author: FREEDMAN, J.

text:
    PATRICK BARD v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19788)
    Spear, Mihalakos and Freedman, Js.

      Argued October 23, 2000
    officially released February 27, 2001

      Michael P. Deneen, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

FREEDMAN, J.

The plaintiff, Patrick Bard, appeals from the judgment of the trial court dismissing his appeal from the decision by the defendant commissioner of motor vehicles (commissioner). The commissioner had ordered the suspension of the plaintiffs motor vehicle operator’s license for one year, pursuant to General Statutes § 14-111c, the driver license compact (compact), following his conviction in Maine for operating a motor vehicle while under the influence of alcohol.

On appeal, the plaintiff claims that the court improperly (1) upheld the hearing officer’s admission into evidence of the documents received from the state of Maine as a basis for suspending the plaintiffs license, (2) drew inferences from the evidence where none had been made by the hearing officer and there was inadequate evidence of the plaintiffs conduct in the record, (3) shifted the burden of proof from the commissioner to the plaintiff by requiring him to assert that the information on the traffic citation was untrue rather than requiring the commissioner to meet the requirements of § 14-111c, (4) found that the requirements of article III of § 14-111c were met and (5) found that the state of Maine had complied with article IV of the compact by identifying the offense that was of a substantially similar nature to that listed in article IV. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On February 11, 1998, the plaintiff, a holder of a Connecticut motor vehicle operator’s license, was arrested in Maine for the offense of operating under the influence of intoxicants in violation of Me. Rev. Stat. Ann. tit. 29-A, § 2411 (West 1996). The plaintiff signed a uniform summons and complaint, which directed that he appear at the District Court in Waterville, Maine, on April 15, 1998. On that date, the plaintiff appeared by counsel and entered a plea of “Not guilty/Deny.” On May 20,1998, the plaintiff changed his plea to “Guilty.” The plaintiff was fined $400 and ordered to serve three days in the Kennebec County jail. The plaintiffs right to operate a motor vehicle in Maine was also suspended for ninety days. On or about June 8, 1998, the adjudications section of the secretary of state, bureau of motor vehicles, for the state of Maine mailed various court documents to the commissioner.

By letter dated July 31, 1998, the commissioner notified the plaintiff that he was summoned to appear at an administrative hearing on September 23, 1998, regarding the Maine proceedings. The notice stated that the purpose of the hearing was “limited to whether you have been convicted of a serious motor vehicle violation in a member state jurisdiction of the Driver License Compact for which Connecticut is required to take suspension action.” The notice further stated that the commissioner “may determine and order that your operator’s license be suspended as it would had such conduct resulted in a conviction in Connecticut.”

Following the hearing, the commissioner suspended the plaintiff’s operator’s license for one year. The plaintiff appealed from that decision to the Superior Court, which dismissed the appeal. The plaintiff then filed the present appeal to this court.

I

The plaintiff first contends that the court improperly upheld the hearing officer’s admission into evidence of the photocopy of the Maine traffic citation at the administrative hearing. We disagree.

We initially note that “administrative agencies are not strictly bound by technical rules of evidence. . . . In the particular situation considered here, the rule generally followed is that documents giving notice of conviction of a traffic violation, forwarded by the state in which the violation occurred, need not be formally exemplified to sustain the suspension or revocation of an operator’s license by the home state.” (Citations omitted.) Hickey v. Commissioner of Motor Vehicles, 170 Conn. 136, 141, 365 A.2d 403 (1976). In Hickey, a case also involving a Maine conviction for operating under the influence of intoxicating liquor, our Supreme Court upheld the admission into evidence of photostatic copies of the abstract of the record of conviction in Maine and the notice of suspension in Maine, which had been sent to the commissioner of motor vehicles. The court stated that the “photostatic copy reproduced the original abstract, which bore the name and address of the plaintiff, the nature of the offense, the judgment rendered, the suspension of the right to operate in Maine, and certification by the clerk as a true abstract of the Maine District Court. The copy of the notice of suspension showed the record of conviction upon appeal and was signed by the secretary of the state. Thus, the photostatic copies provided adequate notice of the conviction of the plaintiff for the offense of operating a motor vehicle while under the influence of intoxicating liquor.” Id., 141-42.

Similarly, in Kostrzewski v. Commissioner of Motor Vehicles, 52 Conn. App. 326, 727 A.2d 233, cert, denied, 249 Conn. 910, 733 A.2d 227 (1999), a case involving a Florida conviction for operating a motor vehicle while under the influence of alcoholic beverages, the plaintiff challenged the admission into evidence of an exhibit that contained several documents. Those documents included “ ‘the original traffic ticket citing the plaintiff on the drunk driving charge.’ The Florida ‘DUI Uniform Traffic Citation’ provide [d] the date and time of the offense, the statute violated and the blood alcohol level of the plaintiff, and contain[ed] the signatures of the arresting officer and the plaintiff. The other side of the document [was] an abstract of the court disposition and indicate[d] the name of the presiding judge and [contained] an original signature, although there [was] no indication of the signer’s title or position. The information from the Florida trial court indicate[d] that the plaintiff pleaded nolo contendere, was found guilty, fined and placed on probation and had her driving privileges revoked in Florida for a period of six months.” Id., 331. We held in Kostrzewski that the information was reliable and probative and, therefore, properly admitted. Id., 333.

In the present case, the hearing officer admitted a photocopy of the Maine uniform summons and complaint. That document, signed by the plaintiff and the arresting police officer, indicates the date and time of the offense, and specifies that the violation was operating under the influence in violation of Me. Rev. Stat. Ann. tit. 29-A, § 2411 (West 1996). The reverse side of the document indicates the plaintiffs initial plea of not guilty on April 15, 1998, followed by the plaintiffs change in his plea to guilty on May 20, 1998. The document further indicates that a $400 fine was imposed on the plaintiff, that he was sentenced to three days at the Kennebec County jail and that his license was suspended for ninety days. The document purports to be attested, as it contains a stamp indicating that it is a true copy and is signed. The hearing officer also admitted the Maine notice of suspension dated May 20,1998, which was signed by the judicial authority and the plaintiff. In light of the foregoing authorities, we conclude, as did the court, that the Maine documents were properly admitted into evidence.

II

The plaintiff next argues that the court improperly drew inferences that were not drawn by the hearing officer and that there was inadequate evidence of the plaintiffs conduct in the record. We disagree.

“[Jjudicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. [See] General Statutes § 4-183 (j) (5) and (6). 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. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . .” (Internal quotation marks omitted.) Id. “If . . . the specific evidence cited in support of an administrative officer’s ultimate factual finding is inadequate to support that ultimate factual conclusion, a reviewing court should search the record of the entire proceedings to determine whether it does in fact contain substantial evidence from which the ultimate factual finding could reasonably be inferred.” Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 601, 590 A.2d 447 (1991).

Article IV (a) of the compact, § 14-111c, titled “Effect of Conviction,” provides in relevant part: “The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state, in the case of convictions for ... (2) [d]riving a motor vehicle while under the influence of intoxicating liquor or narcotic drug, or under the influence of any other drug to a degree that renders the driver incapable of safely driving a motor vehicle . . . .” (Emphasis added.)

According to the plaintiff, because Maine makes it an offense to drive with a blood alcohol content (BAC) of 0.08 percent and Connecticut makes it an offense to drive with a BAC of 0.10 percent, the plaintiffs conduct, had it occurred in Connecticut, would not necessarily have resulted in a conviction for operating a motor vehicle while under the influence of intoxicating liquor. The plaintiff contends that no evidence was presented at the administrative hearing, and the hearing officer made no findings as to the conduct of the plaintiff. Specifically, the plaintiff points out that the hearing officer made no findings regarding the plaintiffs BAC. The plaintiff argues, therefore, that the court improperly drew inferences to reach its conclusion that the plaintiffs BAC exceeded Connecticut’s legal limit.

On the basis of our review of the record, we conclude that the commissioner’s decision to suspend the plaintiffs license is supported by substantial evidence. Specifically, the record contains a substantial basis of fact to support the reasonable inference that the plaintiff submitted to a blood alcohol test and failed it, and that his BAC was, in fact, over Connecticut’s legal limit of 0.10 percent. Although the plaintiffs BAC is not indicated on the documents received from Maine, the court was required to search the record to determine whether it contained substantial evidence from which that ultimate factual finding reasonably could be inferred. In that regard, the court reasonably inferred, on the basis of the fine and the punishment imposed on the plaintiff, that his BAC was greater than 0.15 percent and, therefore, that his conduct in Maine would have resulted in a conviction in Connecticut.

The Maine statute provides, in relevant part, that an individual with no previous operating under the influence offenses within a ten year period shall receive a “fine of not less than $400, except that if the person failed to submit to a test, a fine of not less than $500 . . . .” Me. Rev. Stat. Ann. tit. 29-A, § 2411 (5) (A) (1) (West 1996). On May 20,1998, the plaintiff was ordered to pay a fine of $400. The court reasonably inferred, on the basis of the fine, that the plaintiff did not refuse to take the test; rather, the plaintiff took the test and failed. The Maine statute further provides that a defendant shall be incarcerated for “[n]ot less than 48 hours” when the defendant has a BAC of 0.15 percent or more, was exceeding the speed limit by thirty miles per hour or more, eluded or attempted to elude an officer or was operating with a passenger under twenty-one years of age. Here, the plaintiff was sentenced to three days in the Kennebec County jail. The court noted that the uniform summons and complaint detailed only one offense, namely, operating under the influence. The court concluded that because the summons did not specify a charge of speeding or of eluding an officer, and because there was no evidence of anyone being with the plaintiff, it can be inferred that the plaintiff had a BAC over 0.15 percent. We cannot say that the inferences drawn and the conclusion reached by the court were not reasonably supported by the record.

III

The plaintiff next claims that the court improperly shifted the burden of proof to him to dispute the lack of information in the traffic citation. According to the plaintiff, by requiring him to assert that the information in the uniform summons and complaint was untrue, the court improperly shifted the analysis away from whether, in reviewing the record, there was substantial evidence presented by the commissioner to support the agency’s decision. We disagree.

Nothing in the record supports the plaintiffs assertion that the court improperly shifted the burden of proof to him. In its memorandum of decision, the court stated: “It is important to note that the plaintiff, although he objected to the admission of the documents at the [motor vehicle] hearing and continues to contest the admission of those documents, has never asserted that the information contained therein was incorrect and never has denied that the signatures on the documents were his.” We do not read that statement as requiring the plaintiff to prove that the information in the summons and complaint was untrue.

As we determined in part I of this opinion, the court properly upheld the admission of the Maine documents as reliable and probative. See Kostrzewski v. Commissioner of Motor Vehicles, supra, 52 Conn. App. 333. We have further held that the agency’s decision was supported by substantial evidence. Id., 335; see Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 343. We therefore conclude that the plaintiffs claim that the court improperly shifted the burden of proof is without merit.

IV

The plaintiff next claims that the court improperly concluded that the requirements of article III of the compact were met. Specifically, the plaintiff argues that the information reported in this case only identified the person arrested and not the person who was convicted, and that the statute under which the plaintiff was convicted is not identified at all. The plaintiff argues, therefore, that the requirements of article III of § 14-111c were not satisfied. We disagree.

As we previously stated, the Maine uniform summons and complaint indicates that the plaintiff was charged with violating Me. Rev. Stat. Ann. tit. 29-A, § 2411 (West 1996). The reverse side of that document indicates the plaintiffs guilty plea on May 20, 1998. There is nothing to indicate that the plaintiff pleaded guilty to anything other than the charge specified on the first side of the uniform summons and complaint. The court, therefore, properly held that the requirements of article III of the compact were met.

V

The plaintiff next argues that the court improperly found that the state of Maine had complied with article IV (c) of § 14-11 lc. Specifically, he argues that by failing to identify which offenses in Maine are of a substantially similar nature to those listed in article IV of the compact, the state of Maine has made the compact unconstitutionally vague and, therefore, unenforceable. We disagree.

In Kostrzewski v. Commissioner of Motor Vehicles, supra, 52 Conn. App. 343, the plaintiff, who had been convicted of operating a motor vehicle while under the influence of alcoholic beverages in Florida, argued that her Connecticut license could not be suspended under the compact unless there was a finding by the trial court, or evidence introduced at the hearing, that the Florida and Connecticut statutes were substantially similar. We rejected the plaintiffs argument, stating in part that “[a]rticle IV (c) of § 14-lllc does not mandate that the Connecticut court determine whether the Florida offense or violation ... is substantially similar to the compact; instead, it mandates that the ‘party state,’ in this case Florida, identify those offenses that are substantially similar in nature to those listed in article IV (a) of § 14-lllc. In this case, the authorities in Florida sent the plaintiffs conviction to the Connecticut commissioner pursuant to the compact. We conclude, therefore, that article IV (c) of § 14-lllc does not require the trial court to make findings of fact regarding whether each party state’s statutes are substantially similar.” Id., 344.

In the present case, the authorities in Maine sent the plaintiffs conviction to the Connecticut commissioner pursuant to the compact. We conclude, on the basis of Kostrzewski, that the court properly found that Maine had complied with article IV (c) of the compact.

The judgment is affirmed.

In this opinion the other judges concurred.

       The identity and title of the individual who signed the document are unclear.

       Me. Rev. Stat. Ann. tit. 29-A, § 2411 (1) (West 1996), provides: “A person commits [operating under the influence], which is a Class D crime unless otherwise provided, if that person operates a motor vehicle:
      “A. While under the influence of intoxicants; or
      “B. While having a blood-alcohol level of 0.08% or more.”

       General Statutes (Rev. to 1997) § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       We conclude in this case that the commissioner’s decision was supported by substantial evidence that the plaintiffs BAC was over .15 percent and, thus, his conduct was in violation of Connecticut law. We therefore need not decide whether a Connecticut resident’s license could be suspended if another state established a culpable blood alcohol level lower than Connecticut’s, and a Conned icut resident is convicted of driving under the influence solely on that basis.

       Me. Rev. Stat. Arm. tit. 29-A, § 2411 (5) (West Sup. 1998), titled “Penalties,” provides in relevant part: “The following minimum penalties apply and may not be suspended:
      “A. For a person having no previous OUI offenses within a 10-year period:
      “(1) A fine of not less than $400, except that if the person failed to submit to a test, a fine of not less than $500;
      “(2) A court-ordered suspension of a driver’s license for a period of 90 days; and
      “(3) A period of incarceration as follows:
      “(a) Not less than 48 hours when the person:
      “(i) Was tested as having a blood-alcohol level of 0.15% or more;
      “(ii) Was exceeding the speed limit by 30 miles per hour or more;
      “(in) Eluded or attempted to elude an officer; or
      “(iv) Was operating with a passenger under 21 years of age; and
      “(b) Not less than 96 hours when the person failed to submit to a test at the request of a law enforcement officer . . . .”

       Article HI of General Statutes § 14-lllc, titled “Reports of Conviction,” provides: “The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or the security; and shall include any special findings made in connection therewith.”

       Article IV (c) of General Statutes? 14-lllcprovides: “If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in subsection (a) of this article, such party state shall construe the denominations and descriptions appearing in said subsection (a) as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this article.”


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    SUSAN BARESE v. JAMES G. CLARK
    (AC 20036)
    Lavery, C. J., and Landau and Mihalakos, Js.
    Argued November 1, 2000
    officially released February 27, 2001

      Norman A. Pattis, for the appellant (plaintiff).

      Terrence M. O’Neill, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Susan Barese, appeals from the summary judgment rendered in favor of the defendant, James G. Clark. On appeal, the plaintiff claims that the trial court improperly concluded that the defendant, an assistant state’s attorney, was immune from a civil action that was based on his dealings with the plaintiff, who was a victim of a crime. Because we conclude that state’s attorneys are immune from tort liability for acts committed in the performance of their duties as state’s attorneys, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issue raised in this appeal. In August, 1994, the plaintiff was the victim of an assault, robbery and burglary in her home. During the course of those crimes, the intruder bit the plaintiff, breaking her skin. The defendant successfully prosecuted the assailant for those and other crimes, resulting in a lengthy prison sentence. The day before the assailant’s scheduled sentencing, the plaintiff and the defendant spoke by telephone. In that conversation, the defendant asked the plaintiff to meet him at his office the next morning prior to the sentencing hearing, and the plaintiff agreed to do so.

When the plaintiff arrived the next morning, the defendant informed her that the presentence investigation (PSI) report contained a statement by the assailant that he was HIV positive at the time of the incident. The defendant, however, informed the plaintiff that he did not believe the assailant’s claim, but rather believed that the assailant said this only in an effort to obtain leniency in sentencing. The defendant also assured the plaintiff that he would not disclose this information.

At the sentencing hearing, however, the defendant revealed to the sentencing court the assailant’s claim that he was HIV positive. The defendant stated in deposition testimony for this case that he did so partially to reveal to the court that “there were two sides to [the assailant’s] claim of having an illness.”

Subsequently, the plaintiff filed a four count complaint against the defendant, alleging breach of the plaintiffs privacy, fraud and intentional infliction of emotional distress. The defendant filed a motion for summary judgment, claiming that because the conduct giving rise to this action was performed by him in his capacity as an assistant state’s attorney, he was immune from civil liability for those actions. The court granted the defendant’s motion as to all counts of the plaintiffs complaint. This appeal followed.

We first state our standard of review in summary judgment matters. “The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“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 [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert, denied, 255 Conn. 909, 763 A.2d 1035 (2000); see also Miles v. Foley, 253 Conn. 381, 385-86, 752 A.2d 503 (2000).

Our Supreme Court, the United States Supreme Court and the federal courts of appeal have long recognized the existence of, and the need for, prosecutorial immunity. Such immunity exists to allow prosecutors at the state and federal level to be free to perform their essential role in the judicial process without the possibility of civil liability hanging over their head as a sword of Damocles.

The United States Supreme Court addressed the issue of a state prosecutor’s amenability to suit under 42 U.S.C. § 1983 in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). Although that case arose under 42 U.S.C. § 1983 and not under state common law, the court engaged in an extensive discussion concerning the existence of common-law immunities for prosecutors, the question at issue here. The court did so because it previously had held in Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), that “immunities well grounded in history and reason had not been abrogated by covert inclusion in the general language of § 1983.” (Internal quotation marks omitted.) Imbler v. Pachtman, supra, 418, quoting Tenney v. Brandhove, supra, 376. As the court in Imbler stated: “The decision in Tenney established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Imbler v. Pachtman, supra, 418.

“The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Id., 422-23.

To allow a prosecutor to be subject to suit for actions performed as an integral part of the judicial process “would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.” Pearson v. Reed, 6 Cal. App. 2d 277, 287, 44 P.2d 592 (1935).

Because the court stated in Imbler that the immunity of prosecutors derived from that of judges, some discussion about the contours of the latter type of immunity is necessary. The court explained this immunity, as well as its connection with that of prosecutors. “The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the common law. See Floyd v. Barker, 12 Coke 23, 77 Eng. Rep. 1305 (1608). Chancellor Kent traced some of its history in Yates v. Landing, 5 Johns. 282 (N.Y. 1810), and this Court first accepted the rule of judicial immunity in Bradley v. Fisher, [80 U.S.] (13 Wall.) 335, [20 L. Ed. 646] (1871). . . . Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials — judge, grand juror, and prosecutor — exercise a discretionary judgment on the basis of evidence presented to them. Smith v. Parman, [101 Kan. 115,165 P. 663 (1917)]; Watts v. Gerking, [111 Ore. 641, 228 P. 135 (1924)]. It is the functional comparability of their judgments to those of the judge that has resulted in . . . prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well.” (Citations omitted.) Imbler v. Pachtman, supra, 424 U.S. 423 n.20. The court concluded its discussion by stating: “The common-law rule of immunity is thus well settled.” Id., 424.

Addressing a claim similar to the one pressed here, namely, that the immunity enjoyed by a prosecutor is not absolute, but instead is qualified, the court in Imbler explained: “If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor’s office would suffer if he were constrained in making every decision by the consequences in terms of his own personal liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate. . . . Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.” (Citations omitted.) Id., 424-25.

The court concluded: “[T]he considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor [who acts] maliciously] or dishonestly] .... But the alternative of qualifying a prosecutor’s immunity would dis-serve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system. Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice.” (Emphasis added.) Id., 427-28. The court also noted: “[W]e find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor’s immunity from actions for malicious prosecution: ‘As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. . . . [I]t has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do then-duty to the constant dread of retaliation.’ Gregoire v. Biddle, 177 F.2d 579, 581 ([2d Cir.] 1949), cert, denied, 339 U.S. 949 [70 S. Ct. 803, 94 L. Ed. 1363] (1950).” Imbler v. Pachtman, supra, 424 U.S. 428. The court concluded that “in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages . . . .” Id., 431.

In the years following the Supreme Court’s decision in Imbler, which set forth the contours of prosecutorial immunity, the United States Supreme Court has had occasion to fill in the outline set forth in Imbler. Summarizing Imbler a decade and one-half later, the United States Supreme Court stated: “[P]rosecutors are absolutely immune from liability . . . for their conduct in initiating a prosecution and in presenting the State’s case . . . insofar as that conduct is intimately associated with the judicial phase of the criminal process .... It was recognized . . . that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.” (Citations omitted; internal quotation marks omitted.) Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991).

Our Supreme Court has relied on these and other United States Supreme Court cases, as well as cases from federal courts of appeal, as providing support for the existence of prosecutorial immunity from civil actions in state court. “It is in part due to the recognition that prosecutors are an integral part of the judicial system that courts have granted absolute immunity from civil actions to prosecutors. Malley v. Briggs, 475 U.S. 335, 342, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986); Imbler v. Pachtman, [supra, 424 U.S. 420]. ‘Prosecutorial immunity derives from the immunity attached to judicial proceedings.’ DeLaurentis v. New Haven, 220 Conn. 225, 241, 597 A.2d 807 (1991). Such immunity covers acts that were performed by a prosecutor as an integral part of the judicial process.” Massameno v. Statewide Grievance Committee, 234 Conn. 539, 567-68, 663 A.2d 317 (1995).

Having set forth the parameters of prosecutorial immunity, we now address the plaintiffs claim on appeal. The plaintiff claims that this court should conclude that the immunity enjoyed by prosecutors does not extend to the actions of the assistant state’s attorney in this case. The plaintiff points specifically to the fact that the acts she complains of, namely, the defendant’s meeting with the plaintiff prior to the sentencing hearing and then his statements to the court in the sentencing hearing, were not part of the defendant’s role as an assistant state’s attorney, but were “surplusage to the prosecutor’s role as an advocate.”

As stated earlier, the United States Supreme Court, in Burns v. Reed, supra, 500 U.S. 486, quoting Imbler v. Pachtman, supra, 424 U.S. 430, stated: “[P]rosecutors are . . . immune from liability . . . for their conduct . . . insofar as that conduct is intimately associated with the judicial phase of the criminal process . . . .” (Citations omitted; internal quotation marks omitted.)

One cannot seriously question that the sentencing hearing is part of “the judicial phase of the criminal process.” Several of our rules of procedure amply demonstrate this fact. These rules provide that the right to appeal from the trial court’s judgment of conviction accrues only upon sentencing. “[I]t shall be the duty of the clerk of the court, immediately after the pronouncement of the sentence ... to advise the defendant in writing of such rights as such defendant may have to an appeal . . . .” (Emphasis added.) Practice Book § 43-30. “In criminal cases where the appeal is from a judgment of conviction, the appeal period shall begin when sentence is pronounced in open court. . . .’’Practice Book § 63-1 (b). It follows that the sentencing hearing, a proceeding preliminary to the imposition of sentence, is part of the judicial phase of the criminal process. Accordingly, the cloak of prosecutorial immunity protects the defendant’s actions in that hearing.

In addition, the PSI report containing the assailant’s claim that he was HIV positive is itself part of the judicial process. Practice Book §§ 43-3 through 43-10 specifically address the preparation and use of a PSI report in the sentencing process. Practice Book § 43-3 (a) provides in relevant part that “the judicial authority shall order a presentence investigation . . . .” (Emphasis added.) Practice Book § 43-7 provides in relevant part that the “report . . . shall be provided to the judicial authority.” Practice Book § 43-9 provides in relevant part that the report “shall be available . . . for use in the sentencing hearing.” Practice Book § 43-10 (1) provides in relevant part that the court “shall afford the parties an opportunity to . . . explain or controvert the presentence investigation report ... or any other document relied upon by the judicial authority in imposing sentence. . . .” (Emphasis added.) This provision envisions that the court will rely on the PSI report in determining the sentence to impose. The defendant’s actions at the sentencing hearing, in which he undertook to explain the PSI report relied on by the judicial authority, are, therefore, an integral part of the judicial process.

Because the hearing at which the defendant made the statements that are at the root of the plaintiffs claim was “intimately associated with the judicial phase of the criminal process”; (internal quotation marks omitted) Burns v. Reed, supra, 500 U.S. 486; we conclude that the mantle of prosecutorial immunity protected the defendant throughout that hearing. We thus conclude that the court properly found that “there is no genuine issue of material fact as to [the defendant’s] role in this matter and [that] he did not abandon his prosecutor’s role by addressing the criminal defendant’s HIV claim at the sentencing hearing . . . .” Accordingly, the court properly rendered summary judgment in the defendant’s favor.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because this case is before us on appeal from the granting of a motion for summary judgment, we adopt the facts articulated by the court in its memorandum of decision on the motion for summary judgment. The plaintiff has not claimed the existence of any dispute as to those facts as the basis for her appeal.

       Although the assailant was a defendant in the criminal matter, we refer to him as the “assailant” to avoid confusion with the defendant here.

       The PSI is a document that is made available to the sentencing judge for use in determining the appropriate sentence.

       The “sword of Damocles” refers generally to impending disaster.

       Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party ipjured in an action at law, suit in equity, or other proper proceeding for redress. . . .”


text:
    WENDELL MINNIFIELD v. COMMISSIONER OF CORRECTION
    (AC 20108)
    Lavery, C. X, and Schaller and Hennessy, Js.
    Argued October 30, 2000
    officially released February 27, 2001

      Katharine S. Goodbody, special public defender, for the appellant (petitioner).

      Robin S. Schwartz, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence Mariani, assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVERY, C. J.

The petitioner, Wendell Minnifield, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus in which he alleged ineffective assistance of counsel. He claims that the court improperly determined that (1) his counsel’s investigation prior to the petitioner’s plea of guilty was not insufficient, (2) there was no basis for suppressing the confession of the petitioner, and counsel’s decision not to file a motion to suppress the confession did not prejudice the petitioner, and (3) counsel did not misinform the petitioner regarding his sentence. We affirm the judgment of the habeas court.

The facts underlying the petitioner’s arrest and claim of ineffective assistance of counsel are as follows. On June 21,1995, the Waterbuiy police were called to investigate a motor vehicle accident and possible shooting. When they arrived, they found the victim, a thirty year old male, in the driver’s seat of a vehicle that had struck a telephone pole, with a fatal gunshot wound to his left chest. Police later learned that the victim had been fighting with the petitioner’s cousin. After the fight ended, the victim entered and remained inside his vehicle. The petitioner walked to the driver’s side door and fired three shots at the victim, one of which entered his chest and resulted in his death. After the shooting, the victim tried to drive away, but sped into a telephone pole.

The petitioner, age sixteen at the time, was arrested the following day. He was advised of his rights and confessed to the murder in a written statement to the police. On June 25,1996, the petitioner, represented by attorney Jayne Kennedy, pleaded guilty to murder in the first degree in violation of General Statutes § 53a-54a pursuant to the Alford doctrine. Kennedy advised him to plead guilty. The court sentenced him to a term of imprisonment of forty years.

On February 11,1999, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of counsel by Kennedy. The court denied the petition and granted certification to appeal. This appeal followed.

We must first consider our standard of review. “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).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel . . . .” Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995). In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show “that counsel’s assistance was so defective as to require reversal of [the] conviction . . . .” That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. Id.; see also Henry v. Commissioner of Correction, 60 Conn. App. 313, 316-17, 759 A.2d 118 (2000). “Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Henry v. Commissioner of Correction, supra, 317, citing Strickland v. Washington, supra, 687; see also Fair v. Warden, 211 Conn. 398,402, 559 A.2d 1094, cert, denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).

The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner “show that counsel’s representation fell below an objective standard of reasonableness.” (Internal quotation marks omitted.) Aillon v. Meachum, supra, 211 Conn. 357. In Strickland, the United States Supreme Court held that “[j Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Henry v. Commissioner of Correction, supra, 60 Conn. App. 317-18.

“Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... In the context of a guilty plea, our Supreme Court has stated: [T]he petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence for the defense that was not identified because of ineffective assistance of counsel would have been successful at trial. . . . [The United States Supreme Court stated that in] many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” (Citation omitted; internal quotation marks omitted.) Id., 318.

With that standard of review in mind, we examine each of the petitioner’s claims. Additional facts will be discussed as necessary for the resolution of each claim.

I

The petitioner first claims that Kennedy was ineffective in failing to independently interview and investigate witnesses. Specifically, the petitioner claims that he would not have pleaded guilty had he been informed that two witnesses could have offered evidence contradicting that of the state’s key witness, Antonia Curling. The petitioner further claims that he was prejudiced by Kennedy’s failure to investigate the possible bias of Curling, namely, whether she had criminal charges pending against her, and whether she disliked him because he dated her sister. We disagree.

The following additional facts are necessary for our resolution of this claim. Mark Askew and Donna M. Franco gave statements to the police regarding their eyewitness accounts of the shooting. Both stated that on June 21, 1995, at about 11 p.m. or 11:30 p.m., while riding in a vehicle in the area of North Main Street, they saw a black male wearing a black or blue visor, a flowered shirt and dark colored pants point a gun and shoot three times at a white male in the driver’s seat of a beige, parked car. The witnesses stated that they drove around the block and that when they returned, they saw that the beige car had struck a telephone pole.

Curling, an owner of a business on North Main Street, also witnessed the shooting. She provided a statement that indicated that the victim and another male had been arguing on a street comer at approximately 11 p.m., and that the petitioner, whom she knew as Wendell, had been at the scene. She stated that the petitioner saw the fight and ran briefly into an alley. When he returned to find the fight over, he questioned her as to the victim’s whereabouts, to which she responded that she did not know. When he saw the victim’s car, he walked around it to the driver’s side and shot the victim “at least two times, point blank.” She further stated that the petitioner was wearing a white visor and white pants at the time of the shooting, but that afterward, he returned to the alley and emerged wearing a dark colored hood over his head and dark pants.

At the habeas trial, Kennedy testified that she did not share the statements of Askew or Franco with the petitioner, nor did she recall having reviewed them. The court concluded, however, that the petitioner was not prejudiced by Kennedy’s actions. We agree with the court.

As we have stated, the second prong of the Strickland test requires the petitioner to show that he was prejudiced by counsel’s inadequate representation. Our review of all three statements reveals that those of Askew and Franco corroborate the statement of Curling. All three place a black male, approximately nineteen years old, at the scene of the shooting. Each statement further provides that the male walked to the driver’s side of a beige car and fired a weapon at the victim approximately three times at point blank range. The only discrepancies in the statements involve the description of the petitioner’s clothing and hairstyle. Although Curling said that the perpetrator was wearing a white visor and white pants at the time of the shooting, the other two witnesses said that he was wearing a dark blue or black visor and dark pants. Askew and Franco stated that the perpetrator had dreadlocks, whereas Curling stated, “I believe he has a sort of Afro style.” We note that all of the witnesses saw the petitioner wearing a visor and that Curling said that he had changed into dark colored clothing shortly after the shooting. Curling also knew the petitioner by name and positively identified him.

In light of the minor discrepancies in the witnesses’ statements, the petitioner’s confession and Kennedy’s testimony that her plea recommendation would not have changed if she had reviewed the statements of Askew and Franco, we conclude that the petitioner has failed to show that “discovery of the evidence would have led counsel to change his recommendation as to the plea.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

Kennedy could not recall at the habeas trial if she or her investigator had questioned Curling. In light of the fact that Curling’s statement corroborates the petitioner’s confession, we cannot conclude that Kennedy’s failure to further examine the accuracy of Curling’s statement was prejudicial to the petitioner. Moreover, the petitioner did not present evidence to show that had Kennedy investigated Curling’s potential bias, she would have changed her plea recommendation. See Copas v. Commissioner of Correction, supra, 234 Conn. 156-57. We therefore conclude that the petitioner did not meet his burden under Strickland because he failed to show prejudice resulting from Kennedy’s performance.

II

The petitioner next claims that Kennedy’s performance was ineffective because she failed to file a motion to suppress his confession. The court found that Kennedy’s failure to file a motion to suppress was not so deficient as to prejudice the petitioner. We agree with the court.

As we have stated, the Strickland test requires the petitioner to show that counsel’s performance was deficient and that it was prejudicial. Strickland v. Washington, supra, 466 U.S. 687. “A reviewing court can find against the petitioner on whichever ground is easier.” (Internal quotation marks omitted.) Walton v. Commissioner of Correction, 57 Conn. App. 511, 518, 749 A.2d 666, cert, denied, 254 Conn. 913, 759 A.2d 509 (2000).

In this case, the petitioner failed to present any evidence to the habeas court that, had a motion to suppress been filed, his confession would have been suppressed. Moreover, in light of the fact that Curling named the petitioner as the perpetrator and two other witnesses also placed at the scene of the shooting a young man whose description matched that of the petitioner, we cannot conclude that even if the confession had been suppressed, the outcome would have been different.

We therefore conclude that the court properly found that the petitioner failed to show sufficient prejudice because he did not prove that the outcome would have been different had Kennedy filed a motion to suppress the confession.

Ill

The petitioner next argues that the court improperly denied his claim that Kennedy grossly misadvised him regarding the collateral effect of his sentence. We disagree.

The petitioner testified that when he entered the plea of guilty on the basis of what Kennedy had told him, he expected that he would have to serve only half of the forty year sentence because of his age. Kennedy, on the other hand, testified that although she could not remember exactly what she told the petitioner, she was sure that he would have to serve at least 85 percent of his sentence and that she did not tell him that he would have to serve only 50 percent of his sentence. With respect to this claim, the court found that the petitioner “failed to present any credible evidence that he received ineffective counsel.”

The habeas court is the “sole arbiter of the credibility of witnesses and the weight to be given to their specific testimony. ... It is the right of the trier of fact to draw reasonable and logical inferences from the facts that it finds to be proved. . . . We cannot substitute our judgment for that of the habeas court.” (Citations omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 703, 652 A.2d 1050, cert, denied, 233 Conn. 912, 659 A.2d 183 (1995).

Because nothing in the record supports the petitioner’s contention that Kennedy told him that he would only have to serve half of his sentence, we conclude that the court properly found that her performance was not ineffective.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt, but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” Henry v. Commissioner of Correction, 60 Conn. App. 313,315 n.l, 759 A.2d 118 (2000).

       Franco’s statement is dated June 21, 1995, and Askew’s statement is dated June 22, 1995.


author: MIHALAKOS, J.

text:
    RONALD PRESTON v. LORI A. WELLSPEAK
    (AC 20549)
    Schaller, Mihalakos and Zarella, Js.
    Submitted on briefs October 18, 2000
    officially released February 27, 2001

      Neil Johnson filed a brief for the appellant (plaintiff).

      Susan L. Miller filed a brief for the appellee (defendant).
   Opinion

MIHALAKOS, J.

In this negligence action, the plaintiff, Ronald Preston, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Lori A. Wellspeak. On appeal, the plaintiff claims that the court improperly denied (1) his motion for judgment notwithstanding the verdict and (2) his motion to set aside the verdict. We affirm the judgment of the trial court.

The procedural history is relevant to this appeal. The plaintiff commenced an action against the defendant seeking damages for personal injuries that he allegedly sustained in a motor vehicle accident caused by the defendant’s negligence. In his complaint, the plaintiff alleged that on September 13, 1995, he stopped his vehicle in the northbound lane of Route 5 in Enfield and was waiting to turn left when a southbound vehicle driven by the defendant crossed the center line and struck his vehicle. The plaintiff alleged that as a result of the collision, he (1) sustained “physical, mental and emotional injuries,” including a permanent injury to his lower back, (2) incurred medical expenses for hospitalization, physician’s care and medication, (3) would continue to incur medical expenses in the future and (4) suffered a loss of earnings and future earning capacity. In her answer, the defendant denied that she was liable to the plaintiff and that the plaintiff had sustained any injuries.

At the trial, four witnesses were called to testify: The plaintiff; the defendant; George B. Curry, the plaintiffs chiropractor; and Anthony Spinella, an orthopedic surgeon. From their testimony and the exhibits admitted at trial, the jury reasonably could have found the following facts.

At the time of the accident, it was raining lightly. The defendant was driving south on Route 5 at approximately thirty miles per hour. When she approached within five or six car lengths of the traffic light at the Park Street intersection, the traffic light turned yellow. She immediately applied the brakes, and her vehicle began to skid. She attempted to regain control of her vehicle by pumping the brakes and turning the steering wheel. The wheels of the plaintiffs vehicle did not lock up during the incident. Just prior to the impact, the plaintiff heard skidding and saw the defendant’s vehicle spinning out of control as it was coming toward him. After the impact, paramedics transported the plaintiff to Johnson Memorial Hospital, and later he was transferred to Baystate Medical Hospital, where he was examined further and discharged. Three hours after he was discharged, the plaintiff returned to Baystate Medical Hospital and indicated to the staff that his leg was numb. The numbness in his leg dissipated after a couple of days.

The juiy returned a general verdict in favor of the defendant. The plaintiff timely filed a motion for judgment notwithstanding the verdict and a motion to set aside the verdict. The substantive arguments made in these motions were identical. The court denied both motions and rendered judgment in accordance with the verdict, and this appeal followed.

It is well established that appellate review of a trial court’s denial of a motion for judgment notwithstanding the verdict is limited. Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 178, 646 A.2d 195 (1994). Appellate review of a trial court’s denial of a motion to set aside a verdict is subject to the same limitations. Id. In reviewing the trial court’s denial of each motion, our function is to determine whether the trial court abused its discretion. Id. Absent an abuse of discretion, this court will uphold the denial. With this standard of review in mind, we turn to the plaintiffs claims.

The plaintiffs initial claim is that the court improperly denied his motion for judgment notwithstanding the verdict. We disagree.

“The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied, is considered renewed by the motion for judgment notwithstanding the verdict.” (Emphasis in original.) Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998). Practice Book § 16-37 “provides for a motion for judgment notwithstanding the verdict ‘in accordance with [the party’s] motion for a directed verdict.’ ” Id. The rules of practice do not provide another avenue for a party to move for judgment notwithstanding the verdict.

In the present case, the plaintiff did not move for a directed verdict. Thus, his motion for judgment notwithstanding the verdict was not properly before the court. Accordingly, the court did not abuse its discretion in denying the plaintiffs motion for judgment notwithstanding the verdict.

The plaintiffs final claim is that the court improperly denied his motion to set aside the verdict. We disagree.

When considering a motion to set aside the verdict, this court’s function is to “determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1,10, 633 A.2d 716 (1993). A “court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. . . . This is so because [fjrom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.” (Citations omitted; internal quotation marks omitted.) Id., 10-11.

In his motion to set aside the verdict, the plaintiff claimed only that the jury’s conclusion regarding liability was erroneous and, therefore, that the verdict was against the evidence. In support of his claim, the plaintiff focused on (1) the evidence presented at trial showing that the defendant’s vehicle skidded before impact and (2) the defendant’s testimony indicating that she could not recall whether she had “countersteered” after her vehicle had begun skidding.

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). To have proven his claim of negligence, the plaintiff must have established each of these elements by a preponderance of the evidence. See Carano v. Moomey, 51 Conn. App. 382, 389, 721 A.2d 1240 (1998), citing Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). At trial, the defendant testified that after she had applied the brakes, her vehicle began to skid. Because “evidence of skidding is not, in and of itself, evidence of negligence”; Lowell v. Daley, 148 Conn. 266, 273, 169 A.2d 888 (1961); the plaintiff was required to prove other facts to support his allegation that the defendant breached a duty of care owed to him.

The plaintiff also elicited testimony from the defendant that revealed that the defendant could not recall the direction in which she turned the steering wheel when she had tried to regain control of her vehicle. This testimony does not prove, however, that she failed to steer her vehicle in the “proper” direction. More importantly, the jury was free to credit the testimony presented by the defendant that indicated that she had been driving at a reasonable speed and had exercised reasonable measures to regain control of her vehicle. See Skrzypiec v. Noonan, supra, 228 Conn. 11 (jury entrusted with choice of which evidence is more credible and what effect it is to be given). The jury reasonably could have concluded that the plaintiff failed to prove that the defendant breached a duty of care. Thus, when viewed in the light most favorable to the prevailing party, the evidence reasonably supports the jury’s verdict. Accordingly, we conclude that the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant could not recall the direction in which she had turned the steering wheel.

       At trial, the defendant argued that it is prudent for a driver to steer in the direction that her vehicle is skidding when attempting to regain control of her vehicle. The defendant referred to this practice as “countersteering.”


author: PELLEGRINO, J.

text:
    BERNARD GREEN, TRUSTEE v. CONNECTICUT DISPOSAL SERVICE, INC., ET AL.
    (AC 19736)
    Zarella, Pellegrino and O’Connell, Js.
    Argued September 21, 2000
    officially released February 27, 2001

      John J. Robaeynski, for the appellants (defendant Frank Perrotti, Jr., et al.).

      Joel Z. Green, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendants Frank Perrotti, Jr., Ronald Bertasi, William A. Lockwood, Call Peter, Inc., and Frank Perrotti & Sons, Inc. (guarantors), appeal from the trial court’s judgment confirming an arbitration award in favor of the plaintiff pursuant to General Statutes § 52-417. On appeal, the guarantors claim that the court improperly confirmed the award because (1) they never agreed to arbitrate disputes with the plaintiff and (2) the arbitrators exceeded their powers in making the award. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In December, 1996, the plaintiff, Bernard Green, the holder of two promissory notes as trustee for Gerald T. Raynor, Alfred L. Bowes, Jr., and Mary E. Bowes, instituted a civil action against the debtor, the defendant Connecticut Disposal Service, Inc. (debtor), and the guarantors of the debts to collect the balances that were past due.

In January, 1997, the defendants filed a motion to dismiss the plaintiffs action, claiming that the court lacked subject matter jurisdiction over the dispute because of the arbitration clauses in the parties’ agreements. The plaintiff countered that the proper vehicle under the circumstances was a motion to stay the proceedings. The court agreed and denied the motion to dismiss. In February, 1997, the defendants filed a motion to stay the proceedings pending arbitration, and, in April, 1997, the court granted that motion. In June, 1997, the plaintiff filed a motion to terminate the stay, which was successfully opposed by the defendants.

In October, 1997, the plaintiff, faced with the defendants’ inaction, made a demand for arbitration, naming the defendants as respondents. The defendants filed an answer and special defenses, and the matter proceeded to arbitration in June, 1998. In August, 1998, the arbitrators found in favor of the plaintiff and against the defendants.

In September, 1998, the guarantors filed an application with the court to vacate the arbitration award as to them, claiming for the first time that they never agreed to arbitrate. The plaintiff filed an objection, and, after a hearing in November, 1998, the court denied the application to vacate the award. In a memorandum of decision dated February 9, 1999, the court found that the guarantors not only had agreed to arbitrate, but also actively and repeatedly had sought arbitration.

In April, 1999, the plaintiff filed a motion to confirm the award. The court granted the plaintiffs motion in May, 1999. The guarantors thereafter commenced this appeal from the order confirming the award.

I

The guarantors claim on appeal that they were not parties to the agreements that contained the arbitration clauses and, thus, that they never agreed to arbitrate disputes with the plaintiff. They claim that because they never agreed to arbitrate, all of the proceedings leading up to the arbitrators’ award were between only the plaintiff and the debtor, and, therefore, the award as to the guarantors was improper. We disagree.

Some additional facts are necessary for our consideration of this issue. The promissory notes at issue were executed in conjunction with the debtor’s purchase of two refuse collection businesses from other parties not involved in this litigation. The plaintiff subsequently became the holder of the notes. Each transaction generated three documents: A purchase and sale agreement, a promissory note and a guaranty. The purchase and sale agreements each contained a broadly worded arbitration clause and explicitly named each guarantor. Although the guarantors were not signatories to the purchase and sale agreements, they did execute separate guaranty agreements that were listed as exhibits to the purchase and sale agreements. The promissory notes also were listed as exhibits to the respective purchase and sale agreements. The guarantors claim that because they were not parties to each purchase and sale agreement itself, they did not agree to arbitrate disputes.

“Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Internal quotation marks omitted.) White v. Kampner, 229 Conn. 465, 471, 641 A.2d 1381 (1994).

“Arbitration is a creature of contract. ... It is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law.” (Internal quotation marks omitted.) Spicer v. Spicer, 33 Conn. App. 152, 159, 634 A.2d 902 (1993), cert, denied, 228 Conn. 920, 636 A.2d 850 (1994). “[A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed to do so. . . . No one can be forced to arbitrate a contract dispute who has not previously agreed to do so.” (Internal quotation marks omitted.) Id., 159-60. Further, pursuant to Connecticut’s statutory arbitration scheme, that agreement must be expressed in a writing. Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988); see also General Statutes § 52-408.

“The issue of whether the parties to a contract have agreed to arbitration is controlled by their intention. . . . The intention of the parties is, in turn, a question of fact. . . . The trial court’s finding on that issue is not reversible by this court unless it was a finding that the court could not reasonably have made.” (Internal quotation marks omitted.) Spicer v. Spicer, supra, 33 Conn. App. 160. The guarantors can prevail on appeal, therefore, only if they are able to demonstrate that the court’s finding that they agreed to arbitrate was clearly erroneous. See id.

The court, after a hearing, considered the evidence and determined that the dispute between all of the parties had been presented properly to the arbitrators because valid agreements to arbitrate existed between the plaintiff and both the guarantors and the debtor. After reviewing the evidence, the pleadings in the record and the court’s analysis, we hold that the court correctly found that the guarantors had agreed to arbitrate and, therefore, properly confirmed the arbitrators’ award.

The court analyzed the purchase and sale agreements, promissory notes and guarantees within the framework of the “positive assurance test,” and also considered the guarantors’ repeated prior submissions in which they claimed to have agreed to arbitration. It noted that the guarantors had actively sought the benefits of arbitration. Only after obtaining an unfavorable result did the guarantors claim that they were not parties to the agreement to arbitrate.

A more detailed description of the procedural history of this case is necessary for our consideration of this issue. The plaintiff initially sought to resolve this dispute by commencing an action against all of the defendants in the Superior Court. In response, the defendants’ attorney filed a motion to dismiss, clearly naming the debtor and the guarantors as parties and insisting that they were all parties to an arbitration agreement with the plaintiff. Moreover, in their supporting memorandum of law, the defendants argued that they were all parties to the arbitration agreements, that the guarantees clearly fell within the purview of those agreements and that the court could not reasonably interpret the agreements otherwise.

At the January 21, 1997 hearing on the motion to dismiss, the defendants’ attorney stated that he “representad] all the defendants,” and that the arbitration panel was “the body that the parties themselves agreed in the contract to go by.” In their subsequent motion to stay the litigation pending arbitration, the defendants again manifested their intent to agree to arbitration and their desire to proceed accordingly. Their supporting memorandum repeated the arguments from their memorandum in support of their motion to dismiss.

The defendants again advanced these arguments in their June 6, 1997 memorandum of law opposing the plaintiffs motion for termination of the stay. That memorandum provided that “[b]oth the promissory notes and the guarantees arose expressly and directly out of the Agreements and are, therefore, subject to arbitration.” (Emphasis added.) At the hearing on the motion, the defendants’ attorney stated that he represented the defendants, that “[t]he agreement provides a very, very broad arbitration clause. It states pretty much any and all disputes between the parties regarding any matter in [or] arising under the agreement” shall be submitted to arbitration, and that “the intention of the parties was [that] the notes . . . were part of the agreement and subject to arbitration.”

The plaintiffs subsequent demand for arbitration named all of the defendants, including each guarantor, as respondents. Attached to the demand was an explanation of the nature of the dispute, naming the debtor and all of the guarantors and citing their roles in the dispute. The defendants’ attorney filed an answer and special defenses, naming the debtor and all of the guarantors as respondents. At the arbitration hearing, he stated that he represented “the respondents, Connecticut Disposal Service, Inc., Frank Perrotti & Sons, Inc., Call Peter, Inc., Ronald Bertasi, William Lockwood and Frank Perrotti, Jr.”

Neither in these documents nor in the proceedings previously discussed did the defendants’ attorney ever claim that the guarantors had not agreed to arbitrate. He never made any attempt to differentiate the guarantors’ position from that of the debtor. He argued that the guarantors had not agreed to arbitrate only after the arbitrators issued a decision unfavorable to the guarantors.

“[T]he stated purpose of arbitration [is to avoid] the formalities, delay, expense and vexation of ordinary litigation.” (Internal quotation marks omitted.) Bennett v. Meader, supra, 208 Conn. 362-63. In support of this policy aim, the court correctly based its decision that the guarantors were parties to the arbitration agreements, in part, on the fact that they actively had sought the arbitration and resisted litigation. By all appearances, the guarantors sought the benefits of arbitration, presumably deciding that litigation was a less desirable option. We agree with the court and hold that, in light of the defendants’ conduct and the assertions that they made in their motion to dismiss, motion to stay and motion in opposition to a termination of the stay, they are estopped from now arguing that they never agreed to arbitrate disputes with the plaintiff.

“There are two essential elements to an estoppel— the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.” (Internal quotation marks omitted.) Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 28, 392 A.2d 966 (1978). Further, “[i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” (Internal quotation marks omitted.) Id., 28-29.

“[Tjhere must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury. . . . The modem estoppel in pais is of equitable origin, though of equal application in courts of law. ... Its office is ... to show what equity and good conscience require, under the particular circumstances of the case . . . .” (Citations omitted; internal quotation marks omitted.) Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 564. 316 A.2d 394 (1972). Estoppel is rooted in “the principle that no one shall be permitted to found any claim upon his own inequity or take advantage of his own wrong.” (Internal quotation marks omitted.) Id., 565. “Estoppel is to protect the innocent and is based on fair dealing and principles of morality . . . .” Id., 566. “[Cjourts, applying equitable principles, have laid down the doctrine of equitable estoppel by which a defendant may be estopped by his conduct from asserting [statutory] defenses . . . .” (Internal quotation marks omitted.) Williams v. Bartlett, 189 Conn. 471, 482-83 n.9, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983); see, e.g., Morris v. Costa, 174 Conn. 592, 601, 392 A.2d 468 (1978) (defendant estopped from asserting statute of limitations defense); First Connecticut Small Business Investment Co. v. Arba, Inc., 170 Conn. 168, 174-75, 365 A.2d 100 (1976) (defendant estopped from utilizing statute of frauds defense).

The principles behind the estoppel doctrine are advanced by our holding today. This is not a case in which a party has, from the outset, steadfastly argued that it never agreed to arbitrate. Here, the guarantors clearly argued to the court several times that they agreed to arbitrate disputes with the plaintiff. In so doing, their intent was to induce the plaintiff into pursuing an alternative dispute resolution strategy, which he in fact did. The plaintiff abandoned his initial effort to litigate the matter and instead complied with the guarantors’ demand to arbitrate by not objecting to their motion to stay and, ultimately, by submitting the dispute to the arbitrators. He prepared for and attended the arbitration hearing with the understanding that it would bring the matter to a close. In fact, all of the parties fully participated in the arbitration and none complained to the arbitrators that they had not agreed to arbitrate.

The guarantors, after such full and willing participation, obtained an unfavorable result at the arbitration hearing. They then sought another chance to retry the issues in a second forum and, thereby, to eliminate the advantages of speed, savings and finality that were contemplated in the parties’ choice of an alternative dispute resolution mechanism. Two and one half years after the plaintiff initially instituted his civil action, which the guarantors successfully caused to be stayed to allow for arbitration, the guarantors argued that the Superior Court was in fact the proper forum for the dispute. Essentially, they asked the court to approve their wasting of the plaintiffs time and to force the plaintiff to abandon the successful result he had secured at the arbitration hearing. The court, after considering all of the prior proceedings, had no difficulty discerning that the parties had agreed to arbitrate and rejected the guarantors’ request to vacate the award. We agree with the court.

In Sawmill Brook Racing Assn., Inc. v. Boston Really Advisors, Inc., 39 Conn. App. 444, 455, 664 A.2d 819 (1995), we held that nonsignatories to an arbitration agreement had bound themselves to arbitrate via their conduct and were estopped from arguing after the fact that the statutory writing requirement was not satisfied. In that case, as in the present one, the defendants had accepted the benefits of the agreement and manifested their intent to arbitrate by willingly participating in the proceedings. They filed a counterclaim in the arbitration proceedings and a motion to dismiss pending litigation on the ground that the matters at issue were subject to arbitration. The proceedings in that case lasted three years, but the defendants objected only after an unfavorable award had been issued. Id.

Here, the timing of the guarantors’ objection is very similar, but their earlier conduct evidencing an agreement to arbitrate is much clearer. Along with the debtors, the guarantors petitioned the court for arbitration not once, but on three separate occasions. We note also that their agreement to arbitrate is expressed in several signed writings, that is, the motions that they submitted to the court demanding arbitration. Further, they filed an answer and special defenses with the arbitrator and, through their representative, attended and participated in the arbitration sessions.

It cannot be said that the plaintiff in this case, had he exercised due diligence, could have discerned that the guarantors, as nonsignatories to the purchase and sale agreements that contained the arbitration clauses, had not agreed to arbitrate the disputes over the promissory notes. In fact, the plaintiff initially assumed that the matter was not arbitrable and, therefore, instituted a civil action. The plaintiff had no reason to believe that the guarantors did not agree to arbitrate when the guarantors clearly and repeatedly stated that they did agree to arbitrate and made representations to the court of such an agreement, coupled with viable legal arguments supporting their assertions. The plaintiff reasonably relied on the guarantors’ conduct and statements, and proceeded to arbitration on the assumption that the guarantors would not later contest their status as parties to the arbitration agreements.

Like the defendants in Schwarzschild v. Martin, 191 Conn. 316,321,464 A.2d 774 (1983), who unsuccessfully sought to have an arbitration award invalidated on the ground that there was no valid agreement to arbitrate, the guarantors in the present case sought the benefits of arbitration — avoiding the expense and delay of court proceedings — and then repudiated their agreement to participate after receiving an unfavorable result. Our response is the same: “One enjoying rights is estopped from repudiating dependent obligations which he has assumed; parties cannot accept benefits under a contract fairly made and at the same time question its validity.” Id., citing Mozzochi v. Luchs, 35 Conn. Sup. 19, 23, 391 A.2d 738 (1977). The guarantors may not accept the benefits of submitting their dispute to an arbitration panel, only to reject unfavorable results of that process.

The guarantors argue that the outcome of this case is instead dictated by our holding in Scinto v. Sosin, 51 Conn. App. 222, 721 A.2d 552 (1998), cert, denied, 247 Conn. 963, 724 A.2d 1125 (1999). In Scinto, we concluded that a party who had executed a guaranty agreement ancillary to a construction contract containing an arbitration clause, but who did not sign the construction contract itself, was not bound to arbitrate. Id., 237-38. The guarantors urge us to reach the same result in this case. The facts of Scinto, however, are inapposite to those of the present case. The guarantors in Scinto resisted arbitration from the start. They sought and received injunctions barring arbitration proceedings against them. In contrast, the guarantors in this case actively and repeatedly insisted that they were parties to arbitration, made numerous submissions to the court in which they claimed to be parties to arbitration and participated fully as parties to the arbitration. Arbitration was completed quickly and a decision was issued soon thereafter. The guarantors objected only after an unfavorable result was obtained. To hold that no agreement to arbitrate existed and, therefore, to indulge the guarantors’ sudden desire to litigate at this late stage would fully frustrate the aim of arbitration to provide a rapid and efficient alternative dispute resolution mechanism for parties who willingly choose to participate. Under the circumstances of this case, we have no difficulty holding that the court was not clearly erroneous in finding that the guarantors and the plaintiff had agreed to arbitrate and that the court correctly confirmed the arbitrator’s award.

II

The guarantors also claim that the court improperly refused to vacate the arbitration award pursuant to General Statutes § 52-418 because the arbitrators exceeded their authority in making the award. Specifically, they argue that the plaintiffs submission to the arbitrators did not make any demand against the guarantors or claim any interest in the guarantees. Therefore, the guarantors assert that the award against them went beyond the scope of the submission. This claim is without merit.

“The scope of judicial review of arbitration awards is very narrow. Our courts favor arbitration as a means of settling differences and uphold the finality of arbitration awards except where an award clearly falls within the proscriptions of § 52-418 of the General Statutes. . . . [A]ny challenge to an award ... on the ground that the arbitrators exceeded or imperfectly performed their powers is properly limited to a comparison of the award with the submission. ... If the award conforms to the submission, the arbitrators have not exceeded their powers.” (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 228, 755 A.2d 990, cert, denied, 254 Conn. 939, 761 A.2d 760 (2000).

“If the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration. . . . This submission can be invoked by a demand for arbitration by one or both parties when a dispute arises. The agreement for submission constitutes the charter for the entire ensuing arbitration proceedings.” (Citations omitted; internal quotation marks omitted.) Id., 229-30. “The authority of the arbitrator to adjudicate the controversy is limited only if the agreement [to arbitrate] contains express language restricting the breadth of issues, [or] reserving explicit rights . . . .” (Internal quotation marks omitted.) Id., 229.

The arbitration clauses in the purchase and sale agreements in the present case, referenced by the guarantors when they agreed in court to arbitrate, were broad and unrestricted. They provided for arbitration “concerning any matter provided for herein or arising hereunder . . . .” See footnote 3. At the hearing on the motion to terminate the stay, at which the guarantors agreed to arbitrate, their attorney stated that “[t]he agreement provides a very, very broad arbitration clause. It states pretty much any and all disputes between the parties regarding any matter in [or] arising under the agreement” shall be submitted to arbitration.

The plaintiff made a demand for arbitration with the American Arbitration Association pursuant to the arbitration clauses, naming all of the defendants, including the guarantors, as respondents and describing and appending the promissory notes and guarantees that were the subject of the parties’ dispute. See footnote 13. The arbitrators’ award addressed precisely this subject matter, determining the amounts owed on each note and directing that they be paid by the defendants. We hold that the court properly refused to vacate the arbitration award because it was within the arbitrators’ powers pursuant to the agreement of the parties.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-417 provides in relevant part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides . . . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       Throughout the proceedings in the trial court and during arbitration, the debtor and the guarantors have been represented by the same attorney, who, until now, has not attempted to differentiate their interests in regard to the plaintiffs claims.

       The arbitration clause provided: “In the event of any dispute between the parties concerning any matter provided for herein or arising hereunder, the parties agree that the same shall be submitted to arbitration at New Haven, Connecticut, in accordance with the rules of arbitration of the American Arbitration Association then obtaining. The parties agree that such issue shall be determined by three (3) arbitrators appointed by said Association and that the decision of such arbitrators shall be final and binding upon the parties. The parties further agree that in the event either shall submit a dispute to arbitration that the other party shall cooperate to facilitate resolution of such dispute through arbitration at the earliest possible time. In the event of any monetary arbitration decision against Seller and in favor of Buyer, then the same shall be subject to credit as provided herein.”

       Pursuant to the positive assurance test, “judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance. ... An order to arbitrate the particular grievance [or an application to confirm an arbitration award] should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. . . . Whether the parties have agreed to . . . [arbitration] . . . depends on the intention manifested in the agreement the parties have made. . . . The manifestation of arbitrability may be by express provision to that effect or the use of broad terms . . . and courts must look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties.” (Citations omitted; internal quotation marks omitted.) Weitz Co. v. Shoreline Care Ltd. Partnership, 39 Conn. App. 641, 644-45, 666 A.2d 835 (1995); see White v. Kampner, supra, 229 Conn. 472-73; Board of Education v. Frey, 174 Conn. 578, 582, 392 A.2d 466 (1978).

       The motion to dismiss provided in relevant part: “[DJefendants, Connecticut Disposal Service, Inc., Call Peter, Inc., Frank Perrotti & Sons, Inc., Ronald P. Bertasi, Frank Perrotti, Jr., and William A. Lockwood, hereby move the court for an order dismissing this action for reason that it lacks jurisdiction over the subject matter due to an agreement among the plaintiff and the defendants to submit their disputes to binding arbitration.” (Emphasis added.)

       The defendants’ memorandum of law in support of their motion to dismiss provided in relevant part: “[T]he plaintiff and the defendants entered into an agreement (the ‘Agreement’) whereby certain assets of plaintiffs business were purchased by the defendants. . . . The Agreement . . . provided that any dispute between the parties concerning any matter in or arising under the Agreement be submitted to binding arbitration . . . .There is no question that the parties to this action have contractually committed themselves to binding arbitration. It is also very clear that the payment ol' the notes and guarantees complained of in the present action are matters in or arising under the Agreements. Under the positive assurance test, no reasonable interpretation can be made denying the arbitrability of the parties’ payment dispute in light of the express arbitration clauses contained in the Agreements. Even assuming arguendo that there is a doubt as to the arbitrability of the parties’ dispute, which there is not, any such doubt must be resolved in favor of arbitration.” (Emphasis added.)

       The defendants’ motion for a stay provided in relevant part: “Defendants, Connecticut Disposal Service, Inc., Call Peter, Inc., Frank Perrotti & Sons, Inc., Ronald P. Bertasi, Frank Perrotti, Jr., and William A. Lockwood, as parties to these arbitration agreements with plaintiffs are ready and willing to proceed with said arbitrations.” (Emphasis added.)

       The defendants’ memorandum in support of their motion for a stay provided in relevant part: “There is no question that the parties to this action have contractually committed themselves on two separate occasions to binding arbitration. It is also very clear' that the payment of the notes and guarantees complained of in the present action are matters in or arising under the Agreements. Under the positive assurance test, no reasonable interpretation can be made denying the arbitrability of the parties’ payment dispute in light of the express arbitration clauses contained in the Agreements. Even assuming arguendo that there is a doubt as to the arbitrability of the parties’ disputes, which there is not, any such doubt must be resolved in favor of the arbitration of each such dispute." (Emphasis added.)

       The court also found, pursuant to the positive assurance test; see footnote 4; that the guarantors were parties to the purchase and sale agreements that contained the arbitration clauses. We disagree. See Scinto v. Sosin, 51 Conn. App. 222, 230-38, 721 A.2d 552 (1998), cert, denied, 247 Conn. 963, 724 A.2d 1125 (1999).

       Although the court did not explicitly rest its holding on a theory of estoppel, this court may properly affirm a judgment on a ground different from that relied on by a trial court. Paine Webber, Inc. v. American Arbitration Assn., 217 Conn. 182, 188, 585 A.2d 654 (1991).

       See footnotes 6 and 8. Our Supreme Court has held that an agreement to arbitrate need not necessarily be signed by both parties to be valid and enforceable under § 52-408. Schwarzschild v. Martin, 191 Conn. 316,321-22, 464 A.2d 774 (1983).

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”
      The guarantors have argued this issue under subsections (3) and (4) of the statute. We analyze it under subsection (4) because that was the analysis presented to the trial court and because subsection (3) is clearly inapplicable to the guarantors’ claim. There is nothing in the record or in the parties’ briefs to suggest that the arbitrators refused a requested postponement, denied the admission of proffered evidence or prejudiced the rights of the guarantors in any way.

       In a typewritten document entitled, “Nature of the Dispute,” which was appended to its demand for arbitration, the plaintiff stated:
      “1. By promissory note dated January 2,1985, Connecticut Disposal Service, Inc., promised to pay to the order of R & R Sanitation Co., Inc. (‘R & R’), the sum of Two Million Two Hundred Thirty-Eight Thousand Nine Hundred Thirty-Six ($2,238,936.00) and 00/100 Dollars (hereinafter referred to as ‘Note 1’). A copy of Note 1 is incorporated herein and attached hereto as Exhibit ‘A.’
      “2. By guaranty dated March 4, 1985, Frank Perrotti & Sons, Inc., Call Peter, Inc., Frank Perrotti, Jr., Ronald Bertasi and William Lockwood each agreed to guaranty payment of Note 1. A copy of this guaranty is incorporated herein and attached hereto as Exhibit ‘B.’
      “3. By endorsement dated March 26, 1985, R & R assigned all of its right, title and interest in Note 1 to Bernard Green, Trustee for Gerald T. Raynor, Alfred L. Bowes, Jr., and Mary E. Bowes.
      “4. By promissory note dated May 7, 1986, Connecticut Disposal Service, Inc., promised to pay to the order of Connecticut Recycling Systems, Inc. . . . the sum of Six Hundred Thirty-Five Thousand Four Hundred Seventy-Five ($635,475.00) and 00/100 Dollars (hereinafter referred to as ‘Note 2’). A copy of Note 2 is incorporated herein and attached hereto as Exhibit ‘C.’
      “5. By guaranty dated May 7,1986, Frank Perrotti & Sons, Inc., Call Peter, Inc., Frank Perrotti, Jr., Ronald Bertasi and William Lockwood each agreed to guaranty payment of Note 2. A copy of this guaranty is incorporated herein and attached hereto as Exhibit ‘D.’
      “6. By endorsement dated June 2, 1986, Connecticut Recycling Systems, Inc., assigned all of its right, title and interest in Note 2 to Bernard Green, Trustee for Gerald T. Raynor, Alfred L. Bowes, Jr., and Mary E. Bowes. ...” The document further detailed the late payments on notes one and two, and the balances yet due.
      Each guaranty provides in relevant part: “The Guarantors ... do hereby jointly and severally, unconditionally guaranty the full and punctual payment, when due [of the installments on the notes]. . . . The liability of the Guarantors shall be effective immediately without any suit or action against the maker of the note .... This guaranty shall inure to the benefit of the holder and to the benefit of its assigns, and it shall be binding upon the Guarantors . . . .”
      In light of the foregoing, the guarantors’ arguments that “[t]he arbitration submission . . . fails to claim that the Appellants failed to do anything or owe Appellee or its predecessor in interest any amount” and that “[w]hile the Demand [for arbitration] claims that the Notes were assigned to Plaintiff, it does not make a corresponding claim that the Guarantees were assigned to Plaintiff,” are baseless and do not merit further discussion.