plaintiff and PDC and reopened the judgment. There is no evidence that the plaintiff failed to fulfill his obligations under the June 5, 1995 agreement prior to July 8, 1996, the date on which PDC delivered a quitclaim deed to the defendant, or that PDC revived the foreclosure proceedings prior to that time. Therefore, it was the plaintiff, not PDC, who owned the property on that day and title was properly quieted in the plaintiff as against the defendant.

In support of her argument that PDC was the owner of the property when she obtained her quitclaim deed, the defendant claims first that pursuant to General Statutes § 52-325 (a) the plaintiff lost any rights he had under his quitclaim deed because he did not move to be made a party to the foreclosure action after he obtained the deed from Cioffi. Because the foreclosure complaint clearly names the plaintiff as a defendant in that action, we need not address the merits of the defendant’s claim.

The defendant claims next that although the April 10, 1995 stipulation was filed, no motion to reopen was filed and further that only an order of the court, not merely a motion seeking an order of the court, can operate to avoid title becoming absolute in PDC. We disagree on both counts. With respect to the defendant’s first proposition, as we previously discussed, the stipulation explicitly requests that the judgment be altered. Therefore, the stipulation can be interpreted only as a motion to reopen. With respect to the defendant’s second proposition, the mies of practice and case law clearly dictate that a motion seeking an order of the court to reopen the judgment, if filed during the appeal period, will stay the judgment vesting title to property in an encumbrancer, as it did in the present case. See Farmers & Mechanics Savings Bank v. Sullivan, supra, 216 Conn. 346-47.

The defendant claims finally that to affirm the judgment of the trial court would be to impose upon title examiners a duty to obtain and examine transcripts of foreclosure proceedings before concluding who has title in a particular case. The defendant’s argument assumes that the transcript of the April 10, 1995 proceeding is necessary to discover the motion to reopen the judgment. We disagree. Although the court did refer to the transcript of the April 10, 1995 hearing in determining that the stipulation was a motion to reopen, the transcript was not necessary to reach that determination. On its face, the stipulation asked the court to change the judgment from that of strict foreclosure to foreclosure by sale. Again, the paper could be characterized properly only as a motion to reopen the judgment. Accordingly, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is the president of ConnFla.

       PDC’s attorney had moved to Maine and, therefore, was not present in court.

       General Statutes § 49-15 provides: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”

       Practice Book § 63-2 provides: “In determining the last day for filing any papers, the last day shall, and the first day shall not, be counted. Time shall be counted by calendar, not working, days.
      “When the last day of any limitation of time for filing any paper under these rules or an order of the court falls on a day when the office of the trial court or of the appellate clerk is not required to be open, the paper may be filed on the next day when such office is required so to be open.”

       General Statutes § 52-325 (a) provides: “In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, or (2) a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property, except that no such notice may be recorded in an action that alleges an illegal, invalid or defective transfer of an interest in real property unless the complaint or affirmative cause of action contains the date of the initial illegal, invalid or defective transfer of an interest in real property and such transfer has occurred less than sixty years prior to the commencement of such action. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encum-brancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of the recording of such notice; provided such notice shall be of no avail unless service of the process is completed within the time provided by law. This section shall be construed to apply to mechanics’ liens and all other inchoate liens, certificates of which are recorded subsequent to the recording of the notice of the pendency of the action; and, in suits to foreclose mortgages or other liens, the persons whose conveyances or encumbrances are subsequently executed or subsequently recorded shall forfeit their rights thereunder, unless they apply to the court in which such action is brought to be made parties thereto, prior to the date when the judgment or decree in such action is rendered.”

       The foreclosure action file reveals that the judgment, had been opened in the past. Accordingly, any subsequent motions to open would be more properly labeled as motions to reopen.

       The defendant claims also that the trial court improperly denied her motion for summary judgment. Because a full trial on the merits resulted in a judgment for the plaintiff, we will not review this claim. See Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991).


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    JOSEPH WASHINGTON v. SCHEUSTER CHRISTIE
    (AC 18447)
    Lavery, Landau and Dupont, Js.

      Argued December 10, 1999
    officially released June 6, 2000

      Kathryn A. Calibey, with whom was David W. Cooney, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom was Kathryn M. Cunningham, for the appellee (defendant).

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

   Opinion

LANDAU, J.

This is an appeal by the plaintiff, Joseph Washington, from the judgment of the trial court, rendered after a jury verdict for the defendant physician, Scheuster Christie. On appeal, the plaintiff raises two evidentiary challenges, maintaining that the court improperly (1) redacted from medical reports admitted into evidence pursuant to General Statutes § 52-174 (b) the diagnosis and opinions as to causation of the plaintiffs treating physicians and (2) precluded the plaintiffs expert witness from rendering an opinion regarding the defendant’s alleged deviation from the applicable standard of care. Additionally, the defendant presents for consideration an alternate ground for affirming the judgment, i.e., that the plaintiff failed to present any evidence identifying the specific act of negligence that allegedly caused the plaintiffs injury. We reverse the trial court’s judgment on the basis of the plaintiff’s second claim.

The following facts and procedural history are relevant to this appeal. This medical malpractice case arose out of a surgical procedure the defendant performed on the plaintiff to excise a cervical lymph node for biopsy. The plaintiff saw his primary care physician in November, 1991, because he had a lump growing on his neck and was referred to the defendant. On the initial visit, the defendant performed a fine-needle aspiration, which was negative for malignancy but indefinite as to the character of the lump. Upon being presented with several options to assess whether there was cancer in the cervical node, the plaintiff selected biopsy surgery, which was performed in December, 1991. A three centimeter mass, consisting of a lymph node measuring approximately one-half centimeter and surrounding connective tissue, was removed and sent to pathology for examination. Subsequent to the surgery, the plaintiff began to experience pain and a weakness in the area of his right shoulder, and was diagnosed as suffering from a severe but incomplete right accessory nerve injury.

At trial, the plaintiff offered the testimony of David A. Zwillenberg, a physician and associate professor of otolaryngology and head and neck surgery at Thomas Jefferson Hospital in Philadelphia. The plaintiff sought to have Zwillenberg testify that the defendant deviated from the standard of care in performing the surgery on the plaintiff and that this deviation caused the injury to the nerve. Zwillenberg’s intention was to testily that the manner in which the dissection was performed during surgery deviated from the accepted standard of care in that the nerve was injured because the defendant was out of the surgical field in which he should have been operating. This opinion was based on several factors, including an excess amount of nonpathological tissue that was excised, as revealed by the pathology report, the timing or duration of the procedure and the presence of paralysis or difficulty in the plaintiffs shoulder after surgery. The court refused to admit any testimony concerning the foundational information provided in the pathology report and precluded Zwillenberg from testifying that the defendant negligently removed too much tissue during the biopsy surgery, which indicated that the defendant was outside the surgical field. The jury returned a verdict in favor of the defendant, and the plaintiff filed a motion to set aside the verdict, which the court denied. This appeal followed.

The plaintiffs second claim, which is dispositive of the appeal, is that the court improperly precluded Zwil-lenberg from rendering an expert opinion regarding the defendant’s alleged deviation from the applicable standard of care. We agree.

“Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff.” (Internal quotation marks omitted.) Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, 474, 661 A.2d 123, cert. denied, 235 Conn. 922, 666 A.2d 1185 (1995). “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998).

“[Our Supreme Court has] often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . Poulos v. Pfizer, Inc., 244 Conn. 598, 614, 711 A.2d 688 (1998).” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 372, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999).

The court’s exclusion of Zwillenberg’s testimony was based on a conflict between the parties’ characterization of the procedure that was performed. While Zwil-lenberg referred to the procedure as removal of a node, the defendant argued that the procedure should be termed removal of a mass. The difference, according to the defendant, was that the removal of a three centimeter mass from the plaintiffs shoulder was consistent with the specifications of the operation. The defendant, with the informed consent of the plaintiff, undertook to remove a three centimeter mass, and such a mass was removed. Zwillenberg insisted that it did not matter whether the procedure was termed removal of a mass or removal of a node; it was the same procedure and because the lymph node was less than one-fifth the size of the entire mass, the defendant had negligently removed more tissue than was required. The court, however, agreed with the defendant and ruled that Zwil-lenberg could not testify that the defendant had removed too much tissue.

The court’s conclusion that the operation for the removal of a mass was different from one for the removal of a node should have been left to the jury. There was evidence to support Zwillenberg’s assertion that there was no difference between the two. Office notes from two separate examinations of the plaintiff indicate that the defendant believed the plaintiff was suffering from cervical adenopathy, or an enlarged lymph node in the posterior triangle of the neck. The defendant also testified that an excision of a mass and excision of a node procedure could be the same thing. Under these circumstances, the plaintiff should have been allowed to present Zwillenberg’s testimony to the jury.

The court abused its discretion by restricting the testimony of Zwillenberg. The plaintiff alleged in his complaint that the defendant was negligent “in that he failed to utilize appropriate dissection procedures in the vicinity of the spinal accessory nerve . . . .” Zwil-lenberg’s testimony was relevant to the allegation that the defendant was negligent. The size of the mass that was removed from the plaintiffs shoulder was one of the foundations on which Zwillenberg based his ultimate conclusion that the defendant deviated from the appropriate standard of care. Because the plaintiffs expert could not testify about the reason for his conclusion that the defendant was negligent, the court’s ruling was harmful to the plaintiffs case. See Hayes v. Manchester Memorial Hospital, supra, 38 Conn. App. 475-76 (holding that trial court’s ruling was harmful error where “[t]he evidence excluded [went] to the principal issue to be resolved by the jury, whether the duty of the defendants to conform to the applicable standard of care was breached”).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Because we conclude that the court improperly restricted the testimony of the plaintiffs expert witness, we will not address the merits of the plaintiffs first claim.

       There is disagreement, which we will discuss, about whether the procedure was to excise a mass or a node.

       Zwillenberg’s expert opinions were based on his training, experience and review of the plaintiffs medical records. He has been a practicing physician for sixteen years and is board certified in otolaryngology. At the time of trial, he was chairman of Thomas Jefferson Hospital’s department quality assurance committee and the pathology review committee.

       Zwillenberg testified outside the presence of the jury that “neck biopsies are not, in themselves, curative procedures. They are diagnostic procedures. The idea is to establish whether the patient has a cancer or a lymphoma or some other problem. You don’t go in there and take out lumps just because they’re there. . . . You don’t remove the whole contents of the posterior triangle or every mass that’s sitting there. This increases the likelihood of damaging the spinal accessory nerve and is not a necessary procedure.”

       The defendant claims as an alternate ground for affirming the judgment that the plaintiff failed to present any evidence identifying the specific act of negligence that caused the plaintiffs iqjury and, therefore, the judgment should be affirmed. Because the plaintiffs expert improperly was precluded from giving testimony about the defendant’s alleged negligence, we cannot agree with the defendant’s claim.


author: FOTI, J.

text:
    LYNN TALIT ET AL. v. NORTHWEST AIRLINES, INC.
    (AC 20017)
    Foti, Mihalakos and Zarella, Js.

      Submitted on briefs March 22
    officially released June 6, 2000

      JeffS. Tager filed a brief for the appellant (plaintiff).

      Patrick M. Noonan filed a brief for the appellee (defendant).
   Opinion

FOTI, J.

The named plaintiff, Lynn Talit, appeals from the judgment of the trial court dismissing her complaint. The plaintiff claims that the court abused its discretion by improperly (1) rendering a judgment of dismissal and (2) denying her motion to open the judgment of dismissal. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On April 23, 1995, the plaintiffs husband, Benjamin Talit, suffered a fatal heart attack while he was a passenger on an aircraft owned and operated by the defendant, Northwest Airlines, Inc. Thereafter, the plaintiff filed a pro se wrongful death action, claiming that the defendant was negligent in failing to have a defibrillator on board the aircraft, which might have saved her husband’s life. Counsel for the plaintiff filed an appearance in addition to the pro se appearance. During a status conference on March 31,1999, the court raised the issue of whether the defendant had a duty to carry a defibrillator on the flight in question. The parties agreed that at the time of the incident in question, there were no regulations requiring that a defibrillator be carried. The defendant had admitted that it did not equip its aircraft with defibrillators. The plaintiffs counsel asked for an opportunity to locate an expert witness to testify as to the industry standard at the time of the flight regarding the placement of defibrillators on aircraft. If no such expert could be found, it was agreed that the case would be withdrawn.

A deadline for disclosure of the expert was set for June 30, 1999, and discovery on issues unrelated to the presence of a defibrillator would be delayed. A postcard notice was sent by the court clerk’s office to the parties setting forth the time, date and place of the next status conference. It noted that “[n]onappearance may result in dismissal, default or sanctions.” The status conference was scheduled for 12:30 p.m. on June 30,1999. One week before the scheduled status conference, defense counsel, through his secretary, attempted to change the time of the status conference with the permission of the plaintiff. When no other time could be agreed on, the date and time of the status conference remained unchanged; the plaintiffs counsel was notified two days prior to the status conference that the date was still set for June 30, 1999. The plaintiffs counsel then requested a future date because he had made other plans and appointments. This request was made on June 28, 1999, because counsel had been scheduled to work an afternoon shift on June 30, 1999, for the Bloomfield Volunteer Ambulance Association, of which he was a member. On June 29, 1999, defense counsel notified the court that the plaintiffs counsel had not been informed that the status conference had been canceled, and that defense counsel had rearranged his schedule and would attend the status conference at the original time, but would not oppose a motion for a continuance by the plaintiffs counsel. During a telephone conversation on June 29, 1999, the plaintiffs counsel informed the defendant’s counsel that he would not be attending the scheduled status conference because he had a real estate closing.

On June 30, 1999, defense counsel appeared for the scheduled status conference. Neither the pro se plaintiff nor her counsel appeared. On July 2, 1999, the court ordered that the action be dismissed, and judgment entered thereafter. On July 19,1999, the plaintiff s counsel filed a motion to open the judgment, which was denied on August 9,1999. On August 20,1999, the plaintiff filed a motion for reargument and reconsideration, which was denied on August 30, 1999. At no time was there a disclosure of the availability of the critical expert witness. The plaintiff filed this appeal on September 16, 1999.

Our standard of appellate review is whether the court’s dismissal of the action or its denial of the plaintiffs motion to open the judgment was an abuse of discretion. See Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34, 474 A.2d 787 (1984). The court may have acted pursuant to Practice Book § 17-19 in ordering a dismissal of the plaintiffs complaint. In denying the plaintiffs motion to open the judgment, the court acted pursuant to Practice Book § 17-43 and General Statutes § 52-212a. The court also may have invoked its inherent power in dismissing the matter.

It would appear from the record before us that the court properly exercised its authority in dismissing the action when the pro se plaintiff and her counsel failed to appear for a status conference specifically scheduled for the purpose of disclosing an expert witness who would testify that in April, 1995, the airline industry standard was to cany a defibrillator on the type of aircraft at issue.* **** “It is an inherent power of the court to . . . provide for the imposition of reasonable sanctions to compel the observance of its rules.” (Internal quotation marks omitted.) Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. 33. There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are the court’s inherent power to control the proceedings before it, the power delegated to it by statute and the power conferred by published rules of the court. The power of a court to manage its own affairs so as to achieve an orderly and expeditious disposition of cases exists independently of the power recognized by rule or statute. Srager v. Koenig, 42 Conn. App. 617, 620, 681 A.2d 323, cert. denied, 239 Conn. 935, 936, 684 A.2d 709 (1996).

The plaintiff first claims that the court abused its discretion in dismissing her complaint, given the circumstances that the matter was not scheduled for trial, but rather only for a status conference. The parties acknowledge that the court’s action was a disciplinary dismissal. That the matter was not scheduled for trial is of no relevance. The plaintiff also argues that the plaintiffs counsel “clearly understood opposing counsel’s representative to report that a continuance had been granted by the court.” The court set a deadline date for disclosing an expert witness, an issue possibly dispositive of the action itself. The plaintiff chose to ignore that date. The plaintiffs counsel knew two days before the scheduled status conference that the defendant’s counsel would be attending and that the court would not continue the matter. The plaintiffs counsel chose to spend his afternoon of June 30, 1999, with the Bloomfield Volunteer Ambulance Association, with full knowledge that failure to attend the scheduled status conference could lead to a dismissal of the action.

“An order of the court must be obeyed until it has been modified or successfully challenged.” Jaconski v. AMF, Inc., 208 Conn. 230, 234-35, 543 A.2d 728 (1988). “In the event of noncompliance with a court order, the directives of caseflow management authorize trial courts, in appropriate circumstances, to take action against either the errant attorney or the litigant who freely chose the attorney.” Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998). We conclude that the court’s action was within the bounds of sound judicial discretion.

The plaintiff next argues that the court abused its discretion in denying her motion to open the judgment. The court’s denial of the plaintiffs motion to open cannot be held to be an abuse of discretion if it appears that the plaintiff has not been prevented from prosecuting the claim by mistake, accident or other reasonable cause. Stephen v. Hoerle, 39 Conn. App. 253, 257, 664 A.2d 817, cert. denied, 235 Conn. 928, 667 A.2d 555 (1995); see also General Statutes § 52-212. There also must be a showing that a good cause of action existed at the time the judgment of dismissal was rendered. General Statutes § 52-212 (a); Jaconski v. AMF, Inc., supra, 208 Conn. 237. The plaintiff has failed to satisfy either of those requirements, and the record does not support her claim that the court abused its discretion in denying her motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff Lynn Talit commenced this action individually and as administratrix of the estate of Benjamin Talit. We refer to her as the plaintiff in this opinion.

       The record contains neither a memorandum of decision nor a transcript signed by the trial judge, and the plaintiff did not seek an articulation of the court’s rulings.

       There appears to be a conflict here. The plaintiffs counsel alleges that he was informed that the defendant’s counsel “definitely could not attend the June 30 status conference and [that he] would not be available until the end of August.” The defense counsel denied this. The plaintiff further claims that the defendant’s counsel’s secretary had told the plaintiff that the status conference had been canceled. The defendant’s counsel denies that his secretary ever made such a representation. In any event, the plaintiffs counsel acknowledged that on June 28,1999, he was informed that the court had not granted a continuance for the original day and time for the status conference, and that the defendant’s counsel would be attending. The plaintiffs counsel’s request to the court for a continuance was not granted.

       Practice Book § 17-19 provides: “If a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority.”

       Practice Book § 17-43 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant’s attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The judicial authority shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin that party against enforcing such judgment or decree until the decision upon such written motion.”

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The continuing jurisdiction conferred on the court in preadoptive proceedings pursuant to subsection (h) of section 17a-112 does not confer continuing jurisdiction on the court for purposes of reopening a judgment terminating parental rights. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court, provided the filing of an amended petition for termination of parental rights does not constitute a waiver of the provisions of this sect ion or a submission to the jurisdiction of the court to reopen a judgment terminating parental rights.”

       At the March 31, 1999 conference, the court agreed to stay all other discovery issues until the expert witness question was resolved. The plaintiff, however, filed numerous discovery requests in April, 1999, which subsequently were ordered stayed until after the June 30, 1999 conference.


author: HENNESSY, J.

text:
    N. EDWIN ANTIGNANI, ADMINISTRATOR (ESTATE OF NANCY ANTIGNANI) v. BRITT AIRWAYS, INC.
    (AC 18663)
    O’Connell, C. J., and Hennessy and Daly, Js.

    Argued January, 27
    officially released June 6, 2000

      Frederick C. Schafrick, with whom were Beverly S. Knapp and, on the brief, L. Douglas Shrader, for the appellant (defendant).

      Joel T. Faxon, with whom was Carey B. Reilly, for the appellee (plaintiff).

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

   Opinion

HENNESSY, J.

In this wrongful death action, the defendant, Britt Airways, Inc., appeals from the judgment, rendered after a jury trial, in favor of the plaintiff, N. Edwin Antignani, administrator of the estate of the decedent, Nancy Antignani (Antignani). On appeal, the defendant claims that the trial court improperly (1) ruled that the Workers’ Compensation Act (act) did not apply to this action and (2) denied the defendant’s motions for a directed verdict and to set aside the verdict because the plaintiffs action was barred by the act. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. Antignani was employed by the defendant as an airport agent at Sikorsky Memorial Airport in Bridgeport. Her duties consisted of passenger ticketing, customer service and various activities that were performed on the airport ramp, including loading luggage on and off aircraft, escorting passengers to and from aircraft, guiding arriving and departing aircraft with hand signals, and placing and removing cones and chocking blocks from aircraft.

On the morning of October 12, 1991, Antignani was at the airport on her scheduled day off because she planned to make a personal trip as a nonrevenue passenger on a flight scheduled to depart that morning. Tara Harper, the airport agent on duty that morning, informed Antignani that another airport sales agent had called in sick and the ramp attendant had overslept. Antignani then offered to assist Harper with the baggage duties and other ramp responsibilities. Antignani briefly boarded the aircraft to stow her personal belongings and to identify herself to the flight attendant, Cheri Neptune. Neptune and Antignani then loaded the passenger luggage onto the aircraft. After completing the baggage loading, Antignani told Neptune that she would see her in one minute. Antignani then walked toward the front of the aircraft. Thereafter, the crew heard a “thump” noise. They immediately went to investigate the cause of the noise and discovered Antignani’s body under the right propeller of the aircraft. There is no dispute that Antignani was fatally injured when she was struck by the blades of the moving propeller on the right side of the aircraft.

The plaintiff commenced an action against the defendant alleging that the defendant’s negligence caused Antignani’s death. The defendant filed an answer and two special defenses, responding that (1) Antignani was contributorily negligent and (2) the action was barred under the exclusivity provision of the act. The defendant thereafter moved for summary judgment on the ground that it was entitled to judgment in its favor as a matter of law because the action was barred under the act. The court denied the motion, ruling that there were material facts in dispute, i.e., whether Antignani was performing work duties at the time of her injury.

Before trial began, the plaintiff filed a motion in limine seeking to exclude the defendant’s workers’ compensation special defense. This motion, however, was withdrawn. The defendant also filed a motion pursuant to Practice Book § 15-1 to set the order of trial and to decide the issue of law of whether the action was barred by the act. During the hearing on the motion, the court ruled that as a matter of law, Antignani’s death did not occur during the course of her employment because she was injured on her day off from work and, therefore, the act was not applicable to the action. The defendant made an offer of proof alleging facts that would demonstrate that Antignani was in fact acting during the period of her employment. The court was unpersuaded. The jury therefore was not given the option of considering the defendant’s workers’ compensation special defense.

At the close of the plaintiffs evidence, the defendant moved for a directed verdict, claiming that the action was barred by the exclusivity provision of the act. The motion was denied. The jury rendered a verdict for the plaintiff, awarding damages for negligence in excess of $600,000. The defendant moved to set aside the verdict, and the court denied the motion.

On appeal, the defendant claims that the court improperly ruled, as a matter of law, that Antignani was not in the course of her employment and that therefore, the exclusivity provision of the act did not apply to the present action. We agree.

Our standard of review for the legal conclusion of a trial court is well established. “ ‘The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear- in the record. Practice Book § [60-5]; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).’ ” SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996). “[U]nless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one of fact.” Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 252 Conn. 261, 265, 746 A.2d 743 (2000).

“It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements ... to permit compensation. . . . The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident. . . .

“In order to establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place (a) within the period of the employment; (b) at a place [the employee] may reasonably [have been]; and (c) while [the employee was] reasonably fulfilling the duties of the employment or doing something incidental to it. ... Mazzone v. Connecticut Transit Co., [240 Conn. 788, 792-93, 694 A.2d 1230 (1997)].” (Citations omitted; emphasis in original; internal quotation marks omitted.) Kolomiets v. Syncor International Corp., supra, 252 Conn. 266-67. “[I]nthis case the defendant assumed the burden of proof on the issue of whether the injury arose out of and in the course of employment by pleading the [act] as a special defense. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237, 520 A.2d 1008 (1987); see Practice Book [§ 10-50].” Pagani v. BT II, Ltd. Partnership, 24 Conn. App. 739, 745, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).

In this case, the court concluded that the employer failed to satisfy the first part of the course of employment test because Antignani’s death occurred while she was on her day off from work. In reaching this conclusion, the court relied on Mazzone v. Connecticut Transit Co., supra, 240 Conn. 788, in deciding as a matter of law that because the time of the injury was not in “close temporal proximity” to Antignani’s workday, she was not in her period of employment.

“With respect to the time requirement portion of the ‘in the course of employment’ test, [our Supreme Court] previously [has] held that ‘[temporary suspension of work by an employee for a permitted rest period, or lunch hour, or for satisfying the wants of nature . . . have not been generally held sufficient to break the continuity of the employment.’ ” Id., 794. In Mazzone, the court concluded that an employee injured during an unpaid lunch hour was still in the course of employment. Id. In so concluding, the court relied on McNamara v. Hamden, 176 Conn. 547, 551, 398 A.2d 1161 (1979), for the proposition that “ ‘[t]he exact time [of injury] is not significant’ for purposes of compensation, so long as injury takes place on premises and in close temporal proximity to work day . . . .” (Emphasis added.) Mazzone v. Connecticut Transit Co., supra, 240 Conn. 794.

In the present case, it is not disputed that Antignani was injured on her day off. Rather than having an injury occur five minutes before the workday started or during an unpaid lunch break, Antignani was injured one and one-half days after her last workday had ended. Our inquiry on determining whether she was in the course of her employment, however, does not end here.

Before the court reached its final conclusion that Antignani was not within her period of employment, counsel for the employer made an offer of proof of facts in support of the workers’ compensation defense. During this offer of proof, counsel stated that included within the job description and requirements of an airport agent at Continental Express is an ongoing expectation that employees must volunteer to help out whenever a need arises at any Continental Airlines station anywhere in the world. See footnote 5. In addition, any act of volunteering is done in accordance with a management policy known as “teamwork,” in which employees are instructed that when they see a job that needs to be done, whether they are on duty or off duty, it is part of their job responsibility to volunteer to do that job. These voluntary requirements are part of job performance appraisal, and voluntary work is significant when the employee is considered for promotion and salary increases. It was further offered that Anti-gnani knew of these requirements, had volunteered on previous occasions and had her volunteer performance appraised by her supervisor. Nonetheless, the court concluded that because there was no fact in dispute that Antignani was on her day off from work, she was, as a matter of law, not within her period of employment. We do not agree that the court can make this determination as a matter of law when there are relevant facts in dispute.

Because of the complexity of factual variations surrounding workers’ compensation, special tests have evolved in our jurisprudence. “For example, in the going and coming cases, it is necessary for the commissioner to find a benefit to the employer before compensation will be awarded.” McNamara v. Hamden, supra, 176 Conn. 552. “Because in these ‘going and coming’ cases the injury has occurred to an employee acting outside the place and period of employment, in situations tangential to employment ‘the need arose to reach out for the additional element of employer benefit to make up for the fact that employees going to or coming from work do not satisfy both of the first two course-of-employment requirements, place and period of employment.’ [Id., 553.] Consequently, when an employee has sustained an injury while traveling to and from work, but there also existed some work related recreational or social aspects, as in traveling to a union sponsored picnic, the benefit test has been applied and we have held that [an] employee could fall within the act’s coverage by demonstrating that the activity that took him outside the place and period of employment had been for the employer’s benefit. Williams v. State, 152 Conn. 692, 211 A.2d 700 (1965); see Smith v. Seamless Rubber Co., 111 Conn. 365, 368-69, 150 A. 110 (1930). This ‘independently convincing association with the employment’ is needed in order to ‘overcome the initial presumption of disassociation with the employment established by the time and place factors.’ 1A A. Larson & L. Larson, [Workmen’s Compensation (1996)], § 22.11, p. 5-92.” Spatafore v. Yale University, 239 Conn. 408, 421-22, 684 A.2d 1155 (1996).

“[W]e have moved beyond a mere employer benefit test to one including employer approval or acquiescence when the employer sanctioned activity regularly occurs on the premises; McNamara v. Hamden, supra, 176 Conn. 554-55 . . . .” Spatafore v. Yale University, supra, 239 Conn. 422 n.13. “Experts in the field of workmen’s compensation law have pointed out the inconsistency of using the employer benefit test in situations such as recreation, personal comfort, and horseplay cases where an employer-sanctioned activity regularly occurs on the premises. Both Professor Larson and Professor Davis advocate a test of employer acquiescence or approval in such cases, whether they be recreation, personal comfort, or horseplay situations. ‘[I]t should not be necessary [in such cases] to bolster the case by adding proof of employer sponsorship of the activity or employer benefit therefrom. It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment.’ 1A [A. Larson, Workmen’s Compensation Law (1978)] § 22.11, p. 5-72.” McNamara v. Hamden, supra, 554-55.

Given the fact that workers’ compensation can be awarded to employees who are injured playing Ping-Pong on the premises five minutes before the start of the scheduled workday; id., 548; or employees who were injured off the employer’s premises during activities required by the employer outside the period of employment; Spatafore v. Yale University, supra, 239 Conn. 421; we are hard pressed to conclude that an employee who is on the employer’s premises on her day off from work and volunteering to perform her work duties by the demand and with approval of her employer, is not in the period of employment as a matter of law. Although it is significant that Antignani was not working on a scheduled workday when her death occurred, facts of an “independently convincing association with the employment” have been alleged that may “overcome the initial presumption of disassociation with the employment established by the time . . . factor.” (Internal quotation marks omitted.) Id., 421-22.

We cannot conclude, however, that Antignani was in the course of her employment because there are facts in dispute as to the requirements of her job. Accordingly, we hold that the court was incorrect in deciding that, as a matter of law, Antignani was not acting in the course of her employment. Because a determination of this issue is one of fact, we remand the case for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 31-275 et seq.

       Because we reverse the trial court’s decision as to the first claim on appeal, we need not reach the second claim.

         The defendant, Britt Airways, Inc., was owned and operated by Continental Express.

       All oí' the dei'endant’s employees were permitted, as a benefit of their employment, unlimited personal travel on any Continental Express, Continental Airlines or Continental Micronesia flight, on a space available basis, for a nominal service charge.

       It is claimed by the defendant that Antignani was going to the front of the aircraft to remove the chocking block from the front wheel. The plaintiff disputes this claim.

       The court’s action had the effect of striking the defendant’s special defense of exclusivity under the act. The following colloquy took place during the hearing:
      “The Court: This court is not prepared to extend the comings and goings to a vacation day, and the court, therefore, as a matter of law, concludes that this incident did not occur within the period of employment, and it is not, therefore, necessary to address the other two issues or factors [governing whether an injury arises out of and in the course of employment] because there can be no workers’ compensation—there can be no action under the workers’ compensation [act] where one of those factors is missing. And therefore, the court concludes that as a matter of law, the workers’ compensation defense may not be raised in this case. It is inapplicable for the reasons I’ve indicated, and if either party wants a copy of my decision, they can ask for a transcript of the—of my remarks here.
      “[Defense Counsel]: May I request the court’s permission to make an offer of proof of facts in support of the defense?
      “The Court: Certainly.
      “[Defense Counsel]: Thank you.
      “[Plaintiffs Counsel]: Your Honor, we would just ask, consistent with the court’s decision, [that] the defense then be stricken from the pleading so that when they—
      “The Court: It may be, but I can inform the counsel that it is not my present intention to submit the pleadings to the jury. That may change later on. If it does, I would ask counsel to submit to me clean pleadings for the purposes of—solely for the purposes of submitting them to the jury.”

       We recognize that with the enactment of Public Acts 1993, No. 93-228, § 1, the legislature amended the act and added a provision that precludes “an injury to an employee which results from his voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity . . . .” General Statutes § 31-275 (16) (B) (i). This, however, does not change the analysis in McNamara v. Hamden, supra, 176 Conn. 552-53, which provides that in activities occurring outside the place and period of employment, excluding those activities enumerated in § 31-275 (16) (B) (i), the benefit test can be applied.


author: MIHALAKOS, J.

text:
    IN RE MICHAEL D. ET AL.

    (AC 19606)
    Spear, Mihalakos and Zarella, Js.
    Argued February 28
    officially released June 6, 2000

      Gregory T. D’Auria, assistant attorney general, with whom were Jose A. Suarez, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellant (petitioner).

      Robert D. Zaslow, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

MIHALAKOS, J.

The petitioner, the commissioner of children and families (commissioner), appeals from the judgments rendered following the trial court’s granting of the minor children’s motions to strike the neglect petitions filed by the commissioner against the respondent parents. The commissioner claims that the court improperly granted the motions to strike the neglect petitions. We reverse the judgments of the trial court.

The following facts and procedural history are relevant to our disposition of the appeal. This case involves the respondent parents and their minor children, Eileen and Michael. The respondent mother’s two children from a previous marriage lived with the respondents after the respondents’ marriage. The family’s contact with the department of children and families (department) began in 1989, when allegations were made that the respondent father had physically abused his eleven year old stepson, S. The case was closed when the family complied with treatment services.

When S was sixteen years old, he told the respondent mother, on two separate occasions, that the respondent father had been sexually abusing him for the past ten years. The mother, however, did nothing to protect S from farther abuse and told him not to tell anyone or to report this information. S subsequently moved out of his mother’s home and into the home of his biological father. In January, 1998, the department received a referral from Robin Grant-Fall, a child psychologist and S’s therapist, alleging that S had disclosed that, from the time he was six year’s old until he was sixteen years old, he had been sexually abused by the respondent father. Criminal charges were brought against the respondent father for sexual abuse. The respondent father was placed on probation and other charges are pending.

The respondent mother informed the department that she was filing for divorce from the respondent father and that she would not allow him access to their biological children, and, therefore, the department closed the file on the family. In May, 1998, however, the department received a report that the respondent father was again residing in the home with the two minor children that are the subject of this appeal, Michael and Eileen. At that time, S indicated to the department that he strongly believed that, if left in the same home with the respondent father, Michael would be at high risk of being sexually abused. The mother, on the other hand, insisted that, because her family was in counseling, there was no reason to be concerned about the respondent father caring for Michael.

On September 4,1998, the commissioner filed neglect petitions on behalf of Michael and Eileen, alleging that they were being permitted to live under conditions, circumstances or associations injurious to their well-being. On October 10,1998, the respondent parents filed denials to the neglect petitions. On January 20, 1999, the attorney for the minor children filed motions to strike the neglect petitions, claiming that the petitions were legally insufficient and failed to state claims upon which relief could be granted.

On March 30, 1999, after oral argument, the court granted the motions to strike. On April 7, 1999, the attorney for the minor children filed motions for judgment, which motions were granted by the court on May 4, 1999. On May 21, 1999, the commissioner appealed from the trial court’s judgments dismissing the petitions. The commissioner filed a motion in the trial court for articulation on June 14, 1999, which was granted. On July 16, 1999, the court filed an articulation that stated that the petitions were legally insufficient because “the case of neglect ... at best would have to be based upon ‘predictive neglect,’ a theory not sanctioned by statute or case law.”

The commissioner claims that the court improperly granted the minor children’s motions to strike the neglect petitions. We agree.

“The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted. Practice Book § 10-39. The motion admits all facts that are well pleaded . . . but does not admit legal conclusions or the truth or accuracy of opinions. ... On a motion to strike, the trial court’s inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted. Practice Book § 10-39 (a). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged.” (Citations omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn. App. 134, 136-37, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).

“The standard of review of a trial court’s granting of a motion to strike is well established. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on a [motion to strike] is plenary. . . . In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible .... We must, therefore, take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212-13, 746 A.2d 730 (2000). “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Pamela B. v. Merit, 244 Conn. 296, 308, 709 A.2d 1089 (1998). “[W]hat is necessarily implied [in an allegation] need not be expressly alleged.” (Internal quotation marks omitted.) Knight v. F. L. Roberts & Co., 241 Conn. 466, 470-71, 696 A.2d 1249 (1997).

Our statutes clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future. General Statutes § 17a-101 (a) provides: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” (Emphasis added.) By its terms, § 17a-101 (a) connotes a responsibility on the state’s behalf to act before the actual occurrence of injury or neglect has taken place.

General Statutes § 46b-120 (8) provides that “a child or youth may be found ‘neglected’ who . . . (C) is being permitted to live under conditions, circumstances or associations injurious to his well-being . . . .” The department, pursuant to the statute, need not wait until a child is actually harmed before intervening to protect that child. General Statutes § 46b-129 (b) permits the removal of a child from the home by the department when “there is reasonable cause to believe that (1) the child ... is in immediate physical danger from his surroundings and (2) that as a result of said conditions, the child’s safety is endangered and immediate removal from such surroundings is necessary to ensure the child’s safety . . . .” This statute clearly contemplates a situation where harm could occur but has not actually occurred.

Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected. The commissioner need not show, but need simply allege, that there is a potential for harm to occur. That was done in this case. Here, the petitions alleged that the respondent father had a history of sexual abuse of a minor who was living with him. The petitions also allege that he currently resides with the respondent mother and their children and that the mother had knowledge of such abuse in the past and did nothing to remedy the situation. Taking these facts as true, as we must in our review of the trial court’s granting of a motion to strike; see Bell v. Board of Education, 55 Conn. App. 400, 402, 739 A.2d 321 (1999); we conclude that the petitions sufficiently alleged at least a potential for sexual abuse to occur in the near future. An adjudication of neglect may be based on a potential risk of harm and not just actual harm. See In re Kelly S., 29 Conn. App. 600, 612, 616 A.2d 1161 (1992). The neglect petitions, therefore, were legally sufficient to state claims of neglect on which relief could be granted, and the court improperly granted the minor children’s motions to the strike the neglect petitions.

The judgments are reversed and the cases are remanded for further proceedings.

In this opinion the other judges concurred.

       S’s sister, age thirteen, also moved out of her mother’s home and into the home of her biological father.

       The respondent mother informed the department that the respondent father was only visiting and that his visits were supervised. By September, 1998, however, the department determined that the respondent mother had allowed the respondent father to live in the home with the children.


text:
    STATE OF CONNECTICUT v. ALLEN WILLIAMS
    (AC 18343)
    Foti, Sehaller and Pellegrino, Js.
    Argued April 3
    officially released June 6, 2000

      Del Atwell, special public defender, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Allen Williams, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a), burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-8, and conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-48 (a). The defendant claims that (1) the evidence was insufficient to sustain his conviction, (2) he was denied effective assistance of counsel, (3) the sentence imposed by the trial court was harsh and excessive, (4) the conviction is constitutionally infirm because of the defendant’s mental incompetence and (5) the trial court improperly instructed the jury on proof beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Rose Paternostro, a retired person in her sixties, was part owner and manager of an apartment building at 378-380 South Main Street in New Britain, consisting of four levels, including the basement. On Friday, June 30, 1995, at approximately 3:30 p.m., she was sitting at her desk in her two-room office in the basement of the building next to the staircase leading to the other levels. She was talking on the telephone while wrapping quarters that she had collected from the building’s laundry room. She heard a knock on the office door and quickly finished her conversation, placing wrapped quarters in a blue bank envelope on her desk. She then unlocked and opened the door leading to the hallway. At first she did not see anyone. Suddenly, two black men came from either side of the open door. Both wore dark-colored nylon stockings pulled down over their faces, dark clothing, work boots and surgical gloves.

It was daylight outside, and the area was well illuminated because the overhead lights were on in the office. Paternostro was able to get a good look at both men. One of the men was very tall, around six feet, five inches, skinny and light-skinned. She immediately recognized the defendant because of his height and because she could make out his face under the mask. She was familiar with the defendant because he had come to the building several times that spring to visit a tenant who lived on the third floor and because she had, a few days earlier, confronted him and a group of other men about loitering outside of the building. The other robber was shorter than the defendant, around five feet, eight inches tall, had a stocky build and was dark-skinned. He also had been seen around the building.

The men pushed Paternostro backward, causing her to fall to the floor. The shorter one pointed what looked like a gun at her head and one of the men said, “Where’s the money, white bitch?” Patemostro, who was lying on her back looking up at the men, refused to tell them and, instead, stated that she could identify them and that “they wouldn’t get away with it.” The shorter man responded by kicking her. The defendant went into the inner office while his partner kept the gun pointed at Patemostro’s head. When the defendant came out of the inner office, the other robber backed out of the office door and disappeared into the hallway. At that point, Patemostro tried to get up, but the defendant kicked her in the face, causing her to fall back down. He then left the office. Patemostro had kept her attention on both men the entire time that they were there.

Patemostro then ran into the inner office to call the police and discovered that the blue bank envelope, which contained $170 in wrapped quarters, was missing and that the telephone line was dead. She ran out of her office and outside of the building, where she saw tenants Pauline Wiggins, Ralph Haecox and Sandra Les-pearance. She told them that she had been robbed. One or two minutes before Patemostro came outside, Wiggins saw the defendant, whom she had known for ten years, and another man she knew as Marrón Allen, exit from the far end of the apartment building, and walk through the parking lot and away from South Main Street.

After Patemostro told Wiggins that she had been robbed, Wiggins went to her apartment and called the police. Sergeant Philip Kennedy of the New Britain police department was the first officer to arrive at the apartment building. He found Patemostro inside of her office and observed that she had an injury to her forehead for which he radioed for medical assistance. He noted that she was alert and coherent despite her injury. She told him that she could identify both robbers and that one of the robbers was a very tall, slender, light-skinned black male whose first name she knew to be Allen. On the basis of this information, Kennedy believed that one of the robbers sounded like the defendant and radioed a dispatch for the defendant’s last known address, which he learned was on nearby Cherry Street. He then dispatched officers to that address.

Officer Joseph Lobo of the New Britain police department arrived at the apartment building after Kennedy. He spoke to Paternostro, who also told him that she could identify both robbers, that one of them had a first name of Allen, and that she had dealt with each in the past and recently had spoken to one of them. She agreed to accompany Lobo to the police station to give a formal statement.

Prior to leaving with Paternostro, Lobo was approached by tenant Marie Robles who told him that her daughter had found some articles that she believed might have been used in the robbery. Lobo accompanied Robles to the third-floor landing, where he saw a black nylon stocking and part of a latex surgical glove. The part of the glove found on the landing matched another part that Lobo had discovered in Pater-nostro’s office.

Robles also told police that she had had a conversation with the defendant the day prior to the robbery during which he asked her whether the building had any security guards. Robles responded that it did not and asked the defendant why he wanted to know. The defendant answered that he was just curious.

Lespearance told police that she, too, had a conversation with the defendant on the day prior to the robbery during which she told him that her landlady was looking for him. The defendant had responded, “Fuck the bitch,” and that she was going to get everything that she deserved.

After speaking with Robles, Lobo drove Paternostro to the police station. There, she was shown eight photographs of black men. The photographs were placed in two rows of four on the table in front of her. Lobo asked Patemostro if she could identify anyone in the photographs as the person or persons who had robbed her. She immediately pointed to the defendant’s photograph and stated that he was one of the robbers.

Shortly thereafter, Patemostro was taken to a location where the defendant and another person were being detained. She immediately identified the defendant as one of the robbers and stated that his companion was not the other robber. Later, she identified the second robber from a photographic array. The second individual she identified was Marrón Allen, whom Wiggins had seen leaving the building with the defendant minutes before Patemostro had emerged from the building and said that she had been robbed. Marrón Allen later pleaded guilty to robbing Patemostro.

I

The defendant first claims that the state failed to present sufficient evidence from which the jury could have found beyond a reasonable doubt that he was one of the men who committed the crimes.

“In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we constme the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

“Every element of the crime charged must be established by proof beyond a reasonable doubt. The basic facts underlying the elements of the crime charged, however, may be reasonably inferred by the factfinder. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). ‘If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.’ State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992); State v. Grunt, 219 Conn. 596, 604-605, 594 A.2d 459 (1991).” State v. Milardo, 224 Conn. 397, 403, 618 A.2d 1347 (1993).

That the evidence is circumstantial rather than direct does not diminish the force of that evidence. State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995). “The state must prove every essential element of the crime beyond a reasonable doubt and, while the jury may draw reasonable and logical inferences, it may not resort to speculation. State v. Tucker, [181 Conn. 406, 417, 435 A.2d 986 (1980)]; State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979).” State v. Green, 194 Conn. 258, 274, 480 A.2d 524 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 150-51, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

The jury had before it evidence that the area was well lighted, that Patemostro kept her attention on both robbers throughout the ordeal, that she was familiar with the defendant’s appearance and, in particular, his height and face, and that she was able to see his face under his mask. The jury also had the testimony of Wiggins, Robles and Lespearance, which, in addition to Patemostro’s testimony, indicated that the defendant was one of the men who had committed the crimes.

“[I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters, of common knowledge or their own observations and experience of the affairs of fife, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted; internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 118-19, 665 A.2d 95 (1995).

We conclude that the evidence presented at trial was sufficient on the issue of identification to support the defendant’s conviction beyond a reasonable doubt and that his claim to the contrary is without merit.

II

The defendant also claims that he was denied effective assistance of counsel and that the sentence imposed was harsh and excessive. We previously have addressed both claims. See State v. Johnson, 57 Conn. App. 156, 158 n.4, 748 A.2d 334 (2000). “A claim of ineffective assistance of counsel is not properly raised on direct appeal and should be raised in a petition for a writ of habeas corpus. See State v. Kitt, 8 Conn. App. 478, 480 n.1, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986). [W]hen the claim of inadequate counsel is joined with other substantive and procedural claims of error, it is often difficult to make a judgment about the extent to which inadequate counsel has implicated the outcome of the criminal conviction. For that reason, it will ordinarily be necessaiy to await exhaustion of the direct appeal before the claim of ineffective assistance can be pursued on a petition for [a writ of] habeas corpus. . . . State v. Patrick, 42 Conn. App. 640, 651, 681 A.2d 380 (1996), quoting State v. Henderson, 37 Conn. App. 733, 749, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995).

“The defendant further claims that the trial court imposed a harsh and excessive punishment. [W]e have no discretionary power to modify or overturn a sentence that was within the limits fixed by statute for the offense charged, except where a trial court appears to have abused its discretion. State v. Connelly, 46 Conn. App. 486, 504, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998). Where the trial court has properly considered all of the offenses proved and imposed a sentence within the applicable statutory limitations, there is no abuse of discretion. Id. The defendant does not claim that the trial court did not properly consider his claim, nor does he claim that the sentence exceeds statutory limits. The defendant’s claim, therefore, is nothing more than an appeal for clemency and a request that this court exercise discretionary authority it does not possess; id., 503; and thus is not reviewable by this court. A petition for sentence review ... is the appropriate vehicle by which to have this claim evaluated. See General Statutes § 51-195 et seq. . . . State v. Connelly, supra, 504, quoting State v. Baldwin, 224 Conn. 347, 370-71, 618 A.2d 513 (1993).” (Internal quotation marks omitted.) State v. Johnson, supra, 57 Conn. App. 158 n.4.

Ill

The defendant next argues that his trial counsel should have sought an independent psychiatric evaluation or that the court should have accommodated the issues of his mental competence. This claim is not reviewable. As previously addressed, the defendant cannot raise an ineffective assistance of counsel claim on direct appeal. It also appears that the defendant is arguing that the court sua sponte should have ordered the competency evaluation.

The defendant did not preserve this claim for appellate review, but seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant can prevail on his unpreserved constitutional claim only if all of the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986); see State v. Manfredi, 17 Conn. App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990).

“A record is not inadequate for Golding purposes because the trial court has not reached a conclusion of law if the record contains the factual predicates for making such a determination.” State v. Torres, 230 Conn. 372, 378-79, 645 A.2d 529 (1994). No such factual predicates can be found in the record. The defendant does not point to anything in the record that should have alerted the court that the defendant might be incompetent to stand trial, nor does the defendant identify anything in the record indicating that he suffered any psychological or psychiatric disability, making him a danger to himself or others.

The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record or to make factual determinations to decide the defendant’s claim. State v. Golding, supra, 213 Conn. 240. We conclude that the defendant has failed to provide an adequate record to review this claim and, thus, fails to satisfy the first prong of Golding.

IV

Finally, the defendant claims that the court improperly instructed the jury as to the state’s burden of proving guilt beyond a reasonable doubt by stating that a reasonable doubt is a “doubt that has its foundation in the evidence or lack of evidence.” He claims that this instruction unconstitutionally diluted the state’s burden of proof. The defendant’s claim is unpreserved and has been addressed and rejected by this court. See State v. Ryan, 53 Conn. App. 606, 611-12, 733 A.2d 273 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was committed to the custody of the commissioner of correction for a total effective sentence of twenty-five years, execution suspended after seventeen years, followed by five years of probation.

       The sole mention of any possible mental impairment of the defendant occurred at sentencing when, for the first time, defense counsel stated that the defendant suffered from attention deficit hyperactive disorder.