text:
    PATRICIA MERRITT, ADMINISTRATRIX (ESTATE OF DARNEL PATRICK MERRITT) v. TOWN OF BETHEL POLICE DEPARTMENT ET AL.
    (AC 30515)
    Flynn, C. J., and Lavine and Borden, Js.

      Argued January 7
    officially released May 4, 2010

      Lucia Lanzaro Goodwin, with whom were J. Michael Cantore, Jr., and Paul J. Pacifico, for the appellant (plaintiff).

      Michael F. O'Connor, with whom, on the brief, was Scott R. Ouellette, for the appellees (named defendant et al.).

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

   Opinion

FLYNN, C. J.

The plaintiff, Patricia Merritt, admin-istratrix of the estate of Darnel Patrick Merritt, her deceased son, appeals from the judgment of the trial court rendered after it granted the motion to strike counts one through four of the plaintiffs fifth amended complaint, filed by the defendants the town of Bethel police department and Officers Matthew DiRago and Lynn Morris, on the ground of governmental immunity. On appeal, the plaintiff claims that her negligence claims were not barred by the doctrine of governmental immunity because her decedent fell within the identifiable person subject to imminent harm exception to discretionary governmental immunity. We affirm the judgment of the trial court.

The following facts, as alleged in the plaintiffs fifth amended complaint, and procedural history are relevant to our resolution of the plaintiffs appeal. On the late evening of November 26, 2004, through the early morning hours of November 27, 2004, the decedent attended a party at the Masonic Temple in Bethel. At approximately 1:41 a.m. on November 27, 2004, the decedent and others left the party, and the decedent was met by members of a gang from Rhode Island, known as the “Asian Boyz.” One of the members of this gang then shot the decedent several times with a handgun. The Bethel police department and, in particular, DiRago and Morris, had information that prior criminal activity had taken place at the Masonic Temple, that a scuffle had occurred shortly before the shooting and that gang members were at the party. At the time of the shooting, DiRago and Morris had been stationed in a parking lot adjacent to the Masonic Temple, where they were monitoring the activities taking place at the Masonic Temple. After hearing gunshots, DiRago and Morris went to the scene and found the decedent severely injured. The decedent later died as a result of these injuries.

The plaintiff brought this action against the town of Bethel police department pursuant to General Statutes § 52-557n and against DiRago and Morris, individually, alleging negligence. The defendants filed a motion to strike all counts of the complaint as to them on the ground of governmental immunity. The court agreed that governmental immunity was applicable in this case and that the decedent did not fit within the exception for an identifiable person subject to imminent harm, and it granted the defendants’ motion to strike. After judgment was rendered in favor of the defendants, the plaintiff filed the present appeal.

On appeal, the plaintiff claims that the court improperly granted the defendants’ motion to strike. She argues that the decedent was an identifiable person subject to imminent harm or that he was a member of an identifiable class of foreseeable victims, that class being all the people in attendance at the party. We do not agree.

The appellate standard of review from the granting of a motion to strike is well settled. “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 ... is plenary.” (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. ” (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “[W]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.” Doe v. Board of Education, 76 Conn. App. 296, 299 n.6, 819 A.2d 289 (2003).

In considering the merits of the plaintiff’s claim on appeal, we apply the following principles of governmental immunity. “The [common-law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. ... In contrast, [ministerial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion. . . .

“Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatoiy lawsuits, outweighs the benefits to be had from imposing liability for that injury. ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts. . . .

“There are three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force. . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . .” (Citations omitted, internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318-20, 907 A.2d 1188 (2006).

In the present case, the plaintiff contends that the exception to governmental immunity for an identifiable person subject to imminent harm is applicable. “[T]his exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state.” (Internal quotation marks omitted.) Id., 329. Our courts have applied the exception when “the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm .... By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.” (Citation omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006). The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception. See Violano v. Fernandez, supra, 280 Conn. 329.

With respect to the identifiable victim element, our Supreme Court has stated that “this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. . . . [WJhether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified inununity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care. ... In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim.” (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350-51, 984 A.2d 684 (2009).

In the present case, in granting the defendants’ motion to strike, the court cited Durrant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007), as the basis for its granting the motion. Recently, our Supreme Court discussed the Durrant case in some detail: “In our recent decision in Durrant, we emphasized the narrowness of the class of persons who may be identified as foreseeable victims, and concluded that a six year old child present on school grounds to attend an after school day care program, and by association, his mother, who was injured when she fell on school grounds after she arrived to pick her child up, were not memberjs] of an identifiable class of foreseeable victims subject to imminent harm for purposes of satisfying that exception to the qualified immunity of a municipal employee for discretionary acts. . . . Assuming that the imminent harm requirement had been satisfied, we emphasized that [t]he only identifiable class of foreseeable victims that we have recognized for these purposes is that of schoolchildren attending public schools during school hours because: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they were legally required to attend school rather than being there voluntarily; their parents were thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.” (Citation omitted; internal quotation marks omitted.) Grady v. Somers, supra, 294 Conn. 351-52.

The Supreme Court went on to explain that in Bur-rant, “the plaintiff was not a member of a narrowly defined class of foreseeable victims because she was not compelled statutorily to relinquish protective custody of her child. No statute or legal doctrine required the plaintiff to enroll her child in the after school program; nor did any law require her to allow her child to remain after school on that particular day. . . . The plaintiffs actions were entirely voluntary, and none of her voluntary choices imposes an additional duty of care on school authorities . . . despite the fact that our state statutes condone and even encourage the use of public school facilities for the very purpose for which the plaintiffs child was in attendance at the school on the day of the plaintiffs fall.” (Internal quotation marks omitted.) Id., 352-53.

Our Supreme Court explained in Grady that we have not recognized any additional classes of foreseeable victims outside of the public school context, and, even in such a context, such a class has only been recognized where attendance has been compulsory. See id., 352. The plaintiff in Grady had been injured at the town transfer station, and he argued that as a town resident, who had purchased a permit for the transfer station, he was within a class of foreseeable victims. Id., 328, 356. Our Supreme Court stated: “[W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this exception to qualified immunity is ultimately a question of policy for the courts, in that it is in effect a question of duty . . . [that] involves a mixture of policy considerations and evolving expectations of a maturing society .... Nevertheless, under our case law . . . wherein we have interpreted the identifiable person element narrowly as it pertains to an injured party’s compulsion to be in the place at issue, we conclude that the plaintiff is not a member of a class of foreseeable victims because, as he acknowledges, he was not legally required to dispose of his refuse by taking it to the transfer station personally and could have hired an independent contractor to do so.” (Citations omitted; internal quotation marks omitted.) Id., 356.

In the present case, there is no allegation that the decedent and others were statutorily mandated or compelled to attend the party at the Masonic Temple. We conclude, therefore, that the decedent was not a member of a narrowly defined class of foreseeable victims.

The plaintiff also argues that her decedent, even if not a member of a class of foreseeable victims, was an identifiable person subject to imminent harm because the police should have recognized that “their failure to intervene would subject [the decedent] to . . . harm [when] . . . the police officers were stationed next-door for the purposes of monitoring the activities at the Masonic Temple . . . [and they had] prior information . . . [of] gang activity at the party . . . gang members at the party . . . the scuffle at the party . . . and prior criminal activity at the Masonic Temple . . . .” (Citations omitted.) We do not agree.

The identifiable person subject to imminent harm exception to discretionary government immunity, as stated previously, is a narrow one whether a victim is claiming that he is within a foreseeable class of victims or whether he is claiming that he is a foreseeable victim, individually. “[I]n addition to not recognizing any additional classes of foreseeable victims, the decisions [of our Supreme Court] reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity. See Sestito v. Gro-ton, [178 Conn. 520, 522-23, 423 A.2d 165 (1979)] (facts presented jury question in case wherein on-duty town police officer watched and witnessed ongoing brawl in bar’s parking lot but did not intervene until after participant had shot and killed plaintiffs decedent). Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because [a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.” (Internal quotation marks omitted.) Grady v. Somers, supra, 294 Conn. 353-54.

In the present case, the plaintiff has alleged that her decedent attended a party at the Masonic Temple, that gang members were present, that a scuffle had occurred shortly before the shooting, that the police were aware that prior criminal activity had taken place there and that the police were monitoring the activities taking place there at the time of the shooting. Nothing in these allegations demonstrates that DiRago, Morris or the Bethel police department knew the decedent or of his presence at the Masonic Temple or that they had any prescient knowledge that he would be shot in the early morning hours of November 27, 2004. There were no allegations that the police knew that gang members were armed and that they were going to shoot the decedent when he left the party. There simply are no allegations in the plaintiffs complaint that would fit the decedent within the exception to governmental immunity for an identifiable person subject to imminent harm. Accordingly, the court properly granted the defendants’ motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also had alleged negligence against the Masonic Temple Association of Bethel, Connecticut, Inc., in count five of her complaint. That claim, however, subsequently was withdrawn. The remaining defendants, the police department, DiRago and Morris collectively are referred to as the defendants on appeal.

       General Statutes § 52-557n provides in relevant part: “(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties .... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

       See footnote 1 of this opinion.

       Although the plaintiff had alleged that DiRago and Morris were engaged in ministerial acts in each count against them in her complaint, she also alleged in those same counts that the decedent was an identifiable victim subject to imminent harm. The court determined that other than the simple legal conclusion set forth in the counts against DiRago and Morris alleging that their acts were ministerial, there were no factual allegations that would support a claim that the officers were acting in a ministerial capacity. The plaintiff has not contested this on appeal, and the sole focus of her appellate brief is on her claim that the court incorrectly concluded that the decedent did not fit within the identifiable person subject to imminent harm exception to discretionary governmental immunity.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LISA LANTZ
    (AC 30103)
    Lavine, Robinson and Pellegrino, Js.
    Argued October 14, 2009
    officially released May 4, 2010

      Tara L. Knight, for the appellant (defendant).

      Ráheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Lisa Lantz, brings this interlocutory appeal from an order disqualifying her attorney, E. Gregory Cerritelli, from representing her during a violation of probation proceeding. On appeal, the defendant claims that (1) this court has jurisdiction to hear this particular species of interlocutory appeal and (2) the state failed to meet its burden in demonstrating a compelling need for Cerritelli to testify at her violation of probation hearing. Accordingly, the defendant argues that the court’s disqualification order ran afoul of the guarantees enshrined in the sixth amendment to the United States constitution. We dismiss the appeal.

The following facts and procedural history are relevant to our resolution of the pertinent issues in this case. On October 13,2006, the defendant was sentenced to a total effective term of three years incarceration, execution suspended, and three years probation with special conditions, for her three convictions of larceny in the fourth degree in violation of General Statutes § 53a-125. One of the special conditions of her probation was that she make restitution to the victim in the amount of $85,775. Of that total restitution amount, $53,350 was to be paid within one week of the date that her sentence was entered, while the remaining $32,425 was to be remunerated over time, according to the defendant’s ability to make such payments in light of her limited income and employment prospects.

Although the defendant made the initial payment of $53,350, she was arrested and charged with violation of probation on October 26, 2007, for failing to make timely restitution payments with respect to the remaining $32,425. On November 27, 2007, Cerritelli filed an appearance on the defendant’s behalf, though, during a pretrial hearing on May 19, 2008, the state informed the trial court that it intended to elicit testimony from Cerritelli at the defendant’s violation of probation hearing. In light of this development, the state argued that Cerritelli should withdraw his appearance in accordance with rule 3.7 (a) of the Rules of Professional Conduct. Cerritelli countered that his disqualification would be impermissible because the state would not be able to demonstrate a compelling need for his testimony, and, consequently, his disqualification would trespass on his client’s right to be represented by the counsel of her choice, as secured through the sixth amendment to the United States constitution.

A full evidentiary hearing was held on June 23, 2008, during which the court heard evidence concerning the state’s compelling need for Cerritelli to testify at his client’s violation of probation proceeding. At the hearing, the state represented that during a previous pretrial hearing, Cerritelli indicated that his client had a bank check in the amount of roughly $29,000 that could be used to settle the violation of probation charge. The state argued that Cerritelli’s testimony regarding the existence of this check was its only means of demonstrating that the defendant violated her probation by failing to make restitution when she had the wherewithal to do so. In response, Cerritelli argued that the state had not met its burden of proving a compelling need for his testimony because it failed to prove that all other sources of comparably probative evidence had been exhausted and averred in the alternative that his conversation with the prosecutor regarding the bank check was privileged as part of a settlement negotiation.

Although the state never addressed whether Cerritelli could testify that his client was in possession of the bank check prior to her arrest, the court held that because the state was required to show that the defendant had the ability to make restitution during the violation of probation proceeding, Cerritelli’s testimony was clearly necessary. In this regard, the court found that Cerritelli’s testimony was the only means available to the state to prove that the defendant had possessed the ability to make additional restitution payments and that the conversation between Cerritelli and the prosecutor regarding the bank check was not privileged on the ground that it was part of a settlement negotiation. The court, accordingly, granted the state’s motion to disqualify Cerritelli.

On July 3, 2008, the defendant filed this interlocutory appeal from the court’s decision granting the motion to disqualify Cerritelli. Subsequently, the state filed a motion to dismiss the appeal on August 1, 2008, to which the defendant objected on August 6, 2008. This court denied the state’s motion to dismiss without prejudice on November 19, 2008, and ordered the parties to address whether an order disqualifying a defendant’s chosen counsel during a violation of probation hearing constituted a valid final judgment for purposes of appeal.

In connection with the final judgment question, the defendant argues that a violation of probation hearing is a criminal proceeding and that an appeal taken from a disqualification order is a final judgment for purposes of appeal pursuant to State v. Rapuano, 192 Conn. 228, 229 n.1, 471 A.2d 240 (1984), overruled in part by Burger & Burger, Inc. v. Murren, 202 Conn. 660, 669-70, 522 A.2d 812 (1987). The state contends, however, that a violation of probation hearing is a civil proceeding and that the appeal of a disqualification order in that context is not an appealable final judgment pursuant to Burger & Burger, Inc. v. Murren, 202 Conn. 660, 669-70, 522 A.2d 812 (1987). In the alternative, the state argues that even if a violation of probation proceeding is a criminal proceeding, that Rapuano was overruled by Burger & Burger, Inc., and that, consequently, the disqualification order at issue in the present case is not an appealable final judgment. We agree with the state.

It is settled law that the full panoply of rights due a defendant in a criminal prosecution does not apply to a violation of probation hearing. See State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994) (“[although a [probation] revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding” and does not, therefore, “require all of the procedural components associated with an adversary criminal proceeding” [citations omitted; internal quotation marks omitted]). Indeed, “[b]ecause revocation proceedings generally have not been considered criminal prosecutions, they have not been subject to the procedural safeguards, including the rights to trial by juiy and to accusations proved beyond a reasonable doubt, associated with a criminal trial.” United States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006). This conclusion has been predicated on the understanding that revocation proceedings “[arise] after the end of the criminal prosecution, including imposition of sentence”; (internal quotation marks omitted) id., 809; and do not deprive the individual of “the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions . . . .” (Citations omitted; internal quotation marks omitted.) Id., 809-10. Accordingly, our Supreme Court has held that “the probation revocation procedure established by [General Statutes] § 53a-32 is akin to a civil proceeding.” State v. Davis, supra, 295.

In light of our case law holding that a violation of probation proceeding is not a criminal proceeding but is instead more akin to a civil proceeding, we turn to our precedent governing appeals taken from disqualification orders in a civil case. Under current Connecticut law, an order granting a motion to disqualify the chosen attorney of aparty to a civil case “is not a final judgment and may not be immediately appealed.” Burger & Burger, Inc. v. Murren, supra, 202 Conn. 669-70 (“The right to be represented by counsel of one’s own choice is not irretrievably lost absent an immediate appeal. It can be vindicated upon reversal of the judgment on appeal.”). Accordingly, because the defendant appeals from an order disqualifying her counsel in a civil proceeding and that order is not considered a final judgment, this appeal must be dismissed.

The appeal is dismissed.

In this opinion the other judges concurred.

       Rules of Professional Conduct 3.7 (a) provides: “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall eqjoy the right ... to have the assistance of counsel for his defense.” The United States Supreme Court has “held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006), citing Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).

       The defendant suggests that the decision in United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006), calls into question this result because the court in that case stated that the deprivation of a defendant’s right to chosen counsel is “complete when the defendant is erroneously prevented from being represented by the lawyer he wants . . . .” (Internal quotation marks omitted.) We are not persuaded. In the first instance, we note that the procedural posture in that case was different from the one in the present case. The defendant in Gonzalez-Lopez was appealing from a criminal conviction.—a final judgment—in which he challenged the court’s disqualification of his chosen counsel. Id., 143. In this case, by contrast, the defendant seeks an interlocutory appeal to challenge a disqualification order in a civil proceeding. Moreover, Gonzalez-Lopez is instructive because it held that, irrespective of whether the violation of a defendant’s right to chosen counsel was “complete” at trial, the sixth amendment right to the counsel of choice could nevertheless be vindicated on appeal by requiring a new trial, which had been ordered by the United States Court of Appeals for the Eighth Circuit and which the United States Supreme Court affirmed. Indeed, by holding that the improper disqualification of counsel is not subject to harmless error review; id., 152; Gonzalez-Lopez has decreased further the need for an interlocutory appeal because it lowers the burden a defendant must meet to obtain a new trial. Accordingly, we conclude that Gonzalez-Lopez does not affect our current precedent barring the interlocutory appeal of a disqualification order in the context of a probation violation proceeding.


author: DiPENTIMA, J.

text:
    TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA v. ESTHER G. TWINE ET AL.
    (AC 30990)
    DiPentima, Robinson and Hennessy, Js.

      Argued February 4
    officially released May 4, 2010

      Allison A. Bergan, for the appellant (named defendant).

      Michael J. O’Sullivan, for the appellee (plaintiff).

      Brian J. Farrell, Jr., for the appellee (apportionment defendant Greenwich Medical Building, Inc.).

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

   Opinion

DiPENTIMA, J.

The defendant Esther G. Twine appeals from the judgment of the trial court in favor of the plaintiff, Travelers Property Casualty Company of America, denying her motion to restore the case to the docket. She claims that (1) the court abused its discretion in denying the motion to restore because she had the right to litigate the matter as it was presented in the original docket and (2) the court’s denial of her motion to restore violated her state constitutional due process right to litigate this action. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s claim. The defendant owns the property located at 40 Cassidy Street, Greenwich. The property borders 49 Lake Avenue, Greenwich, where Greenwich Urological Associates is a tenant. On or about June 3, 2007, a tree fell on the roof of the 49 Lake Avenue property. As a result of the damage caused by the tree, the plaintiff made payments to Greenwich Urological Associates under a property insurance policy that covered loss of business property and loss of business income.

On June 27, 2008, the plaintiff filed an amended complaint alleging that the defendant was negligent because the large dead or damaged tree was visible on the defendant’s property as of October, 2005, and that she knew that the tree was deteriorating and dangerous but, nonetheless, allowed the tree to remain on her property for longer than a reasonable amount of time. On June 20, 2008, the defendant filed requests for admission, which the plaintiff did not answer within the time required by Practice Book § 13-23. Therefore, under that section, the requests were deemed admitted. Among the plaintiffs admissions was that “[t]he tree that damaged [the] plaintiffs insured’s property fell from 49 Lake Avenue, Greenwich, Connecticut [the premises leased to the insured].” On November 5, 2008, the defendant filed a motion for summary judgment. On November 26, 2008, the plaintiff filed an objection to that motion, accompanied by an affidavit, and a motion to withdraw its admissions. Before a hearing was held on the motions, on December 9, 2008, the plaintiff filed a withdrawal of this action. Shortly thereafter, the plaintiff served a new complaint on the defendant. On February 11, 2009, the defendant filed a motion to restore the original action to the docket. On March 26,2009, after a hearing, the court issued a memorandum of decision denying the defendant’s motion to restore. The defendant appealed from the denial of that motion.

I

The defendant first claims that the court abused its discretion in denying the motion to restore the original action to the docket because she had the right to litigate the matter as it was presented in the original docket. Specifically, the defendant argues that she has been deprived of a vested right and that the plaintiffs withdrawal of the action followed by the filing of a nearly identical action, purportedly to subvert the court’s expected ruling on a motion for summary judgment, should not be allowed. We do not agree that the court abused its discretion.

The standard of review for this issue is well settled. “The question of whether a case should be restored to the docket is one of judicial discretion.” Sicaras v. Hartford, 44 Conn. App. 771, 779, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997); see also Lusas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 170, 193 A. 204 (1937).

The plaintiff withdrew the action on December 9, 2008, before a hearing on the merits of the motion for summary judgment took place. General Statutes § 52-80 provides in relevant part: “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.” “The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by ... § 52-80, is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.” (Internal quotation marks omitted.) Daigneault v. Consolidated Controls Corp./Eaton Corp., 89 Conn. App. 712, 714, 875 A.2d 46, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006). “The court unless [the action] is restored to the docket cannot proceed with it further . . . .” Lusas v. St. Patrick’s Roman Catholic Church Corp., supra, 123 Conn. 170.

The defendant asserts that the purpose of the plaintiffs withdrawal of the first action was solely to “[manipulate] the judicial system to avoid an unfavorable ruling.” The defendant further claims that she had a vested right in having her motion for summary judgment heard and decided by the court and that because she had that vested right, the court abused its discretion by denying the motion to restore. In Lusas v. St. Patrick’s Roman Catholic Church Corp., supra, 123 Corp. 170, our Supreme Court stated that “[t]here is no reason why the court has not jurisdiction upon a proper showing to restore to the active docket a case which has been voluntarily withdrawn, just as it can open a judgment or restore to the docket a case which has been erased.” The court in this case issued a detailed memorandum of decision, finding that the defendant was not deprived of a vested right. The court determined that the issue of whether or not the tree was located on the defendant’s property could be investigated through the discovery process in the subsequent action and that any pertinent motions relating to that issue could also be addressed in that action. The court concluded that under § 52-80, the plaintiff was allowed to withdraw the action before a hearing on the motions. On the basis of these findings, the court denied the defendant’s motion to restore. We conclude that the court did not abuse its discretion.

II

The defendant next claims that the court’s denial of her motion to restore violated her state constitutional due process right to litigate this action. This claim, however, was not raised in the trial court. Further, the defendant does not assert that her claim was preserved for appellate review, nor does she affirmatively request review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant analyzed her claim as though it were a preserved constitutional claim. Merely raising and analyzing a claim of constitutional magnitude, however, does not constitute an affirmative request for Golding review. See In re Melody L., 290 Conn. 131, 154, 962 A.2d 81 (2009) (“[T]he respondent does not seek a review under Golding. Her brief makes no mention of, or request for Golding review. Consequently, we decline to review the respondent’s constitutional claims.”); Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000) (“[i]t is not appropriate to engage in a level of review that is not requested” [internal quotation marks omitted]). Therefore, we will not address this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The relevant complaint also named as defendants Eager Beaver Tree Service, Inc., and EB Trees, Inc. Because Twine is the sole defendant on appeal, we refer to her as the defendant in this opinion.

       The plaintiff brought this action pursuant to its rights of subrogation.

       The sworn affidavit of Justin Adamowicz stated that the defendant told him in June, 2007, that she owned the fallen tree and that she had known that it needed to be removed before it fell.

       The plaintiff argues that it has an absolute and unconditional right to withdraw the case before a hearing on the merits and that the court, therefore, has no discretion to restore the case to the docket. It cites this court’s opinion in Smith v. Reynolds, 54 Conn. App. 381, 383, 735 A.2d 827 (1999), arguing that a trial court never has the discretion to restore a plaintiffs action as long as the plaintiff has withdrawn the action before a hearing on the merits has commenced. We are not persuaded.
      In Smith, the defendant argued that the action was not properly withdrawn in the first place, claiming that prior motions that had been taken on the papers constituted a hearing on the merits within the meaning of § 52-80 and that the plaintiff wrongfully withdrew the action without seeking leave of the court pursuant to § 52-80. See Smith v. Reynolds, Conn. Appellate Court Records & Briefs, April-May Term, 1999, Defendants’ Brief, pp. 3-5. In this case, however, there is no such factual challenge, as both parties agree that there was no hearing on the merits. The issue in this case is whether the defendant’s rights had vested. Nevertheless, the court retains discretion to restore an action to the docket at its discretion.
      This court’s decision in Sicaras v. Hartford, supra, 44 Conn. App. 771, better expounds on the meaning of § 52-80. “Withdrawals are analogous to final judgments. The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.” (Intemal quotation marks omitted.) Id., 775-76. “The question of whether a case should be restored to the docket is one of judicial discretion.” Id., 779.

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


author: WEST, J.

text:
    JAMES G.
      v. COMMISSIONER OF CORRECTION
    (AC 29407)
    Lavine, Alvord and West, Js.

      Argued November 10, 2009
    officially released May 4, 2010

      Minor C. Sterling, special public defender, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of iryury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

WEST, J.

The petitioner, James G., appeals from the denial of his petition for a writ of habeas corpus. The court granted the petition for certification to appeal. On appeal, the petitioner claims that the habeas court improperly found that his trial counsel provided effective assistance. Specifically, he claims that the court incorrectly concluded that he had failed to establish that he was prejudiced by his trial counsel’s failure to call witnesses to account for the petitioner’s whereabouts during the time period that the assaults resulting in his conviction occurred. We affirm the judgment of the habeas court.

In State v. James G., 268 Conn. 382, 844 A.2d 810 (2004), the petitioner’s direct appeal to our Supreme Court, the facts underlying his criminal conviction were summarized as follows: “In November, 1999, the [petitioner’s] biological daughter, T, lodged a criminal complaint against the [petitioner] alleging that he had sexually molested her between April, 1993, and January, 1994, when she was seven years old. The complaint arose after T informed her mother, through a letter written in November, 1999, that the [petitioner] had sexually abused her. At the time of the petitioner’s January, 2001 trial, T was fifteen years old.

“The [petitioner’s] sexual abuse of T began in April, 1993, during an incident in which the [petitioner] entered the bathroom just after T had taken a bath. Although the [petitioner] did not reside with T and T’s mother at this time, he slept at their house approximately four nights per week. The [petitioner] took T’s towel and proceeded to dry her off and digitally penetrate her vagina for approximately five minutes.

“Thereafter, the [petitioner] began entering T’s room at approximately midnight several times per week. The [petitioner] would cover T’s head with a blanket and either digitally or orally penetrate her vagina. The [petitioner] also would kiss T’s cheek and neck. He remained clothed during these incidents except for one time when he did not wear pants.

“The [petitioner] threatened T, stating that he would harm T’s mother and K [T’s older half sister] if T told anyone about the abuse. During the course of the abuse, from April, 1993, to January, 1994, T did not inform anyone about the petitioner’s actions.” Id., 386-87.

A jury found the petitioner guilty of sexual assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-70 (a) (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). The court rendered judgment in accordance with the jury verdict and sentenced the petitioner to twenty-three years imprisonment. State v. James G., supra, 268 Conn. 385-86. His direct appeal followed. Id. Our Supreme Court affirmed the judgment of conviction. Id., 424.

The petitioner then brought the habeas action underlying this appeal. In his amended petition, filed May 30, 2006, he claimed, inter alia, that his trial counsel, attorney Gerald Giaimo, was ineffective for failing to call witnesses at trial to account for the petitioner’s whereabouts during the time period that the assaults occurred. The habeas trial was held on May 21, 2007. The court, by memorandum of decision filed November 6, 2007, denied the petition for a writ of habeas corpus, concluding that the petitioner had failed to establish that he was in any way prejudiced by Giaimo’s performance. On November 14, 2007, the court certified the appeal to this court. Further facts will be set forth as necessary.

Preliminarily, we set forth the standard of review we employ when a petitioner claims ineffective assistance of trial counsel. “A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citation omitted; emphasis added; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 77, 967 A.2d 41 (2009). Moreover, “[a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Leatherwood, v. Commissioner of Correction, 105 Conn. App. 644, 647, 938 A.2d 1285, cert. denied, 286 Conn. 908, 944 A.2d 979 (2008). “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

The petitioner claims that Giaimo failed to investigate his case adequately. Specifically, he asserts that Giaimo failed to investigate an alibi defense reasonably by locating a number of witnesses who, the petitioner claims, could have accounted for his whereabouts during the time that the victim was sexually assaulted and thereby could have undermined the credibility of key prosecution witnesses, including the victim. Those individuals, Leanne Dahlmeyer, Robert L. Rogers, Jr., David Isola and Ester Kopylec-Isola, along with Giaimo, testified at the habeas trial.

In its memorandum of decision, the court found Giaimo to be credible and made the following findings of fact on the basis of his testimony. Soon after he began representing the petitioner in June, 2000, Giaimo became aware that the state had filed a request for a notice of alibi defense. Giaimo knew that the crimes were alleged to have occurred on nights when the petitioner was sleeping at the victim’s home as a guest of the victim’s mother. Giaimo spoke to the petitioner on several occasions in preparation for the trial. During those conversations, the petitioner disclosed individuals whom Giaimo later called as witnesses during the trial, including Robin DeNicola and Norman DeNicola, who were friends of the victim’s mother, as well as Tara Mallon, a girlfriend of the petitioner. Giaimo testified that the petitioner never mentioned Dahlmeyer before the trial and that he did not recognize the names of Isola and Kopylec-Isola. Giaimo further testified that he was certain that he discussed with the petitioner the witnesses who would testify on his behalf and that the petitioner did not tell Giaimo that potential witnesses were absent.

After carefully reviewing the record and briefs, we agree with the habeas court’s decision that the petitioner was not deprived of the effective assistance of trial counsel, in any respect. The petitioner failed to show any prejudice resulting from Giaimo’s performance. The crimes took place over an extended period of time and on multiple occasions. Any effective alibi defense would have had to have persuaded the jury that the petitioner was absent from the victim’s home for effectively the entire period during which the crimes were alleged to have happened. Our review of the testimony at the habeas trial of Dahlmeyer, Rogers, Isola and Kopylec-Isola reveals clearly that it failed to establish an alibi for the petitioner. Moreover, we also conclude that that testimony failed to undermine the credibility of any prosecution witness such that, but for its absence at trial, there was a reasonable probability that the result of the petitioner’s criminal trial would have been different. See Strickland, v. Washington 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (defining reasonable probability as “a probability sufficient to undermine confidence in the outcome”). Because both prongs of Strickland must be established for the petitioner to prevail, we need not determine the deficiency of Giaimo’s performance because consideration of the prejudice prong is dispositive of the petitioner’s ineffectiveness claim. See Crocker v. Commissioner of Correction, 101 Conn. App. 133, 143, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007).

The judgment is affirmed.

In this opinion the other judges concurred.

       In his amended petition, the petitioner also alleged that Giaimo provided ineffective assistance by “failing to formulate and execute an effective . . . strategy at trial by introducing evidence of third party culpability.” The petitioner, however, withdrew that count prior to the commencement of his habeas trial.

       On June 9, 2008, after receiving an extension of time to file a motion for articulation, the petitioner filed such a motion. In that motion, the petitioner sought, essentially, to have the court articulate whether Giaimo’s performance was deficient. That motion was denied. This court later granted a motion for review of the denial of his motion for articulation but denied the relief requested therein.

       We note that the petitioner was not incarcerated during the pendency of his trial.

       The petitioner testified at the habeas trial that he had told Giaimo about Dahlmeyer, Rogers, Isola and Kopylec-Isola and that they could provide testimony concerning his whereabouts at the times the assaults took place. The court found the petitioner’s testimony at the habeas trial to be lacking in credibility.

       The court summarized the testimony of the petitioner’s witnesses as follows: “Dahlmeyer testified [that] she began dating the petitioner in August, 1993. She testified that she stayed at the petitioner’s house several nights per week starting [in] late August or early September. Her testimony did not account for every night that the victim alleged she was sexually assaulted by the petitioner. According to Dahlmeyer, she and the petitioner broke off their relationship approximately three months after it began when the petitioner began dating Mary Sauce by Thanksgiving of 1993. Dahlmeyer testified that Kopylec-Isola began renting a room from the petitioner after the petitioner stopped dating Dahlmeyer. . . .
      “Robert ‘Rusty’ Rogers testified that the petitioner did not work for him in 1993. His version of the events [concerning the construction project at which the petitioner also worked] was different from that of the petitioner and . . . Isola. Rogers testified that the road work on [that] project was almost completed by 1991. In 1993, he recalled seeing the petitioner working at a house across the street from the house Rogers was building. He testified that he had not seen the petitioner for a couple of years. Rogers did not corroborate [the] petitioner’s and . . . Isola’s accounts of [the] petitioner’s work history in 1993. . . .
      “Isola has been a friend of the petitioner for over thirty years. Isola testified regarding the beginning [of] work on [that construction] project .... Isola consistently was confused about dates at issue and even was confused as to when he married his wife.
      “[Kopylec-Isola] testified that she met the petitioner in the spring of 1994 and began renting from the petitioner in March, 1994. Therefore, she could not assist the petitioner with his alibi.”

       “To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). . . . According to Strickland, [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citation omitted; internal quotation marks omitted.) Young v. Commissioner of Correction, 120 Conn. App. 359, 367, 991 A.2d 685, cert. denied, 297 Conn. 905, 995 A.2d 635 (2010)


author: PER CURIAM.

text:
    MARK HEINONEN v. JAMES M. MANDRACCHIA ET AL.
    (AC 30858)
    Flynn, C. J., and Graendel and West, Js.

    Argued February 17
    officially released May 4, 2010

      Mark Heinonen, pro se, the appellant (plaintiff).

      J. Kevin Golger, for the appellees (defendants).

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

   Opinion

PER CURIAM.

In this negligence action, the plaintiff, Mark Heinonen, appeals from the judgment, rendered after a jury trial, in favor of the defendants, James M. Mandracchia and Cheryl Mandracchia. After a thorough review of the record, transcripts, briefs and oral argument, and affording those claims that properly are before this court careful consideration, we conclude that the plaintiffs claims are without merit.

The judgment is affirmed.