author: DRANGINIS, J.

text:
    VERNON STANCUNA v. ZONING BOARD OF APPEALS OF THE TOWN OF WALLINGFORD ET AL.
    (AC 20902)
    Foti, Dranginis and Hennessy, Js.

      Argued June 7
    officially released October 30, 2001

      Hugh I. ManJce, with whom, on the brief, was Michael J. Brandi, for the appellant (plaintiff).

      Gerald E. Farrell, Sr., assistant town attorney, for the appellee (named defendant).

      E. James Loughlin, for the appellee (defendant Richard Stevens).
   Opinion

DRANGINIS, J.

The plaintiff, Vernon Stancuna, appeals from the judgment of the trial court dismissing his appeal from the decision by the defendant zoning board of appeals of the town of Wallingford (board), granting the application by the defendant Richard Stevens for a variance. The plaintiff claims that the court improperly concluded that (1) Stevens had established a hardship, (2) the existence of a nonconformity was a proper basis for a finding of legal hardship and (3) the variance at issue did not violate the prohibition against the expansion of nonconforming uses. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of the plaintiffs appeal. The plaintiff is the owner of property at 464 North Colony Road in Wallingford. Stevens is the owner of property at 468 North Colony Road that abuts the plaintiffs property and is the subject of this dispute. The decision at issue in this appeal is the second of two decisions the defendant board made within a four month period concerning the subject property and involving essentially the same side yard variance.

On March 10, 1998, Stevens filed an application for a zoning variance with the board. At the time of filing, Stevens had an option to buy the subject property, which is located in a zone that requires a twenty foot side yard setback. The first application sought a variance from the side yard setback requirement of twenty feet, which is imposed by section 5. IB of the Wallingford zoning regulations. The variance would allow Stevens to construct a new commercial building with side yards of three feet on the plaintiffs side of the property and nine feet for the other side yard. That first application was denied. No appeal was taken from that denial. The court noted that although the record is not clear, the denial of the first application may have been based on some confusion by the board as to whether the hardship claimed by Stevens was economic or non-economic.

On June 26, 1998, Stevens filed a second application to the board for a variance seeking from the required twenty foot side yard setbacks to thirteen feet on the south side, which is the plaintiffs side, and to three feet on the north side. The board conducted a public hearing on this application on July 8, 1998. The board granted the variance on July 15, 1998. The plaintiff appealed from that decision to the Superior Court, which dismissed his appeal. This appeal followed.

Our standard of review is well established. “fCJourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996). The trial court’s function is “to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Where the board states its reasons on the record we look no further.” (Citations omitted; internal quotation marks omitted.) Id., 547-48. “Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Parks v. Planning & Zoning Commission, 178 Conn. 657, 662, 425 A.2d 100 (1979). More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. . . . Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). We, in turn, must determine whether the court properly concluded that the board’s decision to grant the variance was arbitrary, illegal or an abuse of discretion. Id., 205-206.” (Internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 532, 772 A.2d 624 (2001).

“General Statutes § 8-6 (a) (3) provides that zoning boards of appeal may vary the application of zoning regulations if (1) the variance is shown not to affect substantially the comprehensive plan and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to carrying out the general purpose of the plan. Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 273, 624 A.2d 909 (1993), citing Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368. The statute provides that the board may grant variances with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured. ... To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control. . . . The applicant bears the burden of demonstrating the existence of ahardship.” (Internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, supra, 62 Conn. App. 532-33.

I

The plaintiff first claims that the court improperly concluded that a legal hardship existed that peimitted the granting of a variance. Specifically, the plaintiff claims that the court improperly determined that the side yard encroachment constituted a legal hardship rather than an economic or personal hardship. We disagree.

The court in its memorandum of decision stated: “The Wallingford zoning board of appeals granted Stevens’ application for a variance dated June 26, 1998, stating as the reason, ‘[eliminate a problem because property predates zoning.’ A careful review of the record indicates that this reason is legally and reasonably supported. The record reveals that the lot does predate zoning. Therefore, the imposition of twenty foot side yard setbacks would create an unusual hardship. Further, the granting of the application for variance is within the purview of § 8-6 (a) (3) in several respects. Granting the variance was consistent with the comprehensive zoning plan as it would eventually eliminate a residential use in a commercial zone. Further, granting the application, the public health, safety, convenience and welfare as expressed by the public safety director and the state traffic commission was conserved in the following respects:

“a.) Eliminate a curb cut on North Colony Road
“b.) Improved vehicular access to the subject premises and 478 North Colony Road
“c.) Improved off street parking and off loading, etc., at the subject property and 478 North Colony Road.”
“Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 368, 423 A.2d 90 (1979); Ward v. Zoning Board of Appeals, [153 Conn. 141, 143, 215 A.2d 104 (1965)]; Kelly v. Zoning Board of Appeals, [21 Conn. App. 594, 598, 575 A.2d 249 (1990)]. A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance; Krejpcio v. Zoning Board of Appeals, [152 Conn. 657, 662, 211 A.2d 687 (1965)]; and neither financial loss nor the potential for financial gain is the proper basis for granting a variance. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972).
“In order to determine whether the board properly granted the subject variance, we must first consider whether the board gave reasons for its action. Scalzo v. Danbury, 224 Conn. 124, 129, 617 A.2d 440 (1992). . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . . The [decision] must be sustained if even one of the stated reasons is sufficient to support it. . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action. . . . Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991). Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for a basis for the board’s decision. Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993).” (Citation omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207-208.

Applying our standard of review, we conclude that the court properly found that Stevens’ claimed hardship is legal and not economic or self-created. There was a valid basis for granting his variance because adherence to the strict letter of the zoning regulation would cause unusual hardship. Without the variance, the twenty foot setback requirement on the defendant’s fifty foot lot would limit him to constructing a ten foot wide building in a commercial zone. As the board reasoned, without the variance, the twenty foot setback would effectively perpetuate the property’s present nonconforming use, a single-family residence in a commercial zone. We conclude that the court properly sustained the board’s decision that there is a valid hardship basis for granting the variance.

II

The plaintiffs second claim is that the court improperly concluded that the existence of a nonconforming use was a proper basis for a finding of legal hardship. We disagree.

As a threshold matter, we disagree with the plaintiffs characterization of the court’s conclusion. The court did not conclude that the nonconforming use was the basis for the board’s finding of a legal hardship. Rather, the court concluded that the record revealed that the lot predated zoning, that granting the variance was consistent with the comprehensive zoning plan, and that granting the variance promoted the public health, safety, convenience and welfare of the area. The court also concluded that the use of the property was residential in a commercial zone and that this use was nonconforming.

That a variance will eliminate a nonconforming use constitutes independent grounds for sustaining the granting of a variance. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). In this case, the variance eliminates the nonconforming residential use of the property and allows a commercial use in a commercial zone. The property is in a commercial zone. Currently occupying the property is a single-family house that is to be tom down prior to the construction of a new building. Single-family houses are not permitted in that commercial zone, so the existing structure represents a nonconforming use.

The variance is in keeping with the town’s comprehensive plan. See id. The changes appurtenant to the variance will conserve the public health, safety and welfare of the surrounding neighborhood. The record in this case demonstrates various support for the board’s decision to grant the variance. We conclude that the court’s determination with respect to eliminating a nonconforming use provides additional support for its judgment affirming the board’s decision.

Ill

The plaintiff next claims that the court improperly held that the variance did not violate the prohibition against the expansion of nonconforming uses. We disagree.

Generally, there normally are two methods under zoning regulations by which an owner may legally use his property in a nonpermitted manner. First, his property may qualify under the regulations for the continuance of a nonconforming use after the adoption of zoning. Second, he may thereafter obtain a variance of use from the zoning board of appeals. See id. “A nonconformity is a use or structure prohibited by the zoning regulations but is permitted because of its existence at the time the regulations are adopted. ... On the other hand, a variance is a prohibited use or structure that is permitted by the board, pursuant to its authority under the regulations.” (Citation omitted.) Id.

In this case, the court did not conclude that the variance was an expansion of a nonconformity. Rather, it concluded that the board had properly granted the variance. The board did not allow for a continuance and expansion of the nonconforming use, rather, it granted Stevens’ application for a variance under the applicable regulations. The defendant is not increasing the size of the existing structure or building a larger one at the same location. Therefore, no expansion of the nonconforming use can occur. The existing house is to be razed and replaced with a new structure at a different location on the property. The variance application was submitted for the board’s consideration as if the lot were vacant. As a vacant lot, no expansion of a nonconforming use could occur. The court properly concluded that the board had properly granted the variance.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    ANDREW H. MARCHELL ET AL. v. LYNN W. WHELCHEL, JR.
    (AC 20604)
    Foti, Schaller and O’Connell, Js.
    Argued May 31
    officially released October 30, 2001

      Peter M. Appleton, with whom was Peter T. Evans, for the appellants (plaintiffs).

      Joseph M. Musco, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Andrew H. Marchell, appeals from the judgment of the trial court, rendered following a jury trial, in favor of the defendant, Lynn W. Whelchel, Jr., in this medical malpractice action. The plaintiff claims on appeal that the court improperly (1) denied his motion to set aside the verdict, (2) admitted into evidence irrelevant and prejudicial testimony of the defendant’s medical expert, (3) limited his closing argument, (4) refused to allow him to amend his complaint and (5) instructed the jury. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. On December 12, 1995, the plaintiff consulted a podiatrist, Andrew E. Schwartz, regarding the removal of a bunion on his left foot. Schwartz examined the plaintiff to determine if he was fit to undergo a bunionectomy. His examination revealed that the plaintiff had a weaker pulse in his foot. That concerned Schwartz because he thought that the weaker pulse might indicate a lack of circulation and blood flow in that area, which might impair the plaintiffs ability to heal after the bunion removal. Schwartz referred the plaintiff to the defendant, a vascular surgeon, to determine whether the plaintiff had adequate circulation to recover from the proposed procedure.

On December 15, 1995, the defendant examined the plaintiff. He reviewed the plaintiffs medical history, physically examined him and performed two diagnostic tests. The initial physical examination indicated to the defendant that the plaintiff had adequate circulation in his foot. Despite those findings, the plaintiffs prior physical health and age prompted the defendant to conduct two additional tests.

The first test was a Doppler study, which is performed to assess the blood flow through a patient’s arteries and into his extremities. That test requires the administering physician to hold an instrument against the patient’s body at various points, listen for blood flow as it is reproduced and amplified by certain machinery, and determine at what rate, if any, blood is pumping through the patient’s extremities. According to the defendant, the results of that test on the plaintiff indicated that he had an adequate amount of blood flowing through the foot.

The defendant next conducted a segmental blood pressure test, which also is called an ankle brachial index (test). That test requires the administering physician to take the patient’s regular blood pressure at the arm and then take another blood pressure reading at the ankle. Those readings are then compared and scaled on an index to indicate the amount of blood flow that the patient has in the extremity. The defendant conducted that test but measured the patient’s blood pressure at the thigh as opposed to the ankle. Though the defendant actually performed a thigh brachial index test, he reported the results as an ankle brachial index reading. The defendant concluded that this test revealed no vascular insufficiency.

On the basis of his total examination of the plaintiff, the defendant determined that the plaintiff did not have a vascular insufficiency. He also concluded that the lack of pulse in the plaintiff’s foot that Schwartz described was the result of arteriosclerosis, which is a hardening of the artery walls. That condition had made it impossible to get a pulse in the patient’s foot because the affected arteries could not be compressed sufficiently to feel blood flow. Because a hardening of the arterial wall is not the equivalent of a blockage or obstruction within the artery itself, however, the defendant did not believe that condition necessarily indicated a blood flow problem.

The defendant subsequently advised Schwartz of his findings and determination of vascular sufficiency in a written report. On December 29, 1995, Schwartz performed the bunionectomy on the plaintiffs left foot. Following the procedure, the plaintiff began to experience complications. A follow-up visit to Schwartz on January 11, 1996, revealed signs of infection and that some of the tissue on the plaintiff’s left foot had become necrotic.

Schwartz transferred the plaintiff on that day to the care of Dennis D. D’Onofrio, another podiatrist, at which time the plaintiff was admitted to Charlotte Hungerford Hospital in Torrington for treatment of the infection and removal of the necrotic tissue. While at the hospital, the plaintiff underwent a Duplex study, which is similar to the Doppler examination that the defendant had earlier performed. Those test results indicated that the plaintiff had significant vascular compromise. Another ankle brachial index test was attempted at that time, but was unsuccessful because the plaintiffs arteries could not be constricted with the blood pressure cuff. On January 19, 1996, the plaintiff underwent an angiogram at the hospital, which indicated a vascular insufficiency.

On January 20, 1996, the plaintiff was transferred to the John Dempsey Hospital in Farmington, where Steven Ruby, another vascular surgeon, took charge of the plaintiffs care and continued to treat the plaintiff’s infection. The infection subsequently healed despite the failure of bypass surgery to increase blood flow in the plaintiffs foot. Although that infection healed, another infection settled in the plaintiffs left great toe. The toe subsequently became gangrenous and had to be amputated on January 26,1996. After being hospitalized again in June, 1996, the plaintiff also successfully fought off another infection in his left foot.

The plaintiff filed a medical malpractice complaint against the defendant on March 13, 1998, alleging that the defendant breached the professional standard of care for physicians in the defendant’s profession. Specifically, the complaint alleged that the postbunionectomy complications were caused by the defendant’s negligent failure to diagnose his peripheral vascular insufficiency and his negligent failure to perform adequate and accurate tests to assess that condition, and that the defendant improperly cleared the plaintiff to undergo the bunionectomy.

In support of his malpractice claims against the defendant, the plaintiff elicited expert testimony that, in the circumstances faced by the defendant, a vascular surgeon has a duty to perform a Doppler study and an ankle brachial index test. The plaintiffs experts further testified that those tests had to be performed to assess the plaintiffs condition adequately. They also testified that the defendant’s performance of those two tests, as well as his conclusions and reporting, were below the acceptable standard of care because they were inaccurate, incorrect or both.

The defendant rebutted the testimony of the plaintiffs experts with his own testimony as an expert. As an expert on the standard of care, the defendant testified that the applicable standard does not require that an ankle brachial index test be performed to assess vascular insufficiency. He offered the opinion that no single test is a conclusive indicator of vascular condition. Rather, the standard requires a broader approach when reaching a diagnosis. A physician assessing a patient’s vascular sufficiency must consider all of the elements of his evaluation in the patient’s case when reaching his conclusion precisely because no single test can be relied on as conclusive.

The plaintiff also offered the results of the Duplex study and the later angiogram, which were both performed when the plaintiff was hospitalized, as evidence to prove that the plaintiff did have a vascular insufficiency. The plaintiffs experts testified as to those results, and concluded that the Duplex study and the angiogram findings prove that the defendant failed to diagnose the plaintiffs condition because the defendant could not reasonably have failed to find the insufficiency only thirty days earlier when performing a similar Doppler test.

The plaintiff tried to establish that the defendant had misinterpreted the Doppler test that he had administered. He offered the testimony of Richard Hurwitz, a vascular surgeon, that it would have been impossible for the defendant, who did virtually the same study only one month earlier, to fail to detect the presence of the plaintiffs vascular insufficiency because the results of the second exam were clear and indicated vascular insufficiency. Hurwitz based his testimony on the findings of the Duplex study that was conducted when the plaintiff was hospitalized on January 11, 1996.

The defendant then offered the testimony of Steven P. Rivers, a vascular surgeon, who was called as an expert on causation. Rivers testified that the Duplex study performed on the plaintiff may have been misinterpreted because the result was reported in terms of percent of blood flow in the plaintiffs artery, yet that test really does not measure or provide such information. Rivers explained that the results of that study are subjective and qualitative because one can only listen to the blood flow and assess circulation on the basis of what he or she hears. Rivers was of the opinion that a Duplex study, therefore, cannot determine vascular sufficiency, as the plaintiff claims, because it cannot quantify the amount of circulation reduction in an artery. He also testified that, much like a Doppler study, an angiogram does not provide a quantitative measure of blood flow reduction or arterial insufficiency. Rather, that test provides information only about where blockage is located, instead of the extent to which the artery is blocked.

Rivers testified that he believed that the defendant’s finding of vascular sufficiency was correct. He based that conclusion on the plaintiffs ability to heal some of his foot infections, despite the lack of any increase in blood flow since the bypass surgery was unsuccessful, and to recover from his toe removal. According to Rivers, that was evidence that the plaintiff had vascular sufficiency because there was adequate blood flow to support healing.

The jury returned a verdict in favor of the defendant and answered the following interrogatory in the negative: “Did the plaintiff prove by a fair preponderance of the evidence that the defendant, Dr. Whelchel, deviated from the standard of care applicable to vascular- surgeons as alleged in [the] complaint and was therefore negligent?” The plaintiff thereafter filed a motion to set aside the verdict, to which the defendant objected and which the court denied. This appeal followed.

I

The plaintiffs first claim is that the court improperly denied the motion to set aside the verdict because he proved that the defendant had deviated from the applicable standard of care, and the jury’s finding of no deviation from the standard of care was therefore against the weight of evidence. We are not persuaded.

At the outset, we note our standard of review. “[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ” (Citation omitted; internal quotation marks omitted.) Davis v. Fracasso, 59 Conn. App. 291, 295-96, 756 A.2d 325 (2000).

“A court is empowered to set aside a juiy verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn. App. 637, 646, 777 A.2d 745 (2001). “In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated juiy could return the verdict that it did.” (Internal quotation marks omitted.) Id. “On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Id.

A

The plaintiff argues that the defendant was negligent in performing a thigh brachial index instead of an ankle brachial index to assess the vascular sufficiency in the plaintiffs foot. Specifically, to find that the defendant negligently treated the plaintiff, the jury would have to find, as a preliminary matter, that the applicable standard of care required the defendant to conduct a proper ankle brachial index test when assessing the vascular sufficiency. We disagree.

“[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Internal quotation marks omitted.) Stowe v. McHugh, 46 Conn. App. 391, 397, 699 A.2d 279, cert. denied, 243 Conn. 932, 701 A.2d 662 (1997).

Construing the evidence offered through expert testimony in the light most favorable to the defendant, the jury reasonably could have found that the defendant did not deviate from the applicable standard of care by not conducting an ankle brachial index test. Rather, the jury reasonably could have found that the pertinent standard requires a physician to consider the full constellation of evaluations and tests conducted when assessing the patient’s vascular condition. Under that standard, the improper administration of one test does not cause a breach of the physician’s duty of care as long as the overall assessment is adequate and accurate.

B

The plaintiff next claims that the defendant breached the standar d of care applicable to a vascular surgeon assessing vascular sufficiency because he failed to diagnose the plaintiffs condition. We are not persuaded.

The expert witnesses presented the jury with conflicting opinions and conclusions on the issue of whether the plaintiff actually had a vascular insufficiency. “It is the province of the jury to weigh the evidence and determine the credibility and the effect of testimony . . . .” Hally v. Hospital of St. Raphael, 162 Conn. 352, 359, 294 A.2d 305 (1972). “[T]he jury is free to accept or reject each expert’s opinion in whole or in part.” (Internal quotation marks omitted.) Shelnitz v. Greenberg, 200 Conn. 58, 68, 509 A.2d 1023 (1986). There was conflicting testimony regarding the Doppler and Duplex test conclusions, and the accuracy of each test. A conflict also existed over the determinative nature of the angiogram. The jury reasonably could have concluded that the plaintiff did not have a vascular insufficiency. Because the jury reasonably could have found that the plaintiff did not have a vascular insufficiency, it also could have found that the defendant did not fail to assess that condition and, therefore, did not breach the standard of care.

On the basis of the previously discussed conflicting evidence, the jury reasonably could have found that the defendant did not breach the standard of care owed to the plaintiff. Therefore, the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

II

The plaintiff next claims that the court improperly admitted into evidence irrelevant and prejudicial testimony by one of the defendant’s medical experts. We are not persuaded.

“The proper standard for appellate review of a trial court’s decision permitting expert opinion testimony is . . . whether there has been an abuse of discretion or clear error.” Bombero v. Marchionne, 11 Conn. App. 485, 488, 528 A.2d 396, cert. denied, 205 Conn. 801, 529 A.2d 719 (1987).

The plaintiff argues that the court allowed irrelevant and prejudicial testimony into evidence because it allowed one of the defendant’s expert witnesses, Rivers, who was disclosed as an expert witness on causation, to testify as to the appropriate standard of care. Specifically, the plaintiff alludes to portions of Rivers’ testimony pertaining to various evaluation techniques he employs when assessing vascular insufficiency. The plaintiff asserts that this testimony was irrelevant because it had no relation to the issue of causation. The plaintiff also argues that this testimony was prejudicial because it went beyond the scope of the testimony for which Rivers was disclosed and crossed into the standard of care issue, which was a separate and specific issue in the case.

Our review of the record reveals that the court did not abuse its discretion when it allowed the defendant’s causation expert to describe his experiences and evaluation techniques with regard to vascular examinations and assessments. After the plaintiffs counsel objected to Rivers’ testimony, the court excused the jury and permitted counsel to present argument. The court ruled that defense counsel could question the witness, and the witness could testify, about how he performs a vascular consultation, but not what he thinks the standard of care is for vascular consultations.

The court did not abuse its discretion in making that ruling and allowing the subsequent expert testimony. As the court noted, what Rivers does in a vascular consultation is relevant to his opinion on whether the defendant’s actions caused the plaintiffs injuries. It also was relevant as background information for the jury in understanding the expert’s opinions. “Expert testimony should be admitted when . . . the testimony would be helpful to the . . . jury in considering the issues.” (Internal quotation marks omitted.) State v. Billie, 250 Conn. 172, 180, 738 A.2d 586 (1999). Additionally, by clearly separating the issues of standard of care and causation, and limiting the direct examination of the defendant’s causation expert to the issue of causation, the court ensured that there was no prejudicial effect on the plaintiff.

Ill

The plaintiff next claims that the court improperly ruled in front of the jury during closing argument that the plaintiffs counsel could not comment on the defendant’s failure to explain test result discrepancies. That claim is without merit.

We first note the standard of review. “The trial court is invested with a large discretion with regard to the arguments of counsel, and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party.” (Internal quotation marks omitted.) Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 437, 505 A.2d 1272 (1986).

An examination of the deposition and trial record illuminates the basis for the court’s ruling. During his deposition, the defendant was instructed by his attorney not to answer a question regarding the discrepancy between test results. After denying the plaintiffs motion to compel, the court ruled that the defendant would be precluded from testifying on that issue at trial.

Despite the order, in his closing argument, the plaintiffs counsel queried why the defendant did not explain those dissimilar findings. The defendant’s counsel immediately objected to that comment. Sustaining the objection, the court stated: “As you know, counsel, the defendant was precluded from testifying to that.”

It was not an abuse of discretion for the court to stop the plaintiffs counsel from arguing or implying that the defendant had not offered an explanation when he otherwise could because that proposition was inaccurate. It was within the court’s discretion to enforce its prior ruling. See State v. Eaton, 59 Conn. App. 252, 259, 755 A.2d 973, cert. denied, 254 Conn. 937, 761 A.2d 763 (2000).

The plaintiff also argues that the court’s comment itself caused him harm because it left the jury with the impression that he was presenting an improper argument to the jury. The plaintiff further argues that the comment left the jury with the impression that it could not take the discrepancy into consideration.

The plaintiff offers no legal support or analysis for either of those claims. Without any support to ground such assertions, we need not address those claims. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursoiy attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 659 n.2, 778 A.2d 237 (2001).

IV

The plaintiff next claims that the court improperly denied the plaintiffs motion to amend the complaint. We do not agree.

“Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. . . . But unless there is some sound reason for denying permission to amend in order to remedy mispleading, [a request to do so] should be granted.” (Internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn. App. 612, 617, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001).

The plaintiff sought to amend the complaint on the first day of trial. A review of the record reveals that the plaintiffs amendment would have introduced a new cause of action. The plaintiffs counsel stated that he was seeking to amend the complaint, in his words, to “pare back” what he felt the plaintiff needed to prove to establish proximate causation in the case. The court noted that the original complaint focused on the defendant’s failure to identify the plaintiffs vascular insufficiency and the damages that could have been avoided by the defendant’s evaluation of that condition. The amended complaint, in contrast, charged that the defendant should be hable for the complications that were a result of the surgery. The court found that this amendment would allow the jury to conclude that the defendant should be hable for any comphcation, regardless of whether it arose from the alleged vascular insufficiency.

The court, therefore, concluded that the amendment asserted a different cause of action because the original complaint focused on the defendant’s diagnosis of the plaintiffs vascular insufficiency while the amended complaint focused on the results of the surgery. Having reached that conclusion, this was a sound reason to deny the amendment. See Mezes v. Mead, 48 Conn. App. 323, 336, 709 A.2d 597 (1998) (court should consider whether amendment will work injustice to other party or unduly delay trial in deciding whether to permit amendment). The court did not abuse its discretion in denying the plaintiffs motion to amend his complaint.

V

The plaintiff claims finally that the court improperly instructed the jury. That claim is without merit.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial.” (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn. App. 555, 558, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001).

Specifically, the plaintiff asserts that the court improperly instructed the jury in three ways. First, he claims that the charge on proximate causation was misleading and inherently inconsistent. Although the plaintiff in his principal brief does quote a section of the charge that might have been confusing to the jury out of context, when that passage is read in the context of the whole charge, we conclude that the instruction was neither misleading nor inconsistent.

As to the specific discussion of proximate cause that the plaintiff claims is inconsistent, that appears to be a minor misstatement by the court, and one that did not affect the jury’s overall comprehension of the charge.

The plaintiff seizes on the portion of the charge in which the court stated that “[i]f you conclude that the plaintiffs haven’t proven the causal connection, that is, that the plaintiffs’ injuries were proximately caused by [the defendant’s] failure to diagnose . . . then you must return a verdict in favor of the doctor.” (Emphasis added.) Read in context with the portions of the charge preceding and following that portion, it is apparent that the court meant “were not caused” rather than “were caused.” Our interpretation is further supported by the content of the portions both preceding and following the portion at issue, which describe when the defendant may not be held liable. It is unlikely that the jury seized on the absence of a single word in a charge in excess of two pages in length to reach an improper verdict.

The plaintiff also claims that the instruction was improper because it did not address his allegation that the defendant had failed to perform accurate tests in assessing the plaintiffs condition. The plaintiff argues that the instruction was misleading because it directed the jury that it had to find that the plaintiff had avascular insufficiency before it could find that the defendant was negligent. The plaintiff asserts that pursuant to the allegations in the complaint, the court should have instructed the jury that if it found that the defendant did not accurately conduct his assessment, whether the plaintiff actually had a vascular insufficiency, then it had to find that the defendant acted in a negligent manner. The plaintiff then discusses the inaccurate ankle brachial index test that was performed by the defendant as the allegedly negligent conduct.

That argument does not acknowledge the standard of care issue, as we discussed at length in resolving the plaintiffs first claim on appeal. Before the jury could conclude that the defendant was negligent because of what he did or did not do, it first had to find that the performance of certain action or actions was mandated by the applicable standard of care. The court’s instruction was not improper for its failure to address that point.

The plaintiff also argues that the instruction was improper because it did not address the possibility that the jury could find causation even if the plaintiffs complications were not caused by his vascular condition. That theory of liability was foreclosed when the court properly denied the plaintiffs motion to amend his complaint. We need not address that argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       Both Andrew H. Marchell and Patricia Marchell brought the underlying action against the defendant, Lynn W. Whelchel, Jr. Because the claims on appeal deal specifically with issues that relate to Andrew H. Marchell, we refer to him as the plaintiff.

       A bunionectomy is the medical term for the removal of a bunion.

       Whelchel was consulted to determine if the plaintiff had, as a matter of medical parlance, “vascular sufficiency” in his foot. That also was referred to in the case as “peripheral vascular sufficiency.” Those terms refer to the plaintiffs blood flow and circulation.

       All the experts substantially agreed that the plaintiffs condition would have remained the same from the time when the defendant examined him to the time when the subsequent tests were conducted at the hospital.

       Because we affirm the court’s ruling on the basis of the plaintiffs failure to establish a breach of the relevant standard of care, we need not reach the issue of whether the alleged negligence caused the resulting harm.

       The relevant portion of the charge was as follows: “If in this instance you find that [the defendant] was negligent in that he concluded there was no evidence of peripheral vascular insufficiency and that [the plaintiff] for that reason could safely undergo foot surgery, and you further find that Dr. Schwartz performed the bunionectomy in reliance upon [the defendant’s] report of December 15, 1995, and that the delayed healing or infection that [the plaintiff] experienced after surgery were within the scope of foreseeable risks created by the defendant’s negligence, then you must find the defendant liable for those complications and for the associated losses and damages.
      “In determining whether [the plaintiffs] postoperative complications were within the scope of foreseeable risk, you should consider whether it was foreseeable that in reliance upon [the defendant’s] opinion that [the plaintiff] could safely undergo foot surgery, Dr. Schwartz chose to perform the bunionectomy and whether delayed healing and/or infection were reasonably foreseeable risks of that surgery.
      “A doctor is not liable for a bad result if he uses reasonable care, skill and diligence. It is the absence of reasonable care, skill and diligence combined with that deviation proximately causing the injury that makes for liability and nothing else.
      “Thus, if the inquiry or — excuse me — if the injury would have happened even though the defendant had not been negligent, then the defendant’s negligence cannot be held to be a cause of the injury.
      “If you conclude that the [plaintiff has not] proven the causal connection, that is, that the [plaintiff s] injuries were proximately caused by [the defendant’s] failure to diagnose peripheral vascular insufficiency or that the [plaintiff’s] injuries were wholly caused by some other factor exclusive of [the defendant’s] negligence, if any, then you must return a verdict in favor of the doctor.

        “Now, the defendant’s conduct need not be the only cause, the sole proximate cause or the sole cause of the injuries suffered by the plaintiff in order to permit the plaintiff to recover, but to impose liability on the defendant, that failure on the doctor’s part, if you find such a failure, must be a substantial factor in producing the result that occurred.”


author: SPEAR, J.

text:
    KENNETH B. ADOLPHSON v. NORMAN WEINSTEIN, COADMINISTRATOR (ESTATE OF LOUISE R. RIBAK), ET AL.
    (AC 20862)
    Lavory, C. J., and Spear and Shea, Js.

      Argued May 2
    officially released October 30, 2001

      Paul A. Sobel, for the appellant (plaintiff).

      Vincent M. Marino, for the appellees (named defendant et al.)

      William J. Neary, with whom, on the brief, was Anthony P. Copertino, Jr., for the appellee (defendant Barbara Bensing).
   Opinion

SPEAR, J.

The plaintiff, Kenneth B. Adolphson, appeals from the judgment of the trial court dismissing his appeal from an order of the Probate Court approving the sale of real property that was part of a decedent’s estate. The principle issue on appeal is whether the plaintiff was aggrieved by, and therefore has standing to appeal from, the Probate Court’s decision approving the sale of the property to another bidder. We affirm the judgment of the trial court.

The following facts are undisputed. The defendants Norman Weinstein and Lauren Friedman, administrators of the estate of Louise R. Ribak, obtained approval from the Probate Court for the district of Trumbull to employ a sealed bidding procedure for the sale of property at 97 Canoe Brook Road in Trumbull. On August 24, 1999, Weinstein and Friedman sent a letter informing all persons who had expressed an interest in purchasing the property that bids should be submitted by September 2, 1999. The plaintiff submitted a sealed bid in the amount of $350,000 with the required deposit on September 1,1999. That same day, the defendant Barbara Bensing submitted a sealed bid of $364,584 with the required deposit. The sealed bids were opened on September 3, 1999, and Weinstein and Friedman accepted Bensing’s higher bid. Thereafter, Bensing and Weinstein and Friedman entered into a contract for the sale of the property.

On November 1, 1999, the Probate Court held a hearing pursuant to General Statutes § 45a-164 on the application by Weinstein and Friedman for permission to sell and convey the property to Bensing. The plaintiff appeared at the hearing, attempted to submit a higher bid in the amount of $370,000 and requested that the Probate Court order that the property be sold to him. The plaintiffs offer was accompanied by a contract containing his signature, a deposit in the form of a $75,000 cashier’s check and a copy of an additional cashier’s check in the amount of the balance of the $370,000. The Probate Court nonetheless granted the application by Weinstein and Friedman requesting that the property be sold to Bensing for $364,584, having found that granting the application would be in the best interests of the parties in interest.

The plaintiff appealed from the order to the trial court, and Bensing filed a motion to dismiss the appeal. The court granted Bensing’s motion, noting that one who bids on the property of an estate has no interest in the property itself, although such a person does have an interest insofar as the bidding procedure must comply with principles of due process. The court concluded that the plaintiff had not alleged that the bidding procedure denied him due process and dismissed his appeal for lack of aggrievement. This appeal followed.

“A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... If a motion to dismiss is granted, the case is terminated, save for an appeal of that ruling.” (Citation omitted; emphasis in original.) Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984).

The plaintiff claims that he was denied due process because the Probate Court did not hold a public hearing, or provide notice of such hearing, for the purpose of discussing whether the property would be sold and, if so, how the proposed bidding process would be conducted. He maintains that he was entitled to know, in advance of the bid solicitation letter, that the bidding procedure employed by Weinstein and Friedman had been approved by the Probate Court. He thus alleges aggrievement because the Probate Court failed to comply with General Statutes §§ 45a~164 (a) and 45a-166 (a) in establishing the bidding procedure. We disagree.

We begin by noting that the “right to appeal from the decision of a Probate Court is statutorily conferred by [General Statutes § 45a-186, and] the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal.” Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 513, 429 A.2d 967 (1980). Any determination regarding a trial court’s subject matter jurisdiction is a question of law and our review, therefore, is plenary. O’Halloran v. Charlotte Hungerford Hospital, 63 Conn. App. 460, 463, 776 A.2d 514 (2001).

General Statutes § 45a-186 (a) provides: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. Except in the case of an appeal by the state, such person shall give security lor costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.”

Aggrievement requires only the existence of a cause of action on which a party’s plea fon relief may rest. Baskin’s Appeal from Probate, supra, 194 Conn. 638. The concept of aggrievement turns on whether there is a possibility, as distinguished from a certainty, that the Probate Court’s order or decree has adversely affected some legally protected interest that the appellant has in the subject matter of the decree or order or in the estate. Id.

Our courts have considered the circumstances under which an unsuccessful bidder on the property of an estate may be considered aggrieved under § 45a-186 (a) and have held that a bidder on the property of an estate offered for sale has no interest in the property itself. See Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 517-18. Significantly, however, a bidder does have an interest in the proceedings employed by the court to approve the sale. Id. In DiSesa, for example, a plaintiff was deemed aggrieved when he was invited to attend a hearing on the sale of real property, submitted the highest bid and was granted a continuance to engage in further negotiations, but the Probate Court rescheduled the continued hearing for an earlier time without notice to the plaintiff and then approved the sale of the property to another bidder. Our Supreme Court stated that “[t]he decision to continue the hearing was based upon a mutual and explicit understanding of court and counsel and conferred upon the plaintiff the right to appear at the hearing at the time agreed upon, unless notified to the contrary.” Id., 519. In Bishop v. Bordonaro, 20 Conn. App. 58, 563 A.2d 1049 (1989), the plaintiffs also were deemed aggrieved when they executed a contract with a seller of real property, but the Probate Court ordered that the property be sold to an intervening party who appeared at the subsequent hearing on the application to sell and offered a higher price. Id., 60-61.

The circumstances here are completely different from those in DiSesa and Bishop because the plaintiff had no legal status vis-a-vis the property. He merely submitted a second offer to buy the property after the bidding deadline had passed. Indeed, the plaintiffs in Bishop held a position corresponding to that of Bensing in the present case. Moreover, under the plain language of the relevant statutory provisions, § 45a-164 (a) and 45a-166 (a), the Probate Court is not required to hold a public hearing to give potential bidders an opportunity to comment on the bidding procedure itself. Accordingly, the plaintiff cannot make a colorable claim that he was denied due process by virtue of the fact that the Probate Court did not hold a public hearing on the bidding procedure. We therefore conclude that the probate decree approving the sale of the property did not adversely affect a legal interest of the plaintiff and that he cannot be deemed aggrieved under § 45a-186 (a).

The plaintiff argues pursuant to Baskin’s Appealfrom Probate, supra, 194 Conn. 635, that if he had been given the opportunity to amend his pleading to state a proper cause of action, the court could not have dismissed his appeal. In Baskin’s Appeal from Probate, the Superior Court dismissed the plaintiffs appeal from a probate decree for lack of aggrievement, but, on appeal, our Supreme Court noted that one of the claims that the plaintiff had raised before the Probate Court had not been included in his appeal documents. The court concluded that “[t]his possibility [made] erroneous the dismissal of the plaintiffs appeal even though [the disputed claim was not] originally presented in his reasons of appeal”; id., 640; because the plaintiff could have amended his pleading to include the ground of possible aggrievement.

Here, unlike the situation in Baskin’s Appeal from Probate, there is nothing in the record to support the conclusion that if the plaintiff were provided with an opportunity to replead, he could, as a matter of law and fact, amend his appeal to support a viable cause of action. See Doyle v. Reardon, 11 Conn. App. 297, 305-308, 527 A.2d 260 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

       The letter stated, among other things, that all bids would be opened at noon on September 3, 1999, that the accepted offer and contract to sell would be contingent oil the Probate Court’s approval and that Weinstein and Friedman reserved the right to reject any bid received, although the “highest and best offer will be the main criteria.”

       In a letter to the Probate Court, the plaintiff requested that the court order a private sale to him on the basis of his offer, instead of selling the property to Bensing at a lower price, and that, as part of his offer, he reserved the right to increase his price if any offer against which he was computing was increased.

       The plaintiff also claims that the court improperly relied on affidavits that Benson filed in support of her motion to dismiss, when it should have ordered an evidentiary hearing to resolve the disputed facts.
      Affidavits are insufficient to determine factual issues raised on a motion to dismiss “unless . . . they disclose that no genuine issue as to a material fact exists.” (Internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). If a motion to dismiss turns on disputed issues of fact, an evidentiary hearing must be held to afford the parties an opportunity to present evidence and to cross-examine adverse witnesses. Coughlin v. Waterbury, 61 Conn. App. 310, 315, 763 A.2d 1058 (2001).

        In Ms appellate brief, however, the plaintiff admits all of the facts alleged in those affidavits. In light of that admission, which resolves any disputed issues of fact that may have existed in this case, the plaintiff cannot prevail on his claim.

       General Statutes § 45a-lG4 (a) provides: “Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, temporary administrator, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after such notice as the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of such person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such temporary administrator, administrator, executor or trustee, if (he court finds it would be for the best interests of the parties in interest to grant the application.”

       General Statutes § 45a-lGG (a) provides: “The Court of Probate in ordering a sale under the provisions of sections 45a-164 to 45a-169, inclusive, and 45a-128 shall direct whether the sale shall be public or private. If a public sale is directed, the court shall direct the notice thereof which shall be given. If a private sale is directed, the court may, if it appears to be for the best interests of the estate, determine the price and the terms of the sale, including purchase money mortgage or mortgages, as it considers reasonable and advisable.”


author: DRANGINIS, J. DALY, J.,

text:
    KEITH FULLER v. COMMISSIONER OF CORRECTION
    (AC 20722)
    Foti, Dranginis and Daly, Js.

      Argued June 4
    officially released October 30, 2001

      Sean K. Crowshaw, with whom, on the brief, was John B. Cantarella, special public defender, for the appellant (petitioner).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Beth Baran, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DRANGINIS, J.

The petitioner, Keith Fuller, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims on appeal that the habeas court improperly failed to find that (1) his trial counsel was ineffective because counsel failed to advise him of his right to sentence review and (2) his appellate counsel was ineffective because counsel failed to file for certification to appeal to the Supreme Court. We affirm the judgment of the habeas court.

The factual background of this case is set forth in State v. Fuller, 48 Conn. App. 374, 709 A.2d 1142 (1998), in which we upheld the petitioner’s conviction of two counts of larceny in the second degree in violation of General Statutes § 53a-123, four counts of robbery in the third degree in violation of General Statutes § 53a-136, two counts of larceny in the third degree in violation of General Statutes § 53a-124 and one count of assault of a victim sixty years of age or older in violation of General Statutes § 53a-61a. Thereafter, the petitioner sought a writ of habeas corpus. The petitioner alleged that both his trial and appellate counsel had been ineffective. His petition for a writ of habeas corpus was denied, and the habeas court granted his petition for certification to appeal. This appeal followed.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well established. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 172, 774 A.2d 148 (2001).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel .... In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 70-71, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001); see Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991).

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, supra, 62 Conn. App. 71-72.

“Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Id., 72. Therefore, “[a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice.” Williams v. Commissioner of Correction, 41 Conn. App. 515, 519, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

I

The petitioner first claims that he did not receive effective assistance of trial counsel because counsel did not advise him of his right to sentence review and failed to ensure that the clerk informed him of his right pursuant to General Statutes § 51-195. Because the record is inadequate, we decline to review this claim. See Practice Book § 60-5.

“The duty to provide this court with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). “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 § 4061 [now § 60-5]. ... It is not the function of this court to find facts.” (Citations omitted.) State v. Rios, 30 Conn. App. 712, 715-16, 622 A.2d 618 (1993). “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 petitioner’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 608-609.

The petitioner argues that his trial counsel was ineffective because he failed to inform him about his right to sentence review and failed to ensure that he was given the proper forms to apply for such review. He further claims that this ineffective assistance prejudiced him because the time period for filing for sentence review expired before he was able to apply. The habeas court’s ruling on this claim stated only the following: “[Counsel could not] remember whether the clerk gave notice of the petitioner’s right to sentence review, but [he] had a recollection that it may have been interrupted by the defendant’s conduct causing a disturbance in the courtroom. The burden was on the petitioner and he failed to carry it.” The record on appeal is inadequate because the habeas court did not make any factual findings as to counsel’s performance; it merely found that there was no conclusive evidence that the court clerk had neglected to provide the petitioner with the requisite sentence review forms. We therefore decline to review the petitioner’s claim.

II

The petitioner next claims that his appellate counsel was ineffective because he failed to file a petition for certification to appeal to the Supreme Court. We disagree.

As we have stated, the petitioner’s counsel brought a direct appeal to this court from the trial court’s judgment of conviction, rendered after a jury trial, of larceny in the second degree, larceny in the third degree, robbery in the third degree and assault of a victim sixty years of age or older. See State v. Fuller, supra, 48 Conn. App. 374. On appeal, counsel raised two issues: (1) whether the trial court properly admitted evidence of the petitioner’s escape from custody to establish consciousness of guilt; and (2) whether the court had sufficient evidence for the jury to find that the value of one of the automobiles stolen by the petitioner exceeded $5000. See id., 381-83. This court, in a unanimous decision, affirmed the judgment of the trial court. Id., 385. Thereafter, appellate counsel failed to file a petition for certification to appeal to the Supreme Court, which resulted in this habeas appeal.

Our Supreme Court recently held that a criminal defendant has a right to assistance of counsel in connection with the filing of a petition for certification to appeal. Gipson v. Commissioner of Correction, 257 Conn. 632, 634, 778 A.2d 121 (2001). We therefore must consider whether the failure of the petitioner’s appellate counsel to file a petition for certification under the circumstances of this case constitutes ineffective assistance of counsel. We conclude that it does not.

As we have stated, for the petitioner to prevail on a claim of ineffective assistance of counsel, he must show (1) that counsel’s performance fell below an objective standard of reasonableness and (2) that he was prejudiced by counsel’s performance. See Minnifield v. Commissioner of Correction, supra, 62 Conn. App. 71.

In this case, the habeas court found that appellate counsel did not file a petition for certification to appeal to the Supreme Court because of his conclusions that the Appellate Court’s analysis would likely not be overturned and that filing a petition for certification would be futile. The court concluded that the petitioner failed to satisfy both the first and second prongs of the Strickland test. Because the habeas court properly determined that the petitioner failed to satisfy the first prong of Strickland, we need not reach the second prong. See Taft v. Commissioner of Correction, 47 Conn. App. 499, 504, 703 A.2d 1184 (1998).

We base our conclusion on a review of our decision in State v. Fuller, supra, 48 Conn. App. 374, and Practice Book § 84-2, which provides the bases on which certification may be granted by our Supreme Court. See Gipson v. Commissioner of Correction, 54 Conn. App. 400, 436, 735 A.2d 847 (1999) (Lavery, J., concurring), rev’d on other grounds, 257 Conn. 632, 778 A.2d 121 (2001). The petitioner’s claims on appeal did not present a situation that requires us to conclude that counsel’s decision not to file a petition for certification was unreasonable. The petitioner did not offer any evidence that this case presented issues worthy of certification to the Supreme Court. We therefore conclude that the petitioner has failed to meet his burden of showing that counsel’s representation fell below an objective standard of reasonableness.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

DALY, J.,

dissenting. I respectfully dissent. General Statutes § 51-195 provides in relevant part: “Any person sentenced . . . may . . . file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence . . . the clerk shall give written notice to the person sentenced of his right to make such a request. . . .”

In this case, the record is devoid of any indication that the petitioner was advised by his counsel or the clerk of the court of his right to sentence review pursuant to § 51-195. Therefore, I would remand the matter to the habeas court in order that the defendant be advised of his rights to go to sentence review in compliance with § 51-195.

       Practice Book § 84-2 provides that certification by the Supreme Court, may be considered:
      “(1) Where the appellate court has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of tire supreme court.
      “(2) Where the decision under review is in conflict with other decisions of the appellate court.
      “(3) Where the appellate court, has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court’s supervision.
      "(4) Where a question of great public importance is involved.
      “(5) Where the judges of the appellate panel are divided in their decision or, though concurring in the result, are unable to agree upon a common ground of decision.”


author: FOTI, J.

text:
    FIRST NATIONAL BANK OF CHICAGO v. PETER LUECKEN ET AL.
    (AC 21696)
    Foti, Landau and Schaller, Js.
    Submitted July 11
    officially released October 30, 2001

      David F. Borrino, in support of the motion.

      Kevin L. Bums, in opposition.
   Opinion

FOTI, J.

The plaintiff, First National Bank of Chicago, moves this court to dismiss the named defendant’s appeal from the decision of the trial court vacating its prior granting of the defendant’s motion to open a judgment of strict foreclosure. The plaintiff argues that the trial court’s ruling was proper because when the court heard the motion to open, title to the defendant’s property already had vested in the plaintiff and, therefore, the court lacked jurisdiction to open the judgment. The plaintiff further claims that because the trial court properly determined that it lacked jurisdiction to open the judgment, this court could offer no practical relief on appeal and consequently, the matter is moot. We agree and dismiss the defendant’s appeal.

The following facts are relevant to our resolution of this issue. The defendants Peter Luecken and Roxanne Luecken owned real property encumbered by several mortgages. The plaintiff, holder of one of those mortgages, brought an action to foreclose based on nonpayment. On September 25, 2000, the court rendered a judgment of strict foreclosure and set the law days for the various parties to run from January 9, 2001, through January 12, 2001, inclusive, after which, if unredeemed, title would vest in the plaintiff. The last law day, January 12, 2001, fell on a Friday.

The defendant filed a motion to open the judgment of strict foreclosure on December 21, 2000. No automatic stay remained in effect because the motion to open was filed outside of the appeal period. See Practice Book §§ 63-1, 61-11; Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 347-48, 579 A.2d 1054 (1990). Subsequently, all of the law days passed and no party redeemed. Monday, January 15, 2001, was a holiday on which the court was closed. On January 16, 2001, the court heard the defendant’s motion to open. In support of the motion, the defendant argued that it was timely, even though the law days had run, because title did not vest absolutely in the plaintiff until the next business day, i.e., Tuesday, January 16,2001, the day the motion was being heard. The plaintiff argued, however, that title already had vested at the close of court on Friday, January 12,2001, the last law day, and, therefore, the court lacked jurisdiction to entertain the motion to open.

The court, Mottolese, J., granted the defendant’s motion and extended the law days to January 30, 2001, but conditioned the extension on the defendant’s submission of a memorandum of law in support of his assertion that title did not vest until the next business day following the last law day passing without redemption.

On January 24, 2001, the defendant filed a second motion to open and reset the law days, along with the supporting memorandum of law requested by the court. That motion was heard on January 29, 2001, by a different court, Rush, J. Judge Rush questioned the court’s jurisdiction but, noting Judge Mottolese’s notation that the first motion to open had been granted, granted the second motion to open. Judge Rush stated that he did not want to overrule Judge Mottolese and that the parties could revisit the matter when Judge Mottolese returned.

On February 2, 2001, the plaintiff filed motions to reargue and to vacate the opening of the judgment and the extension of the law days. Thereafter, the defendant filed a third motion to open the judgment.

On February 19, 2001, the court, Mottolese, J., heard the plaintiffs motions, took the matter under advisement and set a hearing date of February 26, 2001, for the defendant’s third motion to open. On February 26, 2001, the court,, after determining that it no longer had jurisdiction over the matter, granted the plaintiffs motion to vacate and denied the defendant’s third motion to open. On March 7, 2001, the defendant appealed from the court’s February 26, 2001 decision. On March 15, 2001, the plaintiff moved to dismiss this appeal as moot, and on March 23, 2001, the defendant filed an opposition to the motion to dismiss.

The defendant argues on appeal that, because title had not yet vested in the plaintiff on January 16, 2001, the court improperly determined that it lacked jurisdiction to open the judgment of strict foreclosure. The plaintiff argues that we should dismiss the defendant’s appeal because the court’s ruling was proper and, thus, no further relief can be afforded to the defendant. In his opposition to this motion to dismiss, the defendant claims that this motion attempts to have us decide the merits of the appeal and does not raise issues impairing this court’s jurisdiction. We agree with the plaintiff.

We recognize that the question of mootness raised in this motion is inextricably intertwined with the only issue raised on appeal, whether the trial court lacked jurisdiction to open the judgment. We further recognize that once we have addressed the issue raised in this motion — whether there is ultimately any practical relief that this court can afford the defendant — we will also have addressed the issue on appeal. While it may generally be prudent, in cases where a motion to dismiss goes to the heart of the appeal itself, to defer action until after the parties have fully briefed any interrelated issues, in this case we grant the plaintiffs motion to dismiss because the added delay incident to deferral of the question would not, under the facts of this case, further our policy of expediting foreclosure cases whenever possible. Furthermore, if we were to agree with the defendant’s argument that we must defer our decision on mootness until after we have heard his appeal, we would deprive the plaintiff of its right to raise a mootness claim at any stage of the judicial proceedings. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997); see Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989). While the appeal itself challenges the trial court’s jurisdiction to act, this motion to dismiss raises the issue of this court’s jurisdiction. “[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . .” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988).

We note first that mootness implicates our subject matter jurisdiction; Giaimo v. New Haven, 257 Conn. 481, 492, 778 A.2d 33 (2001); and it is axiomatic that this court has jurisdiction to determine whether it has jurisdiction. Castro v. Viera, supra, 207 Conn. 430; State v. S & R Sanitation Services, Inc., 202 Conn. 300, 301, 521 A.2d 1017 (1987). Our determination of whether there is any practical relief that can be afforded the defendant depends on whether the trial court had the authority to grant the defendant’s motion to open and, therefore, requires us to interpret the statutory provision governing the opening of strict foreclosure judgments. “Statutory construction, in turn, presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 690, 778 A.2d 981 (2001).

The opening of judgments of strict foreclosure is governed by General Statutes § 49-15. That section provides in relevant part that “[a]ny judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified . . . but no such judgment shall be opened after the title has become absolute in any encumbrancer.” (Emphasis added.)

Our Supreme Court has noted that “[a] critical factor to be recognized in connection with a motion to reopen a judgment of strict foreclosure [made after the expiration of the time to appeal from the initial foreclosure judgment] is that the motion must be heard, and not merely filed, prior to the vesting of title.” Farmers & Mechanics Savings Bank v. Sullivan, supra, 216 Conn. 349; see also Farmers & Mechanics Bank v. Kneller, 40 Conn. App. 115, 123, 670 A.2d 324 (1996). The “failure [of a party] to move to open [a] judgment of strict foreclosure in a timely fashion is an insufficient ground upon which to open the judgment at a later date.” (Internal quotation marks omitted.) Farmers & Mechanics Savings Bank v. Sullivan, supra, 360-61 (Callahan, J., dissenting). When a motion to open and a subsequent appeal from the denial of the motion to open are filed after title has vested in an encumbrancer, no practical relief can be granted and so the appeal becomes moot. Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 161-62, 521 A.2d 1065 (1987). “Provided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court ... it is not within the power of appellate courts ... to disturb the absolute title of a redeeming encumbrancer. Connecticut Savings Bank v. Howes, 9 Conn. App. 446, 447-48, 519 A.2d 1216 (1987) . . . .” (Citation omitted.) Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166-67, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). In this case, if the court did not hear the defendant’s first motion to open prior to the vesting of title in the plaintiff, the trial court was without jurisdiction to open the judgment.

The precise task before us then is to determine exactly when title vests in an encumbrancer in an action of strict foreclosure after all the law days have run without redemption and the last law day is a Friday. Our case law has long established that “[w]here a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [redeeming encumbrancer] . . . .” (Internal quotation marks omitted.) Barclays Bank of New York v. Ivler, supra, 20 Conn. App. 166; see also City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 25, 179 A. 339 (1935). Nonetheless, the exact moment of vesting has not been defined. The defendant argues that vesting does not occur until the end of the next business day following the last law day, in this case Tuesday, January 16, 2001. The plaintiff claims that title vests at the close of business on the last law day, in this case Friday, January 12, 2001, at 5 p.m. or, at the very latest, on the following day whether court is open or not, in this case Saturday, January 13, 2001.

The plain language of § 49-15 is not helpful, as the statute does not speak to the timing of vesting of title. Because of its early date of enactment, legislative history is unavailable. The case law interpreting it, however, indicates that “[t]he design of § 49-15 is to authorize a court, before a redemption pursuant to a strict foreclosure has occurred, to modify the terms of the judgment in order to achieve an outcome fairer to the parties than provided by the original judgment in light of conditions as they appear when the motion to open is decided.” (Emphasis added.) Farmers & Mechanics Savings Bank v. Sullivan, supra, 216 Conn. 352.

Our Supreme Court has stated that “as best we can determine, the legislature’s purpose in enacting § 49-15 was ... to set out an orderly framework for a mortgagee’s exercise of the equity of redemption”; New Milford Savings Bank v. Jajer, 244 Conn. 251, 258, 708 A.2d 1378 (1998); and “to ensure equitable foreclosure proceedings.” Id., 259. The court further emphasized the “duty of the [trial] court [in applying § 49-15] to do justice to protect the rights of all the interested parties”; (emphasis added) id., 260; and, after title has vested, “to prohibit the mortgagor from subsequent challenges to the enforceability of the mortgagee’s property rights.” Id.

Section 49-15, therefore, was intended to give the court flexibility to accommodate the defendant’s changed circumstances subsequent to the original judgment. Nonetheless, it also recognizes the rights of the plaintiff and the need for an orderly foreclosure procedure that necessarily must, at some point, conclude. In light of the need to balance these competing considerations, we decline to read additional terms into the statute. We conclude that the legislature intended the language in § 49-15, “after the title has become absolute in any encumbrancer,” to contemplate a period commencing immediately after the cessation of the last day on which another party may redeem, not a full business day later. In other words, a court may not open a judgment of foreclosure after the close of business on the final law day.

The defendant also argues that, even if title vested prior to the hearing on the motion to open, the court still had the power to open the judgment pursuant to the holding of New Milford Savings Bank v. Jajer, supra, 244 Conn. 257. We disagree. The circumstances of Jajer are unique and the court’s holding is limited. Section 49-15 and the case law thereunder make it clear that a court may not open a judgment of strict foreclosure once title has vested.

The appeal is dismissed.

In this opinion the other judges concurred.

       Only the named defendant, Peter Luecken, has appealed. We refer to him in this opinion as the defendant.

       A default for failure to plead was entered against the defendant Roxanne Luecken.

       The court in its memorandum of decision noted that the granting of each of the defendant’s motions to open and concomitant extension of the law days “was predicated upon an assumption of jurisdiction done so solely to afford the court sufficient time to research and adjudicate the issue [of whether title may vest on a day on which the court is not open for business]. ” If the court lacked jurisdiction to open the judgment on January 16, 2001, it follows that it lacked jurisdiction to open it on January 29, 2001, and February 26, 2001.

         The court in Jajer held that the trial court had equitable jurisdiction to open the judgment of strict foreclosure after title already had vested, where the party requesting the opening was the foreclosing bank. The bank sought the opening of the judgment in order to amend its complaint to include certain other property owned by the defendant; the complaint inadvertently had included only two of the three parcels encumbered by the mortgage conveyance. See New Milford Savings Bank v. Jajer, supra, 244 Conn. 256-64.