text:
    WILLIAM BRAVER v. COMMISSIONER OF MOTOR VEHICLES
    (AC 21288)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Andrew J. O’Neill filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, William Braver, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles suspending the plaintiffs operator’s license for ninety days for violating General Statutes § 14-227b (c). The plaintiff claims that the court improperly (1) refused to give conclusive effect to the defendant’s answer to the plaintiffs complaint and (2) considered evidence outside the record to support the defendant’s decision. We affirm the judgment of the trial court.

The defendant, through a hearing officer, suspended the plaintiffs license to operate a motor vehicle for ninety days because the plaintiff had failed a breath test after he was arrested on a charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The plaintiff appealed from that decision to the court pursuant to General Statutes § 4-183. The court dismissed the appeal. This appeal followed.

“[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq.] . . . and the scope of that review is very restricted. . . . The substantial evidence rule governs judicial review of administrative [fact-finding] under General Statutes [§ 4-183 (j)]. . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule. . . . Basically, an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair. . . . [W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion.” (Citations omitted; internal quotation marks omitted.) Simard v. Commissioner of Motor Vehicles, 62 Conn. App. 690, 693-94, 772 A.2d 1137 (2001), quoting Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 399-401, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998).

The alleged admission that the plaintiff relies on is the fact that the defendant answered “admitted” to the paragraph of his complaint that states that he was arrested at 10:27 p.m. on May 4,2000. Because the police performed a breath analysis on the plaintiff at 11:41 p.m., over an hour after the arrest time, the plaintiff contends that it is possible that he had ceased operating his vehicle more than two hours before the time of the breath test. The court found that it is common practice for the police dispatcher to note the time that the police officer calls in the stopping of the vehicle and then for police officers to use that time for all further paperwork. The court then stated that “putting that [the repeated reference to the same time] to one side, I think there was ample evidence in the record that the stop occurred at [10:27 p.m.]”

The “common practice” cited by the court as the basis for its conclusion that the stop occurred at 10:27 p.m. on May 4, 2000, is the same as that cited by the court in Fiolek v. Commissioner of Motor Vehicles, 45 Conn. Sup. 489, 493, 722 A.2d 1237 (1997), aff'd, 51 Conn. App. 486, 721 A.2d 1260, cert. denied, 248 Conn. 906, 731 A.2d 306 (1999). In our disposition of the plaintiffs appeal from the dismissal of his appeal to the Superior Court in that case, we stated: “The issues regarding the underlying factual disputes were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision.” Fiolek v. Commissioner of Motor Vehicles, 51 Conn. App. 486, 488, 721 A.2d 1260, cert. denied, 248 Conn. 906, 731 A.2d 306 (1999).

The judgment is affirmed.

       General Statutes § 14-227b (c) provides in relevant part: “If the person arrested . . . submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that such person has an elevated blood alcohol content, the police officer . . . shall immediately revoke and take possession of the motor vehicle operator’s license . . . .”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LAUREN WINER v. STEPHEN CESLIK
    (AC 14597)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      H. Jeffrey Beck filed a brief for the appellant (plaintiff).

      Stephen Ceslik, pro se, the appellee (defendant), filed a brief.
   Opinion

PER CURIAM.

The plaintiff, Lauren Winer, appeals from the judgment of the trial court granting the application of the defendant, Stephen Ceslik, for a prejudgment remedy in connection with his counterclaim against the plaintiff in the amount of $30,310. The plaintiff claims that the court improperly granted the prejudgment remedy pursuant to General Statutes § 20-325. We affirm the judgment of the trial court.

The following facts are relevant to our consideration of the plaintiffs claim on appeal. At the hearing on his prejudgment remedy application, the defendant produced evidence showing probable cause to believe that the plaintiff had acted as a real estate broker without the required license and that the defendant had paid commissions to the plaintiff in the amount of $30,310 in the belief that the plaintiff was a real estate broker. The court concluded that pursuant to our holding in Design Development, Inc. v. Brignole, 20 Conn. App. 685, 570 A.2d 221 (1990), the plaintiffs failure to hold a real estate license at the time she entered into a contract with the defendant for real estate services involving the payment of commissions rendered that contract unenforceable and void as against public policy. The court accordingly granted the application for a prejudgment remedy. This appeal followed.

It is undisputed that it is a criminal offense to act as a real estate broker without a license. See General Statutes § 20-325. The plaintiff correctly points out in her brief that the statute does not create a private cause of action for damages for the victims and that the defendant, to prevail, therefore must allege that the violation of § 20-325 gives rise to a cause of action under the common law.

In this case, the defendant alleges, and the court found, that the cause of action created by the violation of § 20-325 was one “based upon the reasoning of the Appellate Court in Design Development, Inc. v. Brignole, [supra, 20 Conn. App. 685].” In Design Development, Inc., which dealt with an architect who, without a license, designed a building in violation of a statute similar to § 20-325 in that it also does not expressly create a private cause of action for damages, we stated: “Once the trial court found that [the plaintiffs president] practiced as and held himself out as an architect, [he] became subject to a criminal penalty . . . and his contract with the defendant was rendered illegal, void as against public policy and unenforceable.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 688.

We consider the situation in the present case, involving an unlicensed real estate broker, to be analogous to the unlicensed architect in Design Development, Inc. There is no rational distinction on which to base a different outcome in this case from the one reached in Design Development, Inc.

Accordingly, we agree with the court that our holding in Design Development, Inc., dictates the conclusion in this case that the contract between the parties for real estate services is void as against public policy. The contract itself being void as against public policy, the defendant is entitled to recoup the real estate commissions he paid to the plaintiff under that void contract. Thus, the prejudgment remedy granted in the amount of those commissions was entirely proper.

The judgment is affirmed.

       General Statutes § 20-325 provides in relevant part: “Any person who engages in the business of a real estate broker . . . without obtaining a license as provided in this chapter shall be fined not more than one thousand dollars or imprisoned not more than six months or both . . .


text:
    JEROME PARHAM v. COMMISSIONER OF CORRECTION
    (AC 21085)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Sebastian O. DeSantis, special public defender, filed a brief for the appellant (petitioner).

      Eugene Callahan, state’s attorney, Nancy Chupak, assistant state’s attorney, and Brian Sibley, deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jerome Parham, appeals following the denial by the habeas court of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. He claims that the habeas court improperly failed (1) to grant certification for appeal, (2) to find that the trial court did not properly follow the plea agreement and (3) to find that trial counsel was ineffective. We dismiss the appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000), citing Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995).

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “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. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) Payne v. Commissioner of Correction, 62 Conn. App. 583, 585, 772 A.2d 630 (2001); see also Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998).

Here, the habeas court based its dismissal of the petition for a writ of habeas corpus on a review of the petitioner’s claims and the evidence presented. The petitioner’s trial counsel testified that although he and the petitioner had hoped that the court would allow the petitioner to complete drug treatment and, as a result, not incarcerate the petitioner, the petitioner knew and understood that according to the plea he could have received incarceration up to ten years. In its memorandum of decision, the habeas court credited counsel’s testimony and concluded that the petitioner failed to carry the burden of proof required to establish that the court did not properly follow the plea agreement or that his counsel had provided ineffective assistance.

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Citations omitted; internal quotation marks omitted.) Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997). The petitioner, therefore, cannot successfully challenge the habeas court’s decision to credit counsel’s testimony and to reject his testimony.

After considering the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of establishing that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994). We conclude, therefore, that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    KELWOOD WHITE v. COMMISSIONER OF CORRECTION
    (AC 20948)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      James M. Fox, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, and John A. East III wad Angela Macchiarulo, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Kelwood White, appeals 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 improperly rejected his claim of ineffective assistance of counsel. We affirm the judgment of the habeas court.

In the habeas court, the petitioner claimed that he was deprived of effective assistance of counsel at his violation of probation hearing held on May 16, 2000. Specifically, he claimed that his counsel failed (1) to inform him of his appellate rights and (2) to conduct an adequate pretrial investigation. The court, after a trial on the merits, rendered its decision, concluding that the petitioner had failed to establish ineffective assistance of counsel. On June 5,2000, the court granted certification to appeal. This appeal followed.

The standard of review in habeas cases 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.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000). “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” Payne v. Commissioner of Correction, 62 Conn. App. 583, 585, 772 A.2d 630 (2001), citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

In its memorandum of decision, the habeas court credited counsel’s testimony and rejected the petitioner’s testimony. Accordingly, the habeas court concluded that the petitioner failed to carry the burden of proof required to establish that his counsel had provided ineffective assistance.

In his brief, the petitioner concedes that the sole evidence that counsel failed to inform him of his appellate rights was “the competing uncorroborated testimony of [the petitioner] and his former counsel . . . .” “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Citations omitted; internal quotation marks omitted.) Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997). Thus, the petitioner cannot successfully challenge the habeas court’s decision to credit counsel’s testimony and to reject his testimony.

The judgment is affirmed.

       The sole issue raised on appeal involves the petitioner’s claim that he was not advised of his appellate rights. We therefore limit our discussion to that claim.


text:
    RON JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 20995)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

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

      Michael Dearington, state’s attorney, Robert M. Spec-tor, deputy assistant state’s attorney, and Beth Baran, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ron Johnson, appeals following the denial by the habeas court of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to appeal and (2) determined that he was not denied ineffective assistance of counsel. We dismiss the appeal.

On September 19, 1997, the petitioner pleaded guilty under the Alford doctrine to one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of counsel. Specifically, he alleged that his trial counsel failed to inform him that he would not receive credit for time served from his arrest date of April 30, 1996, through and including his sentencing date of September 19,1997. At the habeas hearing, the court heard conflicting testimony from the petitioner and his trial counsel regarding whether the petitioner was correctly informed of the sentencing consequences of his guilty plea. The court, finding trial counsel’s testimony to be more credible, accordingly dismissed the petition for a writ of habeas corpus.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on the merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Colon v. Commissioner of Correction, 55 Conn. App. 763, 765, 741 A.2d 2 (1999), cert. denied, 252 Conn. 921, 744 A.2d 437 (2000). “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ” Velez v. Commissioner of Correction, 57 Conn. App. 307, 309, 748 A.2d 350 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219.

After thoroughly reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the habeas court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, supra, 230 Conn. 612; Johnson v. Commissioner of Correction, 58 Conn. App. 729, 731, 754 A.2d 849, cert. denied, 254 Conn. 928, 761 A.2d 753 (2000); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

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


text:
    MARSHA GORDON v. MACELLIS K. GLASS ET AL.
    (AC 21125)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Norman A. Pattis filed a brief for the appellant (plaintiff).

      Garie J. Mulcahey and Heidi M. Priwall filed a brief for the appellee (named defendant).

      Augustus R. Southworth III and Leslie Gold McPadden filed a brief for the appellees (defendant Orthopedic Specialty Group, P.C., et al.).
   Opinion

PER CURIAM.

The plaintiff, Marsha Gordon, appeals from the judgment of the trial court granting the defendants’ motions for summary judgment. In her appeal, the plaintiff claims that the court (1) improperly failed to construe the evidence in the light most favorable to her as the nonmoving party and (2) improperly concluded that she had failed to present sufficient evidence on the issue of proximate cause. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the issues raised in the plaintiffs appeal. The plaintiff is a nurse. She was hired by Silver Hill Hospital in New Canaan in the spring of 1994. On July 6,1994, she fell while walking on some outdoor steps at work. In her fall, she suffered injuries to her left ankle, elbow and foot, as well as pain on her left side, including her neck. She visited the defendant physicians Herbert I. Hermele and Robert A. Stanton for treatment following the fall. They were aware of her history of cervical intervertebral disc disease. Both physicians are board certified orthopedic surgeons practicing as members of the defendant Orthopedic Specialty Group, P.C.

The defendants cleared the plaintiff to return to work on August 1, 1994, in a “light duty” capacity. On August 11,1994, while doing a stretching exercise while seated in a chair, she lost her balance and fell out of the chair, reinjuring her neck and left ankle. Upon examination on August 18, 1994, Stanton diagnosed her as having an acute cervical strain and a sprain of her left ankle. No X rays were ordered at that time.

On August 26, 1994, the plaintiff returned to work and experienced substantial difficulties in performing her job as a result of her neck pains. Upon reporting those difficulties to her employer, Silver Hill Hospital, it arranged for an independent medical examination by the defendant MacEllis K. Glass, which took place on August 31, 1994. Glass ordered X rays and, after reviewing them, pronounced the plaintiff fit to return to work on September 27, 1994.

Two weeks after returning to work, on October 12, 1994, Silver Hill Hospital terminated the plaintiff’s employment because she was unable to perform all of her responsibilities. She subsequently arranged for a magnetic resonance imaging examination, which disclosed that she suffered from a disc protrusion and an intervertebral disc herniation.

The plaintiff thereafter brought an action for medical malpractice against the defendants. The defendants thereafter filed motions for summary judgment, contending that the plaintiffs medical expert was unable to testify about the circumstances of her job loss and that therefore the plaintiff could not prove a causal link between the defendant’s alleged malpractice and the plaintiffs loss of employment. The court granted the defendants’ motions. This appeal followed.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. 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 test is whether a party would be entitled to a directed verdict on the same facts. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the [movants’] summary judgment motion was clearly erroneous.” (Internal quotation marks omitted.) Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 355-56, 764 A.2d 203, cert. granted on other grounds, 255 Conn. 948, 769 A.2d 64 (2001).

In her appeal, the plaintiff claims that the court improperly found that she had presented insufficient evidence to demonstrate that the defendants’ negligence was the proximate cause of her loss of employment. Specifically, the plaintiff claims that her medical expert’s failure to testify about the relationship between the defendants’ alleged malpractice and her job loss is not fatal to her claim because her case falls within an exception to the requirement for expert medical testimony. We disagree.

“In every professional malpractice action, the plaintiff is required to prove that (1) the defendant was obligated to conform to a recognized standar d of care, (2) the defendant deviated from that standard, (3) the plaintiff suffered some injury, and (4) the defendant’s act in departing from the standard of care caused the plaintiffs injury. Pisel v. Stamford Hospital, 180 Conn. 314, 334-42, 430 A.2d 1 (1980); LaBieniec v. Baker, 11 Conn. App. 199, 202-203, 526 A.2d 1341 (1987). . . . No matter how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable. LaBieniec v. Baker, supra, 206.” Shegog v. Zabrecky, 36 Conn. App. 737, 744-45, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). The court in this case found the first three requirements to be satisfied; however, it concluded that the plaintiff had failed to show causation.

“Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person. Aspiazu v. Orgera, 205 Conn. 623, 631, 535 A.2d 338 (1987); Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979). Expert medical opinion evidence is generally required in all cases involving professional competence and malpractice. Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976); Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985). Where expert medical opinion evidence is required in a medical malpractice case, ‘[t]he causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.’ Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). The expert opinion cannot rest on surmise or conjecture because the trier of fact must determine probable cause, not possible cause. Aspiazu v. Orgera, supra, 632; Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). In other words, the expert opinion must be based on reasonable probabilities. Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987).” Shegog v. Zabrecky, supra, 36 Conn. App. 745-46.

“There are three exceptions to the necessity of obtaining expert testimony to prove a plaintiffs case in a medical malpractice action. Those exceptions are when the negligence is gross, when the medical condition is obvious and when the plaintiffs evidence of injury creates a probability so strong that a lay juror can form a reasonable belief. [Id., 746-47], The court in this case concluded that none of the three exceptions for expert opinion cases obviated the necessity for an expert opinion. The court was correct in that conclusion.” Poulin v. Yasner, 64 Conn. App. 730, 747, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001).

In this case, the alleged negligence lies in the defendants’ judgment that it was appropriate for the plaintiff to return to work. The plaintiff presented no expert testimony as to her allegation that this judgment constituted negligence. Whatever else the defendants’ judgment may have been, we agree with the trial court’s determination in its memorandum of decision that it did not constitute “negligence so gross as to be clear to even a lay person. ” Thus, the only exception of which the plaintiff may avail herself to avoid the requirement of expert testimony is if “the plaintiffs evidence of injury creates a probability so strong that a lay juror can form a reasonable belief.” Id. The evidence submitted by the plaintiff in opposition to the defendants’ motions for summary judgment consisted only of her affidavit and that of her medical expert, who consistently stated that he could not offer the opinion that the defendants’ malpractice caused the plaintiffs termination. We agree with the court’s conclusion that this paucity of evidence on the plaintiffs side was not such as to “[create] a probability so strong that a lay juror can form a reasonable belief’; id.; that the defendants’ negligence caused the plaintiffs termination from her employment.

The judgment is affirmed.

       In addition to the named defendant, MacEllis K. Glass, the defendants are Herbert I. Hermele, Robert A. Stanton and Orthopedic Specialty Group, P.C.

       The other issue raised by the plaintiff, namely, whether the court drew all inferences favorable to her from the documents submitted in opposition to the motions for summary judgment, is a subset of her claim regarding the court’s finding on the issue of proximate cause. In her brief, the “undrawn” inferences she cites all relate to the issue of proximate cause. Accordingly, we treat the two issues together.


text:
    JOHN M. HOFFER v. SWAN LAKE ASSOCIATION, INC.
    (AC 21464)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Steven P. Kulas filed a brief for the appellant (plaintiff).

      Robert J. Uskevich filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff in this action to quiet title appeals from the trial court’s judgment rendered in favor of the defendant after the court found that the plaintiff did not possess a prescriptive easement across a road owned by the defendant. The plaintiff claims that the court improperly found that his past use of the area in question was by permission, rather than under a claim of right, thereby precluding a finding of a prescriptive easement. We affirm the judgment of the trial court.

The relevant facts briefly are as follows. The plaintiff, John M. Holler, owns contiguous lots within a subdivision in Oxford known as Swan Lake Estates. The defendant, Swan Lake Association, Inc., is the fee owner of a road, Cherokee Drive, that runs through Swan Lake Estates. In 1976, the plaintiffs predecessor in title, Elizabeth L. Hoffer, installed a water line from the premises, running beneath Cherokee Drive, to access a well on another lot within the subdivision. The Hoffers used the water line thereafter.

On December 3, 1999, the plaintiff brought an action in which he claimed that he was entitled to an easement allowing continued use of the water line, and access to the areas surrounding it for purposes of maintenance and repair. In his complaint, the plaintiff alleged that at all times since the creation of the water line, its use has been adverse, notorious, continuous and uninterrupted. The defendant disputed those allegations. After a trial, the court rendered judgment for the defendant, having concluded that the plaintiff had failed to prove all of the requisite elements of a prescriptive easement by a preponderance of the evidence. In particular, the court considered that the plaintiff had not shown that his use of the defendant’s property was made under a claim of right. This appeal followed.

“Whether a right-of-way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered. Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous. McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997).” (Internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001).

“The well established statutory elements necessary to establish an easement by prescription are that the use is (1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim of right. Zavisza v. Hastings, 143 Conn. 40, 45, 118 A.2d 902 (1955); see also Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993). A prescriptive easement must be proved by a fair preponderance of the evidence. Simonds v. Shaw, 44 Conn. App. 683, 687, 691 A.2d 1102 (1997).” (Internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., supra, 63 Conn. App. 168.

The plaintiff claims that the court improperly found that the third element of the test for a prescriptive easement was unsatisfied. “A use made under a claim of right is a use made without recognition of the rights of the owner of the servient tenement. Zavisza v. Hastings, supra, 143 Conn. 46. The use must occur without license or permission and must be unaccompanied by a recognition of [the right of the owner of the servient tenement] to stop such use. . . . The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement. . . . Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682 (1998). Whether the requirements for [a claim of] right have been met in a particular case presents a question of fact for the trier of facts. . . . The trier’s determination of facts will be disturbed only when those findings are clearly erroneous.” (Internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., supra, 63 Conn. App. 170.

At trial, the plaintiff testified that, although he had notified three representatives of the association about the plans to construct a water line, permission to do so never was formally granted. The court, however, also examined a 1976 letter written by Elizabeth L. Hoffer to the president of the association referencing a verbal agreement and recounting a meeting between the parties at the site of the water line at the time it was constructed, at which time the defendant’s representatives agreed that construction could proceed as long as the road was returned to its original condition.

The plaintiff argues that the court should have accepted his characterization of the discussions surrounding the construction of the water line, and that Elizabeth L. Hoffer in her letter was intending to exert a claim of right rather than to acknowledge permission already given. We note, however, that “[i]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact.” (Internal quotation marks omitted.) Greene v. Perry, 62 Conn. App. 338, 342, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001). “[I]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Id., 343. Furthermore, the question of “[i]ntent is [one] of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. Fuller, 58 Conn. App. 567, 578, 754 A.2d 207, cert. denied, 254 Conn. 918, 759 A.2d 1026 (2000). Because the court’s factual findings have a basis in the record and its conclusions are reasonable, we hold that they are not clearly erroneous.

The judgment is affirmed.


text:
    KEVIN TUCKER v. COMMISSIONER OF CORRECTION
    (AC 21149)
    SchaUer, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      David B. Rozwaski, special public defender, filed a brief for the appellant (petitioner).

      Mara Elizabeth Baran, senior assistant state’s attorney, and Michael Dearington, state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals following the denial of his petition for certification to appeal from the judgments of the habeas court dismissing his petitions for a writ of habeas corpus. After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). We therefore dismiss the appeal.

The habeas court’s dismissal of the petitions for a writ of habeas corpus was predicated on a factual review of the petitioner’s claim that he was denied the effective assistance of counsel and a determination that the petitioner had failed to rebut the strong presumption that “counsel’s conduct f[ell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The petitioner claimed that he was denied effective assistance because his counsel failed to obtain copies of the mug shots taken by the police at the time of his arrest, which would have demonstrated that he had sustained no bruises to his face caused by the victim of the crime.

The defendant was convicted by a jury of assault in the first degree, sexual assault in the first degree and kidnapping. His conviction was affirmed on appeal. State v. Tucker, 226 Conn. 618, 629 A.2d 1067 (1993). Following a hearing, the habeas court found that the petitioner’s trial counsel attempted to obtain the mug shots but that the New Haven police department did not have them. The habeas court concluded that the performance of the petitioner’s trial counsel was not deficient and that the mug shots would not have helped the petitioner because the evidence against him was overwhelming. See Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The police, responding to a 911 call, found the petitioner standing over the victim with his pants and underwear below his knees. The police apprehended the petitioner after a short foot chase, and the victim identified the petitioner as the perpetrator of the crimes against her. The petitioner’s claim that the mug shots would have assisted his defense by showing that he had no injuries to his face is unavailing because the victim testified that she did not harm the petitioner’s face during the assault.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    CHRISTOPHER CROWDER v. COMMISSIONER OF CORRECTION
    (AC 21496)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

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

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

PER CURIAM.

The petitioner brings this appeal from the habeas court’s denial of his petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly denied his petition because his counsel at trial was ineffective and, therefore, his confinement is unlawful. We disagree and affirm the habeas court’s judgment.

On September 4,1996, the petitioner entered a guilty plea, pursuant to the Alford doctrine, to a charge of murder in violation of General Statutes § 53a-54a (a). Thereafter, the trial court sentenced him to thirty-five years imprisonment. On July 23, 1999, the petitioner filed an amended petition for a writ of habeas corpus in which he claimed that his confinement was unlawful because he had received ineffective assistance from his trial counsel. Specifically, he claimed that his counsel had failed to inquire into his alcohol dependency at the time that he was charged with murder, had failed to advise him adequately regarding the choice between entering a guilty plea or proceeding to trial, and had failed to investigate sufficiently the defense of extreme emotional distress. After a May 2, 2000 hearing, the habeas court rejected those claims and, on October 3, 2000, it rendered a judgment denying the petition. On December 13, 2000, the habeas court granted the petition for certification to appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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.) Payne v. Commissioner of Correction, 62 Conn. App. 583, 584, 772 A.2d 630 (2001).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . Pretrial negotiations impheating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system . . . .’’(Internal quotation marks omitted.) Crump v. Commissioner of Correction, 61 Conn. App. 55, 58-59, 762 A.2d 491 (2000).

“[T]o prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... In Hill v. Lockhart, [474 U.S. 52, 57-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], the court determined that the [Strickland] two-part standard applies to claims arising from the plea negotiation process .... Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard ... to require . . . the [petitioner to] show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Citations omitted; internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 61 Conn. App. 59.

The habeas court found that the petitioner failed to meet his burden of estabhshing that his counsel had performed deficiently, and, therefore, it was unnecessaiy for the court to consider whether prejudice had occurred. The court heard the testimony of the petitioner and his trial counsel, reviewed several trial transcripts and exhibits, and, on the basis of that information, wrote a well reasoned memorandum of decision. The court, largely through its evaluation of the credibility of the witnesses, concluded that counsel did inquire into the petitioner’s alcohol dependency and the potential of an emotional distress defense by discussing each with a psychiatrist who had examined the petitioner. Relying on counsel’s testimony and on its assessment of a letter written by the petitioner to his counsel just prior to the petitioner’s guilty plea, the court also concluded that the petitioner was well aware of the option of a trial along with the attendant risks.

Because it is not this court’s role to reevaluate the credibility of witnesses; see Greene v. Perry, 62 Conn. App. 338, 342, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001); or to second-guess a lower court on questions of fact; see State v. Hernandez, 53 Conn. App. 706, 710, 736 A.2d 137 (1999), aff'd, 254 Conn. 659, 759 A.2d 79 (2000); and because the petitioner does not direct us to any defects in the habeas court’s legal or logical reasoning, we decline to disturb the court’s judgment.

The judgment is affirmed.

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

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The petitioner’s brief consists largely of a recitation of the standards for effective assistance of counsel. The petitioner provides no argument or analysis of his claims pursuant to those standards.


text:
    MITCHELL HENDERSON v. COMMISSIONER OF CORRECTION
    (AC 20967)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Mitchell Henderson, pro se, the appellant (petitioner), filed a brief.

      Richard Blumenthal, attorney general, and Richard T. Biggar, assistant attorney general, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals following the denial by the habeas court of his petition for certification to appeal from the court’s judgment denying his habeas corpus petition. After reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. War den, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). We therefore dismiss the appeal.

In his petition for a writ of habeas corpus, the petitioner claimed that the commissioner of correction denied the petitioner’s liberty interest in the extended family visitation program. The habeas court properly concluded that the petitioner does not have a liberty interest in access to visitors. Santiago v. Commissioner of Correction, 39 Conn. App. 674, 680, 667 A.2d 304 (1995); see also Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-61, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989). Furthermore, department of correction Administrative Directive § 10.6 provides in relevant part that “visitation shall be considered a privilege and no inmate shall have entitlement to a visit.” The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       While the petitioner’s appellate brief states the issue of whether the habeas court improperly denied his petition for a writ of mandamus, his brief does not-address that question. “An issue merely mentioned will be deemed abandoned.” State v. Wragg, 61 Conn. App. 394, 395 n.l, 764 A.2d 216 (2001). We therefore do not address that claim.


text:
    MIKE BOULWARE v. COMMISSIONER OF CORRECTION
    (AC 21166)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Katharines. Goodbody, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, and Robert J. O’Brien and James Turcotte, supervisory assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals following the denial by the habeas court of his petition for certification to appeal from the court’s judgment denying his petition for a writ of habeas corpus. After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). We therefore dismiss the appeal.

The habeas court’s denial of the petition for a writ of habeas corpus was predicated on a factual review of the petitioner’s claim that he was denied the effective assistance of counsel and a determination that the petitioner had failed to rebut the strong presumption that “counsel's conduct f[ell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). In his petition, the petitioner alleged that his counsel (1) failed to challenge his arrest as the fruit of an unlawful and warrantless seizure, (2) advised him to plead guilty because he would be convicted by a jury, (3) incorrectly advised him that he would receive credit for the time he had been in jail prior to entering his plea and (4) incorrectly advised him in a number of ways as to the amount of time that he would have to serve in prison. Only the petitioner and his counsel testified at the habeas hearing. The habeas court also had a copy of an October 11, 1996 police repoit and a transcript of the petitioner’s plea hearing.

The petitioner was on probation at the time that he was arrested on August 19, 1996, and October 11, 1996, resulting in charges of violation of probation, possession of narcotics, reckless endangerment in the first degree, operating a motor vehicle while his operator’s license was under suspension and assault on a police officer. His counsel was able to negotiate a plea bargain whereby the petitioner would plead guilty under the Alford doctrine in return for a total effective sentence of fifteen years, execution suspended after five and one-half years, to be served concurrently with the six year sentence that the petitioner was serving.

The habeas court found that the petitioner was not an accurate historian as to the events of his two arrests and did not credit the petitioner’s claims of advice and promises that he attributed to his counsel such as his entitlement to good time credits, his eligibility for probation after serving 50 percent of his sentence and which of his sentences controlled the length of his sentence. The habeas court concluded that considering the result of the petitioner’s plea bargain, the petitioner had failed to prove that his counsel’s representation fell below an objective standard of reasonableness and that the petitioner had suffered no prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The court’s denial of the habeas petition turned on the petitioner’s credibility. “This court does not retry the case or evaluate the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997), quoting State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). “In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

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


text:
    FRANKLIN BROWN v. COMMISSIONER OF CORRECTION
    (AC 20996)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

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

      John M. Bailey, chief state’s attorney, James A. Killen, supervisory assistant state’s attorney, and Angela Macchiarulo, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals following the denial by the habeas court of his petition for certification to appeal from the court’s denial of his petition for a writ of habeas corpus. After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). We therefore dismiss the appeal.

The habeas court’s denial of the petition for a writ of habeas coipus was predicated on a factual review of the petitioner’s claim that he was denied the effective assistance of counsel and a determination that the petitioner had failed to rebut the strong presumption that “counsel’s conduct f[ell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

In his petition for a writ of habeas corpus, the petitioner claimed that his trial counsel was ineffective in entering his plea because counsel failed (1) to have the petitioner examined for psychological or psychiatric conditions that impaired his ability to understand the charges and proceedings, (2) to request a competency examination prior to his plea, despite requesting a drug and alcohol abuse evaluation prior to sentencing, and (3) to investigate potential defenses, most specifically intoxication and diminished capacity.

Following a hearing and review of the transcript of the plea proceeding, the habeas court found that the petitioner had been charged in two informations with multiple counts of robbery in the first degree, along with other charges, arising from incidents that occurred in Middletown and East Hampton. Due to the strength of the state’s case against him and his lengthy criminal record, the petitioner faced a prison sentence in excess of forty years. The assistant public defender who represented the petitioner through the time of his plea had eighteen years of experience. He met with the petitioner at least a dozen times and discussed the defense of intoxication with him, explaining that the defense would be difficult because there were two robberies on different dates. The petitioner’s counsel was also of the opinion that the diminished capacity defense would not apply. The petitioner’s counsel negotiated a plea bargain with the state. In April, 1998, the petitioner pleaded guilty pursuant to the Alford doctrine to two counts of robbery in the first degree with the understanding that he would be sentenced to eight years in prison.

Until shortly before the plea date, the petitioner exhibited no signs of mental impairment that would have prevented him from assisting counsel or understanding the proceedings against him. Just before the plea hearing, the petitioner informed his counsel that he suffered from blackouts and did not remember committing the crimes, even though he had made incriminating statements to the police. Counsel immediately arranged to have a psychologist evaluate the petitioner. There was, however, no evidence that the petitioner was not competent to plead guilty. The habeas court found that the petitioner responded clearly and intelligently to all questions asked of him at the plea proceeding. A psychologist examined the petitioner subsequent to the plea proceeding. The psychologist’s report did not indicate that the petitioner was incompetent or provide any defense for the crimes.

The petitioner wrote to the trial court and made certain allegations about his counsel. Consequently, his public defender withdrew from the case and gave his file, including the psychologist’s report, to a special public defender who represented the petitioner at sentencing. He was sentenced to eight years imprisonment in accordance with the plea agreement.

The habeas court concluded that the petitioner failed to meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner presented no evidence that his counsel’s performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in the criminal law. There was no basis for the habeas court to conclude that the petitioner’s counsel had reason to believe that he should have requested a competency hearing for the petitioner. The evidence overwhelmingly established that the petitioner had a rational and factual understanding of the proceedings against him and was able to assist in his defense. A defendant is competent if he is able to understand the proceedings against him or to assist in his own defense. See State v. Wolff, 237 Conn. 633, 663, 678 A.2d 1369 (1996). Counsel requested a substance abuse evaluation for the petitioner in an effort to get treatment for the petitioner within the department of correction. Furthermore, there was no prejudice to the petitioner because the state’s case against him was strong and because he failed to produce any credible evidence that he would have received a better outcome by going to trial than he received pursuant to his plea agreement.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The petitioner confessed, and the state had surveillance videotapes of one of the incidents.

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


text:
    HARRY PAULSEN v. DAVID KRONBERG ET AL.
    (AC 20587)
    Laveiy, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Laurence V. Pamoff filed a brief for the appellant (plaintiff).

      Jack G. Steigelfest filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Harry Paulsen, appeals from the judgment of the trial court in favor of the defendants on all counts of his complaint. On appeal, the plaintiff claims that the court improperly (1) failed to find facts claimed by the plaintiff to establish his right to damages, (2) found facts contrary to the evidence and (3) failed to find that the plaintiff was entitled to damages for unjust enrichment. We affirm the judgment of the trial court.

The first two issues that the plaintiff raises in his brief allege various facts that the trial court improperly found or failed to find. “Our review of questions of fact is limited to the determination of whether the findings were clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn. App. 517, 520-21, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001), quoting Johnson v. de Toledo, 61 Conn. App. 156, 160, 763 A.2d 28 (2000), cert. granted on other grounds, 255 Conn. 938, 767 A.2d 1212 (2001). The record before us does not reveal that the trial court’s factual findings are clearly erroneous.

The plaintiff finally claims that the trial court improperly failed to award damages to the plaintiff on his claim of unjust enrichment. We disagree.

“Unjust enrichment applies wherever justice requires compensation to be given for . . . services rendered under a contract, and no remedy is available by an action on the contract. . . . [L]ack of a remedy under the contract is a precondition for recovery based upon unjust enrichment. . . .

“[T]he determinations of whether a particular [set of circumstances] was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Maris v. McGrath, 58 Conn. App. 183, 186, 753 A.2d 390, cert. granted on other grounds, 254 Conn. 919, 759 A.2d 1025 (2000); see also McNeil v. Riccio, 45 Conn. App. 466, 475-76, 696 A.2d 1050 (1997).

“Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) McNeil v. Riccio, supra, 45 Conn. App. 475; see also Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). The trial court properly recited these elements and concluded that the plaintiff had failed to prove the third one.

The court also concluded that the parties had an enforceable employment contract governing their relationship. “Unjust enrichment applies whenever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract .... 12 S. Williston, Contracts (3d Ed. 1970) § 1479, p. 272. Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment.” (Internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). The trial court in its memorandum of decision found that “[t]he plaintiff was paid by the defendant . . . pursuant to an employment agreement.” Our courts have often used the terms “employment agreement” and “employment contract” interchangeably. See, e.g., Hoye v. DeWolfe Co., 61 Conn. App. 558, 563, 764 A.2d 1269 (2001). The court found a contract between the parties to exist and that the plaintiff had been paid what was due him under that contract. Therefore, the court properly concluded that the doctrine of unjust enrichment has no application to this case. We thus conclude that the court did not abuse its discretion.

The judgment is affirmed.

       The court rendered judgment in the plaintiffs l'avor on the defendants’ counterclaim, and the defendants have not appealed from that judgment.


text:
    EDWARD WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 20586)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Michael J. Melly, special public defender, filed a brief for the appellant (petitioner).

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

PER CURIAM.

The petitioner, Edward Williams, appeals following the denial by the habeas court of his petition for certification to appeal, filed pursuant to General Statutes § 52-470 (b), from the denial of his petition for a writ of habeas corpus. We dismiss the appeal.

The following facts and procedural history are relevant to this appeal. On May 3, 1996, the petitioner was convicted, after a guilty plea entered pursuant to the Alford doctrine, of the crimes of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (1), possession of weapons in a motor vehicle in violation of General Statutes § 29-38 and evasion of responsibility in violation of General Statutes § 14-224 (a) and (f). The petitioner was sentenced to a total effective sentence of twenty-five years. On October 28, 1999, the petitioner, with the assistance of counsel, filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel in that trial counsel allegedly had coerced the petitioner into accepting the plea agreement on the ground that he would be sentenced to no more than twelve and one-half years of imprisonment. On February 10, 2000, the habeas court, following a hearing, denied the petition after finding that there was no basis for the petitioner’s claim. The petitioner then filed a petition for certification with the trial court, which was denied on the same day. This appeal followed.

After our full review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right. Furthermore, he has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Francis v. Commissioner of Correction, 63 Conn. App. 282, 283, 775 A.2d 1004, cert. denied, 256 Conn. 933, 776 A.2d 1150 (2001); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that there was sufficient evidence before the habeas court for it to find as it did. The court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       General Statutes § 52-470 (b) provides in relevant part: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried ... to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

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


text:
    LOIS BROWN v. STATE OF CONNECTICUT, DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES
    (AC 21094)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Brian W. Prucker filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Philip M. Schulz and William J. McCullough, assistant attorneys general, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Lois Brown, appeals from the decision of the workers’ compensation review board (board) affirming in part and reversing in part the decision by the workers’ compensation commissioner (commissioner) dated May 19, 1999. On appeal, the plaintiff claims that the board improperly reversed the portion of the commissioner’s decision awarding her temporary total disability benefits for the period of September 15, 1994, to September 29, 1998. We affirm the decision of the board.

The commissioner found that on July 16, 1987, the plaintiff suffered a compensable head, neck and right shoulder injury when a patient assaulted her during the plaintiffs employment with the defendant. On the basis of the medical reports and office notes of several physicians, the commissioner concluded, in pertinent part, that the plaintiff was temporarily totally disabled from February 3, 1994, until September 29, 1998. The board reversed the commissioner’s decision in part, concluding that the award of temporary total disability for the period of September 15,1994, until September 29,1998, was unsupported by the evidence.

The standard of review in workers’ compensation appeals is well established. “[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204, 206, 695 A.2d 1071 (1997). “On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award.” Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 739, 774 A.2d 1009 (2001).

We conclude that the board properly found that the determination of the commissioner, that the plaintiff was temporarily totally disabled from a period past September 15, 1994, through September 29, 1998, was unreasonably drawn from the facts. In arriving at the conclusion that the plaintiff was temporarily totally disabled from February 3, 1994, until September 29, 1998, the commissioner relied on the medical reports and office notes of the plaintiffs physicians, namely, John Raycroft, Melville Roberts, Anthony Alessi and Pearce Browning. The reports of Raycroft, Roberts and Alessi were all dated from 1992 to 1993, and did not indicate that the plaintiff suffered from a temporary total disability. The only evidence before the commissioner in support of a finding that the plaintiff suffered from temporary total disability was a note from one of her treating physicians, Browning, dated February 3, 1994. Browning’s note indicated that the plaintiff was totally disabled.

The plaintiff failed to present any other evidence or documentation demonstrating that she suffered from a temporary total disability that persisted during the period of February, 1994, until September, 1998. Specifically, the plaintiff presented only two medical reports dated subsequent to February 3, 1994, one of which was prepared by Browning and dated September 15, 1994. Browning’s report, dated September 15,1994, did not state that the plaintiff was temporarily totally disabled. Further, the only other report made after February 3,1994, that was before the commissioner was from Steven Selden, a physician. That report, dated January 23,1998, did not indicate that the plaintiff was disabled and moreover described her as “getting along fair.” Accordingly, the board properly concluded that “[t]his sparse body of recent medical evidence did not provide a sufficient basis for the trier to conclude that the [plaintiff] was totally disabled beyond September, 1994.”

The decision of the workers’ compensation review board is affirmed.


text:
    LENNART S. NICHOLSON v. JOYCE L. NICHOLSON
    (AC 21371)
    Lavery, C. X, and Flynn and Dupont,, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      LennartS. Nicholson, pro se, the appellant (plaintiff), filed a brief.

      Paula J. Waite filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The pro se plaintiff, Lennart S. Nicholson, appeals from the judgment of the trial court denying his motion for modification of alimony payments to the defendant, Joyce L. Nicholson. The dispositive issue in this appeal is whether the court improperly determined that the plaintiff failed to demonstrate a change in circumstances that would justify modification. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the plaintiffs appeal. As part of its original 1982 dissolution decree, the court ordered the plaintiff to pay $50 per week in periodic alimony to the defendant. The court subsequently modified the payment amount, the last modification having been ordered in 1992. In June, 2000, the plaintiff filed a motion for modification of his alimony payment. He alleged that the circumstances concerning his case had changed since the prior modification order because he had become the primary caregiver for his young daughter, who was bom during his second marriage. The court did not find that a substantial change in circumstances existed and, on October 10, 2000, denied the plaintiffs motion for modification. The plaintiff thereafter appealed to this court.

A court’s decision concerning a motion to modify alimony payments is governed by General Statutes § 46b-86 (a) which permits the court to modify payments “upon a showing of a substantial change in the circumstances of either party . . . .” The court adequately set forth the factual findings underlying its conclusion. It found that since the time of the last modification, the plaintiffs income had increased and his expenses had decreased. The court also found that the defendant’s income and expenses had increased proportionally to one another. Although the plaintiff argued that he is now the principal caregiver for a young child, the court found that “there was no real substantial evidence other than his testimony on that issue.”

The court made clear factual findings concerning the relative financial situations of both parties. The defendant does not challenge those findings. Instead, he argues that the court should have accepted his allegations about caring for a young child and should have found that those allegations constituted a substantial change in circumstances for purposes of the statute.

“To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Internal quotation marks omitted.) Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 826-27, 776 A.2d 1068 (2001); see also Practice Book § 60-5. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 209, 758 A.2d 869 (2000), appeal dismissed, 258 Conn. 453, 782 A.2d 97 (2001).

Having reviewed the record, we conclude that the court was free to conclude that the plaintiff failed to demonstrate a substantial change in circumstances. As we have stated previously, “[i]n reviewing a trial court’s decision on a motion to modify, every reasonable presumption will be made in favor of the trial court’s exercise of discretion. Cummock v. Cummock, 188 Conn. 30, 35, 448 A.2d 204 (1982). Its decision will not be disturbed unless it acted illegally or unreasonably. Scott v. Scott, 190 Conn. 784, 789, 462 A.2d 1054 (1983).” Lev v. Lev, 10 Conn. App. 570, 573, 524 A.2d 674 (1987). The court applied the correct legal standard, and we are unable to conclude that the court abused its discretion or acted unreasonably in denying the plaintiffs motion to modify.

The judgment is affirmed.

       The plaintiff also alleges that the court violated the doctrine of separation of powers. He argues that the court improperly interpreted General Statutes § 46b-86 (a) to apply only when there is a showing of a substantial change in a party’s financial circumstances. The plaintiff also claims that the court denied his rights to due process and to equal protection. He argues in 1hat regard that the court somehow “monetarily punished [him] because he lacked the funds to hire an attorney” and that he did not understand the divorce papers he signed in 1981.
      The plaintiff cites no relevant authority to guide our resolution of those assertions. “[N]othing more than [a] bare statement, without citation to legal authority, appears in his brief. Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. ” (Internal quotation marks omitted.) Russell v. Russell, 61 Conn. App. 106, 108, 762 A.2d 523 (2000).


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. FRED BENNETT
    (AC 20429)
    Landau, Pellegrino and Daly, Js.
    Argued September 12
    officially released November 6, 2001
   Per Curiam.

The judgments are affirmed.


text:
    STATE OF CONNECTICUT v. MICHAEL DUBOS
    (AC 20167)
    Lavery, C. J., and Mihalakos and Dupont, Js.
    Argued September 12
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MARK RADLEY
    (AC 20566)
    Landau, Mihalakos and Flynn, Js.
    Argued September 24
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    MITCHELL HENDERSON v. COMMISSIONER OF CORRECTION
    (AC 20807)
    Foti, Landau and Dranginis, Js.
    Argued September 20
    officially released November 6, 2001
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. PAUL VARSZEGI
    (AC 20478)
    Landau, Schaller and Mihalakos, Js.
    Argued September 25
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SHERWOOD WAYNE WARREN v. COMMISSIONER OF CORRECTION
    (AC 20336)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSE MARTINEZ
    (AC 20452)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    TOWN OF WATERFORD v. STEPHEN KRIJGER
    (AC 21169)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DARRELL ROGERS
    (AC 19818)
    Mihalakos, Dranginis and Callahan, Js.
    Argued September 28
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MARCIA ANN RUSSELL
    (AC 20567)
    Schaller, Flynn and Shea, Js.
    Argued September 28
    officially released November 6, 2001
   Per Curiam.

The judgment is affirmed.


author: SCHALLER, J.

text:
    FRANCES HARVEY v. DAVID WILCOX
    (AC 21022)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued June 1
    officially released November 20, 2001

      F. Woodward Lewis, Jr., for the appellant (defendant).

      Stephen J. McGovern, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, David Wilcox, appeals from the judgment of the trial court dismissing for lack of a final judgment his appeal from the order of a family support magistrate. In that order, the magistrate ordered the garnishment of the defendant’s wages, but stayed the enforcement of that order to afford the defendant the opportunity to contest a default judgment of paternity that had been rendered against him in Maine. We affirm the trial court’s judgment of dismissal.

The following facts, as alleged in the defendant’s motion for a stay of wage execution and subsequent proceedings thereon, are relevant to our resolution of the defendant’s appeal. On April 29, 1999, the Maine court in Dept. of Human Services v. Wilcox, District Court, Docket No. NEW-96-FM-22 (April 29, 1999), ordered the defendant, by default judgment, to pay retroactive child support, having found on January 15, 1997, that the defendant was the father of the minor child of the plaintiff, Frances Harvey. The defendant alleged that he never received notice of the plaintiffs claim that he was the child’s father. The District Court assessed a child support arrearage in excess of $71,000 and ordered the defendant to pay $181 per week in child support. On May 25, 1999, the plaintiff registered the Maine support order with the state of Connecticut pursuant to the Uniform Interstate Family Support Act, General Statutes § 46b-212 et seq. On June 21,1999, the defendant filed notice to contest the validity of the order pursuant to General Statutes § 46b-213l (c).

At an August 19, 1999 hearing before the family support magistrate, the defendant was ordered to pay $181 per week as child support in accordance with the Maine support order. The defendant sought to attack collaterally the validity of the Maine court order, claiming that paternity had not been established. The magistrate denied him the defense of nonpaternity pursuant to General Statutes § 46b-213. The magistrate, however, stayed the proceedings to give the defendant the opportunity to open the paternity judgment in Maine and to argue nonpaternity as a defense before the Maine court. The magistrate further ordered an execution of a wage garnishment against the defendant. The order was stayed, however, so that the defendant could move to open the underlying paternity judgment in Maine.

Rather than contesting the validity of the Maine judgment, the defendant appealed from the magistrate’s decision to the Superior Court pursuant to General Statutes § 46b-231 (n). *3 In a judgment dated May 1, 2000, the court dismissed the appeal, holding that “[e]ven if the defendant were aggrieved and the magistrate’s decision was a final judgment, the magistrate’s decision would be affirmed because the magistrate court properly concluded that it lacked jurisdiction over the issue of paternity.”

The defendant filed a motion to open or to reargue the judgment of dismissal, claiming that the state had continued its collection efforts by placing a lien on his house and that authorities in the state of Maine denied his request for a blood test to disprove paternity. The court concluded that the lien satisfied the requirement that the defendant be aggrieved, but the magistrate’s decision was not a final judgment because “[t]he magistrate indicated that the defendant was to return for further proceedings after attempting to open the paternity judgment in Maine” and because “[f]urther proceedings before the magistrate could affect the parties’ rights.” The defendant now appeals from the judgment of the court dismissing his appeal.

The defendant argues that the magistrate’s decision to continue proceedings on the defendant’s objection to the docketing of the Maine judgment constitutes a final judgment for purposes of his appeal to the Superior Court. It is axiomatic that appellate jurisdiction is limited to final judgments. General Statutes § 52-263; Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994). 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.” (Internal quotation marks omitted.) Cardona v. Negron, 53 Conn. App. 152, 156, 728 A.2d 1150 (1999). There certainly are gray areas between those orders that are unquestionably final and those that must await the resolution of further proceedings before they can be challenged on appeal. To determine whether a seemingly interlocutory order of a family support magistrate is nonetheless final for purposes of appeal to the Superior Court, this court applies the finality test of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Cardona v. Negron, supra, 156. Under Curcio, an otherwise interlocutory order is immediately appealable where it (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, supra, 31. Applying the test set forth in Curcio, we conclude that the court properly found that the order of the family magistrate was not a final judgment.

The magistrate’s order did not terminate the proceeding. The magistrate acknowledged that nonpaternity is not available as a defense in proceedings involving the registration of interstate support orders; see General Statutes § 46b-213; and thus continued the matter to allow the defendant to contest the order in the originating state, where the restriction conceivably would not be an issue. Because a matter by definition cannot be simultaneously continued and concluded, it is dubious that a continuance would constitute a final judgment. See Black’s Law Dictionary (6th Ed. 1990) (defining “continuance” as “[t]he adjournment or postponement of a session, hearing, trial, or other proceeding to a subsequent day or time”). The order also did not so conclude the rights of the parties such that further proceedings could not affect them. By allowing the defendant to attack the Maine judgment, the magistrate accorded the defendant leave to pursue legal proceedings that potentially could vacate the judgment that provided the predicate for proceedings in Connecticut.

This court addressed a similar claim in Wann v. Lemieux, 36 Conn. App. 138, 648 A.2d 889 (1994). In Wann, we concluded that “[t]he Superior Court order setting aside the nonsuit, finding that . . . evidence should have been admitted and remanding the matter to the magistrate for further proceedings in the paternity and support matter, did not terminate a separate and distinct proceeding, nor did it conclude the rights of the parties so that further proceedings cannot affect them. . . .

“The underlying paternity action is still pending, there has been no adjudication of paternity, and further proceedings before the magistrate could affect the rights of the parties. The Superior Court’s order has the practical effect of opening the paternity action and continuing that proceeding. The court ordered the magistrate to admit . . . evidence, but it did not dictate the outcome of the paternity and support action itself. The Superior Court decision does not satisfy either prong of the Curcio test.” (Citation omitted.) Id., 141.

As in Wann, the magistrate’s decision, by its own terms, stayed the wage execution order to afford the defendant time to contest the validity of the support order in the state of Maine, and thus constitutes an interlocutory order. If the defendant successfully attacks the Maine judgment, the outcome of the Connecticut proceeding has not been determined. That leads us to conclude, as the court concluded in a similar factual scenario in Wann, that the defendant has failed to satisfy either part of the test under Curcio and that the stay order is not a final judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-213 provides: “A party whose paternity of a child has been previously determined by or pursuant to law may not plead nonpaternity as a defense to a proceeding under sections 46b-212 to 46b-213v, inclusive.”

       The following colloquy occurred in the proceeding before the family support magistrate:
      “[Defendant’s Counsel]: Well, I understand Your Honor to mean, I’ll send my client back to see if he can reopen the default judgment and get a blood test [in Maine], and you’ll stay this pending our doing that? And then if—
      “The Court: Yes, we’ll give you a couple of months to — to get some progress on that, yes.
      “[Defendant’s Counsel]: All right. And you’ll stay the wage execution pending that?
      “The Court: I assume I have the jurisdiction to do that.
      “[Counsel for support enforcement division of Superior Court]: Yes.
      “The Court: Okay, so we’ll certainly do that.
      “[Assistant Attorney General]: Yes, Your Honor, just for clarification for our purposes. You’re just staying the execution of the wage—
      “The Court: Of the wage—
      “[Assistant Attorney General]: — garnishment, the—
      “The Court: — we’re doing nothing else, right.
      “[Counsel for support enforcement division of Superior Court]: Not the order.
      “[Assistant Attorney General]: — the order’s still running, still accruing and all that stuff, okay.
      “The Court: Okay? So did you have a date in mind . . . that will give you sufficient time . . . .”
      The magistrate set a date of December 9,1999, for the defendant’s counsel to return to her court, to which counsel replied, “That would be plenty [of time]. ... I’ll agree to report to the court on that date . . . .”

       General Statutes § 46b-231 (n) (1) provides: “A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.”

       General Statutes § 52-263 provides in relevant part: “[I]f either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment of the court or of such judge . . . .”

       See footnote 1.