text:
    IN RE TYSCHEICKA H.

    (AC 20369)
    Lavery, C. J., and Spear and Hennessy, Js.
    Argued September 20
    officially released December 5, 2000

      R. J. Rigat, with whom, on the brief, was Matthew T. Gilbride, for the appellant (respondent mother).

      Bette L. Paul, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Benjamin Zivyon, assistant attorneys general, for the appellee (petitioner).

      Howard J. Haims, for the minor child.

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

   Opinion

HENNESSY, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights in her daughter. On appeal, the respondent claims that the court improperly found that the petitioner, the commissioner of children and families (commissioner), proved by clear and convincing evidence that (1) the respondent had failed to achieve sufficient personal rehabilitation pursuant to General Statutes § 17a-112 and (2) the termination of the respondent’s parental rights was in the child’s best interest. We disagree and affirm the judgment of the trial court.

The court reasonably could have found the following facts. The respondent, who was seventeen years old at the time, gave birth to the child on February 14, 1997. In May, 1997, the child suffered acute febrile illness and shock due to the loss of fluids from vomiting and diarrhea and was admitted to the hospital. Shortly after the child’s release from the hospital, a visiting nurse assigned to aid the respondent in caring for the child reported that the respondent did not have either a crib or diapers for which to clothe the child. During the three weeks between the time she left the hospital in May and the filing of the neglect petition at the end of June, the child had lost one pound, and, when visited by the nurse, the respondent refused to show the nurse the formula that she gave the child.

On June 30,1997, the petitioner filed a neglect petition and obtained temporary custody of the child. On September 4,1997, the court found the child to be neglected and committed her to the custody of the petitioner for a period of one year. This commitment has been extended by the court every year since that time.

The court, in its decision, recommended that the respondent take certain steps to correct the problems that resulted in the child’s removal from the respondent’s care. These steps included participating in parenting programs, visiting the child, who had been placed in a foster home, successfully completing substance abuse treatment, refraining from the use of illegal drugs, securing and maintaining adequate housing, and submitting to a court-ordered psychological evaluation that includes a clinical assessment and a parent-child evaluation. Throughout the year, following the commitment of the child to the commissioner, the respondent’s compliance with the court’s recommendations were, in the words of her own attorney, “less than exemplary.” As a result, on September 29, 1998, the petitioner filed a petition in accordance with § 17a-112 (c) (3) (B) (1) to terminate her parental rights. Thereafter, the court rendered judgment terminating the respondent’s parental rights. This appeal followed.

I

The respondent first claims that the court, in the adjudicatory phase of the hearing, improperly found that the petitioner proved by clear and convincing evidence that the respondent failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child.

In January, 1999, the respondent entered Coventry House. The respondent argues that since she entered Coventry House, she has progressed in developing her ability to care for her child. She contends that the court has not given her progress the proper weight in assessing whether rehabilitation is “foreseeable within a reasonable time.” We disagree.

“The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the disposi-tional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.” (Citation omitted.) In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995).

Section 17a-112 (c) (3) (B) would allow parental rights to be terminated “if by clear and convincing evidence it is established that the respondent’s level of rehabilitation falls short of the level which would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position. . . . Thus, the statute requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Emphasis in original; internal quotation marks omitted.) In re Hector L., 53 Conn. App. 359, 366-67, 730 A.2d 106 (1999). “In making the adjudicatory determination, the court is limited to considering events preceding the filing of the termination petition or the latest amendment.” (Internal quotation marks omitted.) In re Kasheema L., 56 Conn. App. 484, 487, 744 A.2d 441, cert. denied, 252 Conn. 945, 747 A.2d 522 (2000). In the dispositional phase of the termination hearing, “the court can consider all events occurring prior to the date of the dispositional hearing, including those occurring after the filing of the termination petition.” (Internal quotation marks omitted.) Id., 488.

In reaching a conclusion as to whether the prospects for rehabilitation can be realized, “the trial court’s inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent’s child caring and parenting abilities. ... A determination by the trial court under [the statute] that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Tabitha P., supra, 39 Conn. App. 361.

The following additional facts are relevant to our disposition of this claim. After reviewing the respondent’s parenting abilities from September 4, 1997, the date the court found the child to be neglected, to September 29,1998, the date the petitioner filed the petition to terminate parental rights, the court found little improvement in the respondent’s ability to parent and provide for the child.

During the period of time when the child was in foster care, the respondent was referred to a number of social service programs, including counseling, job training and a general equivalency diploma (GED) program, but she failed to take full advantage of these opportunities. For example, the respondent attended a family connections program with Catholic Family Services, which monitored her visits with her child, but the agency reported that the respondent did not show sensitivity to her child’s needs. She did not benefit from the parenting programs, she continued to abuse drugs and she lacked either the housing or income necessary for her care of the child. In addition, the respondent joined a drag treatment center, but tested positive for marijuana several times between February and October, 1998. She once tested positive for phencyclidine and for cocaine. The respondent also failed to participate in or benefit from five other parenting, substance abuse or GED programs. Moreover, on occasion, the respondent arrived late for visits with the child and, at times, appeared to be under the influence of drags. The court found that the respondent’s level of rehabilitation fell short of that required by the statute at the time the petition to terminate her parental rights was filed.

On the basis of the evidence before the court, the court found that rehabilitation was not foreseeable within a reasonable time. We conclude that the court’s finding that the respondent failed to achieve sufficient personal rehabilitation was not clearly erroneous.

II

The respondent next claims that the court improperly found that termination of her parental rights was in the child’s best interest. Specifically, the respondent argues that after the petition to terminate her parental rights was filed, she voluntarily entered Coventry House, participated in its programs and made sufficient progress in rebuilding her life to demonstrate to the court that she could assume a responsible position in the child’s life within a reasonable time. The respondent contends that the need for permanency in the child’s life can be achieved through long-term foster care or a transfer of guardianship to the foster parent, rather than a termination of parental rights. She argues that this would provide the child with the “best of both worlds,” that is, a safe home and the maintenance of the connection between the child and her natural mother.

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [General Statutes] § 17a-112 (d). On appeal, we will disturb the findings of the trial court in both the adjudication and disposition only if they are clearly erroneous.” In re Tabitha P., supra, 39 Conn. App. 361-62.

In January, 1999, the respondent voluntarily entered Coventry House. Shortly thereafter, the respondent gave birth to her second child. While in the facility, the respondent participated in a series of programs that addressed drug and alcohol abuse, parenting and money management. The respondent also participated in counseling. Her progress while a resident at Coventry House provides the basis for the respondent’s argument that her parental rights should not have been terminated. The court, while recognizing that the respondent had made progress, determined that more time was needed and more had to be done to address fully the respondent’s problems. It concluded that the termination of the respondent’s parental rights was in the best interest of the child.

The court considered and made written findings regarding the factors set forth in § 17a-112 (d). The petitioner made a host of services available to facilitate the reunion of the child with the respondent, including one that addressed the respondent’s drug and alcohol abuse. The petitioner arranged and made available regular visitation, parenting programs and counseling. Clear expectations for the respondent were set forth, but not met. The child’s age and emotional ties with the respondent and the foster parent were reviewed, and the frequency and quality of the respondent’s visits with the child were also considered.

The court found that the child, who was now approaching four years of age and had been in foster care for all but four months of that time, needed a permanent and stable environment. This need was also recognized by Nancy Randall, a court-appointed psychologist, who evaluated the respondent. Randall concluded that “[t]here are enough concerns about [the respondent’s] future ability to provide appropriate care for her children that it is not advisable to allow her daughter to wait the amount of time needed to further assess this. . . . [The child] has already been in care too long to further delay her ability to move into a permanent home. It is recommended that she be freed for adoption and placed in a permanent family as quickly as possible.”

Cheryl Ellis, a child services manager at Coventry House responsible for developing a therapeutic child program, supervised the visits between the respondent and her child. She also supervised other activities of the respondent. She arranged treatment at Children’s Village, which allowed the respondent to explore her own needs, and further arranged for the respondent to participate in a GED program. Ellis urged the respondent to continue with therapeutic one-on-one counseling, to continue her education and to live in “supported or transitional housing” when she left Coventry House because “she is a young woman without a lot of skills and without a lot of community support.”

The respondent expressed her desire, if not intention, to leave Coventry House at the end of the year 2000 and to live independently, relying on her mother and other relatives in her community to help her. The court found that the respondent is not fully prepared to live independently, is without the necessary education for gainful employment and without the therapeutic counseling that would strengthen her ability to remain drug free and to cope with the stresses of caring for two young children. The court also expressed concerns about the ability of the respondent’s relatives to give the necessary structure and support for her success. Although the testimony supported the respondent’s contention that she had made progress in many areas, the evidence also supported the proposition that she needed more time at Coventry House and more time in a structured living situation in the community.

Upon reviewing the detailed decision of the trial court and the evidence contained in the entire record, we conclude that the court’s finding that the termination of the respondent’s parental rights is in the best interest of the child is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court, in addition to terminating the respondent mother’s parental rights, also denied her motion for revocation of commitment and her petition to transfer guardianship. The respondent father consented to the termination of his parental rights and is not a party to this appeal. We refer to the respondent mother as the respondent.

       General Statutes § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 or section 17a-lllb that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that . . . (B) the parent of a child who (1) has been found by the Superior Court, to have been neglected or uncared for in a prior proceeding . . . and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . .

       Coventry House is a facility with an inpatient drag program for pregnant women and women with small children.

       Phencyclidine is a tranquilizer known as “angel dust.”

       The foster parent who expressed her desire to adopt the child offered the respondent visitation with the child after adoption. The foster parent did not agree to accepting a transfer of guardianship.

       General Statutes § 17a-112 (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       See footnote 6.

       The Children’s Village is a facility that provides counseling for many of the residents of Coventry House.


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    CARL R. BAUER v. MALCOLM C. POUNDS ET AL.
    (AC 19136)
    Lavery, C. J., and Schaller and Healey, Js.

      Argued September 18
    officially released December 5, 2000

      John J. LaCava, for the appellant (plaintiff).

      John A. Blazi, for the appellees (defendant H.N.S. Management Company, Inc., et al.).
   Opinion

HEALEY, J.

The plaintiff, Carl R. Bauer, cross appeals from the judgment of tire trial court granting the motion to set aside the jury’s verdict filed by the defendant H.N.S. Management Company, Inc. (H.N.S.), doing business as Connecticut Transit, in this personal injury action. The plaintiff claims that the court improperly granted the motion because (1) it was based on factual and legal grounds different from those set forth in a previous motion H.N.S. had filed seeking a directed verdict, which was denied after the close of the plaintiffs case-in-chief, (2) it incorporated facts that were not presented at trial, (3) there was sufficient evidence from which the jury reasonably could infer that H.N.S. owned the bus involved in the motor vehicle accident at issue and (4) at the relevant time, the defendant John Doe was driving the bus in the usual course of the business of H.N.S. and was one of its agents or employees. We reverse in part the judgment of the trial court.

The following procedural history is relevant to this appeal. The plaintiff brought an action for negligence seeking to recover damages for personal injuries arising out of a motor vehicle accident that occurred on October 20, 1992, on High Ridge Road in Stamford. The plaintiff named four defendants: Fairfield Home Oil Corporation, Malcolm C. Pounds, H.N.S. and Doe. The plaintiff alleged that a city transit bus and an oil truck were negligently operated, thereby causing the accident and his injuries. The plaintiff alleged that the oil truck was owned by Fairfield Home Oil Corporation and operated by Pounds. The plaintiff alleged that the bus was “owned and/or operated by the defendant Connecticut Transit and driven by an unknown driver, John Doe, one of its agents and employees. ...”

The case was tried to a jury. At the close of the plaintiffs case-in-chief, H.N.S. made a motion for a directed verdict “because there [was] no evidence to support the allegation that the bus was in fact owned by Connecticut Transit.” The court denied the motion.

The jury returned a plaintiffs verdict in the amount of $100,300 against all of the defendants. The jury found that the plaintiff’s comparative negligence was not greater than that of the defendants, and the jury apportioned the negligence as follows: 15 percent as against “ ‘John Doe’ H.N.S. Management,” 47 percent as against “Malcolm C. Pounds Fairfield Home Oil” and 38 percent as against the plaintiff.

Thereafter, H.N.S. filed a motion to set aside the verdict on the ground that “there was no proof offered at the trial that the defendant, H.N.S. Management, Inc., owned the bus that was allegedly involved in the accident involving the plaintiff.” The court granted the motion, ruling that “[i]t was incumbent upon the plaintiff to establish by some credible evidence that the bus which allegedly contributed to the cause of the accident was in fact owned by the defendant H.N.S. Management. There was no evidence by which the jury could make that inference. Without such evidence, the plaintiff could not prove that the ‘John Doe’ operator was an agent of the defendant under the provisions of [General Statutes] § 52-183. ” The plaintiff cross appealed from the judgment.

I

The plaintiff claims that the motion to set aside the verdict was based on factual and legal grounds different from those set forth in the motion by H.N.S. for a directed verdict that was denied after the close of the plaintiffs case-in-chief. He argues that our law is clear that a motion to set aside the verdict must be based on the same grounds as were alleged in the motion for a directed verdict.

The plaintiff claims that when H.N.S. filed its motion to set aside the verdict, it incorporated into that motion facts that were not presented at trial such that the motion to set aside the verdict was factually different from the earlier motion for a directed verdict. The plaintiff specifically claims that the “motion for a directed verdict was based upon the fact that the plaintiff failed to prove that the bus in question was owned by Connecticut Transit.” The plaintiff contrasts that motion with the motion to set aside the verdict, and argues that H.N.S. “altered tactics and subsequently claimed that the plaintiff failed to prove that the bus in question was owned by . . . H.N.S. Management Co., Inc., which [H.N.S.] argues is apparently a different entity than Connecticut Transit.”

The plaintiff also argues that the fact that H.N.S. and Connecticut Transit “may be different entities was never raised by defendants’ trial counsel prior to the motion for a directed verdict. . . .” The plaintiff claims that had he been fully aware at the time H.N.S. made its motion for a directed verdict that H.N.S. claimed it did not own the bus involved in the accident, he might have altered his trial strategy and withdrawn the claim against H.N.S., doing business as Connecticut Transit, and proceeded against only the remaining defendants.

“The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied, is considered renewed by the motion for judgment notwithstanding the verdict.” Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998); Practice Book § 16-37; see also 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 203, p. 823. Practice Book § 16-37 “provides for a motion for judgment notwithstanding the verdict in accordance with [the party’s] motion for a directed verdict.” (Internal quotation marks omitted.) Salaman v. Waterbury, supra, 309; see also Berry v. Loiseau, 223 Conn. 786, 819, 614 A.2d 414 (1992); State v. Avcollie, 178 Conn. 450, 455, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). “The purpose of the motion for a directed verdict with respect to the motions to set aside and for judgment notwithstanding the verdict is to give notice to the trial court.” Salaman v. Waterbury, supra, 309; see State v. Avcollie, supra, 455. “It has long been the rule that [a] motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict. . . . [See Practice Book § 16-37] (a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his motion for a directed verdict . . . ) .” (Citations omitted; internal quotation marks omitted.) Salaman v. Waterbury, supra, 311 (Katz, J., concurring).

We do not find the plaintiffs arguments on this issue persuasive. In this case, fairly viewed, the motion to set aside the verdict was sufficiently in accordance with the motion for a directed verdict. It is evident that the motion for a directed verdict alerted the court and the plaintiff that the claim was one of insufficiency of the evidence, i.e., that there was no evidence to prove that Connecticut Transit owned the bus involved in the accident that allegedly caused the plaintiffs injuries. The basis of both motions was that there was no evidence proving the ownership of the bus. That one motion referred to H.N.S. and the other referred to Connecticut Transit was not a change in substance. As we discuss in this opinion, H.N.S. and Connecticut Transit, in legal contemplation, are one and the same defendant. Moreover, the briefs of both parties, as well as their trial posture, recognized and fairly represented to the court that the bus company was sued under the corporate name and style of a business name, i.e., “H.N.S. Management Company, Inc., doing business as Connecticut Transit.”

“A corporation is a person although it is not a natural person.” M. Ford, Connecticut Corporation Law & Practice (2d Ed. 2000) § 2.02, p. 2-10. It appears well settled that the use of a fictitious or assumed business name “does not create a separate legal entity . . . [and that] [t]he designation [d/b/a] ... is merely descriptive of the person or corporation who does business under some other name.” (Internal quotation marks omitted.) Pinkerton’s, Inc. v. Superior Court, 49 Cal. App. 4th 1342, 1348, 57 Cal. Rptr. 2d 356 (1996), quoting Providence Washington Ins. Co. v. Valley Forge Ins. Co., 42 Cal. App. 4th 1194, 1200, 50 Cal. Rptr. 2d 192 (1996); see Duval v. Midwest Auto City, Inc., 425 F. Sup. 1381, 1387 (D. Neb. 1977), aff'd, 578 F.2d 721 (8th Cir. 1978); Wood Mfg. Co. v. Schultz, 613 F. Sup. 878, 884 n.7 (W.D. Ark. 1985); Jaffe v. Nocera, 493 A.2d 1003, 1008 (D.C. 1985); Southern Ins. Co. v. Consumer Ins. Agency, Inc. 442 F. Sup. 30, 31 (E.D. La. 1977); Patterson v. V & M Auto Body, 63 Ohio St. 3d 573, 575, 589 N.E.2d 1306 (1992); Carlson v. Doekson Gross, Inc., 372 N.W.2d 902, 905 (N.D. 1985); see also American Express Travel Related Services Co. v. Berlye, 202 Ga. App. 358, 360, 414 S.E.2d 499 (1991), cert. denied, 202 Ga. 905 (1992) (“[t]he use of d/b/a or ‘doing business as’ to associate a tradename with the corporation using it does not create a legal entity separate from the corporation but is merely descriptive of the corporation”).

H.N.S. moved for a directed verdict on the basis that the plaintiff had failed to prove that Connecticut Transit owned the bus. Although the court denied the motion, the plaintiff was effectively on notice that H.N.S. did not believe that he had met his burden of proving that element of his prima facie case. “The motion for directed verdict adequately alerted the plaintiff and the trial court to the legal issue . . . upon which the trial court based its decision in setting aside the verdict.” Salaman v. Waterbury, supra, 246 Conn. 309.

We conclude, therefore, that the motion to set aside the verdict was sufficiently in accordance with the motion for a directed verdict so that the plaintiffs argument that the motions were based on different factual and legal grounds must be rejected.

II

Next, we turn to the plaintiffs claim that the court improperly granted the motion to set aside the verdict because there was sufficient evidence from which the jury reasonably could infer that H.N.S. owned and operated the bus. The plaintiff claims that the court should have considered the law of agency and the doctrine of respondeat superior.

A

Certain additional circumstances concerning the pleadings and the posture of counsel must be set out to put our analysis and discussion in context. In paragraph two of the first count of the second amended complaint, the plaintiff alleged that “[t]he defendants are . . . H.N.S. Management Company, Inc., d/b/a Connecticut Transit (hereinafter referred to as ‘Connecticut Transit’) and John Doe, address unknown.” In its answer to that allegation, H.N.S. pleaded that it lacked “sufficient information upon which to form an opinion or belief, and [left] the plaintiff to his burden of proof.” In paragraph six of the same count, the plaintiff alleged that “[a]t that time and place [of the alleged accident], a bus, owned and/or operated by the defendant, Connecticut Transit, and driven by an unknown driver, John Doe, one of its agents or employees, was also traveling north on High Ridge Road . . . .” H.N.S. denied that allegation.

The record shows that the answer, including a special defense of comparative negligence, was interposed by “The Defendant: H.N.S. Management Company, Inc., d/b/a Connecticut Transit by John A. Blazi [its attorney].” When counsel for the plaintiff was questioned by this court whether the appearance filed in the first instance by the bus company was also filed in the same fashion, i.e., H.N.S. Management Company, Inc., doing business as Connecticut Transit, he indicated that he believed it was.

Counsel for the bus company argued that there was no mention of H.N.S. before the jury, but only of Connecticut Transit. Therefore, he argued, there was no evidence of any link between H.N.S. and Connecticut Transit to permit the jury to find that H.N.S. owned the bus involved in the accident so as to impose liability on H.N.S.

It is sufficient at this point to note that the bus company was sued and defended this action under the name and style of “H.N.S. Management Company, Inc., d/b/a Connecticut Transit.” It is clear from what we have said earlier that where a legal entity such as H.N.S. is sued as “doing business as Connecticut Transit” and defends in that posture, H.N.S. assumes a designation that, in legal contemplation, the bus company defendant is one entity, i.e., H.N.S., doing business as Connecticut Transit, and, as such, it may be the object of liability to the plaintiff if the plaintiff proves his case against it. See, e.g., Pinkerton’s, Inc. v. Superior Court, supra, 49 Cal. App. 4th 1342, and other authority previously cited. In short, the viable legal defendant is not Connecticut Transit, but H.N.S. Management Company, Inc., doing business as Connecticut Transit. That is the entity for which Blazi appeared, signed pleadings on behalf of and acted as counsel for throughout the trial.

In its opening remarks to the jury, the court stated that the defendants were Fairfield Home Oil Corporation, Malcolm C. Pounds and “H.N.S. Management Company, which does business as Connecticut Transit.” That was not changed by the fact that when the court asked counsel at the outset of the proceedings to introduce themselves, Blazi identified himself as “attorney John Blazi for the defendant Connecticut Transit.” That also was not changed by the fact that Blazi introduced himself to the jury panel by stating, “My name is John Blazi, and I represent Connecticut Transit.” Moreover, during the trial, Blazi repeatedly referred to “Connecticut Transit” when he referred to H.N.S. Those repeated references reinforce the inference that H.N.S. was Connecticut Transit in that H.N.S. owned and operated the buses that reasonably could be identified as “Connecticut Transit” buses, including the one involved in the accident that allegedly caused the plaintiffs injuries.

On the basis of what we have stated, it is difficult to accept the claim by H.N.S. that it lacked “sufficient information upon which to form an opinion or belief’ in response to paragraph two of the first count in the plaintiffs second amended complaint, which alleged that one of the defendants is “H.N.S. Management Company, Inc., d/b/a Connecticut Transit (hereinafter referred to as ‘Connecticut Transit’).” Blazi entered an appearance on behalf of “H.N.S. Management Company, Inc., d/b/a Connecticut Transit.” His “general appearance [was] at the very least prima facie evidence of the truth of its recitals, which necessarily embrace an intention to submit generally to the in personam jurisdiction of the court.” Beardsley v. Beardsley, 144 Conn. 725, 729, 137 A.2d 752 (1957). Conduct of a party, of course, may also operate as a general appearance. Id., 730. By entering a general appearance and by his actions, Blazi can reasonably be found to have acknowledged that H.N.S., doing business as Connecticut Transit, was not only a defendant in the action, but that as such it submitted to the court’s jurisdiction.

B

With this background in mind, we examine the propriety of the court’s action in setting aside the verdict because there was insufficient evidence to prove that H.N.S. owned the bus involved in the accident that allegedly caused the plaintiffs injuries. In setting aside the verdict, the court found that without evidence of proof of ownership, the plaintiff could not prove that the alleged bus driver, the defendant Doe, was an agent of H.N.S. under § 52-183.

The court “should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion . . . .” (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). “In reviewing the court’s action in rendering a judgment notwithstanding the verdict, we consider the evidence in the light most favorable to the [plaintiff].” (Internal quotation marks omitted.) Salaman v. Waterbury, supra, 246 Conn. 304. We are aware that “[t]he decision to set aside a verdict involves the exercise of a broad discretion in the trial court which, in the absence of a clear abuse, will not be disturbed . . . .” A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 206.

The jury could have reasonably found the following facts relevant to this appeal. The plaintiffs vehicle and the bus were traveling north on High Ridge Road at about 8:15 a.m. on October 20, 1992. High Ridge Road is a two lane highway in each direction with a fifth turning lane in the middle. No parking was permitted on the right side of the highway. When the plaintiff first saw the bus, he recognized it to be a Connecticut Transit bus. The bus was “loading and unloading” passengers in front of the Rippowam Magnet Middle School.

The plaintiff was in the right lane, traveling north, “a fair distance back,” and the bus was blocking his lane. The plaintiff moved his vehicle into the left lane. As he closed the distance between his vehicle and the bus, the bus driver “turned his turn signal on and turned into [the plaintiffs] lane at the same time” in what the plaintiff testified was “a sudden and immediate movement. ” The plaintiff reacted. He downshifted and turned his car into the right lane to avoid hitting the back of the bus.

When the plaintiff cleared the bus, he realized that he was “looking” at an oil truck that was parked and blocking traffic in the right lane. The plaintiff slammed on his brakes. Fairfield Home Oil Corporation owned the oil truck, and Pounds, the driver, had parked it at the curb on the right side of the highway, facing north. He was making an oil delivery. Pounds was at the back of his oil truck and, as he was inserting a ticket into his meter, he heard a screeching sound. Pounds looked behind him and saw a car coming toward him at an angle. He jumped back off the highway onto a lawn and saw the plaintiffs car hit the oil truck. Pounds saw the bus continue its progress, proceeding north in the left lane. He recognized it as a “city bus.”

A woman witnessed the accident. She was operating her vehicle three or four car lengths behind the plaintiffs vehicle. The woman testified that while she could not give the name of the bus involved, it was one of “whatever the city . . . buses [are] that run back and forth on High Ridge Road.” She further testified that other buses like that stop at the Rippowam bus stop.

The plaintiffs attorney called as a witness a superintendent of Connecticut Transit, Joseph Stroman, who testified that he had held that position in Stamford for nine years. The plaintiffs attorney asked Stroman, “[I]n your position with the defendant, are you familiar with the bus stops along High Ridge Road as they would have been in 1992?” (Emphasis added.) Stroman answered, “Yes,” and testified that on October 20, 1992, buses from Connecticut Transit had a stop in front of the Rippowam school on High Ridge Road on the right side heading north. Stroman further testified about the bus schedule and testified that on October 20,1992, between 8 a.m. and 8:30 a.m., buses would leave the Rippowam stop every twenty minutes.

Stroman testified in his capacity as a superintendent with Connecticut Transit. Although there was no specific mention of H.N.S., doing business as Connecticut Transit, as the evidence was presented to the jury, Connecticut Transit was mentioned on numerous occasions by the court and counsel. The jury fairly and reasonably could have found as a fact, on the basis of common sense, fair inference and repetition, that the phrase “Connecticut Transit” was a convenient shorthand method of referring to the defendant H.N.S. Management Company, Inc., doing business as Connecticut Transit.

“The word ’owner’ has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used.” Warren v. Borawski, 130 Conn. 676, 679, 37 A.2d 364 (1944). In Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972), our Supreme Court stated that “[t]he term ‘owner’ is one of general application and includes one having an interest other than the full legal and beneficial title.

. . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. ... It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof.” (Citations omitted.) See also Gill v. Pelrazzuoli Bros., Inc., 10 Conn. App. 22, 27, 521 A.2d 212 (1987).

In this case, as we have pointed out, “Connecticut Transit” was not only the shorthand method by which the court and counsel referred to the defendant H.N.S. Management Company, Inc., doing business as Connecticut Transit, but Connecticut Transit was not per se a legal entity.

The evidence previously set forth, particularly that of Stroman, was sufficient to permit the jury reasonably to infer that the bus involved in the accident that allegedly caused the plaintiffs injuries was a Connecticut Transit bus operating under the legal aegis of H.N.S., and that H.N.S. had control and possession of it so as to be its “owner” under the rationale of such cases as Hope v. Cavallo, supra, 163 Conn. 576. Our Supreme Court has stated “that a jury may make all inferences and conclusions which, in their judgment and discretion, may logically and reasonably be drawn from the facts in evidence. . . . The test is, not that the inference must unavoidably and unerringly point in one direction, but, rather, whether the rational mind could with reasonableness draw the inference. ... If two rational minds could reasonably draw different inferences from facts in evidence, whether controverted or uncontroverted, the decision is for the jury.” (Internal quotation marks omitted.) Magnon v. Glickman, 185 Conn. 234, 239, 440 A.2d 909 (1981); see also Cagianello v. Hartford, 135 Conn. 473, 476, 66 A.2d 83 (1949). Stating it somewhat differently but in substantially the same way, our Supreme Court has stated: “The test for determining the validity of the jury’s verdict is whether the evidence, fairly and impartially considered, would be likely to induce in the minds of six persons of ordinary intelligence, attentively considering it and using common-sense logic, a reasonable belief that it is more probable than not that the facts in issue are true.” Rapuano v. Oder, 181 Conn. 515, 517, 436 A.2d 21 (1980).

Having determined that the jury reasonably could have found that H.N.S. owned the bus, a presumption arose under § 52-183 that the defendant Doe was an agent of H.N.S. when the bus he was driving was involved in the accident that allegedly caused the plaintiffs injuries. That presumption applied, and the plaintiff benefited from it until such time as the jury found that it had been rebutted by H.N.S. See Scalora v. Shaughnessy, 151 Conn. 252, 257, 196 A.2d 763 (1963); O’Dea v. Amodeo, 118 Conn. 58, 65, 170 A. 486 (1934). Therefore, the plaintiff did not have to prove that the defendant Doe was an agent of H.N.S. because H.N.S. did not rebut the presumption. There was no evidence that put the presumption in question. At that point, the jury properly could go no further than to find that the defendant Doe was the agent of H.N.S., acting within the scope of his agency at the time of the accident.

For the foregoing reasons, we conclude that the court acted improperly in granting the motion by H.N.S. to set aside the verdict.

The judgment is reversed in part and the case is remanded with direction to render judgment on the verdict for the plaintiff as against the defendant H.N.S. Management Company, Inc., doing business as Connecticut Transit. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       The jury returned a verdict in favor of the plaintiff and apportioned the liability among the defendants, H.N.S., Fairfield Home Oil Corporation, Malcolm C. Pounds and an unidentified defendant, John Doe. Although the defendants Fairfield Home Oil Corporation and Pounds initially appealed from the judgment against them, they subsequently withdrew their appeal and have paid their apportioned share of the jury’s award of damages. Neither Fairfield Home Oil Corporation nor Pounds are parties to this appeal. We refer in this opinion to H.N.S. and Doe as the defendants.

       The actual name of the driver is not disclosed in the evidence because the bus proceeded from the scene of the accident without stopping.

       Interrogatory number six submitted to and answered by the jury stated the following: “6. Did the negligence of more than one party combine to cause the accident?” The jurors responded, “Yes,” to that question. The interrogatory continued: “If the negligence of more than one party combined to cause the accident, please attribute the percentage of negligence to each party that combined to cause the accident.*
      “ ‘JOHN DOE’
      “H.N.S. MANAGEMENT JL5_ percent
      “MALCOLM C. POUNDS _47_percent
      “FAIRFIELD HOME OIL
      “CARL R. BAUER 38 percent
      “* Note, the combined negligence of all responsible parties must equal 100 percent.”

         The motion to set aside the verdict recited the following: “The defendants, H.N.S. Management Co., d/b/a ‘CT Transit,’ and ‘John Doe’ respectfully move the court to set aside the verdict in this matter insofar as there was no proof offered at the trial that the defendant, H.N.S. Management, Inc., owned the bus that was allegedly involved in the accident involving the plaintiff. A memorandum of law is attached and incorporated by reference.
      The Defendant:
      H.N.S. Management Company, Inc., d/b/a Connecticut Transit
      By-
      John A. Blazi, Esq.
      Law Offices of John A. Blazi 1138 West Main Street Waterbury, CT 06708”

       General Statutes § 52-183 provides: “In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.”

       In the plaintiffs principal brief, he asserts that H.N.S. “improperly included facts that were not introduced at trial. [Its memorandum of law in support of its motion to set aside the verdict] indicates that ‘Connecticut Transit’ is allegedly a trade name used by more than one corporate entity. . . . This alleged fact was never introduced at trial . . . .”
      During oral argument, counsel for Connecticut Transit was asked whether the plaintiffs assertion was correct. He admitted that there was no evidence before the jury that other companies in Connecticut used “Connecticut Transit” as a trade name. In its brief, H.N.S. argues that “H.N.S. Management Company, Inc., a corporate legal entity ... is one of several management companies in Connecticut doing business as ‘Connecticut Transit.’ ” In its memorandum of law in support of its motion to set aside the verdict, H.N.S. states that “ ‘Connecticut Transit’ is a trade name that is used by several bus companies operating transit systems in Connecticut and [that] H.N.S. Management Company does not have exclusive use of that trade name . . . .” H.N.S. also argued in the same memorandum that there was no evidence from which the jury could “reasonably infer that the particular bus involved in the accident was owned by H.N.S. Management as opposed to other bus companies that use the same trade name.” (Emphasis added.) There was no such evidence before the jury.

       Plaintiffs counsel argued in his brief that he could have altered his trial strategy at that point, and although he may not have decided to withdraw the claim against H.N.S., doing business as Connecticut Transit, he may have at the very least elicited evidence to support the element of ownership in his cross-examination of the defendants’ witnesses. See also State v. Avcollie, supra, 178 Conn. 454 (following defendant’s motion for directed verdict, at close of state’s case, both parties permitted to offer additional evidence).

       Counsel for the defendant bus company indicated at oral argument that this was incorrect. The appearance for the bus company does not appear in the record.

       The introduction by counsel to the jury panel took place after the court told the jury panel that “[1,]he plaintiff is Carl R. Bauer, and there are three defendants, Malcolm C. Pounds, Fairfield Home Oil Corporation and H.N.S. Management Company, which does business as Connecticut Transit." (Emphasis added.) At that time, counsel for H.N.S. also informed the jury panel that he represented the defendant Doe, the bus driver, as well as the bus company.

       The jury reasonably could have found other facts, but we set out here only those that concern the basis of the court’s decision to grant the motion to set aside the verdict.

       The plaintiff testified that this bus was “a Connecticut Transit green and blue city bus.”

       Stroman testified under subpoena by the plaintiff.

       On direct examination by the plaintiffs counsel, Stroman testified in relevant part:
      “Q. Just very briefly, what is your position with Connecticut Transit?

        “A. I’m a superintendent.
      “Q. And how long have you had that position?
      “A. About nine years.
      “Q. Olcay. And has it been always for Connecticut Transit?
      “A. Always for Connecticut Transit.”

       We note that the interrogatories submitted to and answered by the jury contained the following question underscoring the status of the defendant bus company:
      “1. Were the defendants ‘John Doe’ and H.N.S. Management Co. (Connecticut Transit Co.) negligent in any of the ways alleged by the plaintiff in causing the plaintiffs accident?”
      The bus company failed to raise any question about the form of that interrogatory, which the jury answered in the affirmative.

       See footnote 5.


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. JOHN R. BURNAKA ET AL.
    (AC 19835)
    Foti, Zarella and Dupont, Js.

      Argued September 25
    officially released December 5, 2000

      Steven P. Kulas, with whom, on the brief, was Prescott W. May, for the appellant (named defendant).

      Gary G. Williams, assistant attorney general, with whom were Edward F. Reynolds, Jr., assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant, John R. Bumaka, appeals from the trial court’s granting of the motion for summary judgment filed by the plaintiff, the state of Connecticut, in this interpleader action. On appeal, the defendant claims that the court improperly (1) granted summary judgment without allowing him to present evidence of a prior settlement between the parties and (2) rendered judgment in favor of the plaintiff without deciding whether the prior settlement barred the state from recovery. We affirm the judgment of the trial court.

The facts giving rise to this appeal are as follows. The defendant filed a personal injury action in June, 1994. In May, 1996, the plaintiff learned of the action and notified the defendant of his obligation, should he recover money in that action, to reimburse the plaintiff for aid to families with dependent children that it had paid out for the defendant’s minor child. The plaintiff also informed the defendant of its intention to assert a statutory lien on any moneys recovered in that action.

Pursuant to General Statutes (Rev. to 1995) §§ 17b-93 (a) and 17b-94 (a), the plaintiff thereafter placed a statutory lien on the net proceeds derived from the defendant’s personal injury action. The defendant challenged the validity and amount of the plaintiffs lien, and the department of social services’ office of administrative hearings conducted a hearing on February 10, 1997. The defendant received a full hearing, during which he and the plaintiff had the opportunity to present and cross-examine witnesses and to introduce documentary evidence. Following the proceeding, the hearing officer issued a notice of decision dated March 25, 1997. The hearing officer found that the plaintiff validly held an enforceable lien in the amount of $10,308.25.

Section 4-183 of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., grants the defendant the right to appeal from the hearing officer’s decision, a right the defendant exercised on May 27, 1997. The defendant’s appeal, however, was untimely and, on June 26, 1997, he withdrew it when confronted with a motion to dismiss.

The defendant settled his personal injury action on December 12, 1997, for $89,500, the net proceeds of which totaled $51,831.48. The amount of the statutory hen, $10,308.25, remained in an account at May & Sta-nek, P.C., the law firm of the defendant’s personal injury attorney, Prescott W. May, and the defendant received the balance of the proceeds.

After the defendant provided the plaintiff with an accounting of the settlement proceeds, the plaintiff asserted entitlement to full payment of its statutory lien. The defendant’s refusal to authorize the disbursement prompted the plaintiff to initiate an interpleader action. On March 23, 1998, the plaintiff filed a two count complaint for interpleader. The complaint’s first count, against Bumaka and May, alleges that the administrative agency decision became a final and binding decision upon expiration of the allotted time to take an appeal. It further alleges that pursuant to §§ 17b-93 and 17b-94, the plaintiff possesses a valid claim to the money in the account. According to the complaint, the plaintiff believed that the defendant also claimed entitlement to the settlement proceeds. In the second count, against May only, the plaintiff alleged that its numerous attempts to contact May proved unavailing and that May had not filed an interpleader action or taken other legal action to effect a lawful disbursement of the settlement proceeds.

On November 9, 1998, the plaintiff moved for summary judgment on count one as a matter of law, and for summary judgment as to both liability and damages, claiming that no genuine issue of material fact existed as to the validity or amount of the lien. In support of its motion for summary judgment, the plaintiff filed an affidavit of Peter Pappas, an investigator in the department of administrative services’ fiscal and administrative resources-collections division. The affidavit stated that Pappas had sufficient knowledge of the books and records relating to the moneys the defendant owed to the plaintiff. In his affidavit, Pappas stated that the amount owed totaled $10,308.25. The plaintiff submitted a second affidavit executed by Pappas that stated that the plaintiff had continued to provide assistance to the defendant’s daughter since June 14, 1994, the effective date of a support order modification and agreement entered into by the plaintiff and defendant. The affidavit identified the disbursement dates and the specific amounts the plaintiff had provided in assistance for the defendant’s child between June, 14, 1994, and February 1, 1997.

The defendant submitted two opposing affidavits. Together, they state that the defendant entered into an agreement with the plaintiff on July 31, 1994, that discharged him from any liability, present and future, owed to the plaintiff. That liability release, according to the defendant’s affidavits, specifically contemplated and included future welfare liability under §§ 17b-93 and 17b-94. The court granted the plaintiffs motion for summary judgment on January 8, 1999, solely on the issue of liability. The court then requested each party to submit a statement of claim.

On January 28, 1999, the plaintiff filed a motion for an interlocutory judgment of interpleader, which the court granted on February 8, 1999. On March 4, 1999, the plaintiff filed its statement of claim, which restated the counts of the original interpleader complaint. The defendant admitted thirteen of fourteen paragraphs in the plaintiffs statement of claim. In his own statement, the defendant reasserted his contention that he and the plaintiff had entered into an agreement relieving him of all liability to the plaintiff for repayments of any welfare liens. The plaintiffs answer denied those allegations and asserted a special defense that the doctrines of collateral estoppel and res judicata barred the defendant from asserting those claims.

After a hearing in damages, the court rendered judgment on July 6,1999. It found the issues for the plaintiff and ordered the following: “Whereupon it is adjudged that the plaintiff recover $71.56 costs and $2000 attorney’s fees. The balance of said funds, including any interest thereon, shall be paid to the state. The stakeholder, Prescott W. May, is ordered to make such disbursements as stated.” This appeal followed.

The defendant first claims that the court improperly granted summary judgment in favor of the plaintiff without allowing him to raise the settlement between the plaintiff and the defendant as a defense to the summary judgment motion. The defendant argues that the court should have heard evidence about the settlement because the hearing officer did not have jurisdiction to hear the defendant’s damages claim and asserts that the doctrine of exhaustion of administrative remedies does not apply to the present case.

The plaintiff responds that the court appropriately granted summary judgment and argues that the defendant raises issues on appeal that he never presented to the trial court and that it, therefore, never had the opportunity to decide them. Moreover, the plaintiff claims that the court, in granting summary judgment, properly invoked the doctrine of administrative res judi-cata, not the doctrine of exhaustion of administrative remedies.

This court’s review of the granting of a summary judgment motion is well settled. Practice Book § 17-49 provides that the “judgment sought 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.” Thus, a trial court examines the evidence, draws inferences in favor of the non-moving party and determines whether the same facts would entitle the moving party to a directed verdict. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). On appeal, this court must determine whether any genuine issue of material fact existed and, therefore, whether the moving party was entitled to a judgment as a matter of law. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292, 596 A.2d 414 (1991). This review involves a question of law and thus our review is plenary. Vogel v. Maimonides Academy of Western Connecticut, Inc., 58 Conn. App. 624, 628, 754 A.2d 824 (2000); see Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).

The nature of the agreement between the parties on which the defendant relies so heavily determines the propriety of the granting of summary judgment. To that end, we recite the following additional facts. The plaintiff ordered the defendant to pay weekly child support in the amount of $65 for his minor daughter. A family support magistrate conducted a child support modification hearing on July 13, 1994, in which the plaintiff and the defendant had the benefit of counsel. The magistrate modified the support order from $65 to zero and determined that the defendant owed no money in arrearage to the plaintiff as of June 14, 1994. The magistrate ordered those modifications pursuant to an agreement between the parties. The magistrate stated that “[the defendant] entered into an agreement with [the plaintiff] that the current support order should be modified and that the arrearage claimed by the [plaintiff] should be vacated as [the defendant] has proved that it has already been collected by the [plaintiff].”

The defendant argues that his two affidavits, in which he reemphasizes that the intention of the modification was to discharge him from any present and future liability to the plaintiff, and the July, 1994 modification by the magistrate, raise a sufficient question of triable fact so as to preclude summary judgment. He contends that this evidence demonstrates that “at the very least, a question of fact existed as to the extent and meaning of a settlement between him and the [plaintiff].” We disagree.

The defendant’s argument represents an attempt to relitigate an issue that the doctrines of collateral estop-pel and res judicata prohibit. An examination of the record reveals that the defendant has previously, and unsuccessfully, challenged the validity of the lien under the identical theory he posits today, namely that the settlement discharged him from future liability to the plaintiff. He tested its validity during the February, 1997 administrative hearing he requested.

The statement of the issue recited in the hearing officer’s notice of decision perfectly illustrates this prior challenge: “This hearing decision is to address whether the state has the authority to place a lien on the [defendant’s] cause of action, and whether the amount of the identified lien is correct.” The sentence beginning the notice of decision’s discussion wholly eliminates any remaining doubt whether the defendant contested the hen’s validity and amount. “The [defendant’s] representative has argued that based on the August 2, 1994 modification, the [defendant] no longer had any liability for repaying the state for public assistance given to his daughter.”

We see no difference between the argument before the hearing officer and the argument made to this court. Moreover, we note that no question or ambiguity exists as to the hearing officer’s findings and conclusion: “The state has the authority to place a hen on the [defendant’s] cause of action. Additionally, $10,308.25, the revised amount of the balance is correct.”

As with the judgment of a court, a valid and final decision rendered by an administrative tribunal bars rehtigation of the same issues. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 129, 627 A.2d 1257 (1993). Validity of an administrative decision hinges primarily on access to judicial review. Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 195-98, 544 A.2d 604 (1988). In the present case, the defendant indisputably had access to judicial review. Indeed, he sought such review, but subsequently withdrew his appeal. Expiration of the statutory time limit to take an appeal from the administrative decision converted that decision into a final and binding judgment with the same preclusive effect as a judicial decision.

The court properly determined that the defendant’s arguments in opposition to the motion for summary judgment sought to skirt the preclusive effect of the administrative decision and, therefore, the court properly disregarded them as a valid defense to the motion. The hearing officer’s decision, validating the lien and determining the appropriate amount, constitutes a former judgment on the merits between the two parties and estops the defendant from raising the issue here. The court correctly found that “the prior action involved the same parties, resulted in a final judgment on the merits, involved the same claim, and [the defendant had] an adequate opportunity to litigate his defense . . . [and therefore] his settlement agreement defense is barred under the doctrine of res judicata.”

We treat the defendant’s claim that he need not have exhausted administrative remedies summarily. The court did not rely on that doctrine. Instead, the underlying case concerns administrative res judicata, that is, the doctrine that valid, final administrative decisions are entitled to the same rules of res judicata as court judgments. Busconi v. Dighello, 39 Conn. App. 753, 768, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996).

The defendant also claims that at the administrative hearing in 1997, he sought positive relief from the state, including damages, because the state had breached a prior settlement agreement. We have no evidence from either that hearing or in this interpleader action that the defendant made such a claim, and we cannot, therefore, consider it. For the foregoing reasons, we affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       More specifically, in this opinion, the state of Connecticut refers to the department of administrative services acting through the bureau of collection services.

       The plaintiff named two defendants in the underlying action, Burnaka as a claimant to the disputed fund and Prescott W. May, an attorney, as the stakeholder. May’s law firm, May & Stanek, P.C., represents Bumaka in this appeal. Unless otherwise stated, we refer in this opinion to Bumaka as the defendant.

       General Statutes (Rev. to 1995) § 17b-93 (a) provides in relevant part that “the parents of an aid to dependent children beneficiary shall be liable to repay, subject to the provisions of said section 17b-94, to the state the full amount of any such aid paid to or in behalf of . . . his child or children. The state of Connecticut shall have a lien against property of any kind or interest in any property, estate or claim of any Mnd of the parents of an aid to dependent children beneficiary, in addition and not in substitution of its claim, for amounts owing under any order for support of any court or any family support magistrate, including any arrearage under such order . . . .”

       General Statutes (Rev. to 1995) § 17b-94 (a) provides in relevant part: “In the case of causes of action ... of a parent of a beneficiary of the aid to families with dependent children program . . . the claim of the state shall be a lien against the proceeds therefrom in the amount of the assistance paid or fifty per cent of the proceeds received by such beneficiary or such parent after payment of all expenses connected with the cause of action, whichever is less, for repayment under said section 17b-93, and shall have priority over all other claims except attorney’s fees for said causes, expenses of suit . . . and such claim shall consist of the total assistance repayment for which claim may be made under [said programs] . . .

       The hearing officer decreased the amount of the statutory lien from $13,347.97 to $10,308.25. A minor discrepancy exists as to the amount of the lien found by the hearing officer. Some documents list the amount as $10,308.72, while others value it at $10,308.25. We use the latter figure for consistency purposes and due to the negligible difference.

       That amount satisfies the statutory prescription that the state’s claim shall equal the lesser of the amount of assistance paid or 50 percent of the proceeds.

       May, the stakeholder, controls the account in which the disputed money was deposited, and the plaintiff correctly named him as a defendant in the interpleader action. May disclaimed any personal interest in the interpleader fund on May 24, 1999. He is therefore not personally appealing from the granting of summary judgment, but is an attorney in the law firm representing the defendant.

       When the stakeholder has not initiated an action of interpleader, a plaintiff who is not the possessor of the property but who claims an interest in the property held by the stakeholder may institute an action for interpleader. Millman v. Paige, 55 Conn. App. 238, 241, 738 A.2d 737 (1999); see General Statutes § 52-484.

       February 1, 1997, represents the last payment date prior to the February 10, 1997 administrative hearing.

       That date corresponds to the date the family support magistrate issued an order and finding with regard to the agreement. The Superior Court approved the modification order and finding on August 2,1994. The effective date of the order is June 14, 1994.

       An interpleader proceeding typically involves two distinct parts, the first of which is an interlocutory judgment of interpleader. Yankee Millwork Sash & Door Co. v. Bienkowski, 43 Conn. App. 471, 473, 683 A.2d 743 (1996). An interlocutory judgment of interpleader, which determines whether inter-pleader lies, traditionally precedes adjudication of the claims. An unorthodox sequence of events is not, however, fatal. General Accident Group v. Gagliardi, 593 F. Sup. 1080, 1087 (D. Conn. 1984), aff'd, 767 F.2d 907 (2df Cir. 1985).

        The plaintiffs November 9, 1998 motion for summary judgment appears to overlook the need for an interlocutory judgment of interpleader and sought a determination of liability, namely that the plaintiff is due the fund, and of damages in a particular amount.

       The transcripts reveal that the court and the parties properly recognized that, because the stakeholder’s disbursement cannot exceed the amount of the stake, the judgment including attorney’s fees and costs increased the amount of the defendant’s ultimate liability to the plaintiff.


author: PELLEGRINO, J.

text:
    JACOB CRUMP v. COMMISSIONER OF CORRECTION
    (AC 20338)
    Schaller, Zarella and Pellegrino, Js.

      Submitted on briefs September 15
    officially released December 5, 2000

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Linda N. Howe, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Jacob Crump, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus following his conviction after a guilty plea. On appeal, the petitioner claims that the court improperly rejected his assertion that he was denied the effective assistance of counsel because he would not have pleaded guilty if his counsel had explained to him the distinction between concurrent and consecutive sentencing. We do not find any merit in the petitioner’s claim.

The following facts and procedural history are relevant to our disposition of this appeal. On February 9, 1995, the petitioner, who was represented by public defender Miles Gerety, entered a guilty plea under the Alford doctrine to a four count information alleging assault of a peace officer in violation of General Statues § 53a-167c (a) (1), interfering with an officer in violation of General Statutes § 53a-167a (a), carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and possession of narcotics in violation of General Statutes § 21a-279 (a). That plea was entered after the conclusion of a separate murder trial in which the petitioner was acquitted of murder, but found guilty of attempt to commit murder, carrying a pistol without a permit and conspiracy to commit murder. State v. Crump, 43 Conn. App. 252, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

Following his conviction in the murder trial, the petitioner was sentenced to twenty year's imprisonment, execution of which was suspended after fourteen year's. In the case that gave rise to this petition for a writ for habeas corpus, the plea bargain was not negotiated until after the sentencing in the murder trial. On March 10, 1995, the court, pursuant to the plea bargain, sentenced the petitioner to serve five years consecutive to the fourteen year sentence imposed in the murder case, which increased the petitioner’s effective period of incarceration from fourteen years to nineteen years.

On March 5, 1998, the petitioner filed a petition for habeas corpus. The habeas court found that the petitioner failed to meet his burden of proving his claim of ineffective assistance of counsel pursuant to the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The habeas court, therefore, denied the petition and subsequently granted the petitioner’s petition for certification to appeal. This appeal followed.

The standard of appellate review of a habeas coipus proceeding is well settled. Although a “habeas court’s findings of fact are reviewed under the clearly erroneous standard of review”; Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147, 747 A.2d 1058, cert. denied, 253 Conn. 920, 755 A.2d 215 (2000); “[w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, supra, 466 U.S. 698. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 663, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000).

On appeal, the petitioner claims that he did not understand the difference between consecutive and concurrent sentencing, and that at the time he entered his guilty plea, his counsel failed to explain the difference adequately. The petitioner further claims that had he understood the difference between consecutive and concurrent sentencing, he would not have pleaded guilty and would have elected to go to trial. The petitioner argues that because his counsel failed to explain the difference, he was denied the effective assistance of counsel. We disagree.

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, supra, 466 U.S. 686. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system . . . (Citations omitted.) Copas v. Commissioner of Correction, supra, 234 Conn. 153; Daniel v. Commissioner of Correction, supra, 57 Conn. App. 664.

“In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice.” Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992); Daniel v. Commissioner of Correction, supra, 57 Conn. App. 664. “Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Strickland v. Washington, supra, 466 U.S. 694.” Daniel v. Commissioner of Correction, supra, 664.

“In Hill v. Lockhart, supra, 474 U.S. 57-58, the court determined that the [Strickland] two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard . . . to require . . . the defendant [to] show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Copas v. Commissioner of Correction, supra, 234 Conn. 156; Daniel v. Commissioner of Correction, supra, 57 Conn. App. 664-65.

In the present case, the habeas court, in a well reasoned memorandum of decision, found that the petitioner had failed to meet his burden of satisfying either prong of the Strickland-Hill test. The court found that the petitioner failed to present credible evidence that attorney Gerety’s performance was deficient. The court further found, on the basis of the strength of the state’s case and the defenses available to the petitioner, that it was reasonably probable that he would have been convicted of the most serious charges and would have received a significantly lengthier consecutive sentence after trial. Furthermore, the court concluded “that the petitioner is an intelligent and articulate individual and that he understood what a consecutive sentence meant at the time he entered his plea.” This court cannot conclude that those factual findings are clearly erroneous. After our plenary review of the record as a whole, we conclude that the habeas court correctly found that the petitioner failed to carry his burden of establishing that his trial counsel provided ineffective assistance under the Strickland-Hill test. We therefore must affirm the judgment of the habeas court.

The judgment is affirmed.

In this opinion the other judges concurred.

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


author: SPEAR, J.

text:
    ROBERT LAMONTAGNE v. MUSANO, INC.
    (AC 19211)
    Foti, Spear and O’Connell, Js.

      Submitted on briefs October 18
    officially released December 5, 2000

      Jeffrey J. Tinley and Stephen E. Pliakas filed a brief for the appellant (plaintiff).

      Linda T. Wihbey and Joseph A. Mengacci filed a brief for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, Robert LaMontagne, appeals from the judgment rendered by the trial court granting his motion for counsel fees and costs in an amount substantially less than he sought. The plaintiff claims that the court abused its discretion by (1) awarding only a small fraction of his actual costs and attorney’s fees pursuant to General Statutes § 52-251a, and (2) focusing on inappropriate factors in determining the amount of costs and fees to award. We affirm the judgment of the trial court.

The court made the following findings of fact. The plaintiff was employed for twenty-three years by the defendant, Musano, Inc., a construction company. When the plaintiff left the defendant’s employ in 1994, and for some time prior thereto, the plaintiff held the position of foreman. The parties’ dispute concerns whether the defendant promised the plaintiff a bonus incentive for working on construction jobs outside of the state of Connecticut.

In 1992, the defendant accepted work at Arlon Industries, a company in Rhode Island, and the plaintiff was asked if he would be interested in working out of state. The plaintiff, for a number of reasons, was not interested in working away from home. The plaintiffs supervisor, Fred Musano, Jr., told him he would receive a special bonus of approximately $200 per week for working out of state. After weighing the pros and cons, the plaintiff agreed to work on the Arlon job. The plaintiff never received the bonus for working out of state and periodically asked the defendant about it, but was told only that he would be paid.

In 1993, the defendant accepted a job in New Jersey at Arrow Associates, and again the plaintiff was asked to work the out-of-state job. The plaintiff, at that point, had still not received the incentive bonus that he was promised for the Arlon job. Again, the plaintiff inquired about both the bonus due him and whether he would be paid a bonus for the Arrow job. The plaintiff was told by Fred Musano, Jr., that Fred Musano, Sr., the owner of the defendant coiporation, was in the midst of a federal labor investigation and that for this reason the earlier bonus was not paid, but was assured that the same bonus arrangement existed for the Arrow job. The plaintiff agreed to do the Arrow job.

Toward the end of 1993, when the federal labor investigation was finished, the plaintiff was asked to sign a release for the government. The plaintiff signed the release upon the assurance from Tony Musano, another supervisor, that this would not affect his bonus. In early 1994, the plaintiff went into the office of Fred Musano, Sr., and inquired about his bonuses for both jobs. During this meeting, he was told that he was not getting either bonus. The plaintiff decided to look for a new job, and he left the defendant’s employ in May or June, 1994.

Thereafter, the plaintiff commenced a small claims action, and the case was transferred to the regular docket by motion of the defendant. The plaintiff then filed a four count complaint alleging breach of contract, quantum meruit, negligent and intentional misrepresentation, and intentional infliction of emotional distress. The defendant filed several special defenses.

After a trial to the court, a judgment was rendered that awarded the plaintiff $2800. The plaintiff then filed a motion requesting counsel fees and costs in the amount of $20,874. Attorney’s fees were ordered in the amount of $3500.

The plaintiff first claims that the court abused its discretion by awarding only $3500 in counsel fees to the plaintiff when he had requested $20,874 pursuant to § 52-251a. Specifically, the plaintiff argues that the court could not have logically and reasonably found that $3500 constitutes the plaintiffs reasonable attorney’s fees in this case.

Our standard of review of the plaintiffs claim is well defined. “An award of attorney’s fees is not a matter of right. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case.” C & S Research Corp. v. Holton Co., 36 Conn. Sup. 619, 623, 422 A.2d 331 (1980). “A court has few duties of a more delicate nature than that of fixing counsel fees. The issue grows even more delicate on appeal; we may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion, for the trial court is in the best position to evaluate the circumstances of each case.” Moffitt v. Horrigan, 37 Conn. Sup. 873, 876, 441 A.2d 207 (1982). “Because the trial court is in the best position to evaluate the circumstances of each case, we will not substitute our opinion concerning counsel fees or alter an award of attorney’s fees unless the trial court has clearly abused its discretion.” Gerhard v. Veres, 30 Conn. App. 199, 202, 619 A.2d 890 (1993).

“Absent contractual or statutory authorization, a party may recover from his opponent neither the expenses of litigation nor the expenditures for counsel fees.” Moffitt v. Horrigan, supra, 37 Conn. Sup. 875. Section 52-25la authorizes the court to award counsel fees to the prevailing plaintiff “in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant . . . .” “Section 52-251a thus creates a substantial and effective disincentive for a defendant who might otherwise raise defenses bordering on the frivolous in an effort to gain a tactical advantage over a plaintiff by obtaining a transfer of a case from the Small Claims division.” Burns v. Bennett, 220 Conn. 162, 169, 595 A.2d 877 (1991).

Thus, under the statute, the court was authorized to award the plaintiff his costs and reasonable attorney’s fees. The court did not abuse its discretion in determining that $3500 covered reasonable attorney’s fees. The plaintiffs small claims action was for the payment of $2500 in promised bonuses. When the defendant transferred this case to the regular docket, the plaintiff hired counsel and apparently sought retaliation for the transfer by directing his attorneys to file additional claims, which they did. According to the evidence adduced at trial, the additional claims were without merit, and the case on the regular docket remained a small claims action as to the dollar amount.

Section 52-251a expressly limits recovery to reasonable fees, not the amount that was actually expended. The court determines the reasonable fee to be awarded under the statute. In this case, the court reasonably could have determined that the award should be $3500. The court stated in its memorandum of decision that “[t]he court does not question that the time itemized by the plaintiffs attorney was indeed devoted to litigating this matter. Nor does the court question the reasonableness of counsel’s hourly rate. However, at some point in any case involving monetary damages, and preferably at the start, it is the responsibility of litigants and their counsel to decide at what cost they intend to win. The court questions whether that determination was ever made by the plaintiff and his counsel in this case, and moreover, questions whether a defendant should have to pay for a plaintiffs unreasonableness.”

The trial court was in the best position to evaluate the circumstances of this case. In evaluating this case, the court concluded that $3500 was a reasonable award, and this court may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion. There was sufficient evidence to support the court’s conclusion that the award should be $3500. Therefore, the award was reasonable and not an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-251a provides: “Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney’s fees to be taxed by the court.”

       The trial court did not address costs.

       Our holding that the court’s award of fees was reasonable under General Statutes § 52-251a is dispositive of the plaintiffs second claim that the court abused its discretion by focusing on inappropriate factors in awarding him costs and fees.


text:
    ALICE SABLOSKY v. MICHAEL SABLOSKY
    (AC 19261)
    Spear, Zarella and Pellegrino, Js.
    Argued September 11
    officially released December 12, 2000

      Henry B. Hurvitz, with whom was Paula Gates, for the appellant (defendant).

      Michael Ruben Peck, with whom was William R. Moller, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Michael Sablosky, appeals from the judgment of the trial court finding him in contempt for failure to pay certain educational expenses of his children as ordered in the judgment of dissolution of his marriage with the plaintiff, Alice Sablosky. The defendant claims that the court (1) improperly construed the terms of the dissolution judgment, (2) abused its discretion by finding him in wilful contempt for the failure to comply with the orders contained in the judgment of dissolution, (3) improperly calculated the damages awarded to the plaintiff, (4) abused its discretion by awarding the plaintiff attorney’s fees and costs, and (5) improperly found that the plaintiff s claim that the defendant was in contempt was not barred by the doctrines of waiver, laches and equitable estoppel. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On July 12,1993, the trial court rendered judgment dissolving the marriage of the parties. A written postmajority support provision that was agreed to by the parties was incorporated into the judgment of dissolution. As of the date of the dissolution, the parties had two children, Shannon and Michael. In accordance with his agreement, the defendant was required to pay for the children’s college tuition and books, and one half of the cost of room and board, but at an amount not to exceed the cost of attending the University of Connecticut at the campus in Storrs. The agreement also provided that the defendant pay other college related expenses for his children. The plaintiff relinquished any claim for alimony in consideration of the defendant’s agreement to provide postmajority financial assistance for the children while they were “undergraduate college students.”

On June 15, 1998, the plaintiff filed a motion for contempt, alleging that the defendant failed to pay the agreed upon college related expenses for the children. After a hearing, the court found that certain terms in the agreement were ambiguous. The court defined the ambiguous terms in accordance with its findings concerning the intent of the parties, found the defendant in contempt and determined the arrearage due the plaintiff. This appeal followed.

I

It is essential to the resolution of this appeal first to review the trial court’s determination that the disputed terms of the agreement were ambiguous. There is no question that each party interpreted differently the terms “college” and “undergraduate college students.” The controversy arose because neither child of the marriage pursued a traditional college career.

The facts surrounding this dispute are as follows. Shannon, the older child, attended Central Connecticut State University (Central) from the fall of 1992 until the spring of 1994, completing four semesters. In the fall of 1994, Shannon transferred her enrollment to the University of Arizona. The defendant did not contribute to Shannon’s educational expenses at the University of Arizona. After a loan application was unsuccessful, Shannon dropped out of the University of Arizona and returned home, delaying her projected graduation by one semester. From the spring of 1995, until the fall of 1996, Shannon resumed her studies at Central on a part-time basis. The defendant then refused to pay any further college tuition or related expenses for Shannon, claiming that his obligation did not extend beyond the traditional four years of study.

Michael’s college experience was even less conventional. In the fall of 1995, Michael enrolled in a small college in Pennsylvania, returned home after a few weeks and the following spring he enrolled at Central on a part-time basis. The defendant paid for Michael’s part-time tuition for the spring and fall of 1996 and the spring of 1997, and his full-time tuition for the spring and fall of 1998. The defendant refused to pay for Michael’s winter courses in 1997 or his summer courses in 1998. The court found that if Michael had pursued a traditional four year course of study, his anticipated graduation would have occurred in the spring of 1999.

The defendant argued before the trial court that the term “undergraduate college student” should be interpreted to mean one who lives on campus while enrolled in a full-time, four year program. The defendant argued, in the alternative, that his obligations should be calculated proportionally to the course load successfully undertaken by his children during those semesters when they are enrolled. The plaintiff sought to recover an amount owed by the defendant for the college expenses incurred by the children while they were part-time students attending classes beyond their fourth year of enrollment.

The court found that the term “undergraduate college student” was ambiguous and, contrary to the positions advanced by either party, held that the phrase meant a student attending a postsecondary school institution for four years. The court further found that the parties intended that the defendant would pay college tuition, half of the children’s living expenses, car insurance and Shannon’s transportation expenses as long as each was enrolled in school, except that the parties did not intend that the defendant pay for the children’s college expenses for enrollment beyond eight semesters, either on a full-time or a part-time basis.

Our review of a trial court’s construction of the parties’ agreement is well settled. “A judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract. . . . Construction of [a term in] such an agreement is an issue of fact to be resolved by the trial court as the trier of fact, and subject to our review under the clearly erroneous standard.” (Citation omitted.) Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Greenburg v. Greenburg, 26 Conn. App. 591, 595, 602 A.2d 1056 (1992); Baldwin v. Baldwin, 19 Conn. App. 420, 422, 562 A.2d 581 (1989). “The ultimate issue for an appellate court is whether the trial court could reasonably have concluded as it did. ... In that regard, every presumption is given in favor of the correctness of the trial court’s action.” (Citations omitted.) Greenburg v. Greenburg, supra, 596; Gallagher v. Gallagher, 11 Conn. App. 509, 514, 528 A.2d 379 (1987).

We cannot conclude that the court’s finding that an ambiguity existed was clearly erroneous. See Baldwin v. Baldwin, supra, 19 Conn. App. 423 (trial court’s finding that term in marital dissolution agreement ambiguous not clearly erroneous).

II

Having determined that the court correctly found the term to be ambiguous, we must next determine whether the defendant could be held in contempt for his failure to abide by the terms of an agreement tainted with ambiguities. The defendant claims that the trial court abused its discretion by finding him in wilful contempt for his failure to comply with the orders contained in the judgment of dissolution.

In reviewing the defendant’s claimed improprieties concerning the finding of contempt, we are guided by standards that limit our review. “[0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . [Our Supreme Court has] found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . [and] the findings on which it was based were ambiguous and irreconcilable .... Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982) . . . .” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998); Sender v. Sender, 56 Conn. App. 492, 495-96, 743 A.2d 1149 (2000). “Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” (Internal quotation marks omitted.) Eldridge v. Eldridge, supra, 528; Sender v. Sender, supra, 496.

Our scope of review in an appeal from a family relations decision also is limited. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Stewart v. Stewart, 57 Conn. App. 335, 336, 748 A.2d 376, cert. denied, 253 Conn. 918, 755 A.2d 216 (2000); Sender v. Sender, supra, 56 Conn. App. 496.

On appeal, the defendant argues, and we agree, that he cannot be found in wilful contempt under the circumstances here where the terms of the parties’ agreement are ambiguous. It is clear that “to constitute contempt, a party’s conduct must be wilful. Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983). The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind.” (Internal quotation marks omitted.) Eldridge v. Eldridge, supra, 244 Conn. 529; Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982).

In the present case, there was an adequate factual basis for the defendant to decline to make payments because of his interpretation of the agreement. The trial court abused its discretion by finding that the defendant was in wilful contempt of an agreement that contained ambiguous terms, and, therefore, we must reverse its decision.

Ill

The defendant also claims that the court improperly calculated the damages awarded to the plaintiff, abused its discretion by awarding the plaintiff attorney’s fees and costs, and improperly found that the plaintiffs claim was not barred by the doctrines of waiver, laches and equitable estoppel. Because we reverse the contempt finding, the award of damages, attorney’s fees and costs must be vacated. Furthermore, in view of our determination that the contempt judgment must be vacated, it is not necessary for us to address the claims as to waiver, laches and estoppel.

The judgment is reversed and the case is remanded with direction to render judgment denying the motion for contempt and vacating the award of damages, attorney’s fees and costs.

In this opinion the other judges concurred.

       The judgment of dissolution specifically provided in relevant part: “The defendant husband shall be responsible for payment of college tuition and books for Shannon and [Michael] at a cost equivalent to the University of Connecticut at Storrs. . . . The defendant husband and plaintiff wife shall divide equally the cost of college room and board for Shannon and [Michael] at an expense not to exceed the cost of the University of Connecticut at Storrs. . . . The defendant husband shall provide Shannon with transportation, or reimbursement for tire cost thereof, while she is an undergraduate college student. . . . The defendant husband and plaintiff wife shall divide equally the cost of automobile insurance for both Shannon and [Michael] while they are undergraduate college students.”

       In this appeal, it is not necessary for us to determine whether the trial court properly resolved the ambiguity.

       We vacate the award only because it flows from the contempt finding that we have reversed. It is not necessary for us to address whether the court correctly det ermined the extent of the defendant’s obligations pursuant to the agreement.