author: HARPER, J.

text:
    STATE OF CONNECTICUT v. ONE OR MORE PERSONS OVER WHOM THE COURT’S JURISDICTION HAS NOT YET BEEN INVOKED
    (AC 29117)
    DiPentima, Harper and Stoughton, Js.
    Argued February 6
    officially released May 20, 2008

      Jon B. Chase, the plaintiff in error.

      Richard, T. Biggar, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Henri Alexandre, assistant attorney general, for the defendant in error.
   Opinion

HARPER, J.

The plaintiff in error, Jon B. Chase (plaintiff), brings this writ of error to challenge the judgment of the trial court denying his motion for the return of property seized from him by the state police. The plaintiff claims that the court improperly denied his motion and awarded ownership of the property to another individual. We conclude that the plaintiff could have sought appellate review of the judgment by way of a direct appeal and, therefore, dismiss the writ of error as procedurally improper.

The relevant facts and procedural history are not in dispute. In June, 2005, the plaintiff purchased a pair of brass andirons at a public auction. After he took possession of the andirons, members of the state police informed him that the andirons were stolen property and requested that the plaintiff surrender them to the police. In August, 2005, the plaintiff surrendered the andirons to the state police. At that time, a state police sergeant issued the plaintiff a receipt for the property and advised him of his right to regain possession of the property. The plaintiff, representing that he was the owner of the andirons, executed a written request for their immediate return.

Following unsuccessful efforts by the plaintiff to regain possession of the andirons, on January 30, 2006, he filed a motion in the Superior Court for the judicial district of New London seeking the return of the property. He also requested that the court preclude the use of the property as evidence. The plaintiff filed the motion under the “police case” number inscribed on the receipt he received from the police when he surrendered the andirons. He represented in the motion that after speaking with one or more members of the state police, he was informed that the andirons had been given to their “true owner . . . .” Noting that there had not been any judicial determination that the andirons were, in fact, stolen property or any judicial determination as to the ownership of the andirons, the plaintiff argued that the police had violated his rights under General Statutes § 54-36a (b) (2). The plaintiff further argued that as a good faith purchaser for value, he owned the andirons and that the police acted in excess of their authority by delivering the andirons to another party, regardless of the nature of that party’s claim of ownership in the property. The plaintiff requested a hearing on his motion.

The court held an initial hearing on the plaintiffs motion on April 4, 2006, but continued the matter until June 8, 2006. Prior to the June hearing, Ann Brown filed a written request with the court for permission to be heard. In an attached notarized affidavit, Brown averred that the andirons were stolen from her home in North Stonington on or before May 27, 2005, and that the andirons belonged to her. The plaintiff objected to Brown’s request, and the court overruled that objection. Also prior to the June hearing, the state filed a written objection to the plaintiffs motion on the ground that “rightful title to the property sought to be returned has yet to be determined” and that “return of the property would be premature in that it is potential evidence in a prospective criminal case.” The state represented that the andirons were stolen from Brown’s home and that “[t]he state has no particular interest as to who the court determines is the rightful owner of the andirons as between [the plaintiff] and Brown.” The state denied that the police acted in violation of § 54-36a (b) (2), as there existed “a genuine dispute as to who is the rightful owner of the property.” The state also represented that there had yet to be any criminal prosecution related to the theft of the property, that the property was “evidence” and that “[a] premature return of the property could jeopardize the criminal prosecution.” The state requested that the court determine ownership of the andirons and that “the property be retained as evidence until such time as a determination is made in the underlying criminal matter that it is no longer necessary to retain said property.”

At the June, 2006 hearing, the plaintiff; Brown; Herb Soler, a resident state trooper; and an assistant attorney general representing the state addressed the court with regard to the plaintiffs motion. Earlier, the plaintiff had filed an offer of proof in support of his motion, but the court did not receive testimony or other evidence at the June hearing. At the conclusion of the hearing, the court denied the plaintiffs motion. The court found “by a preponderance of the evidence” that Brown was the “rightful owner” of the andirons and ordered the state police to return them to her.

Thereafter, the plaintiff filed the writ of error presently before us. Prior to the time of argument, this court sua sponte ordered that the parties “be prepared to address at the hearing on the merits, whether the denial of a request for return of seized property made pursuant to General Statutes § 54-36a and [General Statutes] § 54-33f is properly reviewed by writ of error.” The parties addressed this issue during oral argument before this court.

The interpretation of our rules of practice presents a question of law over which this court’s review is plenary. See, e.g., Wells Fargo Bank of Minnesota, N.A. v. Morgan, 98 Conn. App. 72, 78, 909 A.2d 526 (2006); Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 92 Conn. App. 394, 397, 885 A.2d 204 (2005); Murphy v. Zoning Board of Appeals, 86 Conn. App. 147, 151, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005).

The writ of error is the traditional method of obtaining review by our Supreme Court under the common law. Since the passage of legislation conferring the right to appeal, the writ of error is utilized properly in the relatively few sets of circumstances in which an appeal does not lie. Practice Book § 72-1 (b) provides in relevant part: “No writ of error may be brought in any civil or criminal proceeding for the correction of any error where . . . the error might have been reviewed by process of appeal . . . .” “A writ of error is a separate and distinct review procedure, not to be confused with a statutory appeal. ... If there is a right to appeal, a writ of error should not be brought . . . .” (Citations omitted.) Vasquez v. Superior Court, 102 Conn. App. 394, 404-405, 925 A.2d 1112, cert. denied, 284 Conn. 915, 931 A.2d 935 (2007); see also State v. Caplan, 85 Conn. 618, 622-24, 84 A. 280 (1912); Cary v. Phoenix Ins. Co., 83 Conn. 690, 696-97, 78 A. 426 (1910); New York, N.H. & H.R. Co. v. Hungerford, 75 Conn. 76, 83, 52 A. 487 (1902) (noting “settled policy of court and legislature to discourage and limit the use of the writ of error as a process for invoking the jurisdiction of this court in cases where the more adequate and equitable process of appeal can be used”); State v. Marro, 68 Conn. App. 849, 854, 795 A.2d 555 (2002).

General Statutes § 52-263, which affords a statutory right of appeal, provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.” Our Supreme Court has adopted “a bright-line test requiring [an] appellant, in order to establish a right of appellate review pursuant to § 52-263, to establish in the following sequence that: (1) it was a party to the underlying action; (2) it was aggrieved by the trial court decision; and (3) the appeal is from a final judgment.” State v. Salmon, 250 Conn. 147, 162-63, 735 A.2d 333 (1999). The court explained: “A bright-line test will aid litigants, who wish to challenge trial court orders through the appellate process, to determine the proper procedural method for such a challenge—an appeal, or a writ of error. The clarity yielded by a bright-line test, moreover, is helpful because the procedural decision ordinarily must be made in a very short time period.” Id., 164.

To determine whether the plaintiff had a right to bring an appeal, we first address whether he was a party to the underlying action. Our Supreme Court unambiguously has defined what constitutes “an underlying action” for purposes of § 52-263: “In a general sense, the word action means the lawful demand of one’s right in a court of justice-, and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides. ... It includes not only the usual civil action instituted by process but also proceedings initiated by petition . . . stipulation ... or motion. . . . [A]ppellate relief under § 52-263 must be founded on an action brought to the trial court." (Citations omitted; emphasis in original; internal quotation marks omitted.) Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 555, 888 A.2d 65 (2006). The court emphasized that “an underlying action may only be a judicial proceeding brought to the trial court . . . .” Id., 555-56.

In State v. Salmon, supra, 250 Conn. 162, our Supreme Court concluded that “the term ‘party’ is limited to parties to the underlying action for purposes of establishing a right to review pursuant to § 52-263 . . . .” The court explained: “Ordinarily, the word party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons. . . . This definition of party, which we also have labeled party status in court . . . includes only those who are parties to the underlying action.” (Citations omitted; internal quotation marks omitted.) Id., 154.

The record reflects that at the time the plaintiff filed the motion for the return of the andirons, there merely was a criminal investigation into the theft of the andirons. No judicial proceeding, of civil, criminal or any nature, was underway related to the andirons. By filing the motion, the plaintiff initiated a judicial proceeding in the Superior Court in which he asserted his claim for redress for the alleged seizure and wrongful retention of the andirons by the police. The judicial proceeding that ensued culminated in the court’s rendering of judgment adverse to the plaintiff. The plaintiff initiated the underlying proceeding, actively participated in the proceeding and his rights were the subject of the proceeding. The legal interest that the plaintiff sought to vindicate and on which the court rendered judgment was central, not ancillary, to the proceeding. Under these circumstances, we conclude that the plaintiff was a party to the underlying action at issue in this writ of error.

Second, we must determine whether the plaintiff was aggrieved by the trial court’s decision. “It is settled law that the right to appeal is purely statutory and is allowed only if the conditions fixed by statute are met. ... In all civil actions a requisite element of appealability is that the party claiming error be aggrieved by the decision of the trial court. . . . The test for determining aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” (Internal quotation marks omitted.) In re Allison G., 276 Conn. 146, 156-57, 883 A.2d 1226 (2005). Here, it hardly can be disputed that the plaintiff asserted that he had a personal and legal interest in the subject matter of the decision, that he owned and had the right to possess the andirons that he purchased at auction, and that the court’s decision specially and injuriously affected this interest.

Third, we must address whether the decision at issue is a final judgment. We reiterate that although there was a criminal investigation underway related to the theft of the andirons at the time of the underlying proceeding, the plaintiffs motion initiated the only judicial proceeding related to the andirons or the plaintiffs interest therein. The court’s decision unambiguously resolved the plaintiffs motion adversely to him, and there were no further proceedings related to that decision. On this record, it appears that there was no other judicial proceeding that would have resulted in a later judgment from which the plaintiff properly could appeal the decision at issue. In determining whether certain interlocutory orders or rulings of the trial court are final judgments for purposes of appeal, our appellate courts apply the Curdo test: “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. ” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). “[A]ppellate jurisdiction is limited to final judgments. . . . That restriction on our appellate jurisdiction involves a policy to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.” (Citations omitted; internal quotation marks omitted.) Harvey v. Wilcox, 67 Conn. App. 1, 5, 786 A.2d 533 (2001). Here, we conclude that the decision at issue terminated a separate and distinct proceeding, in accordance with Curdo's first prong, and, thus, constituted a final judgment for purposes of appeal.

On the basis of the foregoing analysis, we conclude that the plaintiff had a statutory right to appeal from the court’s decision and, thus, improperly brought a writ of error. Accordingly, we dismiss the writ of error as procedurally improper and do not reach the plaintiffs substantive challenges to the court’s decision.

The writ of error is dismissed.

In this opinion the other judges concurred.

       The plaintiff, who is a member of the bar of this state, appeared pro se before the trial court and in bringing this writ of error.

       The plaintiff asserts that he was compelled to surrender the property under threat of arrest and that although he cooperated with the police in surrendering the property, its taking constituted a warrantless seizure.

       In support of Ms right to file the motion, the plaintiff cited General Statutes § 54-33f and Practice Book §§ 41-13 and 41-15.

       The plaintiff filed the writ of error in our Supreme Court, which transferred the writ to this court pursuant to Practice Book § 65-1.

       During argument before this court, the plaintiff asserted that he was not a party to the underlying proceeding because he was not a party to any criminal proceeding related to the andirons, nor had he initiated any proceeding. We disagree that the plaintiff did not initiate a judicial proceeding, and, although it is accurate that he was not a party to any criminal proceeding, such fact is of no consequence to our analysis when, as here, there was no criminal proceeding related to the subject of this litigation.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    WILLIAM FARADAY v. COMMISSIONER OF CORRECTION
    (AC 28090)
    Flynn, C. X, and Lavine and Beach, Js.
    Argued February 25
    officially released May 20, 2008

      John F. Geida, with whom, on the brief, was Norman A. Pattis, for the appellant (petitioner).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Angela R. Macchiarulo, senior assistant state’s attorney, and James E. Thomas, former state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, William Faraday, appeals from the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that it improperly rejected his claims that (1) his trial counsel, Paula Waite, provided ineffective assistance by failing to advise him adequately that despite his Alford plea to sexual offenses, he nonetheless could be required, pursuant to General Statutes § 53a-32a, to admit commission of the underlying offenses or be found in violation of the conditions of his probation, (2) counsel provided ineffective assistance by failing to perfect his speedy trial rights, as defined by General Statutes § 54-82m, and (3) the trial court improperly canvassed him by failing to establish his knowledge of his obligation to admit to the underlying offenses as part of sex offender treatment despite his Alford plea. We dismiss the petitioner’s appeal.

The facts giving rise to this case are set forth in State v. Faraday, 69 Conn. App. 421, 423, 794 A.2d 1098 (2002), rev’d, 268 Conn. 174, 842 A.2d 567 (2004). On July 31, 1998, the petitioner entered a guilty plea under the Alford doctrine to one count of sexual assault in the third degree in violation of General Statutes § 53a-72a and one count of risk of injury to a child in violation of General Statutes § 53-21. Each of these statutes is encompassed by § 53a-32a, which deems a failure to admit guilt of the sexual misconduct during postsentence treatment to be a violation of probation. The petitioner was sentenced to a total effective term of twelve years imprisonment, execution suspended, and five years of probation. In October, 1999, the petitioner was charged with violating two of his probation conditions.

Following a probation revocation hearing, the court found the petitioner in violation of probation for failure to participate in sex offender treatment and for impermissibly having contact with a minor stepson. Consequently, it revoked his probation, sentencing him to the entire twelve year unexecuted sentence originally imposed. State v. Faraday, supra, 69 Conn. App. 424. A panel of this court reversed the judgment of the trial court. Id., 437. Our Supreme Court reversed this court’s judgment and remanded the case with direction to affirm the judgment of the trial court. State v. Faraday, 268 Conn. 174, 207, 842 A.2d 567 (2004). On Jammy 4, 2006, the petitioner filed an amended petition for a writ of habeas corpus. On May 30, 2006, following a trial, the habeas court denied the petition and, on June 27, 2006, denied his petition for certification to appeal. This appeal followed.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner’s appeal. A petitioner whose petition for certification to appeal has been denied can seek appellate review of the denial by satisfying the two-pronged test enunciated 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), which requires the petitioner to show that the denial constituted an abuse of discretion and then prove that the decision should be reversed on its merits. See Kaddah v. Commissioner of Correction, 105 Conn. App. 430, 434-35, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008). “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. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Citation omitted; internal quotation marks omitted.) Id., 435-36.

“[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment. . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008). In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition. See Strickland v. Washington, supra, 687. Having set forth the applicable legal principles, we address the petitioner’s claims in turn.

I

The petitioner first claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claim that he received ineffective assistance of counsel as a result of Waite’s failure to advise him that his Alford plea did not relieve him of the legal duty to admit to acts of sexual misconduct as a condition of probation. We are not persuaded.

The following additional facts are relevant to our resolution of the petitioner’s claim. At the habeas trial, Waite testified that, on the morning that the petitioner entered his guilty plea, she explained to him that “in spite of the fact that he was pleading guilty under the Alford doctrine, he would have to admit his crimes.” Waite testified that she told the petitioner “[t]hat he would have to go to sexual offender treatment and that they would try to make him admit one or more crimes . . . and that he could be violated if he didn’t do what they asked him to do and that there was some variation in what exactly they would ask people to admit.” Waite further testified that the petitioner indicated to her his understanding that admission of the conduct underlying the charge of sexual assault was a condition of his probation. Conversely, the petitioner testified that, prior to his Alford plea, Waite had not warned him that his Alford plea did not relieve him of the legal duty to admit to acts of sexual misconduct as a condition of probation.

We have held that “[i]t is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Durant, 94 Conn. App. 219, 227, 892 A.2d 302 (2006), aff'd, 281 Conn. 548, 916 A.2d 2 (2007). At the petitioner’s habeas trial, the court resolved the discrepancies between the testimony of Waite and that of the petitioner by finding Waite’s testimony more credible. The court found that “there was no deficient performance because attorney Waite did fully advise the petitioner on the consequences of his plea and required sex offender treatment.” (Emphasis in original.) In a habeas appeal, the reviewing court cannot disturb the underlying facts found by the habeas court unless they are shown to be clearly erroneous. Madagoski v. Commissioner of Correction, 104 Conn. App. 768, 773, 936 A.2d 247 (2007), cert. denied, 286 Conn. 905, 944 A.2d 979 (2008).

After reviewing the record, we conclude that the petitioner has failed in his burden to show that the court’s finding that Waite properly advised him of the consequences of his plea and, therefore, that her assistance was not ineffective was clearly erroneous. Therefore, because the issue is not debatable among jurists of reason and does not deserve encouragement to proceed further and because a court could not resolve the issue in a different manner; see Simms v. Warden, supra, 230 Conn. 616, 618; the habeas court did not abuse its discretion in denying the petition for certification to appeal from its denial of the habeas petition on this ground.

II

The petitioner next claims that Waite provided ineffective assistance when she failed to perfect his speedy trial rights. The habeas court dismissed this claim, holding that “there was no evidence, except for the petitioner’s bald assertion that he was denied a speedy trial [and that] the claim [was] all but abandoned since the petitioner declined the opportunity to submit a pretrial brief and argue the point.” We decline to review this claim because the petitioner has not provided us with an adequate record. The petitioner has failed to provide us with an evidentiary record setting forth the gist of his speedy trial claim. Additionally, “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Internal quotation marks omitted.) McClean v. Commissioner of Correction, 103 Conn. App. 254, 258 n.5, 930 A.2d 693 (2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008). The brief does not adequately relate evidence in the case to pertinent legal principles. We therefore decline to review this claim.

Ill

The petitioner next claims that the trial court improperly canvassed him regarding his knowledge of his obligation to admit to the underlying offense as part of sex offender treatment despite his Alford plea. “Pursuant to the doctrine of res judicata, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim.” (Internal quotation marks omitted.) State v. Ramirez, 101 Conn. App. 283, 298, 921 A.2d 702, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007), cert. denied, 552 U.S. 1109, 128 S. Ct. 895, 169 L. Ed. 2d 747 (2008).

In its May 30, 2006 memorandum of decision, the habeas court held that this claim had been “conclusively resolved” by our Supreme Court in State v. Faraday, supra, 268 Conn. 203-205. We agree. In Faraday, our Supreme Court held that “the trial court was not required to notify the defendant upon entering his [Alford] plea, that a failure to acknowledge guilt could result in a violation of the condition of his probation requiring sex offender treatment.” Id., 203. This claim, having been resolved in the petitioner’s direct appeal, is barred by the doctrine of res judicata and is not subject to collateral attack. We note that the petitioner concedes the applicability of this doctrine.

The appeal is dismissed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-32a provides: “If a defendant who entered a plea of nolo contendere or a guilty plea under the [doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)] to a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, and was ordered to undergo sexual offender treatment as a condition of probation, becomes ineligible for such treatment because of such defendant’s refusal to acknowledge that such defendant committed the act or acts charged, such defendant shall be deemed to be in violation of the conditions of such defendant’s probation and be returned to court for proceedings in accordance with section 53a-32.”

       General Statutes § 54-82m provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1, 1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1).”


author: McLACHLAN, J.

text:
    RUSSELL P. BLOW v. DONALD A. KONETCHY
    (AC 28512)
    DiPentima, McLachlan and Gruendel, Js.

      Argued February 20
    officially released May 20, 2008

      Scott W. Jezek, for the appellant (plaintiff).

      Joseph E. Milardo, Jr., with whom, on the brief, was Linda J. Latimer, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The present appeal arises out of a quiet title action involving a driveway area between adjoining landowners. The plaintiff, Russell P. Blow, appeals from the judgment rendered by the trial court in favor of the defendant, Donald A. Konetchy. On appeal, the plaintiff claims that the court improperly (1) treated his claim as one of adverse possession and, as a result, applied a higher standard of proof, (2) found consent and used that as a basis for denying his prescriptive easement claim, (3) found that he had built his porch on the south side of his property line, (4) found that the original grant of easement was located three feet north of the defendant’s residence, (5) found in favor of the defendant on his counterclaim of entry and detainer, and (6) reformed the original grant of easement to exclude parking and storage. We affirm the judgment of the trial court.

The following facts, as found by the court in its memorandum of decision, are relevant to the resolution of the plaintiffs appeal. The plaintiff and the defendant are neighboring property owners in the Lake Pocotopaug Terrace subdivision in the town of East Hampton. The plaintiff owns lot 46, which he acquired by warranty deed in 1978. The defendant owns lots 44 and 45 located to the south of the plaintiffs lot, which he acquired by warranty deed in 2004. The common boundary line runs generally to the east and west.

In 1983, the plaintiff constructed an addition to his home and added a garage. This construction narrowed the space between the buildings of the plaintiff and the defendant. As a result, the plaintiff sought an easement for the use of his neighbors’ driveway from the defendant’s predecessors in title. According to the court: “The defendant’s predecessors in title, Bernard Wilson, Jr., and June F. Wilson, granted the plaintiff use of a portion of their property as part of his driveway. This agreement was subsequently formalized in a ‘grant of easement’ . . . dated April 17, 1989.” (Citation omitted.) The grant of easement lies wholly on the defendant’s land.

In 2004, after the defendant purchased his property, he discovered “encroachments by the plaintiff on the rear yard of his property.” Subsequently, he filed a notice affecting title to the land under General Statutes § 47-38. Although the plaintiff had an easement, which granted him the use of the driveway as a right-of-way, the plaintiff had parked his vehicles on the driveway and left them there when he traveled during the winter months. The defendant objected to the use of the entire driveway for parking and storage, especially a three foot wide area wholly within the defendant’s land, which he claimed was not contemplated or referenced in the original grant of easement.

On October 3, 2005, the plaintiff initiated this action. The plaintiffs amended complaint claims, inter alia, that he acquired a legal right to the use of the three foot area of the defendant’s driveway because he “used and enjoyed [this portion of the defendant’s property] for more than fifteen years prior to the commencement of [his] action, and such use and enjoyment ha[d] been at all times open, visible, continuous, uninterrupted, and under a claim of right . . . .”* ** The plaintiff requested that the court determine the rights of the parties, release the notice affecting the land and grant further relief that the court deemed proper both at law and in equity. On January 30, 2006, the defendant filed his answer to the plaintiffs amended complaint and his counterclaim.

On January 19, 2007, the court rendered judgment in favor of the defendant on both the plaintiffs claim and the defendant’s counterclaim. As the court explained: “The disputed area is the area within three feet of the defendant’s [residence], which is not encompassed within the area delineated in the grant of easement. In this area, the plaintiff parked motor vehicles, trailers, boats and other material immediately adjacent to the defendant’s residence within the three foot zone at issue.” The court also stated: “Further, these vehicles were left in the area for extended periods, denying the defendant access to the exterior of his residence.”

The court acknowledged that the plaintiff had asserted a prescriptive easement claim; however, it found that the plaintiff never enjoyed exclusive use of the disputed property. It also found that the plaintiff had used the three foot wide disputed area of the driveway with the consent of the defendant’s predecessor in title and the defendant. The court enjoined the plaintiff from “parking vehicles, storing materials or storing any other of his property on or in the right-of-way area at any time that he is not physically present at his residence” and that the “right-of-way is to be used as a driveway, not a parking lot or storage area.”

Subsequently, the plaintiff moved for an articulation of the court’s decision. In its articulation, the court addressed the plaintiffs request for the court to explain where in the record the plaintiff had made a claim of adverse possession and whether a claim for a prescriptive easement had been made. The court construed the plaintiffs claims as an adverse possession claim in addition to a prescriptive easement claim, finding that the prescriptive easement claim failed because the use had not been continuous and uninterrupted. This appeal followed.

I

The plaintiff first claims that the court improperly applied the wrong burden of proof because it determined his case on the basis of a theory of adverse possession rather than as a prescriptive easement claim. The plaintiff contends that this was improper because an adverse possession claim requires a higher burden of proof, the clear and convincing standard, as opposed to the burden of proof for an easement by prescription, which is the preponderance of the evidence standard. “When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” Cadle Co. v. D’Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004).

The plaintiffs argument is predicated on the court’s language in its memorandum of decision. Specifically, the court stated that the plaintiffs claim “is based on a theory of adverse possession.” As the plaintiff points out, “claims of adverse possession and prescriptive easements, though requiring proof of similar elements, are nevertheless distinct causes of action.” Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007), citing Schulz v. Syvertsen, 219 Conn. 81, 92 n.8, 591 A.2d 804 (1991).

“The proper inquiry in evaluating a claim that easement rights have been acquired by prescription is whether the claimant adversely used the property at issue and not whether he adversely possessed that property. ... In addition, the two types of claims differ as to the burden of proof to be applied. Claims of adverse possession are evaluated under the heightened standard of clear and positive proof, whereas claims of prescriptive easements are assessed under the preponderance of the evidence standard.” (Citation omitted; emphasis in original.) Smith v. Muellner, supra, 283 Conn. 536. The plaintiff asserts that because the court used the term “adverse possession” in describing his prescriptive easement claim, it necessarily held him to the higher burden of proof associated with adverse possession claims. We do not agree.

The court addressed its use of the term “adverse possession” and the burden of proof it applied in its articulation filed May 18, 2007. It stated: “The plaintiff requests the court to articulate where on the record a claim for adverse possession was made and whether a claim for prescriptive easement was made. The plaintiff in his posttrial brief, page three, states the following: ‘Further, the plaintiff claims that regardless of the proper measurement, he is entitled to an easement over the entire paved area either by deed or prescription . . . .’ The court construed this as an adverse possession claim in addition to the prescriptive easement claim.” (Emphasis added.) Additionally, the court wrote: “The court [was] asked to articulate the elements of proof it applied to the plaintiffs claims. The court indicates at page two that it is evaluating the plaintiffs claim of prescriptive easement. In proving its burden of establishing a prescriptive easement, the plaintiff was obligated to prove by a preponderance of the evidence that his use of the area claimed was ‘(1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim or right.’ . . . The exclusive possession reference was to the necessary element of the adverse possession claim. The prescriptive easement claim failed, as the use was not continuous and uninterrupted with respect to the three foot area adjacent to the defendant’s residence.” (Emphasis added.). Therefore, the plaintiffs first claim fails because the court addressed both theories and applied the appropriate standard of proof for each.

II

The plaintiff next claims that the court improperly used consent as a basis for denying his prescriptive easement claim. The plaintiff claims that there was no consent and that even if there were consent, consent is not synonymous with permission and, therefore, is not a basis for defeating his prescriptive easement claim. The plaintiff relies on Gallo-Mure v. Tomchik, 78 Conn. App. 699, 829 A.2d 8 (2003), to support this argument. Gallo-Mure, however, is inapplicable. Here, as the court stated in its articulation, the plaintiffs prescriptive easement claim failed not because of consent but because the use was not continuous and uninterrupted, which is a critical element of the plaintiffs prescriptive easement claim.

III

The plaintiff next claims that the court erroneously found that he had built his porch on the south side of his property along the common line of the defendant’s property. The plaintiff refers to the following statements in the court’s memorandum of decision: “The factual origin of the suit begins with the plaintiffs expansion of his home and garage in approximately August, 1983. The expansion involved the narrowing of the space between the plaintiffs and the defendant’s properties by the plaintiffs addition of the porch on the south side of the residence.” The transcript reflects that the plaintiff was using the porch as a reference point but that he testified that he did not build the porch when he built the addition of the garage. Rather, the addition of the garage was the construction that actually narrowed the space between the properties of the plaintiff and the defendant. Thus, he claims that the court’s finding that the porch was built by the plaintiff on the south side, when it was not located on the south side or built by the plaintiff, suggests that the construction of the porch somehow narrowed the space between the plaintiffs and the defendant’s houses. Accordingly, the plaintiff claims that this finding is contrary to all the evidence and is reversible error.

In opposition, the defendant asserts that this inadvertent mistake was harmless and of no consequence to the case at hand. The testimony that the court relied on was confusing and could have led it to believe that the addition included a porch. The defendant concedes that this was a mistake but, nonetheless, that it was irrelevant and harmless.

Our review of factual determinations requires that we do not attempt to retry a trial court’s factual findings. Unless those findings are clearly erroneous, we do not disturb them. Lucas v. Lucas, 88 Conn. App. 246, 251, 869 A.2d 239 (2005).

Although the court may have misstated the time of construction and the location of the porch, the plaintiff has failed to provide any analysis that would demonstrate how this factual inaccuracy tainted the court’s ultimate determination in the present case. See Winchester v. McCue, 91 Conn. App. 721, 734, 882 A.2d 143 (“[u]nder . . . circumstances involving minor quibbles over nomenclature and technically inaccurate findings, we have declined to order a new trial”), cert. denied, 276 Conn. 922, 888 A.2d 91 (2005); see also Cuneo v. Cuneo, 12 Conn. App. 702, 703-704 n.1, 533 A.2d 1226 (1987) (“[T]he court was incorrect in describing the defendant as a ‘practicing attorney.’ . . . This factual error does not, however, affect the disposition of this case.”); Goodsell v. Brighenti, 128 Conn. 581, 584-85, 24 A.2d 834 (1942) (stating, “we are of the opinion that the indicated use of east for west was rather the inadvertent mistake which occurs occasionally in such circumstances and that it had no material effect on the conclusion reached which must be based on the events as they actually occurred”). Regardless of when the porch was constructed or where the porch was located, the court found that the plaintiff did not satisfy his burden of establishing an easement by prescription or title by adverse possession. The time of construction and the location of the porch were immaterial to the court’s holding.

IV

The plaintiffs fourth claim is that the court improperly found that the original grant of easement was located three feet north of the defendant’s residence. In support of this contention, the plaintiff argues that “the original grant of easement . . . contained two distance marks with respect to the location of the easement. First, it showed it five feet in width from the [plaintiffs] southerly line. Second, as the court found, it also shows it as three feet and parallel to the north line of the [defendant’s] residence. There is insufficient distance between the [plaintiffs] southerly line and the [defendant’s] residence for both calls to be satisfied in their entirety.” The plaintiff points out that the surveys of each party differ as to the location of the right-of-way. On the basis of the differing surveys, the plaintiff asserts that one of the readings, the defendant’s survey, causes the easement to become narrower and taper toward the rear or east side of the plaintiffs property, while his survey gives him the full, original five foot easement.

Conversely, the defendant argues that the plaintiff is incorrect because “the surveys in fact agree as to the location of the south line of the deeded easement being three feet north of the [defendant’s] home, which supports the trial court’s finding.” We agree with the defendant.

“When the factual basis of a trial court’s decision is challenged, [an appellate court’s] function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. ... 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Smith v. Muellner, supra, 283 Conn. 533.

The plaintiff argues that the court’s finding is clearly erroneous because the court found the point of measurement to be from the defendant’s house, thus, depriving him of the full five foot easement. He claims that the original survey contained an ambiguity that must be construed against the grantor, the defendant. In the present case, the court was presented with several contradicting surveys that each placed the right-of-way in a slightly different location. After a careful review of the surveys and the record before us, we are not persuaded that the court’s finding was clearly erroneous. The court relied on the survey that depicted the southerly boundary of the granted right-of-way to be three feet from the defendant’s residence. In doing so, the court was respecting the original intention of the parties when they executed the grant of easement in 1989. Accordingly, the plaintiffs fourth claim fails.

V

The plaintiffs next claim is that the court improperly found in favor of the defendant on his counterclaim for entry and detainer. The plaintiff asserts that the facts and circumstances of this case do not support an entry and detainer claim. We disagree.

“The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant’s entry. . . . [General Statutes §] 47a-43 was made to protect a person in such possession . . . from disturbance by any but lawful and orderly means.” (Citations omitted; internal quotation marks omitted.) Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).

“A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed.” (Emphasis in original.) Communiter Break Co. v. Scinto, 196 Conn. 390, 393, 493 A.2d 182 (1985). “The question of whether the plaintiff was in actual possession at the time of the defendant’s entry is one for the trier of fact. . . . Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise. . . . [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion.” (Citations omitted.) Id., 394.

The plaintiff claims that the defendant was never in possession of the area in dispute. On the basis of the facts before the court, it was evident that the defendant had actual possession of the disputed area because he “exercised the dominion and control that owners of like property usually exercise” over the disputed area. (Internal quotation marks omitted.) Evans v. Weissberg, 87 Conn. App. 180, 182, 866 A.2d 667 (2005). Moreover, the disputed area of land is immediately adjacent to the defendant’s house, and the defendant has to walk through that area to gain access to his windows and utility box and for other various reasons.

The plaintiff next argues that the entry and detainer statute is inapplicable because there was no forcible entry. To support his argument, the plaintiff cites Hjorth v. Clark, 13 Conn. Sup. 409 (1945), in which a judge of the Court of Common Pleas stated: “To make a detainer forcible, there must be a detention with what is called strong hand—as, with an unusual number of people, with weapons, with menaces—or accompanied with some circumstances of actual violence, calculated to intimidate the plaintiff, and deter him from asserting or maintaining his right.” (Internal quotation marks omitted.). Id., 411. Here, the court concluded that the plaintiffs behavior of parking his vehicles, storing materials on the driveway and leaving manure on the driveway; see footnote 14; was menacing and led to intimidation of the defendant, making the detainer forcible.

Moreover, the court found that the defendant’s testimony supported his entry and detainer claim. In its articulation, the court wrote: “The factual basis for the court’s finding that the defendant proved his claim for entry and detainer is contained in the testimony of the defendant. The defendant testified credibly as to the plaintiffs actions in interfering with his efforts to put a fence on his property. The plaintiff further parked vehicles and stored other property directly adjacent to the defendant’s home and on the defendant’s property.” Thus, the plaintiffs fifth claim fails.

VI

The plaintiffs last claim is that the court improperly reformed the original grant of easement to exclude parking and storage. He asserts that the defendant never requested a reformation of the deed and, even if he did request reformation, the plaintiff did not have notice of such claim.

A cause of action for reformation of a deed “rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other.” (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981). “Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties.” (Internal quotation marks omitted.) Id., 532.

The defendant responds to the plaintiffs argument that reformation of the easement was improper with the fact that the plaintiff specifically claimed in his prayer for relief for “such other and further relief as the court deems proper both at law and in equity.” On the basis of this request, the defendant asserts that even if a claim of reformation was not enumerated, it clearly falls under the equitable powers of the trial court.

“[T]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . For that reason, equitable remedies are not bound by formula but are molded to the needs of justice.” (Citations omitted; internal quotation marks omitted.) McKeever v. Fiore, 78 Conn. App. 783, 788, 829 A.2d 846 (2003).

In its articulation, the court explained that it enjoined the plaintiff from using the easement area for parking and reformed the grant of easement accordingly because “the grant contained in the easement and the legal requirement that the use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. ” On the basis of its articulation, and because reformation falls under the equitable powers of the court, the plaintiffs sixth, and final, claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       In 1989, the plaintiff received two easements from the defendant’s predecessors in title. One of the easements concerned drainage from the plaintiffs property over the rear of the defendant’s property. The other easement, the one at issue in the present case, permitted the plaintiff to “use, maintain, operate, construct, reconstruct, repair and replace a driveway over and across” a portion of the defendant’s property.

       The court found: “The ‘right-of-way’ referenced in the ‘grant of easement’ was erroneously depicted on a map . . . filed on June 30, 1989, in the East Hampton land records as being on the property of the plaintiff and south of their common boundary three feet north of the [defendant’s] residence. The grant of easement actually places the right-of-way on the defendant’s property.” (Citation omitted.)

       General Statutes § 47-38 provides: “The owner of land over which a right-of-way or other easement is claimed or used may give notice in writing, to the person claiming or using the privilege, of his intention to dispute the right-of-way or other easement and to prevent the other party from acquiring the right; and the notice, being served and recorded as provided in sections 47-39 and 47-40, shall be deemed an interruption of the use and shall prevent the acquiring of a right thereto by the continuance of the use for any length of time thereafter.”

       In his complaint, the plaintiff alleged this three foot area as the “portion located south of the [plaintiffs common line with the [defendant and extending southerly to the six inch bituminous curb located on the northerly side of the [d]efendant’s existing house and extending easterly from Brook Trail to a point off the southeast most comer of the [pjlaintiffs existing residence and marked by the end of the bituminous paving . . . .”

       In his counterclaim, the defendant asserted a claim of entry and detainer against the plaintiff pursuant to General Statutes § 47a-43 (a).

       The court denied the defendant’s request for attorney’s fees, and it awarded the defendant his cost of $1000 for the survey of his property.

       “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 statutory period.” Mulle v. McCauley, 102 Conn. App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).
      “[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. . . . The standard of proof that is required is a fair preponderance of the evidence. ... To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised. . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use. . . . Use by express or implied permission or license cannot ripen into an easement by prescription.” (Citations omitted; internal quotation marks omitted.) Boccanfuso v. Creen, 91 Conn. App. 296, 309, 880 A.2d 889 (2005).

       The defendant contends that the court correctly applied both theories because the plaintiff opened the door to an adverse possession claim. Additionally, the defendant asserts that because the plaintiff used the land for storage rather than passage, an adverse possession claim is the appropriate claim on the basis of his use.

       The plaintiff testified as follows:
      “Q. And the space between yours and [the defendant’s] house is relatively narrow, isn’t it?
      “A. Yes, it is.
      "Q. Do you have any estimate as to width or have you ever measured it?

        “A. Between the two houses it has—where my porch and his house begins, is, probably, about twelve and one-half feet, maybe, at the narrowest point. Prior to that, it’s more.”

       The defendant correctly explains the origin of the issues with the different surveys when he writes: “These more recent surveys of the original right-of-way exposed the erroneous depiction of the placement of the easement on the original survey map by its placement of the easement on the [plaintiffs] property, rather than on the [defendant’s]. . . . This fact is in keeping with the [defendant’s] need for a reasonable passing from the front to [the] rear of his property and to access the north side yards side of his home in emergencies and for maintenance and repairs.” He further states: “If the right-of-way runs from the common boundary line, as [the plaintiff] claims it should, the plaintiff argues that [he] then has the benefit of a full five foot width easement rather than an easement, which runs from three feet from the [defendant’s] dwelling, which causes the easement to become narrower.

       The plaintiff further argues that because the defendant did not take possession of his property until after the fifteen year statutory period for the plaintiffs prescriptive easement claim had run, the plaintiff could not be in violation of the defendant’s rights. This argument fails because the court concluded that the plaintiff did not satisfy all of the elements of a prescriptive easement.

       The plaintiff also claims that § 47a-43, the entiy and detainer statute, only applies to landlord-tenant situations. There are, however, cases in which this court applied § 47a-43 to other situations. See Evans v. Weissberg, supra, 87 Conn. App. 180 (affirming court’s finding in favor of plaintiffs entry and detainer claim when defendants erected fence on property that court concluded plaintiff was in actual possession of at time defendants erected fence).

       We have affirmed a court’s finding of an entry and detainer claim when there were indications of violent designs but no actual violence. See Wilcox v. Ferraina, 100 Conn. App. 541, 920 A.2d 316 (2007); see generally Sullivan v. Delisa, 101 Conn. App. 605, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007).

       The record is replete with examples of the plaintiffs behavior that supports the defendant’s entry and detainer claim. For example, one of the exhibits is a photograph of the defendant trying to remove snow from his driveway with a snowblower after a large snowstorm. The photograph features the defendant trying to remove the snow around the plaintiffs parked cars to no avail. This photograph illustrates the plaintiffs blatant disregard for the defendant’s quiet possession of his real property. Furthermore, the defendant asserts that after the two parties entered into an agreement when he sought injunctive relief, he came home to find manure and earthen materials deposited in the very area where the plaintiff had parked his cars.


author: PER CURIAM.

text:
    FREDDY MORALES v. COMMISSIONER OF CORRECTION
    (AC 28341)
    Flynn, C. J., and McLachlan and Pellegrino, Js.
    Submitted on briefs March 31
    officially released May 20, 2008

      Deborah G. Stevenson, special public defender, filed a brief for the appellant (petitioner).

      David I. Cohen, state’s attorney, Lisa A. Riggione, senior assistant state’s attorney, and Yamini Menon, deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Freddy Morales, appeals from the judgment of the habeas court after the court denied his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus. The petitioner claimed that his trial counsel rendered ineffective assistance, that his counsel did not investigate adequately any defenses he might have had and that his plea was involuntary because of his counsel’s ineffective assistance. In addition to the claim that counsel’s assistance was ineffective, the petitioner also claimed that counsel did not explain adequately to him his right to sentence review. We dismiss the appeal.

The petitioner was charged with murder in violation of General Statutes § 53a-54a. The victim had been the petitioner’s girlfriend shortly before the crime; however, the victim told the petitioner she was ending the relationship. The petitioner had become very attached to the victim and her infant, who was not the petitioner’s child. On the night of the crime, the petitioner and the victim argued, and the petitioner, a butcher, used a meat cleaver to disembowel and partially decapitate the victim. He then cut his own throat.

The petitioner’s trial counsel retained Charles Morgan of the Yale University School of Medicine to perform a psychiatric evaluation of the petitioner. The evaluation showed that the petitioner suffered from a delusional disorder and a personality disorder but that the disorders did not rise to the level of an affirmative defense. Counsel concluded that the petitioner understood the charges against him and, without question, could assist in his defense.

During the habeas hearing, counsel testified that the petitioner repeatedly had asserted that he did not want to go to trial. Despite the extreme and violent nature of the crime, counsel was able to negotiate a plea agreement with the state, which provided for a maximum prison term of thirty-five years with the right to argue for as few as twenty-five years. The petitioner agreed to accept the plea deal, and, after a thorough plea hearing, the court accepted his guilty plea. The petitioner was sentenced to thirty-five years imprisonment.

On March 7, 2005, the petitioner filed his petition for a writ of habeas corpus, and he amended it on June 26, 2006. On October 20, 2006, the court held a hearing, and, on November 15, 2006, issued its memorandum of decision denying the petition for a writ of habeas corpus but restoring the petitioner’s right to seek sentence review after finding that there was insufficient evidence that the petitioner had been informed of this right. Subsequently, on November 20, 2006, the petitioner filed a petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On December 1, 2006, the court denied certification to appeal. This appeal followed.

The court concluded that the petitioner failed to satisfy his burden under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in that he did not establish by a preponderance of the evidence that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Moreover, the habeas court concluded that the petitioner’s plea of guilty was knowing, intelligent and voluntary. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); see also Taylor v. Commissioner of Correction, 284 Conn. 433, 440, 936 A.2d 611 (2007). Additionally, the court concluded that there was no evidence presented that “would allow a finding that had the petitioner elected to plead not guilty and take his case to trial, he would have been found not guilty of the offenses to which he pleaded guilty.”

After a careful review of the record and briefs, we conclude that the court did not abuse its discretion in denying the petitioner certification to appeal because he has not demonstrated “that the issues 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.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.


text:
    DARREN HUMPHREY v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC.
    (AC 28914)
    Harper, Robinson and Peters, Js.

      Argued March 24
    officially released May 20, 2008

      James R. Fogarty, for the appellant (plaintiff).

      Karen A. DiLisio-Jockimo, for the appellee (defendant).
   Opinion

HARPER, J.

In this slip and fall case, the plaintiff, Darren Humphrey, appeals from the judgment of the trial court, following a court trial, in favor of the defendant, Great Atlantic & Pacific Tea Company, Inc. The plaintiff claims that the court improperly failed to consider whether the defendant was liable for his injuries under the mode of operation rule subsequently adopted by our Supreme Court in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007) (en banc). We affirm the judgment of the trial court.

In October, 2005, the plaintiff commenced the action that underlies this appeal. The court conducted an evidentiary hearing in late 2006. On January 5, 2007, the court issued a memorandum of decision rendering judgment in favor of the defendant. As relevant, the court found that the plaintiff, while walking in the produce aisle of a supermarket owned and operated by the defendant on October 8,2003, slipped and fell on grapes that the defendant offered for purchase at a self-service counter. The court stated that for the plaintiff to prove his case, “there must be notice [to the defendant] of the specific defect that caused the [plaintiffs claimed] injury and not merely of conditions naturally productive of that defect.” The court found that there was no credible evidence that the defendant had actual or constructive notice as to the existence of the claimed specific defect of grapes on the floor. Accordingly, the court concluded that the plaintiff had not proven that the defendant was liable for any of the injuries that the plaintiff claimed to have resulted from his fall.

On April 3, 2007, our Supreme Court released its decision in Kelly, adopting the mode of operation rule. Kelly v. Stop & Shop, Inc., supra, 281 Conn. 768. The mode of operation rule is “a rule of premises liability pursuant to which a business invitee who is injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition if the business’ chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it.” Id., 769-70.

On May 10, 2007, the plaintiff filed a motion to open the judgment, which the trial court did not act on. Thereafter, this court granted the plaintiffs motion for permission to file a late appeal. This appeal followed.

Whenever this court is called upon to determine whether a trial court correctly construed or applied Connecticut law, our review is plenary. See Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 735, 941 A.2d 309 (2008); Cadlerock Properties Joint Venture, L.P. v. Ashford, 98 Conn. App. 556, 561, 909 A.2d 964 (2006). The following appears in footnote nine in Kelly. “The mode of operation rule that we adopt today shall be applied to all future cases and, as a general rule, to all previously filed cases in which the trial has not yet commenced as of the date of the release of this opinion. With respect to the latter category of cases, the trial court shall have discretion to bar invocation of the rule if there is an overriding reason to do so. In determining whether such a reason exists, the court may consider, among other things, any delay in the trial of the case that may be occasioned by allowing the plaintiff to raise a claim under the mode of operation rule (for purposes of additional discovery or otherwise), the length of time that the case has been pending and its proximity to trial.” Kelly v. Stop & Shop, Inc., supra, 281 Conn. 794 n.9.

As the recitation of procedural history previously in this opinion reflects, the trial in this matter had concluded almost three months prior to Kelly’s release. The Supreme Court clearly described the class of cases to which the mode of operation rule applied. Id. That class of cases did not include those in which the trial already had concluded, such as the case before us. Accordingly, we reject the plaintiffs claim that the court was bound to apply the mode of operation rule in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his posttrial brief, the plaintiff, citing this court’s decision in Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002), urged the court to impose liability on the defendant “based on negligence in [its] mode or method of displaying merchandise when [it] knew or should have known that the merchandise might be dropped or spilled to the floor by customers.” Our Supreme Court observed in Kelly that although this court in Meek did not expressly adopt the mode of operation rule, “the analysis and reasoning employed in [Meek] is no different from the analysis and reasoning that the court would have used if it explicitly had adopted the mode of operation rule.” Kelly v. Stop & Shop, Inc., supra, 281 Conn. 785. In its decision, the trial court referred to the mode of operation analysis applied in Meek, yet it is not clear if the court applied those principles in reaching its decision.

       In its appellate brief, the defendant argued that the trial court had followed this court’s decision in Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002), and, thus, had applied the mode of operation rule to this case. The defendant argued that the court properly had rejected the plaintiffs claim on that ground, as the plaintiff had failed to present evidence sufficient to prevail under the mode of operation rule. Although the defendant’s brief is replete with references to Kelly, it is curious that the defendant did not refer to footnote nine of that decision until the time of oral argument before this court.