source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    ALBERT G. BAGOLY, JR. v. FRANK J. RICCIO ET AL.
    (AC 27587)
    DiPentima, Gruendel and Berdon, Js.

      Argued March 26
    officially released July 31, 2007

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and John L. Stawicki, for the appellant (plaintiff).

      Edward Maum Sheehy, for the appellee (named defendant).

      Terence D. Mariani, for the appellee (defendant Richard R. Burmeister).
   Opinion

GRUENDEL, J.

In this legal malpractice action stemming from a postmarital dissolution case, the plaintiff, Albert G. Bagoly, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendants, Frank J. Riccio and Richard R. Burmeister. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for summary judgment by (1) failing to apply the continuing representation doctrine for his negligence claim and (2) applying res judicata and collateral estoppel to his breach of contract claim. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to the issues on appeal. The plaintiff was the defendant in a marital dissolution action in January, 1996, at the conclusion of which the court rendered judgment in accordance with the agreement submitted by the parties regarding alimony and property distribution. That separation agreement stated that the plaintiff would pay his former wife $400 per week in alimony and further provided that she was entitled to half of his pension, as vested through June 1, 1995, upon his retirement. Subsequent to the dissolution, the plaintiff, concerned about having to continue to pay alimony upon his retirement in addition to the pension, sought legal advice from the attorney who had represented him in the dissolution action. Unsatisfied with the attorney’s response, the plaintiff sought legal assistance from Ric-cio, who assigned the matter to Burmeister, another attorney at his law firm. Burmeister drafted a motion to clarify and to modify the dissolution agreement.

On February 27, 1997, Burmeister negotiated with the attorney for the plaintiffs former wife with the intention of forming an agreement that would replace the alimony requirement with an increased life insurance policy, to which the plaintiffs former wife would be entitled upon the plaintiffs death. On the same day, the court adopted a written agreement that was signed by both parties. The agreement, however, did not contain a provision to terminate the plaintiffs weekly alimony payments upon his retirement and contained only the addition of the life insurance policy. The plaintiff paid the attorney’s fees requested by Riccio.

In August, 2001, the plaintiff retired from the Bridgeport school system and discovered that the modification had not eliminated the requirement to pay alimony. He contacted Riccio, who requested a $2500 retainer fee to resolve the problem. The plaintiff did not pay the fee and instead contacted Burmeister, who no longer worked with Riccio. On September 10, 2001, the court denied the plaintiffs motion to modify the February 27, 1997 order, and on November 15, 2001, the court denied his subsequent motion for reargument. At that hearing, Burmeister testified as a witness, affirming that the order did not reflect the agreement between the parties.

On January 18, 2002, the plaintiff brought this action against both Riccio and Burmeister, claiming that the failure of the defendants to include language in the agreement that corresponded with the negotiations constituted negligence and a breach of express or implied contract. On March 19 and April 22, 2004, Burmeister and Riccio, respectively, filed motions for summary judgment, claiming that the statute of limitations barred the plaintiffs claims. On May 10, 2004, the court held a hearing on the motions and on August 25, 2004, granted the motions for summary judgment on the negligence count but denied them for the breach of contract claim. The defendants later filed additional motions for summary judgment, this time alleging that collateral estoppel precluded the breach of contract claim. The court held a hearing on April 25, 2005, and granted Riccio’s motion on July 20,2005. This appeal followed.

Before addressing the merits of the plaintiffs claims, we set forth the applicable standard of review of a trial court’s ruling on a motion for summary judgment. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Brown v. Soh, 280 Conn. 494, 500-501, 909 A.2d 43 (2006). Our review of the trial court’s decision to grant the defendants’ motion for summary judgment is plenary. See id.

I

We first address the parties’ claims that the court improperly decided the motions for summary judgment related to the statute of limitations.

A

The plaintiff first argues that the court improperly granted the defendants’ motions for summary judgment on his negligence claim by failing to apply the continuing representation doctrine. Specifically, he argues that Burmeister’s testimony before the court in 2001 constituted his continuing representation, which tolled the three year statute of limitations to bring a tort action. We disagree.

General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” “[A] plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period.” (Emphasis in original.) DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003). Because it is unfathomable that the defendants continued to represent the plaintiff simply because Burmeister submitted an affidavit and testified during the hearing on the modification of the separation agreement, the continuous representation doctrine does not apply to the plaintiffs negligence claim. Burmeister last represented the plaintiff on February 27, 1997, and the plaintiff brought the present action on January 18, 2002, well beyond the three year statute of limitations. Accordingly, the plaintiffs first claim fails.

B

We also conclude that the court properly denied the defendants’ motions for summary judgment on statute of limitations grounds concerning the plaintiffs breach of contract claim. The defendants assert that the court, in its August 25,2004 memorandum of decision, improperly denied their motions for summary judgment because the plaintiffs breach of contract claim was subject to a three year statute of limitations. They cite General Statutes § 52-581, which provides in relevant part: “(a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues. ...” (Emphasis added.) General Statutes § 52-576, however, provides in relevant part: “(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” (Emphasis added.) The defendants claim that because the contract with the plaintiff was oral, the three year statute of limitations applies.

This court has addressed the distinction between §§ 52-581 and 52-576. “These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three year statute of limitations, as applying only to executory contracts. ... A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations. ... It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies. Thus, the . . . argument that § 52-581 automatically applies to the oral contract between the parties is incorrect. The determinative question is whether the contract was executed.” (Citations omitted; emphasis in original; internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Excavating, 76 Conn. App. 599, 610, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003).

We note that the court properly concluded: “According to the allegations of the complaint, the contract that the defendants allegedly breached is not an executory contract. The plaintiff fully paid the fee owed to the defendants, terminating the attorney-client relationship. The plaintiff fulfilled his only contractual obligation. Thus, the six year statute of limitations applicable to executed oral contracts . . . General Statutes § 52-576, is applicable. . . . Thus, the defendants’ motion for summary judgment directed to [the plaintiffs breach of contract claim] is denied.” (Citation omitted.) Although the defendants claim that the plaintiff paid only a portion of the retainer fee and therefore did not fully perform his contractual obligations, the plaintiffs affidavit states that he paid the fee in full. Because it presents a question of fact, summary judgment is inappropriate. The defendants’ attempt to extend summary judgment on statute of limitations grounds to the plaintiffs breach of contract claim therefore fails.

II

The plaintiff next argues that the court improperly granted the defendants’ motions for summary judgment by concluding that the doctrines of res judicata and collateral estoppel precluded his claim of breach of express or implied contract. Specifically, he argues that because neither the parties nor the issues were the same, his action was not subject to the doctrines of res judicata or collateral estoppel. We agree.

Although the defendants’ pertinent motions for summary judgment claimed only that collateral estoppel barred the plaintiffs claim, the court addressed both res judicata and collateral estoppel in its July 20, 2005 memorandum of decision. The applicability of res judicata and collateral estoppel is a question of law over which our review is plenary. See, e.g., R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001); Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 594, 726 A.2d 502 (1999). “Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum.” (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn. App. 180, 186, 834 A.2d 744 (2003). “The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation.” (Internal quotation marks omitted.) Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 619, 902 A.2d 24 (2006).

The court’s treatment of res judicata warrants little discussion. “[T]he doctrine of res judicata . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim.” (Citations omitted; internal quotation marks omitted.) Id. In its July 20, 2005 memorandum of decision, the court stated: “The present claim is premised upon an identical claim for relief, modification of the alimony obligation based upon retirement.” In fact, however, the plaintiffs claims for relief against the defendants for negligence and breach of contract demanded money damages, punitive and exemplary damages, attorney’s fees and “[s]uch other and further relief as provided by law and equity.” Because the claims in the present action were not the same as those in the prior action against his former wife, in which the plaintiff sought a modification of the dissolution order, res judicata was inapplicable.

The doctrine of collateral estoppel also is inapplicable in this case because the parties in the two actions at issue were distinct. “Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim." (Emphasis added; internal quotation marks omitted.) Mount Vernon Fire Ins. Co. v. Morris, 90 Conn. App. 525, 535, 877 A.2d 910 (2005), appeal dismissed, 281 Conn. 544, 917 A.2d 538 (2007). The parties subject to the plaintiffs motions to modify and to reargue in 2001 were the plaintiff and his former wife. Burmeister appeared only as a witness testifying for the plaintiff at the hearing on the latter motion and was not a party to the action. It was not until January 18, 2002, that the plaintiff brought the current action against the defendants. “The rule of issue preclusion is operative where the second action is between the same persons who were parties to the prior action, and who were adversaries . . . with respect to the particular issue . . . .” (Emphasis added.) 1 Restatement (Second), Judgments § 27, comment (a) (1982). Because the requirement that the parties be the same and be adversaries in the two actions was not satisfied, the application of collateral estoppel was improper.

The defendants claim that “mutuality of parties is no longer required to invoke collateral estoppel.” We decline the defendants’ invitation, however, to apply our Supreme Court’s conclusion in Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 596 A.2d 414 (1991), to the present case. In Aetna Casualty & Surety Co., the deceased wife’s estate was collaterally estopped from relitigating the issue of intent against the insurance company when her husband previously had been convicted of manslaughter in the first degree, indisputably proving his intent beyond a reasonable doubt. The court held that the deceased wife’s estate was in privity with the convicted husband for purposes of collateral estop-pel. “Collateral estoppel maybe invoked against a party to a prior adverse proceeding or against those in privity with that party. . . . While it is commonly recognized that privity is difficult to define, the concept exists to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding. ... A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 303-304.

It is unclear who the defendants claim is in privity with whom, but the only logical inference is that they claim that they are in privity with the plaintiffs former wife and are entitled therefore to collateral estoppel. The facts in this case are fundamentally different from those in Jones, however, in which the insurance company claimed that the decedent’s rights had been represented in the criminal trial of her husband and her estate therefore could not relitigate the issue of intent. We decline to apply this holding to the present case. Because the defendants do not share the same legal right as the plaintiffs former wife, the parties are not in privity for purposes of collateral estoppel.

Accordingly, res judicata and collateral estoppel did not bear on the plaintiffs complaint against the defendants, and the rendering of summary judgment on the plaintiffs breach of contract claim on those grounds was improper.

The summary judgment on the plaintiffs breach of contract claim is reversed and the case is remanded for further proceedings in accordance with law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       At the hearing, the plaintiff was represented by other counsel.

       In an affidavit filed on November 5, 2001, Burmeister admitted that “[inadvertently, language was left out eliminating the alimony payments that were agreed to. The alimony payments should have been replaced by the agreement approved by both parties on February 27, 1997.”

       A third count was also included, which alleged a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Riccio’s motion to strike that count was granted on February 27, 2003, and it was not litigated thereafter.

       On February 25,2004, Riccio also filed a cross claim against Burmeister, which stated that “[i]f the plaintiff . . . recovers damages as alleged in his [r]evised [cjomplaint and Riccio is held liable, which liability is expressly-denied, then in that event Riccio is entitled to indemnification from Burmeister .. . .”

       On July 27, 2005, Burmeister filed a motion for articulation “to make clear that summary judgment is as to all defendants.” On June 28, 2005, the court granted Burmeister’s motion for summary judgment on the same grounds.

       We note that although summary judgment was rendered on the first count on August 25, 2004, the plaintiff was not required to file a notice of intent to appeal before final judgment was rendered. See Practice Book § 61-5.

       The defendants raise this issue as an alternate ground to affirm the final judgment rendered by the court.

       Due to this conclusion, we need not address the defendants’ assertion that “[t]o prevail on the breach of contract claim set forth in the second count, the plaintiff must demonstrate that he would have succeeded in modifying the separation agreement to terminate [his] obligation to pay alimony on [his] retirement. The issue has already been litigated in [the dissolution action between the plaintiff and his former wife].”
      As previously stated, because the parties were not the same, and the defendants were not in privity with the plaintiffs former wife, collateral estoppel does not bar the plaintiffs breach of contract claim, notwithstanding the alleged prior litigation of 1he issue.


author: BISHOP, J.

text:
    THEODORE B. MULLE, JR., ET AL. v. BRIAN MCCAULEY ET AL.
    (AC 27604)
    Bishop, Lavine and Mihalakos, Js.

      Argued April 16
    officially released July 31, 2007

      Gerald L. Garlick, with whom, on the brief, was Katherine E. Abel, for the appellants (defendants).

      Patrick E. Power, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

The defendants, Brian McCauley, Miyako Kinoshita, Mortgage Electronic Registrations Systems, Inc., and Loancity.com, appeal from the judgment of the trial court, rendered in favor of the plaintiffs, Theodore B. Mulle, Jr., and Denise D. Mulle. On appeal, the defendants claim that the court improperly determined that the plaintiffs had acquired title to a portion of their property by adverse possession. We affirm the judgment of the trial court.

The following facts and procedural history, as set forth by the court in its memorandum of decision, are relevant to our consideration of the defendants’ appeal. “The plaintiffs . . . are record title owners of a certain parcel of land situated in ... New Milford . . . commonly known as 201 Aspetuck Ridge Road, hereinafter referred to as ‘[lot] 201.’ The defendants . . . are record owners of a certain parcel of land . . . commonly known as 193 Aspetuck Ridge Road, hereinafter referred to as ‘[lot] 193.’ . . . The disputed area comprises the north portion of [lot] 193 and extends in an east-west direction all the way from the front of [lot] 193 on Aspetuck Ridge Road to the rear westerly border of [lot] 193. . . . Rosemary Jejer came into possession of [lot] 201 in 1950 when she and her then husband, Philip Jejer, acquired [lot] 201 from Philip Jejer’s parents, Frank Jejer and Daisy Jejer. Although Rosemary Jejer and Philip Jejer divorced in 1986, Rosemary Jejer continuously owned and occupied [lot] 201 from 1950 until December, 2000, when the property was sold to the plaintiffs. . . .

“Frances Hill received [lot] 193 by warranty deed from her mother, Daisy Jejer, on June 21,1984. Up until approximately that date, Daisy Jejer resided at [lot] 193. After her acquisition of [lot] 193, Hill rented [lot] 193 to various tenants. From 1984 up until the time of the defendants’ purchase, neither Hill nor any Jejer family member resided at [lot] 193. . . . Sometime prior to 1950, Frank Jejer and Daisy Jejer owned [lots] at 191, 193 and 201 Aspetuck Ridge Road. All three properties are adjoining. [Lot] 193 is located south of [lot] 201, and [lot] 191 is south of [lot] 193. All three properties are on the westerly side of Aspetuck Ridge Road. . . . The actual record boundary lines of [lots] 193 and 201 are not in dispute. . . . Further, there is no dispute that the defendants are the record title owners of the disputed area. . . .

“Simultaneous with their acquisition of [lot] 201, Rosemary Jejer and Philip Jejer began to use and maintain the disputed area. There was no evidence offered at trial that indicated that Rosemary Jejer’s and Philip Jejer’s initial use of any part of the disputed area was with either permission or consent, expressed or inferred, from the owners of [lot] 193.

“From 1950 to 1960, Rosemary Jejer and Philip Jejer leased the westerly portion of the disputed area to Fred Stebbins. Stebbins used the disputed area to pasture his cows. Stebbins pastured five to six cows in the disputed area for a decade and paid the Jejers a fee for the use of the disputed area. Additionally, through the years, while raising their three children, the Jejers themselves pastured horses and small farm animals in this westerly portion of the disputed area.

“In 1970, Rosemary Jejer and Philip Jejer installed a combination dirt and gravel driveway within the disputed area. The driveway begins in the northeasterly comer of [lot] 201 and traverses [lot] 201 in a southwesterly path through the disputed area before turning northwesterly through the disputed area back into [lot] 201, approaching the rear of the dwelling on [lot] 201. This driveway has, at all times relevant herein, provided access to [lot] 201 only and was exclusively used by only the occupants of [lot] 201. There was never any common use or sharing of this driveway with [lot] 193 or any of [lot] 193’s occupants. [Lot] 193 at all times relevant herein had its own driveway. There was no evidence offered that Rosemary Jejer’s and Philip Jejer’s initial use of this portion of the disputed area was permissive or with the consent of the owners or occupiers of [lot] 193. Rosemary Jejer and Philip Jejer never sought permission to install the driveway, and none was ever given. Rosemary Jejer testified that they never sought permission to install the driveway because they had always assumed that the disputed area was part of [lot] 201. The driveway in the disputed area has always been maintained, including plowing and mowing, by the occupants of [lot] 201. Further, the plaintiffs have hired someone to mow the grassy area bordering the driveway within the disputed area. Grass clippings and leaves are deposited in the southeasterly comer of the disputed area.

“To this date . . . the driveway still exists and is clearly defined and visible from Aspetuck Road. Looking at [lot] 193 and [lot] 201 from Aspetuck Road, the driveway in the disputed area would clearly appear to be associated with [lot] 201, only, in that to the southerly side of the driveway is bmsh and green overgrowth, which appears to function as a natural boundary between [lot] 193 and [lot] 201. The plaintiffs have continued to use and maintain the driveway since their purchase of [lot] 201.

“In 1972, Rosemary Jejer and Philip Jejer constructed a two-story bam partially within the disputed area .... The bam still stands on the property today. The bam housed various farm animals, including goats and horses, until approximately 1987. At all times relevant herein, this two-story bam has or should have been clearly visible to the occupants or owners of [lot] 193 or anyone else who came upon the property for that matter. No one else used the bam except the owners of [lot] 201. . . . The record title boundary line, going east and west between [lot] 193 and [lot] 201, cuts right through the middle of the bam, thus one half of the bam is within the disputed area, and the other half is within the record title boundary of [lot] 201.”

The record reveals that the plaintiffs purchased lot 201 from Rosemary Jejer on December 20, 2000, and the defendants purchased lot 193 from Hill on April 21, 2003. A dispute arose when subsequent to the purchase of lot 201 by the plaintiffs, Robert Hill showed Theodore Mulle, Jr., a 1984 land survey, which revealed the trae boundary lines of the adjacent properties. Theodore Mulle, Jr., immediately contacted his attorney in an attempt to resolve this newly discovered problem regarding the boundary between the two lots.

While the plaintiffs were trying to resolve this issue, Frances Hill sold lot 193 to the defendants in April, 2003. Although the defendants had seen a copy of the 1984 land survey prior to the closing, they were not aware of the discrepancies between the survey and the actual use of the property. The defendants first learned of the boundary discrepancy in May, 2003, when they received a letter from the plaintiffs’ attorney notifying them of the boundary dispute.

By way of substitute complaint filed February 18, 2005, the plaintiffs sought a decree determining the rights of the parties as to the disputed area. In its memorandum of decision filed April 3, 2006, the court found, inter alia, that the plaintiffs had established all of the elements necessary for an adverse possession claim and, accordingly, quieted title in favor of the plaintiffs. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendants contend that the hostility and exclusivity elements of adverse possession were not satisfied. We are not persuaded.

As a preliminary matter, we identify the applicable legal principles. It is well established that one claiming title to real property by adverse possession must prove by clear and positive evidence each element of actual, open, notorious, hostile, continuous and exclusive possession for the full fifteen year statutoiy period. See Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 779-80, 890 A.2d 645 (2006); see also General Statutes § 52-575 (fifteen year statute of limitations for claim of adverse possession).

“Despite [this] exacting standard, our scope of review is limited.” (Internal quotation marks omitted.) Provenzano v. Provenzano, 88 Conn. App. 217, 222, 870 A.2d 1085 (2005). “Because adverse possession is a question of fact for the trier . . . the court’s findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... A trial court’s findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court . . . .” (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 779. With these principles in mind, we address the defendants’ specific claims on appeal.

The defendants first claim that the court improperly found that the use of the disputed area by the owners and occupants of lot 201 was hostile. Specifically, the defendants argue, pursuant to Woodhouse v. McKee, 90 Conn. App. 662, 879 A.2d 486 (2005), that because the original owners of lots 193 and 201 were related, a presumption of permissive use arose regarding the presently disputed lot, and because this presumption was not clearly repudiated, the plaintiffs failed to demonstrate that the use of the disputed area was hostile. In contrast, the plaintiffs argue that they presented sufficient facts demonstrating that the use of the disputed area was hostile and that a familial relationship of abutting landowners, by itself, is not sufficient to give rise to an automatic presumption of permissive use. The trial court agreed with the plaintiffs. Although the defendants are correct in their assertion that the holding of Woodhouse has bearing on the issues at hand because the original occupants of lots 193 and 201 were related, we agree, nevertheless, with the court that an automatic presumption of permissive use is not mandated in this instance because a familial relationship is only one factor to consider in the hostility analysis, and the facts of the present matter are significantly distinguishable from the facts in Woodhouse.

In Woodhouse, the plaintiffs’ and the defendant’s parcels originally were owned by Archibald Young as a single parcel. Id., 669-71. In 1928, a summer cottage was built on the property. Id., 666. In 1929, Young conveyed what was to become the “McKee parcel,” consisting of 35.5 acres, to his daughter, Mary Kettles, and her husband, John Kettles. Id., 669-70. Young reserved to himself two remaining acres of the original parcel containing the summer cottage, which later became the “Woodhouse parcel.” Id., 669. This smaller Woodhouse parcel shared a driveway that was located entirely within the McKee parcel, but was used for access to the Woodhouse parcel as well as to the McKee parcel. Id., 674. “The shared driveway . . . was used by both parcels until the 1940s.” Id. In 1935, Young transferred his remaining interest in the Woodhouse parcel to his other daughter, Dorothy Young Kirk. Id., 669-70. The terminus of this driveway, which was shared by both parcels and located within the McKee parcel, was the disputed area in Woodhouse. Id., 672. No express permission was given to Young or later owners of the Woodhouse parcel to use the shared driveway or its terminus. Id., 671-74. It was not until the 1940s that a new driveway was installed on the Woodhouse parcel. Id., 671. It joined part of the old driveway and continued to terminate at the disputed area. Id. The occupants of the Woodhouse parcel, with the knowledge that the disputed area was located within the McKee parcel, continued to use the driveway and its terminus as they always had done. Id.

The defendant became the owner of the McKee parcel in 1992. Id., 667. Subsequently, a dispute arose regarding use of the driveway and its terminus. The owners of the Woodhouse parcel claimed that they and their predecessors had acquired ownership of the disputed area by adverse possession. Id., 664. Conversely, the defendants claimed that the plaintiffs’ and their predecessors’ use of the disputed area had been with the permission or consent of the owners of the McKee parcel. Id., 665.

This court in Woodhouse opined that “[t]he original familial ownership of these adjacent properties directly affects the analysis of [the defendant’s] claim that the use of the disputed area was permissive and not hostile or adverse.” Id., 670-71. In reversing the trial court’s finding of adverse possession, this court, quoting 3 Am. Jur. 2d 124, Adverse Possession § 180 (2002), stated: “It is a general principle that members of a family may not acquire adverse possession against each other in the absence of a showing of a clear, positive, and continued disclaimer and disavowal of title .... The existence of a family relationship between the parties will prevent or rebut a presumption of adverse holding.” (Internal quotation marks omitted.) Woodhouse v. McKee, supra, 90 Conn. App. 673. “In determining what amounts to hostility, the relation that the adverse possessor occupies with reference to the owner is important. If the parties are strangers and the possession is open and notorious, it may be deemed to be hostile. However if the parties are related, there may be a presumption that the use is permissive.” (Emphasis added; internal quotation marks omitted.) Id.

This court in Woodhouse determined that the trial court improperly concluded that the plaintiffs had established their adverse possession claim because “the court failed to consider the relevance of the initial grantor-grantee or parent-child familial use of the disputed area.” Id., 676. This court also stated, however, that “[although [the trial court] recognized that the property initially was owned by Young and then by his children, it did not consider the shared use of the driveway and the presumptive license given to the plaintiffs or their predecessors in title to use the disputed area . . . .” (Emphasis added.) Id.

The court in the present matter stated that “[t]he case at bar gives rise to a Woodhouse analysis since the original relationship between the abutting property owners at [lots] 193 and 201 was familial.” In response to the defendants’ motion for articulation, the court commented, however, that “[although the court did analyze the facts of the case at bar pursuant to Wood-house ... it found that the case at bar did not give rise to the application of the Woodhouse presumption.”

The corut explained in its memorandum of decision that “[a]side from the familial relationship between the original owners of [lots] 193 and 201, the facts in the case at bar are significantly distinguishable from the relevant underlying facts in Woodhouse. Most importantly, in Woodhouse, there was evidence that the claimants had permission to use the area in dispute from inception. Further, there was evidence of a shared use of the disputed area between the abutting property owners. Neither of these pivotal facts is present in the case before the court. The plaintiffs in this case were never granted permission or consent, expressed, inferred or otherwise, to use the disputed area. Additionally, there was no evidence of any shared use of any portion of the disputed area. The fact that [lots] 193 and 201 were at one time owned and occupied by members of the same family, does not, alone, give rise to the presumption of permissive use.”

The court continued in its articulation, stating that “[t]he Woodhouse court clearly stated the presence of a familial relationship may give rise to a presumption of permissive use. First finding a familial relationship between the abutting property owners, the Woodhouse court went on to analyze the facts relative to the initial and historical use of the disputed area. Only after the court found shared and communal use of the disputed area since its inception did the court find the application of the presumption appropriate.” Thus, in its memorandum of decision, the court concluded: “Given the relevant facts of this case, application of the Woodhouse presumption would be inappropriate. Accordingly, having met all the other necessary elements of their claim, the court finds in favor of the plaintiffs on the first count of their complaint sounding in adverse possession.”

As a general proposition, to satisfy the hostility requirement of adverse possession, a claimant’s possession of the disputed land, from its inception, must be without permission, license or consent of the owner and must continue to be so throughout the required fifteen year period. Woodhouse v. McKee, supra, 90 Conn. App. 672-73; see also Paton v. Robinson, 81 Conn. 547, 551, 71 A. 730 (1909).

“The word ‘hostile,’ as employed in the law of adverse possession, is a term of art; it does not, despite some troublesome early cases, imply animosity, ill will or bad faith. Nor is the claimant required to make express declarations of adverse intent during the possessory period. Conversely, in order to obtain title by adverse possession one need not be under a good faith mistake that he or she had legal title to the land.” 16 R. Powell, Real Property (2005) § 91.05 [1]. “Hostile possession can be understood as possession that is opposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own.” Id.

“Historically, the existence of a familial relationship between claimants has been [only] a factor in determining whether possession of land is adverse . . . .” (Citations omitted.) Totman v. Malloy, 431 Mass. 143, 145-46, 725 N.E.2d 1045 (2000). A “family relationship between parties is only one of the facts to be considered [with other facts]. ... [A] family relationship without more is insufficient to support a finding that the use at the time was with permission.” (Citations omitted; internal quotation marks omitted.) Banks v. Pusey, 393 Md. 688, 705-706, 904 A.2d 448 (2006). “[Standing alone a familial relationship neither puts an end to the inquiry regarding permissive use nor shifts the burden of proof.” Totman v. Malloy, supra, 148. “Nevertheless, the familial relationship may be an important factor when evaluated in the context of all the other relevant factors guiding the Court in its resolution of the . . . claim. ” Brown v. Houston Ventures, Docket No. Civ. A. 2046-S, 2003 WL 136181, *6 (Del. Ch. January 3, 2003).

Here, it is undisputed that the original owners of lots 193 and 201 were related, and, as the court correctly noted, this fact triggers the need for a Woodhouse analysis. Contrary to the defendants’ contention, however, this fact alone does not mandate the automatic presumption of permissive use enunciated in Woodhouse. As noted, this court in Woodhouse stated that the trial court failed to consider the familial use of the disputed area. The Woodhouse court did not, however, base its conclusion solely on the family relationships among the original property owners. Rather, the court considered the familial relationship of the adjacent landowners in conjunction with the shared use of the driveway in determining whether to apply a presumption of permissive use. This reflects the court’s conclusion that a familial relationship between abutting landowners is but one factor to consider in the hostility analysis. In this appeal, unlike Woodhouse, the trial court made a specific factual finding that there was an absence of a shared or communal use of the disputed area since the beginning or any time thereafter. Thus, the court properly concluded that there was a significant factual distinction between Woodhouse and the case at bar because of the absence of a history of shared use in this matter and, correspondingly, the presence of shared use in the Woodhouse record.

In addition to its determination that the presumption of permissive use did not apply, the court specifically found that (1) in 1972, Rosemary Jejer and Philip Jejer constructed a bam partially within the disputed area, which was never shared with the occupants of lot 193 and exclusively used by the occupants of lot 201, and “[t]he driveway in the disputed area has always been maintained, including plowing and mowing, by the occupants of [lot] 201,” (2) Rosemary Jejer and Philip Jejer installed a driveway that ran through the disputed area and was exclusively used by them, (3) Rosemary Jejer and Philip Jejer rented out the disputed area for their exclusive benefit, and (4) Rosemary Jejer and Philip Jejer also pastured horses and farm animals within the disputed area. The court observed, in contrast with the Woodhouse facts, that in the entire fifty year history of the adjoining parcels, other than the evidence that Daisy Jejer would on occasion walk through the disputed area in order to visit the occupants of lot 201 and that the Jejer grandchildren played on all three lots on occasion as children, “there was no evidence that anyone other than the occupants and owners of [lot] 201 used or maintained the disputed area.” These facts support the court’s conclusion that the use of lot 201 by the plaintiffs’ predecessors was open and hostile.

In sum, the court correctly determined that the use of the disputed area was hostile and that the presumption of permissive use as set forth in Woodhouse was inapplicable to the facts at hand. Accordingly, we conclude that the court’s determination faithfully adheres to the legal principles relating to hostile possession and that the court’s findings are supported by the record and are not clearly erroneous.

The defendants also claim that the plaintiffs’ assertion of title by adverse possession must fail because the evidence presented to the court demonstrated that the plaintiffs’ use of the disputed area was not exclusive. We disagree.

“Again, the question of whether the elements of an adverse possession claim have been established by clear and convincing evidence is a factual one subject to the clearly erroneous standard of review.” Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 785. “In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others. . . . Thus, the claimant’s possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use. ... It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.” (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 502-503, 442 A.2d 911 (1982).

We agree with the defendants’ contention that shared dominion defeats a claim of adverse possession. See Lisiewski v. Seidel, 95 Conn. App. 696, 702, 899 A.2d 59 (2006) (“[i]f dominion is shared, then the exclusivity element of adverse possession is absent”). In the present matter, however, the record amply supports the court’s conclusion that the occupants of lot 201 used the disputed area exclusively as owners of such property would.

The record reflects that throughout the time period in question, the occupants of lot 201 (1) exclusively maintained and paid for the maintenance of the disputed area, (2) constructed a bam partially within the disputed area, (3) rented out the westerly portion of the disputed area, (4) pastured their farm animals within the disputed area and (5) installed, maintained and exclusively used a driveway that ran through the disputed area. These activities are all consistent with open acts of ownership by the occupants of lot 201. Conversely, the only evidence the defendants offered in this regard was their testimony that since their purchase, they tapped a maple tree in an area that they believe was within the disputed area. There was no testimony, however, as to whether this activity was done with the plaintiffs’ knowledge or permission. The defendants did not offer any other evidence relative to their use or maintenance of the disputed area. Thus, the court’s conclusion that the plaintiffs established that their use and their predecessor’s use of the disputed area was exclusive was not clearly erroneous, as it is adequately supported by the evidence.

We conclude that the record contains ample evidence to support the court’s finding that the plaintiffs had proven each and every element of adverse possession for well over fifteen years by clear and convincing evidence and that the plaintiffs are therefore the owners of the disputed area.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we affirm the court’s judgment as to the adverse possession claim, we need not reach the defendants’ claim regarding a prescriptive easement.

       “[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property . . . .” (Internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 845, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).

       “The word ‘consent’ has been used in the legal analysis of claims of adverse possession to negate the necessary element of hostile possession.” Gallo-Mure v. Tomchik, 78 Conn. App. 699, 706, 829 A.2d 8 (2003).

       We also note that “ [possession that is permissive in its inception [however] may [still] become hostile.” (Internal quotation marks omitted.) Woodhousev. McKee, supra, 90 Conn. App. 675. “[IJtdoesso onlyif [the permission] is clearly repudiated by the occupant [or owner]. . . . Such repudiation must be shown by some clear, positive, and unequivocal act brought home to the owner or the use will be presumed to be permissive.” (Citations omitted; internal quotation marks omitted.) Id.

       We also note that this reading of Woodhouse is further supported by the fact that this court in a subsequent case quoted Woodhouse, stating that “in assessing whether hostility exists, the relation that the [alleged] adverse possessor occupies with reference to the owner is important.” (Internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 775. We note that the term “important” is not synonymous with “determinative” and that the Woodhouse court did not state that the existence of a family relationship among original owners was the sole factor to be considered in a hostility analysis. Important is defined as “marked by or possessing weight or consequence . . . significant. ...” Determinative is defined as “having power or tendency to determine . . . conclusive.” Webster’s Third New International Dictionary.

       Because we agree with the court’s conclusion that the presumption of permissive use did not apply in the present matter and that the use of the disputed area was hostile since its inception, we need not address the defendant’s argument that the plaintiffs’ predecessors never clearly repudiated the initial permissive use of the property.

       The rent received by Philip Jejer and Rosemary Jejer from Stebbins was never paid to Daisy Jejer or shared with her. Rosemary Jejer testified that the rental agreement was between herself, her husband and Stebbins, and that “Daisy [Jejer] had nothing to do with it.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. WILLIAM ANDREWS
    (AC 25508)
    Schaller, Bishop and Foti, Js.
    Argued April 30
    officially released July 31, 2007

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, Robert G. Hall, supervisory assistant state’s attorney, and Kimberley N. Perrelli, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, William Andrews, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) marshaled the evidence against him in charging the jury and (2) violated his sixth amendment rights to confrontation and to present a defense. We affirm the judgment of the trial court.

The defendant, who was thirty-four years old, was a friend of the family of the victim, a fifteen year old girl. On March 17, 2002, the victim told her family that the defendant had sexually assaulted her two or three weeks earlier during a sleepover at her home. According to the victim, she was sleeping in her living room with five other children and woke up when the defendant restrained her, covered her mouth and forced her to have vaginal intercourse. After reporting the assault to her family, the victim went to a hospital, where a physician, Gary LaPolla, examined her and did not find any vaginal injuries or other evidence that she had been sexually assaulted.

The state subsequently charged the defendant with sexual assault in the first degree, sexual assault in the second degree and risk of injury to a child. At trial, LaPolla testified that the victim told him that the defendant had tried to insert his penis into her vagina but failed to do so. After considering all of the evidence, the jury returned a verdict of not guilty on both of the sexual assault counts and a verdict of guilty of risk of injury to a child. The court rendered judgment in accordance with the verdict and sentenced the defendant to eight and one-half years incarceration, execution suspended after five years, followed by ten years probation. This appeal followed.

I

The defendant first claims that the court improperly marshaled the evidence against him in charging the jury. We disagree.

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence ... is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, wlúle sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention. . . .

“On review, we do not evaluate the court’s marshaling of the evidence in isolation. Rather, [t]o determine whether the court’s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Little, 88 Conn. App. 708, 712-13, 870 A.2d 1170, cert. denied, 274 Conn. 916, 879 A.2d 895 (2005).

The defendant directs us to several portions of the court’s charge that, in his view, constitute improper marshaling. First, in instructing the jury as to whether the victim correctly identified the defendant as her assailant, the court noted that the defendant was a good friend of the victim’s family and frequently visited the victim’s home. The court later stated that the victim was younger than sixteen years of age at the time of the alleged assault and that the defendant did not dispute that fact. The court then explained that the victim’s consent to have sexual intercourse was not an issue because a child younger than sixteen years old cannot give such consent. In commenting on the alleged sexual contact between the victim and the defendant, the court stated: “[Y]ou heard the testimony of the [victim] as to the effect that [the contact] had upon her.”

The court also referred to the victim’s testimony that the defendant had forced her to have vaginal intercourse and her inconsistent statement to LaPolla at the hospital that the defendant had tried, but failed, to insert his penis into her vagina. Although the court’s reference was more favorable to the defendant than to the victim, the defendant contends that the court should have added that LaPolla had not found any evidence of a sexual assault when he examined the victim at the hospital. The defendant also directs us to the court’s statement that “[w]e all have sympathy for what may or may not have occurred for anybody who may have taken the [witness] stand. But do your level best to decide this case fairly and impartially without regard to sympathy or punishment.” The defendant argues that the court subtly expressed a view that only the victim deserved sympathy because the victim testified at trial, but the defendant chose not to testify. The defendant also contends that the court improperly emphasized that the victim deserved sympathy while he deserved punishment.

Finally, the defendant argues that the court improperly responded to a note that the jury submitted during its deliberation. That note stated in relevant part: “Does mere contact between the penis and vagina constitute penetration, no matter how slight as defined by the statute.” In response to that note, the court repeated its instructions regarding the definitions of contact and penetration. The defendant argues that the court’s response should have been limited to the definition of penetration, with no mention of contact. In the defendant’s view, the court’s repeated instruction regarding contact misled the jury into believing that sexual contact between the victim and the defendant had been established conclusively.

Having considered the numerous portions of the court’s charge on which the defendant bases his claim, we are unpersuaded that the court engaged in improper marshaling. The court commented on evidence that tended to be favorable to the defendant, such as the victim’s inconsistent statement to LaPolla at the hospital, and evidence that could have been unfavorable to the defendant, such as the close relationship that he had with the victim’s family, which could have facilitated an assault of the victim. In commenting on the evidence, the court provided the jury a fair summary and did not direct its attention too prominently to the evidence of the defendant’s guilt or pass lightly over the evidence that the defendant was not guilty.

The defendant’s attempt to isolate certain comments by the court is unavailing because those comments must be evaluated in light of the entire charge. For instance, the defendant critically dissects the court’s statements regarding sympathy and punishment in order to argue that the court subtly instructed the jury to have sympathy for the victim and to punish the defendant. The defendant also refers to the court’s instruction regarding the inapplicability of consent and its repeated definitions of contact and penetration. The defendant’s approach, however, glosses over the legal correctness of those instructions and the overall effect of the charge, which was to guide the jury to a correct verdict. We conclude that the court properly marshaled the evidence in charging the jury.

II

The defendant next claims that the court improperly violated his sixth amendment rights to confrontation and to present a defense. We disagree.

The defendant’s claim relates to his theoiy that the victim’s family coerced the victim into falsely accusing the defendant of sexual assault. The reason for the false accusation, according to the defendant, was that the victim’s family was angry because he occasionally had sex with both the victim’s mother and a former girlfriend of the victim’s uncle. At trial, the defendant sought to cross-examine the victim’s mother, uncle and the wife of the uncle regarding their knowledge of the defendant’s sexual relationships, but the court precluded that cross-examination on the ground of relevance. The court permitted the jury to hear the testimony of the victim’s mother that the mother had had sex with the defendant on the night of the alleged sexual assault of the victim. The court also permitted the defendant’s fiancee to testify that the defendant had had an argument with the victim’s uncle about the uncle’s former girlfriend shortly before the victim’s family accused the defendant of sexually assaulting the victim. The court did not allow the defendant’s fiancee to testify as to certain details of the defendant’s relationship with the uncle’s former girlfriend. The defendant now argues that he should have been allowed to proceed with his cross-examination and to elicit further testimony from his fiancee in order to develop his theory of defense more fully.

“Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . [I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The court’s discretion, however, comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution]. . . . The sixth amendment . . . guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. ... In determining whether such a violation occurred, [w]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall qualify of the cross-examination viewed in relation to the issues actually litigated at trial.” (Citations omitted; internal quotation marks omitted.) State v. Hedge, 93 Conn. App. 693, 697-98, 890 A.2d 612, cert. denied, 277 Conn. 930, 896 A.2d 102 (2006).

As to the defendant’s right to present a defense, “[t]he sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence.” (Internal quotation marks omitted.) State v. Hamilton, 92 Conn. App. 454, 458-59, 886 A.2d 443 (2005), cert. denied, 277 Conn. 901, 891 A.2d 3 (2006). “[T]he constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Internal quotation marks omitted.) State v. Griffin, 98 Conn. App. 821, 826, 912 A.2d 520 (2006), cert. denied, 281 Conn. 915, 917 A.2d 999 (2007).

We conclude that the defendant’s sixth amendment rights to confrontation and to present a defense were not violated because the court permitted him to conduct sufficient inquiry into his theory of defense. The court allowed the jury to hear that the defendant had had sex with the victim’s mother on the night of the alleged sexual assault of the victim. The court also allowed the jury to hear the testimony of the defendant’s fiancee that the defendant and the victim’s uncle had had an argument about the uncle’s former girlfriend shortly before the victim’s family accused the defendant of sexually assaulting the victim. The jury was therefore aware that the defendant had a complex relationship with the victim’s family and that members of that family may have had various motives to corroborate the victim’s testimony. The court’s preclusion of the additional direct examination and cross-examination that the defendant sought was, accordingly, a matter of the court’s discretion. We agree with the court that further details of the defendant’s sexual relationships were not relevant to the issue at hand, which was whether the defendant had sexually assaulted the victim during a sleepover at her home. We therefore reject the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       Although the defendant did not object to every portion of the court’s charge on which he bases his claim, he also seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), which provides that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40.


author: LAVINE, J.

text:
    SOTAVENTO CORPORATION v. COASTAL PALLET CORPORATION ET AL.
    (AC 27621)
    Flynn, C. J., and Haiper and Lavine, Js.
    Argued March 19
    officially released July 31, 2007

      Joshua A. Winnick, for the appellant (defendant Marvin R. Leventhal).

      John F. X. Peloso, Jr., with whom, on the brief, was Shaxina Talbot, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The plaintiff, the Sotavento Corporation, brought this action to impose personal liability on the defendants, several limited partners of Momingside Partners Limited Partnership (Momingside). In a previous action, the plaintiff had obtained a judgment against Momingside for its failure to pay the plaintiff amounts it had borrowed under a promissory note. One of the defendants, Marvin R. Leventhal, appeals from the trial court’s denial of his motion for summary judgment, in which he argued that the claims made in the present action were barred by the doctrine of res judicata. Because the present action is against the defendants individually, and not the partnership, and because the claims are based on facts that came to light after judgment was rendered in the previous action, we affirm the trial court’s denial of Leventhal’s motion for summary judgment.

As a threshold matter, we set forth the facts and procedural history that are relevant to our resolution of Leventhal’s appeal. On June 24, 1992, the defendants executed an amended and restated agreement of limited partnership (partnership agreement), which provided that the purpose of Momingside was to manage and operate an office building located in Westport (property). The partnership agreement stated that Mom-ingside would be dissolved and terminated upon the occurrence of the sale of the property. It also required that in winding up the partnership, any remaining assets would be distributed to the creditors of Momingside first and then to the partners, in the order of priority provided by law. At all times relevant to this action, Momingside was managed by a single general partner, Charles P. LeMieux III.

On October 26, 1995, Momingside, acting through LeMieux, borrowed funds from the plaintiff by executing a $150,000 revolving line of credit, a promissory note (note) and a mortgage on the property to secure its debt. On November 15, 1996, Momingside sold the property to a third party in order to avoid the foreclosure proceedings that had been commenced against the property by its principal mortgage creditor. In order to facilitate the sale of the property, the plaintiff agreed to receive a partial payment as consideration for releasing the property from its mortgage, leaving a principal amount due from Momingside under the note of $112,334.75.

Seeking to invalidate the promissory note to the plaintiff, Peter G. Standish in his capacity as a limited partner of Momingside, commenced a derivative action (Standish) on behalf of all of the limited partners, against the plaintiff, Momingside and LeMieux. The complaint in Standish sought a declaratory judgment that the note was void or unenforceable. It alleged that (1) LeMieux had acted without authority in making the note and mortgage, (2) the note had been executed for uses and purposes that were not in the interests of Momingside or in furtherance of its business and that it had been executed by LeMieux for his own benefit and (3) the plaintiff had been or should have been aware of LeMieux’s intent.

The plaintiff subsequently commenced a collection action against Momingside on the promissory note ([Sotavento I). In its complaint, the plaintiffs sole allegation was that Momingside had failed to pay the note in accordance with its terms. The defendants in this case, as well as several other limited partners of Mom-ingside, (limited partners), were named as garnishees. On May 16, 1997, the limited partners were allowed to intervene in Sotavento I “for the purpose of asserting [a] defense in the name of and on behalf of [Momingside].” Subsequently, Sotavento I and Standish were consolidated on July 28, 1997.

On October 17, 1997, the plaintiff filed a motion for summary judgment against the limited partners, claiming that there were no genuine issues of material fact as to whether LeMieux was authorized to execute the note and that it was entitled to judgment as a matter of law. The court granted the plaintiffs motion as to liability only. The limited partners subsequently appealed to this court. This court affirmed the trial court’s judgment in Standish v. Sotavento Corp., 58 Conn. App. 789, 755 A.2d 910, cert. denied, 254 Conn. 935, 761 A.2d 762 (2000). On May 3, 2002, Standish was dismissed. Thereafter, a hearing in damages was held in Sotavento I before the trial court, Nadeau, J. The court rendered judgment against Momingside in the amount of $163,838.20. The court did not render judgment against the limited partners.

The plaintiff, however, never received the amount of the judgment. Pursuant to a complaint dated August 11, 2004, the plaintiff commenced the present action against the defendants in their personal capacities (Sotavento II). The complaint alleged that “[u]pon information and belief, [the attorney for the partnership] distributed the [f]unds [from the sale of the property] to the [defendants].” It further alleged that the funds, following the sale of the property, represented the only asset of Momingside. Thus, it alleged that in receiving the funds, the defendants essentially took control of Momingside and Momingside’s business. The complaint stated: “Distribution of the [f]unds to the [defendants] and retention of same by [them] created liability to third parties such as [the plaintiff] under [General Statutes §§ 34-15 and 34-17] and was also in violation of [the plaintiffs] [p]rejudgment [a]ttachment, the terms of the [promissory [n]ote and the [partnership agreement] itself.”

On January 11, 2006, Leventhal moved for summary judgment. Coastal Pallet Corporation, Standish and Bernice Donahue similarly moved for summary judgment on January 13, 2006. The defendants argued, in both motions, that the claims asserted in Sotavento II were barred by the doctrine of res judicata because they involve the same parties and issues as did Sotavento I, and, thus, the plaintiff should have sought judgment against the defendants in their individual capacities in the previous action. The plaintiff responded that summary judgment should be denied because Sotavento I was rendered against different parties on a different claim. On April 12, 2006, following oral argument, the court found that res judicata did not apply and orally denied the defendants’ motions. This appeal by Leven-thal followed.

Leventhal’s sole claim on appeal is that the claims in Sotavento II are barred by res judicata and that the court improperly denied his motion for summary judgment. We are not persuaded.

As a threshold matter, we set forth the applicable standard of review and discuss the legal principles relevant to our resolution of Leventhal’s claim. Summary judgment is the appropriate method for resolving a claim of res judicata. Zanoni v. Lynch, 79 Conn. App. 325, 338, 830 A.2d 314, cert. denied, 266 Conn. 928, 837 A. 2d 803 (2003). Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006). “Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn. App. 180, 186, 834 A.2d 744 (2003).

“The principles underlying the doctrine of res judi-cata, or claim preclusion, are well settled. [A] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand. . . . Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made.” (Emphasis in original; internal quotation marks omitted.) Zanoni v. Lynch, supra, 79 Conn. App. 338. “[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . .” (Emphasis in original; internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 717-18, 627 A.2d 374 (1993). “The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Emphasis added.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. ... In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.” (Internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 296-97, 794 A.2d 1029 (2002). The applicability of res judicata raises a question of law that is subject to plenary review. Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 594, 726 A.2d 502 (1999).

In Sotavento II, the trial court concluded that “this claim is set forth in the complaint by [the plaintiff], and the case before me now is not the same claim that was brought against . . . Momingside .... And therefore, this lawsuit is not precluded on the ground of res judicata.” The court further explained its denial of Leventhai’s motion in an articulation dated September 11, 2006. “The court found that based on the limited facts available, [Leventhal] had not established that the claim made against [him] in this case was the same claim asserted in the earlier case. Indeed, the facts show that the claim in this case is against the individual defendants based on their actions as distinguished from the original claim against [Momingside] based on its nonpayment of the note payable to [the plaintiff]. [Sota-vento I\ was against [Momingside] for nonpayment of the loan evidenced by the note. The present claim is against [Momingside’s] limited partners for violations of partnership law and the prejudgment remedy order. Therefore, this court found that the claims were not similar and that the present claim was not barred by res judicata.

“The court also was not persuaded by the argument of counsel for Leventhal that since theoretically the plaintiff could have amended its complaint in the original action to assert a claim against the [defendants] but did not, the potential claim is precluded. This conclusion is strengthened by an affidavit of the plaintiffs principal that it did not know of the defendants’ retention of the net proceeds of the building sale until after judgment had been entered in [Sotavento T\.” (Emphasis in original.)

We have compared the complaint in Sotavento II with the pleadings and judgment in Sotavento I. On the basis of our review, we agree with the court’s conclusion that Sotavento II does not involve the same claims as the earlier action so as to trigger operation of the doctrine of res judicata.

Although both Sotavento I and Sotavento II seek to collect the debt owed by Momingside, the claims raised in Sotavento II differ fundamentally from those raised in Sotavento I. The plaintiff commenced Sotavento I against the partnership only. The defendants in Sota-vento II were not named as defendants in Sotavento I and intervened on behalf of Momingside only, not in their individual capacities. Sotavento I was a simple collection action against Momingside seeking payment on the promissory note. The plaintiffs complaint in Sotavento II centers around the defendants’ individual conduct with regard to the distribution of the funds upon the property’s sale. The complaint in Sotavento I did not allege anything with regard to the defendants’ actions in receiving the funds upon the sale of the property but pertained solely to Morningside’s failure to pay the note. Consequently, the judgment in Sotavento I did not address whether the defendants breached the partnership agreement or whether they had acted as de facto general partners subjecting them to personal liability pursuant to §§ 34-15 and 34-17.

Furthermore, a comparison of the complaint in Sota-vento II with the proceeding and judgment in the former action also reveals that the plaintiffs claims involve different operative facts, which demonstrates that the plaintiff did not have an adequate opportunity to litigate the matter in the earlier proceeding. See Jackson v. R. G. Whipple, Inc., supra, 225 Conn. 717-18. As noted by the court, the plaintiff submitted an affidavit, stating that it did not discover in what manner the proceeds of the sale had been disbursed until after judgment was entered against Momingside in Sotavento I.' It is these subsequently discovered events that form the crux of the allegations in the plaintiffs complaint. “[Mjaterial operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first . . . .” (Emphasis in original; internal quotation marks omitted.) Stein v. Horton, 99 Conn. App. 477, 487, 914 A.2d 606 (2007). We conclude, therefore, that the claims asserted in Sotavento II were not litigated, nor could they have been litigated, in Sotavento I.

For the foregoing reasons, the claims raised in Sota-vento II are not barred by the doctrine of res judicata. The court properly denied Leventhal’s motion for summary judgment.

The order of the court denying summary judgment is affirmed.

In this opinion the other judges concurred.

       In addition to Leventhal, three other limited partners of Momingside, Coastal Pallet Corporation, Peter G. Standish and Bernice Donahue, also were named as defendants in the underlying action. These three other limited partners are not parties to this appeal. We refer throughout the opinion, however, to all four named limited partners, collectively, as the defendants.

       “Although the denial of a motion for summary judgment ordinarily is not appealable because it is not a final judgment, the denial of a motion for summary judgment on the basis of a claim of res judicata is a final judgment for purposes of appeal because it invokes the right not to go to trial on the merits.” Cayer v. Komertz, 91 Conn. App. 202, 203 n.2, 881 A.2d 368 (2005).

       General Statutes § 34-15, titled, “Liability of limited partners to third parties,” provides in relevant part that “a limited partner is not liable for the obligations of a limited partnership unless he is also a general partner or, in addition to the exercise of his rights and powers as a limited partner, he participates in the control of the business; provided, if the limited partner does participate in the control of the business, he is liable only to persons who transact business with the limited partnership reasonably believing, based upon the limited partner’s conduct, that the limited partner is a general partner.”
      General Statutes § 34-17, titled, “General powers and liabilities of general partners,” provides in relevant part: “(a) Except as provided in this chapter or in the partnership agreement, a general partner of a limited partnership shall have all the rights and powers and be subject to all the restrictions of a partner in a partnership without limited partners.
      “(b) Except as provided in this chapter, a general partner of a limited partnership shall have all the liabilities of a partner in a partnership without limited partners to persons other than the partnership and the other partners. Except as provided in this chapter or in the partnership agreement, a general partner of a limited partnership shall have all the liabilities of a partner in a partnership without limited partners to the partnership and to the other partners.”

       Specifically, Leventhal’s counsel argued that the plaintiff had an obligation to conduct discovery in Sotavento I so that it could ascertain whether the partnership had received the funds. We note that Leventhal presented no authority at either the trial level or on appeal to support his assertion that the plaintiffs failure to conduct such discovery bars it from asserting the claims raised in Sotavento II.


author: FLYNN, C. J.

text:
    CHRISTOPHER DWYER v. COMMISSIONER OF CORRECTION
    (AC 27981)
    Flynn, C. J., and McLachlan and Lavine, Js.
    Submitted on briefs May 31
    officially released July 31, 2007

      Gary A. Mastronardi filed a brief for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Christopher Dwyer, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly denied his habeas petition because his first habeas counsel provided ineffective assistance. We dismiss the appeal.

The record sets forth the following facts and procedural history. In May, 1995, following a jury trial, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a). Following his conviction, the petitioner was sentenced to fifty years imprisonment. This court subsequently affirmed the conviction following the petitioner’s direct appeal. See State v. Dwyer, 45 Conn. App. 584, 696 A.2d 1318, cert. denied, 243 Conn. 910, 701 A.2d 335 (1997).

In 1998, the petitioner, represented by attorney Norman A. Pattis, filed his first petition for a writ of habeas corpus, alleging that his trial attorney, Dante Gallucci, had rendered ineffective assistance in the underlying criminal case. The petition alleged, inter alia, that Gallucci had failed to request jury instructions on any lesser included offenses, although the evidence supported such a request. The habeas court, Gormley, J., denied the petition, noting that “[a]s far as not requesting any lesser included offense instructions, attorney Gallucci testified that under the criminal rules, he had no factual basis to request one because their defense was [that someone else] did the shooting, not the petitioner. The court cannot disagree with that analysis.” The petitioner appealed from the judgment, raising only the issue of counsel's alleged ineffectiveness regarding communication of the state’s willingness to enter into plea negotiations. The appeal was dismissed by this court. See Dwyer v. Commissioner of Correction, 69 Conn. App. 551, 563, 796 A.2d 1212, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002).

Thereafter, in 2003, the petitioner filed a second petition for a writ of habeas corpus, claiming that Pattis was ineffective in failing to argue properly and then raise in his 1998 habeas appeal Gailucci’s failure to seek instructions on lesser included offenses at the petitioner’s criminal trial. Trial on the second petition for a writ of habeas corpus was held on October 17, 2005. On June 13, 2006, the habeas court, Fuger, J., denied the petition for habeas relief, finding that the petitioner had failed to show how he was prejudiced by either Gallucci’s or Pattis’ alleged ineffective assistance. Judge Fuger subsequently denied the petition for certification to appeal. This appeal followed.

We begin by setting forth the applicable standard of review. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 83 Conn. App. 595, 597, 850 A.2d 1063, cert. denied, 271 Conn. 905, 859 A.2d 560 (2004).

“We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 424, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Braham v. Commissioner of Correction, 72 Conn. App. 1, 5-6, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002).

The petitioner claims that his first habeas counsel, Pattis, rendered ineffective assistance when he did not include in his 1998 habeas appeal an ineffective assistance claim directed at Gallucci regarding Gallucci’s failure to request instructions on lesser included offenses at the underlying trial. Although Pattis did raise the lesser included offenses issue before the habeas court, the only issue he pursued on appeal concerned Gallucci’s failure to inform the petitioner of the state’s willingness to enter into plea negotiations. The petitioner’s claim that Pattis was ineffective for failing to raise the lesser included offenses issue in his habeas appeal is dependent on a finding that Gallucci himself also was ineffective.

The crux of the petitioner’s argument is that Gallucci misunderstood the law of lesser included offenses and, therefore, failed to request instructions on those offenses when some evidence in the petitioner’s case supported them. The only evidentiary argument offered by the petitioner in support of this claim is the statement by Gallucci at the petitioner’s first habeas hearing that “I’m not crazy about [lesser included offenses] to begin with, but if the evidence supported it, I’d do it.” The petitioner takes Gallucci’s statement out of context with the rest of his testimony on the issue, in which he explained that an instruction on lesser included offenses would have been inconsistent with their defense because they “were denying all liability.” Whether there was evidence to support instructions to the jury on lesser included offenses is irrelevant, therefore, given the course of representation chosen by the petitioner and Gallucci.

Throughout the petitioner’s trial and subsequent habeas proceedings, the petitioner testified that he did not shoot the victim. Therefore, Gallucci’s decision not to request instructions on lesser included offenses at trial was consistent with the petitioner’s claim of innocence. In fact, as the second habeas court noted in its memorandum of decision, “had [Gallucci] advocated the petitioner’s actual innocence and simultaneously worked to lay the basis for a jury verdict of manslaughter, two strategies that are not exactly consistent and congruous, but nevertheless resulted in a conviction for manslaughter, it is not entirely impossible that the petitioner would be attacking this two-pronged strategy.”

As is apparent from Pattis’ testimony, he believed that the lesser included offenses issue was a weak argument to pursue in the 1998 habeas appeal because, as Gallucci also stated in his testimony, it suggested an inconsistent defense. As we stated in Vivo v. Commissioner of Correction, 90 Conn. App. 167, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005), “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible . . . . ” (Internal quotation marks omitted). Id., 172. Pattis did just that. Therefore, under Strickland, the petitioner failed to show how either his trial counsel or first habeas counsel was deficient. See Strickland v. Washington, supra, 466 U.S. 687.

We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

       The following exchange occurred between the petitioner and counsel for the respondent, the commissioner of correction, at the petitioner’s first habeas hearing:
      “[The Respondent’s Counsel]: So, your claim all along has been innocence? You’ve maintained all along—
      “[The Petitioner]: Yeah.
      “[The Respondent’s Counsel]:—that you were not responsible for the death of [the victim]?
      “[The Petitioner]: Yes.”

       Pattis testified that at the time of the habeas filing, he thought the issue was worth exploring because the “murder seemed to have arisen out of a love triangle, which would, obviously [have] been an explosive emotional situation.” Pattis further testified, however, that after hearing the evidence, he was not of the same opinion because the petitioner never acknowledged any role in the shooting. He also opined that the petitioner’s flight to Jamaica was extremely powerful consciousness of guilt evidence, although “[h]ad there been some acknowledgement of his role in the shooting . . . the consciousness of guilt evidence could have been neutralized and used to support a lesser mental state.”