author: PETERS, J.

text:
    STATE OF CONNECTICUT v. EDWARD ASBERRY
    (AC 22476)
    Lavery, C. J., and DiPentima and Peters, Js.

      Argued October 27, 2003 —
    officially released January 13, 2004

      Martin Zeldis, senior assistant public defender, with whom were Elio Morgan and Wayne Francis, certified legal interns, for the appellant (defendant).

      Julia K. Conlin, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, former senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

In this criminal appeal, the defendant challenges the validity of his conviction of conspiracy to commit assault in the first degree. He raises two principal issues. As a matter of fact, he argues that there was insufficient evidence to support his conviction for conspiracy because the jury acquitted him of the underlying charge of assault in the fust degree. As a matter of law, he argues that he could not be convicted of conspiracy when the state never charged any other person as a coconspirator. We affirm the judgment of the trial corut.

In a two count information, the state charged the defendant, Edward Asberry, with assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48 (a). After a jury found the defendant guilty of only the conspiracy charge, the trial court denied the defendant’s motions for a new trial and for a judgment of acquittal. The court sentenced the defendant to thirteen years imprisonment followed by a period of five years special parole. The defendant has appealed.

The defendant’s appeal challenges the validity of the judgment of conviction on three grounds. He argues that (1) the evidence before the jury was insufficient to support his conviction, (2) the state’s failure to charge anyone else as his coconspirator precludes his own conviction of conspiracy, and (3) the court misin-structed the jury with respect to flight and consciousness of guilt. We are not persuaded by any of the defendant’s claims.

I

EVIDENTIARY SUFFICIENCY

The defendant has raised two claims with respect to the sufficiency of the evidence to support his conviction of conspiracy to commit assault in the first degree. In his view, the evidence at trial did not establish that he (1) entered into an agreement with another to assault the victim or (2) had the intent that the assault would be carried out by the use of a dangerous instrument. Although the evidence against the defendant was not overwhelming, we conclude that it was sufficient to sustain the defendant’s conviction.

Our standard of review for challenges to the sufficiency of evidence is well settled. We apply a two part test, interpreting the evidence, if possible, to sustain the verdict and ascertaining whether the evidence and the inferences therefrom suffice to establish the defendant’s guilt beyond a reasonable doubt. E.g., State v. Merriam, 264 Conn. 617, 628-29, 835 A.2d 895 (2003).

In this case, the jury reasonably could have found the following facts. On September 27, 2000, the victim, Ernest Davis, was looking for a seller of crack cocaine. He was directed to a Saturn automobile containing three or more people, including the driver, Tremaine Jackson, and the defendant.

Jackson, accompanied by the defendant, left the automobile to sell the victim some crack cocaine for $50. The victim paid for the cocaine by giving Jackson a $100 bill and receiving $50 as change. After Jackson and the defendant had returned to the car, the defendant warned Jackson that counterfeit bills were being circulated. Examining the bill that the victim had given him, Jackson concluded that it was indeed counterfeit. Jackson and the defendant then located the victim on the street and called him over to the automobile to discuss the counterfeit bill. The victim denied that the bill was counterfeit but called the deal off, returning the crack cocaine and the $50 change to Jackson.

Jackson was still not persuaded of the authenticity of the $100 bill and kept it in order to be able to make a farther inquiry. Before pursuing that inquiry, however, soon after his conversation with the victim, he and the defendant overtook the victim. Both Jackson and the defendant left the automobile to confront the victim. Jackson then proceeded to punch and kick him. Someone threw a brick at the victim, seriously damaging his right eye. The defendant and Jackson drove off in Jackson’s automobile.

After the beating had ended, the victim called the police, who speedily apprehended Jackson and the defendant. The victim identified them as his assailants.

A

Agreement to Assault the Victim

The defendant maintains that this evidence was insufficient to establish his guilt of conspiracy to commit assault in the first degree because it did not establish that he had agreed to the commission of the assault of the victim. We disagree.

It is undisputed that, to sustain a conviction under § 53a-48 (a), the state had to establish, beyond a reasonable doubt, that the defendant had agreed with one or more persons to engage in criminal conduct. Specifically, the state had to show “not only that the conspirators intended to agree but also that they intended to commit the elements of the offense.” (Emphasis in original; internal quotation marks omitted.) State v. Sanchez, 75 Conn. App. 223, 240, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

The defendant claims that the state did not present sufficient evidence of his intent to agree or conspire with Jackson. Although he does not dispute that he accompanied Jackson before, during and after the assault of the victim, he maintains that the jury was required to believe that he was an innocent bystander who had joined Jackson only because he wanted Jackson to drive him home. We disagree.

The jury reasonably could have inferred an agreement from the incriminating circumstantial evidence that the state presented at trial. First, the defendant voluntarily got into an automobile with Jackson, a known drug dealer and lifelong friend. Second, the defendant and Jackson both got out of the automobile when the victim approached Jackson to buy crack cocaine. Third, the defendant himself first mentioned the possibility that the victim’s $100 bill might be counterfeit. Fourth, the defendant and Jackson both left the automobile to approach the victim just before the assault began.

This evidence provided a reasonable basis for the jury to have inferred that the defendant and Jackson had agreed to an assault of the victim even though the jmy also decided that the defendant had not himself committed the assault. The jury apparently discredited the victim’s assertion that the defendant had struck him with a brick and had participated in kicking him. Indeed, the jury could have believed the defendant’s testimony that he did not engage in the assault because of an injured leg. Nonetheless, the jury reasonably could have decided that the defendant was actively involved in the planning of the attack on the victim. The defendant has never claimed that Jackson would not have permitted him to back out if he had tried to do so. The jury was not required to believe the defendant’s testimony that he was simply “along for the ride.”

The defendant argues, however, that the jury could not reasonably have inferred his participation in an agreement to commit the assault on the victim because such an inference was held to be improper in two arguably analogous cases, State v. Green, 261 Conn. 653, 804 A.2d 810 (2002), and State v. Smith, 36 Conn. App. 483, 651 A.2d 744 (1994), cert. denied, 233 Conn. 910, 659 A.2d 184 (1995).

Those cases are, however, distinguishable because, in each, the underlying crime was an event that, with respect to each of those defendants, was spontaneous rather than planned. State v. Green, supra, 261 Conn. 671-73; State v. Smith, supra, 36 Conn. App. 487-88. By contrast, in this case, the jury reasonably could have found that the defendant participated, from the outset, in the planning of the assault on the victim to punish him for passing a counterfeit bill. Indeed, the defendant might reasonably be found to have precipitated the assault by raising the counterfeit bill issue.

We conclude, therefore, that the trial court properly rejected the defendant’s claim that the state failed to present sufficient evidence of an agreement between the defendant and Jackson to assault the victim. Even though there was no direct evidence of such an agreement, there was enough indirect evidence to permit the jury to infer that the defendant had agreed -with Jackson that Jackson would commit the assault.

B

Intent to Use a Dangerous Instrument

The defendant also claims that the state did not present sufficient evidence to prove that he planned to assault the victim with a dangerous instrument. Section 53a-59 (a) (1) makes such evidence an essential element of the crime of assault in the first degree with which the defendant was charged. We disagree with the defendant’s claim.

Pursuant to § 53a-59 (a) (1), “[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of ... a dangerous instrument . . . .” In this case, the two potential dangerous instruments used to beat the victim were a brick and the shod feet of the victim’s assailants. Because the long form information charging the defendant did not specify the precise dangerous instrument used in the assault, the verdict against the defendant can be sustained if a brick is a dangerous instrument.

Without denying that a brick intrinsically may be a dangerous instrument, the defendant maintains that it could not be so characterized in this case because Jackson did not bring the brick with him, but instead found it at the scene of the assault. The fortuity of finding a brick, according to the defendant, is inconsistent with the state’s argument of a preexisting agreement to assault the victim with a dangerous instrument. In the defendant’s view, use of the brick demonstrates that the assault resulted from independent and spontaneous conduct at the time of the assault rather than from an agreement to assault the victim.

We agree, however, with the state’s position that the jury reasonably could have inferred that Jackson and the defendant had agreed that the victim would be beaten up by using whatever dangerous instruments might appear at the scene. The jury reasonably could have inferred that the use of a brick was part of their larger plan to inflict serious injury on the victim. These inferences are supported by the immediacy with which the brick was found and used to attack the victim at the scene and by the kicking that subsequently ensued.

Again, the defendant’s conviction is not invalidated by the jury’s decision to acquit him of assault. That acquittal was a determination that the defendant had not himself engaged in beating the victim. It was not, however, a determination that the defendant had not agreed with Jackson that Jackson would administer the beating. The relevant requirement of our conspiracy statute, § 53a-48 (a), is met if a jury finds that “any one of [the conspirators] commits an overt act in pursuance of such conspiracy.” (Emphasis added.)

Thus, even though the jury concluded that the defendant was merely present at the scene of the assault, Jackson’s overt actions in committing the assault provided evidence for the defendant’s conviction of conspiracy to commit the assault. The defendant has not challenged the sufficiency of the evidence to establish that someone, most likely Jackson or perhaps another passenger in the car, assaulted the victim so as to cause him serious injury.

We conclude, therefore, that the record does not support either of the defendant’s challenges to the sufficiency of the evidence to convict him of the crime of conspiracy to assault as defined in §§ 53a-59 (a) (1) and 53a-48 (a). The jury reasonably could have found that the defendant agreed to a plan to assault the victim and that the plan contemplated the use of whatever dangerous instrument would be available to cany out the assault. The state did not have to establish that the defendant’s agreement with Jackson specified the precise manner in which the assault would be carried out. See State v. Coltherst, 263 Conn. 478, 499, 820 A.2d 1024 (2003).

II

COCONSPIRATOR NOT CHARGED

The defendant’s second claim raises an issue of law that is premised on the undisputed fact that the state has never charged Jackson, or anyone else, with the crime of acting as the defendant’s coconspirator. Historically, our Supreme Corut has construed § 53a-48 as a bilateral conspiracy statute that requires a showing of an agreement with another person. See State v. Ghrullon, 212 Conn. 195, 199-203, 562 A.2d 481 (1989). The defendant maintains that the conspiracy of which he was convicted was, in effect, a conspiracy of one, which our statute does not permit. We disagree.

The trial court denied the defendant’s motion for a judgment of acquittal as a matter of law. It held that, under State v. Colon, 257 Conn. 587, 778 A.2d 875 (2001), “one can be tried for conspiracy while others either are found not guilty or . . . are not indicted for the crime of conspiracy in the first instance.”

On appeal, the defendant renews his contention that our conspiracy statute does not authorize a criminal conviction of only one coconspirator. Because the issue he raises is one of law, our review is plenary. Hunnicutt v. Commissioner of Correction, 67 Conn. App. 65, 68-69, 787 A.2d 22 (2001). The defendant’s argument does not persuade us.

On several occasions, our Supreme Court has addressed the relationship between the crime of conspiracy and the role of the coconspirator in the commission of that crime. Although none of these cases is directly controlling, their reasoning supports the judgment of the trial court.

Our point of departure is that, in a joint trial of two alleged coconspirators, acquittal of one requires acquittal of the other. Under those circumstances, a conviction of conspiracy constitutes a legal impossibility. State v. DeCaro, 252 Conn. 229, 244 n.13, 745 A.2d 800 (2000) ; State v. Abraham, 64 Conn. App. 384, 393, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001) .

In the same vein, our Supreme Court has held that a conviction of conspiracy requires the identification of a coconspirator other than a police officer engaged in his official duties. State v. Grullon, supra, 212 Conn. 203. Grullon expressly rejected the unilateral conception of conspiratorial relationships that is exemplified by § 5.03 of the Model Penal Code. American Law Institute, Model Penal Code and Commentaries (1985) part I, § 5.03, comment (2) (b), pp. 398-402.

In its most recent directly relevant opinion; State v. Colon, supra, 257 Conn. 587; our Supreme Court seems to have backed away from a bright line distinction between unilateral and bilateral approaches to conspiracy law. It overruled State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989), which had held that the acquittal of an alleged coconspirator in a separate proceeding barred the conspiracy conviction in the case before it. Id., 252-53. As the court explained in Colon, “[t]he acquittal of a codefendant in a separate trial could . . . [result] from a multiplicity of factors completely unrelated to the actual existence of a conspiracy . . . for example, certain evidentiary issues that might render evidence inadmissible in one trial but not in another. ... In separate trials, [t]he evidence presented to the juries and the manner in which that evidence is presented may be significantly different and certainly will never be identical. ... As a result, [d]ifferent juries may rationally come to different conclusions, especially when differing evidence is presented.” (Citations omitted; internal quotation marks omitted.) State v. Colon, supra, 602.

A fair reading of our Supreme Court’s jurisprudence concerning the law of conspiracy compels the conclusion that the court now interprets our conspiracy statute broadly. Although the court has not totally adopted a unilateral approach in its interpretation of § 53a-48 (a), in Colon it held that “§ 53a-48 (a) can be interpreted unilaterally in those cases in which alleged coconspira-tors are tried separately based on independent evidence of the crime of conspiracy.” (Emphasis added.) Id., 589. Nonetheless, the court has not yet decided whether the validity of a conviction of conspiracy depends upon the filing of a charge of conspiracy against an alleged cocon-spirator.

This court has, however, come close to deciding this question in favor of the state. In Crump v. Commissioner of Correction, 68 Conn. App. 334, 791 A.2d 628 (2002), we denied an inmate’s ineffective assistance of counsel claim arising from his attorney’s failure to object to the charge of conspiracy to commit murder when his coconspirator was not charged with that crime and was convicted only of manslaughter in the first degree. We reasoned that “[b]ecause [the petitioner’s coconspirator] was convicted of manslaughter, the petitioner cannot show that his coconspirator lacked criminal intent. The fact that [the petitioner’s coconspirator] was not charged with conspiracy does not bar the state from bringing conspiracy charges against the peti- tionerorvoidhis conviction of conspiracy.” (Emphasis added.) Id., 340. Other cases in this court have taken the same position.

Guided by these precedents, we must decide whether, under the facts of this case, the defendant’s conviction should be upheld because, in effect, our conspiracy case law has come to accept a unilateral interpretation of our conspiracy statute. “The unilateral approach makes it immaterial to the guilt of a conspirator whose culpability has been established that the person or all of the persons with whom he conspired have not been or cannot be convicted. . . . Under the Model Code, failure to prosecute the only co-conspirator . . . would not affect a defendant’s liability.” (Emphasis added.) Model Penal Code and Commentaries, supra, § 5.03, pp. 399, 401-402.

We agree with the trial court and the state that, under the broad approach to conspiracy law that is exemplified by State v. Colon, supra, 257 Conn. 587, the defendant’s conviction must stand. It is legally irrelevant to the defendant’s conviction that the state never charged Jackson as the defendant’s coconspirator.

III

JURY INSTRUCTION ON FLIGHT FROM THE SCENE

The defendant’s final claim challenges the trial court’s jury instructions regarding his flight from the scene of the crime. He argues that (1) the evidence presented at trial did not provide a factual basis for an instruction on flight and (2) the instruction improperly occasioned the court’s marshaling of evidence in the state’s favor. To prevail on this claim, the defendant must establish that the court abused its discretion. See State v. Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998). He has failed to do so.

The defendant’s first claim, although properly preserved, misstates the nature of instructions about flight and consciousness of guilt. The defendant claims that, because he testified that he had left the scene of the assault solely because he expected Jackson to drive him home, the court should not have given the jury any instruction on flight. The juiy also heard, from the victim, that the defendant had left the scene “in a tan colored car . . . that was later stopped.”

The court instructed the jury that, if it considered the victim’s testimony to be evidence of flight, then the jury could decide that such flight indicated the defendant’s consciousness of guilt. This instruction was proper under the holding of State v. Feliciano, 74 Conn. App. 391, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003). “[F]light, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. . . . The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.” (Internal quotation marks omitted.) Id., 400.

The defendant’s alternate objection to the charge on flight asserts that the court used that part of its charge to marshal the evidence presented by the state. We do not reach the merits of this claim. Procedurally, the defendant did not, at trial, voice this objection to the charge. In addition, the defendant’s appellate brief does not discuss the merits of the issue of marshaling under the circumstances of this case. “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Kalas v. Cook, 70 Conn. App. 477, 481, 800 A.2d 553 (2002).

We conclude, in sum, that the trial court properly rendered a judgment that the defendant was guilty of conspiracy to commit assault. The judgment was factually supported by the evidence presented to the jury and legally valid under our Supreme Court’s broad approach to conspiracy law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . .
      General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The victim was taken first to Hartford Hospital and then to the University of Connecticut Medical Center. His injured eye was surgically removed.

       General Statutes § 53a-3 (7) defines “dangerous instrument” in relevant part as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .”

       Because we agree with the state’s position, we need not consider the merits of the state’s alternate argument arising out of the lesser included offense doctrine.
      The state also argues in its brief that the defendant is challenging the verdict for factual and legal inconsistency. The defendant did not raise that claim in his brief or at oral argument. We therefore need not discuss it.

       After the incident, Jackson was charged with assault in the first degree and operating a motor vehicle without a license. Subsequently, as part, of a plea agreement, Jackson pleaded guilty to the assault charge.

       An even more recent case on conspiracy law is State v. Coltherst, supra, 263 Conn. 478. Although Coltherst did not address the impact on one conspirator of the failure to charge the other, it broadened our law of conspiracy in a related respect. “When the defendant has played a necessary part in setting in motion a discrete course of criminal conduct ... he cannot reasonably complain that it is unfair to hold him vicariously liable ... for the natural and probable results of that conduct that, although he did not intend, he should have foreseen.” (Citation omitted; internal quotation marks omitted.) Id., 499.

       The proposition that a defendant can be convicted of conspiracy even though no other coconspirator has been so charged is supported by several references in pre-Colon decisions by this court. Colon’s holding was presaged in State v. Shaw, 24 Conn. App. 493, 494 n.1, 589 A.2d 880 (1991) (“[cjonspirators need not all be charged in order to sustain a conviction of one of them for conspiracy”). See also State v. Abraham,, supra, 64 Conn. App. 394 n.11; Evans v. Commissioner of Correction, 47 Conn. App. 773, 777, 709 A.2d 1136, cert. denied, 244 Conn. 921, 714 A.2d 5 (1998).
      Courts in other jurisdictions have come to the same conclusion. See, e.g., United States v. Barker Steel Co., 985 F.2d 1123, 1128-29 (1st Cir. 1993); United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986); Ng Pui Yi v. United States, 352 F.2d 626, 633 (9th Cir. 1965); United States v. Gordon, 242 F.2d 122, 125 (3d Cir.), cert. denied, 354 U.S. 921, 77 S. Ct. 1378, 1 L. Ed. 2d 1436 (1957); Gardner v. State, 286 Md. 520, 525, 408 A.2d 1317 (1979); State v. Null, 247 Neb. 192, 203, 526 N.W.2d 220 (1995); Commonwealth v. Byrd, 490 Pa. 544, 553-54, 417 A.2d 173 (1980); State v. Shears, 68 Wis. 2d 217, 240, 229 N.W.2d 103 (1975); Miller v. State, 955 P.2d 892, 897 (Wyo. 1998).


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    WILLIAM D. MCCART ET AL. v. CITY OF SHELTON ET AL.
    (AC 23694)
    Schaller, McLachlan and Berdon, Js.

      Argued October 22, 2003 —
    officially released January 13, 2004

      Michael Stanton Hillis, for the appellants (plaintiffs).

      Ramon S. Sous, assistant corporation counsel, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiffs, William D. McCart and seventy-two other individuals, appeal from the judgment of the trial court rendered after the court granted the motion to strike for improper joinder filed by the defendants, the city of Shelton, its department of public works and its water pollution control authority. The plaintiffs claim that the court improperly granted the defendants’ motion to strike. We affirm the judgment of the trial court.

The relevant facts are as follows. The plaintiffs are seventy-three property owners residing in the city of Shelton. No plaintiff holds an interest in all of the properties. On March 1,2002, the defendants levied a benefit assessment against the plaintiffs for the installation of sewers. The assessments ranged from approximately $7000 to $10,000.

The plaintiffs’ complaint claimed that the “sewer assessments exceed the value of the respective special benefits accruing to the respective properties of the plaintiffs by virtue of [the] sewer construction.” The complaint also stated that the defendants used the wrong method of valuation and that the plaintiffs were jointly aggrieved because of the improper method of assessment. The plaintiffs asked the court either to reduce or, in the alternative, to void the assessments.

Relying on Practice Book § 10-39 (4), the defendants filed a motion to strike the plaintiffs’ complaint for improper joinder. The defendants’ primary argument was that the plaintiffs failed to allege a common question of law or fact, which Practice Book § 9-4 requires for proper joinder. The court granted the defendants’ motion. The plaintiffs filed a motion to reargue, which was denied, and the court rendered judgment for the defendants. This appeal followed.

“We begin our analysis by setting forth the applicable standard of review. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Citation omitted; internal quotation marks omitted.) Doe v. Board of Education, 76 Conn. App. 296, 299-300, 819 A.2d 289 (2003).

“All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise . . . .” Practice Book § 9-4. “Whenever any party wishes to contest ... (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts . . . that party may do so by filing a motion to strike the contested pleading or part thereof.” Practice Book § 10-39 (a). “The exclusive remedy for misjoinder of parties is by motion to strike.” Zanoni v. Hudon, 42 Conn. App. 70, 73, 678 A.2d 12 (1996).

Both parties rely principally on Bertelson v. Norwich, Superior Court, judicial district of New London at Norwich, Docket No. 119199 (October 30, 2001), in which the court denied the defendant’s motion to strike. In that case, the plaintiffs pleaded that the defendant’s method of allocating sewer assessments, a “cost-sharing” method, was improper because it intended “to recoup the cost of the project from the properties involved, rather than assessing the properties involved for the actual benefit provided them by the sewer project.” Id.

The plaintiffs argue that a common question of fact exists because all of the individual plaintiffs were aggrieved by the same action, the assessment, and by the same defendants, the city of Shelton and its municipal entities. The plaintiffs miss the essential point, however. Although it is unchallenged that the defendants were responsible for the assessment and that the assessment did take place, the gravamen of the plaintiffs’ complaint is that the assessment was too high. Thus, the real question is whether, in the case of each individual plaintiff, the method of assessment was correctly applied under the particular facts to reach a proper result.

The individual differences between the plaintiffs, i.e., the differences in their properties, go to the very heart of the issue — whether the defendants reached the correct result with the method of assessment. Cf. Bertelson v. Norwich, supra, Superior Court, Docket No. 119199 (fact in dispute for each party, whether appropriate formula applied to reach valuation, was common to each plaintiff). To answer that question, each of the plaintiffs must provide individual evidence. The plaintiffs’ common facts are tangential, and the crucial facts differ for each plaintiff. There is no common question of fact or law. Therefore, the court properly granted the defendants’ motion to strike the plaintiffs’ complaint for improper joinder.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs have presented contradictory positions. In their pleadings, they alleged that the defendants “used the wrong method to determine the value of the benefit to the properties [and that] [t]he plaintiffs are jointly aggrieved because of the use of an improper method of assessment.” At oral argument, however, they specifically disclaimed that they were attacking the method used to calculate the assessments. Further, the plaintiffs’ counsel conceded, as he must, that to prove his case, he would have to present evidence, property by property, with the facts being different for each. The representations at oral argument, as well as the relief requested by the plaintiffs, a reduction in the assessments, dictate that the plaintiffs actually were challenging the results of the method of calculating assessments, i.e., the amounts of the assessments.


author: HENNESSY, J.

text:
    IN RE HALEY B.

    (AC 22274)
    Dranginis, West and Hennessy, Js.

      Argued October 16, 2003 —
    officially released January 13, 2004

      Peter T. Poulos, with whom was David E. Mar-melstein, for the appellant (intervening respondent).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       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

HENNESSY, J.

The intervening respondent, the maternal grandmother of Haley B., appeals from the judgment of the trial court denying her motion to transfer guardianship or custody of her minor granddaughter from the petitioner, the commissioner of children and families (commissioner), to her. On appeal, the respondent claims that (1) the decision was not based on facts or on a reasonable interpretation of the evidence, (2) the court failed to apply the appropriate legal standard to the facts of the case and (3) the court abused its discretion by improperly relying on hearsay statements. We affirm the judgment of the trial court.

The underlying facts that gave rise to this appeal are set forth in detail in In re Haley B., 262 Conn. 406, 408-11, 815 A.2d 113 (2003). Additional facts relevant to the disposition of this appeal are as follows. In April, 2001, the court heard six days of testimony from the respondent, and seven other witnesses, and was presented with thirty exhibits. In its July, 2001 memorandum of decision, the court stated that “[the respondent] did not satisfy the court that her long pattern of substituting her own judgment against an expressed agreement will change. Because of this, the court finds that [the respondent] failed to meet her burden that Haley’s best interests require the physical return of the child.” The court then denied the respondent’s motion to transfer guardianship or custody. This appeal followed.

I

Generally, questions of custodial placement are resolved by a determination of “what is in the best interest of the child ... as shown by a fair preponderance of the evidence.” (Citations omitted.) In re Shyina B., 58 Conn. App. 159, 163, 752 A.2d 1139 (2000). “The trial court is vested with broad discretion in determining what is in the child’s best interests.” (Internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 209, 796 A.2d 1141 (2002). In this case, sufficient evidence exists to support the court’s decision.

A

The respondent’s first claim is that the court’s decision was not based on facts or on a reasonable interpretation of the evidence. We disagree.

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Michael A., 47 Conn. App. 105, 109, 703 A.2d 1146 (1997).

In this case, the court found that the respondent on several occasions had failed to comply with guidelines issued by the department of children and families (department) limiting visitation between Haley and her parents. The court stated that “[the respondent] brought the baby to paternal grandmother’s house for a Christmas visit, knowing [that the child’s] mother would be there. She arranged to meet mother for lunch with the baby following supervised visits. She made arrangements for her daughter to attend a family wedding so she could spend time with Haley. She then failed to disclose or misrepresented these facts to [the department]. She also failed to seek prior approval for any of these acts and, in some cases, took them despite [the department’s] direct prohibition. [The respondent] even acknowledged lying to her husband about some of these visits . . . .’’In addition, the court found that the respondent’s testimony regarding Haley’s alleged exposure to a convicted sex offender “[was] not consistent or fully credible. This is a further example of [the respondent’s] lack of credibility and misrepresentations when it comes to Haley and Haley’s parents.” “It is well established that the trial court is in the best position to determine the credibility of witnesses and the weight to be accorded their testimony.” (Internal quotation marks omitted.) In re Cynthia A., 8 Conn. App. 656, 660, 514 A.2d 360 (1986). Our review of the record reveals that the factual findings made by the court were supported by the record and, therefore, were not clearly erroneous.

B

The respondent next claims that the court failed to apply the appropriate legal standard to the facts of the case. The argument put forth in support of her claim is that the court’s decision, that guardianship of the child remain with the commissioner, is against the best interest of Haley B. Consequently, the argument does not correspond with the claim as phrased. We will therefore analyze the claim as whether the court acted in the best interest of Haley B. On the basis of our review of the record, we disagree with the respondent.

To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster “the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment.” (Internal quotation marks omitted.) In re Alexander C., 60 Conn. App. 555, 559, 760 A.2d 532 (2000). We have stated that when making the determination of what is in the best interest of the child, “[t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citation omitted; internal quotation marks omitted.) Id.

We conclude, on the basis of the evidence presented to the court, that the court reasonably concluded that it was in the best interest of Haley B. that guardianship remain with the commissioner. Accordingly, the court did not abuse its discretion in denying the respondent’s motion for transfer of guardianship or custody.

II

The respondent’s final claim is that the court improperly relied on hearsay to reach its decision. We find that the respondent has abandoned that issue because she has failed to offer any analysis or authority to support her claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) In re Hector L., 53 Conn. App. 359, 365 n.5, 730 A.2d 106 (1999). We therefore decline to review the claim because it is briefed inadequately.

The judgment is affirmed.

In this opinion the other judges concurred.

       The intervening respondent is the only respondent who is a party to this appeal. For convenience, we therefore refer to her as the respondent.

       See part II.


author: McLACHLAN, J.

text:
    MICHAELA I. ALEXANDRU v. PATRICIA M. STRONG
    (AC 23895)
    Foti, Bishop and McLachlan, Js.

      Argued October 14, 2003 —
    officially released January 13, 2004

      Michaela I. Alexandru, pro se, the appellant (plaintiff).

      James V. Somers, with whom were Regen OMalley and, on the brief, Thomas J. Hagarty, for the appel-lee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Michaela I. Alexandru, appeals from the summary judgment rendered by the trial court on each of her five claims in favor of the defendant, Patricia M. Strong, the plaintiffs former attorney. We affirm the judgment of the trial court.

This action arises out of the defendant’s legal representation of the plaintiff in a federal lawsuit against the plaintiffs former employer, Northeast Utilities Service Company (Northeast Utilities), for the alleged sexually discriminatory and retaliatory treatment of the plaintiff by several of its employees. To establish the terms of their attorney-client relationship, the plaintiff and defendant entered into a retainer agreement, dated December 5, 1994, which provided, inter alia, that the defendant would represent the plaintiff in connection with “[c]laims arising from [her] employment with Northeast Utilities . . . .”

I

FEDERAL ACTION

In accordance with their attorney-client relationship, the defendant, on March 14, 1995, instituted an action in the United States District Court for the District of Connecticut against Northeast Utilities, asserting both federal claims under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act of 1990 (ADA), and pendent state law claims for breach of the implied covenant of good faith and fair dealing, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and negligent supervision.

By motion dated May 9, 1997, the defendant sought to withdraw as plaintiffs counsel, citing a deterioration of the attorney-client relationship. The District Court denied that motion and admonished the plaintiff to cooperate with the defendant. On November 13, 1997, the defendant again filed a motion to withdraw as counsel due to an irreparable deterioration of the attorney-client relationship. In connection with the second motion to withdraw, the defendant filed supporting documentation to substantiate her assertions about the declining relationship. The District Court subsequently granted the defendant’s second motion to withdraw, stating that its decision was based on both the documentation filed by the defendant and the plaintiffs “representation to the court that she did not oppose the motion to withdraw and would be seeking new counsel.”

That same day, the court granted Northeast Utilities’ motion for partial summary judgment on the plaintiffs claims of negligent infliction of emotional distress, intentional infliction of emotional distress and negligent supervision. In its ruling, the court determined that the plaintiffs negligent infliction of emotional distress and negligent supervision claims were time barred by General Statutes § 52-584 because they were filed more than two years after November 6, 1992, the date of the plaintiffs termination from Northeast Utilities.

The court further determined that even if the negligent infliction of emotional distress claim was not time barred, to the extent that the claim arose from events occurring during the plaintiffs employment with Northeast Utilities, the claim would also be barred by the exclusivity provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., which, where applicable, provides the sole means available to a plaintiff for recovery in common-law tort against an employer. See, e.g., Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). Similarly, the court determined that the exclusivity provision also barred the plaintiffs claim for intentional infliction of emotional distress.

Following the court’s order permitting the defendant to withdraw as counsel and its rendering of partial summary judgment in favor of Northeast Utilities, the plaintiff represented herself pro se until May 21, 1999, when the jury found in favor of Northeast Utilities on the two remaining Title VII claims. As no appeal was filed, the federal court judgment was final.

II

MALPRACTICE ACTION

On November 22, 1999, the plaintiff initiated this action in five counts against the defendant in connection with the defendant’s representation of her in the federal action against Northeast Utilities. The plaintiffs amended complaint alleges (1) legal malpractice (count one) and (2) breach of contract (count two), both based on the defendant’s failure to assert her negligent infliction of emotional distress claim in a timely manner, resulting in the District Court’s rendering of summary judgment as to that claim in favor of Northeast Utilities. The latter three counts are predicated on the defendant’s withdrawal as counsel and the supporting documentation filed by the defendant. They assert that (3) the defendant’s withdrawal constituted a breach of the implied covenant of good faith and fair dealing inherent in the parties’ retainer agreement, (4) the documentation accompanying the second motion to withdraw contained statements that constituted an intentional infliction of emotional distress, and (5) the second motion to withdraw itself contained false and defamatory statements about the plaintiff.

On April 26, 2001, the defendant filed a motion for summary judgment on all five counts. The court, after reargument, granted the motion as to all counts. As to the plaintiffs legal malpractice claim, the court granted the motion in favor of the defendant on two grounds. The court determined first that the claim was time barred by General Statutes § 52-577 because the alleged negligent act or omission had occurred more than three years prior to the filing of the present action. The court also determined that the plaintiff was unable to prove the elements of a cause of action for legal malpractice, namely, causation and damages. The court recognized that to succeed on her legal malpractice claim, the plaintiff had to demonstrate that she would have succeeded on the underlying claim of negligent infliction of emo-tionai distress against Northeast Utilities had the defendant filed it timely. The court determined that the plaintiff was collaterally estopped from establishing that she would have succeeded on the emotional distress claim because the factual allegations underlying that claim were identical to those underlying the plaintiffs Title VII claims, which were litigated and resolved by the jury in favor of Northeast Utilities.

As to the plaintiffs breach of contract claim, the court determined that it was, in fact, a negligence claim couched in the language of contract and, thus, also was barred by the statute of limitations that precluded the plaintiffs legal malpractice claim. The court granted the motion for summary judgment on the plaintiffs claim of breach of the implied covenant of good faith and fair dealing because the plaintiff failed to offer any evidence that the defendant had acted in bad faith when she withdrew as counsel. As to the plaintiffs claims of intentional infliction of emotional distress and defamation, the court found that the comments at issue had been made to a judge in the context of a judicial proceeding and were therefore absolutely privileged. The appeal followed.

On appeal, the plaintiff asserts six claims. The first two pertain to the court’s granting of the motion for summary judgment in favor of the defendant on her legal malpractice claim, and the final four claims challenge the granting of the motion for summary judgment on her remaining four claims against the defendant. We affirm the judgment of the trial court.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Alexandra, v. Dowd, 79 Conn. App. 434, 437, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003).

Ill

LEGAL MALPRACTICE

The plaintiff claims that the court improperly granted the motion for summary judgment on her legal malpractice claim because (1) the applicable statute of limitations was tolled by the continuing course of conduct rule and (2) the doctrine of collateral estoppel did not preclude her from establishing that she would have succeeded on her underlying claim for negligent infliction of emotional distress. Although it appears that the plaintiff may be correct that the court did not conduct a proper analysis of the statute of limitations issue, she cannot prevail on her claim because we determine that the court was correct with respect to the issue of collateral estoppel.

To recover on a legal malpractice claim, the plaintiff must establish: “(1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages. ... To prove causation and damages . . . the plaintiff must establish that the defendant's] failure to file an action . . . within the statute of limitations period caused [the plaintiff] harm because [the plaintiffs action] is now time barred.” (Citation omitted.) Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998). “An issue of causation ... is whether the [claim] could have been pursued.” 4 R. Mailen & J. Smith, Legal Malpractice (5th Ed. 2000) § 30-17, p. 495. “If the underlying [claim] was never tried, the client essentially has a double burden of proof. First, the client must show that the attorney was negligent. Second, the client must establish that the underlying claim was recoverable and collectible.” Id. In other words, to succeed on her claim of malpractice for the defendant’s alleged failure to assert her emotional distress claim against Northeast Utilities in a timely manner, the plaintiff must establish that she would have been successful in pursuing that claim but for the defendant’s omission.

The court correctly concluded that the plaintiff was collaterally estopped from establishing that she would have been successful in pursuing her emotional distress claim. “Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Emphasis in original; internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). “Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” (Internal quotation marks omitted.) Pitchell v. Williams, 55 Conn. App. 571, 578, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000).

Following the District Court’s granting of the motion for partial summary judgment in favor of Northeast Utilities, the plaintiff proceeded, pro se, on her two remaining Title VII claims. Those claims, the plaintiff’s allegations of sexual harassment and retaliatory conduct by employees of Northeast Utilities, were predicated on the same facts as was the emotional distress claim. On May 21, 1999, the jury found in favor of Northeast Utilities on both Title VII claims. By special verdict, the jury determined that the plaintiff had failed to prove, by a preponderance of the evidence, that her supervisors sexually harassed her or subjected her to abusive, intimidating treatment. It is not disputed that those factual issues were fully and fairly litigated in the federal action and that the jury’s determination of those issues was necessary to its verdict in favor of Northeast Utilities. See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 466.

Thus, to assert a viable malpractice claim in this case, the plaintiff must demonstrate that she would have been successful in proving the factual allegations that her supervisors sexually discriminated and retaliated against her, and that such conduct caused her emotional distress. See 4 R. Mallen & J. Smith, Legal Malpractice, supra, p. 495. The factual issue of whether such conduct ever occurred, however, already has been litigated and decided against her in the context of the Title VII claims. The collateral estoppel doctrine bars her from relitigat-ing those factual issues.

Accordingly, we agree with the court that the plaintiff is unable to maintain a cause of action for legal malpractice stemming from the defendant’s failure to assert her emotional distress claim in a timely manner.

IV

BREACH OF CONTRACT

The plaintiff next claims that the court improperly characterized her breach of contract claim as a mere restatement of her legal malpractice claim and therefore improperly determined that the claim was barred by the negligence statute of limitations. Although we agree with the court’s granting of the motion for summary judgment as to that claim, we do so for a different reason and, accordingly, affirm the judgment on an alternate ground.

In her amended complaint, the plaintiff alleged that in failing to file her negligent infliction of emotional distress claim against Northeast Utilities within the two year statute of limitations period, the defendant breached the terms of the parties’ retainer agreement. The factual allegations giving rise to the claim for breach of contract essentially mirror those outlined in the malpractice claim, to wit, that the defendant agreed to advance the plaintiffs claims against Northeast Utilities in federal District Court, but failed to assert the negligent infliction of emotional distress claim in a timely manner, resulting in the District Court’s granting of the motion for summary judgment as to that claim in favor of Northeast Utilities. The court found that while purporting to allege a contract cause of action, the claim essentially alleged a breach of the standard of professional care and was, therefore, more appropriately characterized as a legal malpractice claim. The court further concluded that, as a malpractice claim, the count was time barred by the three year statute of limitations set forth in § 52-577.

We agree with the court’s interpretations of the claim as a negligence claim couched in contractual language. Our analysis is guided by our recent decision in Caffery v. Stillman, 79 Conn. App. 192, 829 A.2d 881 (2003). In that case, the plaintiff brought an action against his former attorney for legal malpractice and breach of contract, on the basis of alleged deficient representation in a workers’ compensation matter. Id., 194. The trial court rendered summary judgment in favor of the defendant on both counts. Id., 195. In affirming the court’s judgment as to the breach of contract claim, we considered the issue of what construction to put on a pleading that purports to sound in contract yet contains allegations rooted in negligence. We stated that although “one may bring against an attorney an action sounding in both negligence and contract . . . one [cannot] bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract.” (Citations omitted.) Id., 197.

Even when we accord due regard to the well established policy of the Connecticut courts to be solicitous of pro se litigants and to construe the rules of practice liberally in favor of such parties; see Hill v. Williams, 74 Conn. App. 654, 656, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003); we agree with the court that the pleading at issue was no more than a negligence claim cloaked in contractual language. Notwithstanding that embedded in the language of the plaintiffs claim are the contractual rudiments of promise and breach, “[w]here the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services.” Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985).

Although we agree with the court’s characterization of the plaintiffs second count as a restatement of her legal malpractice claim, we do not agree with the court’s subsequent determination to grant the motion for summary judgment in favor of the defendant on that claim on the ground that it necessarily was barred by the negligence statute of limitations. See DeLeo v. Nus-baum, 263 Conn. 588, 821 A.2d 744 (2003). We instead affirm the judgment on the ground that, as a restatement of her legal malpractice claim, the second count similarly was barred by the doctrine of collateral estoppel, which matter was treated in full in part III.

V

IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

The plaintiff also claims that the court improperly granted the motion for summary judgment in favor of Northeast Utilities on her claim for breach of the implied covenant of good faith and fair dealing. Specifically, the plaintiff asserts that the defendant’s withdrawal as counsel in the underlying action against Northeast Utilities amounted to a breach of the implied covenant of good faith and fair dealing inherent in the parties’ retainer agreement.

“Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 564, 733 A.2d 197 (1999). To constitute a breach of that covenant, the acts by which a defendant allegedly impedes the plaintiffs right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. See, e.g., Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996). “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237-38, 618 A.2d 501 (1992). Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient. See, e.g., Feinberg v. Berglewicz, 32 Conn. App. 857, 862, 632 A.2d 709 (1993).

The court determined that the plaintiff failed to offer any evidence that the defendant had acted in bad faith when she withdrew from representing the plaintiff. We agree.

The record is devoid of any evidence capable of supporting the conclusion that the defendant acted with a sinister motive or a dishonest purpose when she withdrew as the plaintiffs counsel. The record discloses that the defendant substantiated her motion to withdraw through the serious concerns she had that she would be unable to represent the plaintiff adequately, thereby indicating a prudent exercise of her rights and obligations under the rules of professional responsibility. See Matza v. Matza, 226 Conn. 166, 176-77, 627 A.2d 414 (1993). Furthermore, the defendant’s withdrawal was undertaken with the permission of the District Court and in accordance with the relevant court mies and procedures. Also, because the plaintiff represented to the court that she did not oppose the withdrawal and would be seeking new counsel, it is disingenuous for her to now seek reprieve from the act to which she expressly had acquiesced. There is no basis to conclude that the defendant’s withdrawal was an act motivated by a sinister intention to mislead or to deceive the plaintiff, and we accordingly conclude that the court properly granted the motion for summary judgment in favor of the defendant on the plaintiffs claim for breach of the implied covenant of good faith and fair dealing.

VI

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND DEFAMATION

The plaintiff last claims that the court improperly granted the motion for summary judgment in favor of the defendant on her claims of intentional infliction of emotional distress and defamation. Those claims were predicated on comments made by the defendant in both her second motion to withdraw and in the supporting documentation. The court granted the motion for summary judgment as to those claims on the ground that the defendant’s representations to the District Court about the plaintiff were absolutely privileged and could not give rise to liability for either emotional distress or defamation. We agree.

“It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. . . . The privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding.” (Citation omitted; internal quotation marks omitted.) Alexandru v. Dowd, supra, 79 Conn. App. 438; see also Petyan v. Ellis, 200 Conn. 243, 245-46, 251-52, 510 A.2d 1337 (1986); 3 Restatement (Second), Torts § 586, comment (a), p. 247 (1977). That absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous. See Petyan v. Ellis, supra, 253.

Here, it is undisputed that the comments uttered and statements published by the defendant were articulated for the purpose of explaining the deteriorating attorney-client relationship and her reasons for wanting to withdraw. As those representations were essential to and published in the course of a judicial proceeding, they are protected by an absolute privilege. See Alexandru v. Dowd, supra, 79 Conn. App. 438.

We also note that the defendant was circumspect in her dissemination of unflattering statements about the plaintiff. The record reflects that the defendant submitted her motion to withdraw in camera to the District Court judge, and that copies of the motion and supporting documentation were provided only to the District Court and the plaintiff, thus ensuring that the statements were made known to as narrow an audience as possible.

In reaching our conclusion, we also are mindful of the strong public policy that underlies the absolute privilege. Our Supreme Court has emphasized the importance of cultivating a judicial process that encourages participants in legal proceedings to speak freely and without fear that they might later be subjected to judicial scrutiny or tort liability. See, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991).

We accordingly conclude that the court correctly determined that the defendant’s representations were protected by an absolute privilege and, therefore, properly granted the defendant’s motion for summary judgment as to the plaintiffs claims for intentional infliction of emotional distress and defamation.

The judgment is affirmed.

In this opinion the other judges concurred.

       See 42 U.S.C. § 2000e et seq.

       See 42 U.S.C. § 12101 et seq.

       During discoveiy, the District Court had granted partial summary judgment in favor of Northeast Utilities as to the ADA claim and a portion of the defamation claim.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . except that no such action may be brought more than three years from the date of the act or omission complained of . . .

       That provision provides in relevant part that “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as provided under this chapter . . . .” General Statutes (Rev. to 1991) § 31-284 (a), as amended by Public Acts 1991, No. 91-32, § 7.
      Although the act was amended, effective July 1, 1993, to permit recovery for emotional distress in common-law tort by excluding from the definition of “personal injury” a “mental or emotional impairment,” all of the plaintiffs allegations involved conduct occurring prior to Jrrly 1, 1993, and, therefore, the act as it existed prior to the 1993 amendment is applicable to the plaintiffs claims.

       The court noted that the exclusivity provision would only have barred the plaintiffs allegations of emotional distress arising from events prior to her receipt of the November 6,1992 termination letter from Northeast Utilities. As the plaintiffs federal complaint could be construed to allege tortious conduct occurring after her receipt of the termination letter and during the termination process itself, the exclusivity provision would not have barred the portions of the plaintiffs emotional distress claims that were predicated on those allegations.

       General Statutes § 52-577 provides in relevant part that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The court specifically determined that because the statute of limitations governing the plaintiffs negligent infliction of emotional distress claim against Northeast Utilities ran on February 5, 1995, that date constituted the date of the negligent act or omission, i.e., the defendant’s alleged failure to assert the claim by that date, for purposes of calculating the statute of limitations period for the plaintiffs legal malpractice claim. Accordingly, the court determined that the plaintiff had until February 5, 1998, to assert her malpractice claim against the defendant. Because it was not asserted until November 5, 1998, it was untimely.

       The plaintiff asserts a seventh claim on appeal, namely, that the court improperly concluded that the exclusivity provision of the act barred her negligent infliction of emotional distress claim against Northeast Utilities. As the court did not grant the motion for summary judgment on that ground and, in fact, explicitly rejected it, we do not address it.

       It is still not clear that the plaintiff would prevail on the statute of limitations argument in any event. Although the law had been unsettled when the court rejected the plaintiffs argument that the continuing course of conduct doctrine tolled the statute of limitations, it has since been clarified. According to the continuous representation doctrine, adopted by our Supreme Court in DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (2003), the statute of limitations period for a legal malpractice action may be tolled until the termination of the attorney-client relationship if the plaintiff can show (1) that the defendant continued to represent the plaintiff with regard to the same underlying matter and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate harm allegedly caused by that malpractice during the continued representation period. Id., 597. On the basis of the record before us, it is doubtful that the plaintiff could satisfy the second prong of that test.

       Both the Title VII claims and the emotional distress claim incorporated by reference paragraphs one through forty-four of the federal complaint, which set forth the factual allegations common to all of the plaintiffs claims against Northeast Utilities.

       As stated previously, the retainer agreement provided that the plaintiff retained the defendant to represent her in connection with “[c]laims arising from [her] employment with Northeast Utilities . . . ."

       See footnote 10.

       See rule 15 of the Local Rules of Civil Procedure for the United States District Court for the District of Connecticut, which provides in relevant part that counsel may withdraw “only by leave of Court on motion duly noticed, and [motions] shall not be granted except upon a showing that other counsel has appeared or that the party has elected to proceed pro se, and that the party whose counsel seeks to withdraw has received actual notice . . . .”

       Courts in other jurisdictions similarly have rejected claims against attorneys who have withdrawn as counsel with the permission of the court. See, e.g., Washington v. Rucker, 202 Ga. App. 888, 415 S.E.2d 919 (1992) (finding plaintiffs malpractice claim against former attorney for withdrawing as counsel in compliance with applicable rules was not justiciable claim); Prestage v. Clark, 723 So. 2d 1086 (La. App. 1998) (attorney not negligent when client knew counsel had sought to withdraw from representation and client had been fully advised of probable consequences of not obtaining professional help), cert. denied, 739 So. 2d 800 (La. 1999); Wood v. Parker, 901 S.W.2d 374 (Term. App. 1995) (affirming granting of motion for summary judgment on malpractice claim predicated on attorney’s withdrawal as counsel where attorney complied with all ethical considerations and disciplinary rules).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. FLORENCIO P. PUNSALAN, JR.
    (AC 22917)
    Foti, West and McDonald, Js.

      Argued October 28, 2003 —
    officially released January 13, 2004

      Patrick S. Bristol, with whom, on the brief, was Hubert J. Santos, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Florencio P. Punsalan, Jr., appeals from the judgment of the trial court, rendered after he entered a plea of guilty, convicting him of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, sexual assault in a spousal relationship in violation of General Statutes § 53a-70b (b), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and attempt to commit arson in the first degree in violation of General Statutes §§ 53a-49 and 53a-lll (a) (1). On appeal, the defendant claims that (1) his sentence constitutes cruel and unusual punishment under the United States and Connecticut constitutions, and (2) the court improperly entered a standing criminal restraining order. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On October 10, 2001, the defendant pleaded guilty to a four count substitute information. On March 22, 2002, the court imposed a total effective sentence of twelve years imprisonment with ten years of special parole. The court also entered a standing criminal restraining order pursuant to General Statutes § 53a-40e, precluding the defendant from having any contact with his minor children. Additional facts and procedural history relevant to the defendant’s claims will be set forth as necessary.

I

The defendant first claims that the imposition of a twelve year sentence constitutes cruel and unusual punishment under the United States and Connecticut constitutions. Specifically, the defendant claims that because of his medical condition, he should have been sentenced to home confinement. We do not agree.

The following additional facts are relevant to the defendant’s claim. In March, 1999, while released on bond, the defendant suffered paraplegia as a result of an automobile accident. On October 9, 2001, following his guilty plea, the defendant was taken into custody. At his sentencing on March 22, 2002, the defendant, who submitted testimony from his physician, argued for a sentence of home confinement because of his medical condition and related needs. The court, however, sentenced the defendant to a total effective term of twelve years incarceration with ten years of special parole. Taking into account the defendant’s medical condition, the court further ordered that the mittimus state the following: “The court advises the following medical treatment for the defendant. First, regular physical therapy; second, timely monitoring and replacement of medication for the defendant’s stomach pump; number three, Botox shots on a regular basis every three months; four, regular and timely treatment of all illnesses, especially urinary tract infections.” The defendant now argues for home confinement because he claims that as a paraplegic, he will not receive adequate medical care while in sentenced confinement. The defendant bases his argument on his contention that he did not receive adequate care while in presen-tence confinement.

“It is well established that an unconditional plea of guilty, made intelligently and voluntarily, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. ... In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court’s jurisdiction.” (Internal quotation marks omitted.) State v. Nelson, 76 Conn. App. 472, 474, 819 A.2d 905, cert. denied, 264 Conn. 913, 826 A.2d 1156 (2003).

In the present case, the defendant pleaded guilty to all counts of the information and does not challenge, on appeal, the court’s jurisdiction, the plea agreement, the pleas or whether his sentence is within the statutory limits. Consequently, his claim of cruel and unusual punishment is not properly brought as a direct appeal from the sentencing court. See id.

The defendant bases his claim on what he alleges was a worsening of his condition while he was in presen-tence confinement. He argues that because he received inadequate medical treatment from the department of correction prior to sentencing, the department of correction likewise will fail to provide him with adequate care during his sentenced confinement, which, therefore, would constitute cruel and unusual punishment. The defendant, in effect, is asking this court to speculate as to how he will be treated when he begins his sentence by looking to his treatment in presentence confinement. This court cannot undertake such a task. See State v. Williams, 157 Conn. 114, 121-22, 249 A.2d 245 (1968), cert. denied, 395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1969).

In Williams, the defendant claimed cruel and unusual punishment because while he “was confined in jail awaiting trial and unable to furnish bail, the jail physician denied him proper medication for his claimed ailments . . . .” Id., 120-21. Our Supreme Court stated that “[w]hile courts have entertained claims of mistreatment of various sorts, usually made by prisoners in proceedings such as habeas corpus or for an injunction, we have found no instance in which mistreatment of the sort claimed here prior to trial has been entertained as a ground for attacking, on appeal, a judgment rendered within the limits of the statute punishing the offense.” Id., 121-22. Here, as in Williams, the defendant is asking this court to change, based purely on speculation, a sentence imposed within the statutory limits and the plea agreement. We cannot engage in such speculation.

In further support of this court’s refusal to entertain such a claim by speculating as to how the defendant might be treated while in sentenced confinement, it is relevant that the sentencing court specifically ordered that the mittimus reflect the defendant’s medical requirements, including his need for physical therapy, Botox injections and maintenance of his stomach pump. Because such an order was not in place when the defendant was in presentence confinement, which is the period of time that the defendant asks this court to use in speculating about the treatment he could expect to receive while he is in sentenced confinement, we see no basis on which to entertain a claim of cruel and unusual punishment in an appeal from the sentencing court.

This appeal is not an appropriate means by which the defendant can claim cruel and unusual punishment. Consequently, we conclude that the sentence imposed by the court was proper.

II

The defendant next claims that the court improperly entered a standing criminal restraining order pursuant to § 53a-40e precluding him from having any contact with his minor children. Specifically, the defendant argues that § 53a-40e does not allow the court to enter such a restraining order for the benefit of anyone except the victim. We do not agree.

The defendant’s claim requires this court to interpret § 53a-40e. “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Citation omitted; internal quotation marks omitted.) Regency Savings Bank v. Westmark Partners, 70 Conn. App. 341, 344-45, 798 A.2d 476 (2002). Furthermore, “we will ... in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning.” (Emphasis in original.) State v. Courch-esne, 262 Conn. 537, 577, 816 A.2d 562 (2003).

Section 53a-40e (a) provides in relevant part that if a person is convicted of a violation of one of the enumerated offenses against a “family or household member . . . the court may, in addition to imposing the sentence authorized for the crime under section 53a-35a, if the court is of the opinion that the history and character and the nature and circumstances of the criminal conduct of such offender indicate that a standing criminal restraining order will best serve the interest of the victim and the public, issue a standing criminal restraining order which shall remain in effect until modified or revoked by the court for good cause shown.” General Statutes § 53a-40e (a). Section 53a-40e (b) further provides that “[s]uch standing criminal restraining order may include but is not limited to enjoining the offender from (1) imposing any restraint upon the person or liberty of the victim; (2) threatening, harassing, assaulting, molesting, sexually assaulting or attacking the victim; or (3) entering the family dwelling or the dwelling of the victim.” (Emphasis added.) General Statutes § 53a-40e (b).

Although research of the scant legislative history provides little insight into the issue presented, it can be ascertained from the language itself that such an order precluding the defendant from having contact with his minor children is within the scope of the statute. As seen by the clear limitation in subsection (a) to crimes against a “family or household member,” the statute’s overarching goal is to prevent domestic violence. Furthermore, the language of the statute asks the court, in entering such an order, to consider not only what will best serve the victim, but also to consider what will best serve the public, thereby demonstrating that the statute aims to protect more than just the victim. Last, the language of the statute indicating that a criminal restraining order may include, “but is not limited” to the three options listed in subsection (b), makes clear that there are many options available to a court in entering a criminal restraining order beyond the three listed.

Consequently, although we will not go as far as to say that a court has unlimited options in making a standing criminal restraining order pursuant to § 53a-40e, we conclude that the situation presented here, where those protected by the order are the minor children of the victim and the defendant, is clearly a situation within the scope of the statute. Children living in the home of a victim of sexual assault and attempted murder should be afforded the same protection of a standing criminal restraining order as their victim mother. For all of those reasons, we conclude that the court’s standing criminal restraining order precluding the defendant from contacting his minor children is within the scope of § 53a-40e.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s claim more properly is brought, for example, in the form of a petition for a writ of habeas corpus challenging the conditions of his confinement.

       The defendant does not challenge the court’s authority to impose such a restraining order insofar as it applies to the victim.

       The defendant was convicted of two of the enumerated offenses required by § 53a-40e: Attempt to commit murder in violation of § 53a-54a, and sexual assault in a spousal relationship in violation of § 53a-70b (b).


text:
    PATRICK DISTASSIO v. ALLSTATE INDEMNITY COMPANY
    (AC 23594)
    Schaller, West and Hennessy, Js.
    Argued October 29, 2003 —
    officially released January 13, 2004

      Jane G. Beddall, with whom, on the brief, was Terence A. Zemitis, for the appellant (defendant).

      Alan Scott Picket, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Allstate Indemnity Company, appeals from the judgment of the trial court awarding damages to the plaintiff, Patrick Distassio. The defendant specifically claims that the court improperly (1) denied its motion to set aside a default for failure to appear, (2) denied its right to a trial by jury and (3) failed to reduce the plaintiffs damage award. We agree with the defendant’s first claim; because the defendant’s other claims are logically dependent on its first claim, we do not address the second and third claims.

The essential facts are not in dispute. In August, 1999, the plaintiff was injured in a car accident. At the time of the accident, the defendant was the plaintiffs insurer. The plaintiffs insurance policy contained uninsured-underinsured motorists coverage. After the plaintiff sought compensation from the driver of the other car, the plaintiff brought an action against the defendant to recover uninsured-underinsured benefits.

The plaintiff filed a complaint against the defendant on November 26,2001. The return date for the complaint was December 18, 2001. The defendant did not file an appearance, and on December 21, 2001, the plaintiff filed a motion for default for failure to appear pursuant to Practice Book § 17-20. The motion was granted by the court clerk, relying on Practice Book § 17-20 (c).

The defendant responded to the action on January 9, 2002, and filed an appearance as well as a timely claim for a jury trial. The court clerk failed to set aside the default as provided in Practice Book § 17-20 (c). The case proceeded, albeit with procedural irregularities, and the defendant made a motion to set aside the default, which was denied. The court held a hearing in damages, awarded the plaintiff $36,889 and rendered judgment. This appeal followed.

The defendant claims that the court improperly denied its motion to set aside or to open the default for failure to appear. The defendant argues that the court should have granted the motion because the court clerk improperly failed to set aside the default. Alternatively, the defendant argues that the motion itself was unnecessary because the rules of practice require the court clerk to set aside a default when the defaulting party files an appearance. We agree with the defendant’s alternative argument.

On review, we normally look to see if the court abused its discretion in denying motions such as the motion in this case. See People’s Bank v. Horesco, 205 Conn. 319, 323, 533 A.2d 850 (1987). We do not reach the question of whether the court abused its discretion, however, because the default should have been set aside by the court clerk pursuant to Practice Book § 17-20 (c).

Our rules of practice provide in relevant part that “ [i]f the defaulted party files an appearance in the action prior to the entry of judgment after default, the default shall automatically be set aside by the clerk. ...” (Emphasis added.) Practice Book § 17-20 (c). In Morrison v. Parker, 261 Conn. 545, 551, 804 A.2d 777 (2002), our Supreme Court reviewed the language of General Statutes § 52-275, which provides in relevant part that “[a]ll writs of error shall be allowed and signed by a judge of the Superior Court or by the clerk of the court . . . .” The court held that provision to be mandatory and stated that “[according to the clear and unambiguous language of the statute, either a judge or the clerk of the Superior Court is statutorily authorized to allow and to sign a writ of error. The fact that the statute grants such authority to the clerk of the court is compelling evidence that the act is ministerial in nature.” Morrison v. Parker, supra, 551.

Similar to the statute in Morrison v. Parker, supra, 261 Conn. 545, Practice Book § 17-20 (c) uses the word “shall.” That suggests that the provision is mandatory. Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 239-40, 794 A.2d 1016 (2002). Further, the use of the word “automatically” indicates that the court clerk has no discretion and must set aside the default after the party has filed an appearance. The language of the statute indicates that the defendant was not required to file a motion to set aside the default; when the defendant filed an appearance prior to the judgment, the default was required to be set aside automatically.

The failure of the clerk to set aside the default after the appearance was filed was improper. That omission directly led to and caused the other actions that the defendant claims to be improper. Neither the default nor the hearing in damages should have taken place. Moreover, the omission affected the integrity of the judicial system because it prevented the defendant from having proper access to the court to defend the action. Accordingly, the judgment of the trial court cannot stand.

The judgment is reversed and the case is remanded with direction to place the case on the jury list and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The claim for a jury trial was filed within thirty days of the return date, and the case involved a question of fact. See General Statutes § 52-215 and Practice Book § 14-10.

       We note that the rules of practice do not provide for the motion filed by the defendant, as there is, generally, no need for such a motion.

       Indeed, it would be difficult to read the phrase “shall automatically” as anything but a mandatory direction.

       See generally Friedman v. Pusch, judicial district of New Haven, Docket No. 374030S (March 6, 1996) (16 Conn. L. Rptr. 283, 284).


text:
    WATSON B. METCALFE v. IRENE SANDFORD ET AL.
    (AC 24097)
    Foti, Flynn and Peters, Js.
    Argued November 17, 2003 —
    officially released January 13, 2004

      Sonia T. Larossa, with whom, on the brief, was Miles F. McDonald, Jr., for the appellant (plaintiff).

      James A. Fulton, for the appellees (named defendant et al.).
   Opinion

FOTI, J.

The plaintiff, Watson B. Metcalfe, appeals from the judgment rendered by the trial court dismissing his appeal from the Probate Court for the district of Greenwich. The plaintiff brought the appeal from probate under General Statutes § 52-592, the accidental failure of suit statute, seeking to reinstitute a prior probate appeal against the defendants. The plaintiff claims that the trial court, in granting the defendants’ motion to dismiss, improperly determined that § 52-592 did not apply to the action. We affirm the judgment of the trial court.

The testatrix, Mary Jane Watson, died on February 10, 2000. On February 5, 2001, the Probate Court issued a decree admitting to probate Watson’s February 5, 2000 will. The plaintiff, claiming to be a beneficiary under a 1962 will executed by the testatrix, appealed from the decree to the Superior Court, alleging, as one of his claims of error, that the testatrix lacked the testamentary capacity to execute the 2000 will. The defendants filed a motion to dismiss the appeal, arguing, among other things, that the appeal had not been served timely and filed properly in the Superior Court. On August 1, 2001, the trial court granted the motion to dismiss, finding that although “service was properly effectuated pursuant to [General Statutes] § 52-60 on March 9, 2001 . . . such service was untimely as it occurred more than thirty days after the Probate Court’s order and decree.” No appeal was filed as a result of that judgment dismissing the original probate appeal.

By complaint filed October 10,2001, the plaintiff commenced his action under § 52-592 seeking to reinstitute the original probate appeal. On August 8, 2002, the defendants filed a motion to dismiss the action for lack of subject matter jurisdiction, arguing that the accidental failure of suit statute does not allow the resurrection of probate appeals that have been dismissed previously and, in the alternative, that the statute cannot be applied to save this action because the action was not commenced within the time limited by law. On March 21, 2003, the trial court granted the motion. The court deemed the issue of whether § 52-592 applies to probate appeals to be immaterial to this case and noted that even if the statute were applicable, it would apply only to actions that had been commenced timely. The court stated that in the present case, the plaintiff had failed to commence his original probate appeal in a timely manner and, therefore, concluded that he could not rely on § 52-592 to “save this appeal . . . .” We agree.

“Where the trial court is presented with undisputed facts, as it was here, our review of its conclusions is plenary, as we must determine whether the court’s con-elusions are legally and logically correct . . . .” (Internal quotation marks omitted.) Gillum v. Yale University, 62 Conn. App. 775, 781, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).

Section 52-592, the accidental failure of suit statute, allows a plaintiff to commence a new action for the same cause, within one year, if a prior action failed “to be tried on its merits” for a number of reasons. “The statute is considered a ‘saving statute’ because it permits plaintiffs to commence those causes of action to which it applies after the tolling of the applicable statute of limitation.” Id. The statute “is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction.” (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989).

The statute clearly allows the commencement of a new action only after a condition has been met, namely, that the failed action must have been “commenced within the time limited by law . . . .” General Statutes § 52-592 (a). The extension of time in § 52-592 applies to all cases in which an action seasonably begun has failed for the causes stated within the statute. Isaac v. Mount Sinai Hospital, supra, 210 Conn. 729-30. “Therefore, § 52-592 applies only when there has been an original action that has been commenced in a timely fashion.” Capers v. Lee, 239 Conn. 265, 271, 684 A.2d 696 (1996).

As we have noted, no appeal was filed as a result of the ruling of August 1, 2001, dismissing the plaintiffs original appeal from probate. The court’s uncontested finding, that the plaintiff did not timely commence his appeal from probate within the time permitted by statute, stands. Having failed to commence his original probate appeal seasonably, the plaintiff cannot now avail himself of the benefit of the accidental failure of suit statute. Consequently, we conclude that the court properly dismissed the present action.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-592 (a) provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action alter a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if fee plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       The defendants who are the appellees in this appeal are Gretchen Pulvermann, executrix of the decedent’s estate, and Irene Sandford and Robert Peterson, beneficiaries under the decedent’s will. Other individuals who were named as defendants are not involved in this appeal. We refer in this opinion to Pulvermann, Sandford and Peterson as the defendants.

       General Statutes § 45a-186 (a) allows “[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter” to appeal to the Superior Court. Pursuant to General Statutes § 45a-187 (a), an appeal under § 45a-186 “shall be taken within thirty days . . . .”

         Subject matter jurisdiction may be raised at any time. We note that although a motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by General Statutes § 52-592, our Supreme Court has held that a trial court properly may consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss. Capers v. Lee, 239 Conn. 265, 269-70 n.9, 684 A.2d 696 (1996). In the present case, because the plaintiff did not object to the use of a motion to dismiss, the court properly decided the motion on the merits.

       Because we conclude as we do, it is unnecessary to decide whether § 52-592 applies to probate appeals.