text:
    RICHARD GILLIS v. WHITE OAK CORPORATION ET AL.
    (AC 21361)
    Foli, Schaller and Flynn, Js.
    Argued January 17 —
    officially released November 12, 2002

      Taka Iwashita, assistant attorney general, with whom were Michael J. Belzer, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).

      James D. Moran, Jr., with whom was James L. Sullivan, for the appellees (named defendant et al.).
   Opinion

SCHALLER, J.

The defendant second injury fund (fund) appeals from the decision of the workers’ compensation review board (board) affirming the determination by the workers’ compensation commissioner (commissioner) that the defendant White Oak Corporation (White Oak) timely notified the fund, pursuant to General Statutes (Rev. to 1985) § 31-349, as amended by Public Acts 1986, No. 86-31, of its intention to transfer liability to the fund for the plaintiff employee’s compensation. On appeal, the fund claims that the board improperly affirmed the commissioner’s determination that White Oak timely notified the fund of the transfer under § 31-349. We agree with the fund that White Oak’s notice was not timely.*

The following facts and procedural history are relevant to our resolution of the fund’s appeal. The plaintiff, Richard Gillis, first injured his right knee on July 7, 1981, while working for an employer unrelated to this appeal. Gillis again injured the same knee on November 6, 1986, while working for White Oak. Gillis injured his right knee a third time on April 20,1992, while working for another employer unrelated to this appeal.

After hearings in 1993 and 1994 to determine the compensability of the 1986 injury and to decide which of Gillis’ injuries were responsible for the medical opinion that Gillis should undergo a right knee replacement, the commissioner rendered his finding and award on October 4,1994. The commissioner found that on January 27, 1987, Gillis had reached maximum medical improvement and was left with 25 percent permanent partial disability in the right knee. The commissioner further assigned various portions of the 25 percent permanent partial disability to both the 1981 and 1986 injuries, concluding that 17.5 percent of the permanent disability was attributable to the 1986 injury. The fund was not a party to those proceedings.

On or about December 16, 1994, White Oak notified the fund, as required by § 31-349, that it sought to transfer liability for the 1986 injury to the fund. The fund took the position that the notice was untimely. The commissioner held another hearing on June 16, 1999, and concluded in his June 24, 1999 finding and award that notice was timely perfected on December 14,1994, and that liability for the 1986 injury would transfer to the fund. The fund appealed to the board from the commissioner’s decision. On October 20, 2000, the board concluded that the commissioner correctly had determined that White Oak’s notice was timely and affirmed the commissioner’s decision. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the fund claims that the board improperly affirmed the commissioner’s determination that White Oak timely notified the fund of the transfer. Specifically, the fund argues that the commissioner improperly calculated Gillis’ period of disability when deciding whether notice under § 31-349 was timely. The fund advances two arguments in support of its position. In its brief, the fund asserts that for the purposes of calculating the first 104 weeks of disability under § 31-349, Gillis was “disabled” as of October 14, 1992, and remained disabled continuously thereafter. The commissioner found, in his June 24,1999 finding and award, that Gillis had reached maximum medical improvement on that date and was left with a 23.17 percent permanent impairment as a result of the November 6, 1986 injury. The fund takes the position that Gillis was continuously disabled from the date he was assigned the permanent disability rating because from that time on, he never ceased being disabled. At oral argument, the fund reasserted that position, but also argued that Gillis was disabled from the date of the second injury, November 6,1986. We agree with the fund that White Oak’s notice was untimely.

At the outset, we note our standard of review for the fund’s claim. “Our standard of review of the board’s determination is clear. [T]he [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Williams v. Best Cleaners, Inc., 237 Conn. 490, 500-501, 677 A.2d 1356 (1996).

We further note that the question of timeliness with regard to § 31-349 is not one of first impression. In Karutz v. Feinstein & Herman, P.C., 59 Conn. App. 565, 567, 757 A.2d 680, cert. denied, 254 Conn. 949, 762 A.2d 901 (2000), an employee was injured at work, but continued to perform her duties and to receive regular pay for almost fourteen months after the injury. Subsequently, the employee was determined to be temporarily totally disabled and then temporarily partially disabled. Id. When the insurer sought to transfer liability to the fund, the fund contested the timeliness of the transfer, arguing that the employee was disabled from the date of the injury, even though she had lost no pay or time from work as a result of the injury. Id., 568-69. The commissioner, however, determined that the notice was timely because the disability period did not begin on the date of injury, and the board affirmed that decision. Id., 571-72.

On appeal, we stated “ [t]he issue of timeliness centers on the meaning of the word ‘disabled’ contained in § 31-349. The terms ‘disabled’ and ‘disability’ are not defined in the workers’ compensation statutes. Recent decisions of our Supreme Court, however, have established the meaning of ‘disability’ for purposes of § 31-349.” Id., 569.

We then quoted from Williams v. Best Cleaners, Inc., supra, 237 Conn. 498, in which our Supreme Court stated that “[i]n the context of § 31-349, the term disability is susceptible of two meanings — physical impairment and loss of earning capacity. . . . Permanent disability is not defined within Connecticut’s Workers’ Compensation Act. General Statutes § 31-275 et seq. Previous disability, however, is defined within § 31-275 (20) as an employee’s preexisting condition caused by the total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye resulting from accidental injury, disease or congenital causes, or other permanent physical impairment. ... In construing the act . . . this court makes every part operative and harmonious with every other part insofar as is possible. ... In addition, the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . Thus, the meaning of the term disability should not vary simply because it is modified by permanent rather than previous. Accordingly, we define disability, for the purpose of § 31-349 (a), to refer to a claimant’s physical impairment.” (Citations omitted; internal quotation marks omitted.) Karutz v. Feinstein & Herman, P.C., supra, 59 Conn. App. 569-70.

We determined in Karutz that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.” Id., 570. We also noted, as decided by our Supreme Court in Innocent v. St. Joseph’s Medical Center, 243 Conn. 513, 705 A.2d 200 (1998), that “the rate of pay received by the claimant and the number of hours worked upon her return to work are not determinative of the time period of her disability under § 31-349 (a). Rather, the determinative factor as to whether the time period is to be included in calculating the 104 week period of disability that triggers the date by which the employer must furnish notice to the fund, is whether the claimant is medically impaired as a result of his or her work-related injury.” (Internal quotation marks omitted.) Karutz v. Feinstein & Herman, P.C., supra, 59 Conn. App. 571.

Reversing the board’s affirmance of the commissioner’s decision in Karutz, we stated that the commissioner had based his disability determination on the employee’s ability to perform her job rather than on the date of medical impairment. Id., 572. On the basis of Karutz and the cases cited therein, it is clear that a person is disabled under § 31-349 for any period in which a medical physical impairment is established by the evidence before the commissioner. In the present case, a review of the commissioner’s June 24, 1999 decision reveals that his conclusion resulted from inferences unreasonably drawn from the facts found.

The commissioner determined that Gillis’ first 104 weeks of disability concluded on April 20, 1999, and that White Oak’s notice, perfected on December 14, 1994, was timely because it was filed more than ninety days prior to the expiration of the first 104 weeks of disability. The commissioner reached that conclusion after finding that Gillis was totally disabled following his second injury for 16 3/7 weeks, from November 6, 1986, through March 1, 1987. The commissioner also found that subsequent to March 1,1987, Gillis “returned to work full duty and was not disabled again until October 14,1992, when he was entitled to permanent partial disability . . . .” That reference to October 14, 1992, relates to the commissioner’s further finding that Gillis had reached maximum medical improvement as of October 14, 1992, and that as of that date, he had a permanent partial disability of 23.17 percent as a result of the November 6, 1986 injury.

The commissioner also found that Gillis was entitled to 55 3/7 weeks of permanent partial disability, from October 14, 1992, the date of maximum medical improvement, through November 5, 1993. In addition, the commissioner found that Gillis had been paid total disability benefits for 32 1/7 weeks as a result of the replacement surgery, from September 8, 1998, through April 20,1999. In making these determinations, the commissioner stated that “[f]or the period[s] from March 1, 1987, through October 13, 1992, and November 6, 1993, through December 14, 1994, the date as of when notice was perfected, there is no evidence of medical or physical limitations or impairments attributable to the November, 1986 injury and, therefore, such period is not included in the calculation of timely notice under § 31-349 (a).”

We first note that the June 24,1999 findings establish clearly that Gillis became physically impaired on the date of his second injury, November 6, 1986, because the commissioner found that Gillis was totally disabled for the period of November 6, 1986, through March 1, 1987. The question we must next address is whether Gillis ever fully recovered from the November 6, 1986 injury and returned to an unimpaired medical status. That is a critical matter because if at some point Gillis no longer was physically impaired, then he would not be disabled under § 31-349, and the time from his full recoveiy until the next impairment would not be included in calculating the first 104 weeks of his disability.

The commissioner determined that Gillis no longer was disabled after March 1, 1987, and through October 13, 1992. Specifically, the commissioner found, in finding number nine, that Gillis had returned to work “full duty” after March 1, 1987, and was not disabled again until 1992. The commissioner then stated, in paragraph D of his conclusion, with regard to the same time period discussed in finding number nine, that “there is no evidence of medical or physical limitations or impairments attributable to the November 6, 1986 injury . . . .” Thus, the commissioner concluded that Gillis was not impaired after March 1, 1987, and, because Gillis no longer was impaired, the commissioner further determined that Gillis no longer was disabled for purposes of § 31-349.

We conclude that the commissioner improperly determined Gillis’ periods of disability. The commissioner’s conclusion that Gillis was unimpaired after March 1, 1987, rests on the predicate that Gillis had recovered fully from his second injury as of that date. That conclusion is inconsistent with the commissioner’s other findings. Given the irreconcilable nature of that inconsistency, we conclude that the commissioner’s decision resulted from an unreasonable inference from the facts found.

In reaching our determination, we rely specifically on finding number five, in which the commissioner found that after Gillis had reached maximum medical improvement on October 14, 1992, Gillis had a permanent partial impairment of 23.17 percent as a result of the November 6, 1986 injury. That finding is critical because the assignment of a 23.17 percent permanent disability rating subsequent to March 1, 1987, is medically inconsistent with a conclusion that Gillis had recovered fully from the second injury by March 1,1987, and no longer was impaired as of that date.

The assignment of the permanent disability rating, after Gillis’ knee had healed as well as it could, indicates that he never fully recovered from the second injury. That is the only conceivable conclusion in light of the fact that he was deemed to have a 23.17 percent disability after having reached maximum medical improvement. In light of that, we construe the commissioner’s finding to indicate that Gillis continuously was impaired by the second injury from the date it occurred through the date of maximum medical improvement and thereafter. On the basis of that impairment, logic dictates that at a minimum, Gillis also was continuously disabled at a rate of between 23.18 percent and 100 percent from the time of the injury on November 6, 1986, through the date of maximum medical improvement on October 14, 1992. In sum, the assignment of the permanent disability rating demonstrates that Gillis was, and remains, physically impaired, and that he did not totally recover. Because he did not fully heal, he must have suffered a continuous impairment from the date of the injury.

As Karutz clearly informs us, for the purposes of § 31-349, disability refers to a claimant’s physical impairment. A person can be disabled for the purposes of § 31-349 even though he can carry on all the aspects of his employment. Guided by that principle, we conclude the commissioner’s June 24, 1999 findings reveal that Gillis continuously was physically impaired from the time of the second injury, November 6, 1986, onward. Given that uninterrupted impairment, Gillis continuously was disabled from November 6, 1986.

In light of our interpretation of the commissioner’s findings, our calculation of the first 104 weeks of disability for the purposes of § 31-349 leads us to conclude that the proper disability period was continuous in this case and, therefore, went uninterrupted from the date of the injury, November 6,1986, through the 104 weeks, and expired in November, 1988. In light of that conclusion, to file its transfer notice in a timely manner, White Oak would have had to file notice ninety days prior to the November date, sometime in August, 1988. The commissioner’s findings reveal that White Oak perfected notice on December 14, 1994. We conclude that this filing was untimely and, as a result, the commissioner improperly transferred liability for Gillis’ 1986 injury to the fund.

We conclude the conclusions drawn by the commissioner in this case resulted from unreasonable inferenees drawn from the facts found. We reverse the board’s affirmance of the commissioner’s decision that notice to the fund was timely and that liability for the November 6, 1986 injury should transfer to the fund.

The decision of the workers’ compensation review board is reversed and the matter is remanded with direction to reverse the commissioner’s decision to transfer liability to the second injury fund.

In this opinion FOTI, J., concurred.

FLYNN, J.,

dissenting. I respectfully dissent from the result reached by the majority for several reasons and would affirm the decision of the worker’s compensation review board.

First, the majority does not contend that there was no medical evidence to support the trial commissioner’s findings. There was such substantial evidence. Under our standard of appellate review, the commissioner’s factual findings should stand where supported by substantial evidence. See Thompson v. Roach, 52 Conn. App. 819, 824, 728 A.2d 524, cert. denied, 249 Conn. 911, 733 A.2d 227 (1999).

Second, not only did the second injury fund (fund) never make any effort to submit proposed draft findings to the commissioner, but because it made no motion to correct the commissioner’s findings, under long established precedent from our Supreme Court, the commissioner’s findings must stand. Mack v. Blake Drag Co., 152 Conn. 523, 525, 209 A.2d 173 (1965).

Finally, in light of the substantial evidence supporting and consistent with the commissioner’s decision, coupled with the fund’s failure to file a motion to correct findings it claimed were inconsistent, I disagree with the majority’s contention that the commissioner’s June 24, 1999 decision resulted from inferences unreasonably drawn from the facts found.

Our workers’ compensation law permits a commissioner to find that a worker may be temporarily totally disabled or partially permanently disabled by a second injury without concluding by necessity that the impairment or physical limitations must have been continuous, simply because after suffering a third injury and reaching maximum medical improvement the commissioner finds that the permanency found after that third injury was due in part to the second injury and an earlier first injury.

I begin by setting forth some factual background.The plaintiff, Richard Gillis, suffered three successive work related injuries to his right knee while working for three successive employers, the last two of which increased the partial permanent disability of the first. See Gillis v. White Oak Corp., 49 Conn. App. 630, 635 n.10, 716 A.2d 115, cert. denied, 247 Conn. 919, 722 A.2d 806 (1998).

The first of the injuries occurred on July 7, 1981, the second on November 6, 1986, and the third on April 20, 1992.

This case is before us because General Statutes (Rev. to 1985) § 31-349 (b), as amended by Public Acts 1986, No. 86-31, requires that “as a condition precedent to an employer’s transfer of liability to the [second injury] fund for an employee’s permanent disability, the employer must furnish notice of intent to transfer to the custodian of the fund ninety days prior to the expiration of the first 104 weeks of a claimant’s disability. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393, 618 A.2d 1340 (1993).” Karutz v. Feinstein & Herman P.C., 59 Conn. App. 565, 568, 757 A.2d 680, cert. denied, 254 Conn. 949, 762 A.2d 901 (2000).

The fund asserts that the December 16, 1994 notice from the second employer, White Oak, to the fund was untimely because, in the fund’s view, the December 14, 1994 notice of intent to transfer liability to the fund was given more than one year and nine months after the injury and therefore was not in compliance with the pertinent statute in effect. In the fund’s view, the 1999 decision of the commissioner was, thus, illegal, unreasonable and illogical in its application of the facts to the law because he found that the plaintiff was disabled from November 7, 1986, to March 1, 1987, and was not disabled again until October 14, 1992.

In reversing the board’s determination that the commissioner correctly determined that the notice to the fund was timely, the majority specifically relies on the commissioner’s finding that on the date of maximum medical improvement, October 14, 1992, the plaintiff had a “permanent partial impairment of 23.17 percent . . . .” From this, despite substantial medical evidence in the record to the contrary, the majority makes the illogical leap that, “at a minimum, [the plaintiff] also was continuously disabled at a rate of between 23.18 percent and 100 percent from the time of the injury on November 6, 1986, through the date of maximum medical improvement on October 14,1992.” The majority then concludes that the “first 104 weeks of disability [less 90 days]” in which to notify the fund ran continuously from the November 6, 1986 time of injury, not intermittently as the commissioner and board had concluded.

In his June 24, 1999 decision, the commissioner specifically stated that “upon all the evidence” before him, “I am satisfied, conclude and find that:

* * *

“C) The claimant’s first 104 weeks of disability as documented by the medical record runs through to April 20, 1999 as follows:

“Temporary total disability from November 6, 1986, through March 1, 1987 (16 3/7 weeks) “Permanent partial disability from October 14, 1992, through November 5, 1993, (55 3/7 weeks)

“Temporary total disability from September 8, 1998, through April 20, 1999 (32 1/7 weeks)

“D) For the period from March 1,1987, through October 13,1992, and November 6,1993, through December 14, 1994, the date as of when notice was perfected, there is no evidence of medical or physical limitations or impairments attributable to the November, 1986 injury and therefore such period is not included in the calculation of timely notice under § 31-349 (a).”

In reaching its conclusion that the commissioner improperly made those findings, the majority states: “We conclude that the commissioner improperly determined Gillis’ periods of disability. The commissioner’s conclusion that Gillis was unimpaired after March 1, 1987, rests on the predicate that Gillis had recovered fully from his second injury as of that date. That conclusion is inconsistent with the commissioner’s other findings. Given the irreconcilable nature of that inconsistency, we conclude that the commissioner’s decision resulted from an unreasonable inference from the facts found.”

I find no analysis or reference in the majority opinion as to how any piece of medical evidence is inconsistent with the commissioner’s findings that Gillis was unimpaired for a period of time after March 1, 1987. I thus dissent from that conclusion.

My review and analysis of the actual evidence before the commissioner shows that there was, in fact, substantial evidence supporting both the commissioner’s finding of a period of no disability and the board’s affirmance of that finding and refusal to retry the facts. Numerous medical reports in evidence agree that prior to all of his injuries, the plaintiff suffered from degenerative arthritis of both knees. Dr. Robert L. Fisher, the commissioner’s examining physician, stated in a July 8, 1993 report that was in evidence: “I feel the injury in 1986 clearly was a temporary aggravation of obviously severe pre-existing problems. I would not attribute any permanent disability to the injury of 1986. ”

Fisher’s evidence that the 1986 injury caused only temporary aggravation of the knee condition and caused no permanent disability to the plaintiff was substantial evidence supporting a finding that the plaintiff was not continuously disabled.

“Judicial review 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. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994).

“In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness ... in whole or in part.” (Internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 400, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998).

Another physician, Dr. Glen Taylor, a specialist in orthopedics who treated the plaintiff, stated in a September 16, 1991 report that “I do not think the injury of November of 1986 to his right knee was significant. I see no mention of it in my history about one month later and at that time recommended arthroscopy based upon worsening degenerative changes within his knee.” This evidence from the plaintiffs own treating physician, finding the 1986 injury “not significant,” affords a substantial basis of fact from which the intermittency of disability can be reasonably inferred.

Finally, and perhaps most telling, a late May 18, 1997 report from Taylor, also in evidence, states that Gillis’ injuries after 1981 were “minor” and “did not cause any dramatic deterioration of his knee but rather with time contributed, to further deterioration.” (Emphasis added.) This is another piece of substantial evidence affording a basis in fact from which the commissioner could have inferred that the disability arising out of the “minor” 1986 injury was not continuous from the date of the 1986 injury.

Furthermore, the majority cites no medical evidence in the record to rebut the commissioner’s finding that for the periods from March 1, 1987, through October 13, 1992, and from November 6, 1993, through December 14, 1994, there was “no evidence of medical or physical limitations or impairments attributable to the November, 1986 injury . . . .”

The commissioner’s holding that the disability was not continuous was consistent with the substantial body of medical evidence before the tribunal.

I next turn to the failure of the majority to analyze, decide, or give any explanation for failing to decide a second issue distinctly raised by the defendant employer, White Oak. In its brief, White Oak states: “[A]t no time during these proceedings has the [fund] filed a motion to correct in accordance with Administrative Regulation § 31-301-4. ” Our Supreme Court long has recognized that where the findings and conclusions of a trial commissioner have not been attacked by way of a motion to correct, such findings and conclusions must stand. Mack v. Blake Drug Co., supra, 152 Conn. 525; see also Vanzant v. Hall, 219 Conn. 674, 679, 594 A.2d 967 (1991). A principal treatise, which has been cited as authority more than twenty-five times in the last twenty-five years by our Supreme Court and this court, puts the matter this way: “If the appeal is premised upon or includes a claim that the originating commissioner’s finding of facts was incorrect, then in addition to the petition to review [by the board], one must also file a motion to correct the findings.” J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 261.

The compensation review board, in reviewing the commissioner’s decision, noted that “in its trial brief filed with the commissioner, the fund made no specific arguments or proposed findings regarding the dates of the claimant’s disability for the purposes of determining the 104 weeks” and further found that the fund’s arguments on appeal were “an unreasonable attempt to litigate an issue which it chose not to litigate before the trial commissioner.” In its decision, the board stated:

“The trial commissioner specifically found that for the period from March 1, 1987, through October 13, 1992, and November 6, 1993, through December 14, 1994, there was ‘no evidence of medical or physical limitations or impairments attributable to the November, 1986 injury and therefore such period is not included in the calculation of timely notice under § 31-349 (a).’ . . . Apparently, (it is not explained in its brief) the fund in its appeal has chosen the January 27, 1987 date based upon the trial commissioner’s finding in his October 4,1994 decision that Dr. Taylor assessed a 25 percent permanent partial disability of the claimant’s right knee on January 27, 1987.

“The fund conveniently overlooks, however, that in the October 4, 1994 decision, the trial commissioner awarded all permanent partial disability benefits based upon an October 14, 1992 date of maximum medical improvement. In the instant case, the trial commissioner, in his October 4, 1994 decision, chose to rely upon the October 14, 1992 date of maximum medical improvement as the date of the claimant’s permanent partial disability. This was a factual determination for the trial commissioner to make, and we will not allow the fund to retry the facts before this board, especially where it has not filed a motion to correct.”

The fund’s failure to request factual findings from the commissioner, or to request that he correct the findings he actually made, does not permit the fund to litigate these findings for the first time on appeal to this court. Nor can we upset a commissioner’s factual findings in the face of substantial evidence supporting them.

Because both the plaintiffs treating orthopedic physician and the commissioner’s examining physician found the second injury to be slight, contributing to the impairment only after the passage of time, the commissioner had substantial evidence in the record before him supporting the finding of intermittency in the impairment of the plaintiff.

It is an axiom of our administrative law needing no citation that the scope of judicial review of the rulings of an administrative agency is limited and that administrative remedies must first be exhausted before looking to the courts for relief. A litigant cannot look to the appellate process as a de novo opportunity to litigate matters not raised below.

That principle is applicable here where the administrative process permits a litigant such as the fund both to request particular findings and after a decision is made to move to correct factual findings. Here, the fund did neither.

Where the fund had administrative remedies which it did not use, much less exhaust, I disagree that we should permit it to bypass those remedies and resort to direct appeal to the courts. To permit it to do so flies in the face of the well established purposes of the doctrine of exhaustion of administrative remedies: (1) to effect legislative intent that matters be handled by the administrative agency statutorily charged with them where it is possible to obtain relief there; (2) to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency’s findings and conclusions, thus relieving courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review; and (3) to ensure the integrity of the agency’s role in administering its statutory responsibilities. See Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 281-82, 788 A.2d 60 (2002).

Finally, I address the majority’s contention that the commissioner’s decision resulted from inferences unreasonably drawn from facts found, which it links to the commissioner’s findings that no evidence existed of medical or physical limitations or impairments attributable to the November, 1986 injury during certain time periods. It takes issue with the commissioner’s finding that “[t]here is no evidence of medical or physical limitations or impairments attributable to the November, 1986 injury” “for the period[s] from March 1, 1987, through October 13, 1992, and November 6, 1993, through December 14, 1994, the date when notice was perfected . . . .”

It is again worth noting that neither the fund, nor the majority, points us to any evidence of medical or physical limitations or impairments during those time periods in which the commissioner found no evidence.

The majority does recognize that “if at some point Gillis no longer was physically impaired, then he would not be disabled under § 31-349, and the time from his full recovery until the next impairment would not be included in calculating the first 104 weeks of his disability.” I take issue with the claimed inconsistency the majority finds in paragraph five of the findings. That finding states:

“5) The claimant was found to have reached maximum medical improvement as of October 14,1992, with a total overall entitlement to a permanent impairment of 23.17 percent, fifty-five and three sevenths (55 3/7) weeks as a result of the November 6, 1986 injury.”

I disagree with the majority’s conclusion that “the assignment of a 23.17 percent permanent disability rating subsequent to March 1, 1987, is medically inconsistent with a conclusion that Gillis had recovered fully from the second injury by March 1,1987, and no longer was impaired as of that date.”

The majority fails to appreciate the significance of the fact that our statutory workers’ compensation system contemplates injuries that may be only temporarily totally disabling. See General Statutes § 31-295 (a). Finding number five was made as of an October 14, 1992 date of maximum improvement after the plaintiff had suffered a third injury on April 20,1992. The majority cites no authority for the proposition that once a partial permanent disability rating is established, it must be continuously disabling even if there was surgical amelioration and no further medical evidence of impairment or disability for a long period of time after the injury, or where only with the passage of time the injury contributed to deterioration of the previously arthritic knee resulting ultimately in a partial permanent disability. I find no logic in the majority’s premise precisely because competent medical evidence before the commissioner from the treating physician, Taylor, indicates no continuous impairment from what originally was viewed as a minor injury to a brittle plaintiff suffering from preexisting degenerative arthritis unrelated to any of his work injuries.

I would affirm the conclusions of the compensation review board. It affirmed the commissioner’s ruling that the notice was timely. It observed that the fund had failed to make an adequate record before the commissioner, and failed to use the administrative remedies it had to request draft findings or to move to correct the commissioner’s findings, which administrative regulations and our case law both permitted and obligated it to do. Under those circumstances, the board stated that it would not retiy the facts. Nor should we.

I respectfully dissent.

       General Statutes (Rev. to 1985) § 31-349, as amended by Public Acts 1986, No. 86-31, provides in relevant part: “(a) The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. . . .”
      “We look to the statute in effect at the date of injury to determine the rights and obligations between the parties. See Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988). This rule applies to the employer’s right to transfer liability to the fund pursuant to § 31-349. See Plesz v. United Technologies Corp., 174 Conn. 181, 186-87 and n.2, 384 A.2d 363 (1978).” Dos Santos v. F.D. Rich Construction Co., 233 Conn. 14, 15-16 n.1, 658 A.2d 83 (1995).

       The fund also claims that the board improperly affirmed the commissioner’s decision as to the extent of the fund’s liability in this case. We do not reach that issue, however, because we agree with the fund that White Oak’s notice was not timely. Because the notice was not timely, we conclude that the fund is not liable for the compensation and, therefore, we need not address the extent of any such liability.

       Gillis underwent a total knee replacement in September, 1998.

       We note that White Oak argues that we may consider only the commissioner’s findings in the June 24, 1999 finding and award because the fund never filed a motion to correct seeking to incorporate any or all of the October 4, 1994 findings into the June 24, 1999 decision. Although the fund rebuts that contention, we conclude that we need not address that issue because the June 24,1999 finding and award, by itself, provides the findings necessary for our resolution of the fund’s claim. Although the dissent states that we fail to analyze the issue of the motion to correct and fail to explain why we do not decide that issue, the preceding text provides ample explanation as to why we need not address White Oak’s contention.

       We note that the fund makes the same argument for an even earlier period of time, namely, January 27, 1987, on the basis of the findings in the commissioner’s October 4, 1994 finding and award that we previously discussed. We do not address that argument, however, based on our reasoning in footnote 4. Despite footnote 4, the dissent asserts that it was necessary for the fund to file a motion to correct because without it, the fund essentially is seeking to litigate issues of fact for the first time on appeal. We disagree. The fund does not seek to litigate facts, but rather challenges the commissioner’s conclusion on the basis of the facts that were found. Although the fund did assert an argument that relied on the October 4, 1994 finding and award, the fund also asserted the same argument with regard to findings stated only in the June 24, 1999 finding and award. In essence, the fund has argued on appeal that even if we do not look at the findings from 1994 and focus only on the 1999 decision, the facts found, which are unchallenged, do not support the commissioner’s conclusion. The fund, therefore, has accepted those findings and levied an attack on the commissioner’s conclusion. As previously stated, we base our decision on only the June 24, 1999 finding and award, as that is all that is necessary for the resolution of this appeal.

       We note that although the commissioner’s use of the term “full duty” indicates that he may have based his decision about Gillis’ disabled status on Gillis’ employment record, we need not discuss that implication because our decision relies on other findings.

       Although the dissent asserts that there is no analysis as to how the commissioner’s findings are inconsistent with the medical evidence, it is not our role to review the evidence that was presented to the commissioner in this case. As the dissent itself notes, we must defer to the commissioner’s decision to believe or to disbelieve the evidence on which findings of fact rest. Although the dissent goes into great detail in reviewing the evidence presented in this case, we believe that such review is not appropriate because we are not the fact finder. Bather, we must confine ourselves to the facts as found by the commissioner on the basis of his hearing of the evidence. Furthermore, to the extent that the dissent suggests that we do not analyze how the commissioner’s findings themselves are inconsistent, the present discussion, in addition to what follows, provides a clear analysis.

       Although the dissent argues that the evidence supported the commissioner’s conclusion, the dissent goes outside of the commissioner’s findings and conducts an independent review of the evidence presented to the commissioner. Although some of what the dissent reviews was incorporated into the commissioner’s findings, it is not our role to make our own determination as to the evidence presented to the commissioner. In reviewing the evidence, the dissent, in essence, makes its own findings of fact that support the commissioner’s conclusion. Moreover, we believe the dissent’s evidentiary review on the degree of seriousness of the 1986 iqjury is not relevant to the analysis because the correct focus is on the commissioner’s findings relevant to 1987 and beyond, after the commissioner determined that Gillis had recovered.

       We note that our decision here differs in analysis and reasoning from both of the arguments asserted by the fund and that we do not reach our decision under either of the fund’s specific arguments. Rather, our conclusion that Gillis continuously was impaired from the date of the second injury relies on the conjoined effect of both of the fund’s arguments about the date of injury and the assignment of a permanent disability rating. We further note that our decision does not create a per se rule that the assignment of a permanent disability rating renders the assignee of that condition continuously disabled ad infinitum. As the dissent contemplates, corrective surgery, time or the body’s natural ability to mend itself may allow a person to recover fully from an injury even after having been assigned a permanent disability rating. Those factors, however, are not relevant under the facts of this case.

       We note that we need not deal with precise dates because White Oak’s filing date is so far beyond the end of the 104 week period that a discussion that utilizes months and years yields adequate accuracy.

       On the basis of the complexity of Gillis’ injury record in this case and the multiple hearings held, we note that although we have analyzed the fund’s claim using the June 24,1999 finding that Gillis had reached maximum medical recovery on October 14, 1992, we also consider another possibility with regard to the fund’s claim. In so doing, we note that the commissioner’s October 4, 1994 decision found that with regard to the second injury, Gillis had reached maximum medical improvement on January 27, 1987, and, as a result of the 1986 injury, was left with a 25 percent permanent partial disability. The commissioner also found, in paragraph F of his 1994 findings, which discussed the third injury in 1992, that Gillis had reached maximum medical improvement on October 14, 1992. We further note that in his 1994 final award, the commissioner made reference to White Oak’s liability for the time period of 1986 and 1987, but referred to October 14, 1992, as the date of maximum medical improvement.
      On the basis of the potential ambiguity with regard to the maximum improvement for each injury in the commissioner’s 1994 finding and award, we note two possibilities with regard to the commissioner’s 1999 findings, which relied on the 1994 findings. First, the commissioner, in 1999, determined that Gillis had reached maximum medical improvement for his 1986 injury nearly six years later. Or, the commissioner, in his 1999 finding, confused the date of maximum medical improvement for Gillis’ 1992 injury with the date of maximum medical improvement for the second injury in 1986.
      We note, however, without deciding, that even if that error occurred, it would not change our decision in this case because the commissioner’s decision in 1999 as to Gillis’ disability period still is inconsistent with the facts. Specifically, we note that if Gillis was found to have maximum medical improvement from the second injury on January 27,1987, and was assigned a permanent disability rating on that date, then that assignment of permanent disability is inconsistent with the commissioner’s 1999 finding that Gillis had completely recovered from his 1986 injury and no longer was impaired as of March 1, 1987. In other words, the finding of no impairment on March 1, 1987, is irreconcilable with the prior January 27, 1987, assignment of the permanent disability rating. Under those circumstances, we note that Gillis would be impaired, as he healed, from the date of the second injury to the date of maximum medical improvement on January 27, 1987, and that after that date, he would be deemed impaired because he had received a 25 percent permanent disability. Therefore, he would have been continuously disabled under those circumstances from the date of his second injury.

      Fisher also reported: “I think this man should proceed with a total knee replacement. I think the need for this replacement is related to the preexisting degenerative change in his knee, which undoubtedly would have progressed over the last fifteen years with or without the above injuries and required a replacement with or without those injuries. Regardless of whether this man elects to proceed with a total knee replacement, I think he should give up construction work and find some more sedentary type of occupation. I have not seen X rays of his left knee, but apparently he also has significant degenerative arthritis in this knee as well.”

       Section 31-301-4 of the Regulations of Connecticut State Agencies, entitled “Correction of finding,” provides: “If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.”

       The Vanzant corut stated: “A motion to correct the commissioner’s finding, as provided in § 31-301-4 of the Regulations of Connecticut State Agencies, is the proper vehicle to be used when an appellant claims that the commissioner’s finding is incorrect or incomplete. We have long held that this motion is not merely a technical requirement and that the failure to file this motion justifies dismissal of an appeal, for if an appellant claims that the finding is incorrect, the matter should first be called to the attention of the commissioner that he may have an opportunity to supply omitted facts or restate findings in view of the claims made in the motion.” (Internal quotation marks omitted.) Vanzant v. Hall, supra, 219 Conn. 679.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BERNARD BEWRY v. COMMISSIONER OF CORRECTION
    (AC 22528)
    Mihalakos, Flynn and Hennessy, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

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

      Michele C. Lukban and Jo Anne Sulik, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Bernard Bewry, appeals following the denial by the habeas court of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied his petition for a writ of habeas corpus and (2) denied his petition for certification to appeal. On the basis of our examination of the record and briefs, we conclude that the court properly denied the petition for certification to appeal. Accordingly, we dismiss the appeal.

In his third amended petition for a writ of habeas corpus, the petitioner alleged that he was denied effective assistance of counsel at trial and sentencing because his trial attorneys failed (1) to conduct a proper pretrial investigation that would support impeachment of a witness’ testimony, (2) to file a motion to suppress the petitioner’s confession on the ground that the confession was obtained involuntarily, (3) to have the petitioner’s clothing tested for the presence or absence of gunpowder residue and (4) to proffer expert testimony regarding the ability of a rusty weapon to fire ammunition.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000). “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999). “For the petitioner to prevail on his [underlying] claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” White v. Commissioner of Correction, supra, 58 Conn. App. 170, citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

In the present case, following a hearing during which the petitioner was the sole witness, the court denied the petition for a writ of habeas corpus after concluding that the petitioner had failed to establish that he was prejudiced by counsels’ failure to discover and to employ information that may have been used to discredit a witness’ testimony or that he was prejudiced by the fact that counsel in the petitioner’s first trial failed to file a motion to suppress the petitioner’s statements to the police. The court also concluded that the petitioner failed to show that his counsels’ failure to test his clothing for gunpowder residue was unreasonable. Finally, the court concluded that the petitioner had failed to demonstrate that counsels’ failure to proffer expert testimony regarding the ability of a rusty weapon to fire ammunition was unreasonable or that he was prejudiced by counsels’ failure to proffer such testimony.

After thoroughly reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, supra, 230 Conn. 612.

The appeal is dismissed.

       The petitioner’s habeas claims stem from two separate criminal cases, which were consolidated for trial.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MICHAEL A. YOUNG
    (AC 16090)
    Foti, Mihalakos and Hennessy, Js.
    Argued September 10 —
    officially released November 12, 2002

      Kent Drager, senior assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, was Nina Rosen, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

This case is before us on remand from our Supreme Court. State v. Young, 258 Conn. 79, 101, 779 A.2d 112 (2001). The defendant, Michael A. Young, first appealed to this court from the judgment of conviction, rendered after a jury trial, of three counts of criminal violation of a protective order in violation of General Statutes (Rev. to 1995) § 53a-110b, one count each of breach of the peace in violation of General Statutes § 53a-181 (a) (2), disorderly conduct in violation of General Statutes § 53a-182 (a) (1), reckless endangerment in the second degree in violation of General Statutes § 53a-64 and criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A). In his first appeal, the defendant claimed that “the trial court improperly (1) instructed the jury that the defendant’s failure to produce a certain witness permitted the jury to infer that the witness’ testimony would have been adverse to the defendant, (2) precluded evidence of the victim’s prior misconduct, (3) admitted evidence of a telephone conversation without a proper evidentiary foundation, (4) precluded the defendant from impeaching the victim regarding an alleged act of fraud and (5) allowed the state to impeach the defendant’s character with misconduct evidence.” State v. Young, 57 Conn. App. 566, 568, 750 A.2d 482 (2000), rev’d in part, 258 Conn. 79, 779 A.2d 112 (2001). In that decision, this court addressed all of the defendant’s claims except the claim concerning the prior misconduct evidence. Our Supreme Court granted the state’s petition for certification to appeal and ultimately remanded the case to this court with direction to consider the unreviewed claim. Having considered that claim, we conclude that the trial court properly admitted the evidence of the defendant’s prior misconduct. Accordingly, we affirm the judgment of the trial court.

The facts that the jury reasonably could have found are set forth in both State v. Young, supra, 258 Conn. 84-88, and State v. Young, supra, 57 Conn. App. 568-70. The following facts are necessary to resolve the defendant’s remaining claim.

Before the trial commenced, the defendant filed a motion in limine seeking to preclude the state from inquiring into his prior felony convictions. Regarding that motion, the court ruled to exclude the defendant’s felony conviction for marijuana possession because it was more prejudicial than probative. At trial, the defendant testified in his defense about incidents that occurred on November 25 and 30, but invoked his privilege against self-incrimination regarding the charged offenses stemming from an August 4,1995 incident. On cross-examination, the defendant offered unsolicited testimony that he had been wrongly arrested and harassed by the police. Thereafter, the state questioned the defendant about his prior acts of misconduct. Defense counsel objected to the line of questioning, arguing that it was improper for the state to inquire into the underlying facts of the defendant’s prior arrests. The court overruled the defendant’s objection, finding that the defendant had opened the door to the cross-examination regarding his prior arrests by mentioning them in his response to the state’s question about why he had believed he would be arrested for the November, 1995 incident.

In his original brief to this court, the defendant claimed that the trial court improperly allowed the state to impeach him with prior acts of misconduct. He further claimed that the prosecutor’s line of questioning with regard to those prior acts constituted prosecutorial misconduct requiring reversal of his convictions.* We disagree.

At the outset, we set forth our standard of review and the applicable law. “A trial court’s ruling on the admissibility of evidence is afforded great deference. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 263, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). Moreover, we have previously recognized that “if a party delves into a particular subject during examination, he is said to have ‘opened the door’ for further examination regarding that subject. State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice.” (Internal quotation marks omitted.) State v. Morascini, 62 Conn. App. 758, 766, 772 A.2d 703, cert. denied, 256 Conn. 921, 774 A.2d 141 (2001).

After reviewing the record, we conclude that the court properly exercised its discretion in finding that the defendant had opened the door to questions about his prior arrests and that the state was entitled to cross-examine him on the subject. Therefore, we conclude that the court properly permitted evidence of the defendant’s prior acts of misconduct. Finally, we do not agree that the cross-examination so prejudiced the defendant as to warrant a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       This court remanded the case to the trial court after reversing one judgment on the ground of the improper missing witness instruction and affirming the judgments pertaining to the defendant’s two other convictions for criminal violation of a protective order.

       The state sought certification to appeal on the issue of whether State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), should be applied retroactively. State v. Young, 253 Conn. 922, 754 A.2d 799 (2000). Malave, our Supreme Court abandoned the missing witness instruction in criminal cases, also known as the Secondino instruction. See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). Our Supreme Court in Young did not reach the merits of the certified issue. It “nevertheless conclude [d] that the trial court abused its discretion in granting the state’s motion for a Secondino charge and, consequently, [that] the charge should not have been given.” State v. Young, supra, 258 Conn. 84.

       The trial transcript reveals that the following relevant colloquy concerning the state’s cross-examination of the defendant:
      “[Prosecutor]: So, why did you feel that you would get arrested in this [November 25, 1995] incident? If you did nothing wrong, why did you feel you were going to get arrested?
      “[The Defendant]: Because the police harass me.
      “Q. Excuse me?
      “A. The police harass me.
      “Q. The police harass you?
      “A. Yes.
      “Q. Which police harass you?
      “A. Troop C.
      “Q. Troop C. All the police officers at Troop C harass you?
      “A. Most of them.
      “Q. And why do they do that?
      “A. I don’t know why.
      “Q. Maybe because they don’t do that, Mr. Young, maybe you just think they do. Could that be it?
      “A. Well, they arrest me for things I don’t do.
      “Q. They arrest you for things you don’t do?
      “A. Yes.
      “Q. In fact, you are totally innocent of everything and they go around arresting you. Is that what you are saying?
      “A. Most of the time.
      “Q. Most of the time? How many times have they arrested you for things that you haven’t done, Mr. Young?”
      At that point, defense counsel objected on the ground that prior arrests are not indicative of guilt. The court overruled the objection, finding that the defendant had opened the door to the question, and the court allowed the prosecutor to continue.
      “[Prosecutor]: How many times, Mr. Young, have they arrested you for no reason whatsoever? Mr. Young? Are you counting?
      “[The Defendant]: A lot.
      “Q. And each and every one of those times, you did nothing wrong, is that what you are saying?
      “A. Two of the times I was sleeping in my house.
      “Q. And they burst in and arrested you? Is that what you are saying?
      “A. Once, I lived in a condemned building. I was told to stay there.
      “Q. I’m sorry, once you lived in a condemned building?
      “A. I lived in a condemned building. I lived in this building and they condemned it, and then I was told by my attorney to stay there, not to move out, and they arrested me there for living in a condemned building.
      “Q. Okay.
      “A. And then the time when Brandy said I hit her head against the wall. I was sleeping when the police officer came in.
      “Q. Okay, all the other times when you weren’t in your house or sleeping, all those other times, you were arrested for things that you didn’t do, is that right?
      * ** *
      “Q. About how many times, Mr. Young, other than the two incidents when you say you were at home sleeping or — how many times were you arrested for no reason?
      “A. Off the top of my head, two more times, anyway. Once for interfering and once for reckless driving.
      “Q. And each one of those times, you did nothing wrong in those cases. Is that right?
      “A. No.
      “Q. Yes, no?
      “A. Well, I—
      “Q. Did you do anything wrong in those cases or did you not deserve to be arrested?
      “A. No, I didn’t.
      “Q. You didn’t do anything wrong.
      “A. No. “Q. In fact, you never do anything wrong, do you, Mr. Young?”

       With respect to the defendant’s argument that the prosecutor’s questioning constituted misconduct that deprived him of his right to a fair trial, the defendant does not adequately support that claim. We therefore conclude that any argument that the prosecutor’s questions constituted prosecutorial misconduct and deprived the defendant of his right to a fair trial has been waived. Nevertheless, our review of the evidence convinces us that the prosecutor’s questioning does not rise to the level of prosecutorial misconduct.


text:
    EDDIE PLAYER v. COMMISSIONER OF CORRECTION
    (AC 22534)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

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

      Scott J. Murphy, state’s attorney, and Bruce R. Lockwood and Angela R. Macchiarulo, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The habeas court denied the petitions filed by the petitioner, Eddie Player, for a writ of habeas coipus and for certification to appeal from the denial of that petition. The petitioner appealed, claiming that the court improperly (1) excluded from evidence the prior testimony of the petitioner’s witness relating to his claim of actual innocence and (2) denied his petition for certification to appeal. We dismiss the appeal.

The petitioner was convicted by a jury of sale of narcotics, sale of a narcotic substance within 1500 feet of an elementary school and a public housing project, and possession of narcotics. The defendant’s conviction was affirmed by this court in State v. Player, 58 Conn. App. 592, 753 A.2d 947 (2000). The jury reasonably could have found the following facts. “On September 9, 1996, the New Britain police department employed Vera Pottle as an informant to buy drugs at the comer of Irwin Place and North Street. [Using marked bills,] Pottle bought $20 worth of crack cocaine from the [petitioner] in a vacant lot that was within 1500 feet of an elementary school and a public housing project. She took the crack cocaine to Officer Jerry Chrostowski who had driven her to the area and waited nearby. Pottle and Chrostowski went back to the lot, and Pottle identified the [petitioner] as the person who sold the cocaine to her.” Id., 594. The police arrested the petitioner and found one of the marked bills in his possession. Pottle testified against the petitioner at trial and again identified him as the person from whom she had purchased the narcotics. Id.

The petitioner subsequently sought a writ of habeas corpus. In his petition, which was amended twice, the petitioner alleged actual innocence and ineffective assistance of counsel. At the first hearing on his second amended petition, the petitioner called only Pottle as a witness. Pottle recanted her trial testimony that the petitioner was the individual from whom she had purchased narcotics. The hearing was continued. When new counsel for the respondent attempted to cross-examine Pottle about the truthfulness of her testimony at the criminal trial, Pottle invoked her fifth amendment right not to incriminate herself to avoid a potential charge of perjury. Pottle also refused to answer similar questions directed to her by the court. Counsel for the respondent asked that Pottle’s testimony be stricken from the record because the respondent was denied the right to cross-examine the witness. The court, Alander, J., struck Pottle’s testimony and declared a mistrial.

Prior to the second hearing on his petition, the petitioner filed a motion in limine seeking to have a transcript of Pottle’s testimony at the first hearing admitted into evidence pursuant to § 8.6 of the Connecticut Code of Evidence. Counsel for the respondent objected to the motion in limine because he had not had an opportunity to cross-examine Pottle. The parties submitted the case to the second habeas court, Hon. Anthony V. DeMayo, judge trial referee, on the record for rulings on the motion in limine and the petitioner’s ineffective assistance of counsel claim.

The court denied the petition, concluding that Pottle’s testimony was not admissible pursuant to § 8.6 (1) of the Connecticut Code of Evidence because the respondent had not had an opportunity to develop Pottle’s testimony at the first habeas hearing, and the petitioner’s trial counsel had exhibited more than reasonable competence in representing the petitioner in the criminal trial. The court also denied the petition for certification to appeal to this court.

“[A] substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial.” Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994). To prevail on a claim of actual innocence, the petitioner must satisfy two criteria. “First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime. Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). It is an open question whether a habeas claim of actual innocence must be based on new evidence. Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999); Miller v. Commissioner of Correction, supra, 789-90 n.29.” (Internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 733, 789 A.2d 1046 (2002).

The petitioner’s claim of actual innocence is based on an evidentiary ruling made with respect to Pottle’s testimony at the first habeas hearing. The petitioner has failed to carry his heavy burden of demonstrating by clear and convincing evidence that he actually is innocent of the crimes of which he was convicted. The issue raised with respect to Pottle’s testimony is an evidentiary one. We review evidentiary claims under an abuse of discretion standard. See State v. Soto, 59 Conn. App. 500, 505, 757 A.2d 1156, cert. denied, 254 Conn. 950, 762 A.2d 906 (2000). The petitioner’s claim is governed by § 8.6 (1) of the Connecticut Code of Evidence. When Pottle invoked her fifth amendment privilege at the first habeas hearing, the respondent was denied its right to develop the witness’ testimony. The court, therefore, did not abuse its discretion.

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

The appeal is dismissed.

       See General Statutes § 21a-278 (b).

       See General Statutes § 21a-278a (b).

       See General Statutes § 21a-279 (a).

       The petitioner has not appealed from the court’s judgment with respect to his claim of ineffective assistance of counsel.

       Apparently, Pottle was incarcerated at the time of the petitioner’s criminal trial and had pleaded guilty to violation of probation as a drug-dependent person. She hoped to be admitted to a drug rehabilitation program rather than serve time in prison. At the first habeas hearing, she testified that she believed that she had to cooperate with the prosecutor in the petitioner’s case to be recommended for a drug rehabilitation program. The same state’s attorney prosecuted both the petitioner and Pottle.

       Following Pottle’s recantation, counsel representing the respondent asked to be allowed to withdraw from the case, as she had prosecuted the petitioner in the criminal case and recognized that she would become a witness in the habeas proceeding. The court granted the respondent’s request for a continuance to secure new counsel.

       Pottle was represented by a special public defender at the continued hearing.

       Connecticut Code of Evidence § 8.6 provides in relevant part: “The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, provided (A) the issues in the former hearing are the same or substantially similar to those in the hearing in which the testimony is being offered, and (B) the party against whom the testimony is now offered had an opportunity to develop the testimony in the former hearing. . . .”


text:
    BARBARA BEECHER v. SARAH J. GREAVES
    (AC 22404)
    Mihalakos, Flynn and Hennessy, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

      Kenneth W. Williams filed a brief for the appellant (plaintiff).

      Michael S. Lynch filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

In these two professional negligence actions, the plaintiff, Barbara Beecher, appeals from the judgments of the trial court, rendered after the court instructed the jury to return verdicts in favor of the defendant, Sarah J. Greaves. On appeal, the plaintiff claims that in each case, the court improperly (1) excluded the testimony of her expert witness and (2) directed a verdict for the defendant. We affirm the judgments of the trial court.

The record discloses that in 1996, the plaintiffs property was sold at auction following one of two foreclosure actions. In 1997 and 1998, the plaintiff commenced these professional negligence actions, alleging that the defendant attorney negligently had represented the plaintiff in connection with the two foreclosure actions. The professional negligence actions were tried together in September, 2001. After the presentation of the evidence, the defendant requested a directed verdict in each case, which the court granted. This appeal followed.

The plaintiff first claims that the court abused its discretion by precluding her expert witness, Edward F. Heberger, a real estate appraiser, from testifying that on or about April 15, 1994, his now defunct real estate appraising firm had appraised her property for $590,000, a value substantially greater than the $394,000 that the property was sold for at the foreclosure sale, which was conducted two years later.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn. App. 555, 568, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001), cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002).

Practice Book § 13-4 (4) provides in relevant part that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . .”

The plaintiff here could have provided notice that she intended to offer Heberger’s testimony at trial much earlier than she did. The actions were filed in 1997 and 1998. In August, 2000, both actions were called for trial. At that time, the plaintiff filed a motion for an extension of discovery and postponement of the trial. The court granted that motion, allowing the plaintiff until October 1, 2000, to make proper disclosure of expert witnesses. On September 19, 2000, the plaintiff disclosed that the only expert she intended to call at trial was attorney Richard P. Weinstein, who was expected to testify as to liability issues only. It was not until on or about August, 21, 2001, weeks before the trial was scheduled to commence, that the defendant’s counsel learned that the plaintiff intended to call Heberger as an expert. The defendant filed a motion to preclude Heberger’s testimony on the grounds that the late disclosure would cause the defendant undue prejudice and unduly would interfere with the orderly progress of the trial. On the basis of the record, we cannot conclude that the court abused its discretion in precluding Heberger’s testimony.

The plaintiff next claims that the court improperly directed a verdict in favor of the defendant in both of her negligence actions. “Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail.” (Internal quotation marks omitted.) Colombo v. Stop & Shop Supermarket Co., 67 Conn. App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002).

“In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages. 4 R. Mallen & J. Smith, Legal Malpractice (4th Ed. 1996) § 32.9, pp. 172-74. Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998).” (Internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 187-88, 804 A.2d 1018 (2002).

In the present case, the plaintiffs expert, Weinstein, failed to provide any testimony on the issue of causation, which was fatal to her negligence claims. Accordingly, we conclude that the court was correct in directing the jury to return verdicts in favor of the defendant in both of the plaintiffs actions because she failed to present the proof required by law to prevail on her claims.

The judgments are affirmed.


text:
    CHARLES E. JELLISON v. PETER B. O’CONNELL, CONSERVATOR (ESTATE AND PERSON OF ANN DEVANEY JELLISON)
    (AC 22715)
    Foti, SchaUer and West, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

      Charles E. Jellison, pro se, the appellant (plaintiff), filed a brief.

      Daren R. Alteri filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The pro se plaintiff, Charles E. Jellison, appeals from the trial court’s judgment of nonsuit rendered against him. On appeal, the plaintiff apparently claims that the court improperly rendered the judgment of nonsuit.

We decline to review the plaintiffs claim because he has failed to provide any legal authority for or analysis of his claim. “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 359, 794 A.2d 1043 (2002).

“[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Baris v. Southbend, Inc., 68 Conn. App. 546, 550-51, 791 A.2d 713 (2002). We therefore decline to review the plaintiffs claim and deem it abandoned.

The judgment is affirmed.


text:
    RICHARD KOROLYSHUN, ADMINISTRATOR (ESTATE OF MARGUERITA MCMULLEN) v. KEVIN CONDON, ADMINISTRATOR (ESTATE OF PAUL GNALL)
    (AC 22278)
    Mihalakos, Flynn and Hennessy, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

      Michael Feldman filed a brief for the appellant (defendant).

      William F. Gallagher, Hugh D. Hughes and Stephen Jacques filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant in this wrongful death action, Kevin Condon, acting in his capacity as the administrator of the estate of Paul Gnall, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Richard Korolyshun, acting in his capacity as the administrator of the estate of Marguerita McMullen. On appeal, the defendant argues that the court improperly denied his motion for a directed verdict or, in the alternative, his motion to set aside the verdict, on the basis of insufficient evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incident underlying this appeal, McMullen was seventy-seven years old and Gnall was sixty-four years old. McMullen and Gnall resided together in a single-family home in Seymour. From all accounts, McMullen and Gnall were quiet companions who shared an interest in their pets. McMullen typically tended to inside chores, such as cooking and housekeeping, and was known to keep things tidy. She did not perform chores typically performed outdoors. In contrast, Gnall performed chores outside of the house and other chores that would have been cumbersome for McMullen, who was less active physically than Gnall. He spent a lot of time in his yard and in his basement, and kept both areas strewn with garbage and junk. In contrast to McMullen’s tidy kitchen on the upper floor of the house for which she cared, the basement was cluttered.

A wood burning stove, used to bum both wood and garbage, was located in the basement of the house. Gnall chopped wood for the stove and kept a woodpile in front of his garage near an area where ashes were dumped after being removed from the stove. On the evening of March 13, 1997, Gnall cleaned ashes from the wood stove and placed them in either a cardboard box or in a paper bag near the stove. An ember in the ashes ignited a fire that spread through the home and, ultimately, led to the deaths of both McMullen and Gnall. Investigators found Gnall’s body on the enclosed rear porch of the house. He had a lighter in his pocket. McMullen’s body was found in the upstairs hallway of the house. Both victims perished as a result of smoke inhalation.

The plaintiff thereafter filed this action seeking monetary damages. He alleged that Gnall’s negligence in handling and discarding the ashes from the stove caused McMullen’s death. The jury awarded the plaintiff $150,000. The court denied the defendant’s motion for a directed verdict at the close of the evidence and thereafter denied the defendant’s motion to set aside the verdict. The defendant thereafter brought the present appeal.

The defendant’s appeal focuses on the issue of causation. The defendant argues that the evidence adduced at trial did not support a finding that Gnall handled or disposed of the ashes from the stove on the night of the fire or at any other time. The defendant preserved that issue for our review in his motion for a directed verdict and in his motion to set aside the verdict.

Our standard of review of the court’s refusal to grant the motions “requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn. App. 556, 558-59, 799 A.2d 1093 (2002). “Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 306, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

In its memorandum of decision denying the defendant’s motion to set aside the verdict, the court stated that the case “present[ed] extremely close questions regarding sufficiency of evidence and causation. However, the court has determined that the jury’s verdict has adequate, although hardly abundant, support in the evidence.” After thoroughly reviewing the evidence adduced at trial, we agree with the court and conclude that the jury reasonably could have found that Gnall caused the fire that caused McMullen’s death.

Despite hotly contesting several issues at trial, the defendant does not contest on appeal the fact that inappropriate disposal of ashes from the stove caused the fire. The parties also appear to agree that either McMullen or Gnall removed and disposed of the ashes; the defendant did not attempt to prove at trial, nor does he claim on appeal, that a third party was in the house on the night of the fire. At trial, the parties elicited testimony concerning the age, and everyday habits and traits of both McMullen and Gnall. For example, except when taking a bus, McMullen was not seen outside the house. Gnall often was spotted chopping wood in an area where ashes had been thrown for some time. McMullen had objected to Gnall’s lack of neatness. It was not unreasonable for the jury to infer that it was more likely than not that Gnall, rather than McMullen, removed the ashes from the cellar stove for which Gnall cut the wood, which fueled the stove, when the ashes from prior fires were deposited near his wood chopping area. The reasonable and logical inferences that our law permitted the jury to draw support the jury’s verdict.

The defendant points out that the plaintiff did not proffer any direct evidence to demonstrate that Gnall had caused the fire. The plaintiff did not need to do so. Our law required the plaintiff to prove, by a preponderance of the evidence, that Gnall more likely than not caused the fire. The plaintiff was free to satisfy her burden of proof by persuading the jury to rely on circumstantial evidence. The universe of potential tortfeasors in this case was limited to two persons; the jury was faced with the task of deciding which party, either McMullen or Gnall, more likely than not disposed of the ashes from the stove on the night of the fire. The evidence supported its finding that Gnall more likely than not did so and that his actions caused McMullen’s death. Accordingly, we conclude that the court properly denied the defendant’s motion for a directed verdict and that its decision to deny the defendant’s motion to set aside the verdict reflected a sound exercise of its discretion.

The judgment is affirmed.


text:
    BROCK R. MARLIN v. JENNIFER L. MARLIN
    (AC 22624)
    Laveiy, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

      BrockR. Marlin, pro se, the appellant (plaintiff), filed a brief.

      Stanley M. Goldstein and Christine D. Brown filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Brock R. Marlin, appeals from the trial court’s postjudgment order that he pay certain of the attorney’s fees of the counsel for the minor child in this dissolution of marriage action.

The record discloses that the court dissolved the parties’ marriage on October 7,1998. There is one minor child of the marriage. On June 28,2000, the plaintiff filed a motion to modify visitation. Thereafter, the defendant, Jennifer L. Marlin, filed a motion for sole custody and appointment of a guardian ad litem for the minor child, and the plaintiff filed a motion for the appointment of an attorney for the minor child.

On October 2, 2000, the court heard argument on those motions and ordered that attorney Catherine P. Whelan be appointed the attorney for the minor child. The court also ordered that the parties share equally the cost of Whelan’s $5000 retainer. On December 18, 2000, the plaintiff filed a motion to disqualify Whelan, which the court denied. On November 30, 2001, Whelan filed a motion for counsel fees. On December 10, 2001, the court heard argument on Whelan’s motion. Prior to the hearing, the court requested that the parties submit financial affidavits. The defendant’s counsel submitted a current financial affidavit; however, the plaintiffs counsel indicated that she had only an unsigned affidavit dated August 22, 2001. The court then took a recess to enable the plaintiffs counsel to contact the plaintiff, and to advise him that the court would proceed with Whelan’s motion and that it needed a current financial affidavit.

After the recess, the plaintiffs counsel indicated that the plaintiff had come to the court during the recess and provided her with a signed, current financial affidavit. She also indicated that despite the fact that the plaintiff would not attend the hearing, she was prepared to proceed with argument on Whelan’s motion. Upon proceeding, Whelan provided the court with a complete accounting of the legal services that she had rendered on behalf of the minor child in the matter and stated for the record that she had sent monthly statements to both parties. Whelan also indicated that she was prepared to testify regarding her legal services. The court asked the parties whether they had any questions regarding Whelan’s fees in connection with the matter. The defendant’s counsel stated that he had no objection to her fees. The plaintiffs counsel indicated that she had some questions, but when offered the opportunity to question Whelan, she stated that she did not want to question her and that she did not “disagree with her bill.”

On the basis of the evidence presented, the court determined that the costs incurred by Whelan were “fair and reasonable” and that there was a balance due of $8308. The court ordered that the plaintiff pay $6000 and the defendant pay $2308 of the remaining balance. No objection was made by either party regarding the court’s ruling. This appeal followed.

On appeal, the plaintiff claims that in ruling on Whelan’s motion for counsel fees, the court abused its discretion because (1) there was insufficient evidence to support its finding that $8308 constituted fair and reasonable attorney’s fees, (2) it already had issued an order that the parties were to share equally Whelan’s fees and (3) its order that the plaintiff pay 75 percent of Whelan’s fees was punitive. We disagree.

“An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. ... In family matters, a trial court is vested with broad discretion. . . . Appellate review of the exercise of that discretion is limited to determining (1) whether the trial court correctly applied the law, and (2) whether the trial court could reasonably have concluded as it did. . . . Every reasonable presumption must be given to support the correctness of the judgment. . . . Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case.

“Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. . . . This court may not substitute its own opinion for the factual findings of the trial court.” (Citations omitted.) Brown v. Brown, 36 Conn. App. 597, 600-601, 652 A.2d 527, cert. denied, 232 Conn. 917, 655 A.2d 260 (1995).

“The ultimate question on appellate review is whether the trial court could have concluded as it did.” Id., 601. After a careful examination of the record and the appellate briefs, we are not persuaded that the court abused its discretion. Moreover, there is absolutely no evidence that the court’s ruling was punitive.

The judgment is affirmed.

       Previously, on June 21, 2001, Whelan filed a motion for counsel fees; however, the court did not rule on that motion.


text:
    JESUS RUIZ ET AL. v. KEITH GATLING
    (AC 22391)
    Foti, Schaller and West, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

      Jesus Ruiz, pro se, the appellant (named plaintiff), filed a brief.

      Keith Gatling, pro se, the appellee (defendant), filed a brief.
   Opinion

PER CURIAM.

The pro se plaintiff Jesus Ruiz appeals from the trial court’s judgment denying his petition for a writ of audita querela in which he sought to enjoin the judgment of eviction rendered against him in the underlying summary process action. On appeal, the plaintiff claims that the court improperly failed to hear his claim for a setoff against the amount of rent due the defendant, Keith Gatling. We affirm the judgment of the trial court.

“[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999). Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. Zanoni v. Hudon, 42 Conn. App 70, 77, 678 A.2d 12 (1996).” (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 617-18, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § [60-5] .... It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative. . . . We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” (Citations omitted; internal quotation marks omitted.) Id., 621.

The record contains no memorandum of decision. We, however, have reviewed the unsigned transcript of the hearing afforded the plaintiff. The court found that the plaintiff was not credible and therefore denied the plaintiffs request to enjoin the eviction. Where the trial court is the arbiter of credibility, this court does not disturb findings made on the basis of the credibility of witnesses. See Aetna Casualty & Surety Co. v. Pizza Connection, Inc., 55 Conn. App. 488, 498, 740 A.2d 408 (1999).

The judgment is affirmed.

       Carmen Reyes was a plaintiff in the trial court, but is not a party to this appeal. We therefore refer in this opinion to Jesus Ruiz as the plaintiff.

       “A writ of audita querela is a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense . . . arising, or at least raisable for the first time, after judgment.” (Internal quotation marks omitted.) Oakland Heights Mobile Park, Inc. v. Simon, 40 Conn. App. 30, 33, 668 A.2d 737 (1995).

       That is the plaintiffs statement of the issue presented in his brief. As this court concludes, the trial court denied the plaintiffs petition because he was not credible.