author: SPEAR, J.

text:
    TOWN OF SOUTH WINDSOR v. SOUTH WINDSOR POLICE UNION, LOCAL 1480, COUNCIL 15, AFSCME, AFL-CIO
    (14347)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued January 17
    officially released June 11, 1996

      Harry B. Elliott, Jr., with whom, on the brief, was Robert J. Murray, Jr., for the appellant (defendant).

      David L. Metzger, for the appellee (plaintiff).

      Richard Blumenthal, attorney general, and Charles Overend and Laurie Adler, assistant attorneys general, filed a brief for the state board of mediation and arbitration as amicus curiae.

      Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

      Jeffrey F. Gostyla filed a brief for the Connecticut Police Chiefs Association as amicus curiae.

      Jon L. Schoenhom filed a brief for the Connecticut State Police Union et al. as amici curiae.
   SPEAR, J.

The defendant, the South Windsor Police Union, Local 1480, Council 15, AFSCME, AFL-CIO (union), appeals from the judgment of the trial court vacating an arbitration award that had ordered the reinstatement of one of its members (grievant) to the South Windsor police department. The union claims that the trial court improperly ruled that the award (1) was untimely, (2) violated public policy, and (3) violated a provision of the collective bargaining agreement (agreement) that precludes reinstatement where the grievant was exonerated on some, but not all, of the charges. We affirm the judgment of the trial court.

We glean the following facts from the arbitration award. The grievant, a nine year veteran of the South Windsor police department, was charged by the plaintiff, the town of South Windsor (town), with violating the following regulations of the police department duty manual: § 2.3.8, improper use of intoxicants; §§ 2.3.36 and 2.2.7, improper dissemination of police information, particularly with respect to an informant; § 2.2.6, misuse of his position; § 2.3.10, improper association with a felon; § 2.3.2, conduct unbecoming an officer; and § 2.3.3, neglect of duty. The charges arose primarily out of the grievant’s conduct at town bars where there was known illicit drug activity.

A principal charge against the grievant was that on three separate occasions in July and August, 1990, he improperly disseminated information about a person known as R. On those occasions, the grievant told a woman, whom he believed to be a buyer of illicit drugs, that R. was an informant for the Tri-Town Narcotics Task Force (task force) and that she should not get involved with him. Prior to the time that he made the statements, the grievant had dated a woman who claimed that she was R.’s fiancee. R. had told several people that he would have the grievant’s job and the grievant made the statements hoping to “bum” R.

Unbeknownst to the grievant, the woman to whom he gave the information was an undercover police officer for the task force. She frequented the bars seeking to befriend drug dealers, make buys and set up those dealers for arrest by the task force. The task force operations were successful because of the effectiveness of the undercover officer.

After conducting hearings on the charges, the town terminated the grievant’s employment. Pursuant to the agreement, the union demanded arbitration before the state board of mediation and arbitration (board), and a panel of three arbitrators was selected to hear the matter. After hearing the case, the board found that the grievant had violated §§ 2.2.7 and 2.3.36 (divulging information regarding R.), 2.3.2 (conduct unbecoming an officer) and 2.3.10 (improper association with a felon). As a remedy, the board ordered the grievant reinstated after serving a 150 day suspension, with back pay for the period of time that the grievant was out of work in excess of 150 days.

The town sought to vacate the award in Superior Court, claiming that the award was not timely and that it violated public policy as well as the reinstatement provisions of the agreement. The union filed an application to confirm the award. This appeal followed the trial court’s judgment vacating the award.

I

The trial court found that the final briefs were received by the board on January 28, 1993, and that the award was issued on April 20, 1994, almost fifteen months later. The trial court ruled that “the award was not rendered within the time permitted by [General Statutes] § 52-416 (a) and therefore shall ‘have no legal effect.’ ”

Arbitration was sought before the board pursuant to § 16.5 of the agreement. General Statutes § 31-98 governs the procedures the board must follow when issuing a decision in an arbitration proceeding. Section 31-98 requires a majority of the members of the board to sign a written decision within fifteen days from the conclusion of the proceedings unless the parties otherwise consent to the issuance of an oral decision. In determining whether an earlier version of § 31-98 or an earlier version of § 52-416 (a) applied to a matter heard by the board, our Supreme Court stated: “In considering the intended operation of a statute, courts must presume that the legislature in enacting it had existing relevant legislation in mind. ... In view of this cardinal principle of statutory construction, the General Assembly, by specifically dealing in [§ 31-98] with the time limitation, demonstrated an intent that the limitation of [thirty] days provided for in [§ 52-416 (a)] should not apply to an award by the board of mediation and arbitration. A reasonable construction of the intent expressed is that the board should be governed by the specific legislation enacted for its guidance and not by general legislation pertaining to arbitration.” (Citation omitted.) Danbury Rubber Co. v. Local 402, 145 Conn. 53, 58, 138 A.2d 783 (1958).

The question of whether the fifteen day time period in § 31-98 is mandatory was answered in AFSCME v. New Britain, 206 Conn. 465, 468, 538 A.2d 1022 (1988), in which our Supreme Court stated that “[w]e have previously concluded that the time limitation in this statute’s predecessor was directory and not mandatory. . . . We have also held that [i]n the absence of a mandatory time limitation [in either the collective bargaining agreement or the submission to the arbitrators], an award of arbitrators may be made within a reasonable time.” (Citation omitted; internal quotation marks omitted.)

The town claims that even if § 31-98 governs, the thirteen month delay between the close of the proceedings and the decision was unreasonable. We do not need to address this claim “because the plaintiffs failure to raise the issue of timeliness prior to the issuance of the arbitration award operates as a waiver of [its] right to assert the lack of timeliness in the board’s decision. The record discloses that the only challenge to timeliness is contained in the post-decision application to vacate the award.” (Emphasis added.) AFSCME v. New Britain, supra, 206 Conn. 468. As in AFSCME v. New Britain, supra, 468, the plaintiff here waived any issue of timeliness by waiting to object until after the award was issued. The trial court, therefore, improperly ruled that the award was untimely.

II

The town next argues that the arbitration award would violate public policy by reinstating a police officer who deliberately revealed the identity of a confidential informant, with the attendant risk to that informant’s safety and jeopardy to police operations. The town asserts that public policy demands that the identity of confidential informants be protected. We agree.

It is a well accepted proposition that the courts favor arbitration. See Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989). An award, however, can be vacated where its enforcement would violate “some explicit public policy that is well defined and dominant, and is . . . ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 340, 555 A.2d 406 (1989). A vacatur on public policy grounds is premised on the notion that the parties cannot expect an award “approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” Id., 339-40.

Our statutes and case law are sources of public policy and those sources clearly establish that the identity of confidential informants should be protected. General Statutes § 1-19 (b) of the Freedom of Information Act expresses this strong public policy by providing in pertinent part: “Nothing in sections 1-15, l-18a, 1-19 to 1-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known . . . .” (Emphasis added.)

In Gifford v. Freedom of Information Commission, 227 Conn. 641, 658-59, 631 A.2d 252 (1993), our Supreme Court held that the Freedom of Information Act does not require the disclosure of information regarding an arrest beyond what appears in the arrest report, namely, the “name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested.” The Gifford court noted the comments that were made in support of an amendment to the Freedom of Information Act that limited what could be disclosed to the public about an arrest. Those comments graphically depict the policy reasons for prohibiting the disclosure of an informant’s identity. “In favorably commenting on the amendment, Representative Francis X. O’Neill, Jr., stated: ‘Many years ago . . . in my years in . . . law enforcement, a record of an arrest included the affidavit to support an arrest, the arrest warrant itself and the blotter record entry. If the bill, as written, went through, it would completely destroy every single undercover activity that any police department in this state attempted to go into. It would destroy all informants; quite frankly, it could be called a murder bill. It would kill informants. I personally have taken informants off meat racks who are dead. I personally have taken informants out of automobiles who were dead. They were police officers. They were individuals whose names had been disclosed either intentionally or unintentionally. A police officer puts his life on the line; this particular amendment would save their lives.’ 26 H.R. Proc., Pt. 8, 1983 Sess., pp. 2772-73.” Gifford v. Freedom of Information Commission, supra, 660. Our public policy clearly prohibits improper disclosure of a confidential informant’s identity.

The union advances five arguments in support of its claim that the award does not violate public policy: (1) the grievant did not reveal information within the scope of General Statutes §§ 54-142a or 54-142g, the statutes relied on by the trial court; (2) R. was not found to be an informant; (3) the South Windsor police department repeatedly “bums” chug suspects; (4) the grievant’s actual knowledge regarding R.’s status as an informer was no greater than that of persons in the illicit drug culture because participants in that culture inferred that a person was an informant when that person appeared back on the streets shortly after an arrest; and (5) the grievant’s conduct was not prohibited by law. We will examine each of these assertions in turn.

While it is tme that the trial court cited only § 54-142a et seq. and § 54-142g et seq. in its memorandum of decision, the court relied on Watertown Police Union Local 541 v. Watertown, supra, 210 Conn. 340, which states that public policy “is to be ascertained by reference to the laws and legal precedents . . . .” The statutes cited by the court illustrate only one aspect of the public policy restricting the dissemination of certain criminal record information. Moreover, we may affirm a correct result of the trial court for reasons different from those stated by the trial court. Ivey, Barnum & O’Mara, Inc. v. Indian Harbor Properties, 190 Conn. 528, 532, 461 A.2d 1369 (1983); CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 660, 653 A.2d 207 (1995). The decision of our Supreme Court in Gifford v. Freedom of Information Commission, supra, 227 Conn. 641, and the Freedom of Information Act provision discussed previously express the public policy of the state against disclosing the identity of confidential informants.

The union correctly states that the board did not find that R. was an informant for the task force. The board, however, stated that after R. was arrested as part of the task force sweep, “only then did he cease to be used as an informant.” The board was obviously persuaded that R. had been used as an informant by the South Windsor police department at some point although he was not part of the task force operation. Moreover, as the plaintiff argues persuasively, whether R. was, in fact, an informant does not excuse the violation of public policy. The board found that as a known police officer, the grievant’s assertion that R. was an informant gave the statement authenticity. Such apparent authenticity could, in turn, discourage other informants or potential informants from cooperating with the police for fear of disclosure and the attendant risk of physical harm or death. “Clearly the state has a strong public interest in protecting the identity of confidential informants in order to encourage the flow of information necessary in criminal prosecutions.” State v. Telesca, 199 Conn. 591, 606, 508 A.2d 1367 (1986); see also State v. McDaniel, 176 Conn. 131, 133, 405 A.2d 68 (1978); State v. Leonard, 31 Conn. App. 178, 198, 623 A.2d 1052 (1993).

The board did note that “[t]he evidence shows that police ‘bum’ suspects during investigations for various specific purposes. The grievant’s purpose was improper and not authorized by anyone.” The board also stated in its award that “although the union attempted to convince the panel that it was an acceptable police tech-ñique to ‘bum’ drug dealers who could not be arrested, it did not persuade the panel that the grievant should not be disciplined for this unauthorized activity.” The short answer to this claim is that police conduct does not define public policy. As the union correctly asserts, public policy is established by our constitutions, statutes and legal precedents. Police practices and procedures may reflect public policy but those practices and procedures do not determine that policy. We note, for example, that § 2.3.36 (c) of the police manual prohibits the dissemination of information regarding confidential informants, a provision that incorporates the state’s public policy against such disclosure. If the board was in fact convinced that the South Windsor police department engaged in “burning” suspects, such a finding is nevertheless irrelevant on the issue of whether the award violates public policy.

The union’s fourth argument also has no bearing on the public policy issue. It claims that the grievant’s knowledge as to whether R. was an informant was no greater than that of those in the illicit drug culture who would infer that R. was an informant because of his quick release after arrest. The board’s finding that the grievant’s status as a known police officer made the disclosure authentic and effective also disposes of this argument. The potential harm to police operations resulted regardless of whether others suspected that R. was an informant. Furthermore, the risk of harm to R. could have been heightened only by this “official” affirmation that he was an informant.

The union last argues that the grievant’s conduct was not prohibited by any law. General Statutes § 7-276 provides in pertinent part that “[s]uch [board of police commissioners] shall have the sole power of appointment, promotion and removal of the officers ... of such police department, under such regulations as it adopts for the purpose, and such appointees shall hold office during good behavior and until removed for cause upon written charges and after hearing.” Good behavior is a requirement for police officers. The griev-ant’s conduct clearly violated the statutory good behavior requirement and thus violated the public policy of our state. The trial court’s vacatur of the award was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties agree that “burning” someone, in the context of the illicit drug culture, means to assert to a member or members of that culture that the person is a police informant. The defendant contends that such a “burn” is simply designed to ostracize 1 he named person from the illicit drug community. The town contends that such “bums” have more sinister implications as they put the person who is labelled as an informant at serious risk of physical harm.

       The board exonerated the grievant of allegations that he had violated § 2.3.8, use of intoxicants, § 2.2.6, misuse of official position, and § 2.3.3, neglect of duty.

       One arbitrator dissented as to the back pay award.

       General Statutes § 52-416 (a) provides in pertinent part: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators . . . shall render the award within thirty days from the date the hearing or hearings are completed . . . .”

       The trial court also stated that “the award was not rendered within a reasonable time.” This language is surplusage as the court clearly ruled pursuant to § 52-416 (a).

       Section 16.5 of the collective bargaining agreement provides that step four of the grievance procedure is “[t]he right to submit within fifteen (15) working days the matter to the State of Connecticut Board of Mediation and Arbitration, said arbitration decision shall be final and binding on all parties.”

       General Statutes § 31-98 provides in pertinent part: “The panel. . . may, in its discretion and with the consent of the parties, issue an oral decision immediately upon conclusion of the proceedings. If the decision is to be in writing, it shall be signed, within fifteen days, by a majority of the members of the panel . . . and the decision shall state such details as will clearly show the nature of the decision and the points disposed of by the panel. Where the decision is in writing, one copy thereof shall be filed by the panel in the office of the town clerk in the town where the controversy arose and one copy shall be given to each of the parties to the controversy. . . .”

       See footnote 1.

       Our resolution of the timeliness and public policy issues obviates the need to discuss whether the award violates the remedy provisions of the agreement.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    FAIR CADILLAC OLDSMOBILE CORPORATION v. CHARLES J. ALLARD
    (14061)
    O’Connell, Lavery and Heiman, Js.
    Argued March 20
    officially released June 11, 1996

      Abraham I. Gordon, with whom were Ronald D. Japha, and, on the brief, Richard S. Scalo, for appellant-appellee (defendant-third party plaintiff).

      Michael S. McKenna, for the appellee-appellant (plaintiff).
   O’CONNELL, J.

This appeal arises out of a judgment of $165,708.43 rendered in favor of Bernard Meehan and against Fair Cadillac Oldsmobile Corporation (Fair Cadillac) by the United States District Court for the District of Connecticut. After the expiration of the ten day automatic stay mandated by rule 69 of the Federal Rules of Civil Procedure, Meehan, through his attorney William Laviano, filed an application for an execution to be served on any bank at which Fair Cadillac maintained an account. On July 26, 1989, the clerk of the United States District Court signed the execution and issued it to Laviano. Laviano in turn delivered the execution to Deputy Sheriff Charles J. Allard, with instructions to serve it. Allard levied the execution on the Connecticut National Bank. At Laviano’s request, the bank paid the funds directly to him instead of paying them to Allard.

On August 2, 1989, Meehan and Fair Cadillac entered into a settlement agreement in which Fair Cadillac agreed to pay Meehan $150,000 in damages in addition to Allard’s sheriffs fees. Pursuant to this agreement, Allard was paid $9942.51 in fees. The settlement agreement, however, also provided that Fair Cadillac’s payment of the “claimed sheriffs fees” was not to be construed as a waiver of the right to challenge the validity of the execution at a later time. Fair Cadillac thereafter made demand on Allard for return of the sheriffs fees he received for levying on its bank account. Allard refused.

On September 12, 1989, Fair Cadillac brought a two count action against Allard alleging that he (1) wrongfully converted the sheriffs fees to his own use because the execution was void, and (2) unlawfully took Fair Cadillac’s property by refusing to return the sheriffs fee, thereby entitling it to treble damages. Allard filed a third party complaint against Meehan and Laviano seeking indemnification from them.

Following a court trial, the trial court rendered judgment for Fair Cadillac in the amount of $9942.51 plus interest, attorney’s fees and costs on the first count and for Allard on the second count. The trial court also rendered judgment for Meehan and Laviano on the third party complaint.

Allard appealed, claiming that the trial court incorrectly (1) held that the United States District Court had improperly issued the execution, (2) held that the defendant was liable for levying the execution, which was valid on its face, (3) rendered judgment against him on his third party complaint, and (4) denied his motion for summary judgment. Fair Cadillac cross appealed, claiming that the trial court improperly held that it was not entitled to treble damages. We reverse the judgment of the trial court on Allard’s appeal and affirm the trial court’s judgment on Fair Cadillac’s cross appeal.

The dispositive issue in this appeal is whether the trial court improperly held Allard liable for levying a facially valid execution. The plaintiff argues that the execution, although valid on its face, was void because the United States District Court should not have issued it. We do not reach this issue because a sheriff is not required to look beyond the process that is given to him for service. Neth v. Crofut, 30 Conn. 580, 581 (1862).

A sheriff has a statutory duty to serve and to make prompt return of all process that is given to him for service. General Statutes § 6-32. Under § 6-32, a sheriff who neglects to make demand pursuant to an execution becomes liable for default in the performance of his duties; Smith v. Yale, 50 Conn. 526, 527 (1883); and is hable for double damages to the aggrieved party. General Statutes § 6-32.

Additionally, it is well established in Connecticut that if a writ appears to be good on its face, appears to have been issued by a competent authority, and has been issued with legal regularity, a sheriff has a duty to serve it and will be protected in making such service. Watson v. Watson, 9 Conn. 140, 147 (1832). “When we speak of process ‘valid on its face,’ in considering whether it is sufficient to protect an officer, we do not mean that its validity is to be determined upon the basis of scrutiny by a trained legal mind; nor is it to be judged in the light of facts outside its provisions which the officer may know. . . . Unless there is a clear absence of jurisdiction on the part of the court or magistrate issuing the process, it is sufficient if upon its face it appears to be valid in the judgment of an ordinarily intelligent and informed layman. To hold otherwise would mean that an officer must often act at his peril or delay until he has had an opportunity to search out legal niceties of procedure . . . .” (Citations omitted.) Aetna Ins. Co. v. Blumenthal, 129 Conn. 545, 553-54, 29 A.2d 751 (1943).

Allard’s dilemma in this case is obvious. If he failed to serve the execution promptly and the funds were withdrawn from the bank during his delay, he would have been liable to Meehan and Laviano for twice the amount he should have levied on the bank. If, however, Fair Cadillac is correct that the execution is void, then Allard might be liable to Fair Cadillac for treble damages because he served it. See General Statutes § 52-565.

The plaintiff asks us to conclude that, in addition to his statutory duty to serve an execution, a sheriff is responsible for ascertaining any possible legal defects in a facially valid execution. The law does not require or expect sheriffs to have the education and training to make such determinations. In this case, the chief clerk of the United States District Court testified that the execution was validly executed by his office in accordance with the Federal Rules of Civil Procedure. We cannot expect a sheriff to declare such process void and will not impose liability on the sheriffs of this state for the failure to do so. Accordingly, we conclude that Allard is entitled to his fees for serving the execution. We do not reach the other claims raised by the parties.

On the defendant’s appeal, the judgment against him on the complaint is reversed and the case is remanded with direction to render judgment for the defendant; the judgment on the defendant’s third party complaint is affirmed. On the plaintiffs cross appeal, the judgment is affirmed.

In this opinion the other judges concurred.

       We take no position as to the legality or propriety of this procedure.

       The accuracy of this fee is uncontested in this appeal.

       Attorney’s fees resulted from Allard’s failure to accept the plaintiffs offer of judgment. See Practice Book § 350.

       General Statutes § 6-32 provides in relevant part: “Each sheriff and each deputy sheriff shall receive each process directed to him when tendered, execute it promptly and make true return thereof .... If any sheriff does not duly and promptly execute and return any such process or makes a false or illegal return thereof, he shall be liable to pay double the amount of all damages to the party aggrieved.”

       The plaintiff cites cases that concern void judgments. These cases are inapposite here because there has been no claim that the underlying United States District Court judgment was void.


author: LAVERY, J.

text:
    BRUCE CIRILLO ET AL., COADMINISTRATORS (ESTATE OF NICHOLAS J. CIRILLO) v. FREDERICK E. SARDO ET AL.
    (14047)
    Foti, Lavery and Heiman, Js.
    Argued January 10
    officially released June 11, 1996

      Jonathan J. Einhom, with whom, on the brief, was James F. Cirillo, Jr., for the appellees (plaintiffs).

      S. Dave Vatti, for the appellees (named defendant et al.).
   LAVERY, J.

In this wrongful death action, the plaintiffs appeal from the judgment of the trial court granting the defendants’ motion for summary judgment. On appeal, the plaintiffs claim that the trial court improperly found that their action against the decedent’s fellow employee, Frederick E. Sardo, was barred under General Statutes § 31-293a of the Workers’ Compensation Act, and that the statute’s “negligent operation of a motor vehicle by a fellow employee” exception did not apply. We affirm the judgment of the trial court.

The following facts are undisputed. On September 20, 1989, the decedent, Sardo and Victor Gueiros were employees of Peabody N.E., Inc. (Peabody). The three employees were assigned to a construction site on Route 8 northbound near the exit 13 on-ramp to erect signs closing a portion of the left lane. Sardo drove the decedent and Gueiros to the site in a pickup truck.

At about 7:30 a.m., the decedent and Gueiros were outside of the truck setting up a sign directing traffic into the right lane of Route 8 northbound at a point 2000 feet from the construction site. Sardo parked the truck on the grass median adjacent to the highway across from the on-ramp. The truck’s engine was running and its transmission was in park. The truck remained in this position for approximately two minutes while the decedent and Gueiros finished placing the signs on Route 8. During this time, the truck’s overhead strobe light and its rear hazard lights were operating.

While the truck was in this position, the decedent was standing to the right rear of the truck waiting for Gueiros to place some sandbags on a sign to hold it in place. A vehicle suddenly swerved into the closed left lane and struck the decedent, who was thrown forward onto Route 8. The vehicle then struck the pickup truck in which Sardo was seated. The decedent died as a result of injuries received when the vehicle hit him. At the time of the collision, the decedent was not in or on the pickup truck.

The plaintiffs brought this wrongful death action against Sardo, Peabody and DL Peterson Trust, the owner of the pickup truck leased to Peabody. Sardo and DL Peterson Trust moved for summary judgment on the grounds that (1) the plaintiffs are barred from pursuing their negligence claim against the decedent’s fellow employee by virtue of General Statutes § 31-293 (a) and (2) Sardo’s conduct did not proximately cause the injuries that resulted in the decedent’s death. The trial court granted the defendants’ motion for summary judgment based on the facts that the truck was parked, the decedent was not on the vehicle and the plaintiffs produced no evidence that would have allowed a finding that the accident occurred as a result of the position in which Sardo had parked the truck. The trial court concluded that any claimed negligence of Sardo cannot be said to arise from his operation of the pickup truck and the accident resulted from a hazard attendant to the decedent’s employment not shared by members of the general public. The plaintiff brought this appeal claiming the trial court was incorrect both on the issue of operation and on the issue of causation.

“The standard of review of atrial court decision granting a motion for summary judgment is well settled and is not challenged in this case. Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book § 381. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).” (Internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 588 n.10, 674 A.2d 1290 (1996).

Section 31-293a provides in relevant part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless . . . the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. . . .” (Emphasis added.) The parties agree that at the time of the accident the decedent was acting in the course of his employment. “In order to find such negligent operation allowing supplementary tort recovery against the employee operator within the exclusion of § 31-293a, the fellow employee’s injury must have been caused by the negligent movement or circumstance resulting from the movement of the employer’s truck.” Kiriaka v. Alterwitz, 7 Conn. App. 575, 579, 509 A.2d 560, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986).

The plaintiffs allege in their complaint that the decedent “was travelling on the rear of the vehicle operated by the defendant, Sardo, as he was placing pylons onto the highway, in order to close a lane of said Route 8 to construction, when suddenly and without warning the plaintiffs decedent was struck from the rear by another vehicle.” The complaint also alleges that the resulting injuries and death were directly and proximately caused by Sardo’s carelessness and negligence. These allegations all pertain to a vehicle that is moving and to the protection of its occupants. The undisputed facts presented to the trial court, however, indicate that, at the time of the accident, the decedent was not on the truck but was on the roadway and that the truck was parked on the grass median off the road surface and the automatic transmission was in “park.” It is also undisputed that the other vehicle struck the decedent while he was on the road and not on the truck and that the decedent was hurled some eighty feet in front of the truck by the other vehicle. The truck was then struck in the rear by the other vehicle.

The plaintiffs neither filed a counteraffidavit nor brought forth evidentiary facts or substantial evidence from outside the pleadings from which the material facts alleged in the pleadings can be inferred. Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57 (1983); Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 168-69, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). Sardo’s affidavit and submissions refute all of the plaintiffs’ allegations of a breach of a standard of care. The plaintiffs introduced no facts that showed a causal connection between any conduct of Sardo sitting in the parked vehicle and the accident that resulted in the decedent’s death.

Our decision in Kiri,aka is controlling here. In Kiri-aka, we stated: “ ‘Operation’ of a motor vehicle connotes the control and direction of it, the activity of an ‘operator’ or ‘driver’ licensed for that purpose. The exception to § 31-293a relates to injury causally connected to the control and direction of the employer’s vehicle. In the undisputed facts before the trial court, the accidental injuries to [the plaintiff] were unconnected and unrelated to [the defendant’s] control, direction and movement of [the employer’s] van. His injuries admittedly arose out of and in the course of his employment in the circumstances of the case, but they cannot be extended to reach the exception to § 31-293a. His workers’ compensation benefits are the exclusive remedy available to him under that provision of the act.” Kiriaka v. Alterwitz, supra, 7 Conn. App. 580.

“ ‘While it is true that “operation” is not defined in General Statutes § 14-1, the cases clearly indicate that operation as it refers to a motor vehicle relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle. See Plunkett v. Nationwide Mutual Ins. Co., 150 Conn. 203, 209, 187 A.2d 754 (1963); Reetz v. Mansfield, 119 Conn. 563, 178 A. 53 (1935); Stroud v. Water Commissioners, 90 Conn. 412, 97 A. 336 (1916).’ Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 472 n.1, 429 A.2d 943 (1980). The construction of the term ‘operation of a motor vehicle’ in General Statutes § 31-293a as not including activities unrelated to the movement of the vehicle comports with the policy of the legislature. Dias v. Adams, 189 Conn. 354, 360, 456 A.2d 309 (1983).

“We have recently stated that ‘[i]f a coemployee is not engaged at the time of the fellow employee’s injury in any activity related to driving or moving a vehicle or related to a circumstance resulting from the movement of a vehicle, the lawsuit does not fall within the exception of General Statutes § 31-293a.’ Kegel v. McNeely, 2 Conn. App. 174, 178, 476 A.2d 641 (1984).” Conti v. Rose Hill Poultry Co., 3 Conn. App. 246, 248, 486 A.2d 1145, cert. denied, 195 Conn. 802, 491 A.2d 1103 (1985).

We conclude that the trial court properly found that no issue existed as to any material fact and that the defendants were entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in this action are Bruce Cirillo and Dawn Cirillo, coadministrators of the estate of Nicholas J. Cirillo.

       The defendants in this action are Frederick E. Sardo, Peabody N.E., Inc., and DDL Peterson Trust. On August 10, 1993, the trial court rendered summary judgment in favor of Peabody N.E., Inc. That ruling is not at issue in this appeal.

       General Statutes § 31-293a provides in pertinent part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. ...”

       The liability of the DL Peterson Trust as alleged in count two is derivative of the liability of Sardo. General Statutes § 14-154a provides for the derivative liability of the lessor of a motor vehicle.

       See footnote 2.

       The complaint alleges that Sardo was negligent by (1) traveling unreasonably fast in violation of General Statutes § 14-219a, (2) driving recklessly in violation of General Statutes § 14-222, (3) operating a motor vehicle that was not equipped with brakes adequate to bring it to a controlled stop in violation of General Statutes § 14-80h, (4) operating a vehicle with unsafe tires in violation of General Statutes § 14-98a, (5) operating a motor vehicle at an unreasonable rate of speed, (6) failing to keep his vehicle under proper and reasonable control, (7) failing to keep a proper and reasonable lookout for other motor vehicles on the highway, (8) failing to apply his brakes in time to avoid a collision, (9) failing to turn his motor vehicle to avoid a collision, (10) operating his vehicle with defective brake lights and hazard lights, (11) operating his vehicle without proper emergency equipment, (12) operating his vehicle without proper warning lights, (13) operating his vehicle half on and half off the traveled portion of the highway, (14) operating his vehicle without sufficient protective devices, (15) operating his vehicle at an unreasonable time of the day, (16) failing to operate his vehicle on the traveled portion of the highway and (17) operating his vehicle without providing for the necessary police vehicles and supervision to assist in alerting the oncoming traffic.

       The facts of this case are similar to the facts in Kiriaka. In that case, the plaintiff was a passenger in his employer’s moving van, which was being operated by a fellow employee. The driver stopped on a highway and parked the vehicle at the curb with its lights and flashers activated. While the vehicle was parked, the passenger got out and, while attempting to cross the highway, was struck by another motor vehicle. The driver had remained in the illegally parked vehicle. The passenger brought an action against his fellow employee alleging that the driver had parked the van illegally and had failed to take precautions to prevent injury to lawful users of the highway.


author: LAVERY, J. SCHALLER, J.,

text:
    JOHN DOE v. STATEWIDE GRIEVANCE COMMITTEE
    (14174)
    Lavery, Landau and Schaller, Js.
    Argued January 17
    officially released June 11, 1996

      James A. Wade, with whom, on the brief, was Craig Raabe, for the appellant (plaintiff).

      Darlene Frances Reynolds, assistant bar1 counsel, for the appellee (defendant).
   LAVERY, J.

The plaintiff appeals from the judgment of the trial court denying the plaintiffs request for a permanent injunction. On appeal, the plaintiff claims that the trial court improperly refused to enjoin the statewide grievance committee (committee) from proceeding in a matter in which the committee failed to comply with the temporal requirements set forth in General Statutes (Rev. to 1993) § 51-90g and Practice Book § 27J. We conclude that the trial court improperly denied the plaintiffs request to enjoin the committee from taking further action, and, accordingly, reverse the judgment of the trial court.

There is no dispute about the essential facts. The plaintiff, referred to anonymously in his verified complaint as John Doe, is an attorney licensed to practice law in the state of Connecticut. On June 18, 1993, the grievance panel of the judicial district of New Haven, geographical area number six (local grievance panel), commenced grievance proceedings against the plaintiff by filing a complaint with the committee. On August 31,1993, the local grievance panel determined that there was insufficient evidence to support a finding of probable cause that the plaintiff was guilty of misconduct. The local grievance panel filed its determination of no probable cause with the committee on September 2, 1993.

On December 16, 1993, the committee informed the plaintiff that, contrary to the determination of the local grievance panel, there was sufficient probable cause to hold a hearing to determine whether the plaintiff was guilty of misconduct. The committee took no further action until February 8,1994, when it assigned the matter to a subcommittee and scheduled a March 9, 1994 hearing. As of February 8, 1994, more than 120 days had elapsed since the local grievance panel filed its determination of no probable cause. On March 9, 1994, the plaintiff appeared before the subcommittee and filed a motion to dismiss the grievance proceedings on jurisdictional grounds. The subcommittee denied the plaintiffs motion. Thereafter, on March 10, 1994, the plaintiff filed a motion to dismiss the grievance proceedings with the committee based on the same jurisdictional grounds. The committee denied the plaintiffs motion.

The plaintiff commenced this action seeking to enjoin the committee from taking any further action on the underlying grievance complaint. The plaintiffs complaint alleges that the committee is without jurisdiction to take further action in this matter and its failure to render a decision within the statutory time period deprived the plaintiff of his due process rights. On October 25, 1994, the trial court rendered judgment denying the plaintiffs request for a permanent injunction. The plaintiff filed this appeal.

The dispositive issue in this appeal is whether the committee’s failure to comply with the timing requirements of General Statutes (Rev. to 1993) § 51-90g (g), now § 51-90g (h), and Practice Book § 27J (i) requires dismissal of the underlying complaint alleging attorney misconduct. The plaintiff argues that the committee’s failure to comply with the statutory timing requirements necessitates a dismissal of the complaint against the plaintiff. We agree.

We begin our analysis of the plaintiffs claim by recognizing that “the rules regulating attorney grievance procedures exist within the broader framework of the relationship between attorneys and the judiciary. ‘ “The practice of law is ... a profession the main purpose of which is to aid in the doing of justice ....”’ In re Application of Griffiths, 162 Conn. 249, 254-55, 294 A.2d 281 (1972), rev’d and remanded, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973), quoting Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 414, 165 A. 211 (1933). An attorney ‘as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him.’ In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). This ‘unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline.’. . . Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 524, 461 A.2d 938 (1983).” Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 237-38, 558 A.2d 986 (1989). “The regulation of attorney conduct is, therefore, within the court’s inherent authority. Section 51-90g and the parallel Practice Book rules authorized the grievance committee to act as an arm of the court in fulfilling this responsibility.” Id., 239.

The judiciary has exercised its inherent authority over attorneys by acquiescing to the statutory framework enacted by the legislature and promulgating concurrent rules. See General Statutes § 51-90 et seq.; Practice Book § 27F et seq. By acquiescing to these statutory procedures, the judiciary has limited the committee’s jurisdiction to only those matters acted on within the time limitations outlined in § 51-90g. State v. James, 211 Conn. 555, 561, 560 A.2d 426 (1989); Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). This court, therefore, will not require the committee to dismiss a complaint for failure to act in a timely manner unless such action is mandated by § 51-90g. Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 239.

Section 51-90g (g) is the applicable statute outlining the time constraints for committee review of local panel determinations of probable cause and committee hearings on grievance complaints. That statute provides that the committee “shall render its decision not later than four months from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. . . .” (Emphasis added.) We conclude that this language clearly and unambiguously mandates that the committee complete its action within four months.

“[W]e approach the task relying on familiar principles of statutory construction in order to determine the intent of the legislature. Police Dept. v. State Board of Labor Relations, [225 Conn. 297, 303 n.7, 622 A.2d 1005 (1993)]. ‘It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation. . . . Petco Insulation Co. v. Crystal, 231 Conn. 315, 321, 649 A.2d 790 (1994). In order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation. Broadley v. Board of Education, 229 Conn. 1, 6, 639 A.2d 502 (1994); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987).’. . . Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A.2d 850 (1995). The task of determining whether a particular provision is mandatory or directory involves the same criteria, namely, the statute’s language, the legislative history and the statutory context. Engle v. Personnel Appeal Board, 175 Conn. 127, 129-31, 394 A.2d 731 (1978).” Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 688-89, 674 A.2d 1300 (1996). “Where, as here, neither the context nor the legislative history indicates a contrary intent, ‘ [t]he use of the word “shall” by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive.’ Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986); see Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 233, 384 A.2d 384 (1978); 1A J. Sutherland, [Statutory Construction (4th Ed. Sands 1972)] § 25.QA.” Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 240; see also Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, supra, 689-90.

In Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 232, our Supreme Court similarly held that the time constraints contained in § 51-90g (c) were mandatory. The court held, however, that a subcommittee’s failure to comply with the timing requirements of § 51-90g (c) was not a jurisdictional defect absent a showing of prejudice. The court based its decision on the language of § 51-90g (c) which, upon the failure of a subcommittee to complete its action on a complaint within the time constraints, allows the committee to “inquire into the delay and determine the appropriate course of action.” The Supreme Court stated that “[s]uch a construction [requiring dismissal of the grievance complaint] would impermissibly render the final phrase of § 51-90g (c) a nullity. In implementing § 51-90g (c), the grievance committee has discretion to decide what remedy a particular delay warrants.” Id., 243. The Rozbicki court concluded that, despite the existence of a violation of § 51-90g (c), that section did not require the complaint to be dismissed. Id.

We hold that § 51-90g (g) requires dismissal of the complaint against the plaintiff. Unlike the time limitations on subcommittee action contained in subsection (c), § 51-90g (g) contains no language authorizing the committee to “inquire into the delay and determine the appropriate course of action.” “ ‘[W]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.’ ” 2B J. Sutherland, Statutory Construction (5th Ed. 1992) § 51.02, pp. 122-23, quoting Western States Newspapers, Inc. v. Gehringer, 203 Cal. App. 2d 793, 799, 22 Cal. Rptr. 144 (1962); see also Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 100-101, 653 A.2d 782 (1995). We find that the omission of language authorizing the committee to take discretionary action in the event of delay mandates a different conclusion from that found in Rozbicki. We hold that once the four month period outlined in § 51-90g (g) expired, the committee was without jurisdiction to take any further action on the complaint, including referring the complaint to a subcommittee.

The committee argues that § 51-90g (c) and Practice Book § 27J (e) are the applicable timing provisions when the committee assigns a complaint to a subcommittee after the expiration of the 120 day period. The committee asks us to conclude that it retains jurisdiction to assign a matter to a subcommittee after the expiration of the 120 day period. Under this theory, the committee could simply refer the matter to a subcommittee in1 order to revive its case under the savings provision in § 51-90g (c) and § 27J (e). This construction of the statute would lead to inconsistent results as the merits of an action enjoining the committee from taking further action on a grievance complaint would depend on whether the committee revived its grievance matter prior to the filing of the action. We must avoid such a construction of a statute that leads to bizarre and irrational results. State v. Spears, 234 Conn. 78, 92, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995). We hold, therefore, that the committee was without jurisdiction to assign the complaint to a subcommittee after the expiration of the 120 day period outlined in § 51-90g (g) and § 27J (i).

Our resolution of this issue is further supported by the legislative history of § 51-90g. In 1986, the legislature amended § 51-90g to protect the rights of attorneys as well as to bolster public confidence in the grievance procedure. As stated in the House of Representatives debate: “[I]t is extremely important at this point that the public know how the system works, that it have some assurance that the standards are going to be laid down and observed consistently ... by eliminating some of the abuses without itself becoming abusive to those whose professional integrity may be at stake.” 28 H.R. Proc., Pt. 23, 1985 Sess., p. 8561, remarks of Representative Richard Blumenthal. Public Acts 1986, No. 86-276, was enacted to expedite the grievance procedure by requiring that a subcommittee render its proposed decision within ninety days from the date the local grievance panel’s determination of probable cause or no probable cause was filed with the committee, and by requiring the committee to dispose of the case within four months. 28 H.R. Proc., Pt. 23, 1985 Sess., pp. 8529-30, remarks of Representative William A. Wollenberg.

Public Act 86-276 also authorized the committee to inquire into delayed subcommittee action and to determine the appropriate course of action. No such authorization was given to the committee when it fails to render a decision within the statutory time period. In 1988, the legislature amended the statute further to provide that “[t]he failure of the subcommittee to complete its action on a complaint within [the prescribed time periods] shall not be cause for dismissal of the complaint.” Public Acts 1988, No. 88-152, § 6. The legislature did not amend § 51-90g (g) to include similar language.

We find that the legislative history of § 51-90g unequivocally supports a conclusion that the committee is without jurisdiction to take action on a complaint once the four month period expires. The legislature amended § 51-90g (c) twice to allow the committee to inquire into subcommittee delay without requiring dismissal of the complaint. The legislature is presumed to know the existing state of relevant law when it enacts a statute. State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986). Had the legislature intended to allow committee discretion after expiration of the four month period, it would have amended § 51-90g (g) as it amended § 51-90g (c). We find, therefore, that the legislature intended that committee delay beyond the four month period mandates dismissal of the complaint.

Our conclusion is especially appropriate in a case such as this in which a local grievance panel found no probable cause that the plaintiff was guilty of misconduct. To hold otherwise would render the procedures outlined in § 51-90g and § 27J meaningless. We will not presume that the legislature enacted meaningless legislation or the judiciary promulgated useless rules. State v. Talton, 209 Conn. 133, 141, 547 A.2d 543 (1988). We conclude, therefore, that the trial court improperly refused to enjoin the committee from further action on the complaint.

The judgment is reversed and the case is remanded with direction to render judgment enjoining the defendant from proceeding on the grievance against the plaintiff.

In this opinion LANDAU, J., concurred.

SCHALLER, J.,

concurring. Although I concur in the result reached by the majority, I disagree with several aspects of the analysis.

As the majority notes, the dispositive issue in this case is whether the failure of the statewide grievance committee (committee) to comply with the time limitations of General Statutes (Rev. to 1993) § 51-90g (g), now § 51-90g (h), and Practice Book § 27J (i), requires dismissal of the underlying complaint alleging attorney misconduct. As in Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 233-34, 558 A.2d 986 (1989), which governs this case, this issue “concerns the relationship between the judicial department’s supervisory responsibility for the conduct of attorneys and the provisions of [statutory] . . . time constraints upon the adjudicatory processes of the Statewide Grievance Committee . . . with respect to complaints of attorney misconduct.”

Our Supreme Court stated in Rozbicki that “[requiring the grievance committee to dismiss a complaint whenever the review subcommittee has failed to act in a timely manner, with no discretion to pursue another course of action if appropriate, would frustrate the purposes of attorney grievance procedures and run counter to the special supervisory role of the courts in regulating attorney conduct. We will, therefore, require such action only if specifically so directed . . . .” Id., 239. Within this framework, the court analyzed § 51-90g (c). Initially, the court concluded that the word “shall” in § 51-90g (c) “ ‘connotes that the performance of the statutory requirements is mandatory rather than permissive.’ ” Id., 240. The court, nevertheless, relied on the savings clause in § 51-90g (c) to conclude that a delay by a subcommittee does not require dismissal. Id., 242-45.

Although the court also emphasized the broader context of the supervisory role of the judiciary in governing attorney conduct, our Supreme Court in Rozbicki based its decision primarily on the impact of the § 51-90g (c) savings clause. In the case before us, concerning the mandatory time limit of § 51-90g (g), the absence of a comparable savings clause together with the acquiescence of the judiciary in adopting the time limits in § 27J compels our result. When the committee is proceeding under § 51-90g (g), neither the statute nor the rule of practice authorizes discretionary action in the event of delay beyond the time limit. By adopting the statutory language in the rule of practice, the judiciary has bound the committee to the statutory standard, without allowing discretion as it carries out its supervisory role over attorney conduct. This court is bound by the analysis in the Rozbicki decision to reach that result. To this extent, I concur in the majority’s analysis.

Because the required result of this case, however, undermines the vital role of judicial supervision of attorney conduct, I disagree with the majority when it attempts to explain and justify the result in terms of reason, common sense and consistency with legislative history or purpose.

The result clearly does not fulfill all the important purposes indicated in the legislative history. The legislative history certainly contains language appropriately indicating that the supervisory process should not be abusive to attorneys. The legislature, however, was also concerned about dealing with the problem of attorney misconduct consistently and fairly in order to eliminate some of the abuses produced by that misconduct and to bolster public confidence in the grievance process. It is apparent that the purpose of expediting the process was at least as much for the benefit of the public as for those facing charges of misconduct. The result that we are compelled to reach in this case seriously diminishes any benefit to the public.

In this case, a two month delay by the committee in proceeding with a misconduct complaint against an attorney, whose anonymity is ensured and who has demonstrated no prejudice, results in dismissal of the complaint, effectively depriving the trial court of jurisdiction and the public of appropriate judicial supervision of attorneys. By virtue of the committee’s dereliction, the detrimental impact on public confidence in the judiciary’s authority to supervise attorney misconduct is palpable. The inherent supervisory authority of the judiciary on which our Supreme Court framed its analysis of § 51-90g (c) in Rozbicki should not be so easily subverted. See id., 237-39. By acquiescing in the language of § 51-90g (g), the judicial branch has contributed to limiting its own authority. We cannot, however, avoid being controlled by the conclusion in Rozbicki that the time limits in § 51-90g are mandatory. Id., 240.

I disagree also with the majority’s statement that this conclusion is “especially appropriate in a case such as this in which a local grievance panel found no probable cause that the plaintiff was guilty of misconduct.” Because of the trial court’s order requiring confidentiality, we do not know the identity of the attorney involved, the nature of the complaint, the reasons for the action of the local grievance panel or the reasons for the action and delay by the committee. It is not appropriate, on the record before us, to speculate as to the rationale or validity of either probable cause determination. I disagree, therefore, with the majority’s implicit approval of the local grievance panel’s determination.

Finally, the majority’s attempt to justify this result in terms of consistency, logic, or common sense must fail. The majority concludes that it would be a bizarre result to allow a committee to revive a case by submitting it to a subcommittee after its 120 days to act has elapsed. Under the result that this court reaches today, however, the committee can refer every case to a subcommittee at the outset, thereby assuring itself of the discretionary authority of § 51-90g (c) to act later. This also leads to an incongruous and absurd result. When the committee promptly refers the matter to a subcommittee, it assures itself of not being strictly bound by the 120 day requirement. If the subcommittee delays, the committee is empowered with discretion to “inquire into the delay and determine the appropriate course of action.” General Statutes § 51-90g (c). On the other hand, as in the present case, if the subcommittee referral does not take place within 120 days, the very same committee has no such discretion and becomes powerless to act on a grievance complaint. In that respect, the present result is neither reasonable nor sensible.

Accordingly, I concur in the result.

       On April 13, 1994, the trial court granted the plaintiffs request to proceed in this matter anonymously as John Doe. In its memorandum of decision, the trial court ordered that the plaintiffs identity not be disclosed until the appeal period expired. The trial court also stated that it would schedule argument on the issue of whether the plaintiffs identity should be disclosed during the pendency of the appeal. The record does not reveal any further action by the trial court concerning the plaintiffs anonymity in this matter.

       The parties stipulate that the grievance proceeding relates to an incident alleged to have occurred on or about December 12,1990, that did not involve a client or clients’ funds.

       A grievance proceeding against an attorney is commenced by filing a complaint with the statewide bar counsel. Any person may file a written complaint alleging attorney misconduct. Within seven days, the statewide bar counsel shall refer the complaint to the appropriate local grievance panel for investigation. General Statutes § 51-90e (a); Practice Book § 27F (a). The grievance panel shall investigate the complaint and, within ninety days, determine whether probable cause exists that the attorney is guilty of misconduct. General Statutes § 51-90f (a) and (c); Practice Book § 27F (c) and (f). If the local grievance panel makes a finding of probable cause, the committee either conducts a hearing itself or refers the matter to a subcommittee. General Statutes § 51-90g (a); Practice Book § 27J (c). Similarly, if the local grievance panel makes a finding of no probable cause, the committee either reviews the matter itself to determine whether it agrees with the local grievance panel’s determination of no probable cause or refers the matter to a subcommittee for such review. General Statutes § 51-90g (a); Practice Book § 27J (c). Upon a finding of probable cause, either the committee or a subcommittee holds hearings on the complaint. General Statutes § 51-90g (c) and (g); Practice Book § 27J (c) and (i).

       General Statues (Rev. to 1993) § 51-90g (g), now § 51-90g (h), provides: "When the committee conducts the hearing or hearings under this section, it shall render its decision not later than four months from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. . . .” Public Acts 1993, No. 93-370, amended § 51-90g inserting a new subsection (g) and redesignating former subsection (g) as subsection (h). We refer in this opinion to the applicable section as § 51-90g (g).

       Practice Book § 27J (i) provides in pertinent part: “If the statewide grievance committee does not assign a complaint to a reviewing committee, it shall have one hundred and twenty days from the date the panel’s determination concerning probable cause was filed with it to render a decision dismissing the complaint, imposing sanctions and conditions as authorized by Sec. 27M.1 or directing the statewide bar counsel to file a presentment against the respondent. . . .”

       We recognize that legislation regulating attorney grievance procedures raises issues concerning separation of powers. Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652 (1961); see also State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974). We do not reach these constitutional issues because the judiciary has acquiesced to the legislative procedures. Adams v. Rubinow, supra, 157 Conn. 156.

       General Statutes (Rev. to 1987) § 51-90g (c) provided: “The subcommittee shall conclude any hearing or hearings and shall render its proposed decision not later than ninety days from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. The subcommittee may file a motion for extension of time not to exceed thirty days with the state-wide grievance committee which shall grant the motion only for good cause shown. If the subcommittee does not complete its action on a complaint within the period of lime provided in this section, the state-wide grievance committee shall, on motion of the complainant or the respondent or on its own motion, inquire into the delay and determine the appropriate course of action.” Public Acts 1988, No. 88-152, amended § 51-90g (c) to provide that the failure of the subcommittee to complete its action on the complaint within the time provided in the section “shall not be cause for dismissal of the complaint.” The Rozbicki court found that the legislature’s silence when amending § 51-90g (c) supported an inference that the legislators considered the additional sentence to be a clarification of § 51-90g (c) rather than a departure from the original meaning of the section. See Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 243-44.


author: PER CURIAM.

text:
    DEWITT LEWIS ET AL. v. MICHAEL MATTEO ET AL.
    (14029)
    O’Connell, Lavery and Hennessy, Js.
    Argued March 29
    officially released June 18, 1996

      Margaret J. Slez, with whom, on the brief, was Anthony F. Slez, for the appellants (plaintiffs).

      Rita Steinberger, pro se, the appellee (defendant), with whom, on the brief was Mary E. Wexler.

   PER CURIAM.

This appeal arises out of an action brought by the plaintiffs to prove ownership by adverse possession of a parcel of land that abuts the property on which they reside. The adverse possession action was the plaintiffs’ second attempt to establish ownership of the parcel. The first attempt was a quiet title action alleging title to the parcel by warranty deed.

In the quiet title action, the defendants filed a special defense that the plaintiffs could not acquire the parcel by adverse possession. The plaintiffs responded to the special defense that they were not claiming ownership by adverse possession. The action was tried to an attorney trial referee, who concluded that the plaintiffs had not claimed title by adverse possession and that they had failed to prove ownership by deed. The trial court rendered judgment for the defendants in accordance with the referee’s findings.

Subsequently, the plaintiffs filed the adverse possession action that is the subject of this appeal. Before rendering judgment, the trial court asked the parties to submit posttrial briefs addressing the defendants’ special defense that the adverse possession action was barred by res judicata. After briefs were submitted, the trial court rendered judgment for the defendants.

The plaintiffs claim that the trial court improperly (1) held that the decision in the prior quiet title action had res judicata effect on the plaintiffs’ subsequent adverse possession claim, and (2) rendered judgment for the defendants in conflict with default judgments rendered against other defendants.

We are persuaded by our examination of the record, briefs and arguments of the parties, that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Lewis v. Matteo, 44 Conn. Sup. 189, 679 A.2d 426 (1995). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Federal Home Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 667 A.2d 806 (1995); State v. Mobley, 33 Conn. App. 103, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

The judgment is affirmed.

       The attorney trial referee, however, recommended judgment for the plaintiffs on land lying beneath a building that they already owned.

       In their second claim, the plaintiffs raise issues concerning the effect of default judgments against nonappealing defendants. The parties who were defaulted were not part of the trial court’s judgment on the merits and were not involved in this appeal. We therefore do not address the propriety or effect of default judgments against the nonappealing defendants.


text:
    REPUBLIC INSURANCE COMPANY v. PAT DINARDO AUTO SALES, INC., ET AL.
    (14562)
    O’Connell, Lavery and Hennessy, Js.
    Argued March 29
    officially released June 18, 1996

      Janine M. Becker, with whom, on the brief, was Daniel Shepro, for the appellants (defendants).

      Brett L. Whitton, for the appellee (plaintiff).
   PER CURIAM.

The plaintiff, as surety, and the defendants, as principals, executed a surety bond for the completion of subdivision improvements for the town of Monroe by the defendants. The plaintiff executed this bond in consideration for the defendants’ signing an indemnity agreement that provided in part that the defendants would indemnify the plaintiff “from and against any and all liability, loss, costs, damages, attorney’s fees and expenses of whatever kind or nature which [the plaintiff] may sustain or incur by reason or in consequence of executing any such bond or bonds as surety. ...”

The defendants subsequently breached the terms of their contract with Monroe. As a result of that breach, Monroe filed an action against the plaintiff as surety and the defendants as principals on the bond. In accordance with the findings of an attorney trial referee, the trial court rendered judgment against both the plaintiff and the defendants.

In satisfaction and discharge of its obligation under that judgment, the plaintiff paid Monroe $91,000 and then brought this action against the defendants to recover monetary damages pursuant to the indemnity agreement. In rendering judgment in the present case, the trial court awarded the plaintiffs moneys paid under the surety bond, interest, costs and attorney’s fees.

The defendants claim that the trial court improperly (1) concluded that collateral estoppel did not bar the plaintiffs claim, (2) interpreted Public Acts 1993, No. 93-370, and (3) applied Public Acts 1993, No. 93-370, retroactively to its claim.

We are persuaded by our examination of the record, briefs and arguments of the parties that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Republic Ins. Co. v. Pat Dinardo Auto Sales, Inc., 44 Conn. Sup. 207, 678 A.2d 516 (1995). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Federal Home Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 788, 667 A.2d 806 (1995); State v. Mobley, 33 Conn. App. 103, 105, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

The judgment is affirmed.


text:
    WILBERT PEART v. PSYCHIATRIC SECURITY REVIEW BOARD ET AL.
    (14881)
    Heiman, Spear and Spallone, Js.
    Argued March 25
    officially released June 18, 1996

      William B. Wynne, with whom was Edward Matti-son, for the appellant (plaintiff).

      Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   SPEAR, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant psychiatric security review board (board). The board denied a request to transfer the plaintiff, who had been found not guilty of arson in the first degree by reason of mental illness, from a maximum security hospital to a less restrictive facility. Subsequent to the filing of his appeal, the plaintiff was transferred to a less restrictive facility. We conclude that his claims are moot.

The record discloses the following relevant facts and procedural history. In September, 1991, the court committed the plaintiff to the jurisdiction of the board for a period not to exceed twenty-five years. The board immediately placed the plaintiff at the Whiting Forensic Institute (Whiting), the state’s maximum security hospital for persons acquitted of charges because of a mental disease or defect.

In March and May, 1994, physicians at Whiting recommended that the plaintiff be transferred to Fairfield Hills Hospital (Fairfield Hills), a less restrictive facility. The board considered this recommendation on May 20, 1994, at a hearing pursuant to General Statutes § 17a-585. Two physicians from Whiting testified that the plaintiff had responded well to treatment and that he would not pose a danger to himself or others if transferred to Fairfield Hills. One of those physicians testified, however, that the plaintiff had a history of escapes from other facilities. A physician from Fairfield Hills testified as to his concern about the plaintiffs desire to wear symbols of white supremacy. He testified that he did not believe this behavior to be significant because it could be treated at Fairfield Hills. Other evidence introduced at the hearing included transcripts and exhibits from prior hearings conducted by the board.

In a memorandum of decision dated June 27,1994, the board denied the request to transfer. The memorandum summarized the evidence, referenced the plaintiffs prior history, addressed the plaintiffs social behavior, and alluded to the testimony concerning the symbols of white supremacy worn by the plaintiff. The board concluded that “while [the plaintiff] has made progress in his treatment, he has not demonstrated a sufficient level of socially appropriate behavior and insight into interpersonal relationships to be safely treated in a setting less restrictive than maximum security.” The board further concluded that because of his mental condition, “he is potentially so violent and an AWOL risk constituting a threat to public safety that he requires confinement in maximum security.”

On appeal to the trial court, the plaintiff claimed that the board improperly ignored the expert testimony of the physicians who recommended his transfer. The trial court, in dismissing the appeal, found that the board was not required to accept the physicians’ testimony. After the plaintiff filed his appeal to this court, Whiting again applied to the board to transfer the plaintiff to a less restrictive hospital. The board granted the application and ordered that the plaintiff be transferred to the nonmaximum security division of the Connecticut Valley Hospital, a less restrictive setting equivalent to Fairfield Hills.

Mootness implicates the subject matter jurisdiction of this court. Ayala v. Smith, 236 Conn. 89, 93, 671 A. 2d 345 (1996); First Trust National Assn. v. Hitt, 36 Conn. App. 171, 174, 649 A.2d 798 (1994). We will not decide questions where there exists no actual controversy or where no actual or practical relief can follow from our determination. Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134, 566 A.2d 703 (1989); Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 505, 671 A.2d 844 (1996). “An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.” Sobocinski v. Freedom of Information Commission, supra, 135. Moreover, “ ‘[w]hen, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.’ ” Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995), quoting In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994).

We cannot grant any practical relief in this case. The relief originally sought by the plaintiff in his appeal was a decision ordering his transfer to a less restrictive hospital. The plaintiff has since obtained the requested relief. His claims are, therefore, moot, and we are deprived of subject matter jurisdiction.

The plaintiff, nevertheless, contends that he will suffer “collateral legal disabilities” unless we vacate the board’s June 27,1994 memorandum of decision and the findings made therein. At oral argument, the plaintiff asserted that the board’s findings that he was an escape risk and wore symbols of white supremacy will adversely affect him at any future hearing concerning his confinement in a state mental facility. He argues that the removal of these collateral legal disabilities by vacating these findings is practical relief. We disagree.

After the trial court issued its memorandum of decision, the board granted a second application to transfer the plaintiff to a less restrictive hospital. It is clear, then, that the findings made by the trial court in its memorandum did not adversely affect the plaintiff. In fact, the weight of the findings that the plaintiff now requests we vacate were greatly dissipated by the board’s reevaluation and recent determination that he no longer requires confinement in a maximum security hospital.

Additionally, we find no authority that grants us the power to vacate a memorandum of decision and expunge the findings of fact contained therein. The plaintiff, at oral argument, relied solely on our decision in Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 642, 626 A.2d 804 (1993), to support his argument. That decision, however, stands only for the well settled proposition that this court has the power to “change . . . a judgment [to effect] justice . . . .” (Emphasis added.) Id. The decision in Altberg does not provide us with the authority to vacate a memorandum of decision and to expunge the findings of fact.

The plaintiff last argues that his claims on appeal fall within the “capable of repetition, yet evading review” exception to the mootness doctrine. We disagree.

“[F]or an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance.” Loisel v. Rowe, supra, 233 Conn. 382. All three requirements must be satisfied in order for this exception to the mootness doctrine to apply. Id., 382-83.

The plaintiffs claims center around the board’s substitution of its own opinion for those of the physicians who offered expert testimony at the plaintiffs hearing. While the issue of whether the board must accept the testimony of expert witnesses may arise in the future, there is not a strong likelihood that a substantial majority of cases raising this issue will become moot before appellate litigation can be concluded. The plaintiffs claims became moot only after Whiting reapplied to have the plaintiff transferred, the board reevaluated the plaintiffs condition, and then determined that the plaintiff was ready to be transferred to a less restrictive hospital. It does not seem likely that a substantial majority of cases, where the board initially denies a request to transfer, will proceed along this procedural path. We conclude that the first Loisel factor is not satisfied and that the “capable of repetition, yet evading review” exception, therefore, does not apply. Having reached this conclusion, we need not address the two remaining requirements.

The appeal is dismissed.

In this opinion the other judges concurred.

       The plaintiff claims that the trial court improperly failed to find that the board (1) did not base its decision on substantial evidence, (2) improperly substituted its own opinions for those of expert witnesses, and (3) was required to reveal its special knowledge and expertise and give notice of those facts material to its decision.

       The Whiting Forensic Institute is now the Whiting Forensic Division of the Connecticut Valley Hospital.

       General Statutes § 17a-585 provides in relevant part that “[t]he board shall conduct a hearing and review the status of the acquittee not less than once every two years. . . .” General Statutes § 17a-596 details the procedures that apply to these hearings.

       Fairfield Hills was closed as part of the consolidation of the state’s mental health facilities.

       Because the issue of mootness arose after the parties had submitted their briefs to this court, we requested that the parties be prepared to address the issue at oral argument.

       See footnote 1.


text:
    STATE OF CONNECTICUT v. ROY E. CLINE
    (14453)
    Landau, Heiman and Hennessy, Js.
    Argued April 24
    officially released June 18, 1996

      Stephen F. Cashman, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward Wilson, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The defendant appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere and a subsequent finding of guilty, of possession of narcotics in violation of General Statutes § 21a-279.* We affirm the judgment of the trial court.

The defendant asserts that the trial court improperly denied his motion to suppress certain narcotics, United States currency, and a telephone paging device seized from him incident to his arrest. The defendant argues that the police lacked probable cause to arrest him and, therefore, that the items he sought to suppress were not seized pursuant to a lawful arrest.

We conclude that this case is controlled by the decision of our Supreme Court in State v. Velez, 215 Conn. 667, 577 A.2d 1043 (1990).

The judgment is affirmed.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes § 21a-279 provides in pertinent part: “(a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned . . . .”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. EDWIN MEJIAS, JR.
    (13871)
    O’Connell, Foti and Spear, Js.

      Argued March 26
    officially released June 18, 1996

      Earle Giovanniello, with whom, on the brief, was Frank J. Riccio, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard L. Palombo, assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction rendered after a jury trial on charges of robbery in the first degree in violation of General Statutes §§ 53a-119 and 53a-134 (a) (4), and larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (2), and rendered after a plea of guilty to the charge of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (1). The defendant claims that the trial court improperly (1) instructed the jury, and (2) denied his motion to withdraw his plea of guilty. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the morning of August 8, 1992, the defendant, armed with a gun and accompanied by an accomplice, robbed a branch of the Connecticut National Bank located in Fairfield. Following the robbery, the two perpetrators sped off in a small white Datsun automobile, with the defendant seated on the passenger side. Shortly thereafter, the police, after responding to a dispatch regarding the bank robbery, located the described vehicle and pursued it until it stopped in the middle of the street. The defendant, who was then in the driver’s seat, was the only person in the automobile. After being stopped, the defendant fled on foot. The police chased and eventually apprehended the defendant. During the chase, the defendant pointed a gun at one of the police officers. After the police captured the defendant, they performed a search of the defendant’s person and found a pair oflatex gloves in his pocket. A subsequent search of the vehicle disclosed a screwdriver and revealed that the steering column had been tampered with, making it apparent that it was a stolen vehicle. An envelope found in the car tested positive for the chemical used in dye packs. During the robbery, one of the perpetrators had taken a packet of money containing dye. The police later determined that the car from which the defendant had fled, was a stolen vehicle valued at $ 1300.

At the close of evidence, and after the defendant had rested, he requested, through counsel, to be permitted to change his plea to guilty to the charge of larceny in the third degree. Over the state’s objection, the trial court allowed the defendant to plead guilty to the larceny of the motor vehicle. After accepting the plea, the court gave an initial instruction to the jury as follows: “During the course of the last recess, I have accepted a plea of guilty to the third count of the information, charging larceny of the automobile. I do that in accordance with the evidence that I have heard, and upon the request of the accused, who elected to change his plea with the advice of counsel. And, suffice it to say, at this point, that I have conducted the canvass and I am satisfied that the plea is intelligently and legally entered, and, therefore, would not be any longer your concern. It is mine. So that the only thing remaining for you are the first and second counts of this complaint. And they, the state has elected to charge this accused with a two count information, now that the third count is gone, and there will be a new [information] just indicating the two counts, and they charged robbery in the first degree, and I will explain that to you, what that offense is, when the time comes, and then the second count they have charged larceny in the first degree.”

During final instructions, the court stated: “Let me explain to you, as well, that the fact that he has pleaded guilty to the other charge is independent and distinctive from the first two. You wouldn’t convict him of the third, because you felt he committed the first two. You wouldn’t convict of the first or second, because he has pleaded guilty to the third. I told you that is what happened, to remove it from your consideration as unnecessary at this juncture. But you will consider the proof concerning that taking, and concerning the possession, and what occurred as proof in connection with the robbery in the first degree and larceny that you heard here before you. So it’s not as though any part of that is barred from your consideration.” At no time did the defendant object to either instruction, nor did he request a mistrial.

The defendant argues that the initial instruction was improper because his guilty plea was not in evidence, was incriminating and was not harmless, in that it denied him the right to a fair trial. We do not agree.

It is obvious from the record before us that the defendant’s plea of guilty to the charge involving the larceny of the automobile was a defense strategy designed to obtain an acquittal of the bank robbery and larceny charges. Without admitting guilt to the stolen car charge, he could not explain being in the car, the chase, and his flight and apprehension as part of the “bad day” defense. The crux of his counsel’s final argument can be summed up by one statement made by defense counsel in closing argument. “Talk about having a bad day, not only does he steal a car from a thief, he steals a car from a thief who just used it in a bank robbery.”

We agree that evidence of a codefendant’s guilty plea may be improper to establish that the crime was committed; State v. Pikul, 150 Conn. 195, 198, 187 A.2d 442 (1962); but here, the defendant’s own plea to one count of a three count information, accepted after the jury had heard all the evidence, made the trial court’s initial instruction proper to remove that one count from their consideration. We cannot discern that the defendant was irreparably prejudiced by the trial court’s announcement of the guilty plea. The trial court expressed proper cautionary instructions. “The jury [is] presumed to follow the court’s directions in the absence of a clear indication to the contrary.” State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978).

The defendant next claims that the trial court improperly denied his motion to withdraw his guilty plea. He claims that the plea was entered without a full understanding of the nature of the charge, that he did not understand that the charge required that he knew or believed that the car probably was stolen, and that other procedural defects in the plea litany existed. We have reviewed the record and observe that following the defense’s case the defendant asked to plead guilty to theft of the automobile and explained that he had entered and driven a car, knowing it to be stolen. During the plea canvass, the defendant stated: “I pleaded guilty because I know I’m guilty. It was a stolen car.” He presented evidence during the trial sufficient to demonstrate that he actually stole the car. He thereafter entered his plea of guilty and now complains that there is nothing in the record to indicate that he understood that the charge required that he knew or believed that the car probably was stolen. We reject this claim and construe it to be made as a result of a trial strategy that did not produce a desired result.

The record is also clear that the defendant was aware of his right against self-incrimination, and exercised that right to remain silent by choosing not to testify. Under the particular circumstances of this case, where the defendant has already exercised his right to a jury trial, his right to confront witnesses and his right against self-incrimination, we cannot conclude that the trial court abused its discretion in denying the defendant’s request to withdraw his plea, and that the plea was not knowingly, voluntarily and intelligently made.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is no explanation in the trial court record or in the briefs as to when or where the defendant ceased being the passenger in the vehicle and became the driver and sole occupant of the automobile.

       During the trial, one of the bank employees testified that a dye pack is a packet of money containing a dye that explodes when removed from the bank.

       Counsel for the defendant argued during closing arguments: “Why did this defendant just plead guilty to possession of that car? One of two things, he either took it from Mr. Maran, who owned the vehicle, which David Sierras says is not the case, or he stole it while it was running in the middle of PT Bamum, in which case he is not entitled to either. And talk about having a bad day, let’s assume for sake of argument that he did come out of the building, which evidence seems to indicate that he did, and he bought some drugs and walks out, there is a car motor running, well, you know, like I just found the mother lode. He is getting out of here, he is going to take the car. The motor is running, the ignition is punched, he knows it’s stolen. He is gone. Of course, I’m sure he had tire full spectrum of emotions because he thought he had made his score, and within a hundred yards he finds out there is all kinds of cops.
      “Why is this important? It’s important to you not because the state says ah, yes, this was the car used in the bank robbery, the most significant piece of evidence, I think, is that what [the] state objected to in your presence, which subsequently was admitted before you. What is the first thing that this defendant says when the police pull him out of the — or he walks out of the attic or fell through the ceiling, I don’t know how he got out of the attic, something along these lines of ‘All these cops for a stolen car? I was going to take [the car] on a joy ride.’
      “The significance to this is that unless we are dealing with a person who is so alert to what the elements of the crime have to be, and how they are connected and so forth and so on, it would seem that his statement to the police officer is the natural statement. I think this is significant, because one learns you can steal from a thief, if you believe that story, it’s a violation of law which would not be related to, in any respect, the bank robbery that occurred in Fairfield.
      “Talk about having a bad day, not only does he steal a car from a thief, he steals a car from a thief who just used it in a bank robbery. Does that mean he was at the bank robbery? I believe that is the leap of faith and the inference being asked of you by the state, and in fact in order to — in order to — convict this defendant, that is the leap of faith you are going to have to make. That is the leap of faith.”

       Defense counsel stated, prior to sentencing: “The impact and the interplay between the larceny three which it was concluded at least during the trial, it was a strategic move has been looked upon as something not very good strategy in view of the ultimate conclusion.”

       Having “lived” his rights during the trial, the defendant cannot be viewed as being unaware of those rights. A plea itself, under these circumstances, acts as the waiver.