author: DiPENTIMA, J.

text:
    TOWN OF TRUMBULL v. LINDA A. PALMER, EXECUTRIX (ESTATE OF MICHAEL A. KNOPICK), ET AL.
    (AC 26988)
    DiPentima, McLachlan and Lavine, Js.

      Argued September 7
    officially released November 20, 2007

      Helene B. Knopick, pro se, the appellant (defendant).

      Robert G. Golger, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

In this municipal tax lien foreclosure action, the pro se defendant, Helene B. Knopick, appeals from the judgment of the trial court foreclosing her interest in a parcel of real estate. On appeal, the defendant claims that the court (1) made improper factual findings that (a) went beyond the scope of the pleadings, (b) were not supported by the evidence and (c) conflicted with provisions of the General Statutes that provide for the taxation of real property, (2) improperly calculated the amount of the debt at the time of rendering judgment, (3) improperly denied her request to open the judgment and (4) improperly denied her request to continue the trial. We affirm the judgment of the trial court.

The following facts and procedural history inform our disposition of the defendant’s appeal. On May 27, 1989, Michael A. Knopick (decedent) executed his last will and testament, leaving to his wife, the defendant, all of his interest in their residence located at 29 Haverhill Road in Trumbull (property). The decedent died on June 20, 1989. The Probate Court admitted the decedent’s will to probate on January 19, 1990, and appointed the defendant’s daughter, Linda A. Palmer, executrix in accordance with the terms of the will. Thereafter, it appears that the Probate Court never issued, and Palmer never filed in the land records, a certificate of devise or other decree evidencing the defendant’s absolute title to the property. Consequently, the owners of record, as reflected in the land records, remained in the names of the decedent and the defendant.

On October 1, 1990, and annually thereafter through October 1, 2000, the plaintiff, the town of Trumbull, assessed and levied a tax on the property and billed the owners of record, the decedent and the defendant. No part of the taxes assessed during that time period were paid when they came due. Accordingly, the plaintiff filed certificates of lien in the land records for each delinquent tax.

On August 21, 2002, the plaintiff served a complaint on the defendant, seeking to foreclose eleven municipal tax liens against the property. The defendant filed an answer and counterclaim on March 15, 2004. After the trial court ordered the defendant to revise her counterclaim on June 8, 2004, the plaintiff, on November 2, 2004, filed a motion for nonsuit against the defendant for failing to revise her counterclaim. The court granted the plaintiffs motion, and notice of the nonsuit was issued on January 10, 2005. Subsequently, on April 22, 2005, the defendant filed a motion to open the nonsuit, which the court denied on September 7, 2005.

Following a hearing on September 13, 2005, the court rendered judgment of foreclosure by sale with a sale date of November 12,2005. The court found the amount of debt to be $110,479.74 and the value of the residence to be $365,000. Notice of the judgment was issued on September 27, 2005. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found her to be the sole owner of the property and, therefore, solely liable for the entire tax deficiency owed to the plaintiff. Specifically, the defendant argues that the court’s finding was improper because (1) the plaintiff alleged in its complaint that the defendant shared ownership of the property with her husband’s estate, creating an irrefutable judicial admission that the defendant was not the sole owner, (2) the court’s finding was not supported by sufficient evidence produced at the hearing and (3) the court’s finding, even if supported by sufficient evidence, was not consistent with the statutoiy scheme of municipal taxation. The essence of the defendant’s claim is that she should not be solely liable for the full amount of the delinquent taxes levied against the property during the period in question because the land records continued to reflect that her deceased husband shared an interest in the property. We are not persuaded by the defendant’s arguments.

A

The defendant first contends that, by finding her to be the sole owner of the property, the court materially departed from the plaintiffs judicial admission that she shared ownership with the decedent’s estate. We disagree.

“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . .

“[T]he interpretation of pleadings is always aquestion of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . [T]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 562, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006).

“Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. ... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” (Internal quotation marks omitted.) Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 670-71, 931 A.2d 348 (2007).

With respect to foreclosures of tax liens, Practice Book § 10-70 (a) (1) provides: “In any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove: (1) the ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made.” In its complaint seeking a foreclosure of its tax liens, the plaintiff alleged that “[o]n or about [the dates of assessment], [t]he Estate of Michael A. Knopick and [the defendant] were the record owners of [29 Haverhill Road in Trumbull].”

Despite the plaintiffs allegation, an estate cannot hold title to property and cannot participate in a foreclosure action against the property. See Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 600, 490 A.2d 1024 (estate not legal entity, natural or artificial person but merely name to indicate sum total of assets and liabilities of decedent), cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). By naming the estate as co-owner, however, the plaintiff essentially alleged that the estate’s beneficiaries co-owned the property with the defendant, but the identity of those beneficiaries was unknown to the plaintiff at the time of pleading. Thus, the complaint provided sufficient notice that the issues before the court included the identity of the estate’s beneficiaries, the extent of their interests in the property and the amount of the delinquent taxes attributable to them. Any evidence that the decedent devised his entire interest in the property to the defendant fell within the scope of the plaintiffs complaint. Further, the defendant suffered no prejudice from the court’s finding because a sale, upon approval by the court, forecloses any interest in the property that she may later assert, regardless of the extent of that interest or the means by which she obtained it. Accordingly, we conclude that the court did not act contrary to or materially depart from the allegations in the plaintiffs complaint by finding the defendant to be the sole owner of the property by virtue of devise.

B

The defendant next argues that the court’s finding was clearly erroneous because the plaintiff offered insufficient evidence to prove that the defendant alone held title to the property. In support of her claim, the defendant contends that the decedent’s will and the decree from the Probate Court admitting the will to probate could not establish her ownership of the property without a certificate of devise from the Probate Court and without a more specific description of the property devised in the will. We disagree.

The following additional facts are pertinent to the defendant’s claim. At trial, the plaintiff introduced eleven certificates of lien and a sworn affidavit, all of which identified the decedent and the defendant as the record owners of the property on each assessment date at issue. In addition, the plaintiff introduced a certified copy of a decree from the Probate Court of Trumbull, dated January 18, 1990, that the decedent died on June 20,1989, and that his last will and testament, dated May 27, 1989, was admitted to probate. Finally, the plaintiff introduced a certified copy of the decedent’s will, which conveyed his entire estate to the defendant.

We begin by setting forth the standard of review applicable to claims of insufficient evidence. “An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) Anderson v. Whitten, 100 Conn. App. 730, 739, 918 A.2d 1056 (2007). “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.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 779, 890 A.2d 645 (2006).

On the basis of the evidence before it, the court reasonably could have found that the defendant acquired the decedent’s title to the property. The certificates of lien showed that the decedent and the defendant shared title to the property until the decedent’s death on June 20, 1989. Through his will, the decedent devised his entire interest in the property to the defendant. Title to the decedent’s share of the property subsequently vested in the defendant on January 18, 1990, when the decedent’s will was admitted to probate. See Cardillo v. Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992).

We are not persuaded by the defendant’s argument that additional evidence in the form of a certificate of devise is necessary to prove that title was transferred from the decedent to the defendant. That argument directly contradicts the holding of Cardillo v. Cardillo, supra, 27 Conn. App. 212, in which we concluded that “[t]he recording of a probate certificate of devise or descent is necessary only to perfect marketable title. . . . Such a probate certificate is not a muniment of title, however, but merely a guide or pointer for clarification of the record.” Accordingly, we conclude that the court’s finding that the defendant was the sole owner of the property on each of the dates when the taxes at issue were assessed is not clearly erroneous.

C

The defendant next claims that, even if there was sufficient evidence before the court to find her the sole owner of the property during the relevant time period, the court improperly found her liable for the entire amount of the delinquent taxes in conflict with Connecticut’s statutory scheme for taxation. Specifically, the defendant claims that regardless of whether she was the sole owner of the property for the tax years in question, if a portion of the taxes are erroneously assessed to a cotenant, she is not liable for that portion of the taxes erroneously assessed. We find no merit in the defendant’s argument.

“Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 283, 928 A.2d 566 (2007). “[T]he legislature is always presumed to have created a harmonious and consistent body of law .... This requires the court to read statutes together when they relate to the same subject matter .... Accordingly) [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. ... In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result. . . . When more than one construction [of a statute] is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.” (Citations omitted; internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 652-53, 931 A.2d 142 (2007).

First, to the extent that the defendant’s claim challenges the validity of the lien or the underlying assessment, levy and attempt to collect the tax, the defendant’s claim is not preserved. Practice Book § 10-70 (b) provides in relevant part: “Any claimed informality, irregularity or invalidity in the assessment or attempted collection of the tax, or in the lien filed, shall be a matter of affirmative defense to be alleged and proved by the defendant.” No such affirmative defenses were before the court. Accordingly, the defendant may not pursue such a claim on appeal. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 33, 717 A.2d 77 (1998) (“[w]e ordinarily do not address issues that have not been properly raised before the trial court”).

We also find no support in the language of the General Statutes for the defendant’s claim that, regardless of who holds title to the property, the plaintiffs recovery from her is limited by the fact that the assessment, tax bill and certificate of lien identify another individual as co-owner of record. The relevant statutes read as follows. “Any interest in real estate shall be set by the assessors in the list of the person in whose name the title to such interest stands on the land records. . . .” General Statutes § 12-64 (a). “Upon completion ... of the final assessment list, the town shall levy a tax on such fist . . . .” General Statutes § 12-122. “All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed . . . .” General Statutes § 12-161. “Each collector shall mail or hand to each individual from whom taxes are due a bill for the amount of taxes for which such individual is liable . . . .” General Statutes § 12-130 (a). “The interest of each person in each item of real estate, which has been legally set in his assessment list, shall be subject to a lien for that part of his taxes laid upon the valuation of such interest . . . .” General Statutes § 12-172.

Under the defendant’s construction of these statutes, taxes on real estate interests are a debt owed from the person in whose name the title to such interest stands on the land records, not from the person who holds title to the property if the land records do not identify the actual titleholder. In other words, she claims that she is not liable to pay taxes on the property until the land records properly reflect her interest in the property. This interpretation conflicts with both legislative intent and our case law. See General Statutes § 1-2z. Our legislature has expressed a clear preference for recording real property conveyances. See General Statutes § § 12-68 and 47-10. Under the defendant’s interpretation, grantees of property would be disinclined to record their property interests in order to avoid tax liability. Moreover, this court has previously held that “owners are bound to take notice of the property they own and pay the taxes thereon and defend against foreclosure for delinquent taxes, even though the property is assessed to unknown persons or to other persons.” (Internal quotation marks omitted.) Berger v. Fitzgerald, 55 Conn. App. 138, 146, 739 A.2d 287, cert. denied, 251 Conn. 922, 742 A.2d 358 (1999). Accordingly, taxes assessed on real property interests become a debt due from the person who holds title to the interest taxed, regardless of whether that interest is recorded in the land records. We conclude that the court properly admitted evidence that the land records failed to capture a conveyance to the defendant from the decedent, and there was sufficient evidence that the defendant was liable to the plaintiff for that portion of the tax liability assessed in the name of her husband.

II

The defendant next claims that the court improperly calculated the debt in an amount in excess of the amounts stated in the certificates of lien and certain amounts that were time barred and improperly awarded certain attorney’s fees. At trial, the plaintiff introduced evidence that the defendant’s total liability included taxes, interest and fees in the amount of $110,479.74. The defendant did not object to the introduction of this evidence and offered no evidence of her own to rebut those amounts. We have thoroughly reviewed the record in this case and find adequate support for the court’s calculation of the debt. See Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 779.

III

The defendant claims that the court improperly denied her motion to open the nonsuit on September 7, 2005. We are not persuaded.

The following procedural history provides the backdrop to the defendant’s claim. On October 7, 2002, all of the defendants were defaulted for failure to appear. On May 29, 2003, the defendant filed an appearance, setting aside the default against her. After a series of delays caused by the defendant’s failure to file timely pleadings, the defendant filed her answer and counterclaim on March 15, 2004.

On April 19, 2004, the plaintiff filed a request that the defendant revise her counterclaim. On June 8, 2004, over the defendant’s objection, the court ordered the defendant to revise her counterclaim by July 12, 2004. On July 14, 2004, and again on August 2, 2004, the defendant filed motions for an extension of time to file her revised counterclaim. On October 15, 2004, nearly six months after the plaintiff filed its request, the court set a final deadline of November 1, 2004, for the defendant to revise her counterclaim. Once again the defendant failed to revise her counterclaim by the deadline, and the plaintiff filed a motion for a nonsuit, which the court granted on December 20, 2004. Notice of the nonsuit was issued on January 10, 2005. On April 22, 2005, the defendant filed a motion to open the nonsuit and a request to amend her counterclaim. The court denied the motion to open the nonsuit on September 7, 2005.

“The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).

“Generally speaking, a nonsuit is the name of a judgment rendered against a party in a legal proceeding upon his inability to maintain his cause in court, or when he is in default in prosecuting his suit or in complying with orders of the court.” (Internal quotation marks omitted.) Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 359, 519 A.2d 76 (1986). “The nonsuit forecloses the plaintiff from further prosecution of the action . . . .’’Id.

General Statutes § 52-212 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” See also Practice Book § 17-43 (a). “The granting of relief under this statute, when its provisions are properly complied with, lies within the sound discretion of the trial court. But the orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause for relief under the statute. . . . Such relief ordinarily should not be granted if the failure to comply with an order of the court resulted from the moving party’s own negligence.” (Internal quotation marks omitted.) Segretario v. Stewart-Warner Corp., supra, 9 Conn. App. 361-62.

The defendant alleged in support of her motion to open the nonsuit that the court’s ruling dated October 15, 2004, did not require her to revise her counterclaim because the court sustained her objections to two of the plaintiffs requested revisions, that she never consented to revise her counterclaim with respect to all the other revisions requested by the plaintiff and that the ruling was, in general, “confusing and unclear.”

Our review of the record reveals that on April 19, 2004, the plaintiff filed a request seeking fourteen separate revisions of the defendant’s counterclaim dated March 15, 2004. On May 10, 2004, the defendant filed her objection to the plaintiffs request to revise. The objection stated that the defendant “objects to some of [the] [plaintiffs requests to revise” her counterclaim. (Emphasis added.) Further, the objection expressly consented to twelve of the plaintiffs fourteen requested revisions. In its ruling dated October 15, 2004, the court noted the defendant’s consent to those twelve requests and ordered the defendant to revise her counterclaim within fifteen days. The defendant failed to submit a revised counterclaim before the fifteen day deadline had expired. On the basis of these facts, the court reasonably concluded that its ruling on October 15, 2004, was clear and unambiguous and that the defendant was not prevented by mistake, accident or other reasonable cause from revising her counterclaim. Accordingly, we conclude that the court exercised proper discretion by denying the defendant’s motion to open the nonsuit.

IV

The defendant last claims that the court improperly denied her motion for a continuance dated September 7, 2005. In support of her claim, the defendant states that she unduly was surprised by the plaintiffs sudden withdrawal of its action with respect to Palmer, in both her individual capacity and as executrix of the estate. We are not persuaded.

“[ T]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. . . . Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 724, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006).

Before trial on September 13, 2005, the court heard argument from the parties on the defendant’s motion for a continuance. According to the defendant, she needed time to secure counsel to represent her at the trial because, as part of her trial strategy, she planned to rely on Palmer to conduct all of the examinations of witnesses and make all necessary arguments to the court. Our review of the record reveals that as early as March 15, 2004, the defendant requested, and the court granted, time for her to retain counsel. Instead of hiring an attorney, however, the defendant opted to rely on a codefendant to represent the interests of both parties at trial. The court properly concluded that the defendant’s sudden doubts about the successfulness of her trial strategy did not provide a sufficient basis for granting her request for a continuance. Accordingly, the court did not abuse its discretion by denying the defendant’s request.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       The complaint named several additional defendants, none of whom is a party to this appeal. We therefore refer in this opinion to Knopick as the defendant.

       See Cardillo v. Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992) (“[i]t is fundamental jurisprudence that title to real estate vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate”).

       In other words, the plaintiffs complaint essentially alleged that the defendant shared ownership of the residence with herself, as devisee. The plaintiff offered the decedent’s will and the decree admitting the will to probate to prove exactly what it alleged.

       We note that on June 23, 2003, the plaintiff withdrew its foreclosure action with respect to the estate, and on July 15, 2003, the court denied the plaintiffs motion to cite in Palmer, in her capacity as executrix of the estate, as an additional party defendant. The plaintiff did not amend its complaint to allege that the defendant was the sole owner of the property. The defendant argues that the court improperly found her to be the sole owner of the property in light of the fact that the complaint alleged ownership of someone who was not a party to the foreclosure action.
      “[T]he legislature enacted [General Statutes] § 49-30 ... to address the omission of a party from a foreclosure action. The statute first provides that, when there has been a foreclosure and a party with an interest has been omitted from that proceeding, for any reason, all parties who were foreclosed by the judgment are bound as fully as if no omission had occurred and do not retain any equity or right to redeem.” (Emphasis in original.) Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 233, 896 A.2d 797 (2006).
      Thus, the issues before the court remained the same. The plaintiff continued to pursue its foreclosure action with respect to the defendant, while the interests of any beneficiaries who were not otherwise named in the complaint were no longer in jeopardy.

       We note that the defendant appears pro se. “It is the policy of this court to allow great latitude to a litigant who, either by choice or necessity, represents himself in legal proceedings, so far as such latitude is consistent with the just rights of any adverse party. . . . This is because [a] party who, unskilled in such matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated, is very ill advised and assumes a most difficult task. . . . Nonetheless, while the court exhibits some degree of leniency toward apro se appellant, it cannot entirely disregard established principles of law.” (Internal quotation marks omitted.) Weinberg v. Weinberg, 89 Conn. App. 649, 655, 874 A.2d 321 (2005). It would be unduly prejudicial to the plaintiff in this case to allow the defendant to raise on appeal defenses that were not before the trial court.

       On the basis of the limited record before us, and in light of the defendant’s failure to seek an articulation, the record is inadequate for review of the defendant’s claim that certain attorney’s fees should not have been awarded. See Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61, 71-72, 924 A.2d 160 (2007). Accordingly, we decline to review that aspect of the defendant’s claim.

       To the extent that the defendant now challenges the admissibility of the plaintiffs evidence, Practice Book § 60-5 provides in relevant part: “[This] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” “In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . Our rules of practice make it clear that counsel must object to a ruling of evidence [and] state the grounds upon which objection is made ... to preserve the grounds for appeal. . . . These requirements are not simply formalities. . . . We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection . . . .” (Internal quotation marks omitted.) State v. Swain, 101 Conn. App. 253, 270, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007). Accordingly, we decline to review the defendant’s claim because she failed to preserve it at trial.

       Practice Book § 17-20 (c) provides in relevant part: “[MJotions for default for failure to appear shall be acted on by the clerk upon filing and shall not be printed on the short calendar. The motion shall be granted by the clerk if the party who is the subject of the motion has not filed an appearance. ... If the defaulted party files an appearance in the action prior to the entry of judgment after default, the default shall automatically be set aside by operation of law. . . .”

       The defendant’s motion to open includes several additional allegations that address the merits of her objections to the plaintiffs request to revise and not the merits of her motion to open.

       The defendant also states that she was unfairly surprised by the plaintiffs claim that she was the sole owner of the property. We address this issue in part I A.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FRED E. FINCH ET AL. v. STEVEN P. EARL ET AL.
    (AC 27866)
    DiPentima, Gruendel and Borden, Js.
    Argued September 18
    officially released November 27, 2007

      Julie L. Earl, pro se, the appellant (defendant).

      V. Michael Simko, Jr., with whom, on the brief, was Lizinka C. Benton, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendant Julie L. Earl appeals, pro se, from the declaratory judgment of the trial court approving the report of an attorney trial referee in favor of the plaintiffs, Fred E. Finch and Catherine M. Finch. We affirm the judgment of the trial court.

The case has an unusual procedural history. The plaintiffs and the defendants, Steven P. Earl, Julie Earl, David Hurtuk, Veronica Wong and Tammy Silva, own properties located on Old Fawn Hill Road, a private road in Monroe. The defendants have a mutual right-of-way over this private road, which crosses the plaintiffs’ property, for purposes of ingress and egress to the defendants’ respective properties. After a dispute arose regarding the plaintiffs’ plan to make certain improvements to their property, the plaintiffs commenced this declaratory judgment action. They asked for a declaratory judgment to determine: (1) the dimensions of the defendants’ rights to ingress and egress; (2) the extent of the defendants’ permissible use of the right-of-way; and (3) whether the plaintiffs could make certain improvements to their property.

With respect to the Earls, the dispute was over whether the plaintiffs could erect an earthen berm along the right-of-way, which would interfere with the Earls’ prior practice of parking their cars on the right-of-way. The Earls filed four special defenses alleging that they have a prescriptive easement over a portion of the property in question, that they had acquired the property by adverse possession, that they have an express easement for the use of the property and that they have an easement by necessity for use of the property. They also filed a counterclaim for a declaratory judgment, claiming a prescriptive easement, adverse possession and an easement by necessity.

The matter was referred by agreement to an attorney trial referee, who heard evidence on December 11,2002. At that point, the plaintiffs had named only the Earls as defendants; therefore, only they appeared as defendants. There then ensued a long delay, during which Silva, Wong and Hurtuk were added as defendants. A second day of hearings took place on November 16, 2005, at which the only defendants who appeared were Silva and Wong, both appearing pro se. Thereafter the parties filed posttrial briefs, the last of which was filed on February 1, 2006.

The attorney trial referee filed his report with the court on May 31, 2006. He found that the plaintiffs’ proposed earthen berm would not limit or otherwise restrict the Earls’ use of the right-of-way and that it would not prohibit them from using their right-of-way for a purpose reasonably necessary for its use. The attorney trial referee, therefore, recommended that the court grant the plaintiffs’ request for a declaratory judgment that the plaintiffs be permitted to construct the earthen berm as they had proposed.

An examination of the record indicates that the attorney trial referee’s findings and recommendations were based on evidence establishing the following facts. The plaintiffs and the defendants are neighbors who live on Old Fawn Hill Road, which is a private road that crosses the plaintiffs’ property. The defendants have a deeded right-of-way to use the road for purposes of ingress to and egress from their properties. The plaintiffs propose to establish an earthen berm. The plaintiffs asserted at trial that the purpose of the berm is to interfere with the Earls’ prior practice of parking their vehicles in the right-of-way and to block the plaintiffs’ view of the defendants’ property. Emergency vehicles need at least fifteen feet of roadway to gain access to the properties, and there are no town regulations that govern the erection of a berm on an owner’s property.

The Earls filed an objection to the report on four grounds: (1) the attorney trial referee’s conclusions could not be reached “upon a proper application of the law to the subordinate facts found”; (2) insufficient facts had been found to support the findings of the attorney trial referee; (3) the report did not address the plaintiffs’ relief requested to define the dimensions of the ingress and egress to the defendants’ property and the extent of the defendants’ permissible use of the plaintiffs’ land; and (4) the report did not address the defendants’ special defenses, especially those claiming an express easement and easement by necessity. The court found the objections to be without merit, overruled them and rendered judgment accepting the report. The Earls moved for articulation of the court’s order overruling their objections. The court denied the motion for articulation, and the Earls did not file a motion for review of that denial. This appeal by the defendant followed.

The defendant raises four claims on appeal: (1) the attorney trial referee took an unreasonable amount of time in filing his report; (2) the report was in disregard of the zoning laws and the evidence; (3) the report failed to address the issues presented at the hearing; and (4) the plaintiffs improperly changed the issues in the case without giving notice thereof to the defendant. We have fully reviewed as much of the record as the parties have provided and have carefully considered the defendant’s claims in light of that record. That review persuades us that the defendant’s claims are without merit, that the attorney trial referee’s findings and conclusions are reasonably supported by the record and that the court’s judgment must, therefore, be affirmed.

The judgment is affirmed.

       The defendants in the trial court, were Steven P. Earl, Julie Earl, David Hurtuk, Veronica Wong and Tammy Silva. At times, Veronica Wong appears in the record as Veronica Hurtuk. We refer to her herein as she identified herself at trial, namely, as Veronica Wong.

        Although the Earls were represented by counsel at trial, Julie Earl, who is not an attorney, appeals pro se on her behalf. She purports to appeal, as well, on behalf of the other defendants. Because she is not an attorney, however, Julie Earl may not appear on behalf of the other defendants. See Expressway Associates II v. Friendly Ice Cream, Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62 (nonattomey may not appear pro se in representative capacity), cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). We therefore consider her as the sole appellant and refer to her herein as the defendant.

       Through their attorney, the Earls waived their right to appear at the November 16,2005 hearing and rested their claims on the evidence submitted at the first hearing. Wong and Silva argued against the reasonableness of a stone wall that the plaintiffs proposed to build on their property. Specifically, Wong and Silva argued that any such stone wall would interfere with the plowing of snow from the road and with the ability of emergency vehicles to gain access to the defendants’ properties. The attorney trial referee found that the defendants did not provide any persuasive evidence that a stone wall would prohibit emergency vehicles from accessing the defendants’ properties, and the court accepted the attorney trial referee’s recommendation. This dispute is not before us in this appeal.

       The parties both assert that the plaintiffs’ reply brief, filed January 17, 2006, was the last filed posttrial brief. The record demonstrates, however, that the last brief was filed February 1, 2006.

       The attorney trial referee did not, however, append to his report a map of the area in dispute. Further, he did not indicate the physical extent of the easement or the proposed location of either the berm or the stone wall in his report. At trial, however, Catherine Finch testified that, with regard to the berm, the plaintiffs intended to remove an existing fence and replace it with the proposed berm.

       We note that several exhibits from the first day of trial have been lost. The parties were able to furnish copies of some of the missing exhibits, however. Specifically, they furnished copies of various town land records regarding the easement. On the basis of the detailed discussion of the other missing exhibits at trial, as recorded in the transcript, as well as the exhibits that were provided, we conclude that the absence of the missing exhibits does not make a material difference in the outcome of the appeal. See Moss v. Foster, 96 Conn. App. 369, 371 n.2, 900 A.2d 548 (2006); Lisiewski v. Seidel, 95 Conn. App. 696, 700 n.2, 899 A.2d 59 (2006).


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. MARCUS FAIR
    (AC 28464)
    DiPentima, Gruendel and Borden, Js.

      Argued September 18
    officially released November 27, 2007

      Richard W. Callahan, special public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, Vicki Melchiorre, senior assistant state’s attorney, and Chris Pelosi, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Marcus Fair, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (l). He alleges instructional impropriety and evidentiary error. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the late evening of January 13, 2004, Dwayne Knowlin and Joshua Mims left Knowlin’s home on Nelson Street in Hartford to get something to eat. As they walked home, the defendant approached. The defendant wore a black mask that concealed his head; his face was visible from his lips to his eyebrows. The defendant stopped in front of Knowlin and Mims, took out a black revolver and opened fire. Knowlin and Mims immediately ran. After jumping a fence and with the defendant no longer in sight, Knowlin collapsed, informing Mims that he was shot. Knowlin’s breathing became labored, and Mims called for an ambulance. Knowlin died that evening.

The next day, Howard Fair, the uncle of the defendant, heard rumblings from family members that the defendant was involved in the shooting. He confronted the defendant, who admitted to shooting Knowlin. The defendant explained that he “had a beef’ with the “kids on Nelson Street” and alleged that they had shot at him and his cousin a month earlier. The defendant told his uncle that he wanted revenge. As Howard Fair recounted, the defendant stated that “he was going to get back at them, no one in particular, just said he’s gonna, you know, they shot at him so he’s going to go shoot back at them.” Fearing for his nephew’s safety, Howard Fair encouraged the defendant to turn himself into the authorities. On January 16, 2004, the defendant and his uncle entered the Hartford police department. At that time, Howard Fair gave a statement implicating the defendant in Knowlin’s death, and the defendant was arrested. The police subsequently presented a photographic array to Mims, who immediately identified the defendant as the shooter. At trial, Mims testified that he had known the defendant for approximately five years and that he observed the defendant’s face “a whole minute” before the shooting.

Following trial, the jury found the defendant guilty of both murder and criminal possession of a firearm, and the court rendered judgment accordingly. The defendant was sentenced to a total effective term of sixty-five years imprisonment. From that judgment, the defendant now appeals.

I

The defendant claims that the court improperly “failed to give a requested instruction on the limited use of the defendant’s prior felony conviction.” We do not agree.

The following additional facts are relevant to the defendant’s claim. In order to obtain a conviction of criminal possession of a firearm in violation of § 53a-217 (a) (1), the state was required to prove, inter alia, that the defendant had been convicted of a felony prior to the events of January 13, 2004. At trial, the following stipulation was presented to the jury: “The defendant and [the] state stipulate and agree to the following facts regarding [c]ount [t]wo of the [s]tate’s [i]nformation. [The defendant] was previously convicted of a felony [that] was properly recorded, and judgment entered on August 14, 2002.” Following the close of evidence, the defendant submitted a request to charge that included a limiting instruction concerning that stipulation. Thereafter, the court instructed the jury as follows: “Stipulation. State’s exhibit thirty-five is a stipulation between the parties. This means that the parties agree to the facts contained in the stipulation even though no evidence was introduced about them. The parties agree that regarding count two of the information, the defendant was previously convicted of a felony and that such conviction was properly recorded and judgment entered on August 14, 2002. Any facts to which the parties have stipulated or agreed you will treat as proven. However, it is still up to you to decide what weight or importance those facts or evidence have, if any, in deciding the guilt or nonguilt of the defendant with respect to ground two. Multiple charges. The accused is charged in two counts. You will have noted that each charge against the accused is set forth in the information in a separate paragraph. That is legal language for saying that the accused is charged with committing two separate offenses or crimes. Each count alleges a separate crime for convenience of the trial in one formal charge or information. It will be your duty to consider each charge or count separately. If you conclude that the defendant is guilty of one particular count, then you cannot automatically conclude that he must be guilty of the other count, as that would be a violation of your duties and oath as a juror.”

After concluding its instructions, the court specifically inquired as to whether the defendant had any objections. Counsel for the defendant stated: “Your Honor, not an objection, but we did file a request and it was, basically, for a limiting instruction ... on count two in regard to the . . . stipulated felony that it not be applied, in any way, to count one. I’m reading quickly—I was listening and reading quickly through the court’s charge. I don’t believe there was that particular limiting instruction.” The court replied: “No, I think I did mention there, too, that . . . the charge on multiple charges, where I instruct them that they must evaluate each count separately, will take care of that.” Although the defendant did not disagree with that assertion at trial, he does so now.

The standard of review for claims of instructional impropriety is well established. “ [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . [W]e must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003).

Although the defendant maintains that no limiting language was included in the court’s instructions, the transcript reveals otherwise. The court specifically instructed the jury on the stipulation concerning the defendant’s prior felony conviction, stating in relevant part that “[t]he parties agree that regarding count two of the information, the defendant was previously convicted of a felony .... [I]t is still up to you to decide what weight or importance those facts or evidence have, if any, in deciding the guilt or nonguilt of the defendant with respect to ground two.” (Emphasis added.) Moreover, the court explained to the jury that the defendant was charged in two counts and that it was “your duty to consider each charge or count separately.” Those instructions together adequately addressed the concern raised in the defendant’s request to charge. Viewing the charge as a whole, we conclude that it is not reasonably possible that the jury was misled into applying the stipulation to the murder charge contained in count one of the information. To the contrary, we presume that the jury followed the court’s instructions and considered the stipulation only with respect to count two of the information. See State v. Clark, 264 Conn. 723, 734, 826 A.2d 128 (2003).

II

The defendant also claims that the court abused its discretion in excluding evidence of prior inconsistent identification statements by Mims. The standard of review governing that claim is well settled. “The admissibility of evidence, including the admissibility of a prior inconsistent statement ... is a matter within the . . . discretion of the trial court. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by [an appellate] court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 736-37, 799 A.2d 1056 (2002).

Generally, the credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness. See State v. Avis, 209 Conn. 290, 302, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); Beardsley v. Wildman, 41 Conn. 515, 516 (1874). Under our rules of evidence, it is necessary to lay a foundation prior to examining a witness about the allegedly prior inconsistent statement. Conn. Code Evid. § 6-10 (b) (“[i]n examining a witness concerning a prior inconsistent statement, whether written or not, made by the witness, the statement should be shown to or the contents of the statement disclosed to the witness at that time”). Indeed, “Connecticut favors the laying of a foundation . . . .” Id., commentary. “The purposes of [that] requirement are to avoid unfair surprise to the adversary; to save time, since an admission by the witness may make extrinsic proof unnecessary; and to give the witness a fair chance to explain the discrepancy.” 1 C. McCormick, Evidence (6th Ed. 2006) § 37, p. 158.

Our rules of evidence also specifically address the situation in which a party seeks to introduce extrinsic evidence of a prior inconsistent statement. Section 6-10 (c) of our evidence code provides that “[i]f a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.” In State v. Saia, 172 Conn. 37, 372 A.2d 144 (1976), our Supreme Court expounded on that precept: “The impeachment of a witness by extrinsic evidence is somewhat limited. Not only must the inconsistent statements be relevant and of such a kind as would affect the credibility of the witness . . . but generally a foundation should be laid at the time of cross-examination. ... In this state, we have no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him. From early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid. . . . The trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case.” (Citations omitted.) Id., 45-46; accord State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988).

After the state presented its case-in-chief, the defendant called his sole witness, Officer Sylvia Hernandez of the Hartford police department. During direct examination, counsel for the defendant attempted to introduce evidence of four statements made by Mims to Hernandez concerning his description of the shooter. Specifically, the defendant sought to introduce extrinsic evidence that (1) Mims described the shooter as having a “medium complexion,” (2) Mims described the shooter’s mask as a “black mask,” (3) Mims described the shooter as “all dressed in black” and (4) Mims described the shooter as a “black Jamaican male.” Because the defendant confronted Mims with the fourth statement during cross-examination, the court permitted the defendant to question Hernandez about Mims’ description of the shooter as a “black Jamaican male.” As to the first three statements, the court noted that neither the statements nor the contents thereof were disclosed to Mims at the time he testified. It stated: “You had the opportunity to impeach him with that when he was here, and you didn’t do it. Now you want to impeach him through an independent witness without having impeached him when [he testified].” Accordingly, the court excluded evidence of those statements.

Our thorough review of the record and the respective arguments of the parties persuades us that the court’s determination was proper. The defendant had ample opportunity to confront Mims with the aforementioned extrinsic evidence and chose not to do so. We are mindful that “[t]he trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case.” State v. Saia, supra, 172 Conn. 46. The court did not abuse that discretion in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “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 . . . .”

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm or electronic defense weapon when such person possesses a firearm or electronic defense weapon and (1) has been convicted of a felony . . . .”

       Harold Wayne Carver II, the slate’s chief medical examiner, testified that the cause of Knowlin s death was “a gunshot wound of the chest and abdomen.”

       In addition, the stipulation was entered into evidence as an exhibit. That exhibit indicated that the stipulation pertained to count two of the information.

       The request to charge provided in relevant part that “evidence [of the prior conviction] is not relevant, and does not relate, to the charge of murder as alleged in the first count of the state’s information. ... It is not related to the first count of the information in any way.”


text:
    TERRANCE WORTHAM v. COMMISSIONER OF CORRECTION
    (AC 27776)
    McLachlan, Gruendel and Lavine, Js.
    Argued September 17
    officially released November 27, 2007

      Michael A. Roussos, special public defender, for the appellant (petitioner).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom were Susann E. Gill, senior assistant state’s attorney, and, on the brief, Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Terrance Wortham, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. We dismiss the appeal.

Following a jury trial, the petitioner was convicted of attempt to commit murder with a firearm in violation of General Statutes §§ 53a-49, 53a-54a (a) and 53-202k, assault in the first degree with a firearm in violation of General Statutes §§ 53a-59 (a) (5) and 53-202k, carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 and criminal possession of a firearm in violation of General Statutes § 53a-217. The petitioner appealed directly from that judgment of conviction, which we affirmed. State v. Wortham, 80 Conn. App. 635, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004).

On December 8,2005, the petitioner filed an amended petition for a writ of habeas corpus that alleged ineffective assistance of trial counsel. A habeas trial followed. By memorandum of decision filed April 26, 2006, the court concluded that the petitioner had not satisfied his burden of proving deficient performance on the part of his counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Accordingly, the court denied the petition for a writ of habeas coipus. The court subsequently denied the petition for certification to appeal, and this appeal followed.

Before we may reach the merits of the petitioner’s claim that the court improperly decided the issue raised in his petition for a writ of habeas corpus, he first must establish that the court abused its discretion in denying the petition for certification to appeal. See Sadler v. Commissioner of Correction, 90 Conn. App. 702, 703, 880 A.2d 902, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). A petitioner satisfies that substantial burden by demonstrating “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

On appeal, the petitioner argues that the habeas court abused its discretion by failing to apply a presumption of innocence in his habeas proceeding. That claim merits little discussion. In Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994), our Supreme Court held that “[t]he presumption of innocence . . . does not outlast the judgment of conviction at trial.” Id., 423. The court explained that “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. . . . [I]n the eyes of the law, [the] petitioner does not come before the [c]ourt as one who is innocent, [but, on the contrary, as] one who has been convicted by due process of law .... Any other conclusion would be inconsistent with the fact that our habeas corpus jurisprudence places a heavy burden on the petitioner to establish that, notwithstanding his conviction, he is entitled to a new trial. . . . Thus, we reject the conclusion that the petitioner was entitled ... to the presumption of innocence.” (Citations omitted; internal quotation marks omitted.) Id., 423-24. The habeas court properly relied on that precedent in the present case.

After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.


author: McLACHLAN, J.

text:
    WILLIAM PAGAN v. COMMISSIONER OF CORRECTION
    (AC 27806)
    McLachlan, Harper and Lavine, Js.
    Argued September 24
    officially released November 27, 2007

      Elio C. C. Morgan, special public defender, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

McLACHLAN, J.

The petitioner, William Pagan, appeals following the denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus in which he alleged that he was denied the effective assistance of trial counsel. We dismiss the appeal.

The petitioner pleaded guilty to possession with intent to sell more than one ounce of heroin in violation of General Statutes § 2 la-278 (b) pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). See State v. Pagan, 75 Conn. App. 423, 425-26, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003). On July 12, 2000, the petitioner was sentenced in accordance with the plea agreement, negotiated by his counsel, to eighteen years in prison with a mandatory minimum of five years to serve. According to the agreement, the petitioner did not have the right to argue for a lesser sentence at the time of sentencing. The petitioner’s conviction was upheld on direct appeal to this court. Id., 432.

During these criminal proceedings, the petitioner, who has a history of felony convictions, was represented by his New York counsel of long standing, who was admitted pro hac vice, and by Connecticut counsel. Both counsel were present at the time the petitioner’s plea agreement was negotiated and at the hearing when the petitioner entered the plea and the agreement was accepted by the court. Pro hac vice counsel was present at sentencing. At the habeas trial, Connecticut counsel testified that he arrived at the courthouse on the day of sentencing, which was scheduled to take place at 2 p.m. Unbeknownst to him, however, the petitioner was sentenced in the morning. The habeas court did not find that Connecticut counsel’s performance was deficient.

In the usual ineffective assistance of counsel case, a habeas petitioner must show that his counsel was ineffective and such ineffectiveness prejudiced the petitioner in that but for the ineffective assistance there would have been no conviction. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That standard has been modified for ineffectiveness claims that result from guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). In such cases, “to satisfy the ‘prejudice’ requirement, the [petitioner] must show that there is a reasonable probability that, but for counsel’s err ors he would not have pleaded guilty and would have insisted on going to trial.” Id., 59.

The reasonable probability requirement does not require a petitioner to show that counsel’s deficient conduct more likely than not altered the outcome of the case, but he must establish “a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 694. In this case, the petitioner goes beyond the normal claims of ineffectiveness in connection with a guilty plea. Here, the petitioner sounds Gideon’s trumpet, claiming that his Connecticut counsel’s failure to appear at sentencing was, in effect, a denial of counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). This claim, however, sounds a false note. The petitioner has not cited nor have we found a case in which the absence of local counsel to accompany pro hac vice counsel is construed to be the equivalent of a denial of counsel. In fact, the cases we have located are to the contrary. Although, as the petitioner argues, Practice Book § 2-16 does require that “a member of the bar of this state must be present at all proceedings,” the mere fact that there has been noncompliance with this rule governing pro hac vice practice is not a denial of counsel. “[UJnlike serious substantive defects, mere technical defects need not result in per se [s]ixth [a]mendment violations.” United States v. Novak, 903 F.2d 883, 888 (2d Cir. 1990). In fact, “[o]nly where the attorney has never been admitted to practice before any court at all, and thus should be considered a non-lawyer, have courts found per se violations of the right to counsel.” Cole v. United States, 162 F.3d 957, 958 (7th Cir. 1998).

“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. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. ... 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. . . . Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To determine whether the court abused its discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citation omitted; internal quotation marks omitted.) Bellino v. Commissioner of Correction, 75 Conn. App. 743, 747, 817 A.2d 704, cert. denied, 264 Conn. 915, 826 A.2d 1159 (2003).

Because the petitioner has failed to meet his threshold burden of establishing that the issue he raises is debatable among jurists of reason, we cannot find that the court abused its discretion in denying certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       “Practice Book § 2-16 [also] provides in relevant part: An attorney who is in good standing at the bar of another state . . . may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court, to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state . . . .” (Internal quotation marks omitted.) State v. Gasser, 74 Conn. App. 527, 529 n.4, 812 A.2d 188, cert. denied, 262 Conn. 954, 818 A.2d 781, cert. denied, 540 U.S. 823, 124 S. Ct. 153, 157 L. Ed. 2d 43 (2003).


author: WEST, J.

text:
    GINA MCCARTHY, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. WARD LEONARD ELECTRIC COMPANY, INC., ET AL.
    (AC 27454)
    McLachlan, Gruendel and West, Js.
    Argued September 25
    officially released November 27, 2007

      Elizabeth T. Arana, with whom were Douglas A. Cohen and, on the brief, Mark S. Baldwin and Khristopher M. Gregoire, for the appellants (defendants).

      Scott N. Koschwitz, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendants, Ward Leonard Electric Company, Inc. (Ward Leonard), and WL Real Estate Company, LLC (WL Real Estate), appeal from the judgment of the trial court denying their motion to open the judgment upon default. On appeal, the defendants claim that the court improperly (1) denied their motion to open the judgment upon default without having held an evidentiary hearing regarding disputed issues of fact and witness credibility, and (2) found that they had violated the state’s hazardous waste management regulations, § 22a-449 (c)-100 et seq. of the Regulations of Connecticut State Agencies. We do not agree with the defendants. We conclude that the court properly denied the defendants’ motion to open the judgment upon default. Because the first issue is dispositive of this appeal, it is unnecessary to discuss the second issue.

The court found the following facts. The plaintiff, Gina McCarthy, the commissioner of environmental protection, filed a lawsuit against the defendants after many attempts to compel the defendants to remedy numerous violations of state hazardous waste regulations. Ward Leonard’s twenty violations stemmed from its manufacture of electric motors at its facility in Thomaston. WL Real Estate’s seven violations arose from its responsibility for the postclosure management of two inground hazardous waste lagoons at the Thomaston site.

After the department of environmental protection (department) discovered violations of the postclosure management requirements by WL Real Estate, it issued a first notice of violation on August 20,2003. This notice required a response from WL Real Estate within thirty days. WL Real Estate did not respond. Therefore, in early October, 2003, Christine M. Gleason, a sanitary engineer in the waste engineering and enforcement division within the department, called and spoke to Susan Castle, the vice president of human resources and business systems for Ward Leonard. Castle said she would contact Gleason in the near future about the alleged violations. By October 29, 2003, Gleason still had not received a response to the first notice. She, therefore, sent Castle a letter by certified mail, which stated that a response was necessary by November 12, 2003, or the department may take “ ‘formal action.’ ”

On January 20, 2004, the department issued a second notice of violation, citing three additional violations of the postclosure management requirements. This notice was sent to WL Real Estate and ARCADIS Geraghty & Miller, Inc. (consultant), an environmental consultant hired by the defendants to assist in postclosure management of the hazardous waste lagoons. In February and March, 2004, the defendants and the consultant submitted to the department information to correct some of the violations. In April, 2004, Robert C. Isner, Sr., then the acting director of the bureau of waste management, mailed a letter to Castle, which acknowledged the submissions and identified further information required to correct the remaining violations. Furthermore, the letter stated that if the department did not receive the information within thirty days, it would assess its options to resolve the violations, “ ‘including referring the matter to the [o]ffice of the [a]ttomey [g]eneral.’ ”

On March 26, 2004, the department mailed to Castle a third and final notice of violation, which outlined numerous hazardous waste management violations at the defendants’ Thomaston facility. This notice also required a response within thirty days. In a cover letter addressed to Castle, Isner stated that the significance of the violations had prompted the department to propose a consent order and payment of a civil penalty by the defendants. The letter also stated that if the department did not hear from Castle by April 9, 2004, the department would assume that the defendants did not want to settle the violations through a consent order and that “ ‘other enforcement options will be recommended.’ ”

The defendants never confirmed whether they would enter into a consent order. In April, 2004, Gleason called and left a voice message for Castle regarding the defendants’ decision to enter into a consent order, but Castle never returned her call. In May, 2004, Gleason prepared a letter addressed to Castle for Isner to sign, explaining that if the department did not hear from the defendants within five days after receiving his letter, the department would assume they did not want to settle the violations and would consider other enforcement options. The defendants received the letter on May 12, 2004, but did not respond.

Isner also attempted to contact Jon Carter, president of Ward Leonard, in an attempt to resolve the violations. On July 9, 2004, Isner called Carter, but Carter was unavailable. Instead, Isner spoke with Castle, to whom he explained that the outstanding violations had not been corrected and that the case appeared suitable for referral to the office of the attorney general for civil action. Castle stated that she believed the outstanding violations had been corrected and confirmed the defendants’ desire to resolve the matter.

On July 22, 2004, Castle met with Gleason and Isner in a final attempt to confirm whether the defendants would enter into a consent order to resolve the violation. At the meeting, Isner asked Castle to provide within two or three weeks a written commitment signed by Carter to enter into a consent order. By October 25, 2004, Carter had still not provided a written commitment. That same day, Isner called Carter and was told he was unavailable. Isner left a voice message in which he confirmed that the department had not received a written commitment from Carter to enter into a consent order and advised him that a quick response was necessary to avoid the filing of a lawsuit. Isner also stated that he would mail to Carter a letter containing the substance of his voicemail. On October 25, 2004, the department mailed such a letter to Carter, with a copy to Castle.

On or about October 28, 2004, Castle called and left a message for Gleason. Castle stated that she had received the October 25, 2004 letter and claimed that all the violations had been corrected. On November 2, 2004, Gleason returned Castle’s call and reviewed all of the outstanding violations with her and discussed what information the defendants had to provide to correct the violations. Castle stated that she would respond to the outstanding violations. Castle also stated that she would speak to Carter when he returned to the office about a written commitment to enter into a consent order. On November 2 and 8, 2004, Castle submitted further information to Gleason addressing the outstanding violations. The submission did not address all of the outstanding violations, nor did it contain a written commitment from Carter to enter into a consent order. The department referred this matter to the office of the attorney general in January, 2005.

The defendants were served with a writ of summons and complaint through their agent for service on April 28, 2005. Castle received copies of the summons and complaint on May 4, 2004. On May 5, 2005, Castle called assistant attorney general Krista E. Trousdale, who had brought the action on behalf of the plaintiff. Castle claimed that the action had been brought in error because the defendants had corrected all the violations. Trousdale responded that Castle was incorrect because Ward Leonard continued to violate three provisions of the hazardous waste management regulations. Trousdale identified the specific violations for Castle and informed her that resolution of the action would require the negotiation and payment of a civil penalty for the past violations previously corrected. On September 16, 2005, the plaintiff filed a motion for default for failure to appear. Castle received copies of the motion for default in late September or early October. Castle ignored the motion for default. On September 29, 2005, the court clerk granted the plaintiffs motion for default for failure to appear against both defendants, and on September 30, 2005, the court issued notice of the entry of default against both defendants. On December 5, 2005, the plaintiff filed a certificate of closed pleadings and claimed the case to the hearing in damages list. On January 19, 2006, the plaintiff filed a motion for judgment, serving copies on both defendants. The defendants did not respond to the motion for judgment, and on January 24, 2006, the motion was granted. On the following day, the defendants filed an answer and a motion to set aside the default. On January 31, 2006, the defendants filed a motion to open the judgment upon default along with a supporting affidavit from Castle. The court denied the motion on June 22, 2006. This appeal followed. Additional facts will be set forth as necessary.

The defendants claim that the court improperly denied their motion to open the judgment upon default without having held an evidentiary hearing regarding disputed issues of fact and witness credibility. We disagree.

We first set forth the legal principles that guide our review. “[I]n granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of discretion.” (Internal quotation marks omitted.) Triton Associates v. Six New Corp., 14 Conn. App. 172, 175, 540 A.2d 95, cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 284, 925 A.2d 451 (2007). We conclude that the court did not abuse its discretion in denying the defendants’ motion to open the judgment upon default.

Castle received the summons and complaint for the lawsuit and called the attorney general’s office to inquire as to why the summons and complaint had been served. She stated, “I believed that I had resolved the issues at the heart of this lawsuit with the [department], based upon my misunderstanding of prior discussions and correspondence with Robert Isner and Christine Gleason of the [department].” Trousdale attested in her affidavit that she received the telephone call from Castle, who stated that she believed that WL Real Estate and Ward Leonard had corrected all of the violations and that the action was brought in error. Trousdale told Castle that this belief was untrue and that the defendants continued to violate three provisions of the hazardous waste management regulations. Trousdale then specifically identified the continuing violations for Castle. In an articulation of its decision, the court stated, “[g]iven the history of this matter and Ms. Castle’s course of dealing in this matter, the court does not find her affidavit credible.” The court, therefore, denied the defendants’ motion to open the judgment. The court held that the defendants did not have a good defense at the time the judgment was rendered and that the defendants were not prevented from appearing because of mistake, accident or other reasonable cause. We agree with the court.

According to General Statutes § 52-212 (a), “[a]ny judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” See also Practice Book § 17-43. In other words, “[tjhere must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause.” (Internal quotation marks omitted.) Triton Associates v. Six New Corp., supra, 14 Conn. App. 175.

In the present case, Ward Leonard claimed that it had a good defense to the action at the time the judgment was rendered. Specifically, Ward Leonard claimed it had corrected the violations that serve as the basis for this action and that it had failed to comply with certain regulations because it had a “good faith belief’ that certain regulatory requirements did not apply to it. The court held that neither of these proffered defenses was a good defense, as required by the statute and the rales of practice. The court found that the action was premised not just on Ward Leonard’s three alleged continuing violations but also on the seventeen alleged prior, long-term violations that Ward Leonard had corrected as of the commencement of the action. The plaintiff had commenced this action to correct the alleged continuing violations, to hold Ward Leonard accountable for the alleged prior violations and to ensure that such violations would not recur. Therefore, Ward Leonard’s defenses that it had corrected the violations and that some regulatory requirements did not apply to it were not good defenses. Furthermore, the court found that Ward Leonard’s defense that certain hazardous waste management regulatory requirements did not apply to it was invalid. Because these statutes are strict liability statutes, the defendants’ “good faith belief” regarding the applicability of these statutes is irrelevant to the defendants’ liability. WL Real Estate did not allege that it had a good defense before the judgment was rendered. The court held, therefore, that because Ward Leonard’s defenses were invalid and WL Real Estate did not allege that it had a good defense, the defendants failed to show that they had a good defense before judgment was rendered.

The court also found that the defendants failed to satisfy the second prong of the test laid out in the statute in that they were not prevented from appearing by mistake, accident or other reasonable cause. Castle attested in her affidavit that she believed the issues at the heart of the lawsuit had been resolved, the lawsuit had been filed in error and that the lawsuit would be resolved without any further action on behalf of the defendants. As previously stated, however, the court did not find Castle’s affidavit credible because of her course of dealing in the matter and its history. Castle also claimed that she suffered extreme emotional stress, which impaired her ability “to address and appreciate the nature and ramifications of this lawsuit.” The court found that this claim regarding Castle’s mental state might be persuasive but for the fact that Carter was aware of the matter, as well. Every time the department succeeded in communicating with him, he managed to address the matter and to delegate responsibility to Castle. The court found that Castle did not truly believe that the issues at the heart of the lawsuit had been resolved. Additionally, the court found the argument that Castle was under extreme emotional stress to be unpersuasive. Therefore, the court found that the defendants’ neglect of this action constituted gross negligence. The court noted that the defendants were given both legal and actual notice of the commencement of the action, but they simply chose not to appear.

We agree with the court. First, we conclude that the court did not abuse its discretion in failing to hold an evidentiary hearing regarding disputed issues of fact and witness credibility. Neither the statute nor our rules of practice require that the court hold an evidentiary hearing when affidavits conflict regarding a motion to open the judgment upon default. Ordinarily, the court cannot make credibility determinations on the basis of the record alone. “[I]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007). In the present case, however, Castle’s affidavit was not only at odds with the affidavits submitted by the plaintiff, but it was also in conflict with the record. When the court was deciding whether to grant the defendants’ motion to open the judgment, it had at its disposal the affidavits submitted by both parties, and the countless letters that had been sent between and among the parties. Therefore, the court was able to view the letters sent by Gleason and Isner to Castle and Carter and also the letters sent by Castle and Carter to Gleason and Isner. The letters demonstrated the fact that Castle and Carter had been told repeatedly, for months, that they were not in compliance with the regulations in question. They were given several opportunities to remedy the situation, but they refused to do so. Therefore, Castle’s claim that she was unaware of the defendants’ noncompliance with the regulations was unpersuasive. These letters provided the court with sufficient evidence to conclude reasonably that the defendants were not acting diligently, if at all, to resolve the matter at hand. We conclude that the court was acting within its discretion in discrediting Castle’s affidavit given the history of the matter and Castle’s course of dealing in the matter.

Second, we conclude that the defendants did not have a “good defense,” as neither of their proffered defenses was valid. Furthermore, we conclude that the defendants failed to appear out of negligence, not due to mistake, accident or other reasonable cause. The defendants were provided with notice of the action. They were served with the summons and complaint, and Castle also spoke with Trousdale, who informed Castle that the action had been brought appropriately and explained to Castle the regulations that the defendants had violated. Instead of filing an appearance, the defendants chose to ignore the action altogether. The court did not abuse its discretion in denying the defendants’ motion to open the judgment upon default.

“Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence.” (Internal quotation marks omitted.) Woodruff v. Riley, 78 Conn. App. 466, 471, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d. 474 (2003). In the present case, we conclude that the defendants were simply negligent in failing to appear in the action. They also failed to assert a valid defense and, thus, failed to meet the second prong of the test set forth in § 52-212 (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       The violations were (1) failure to conduct annual hazardous waste determinations in violation of § 22a-449 (c)-102 (a) (2) (A) of the Regulations of Connecticut State Agencies, (2) failure to record facility inspections in a log or summary in violation of § 22a-449 (c)-102 (b) (2) of the Regulations of Connecticut State Agencies and (3) failure to maintain a written description of employee training in violation of § 22a-449 (c)-102 (a) (2) (K) of the Regulations of Connecticut State Agencies.