author: DiPENTIMA, J. BORDEN, J.,

text:
    YALE UNIVERSITY v. OUT OF THE BOX, LLC
    (AC 29710)
    Flynn, C. J., and DiPentima and Borden, Js.

      Argued September 3, 2009
    officially released January 12, 2010

      Jonathan M. Freiman, with whom were Robert J. Klee, and, on the brief, Katherine H. Hagmann, for the appellant (plaintiff).

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes, David M. Krassner and Hugh F. Keefe, for the appellant (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Yale University, appeals from the denial of its motion to open and set aside a stipulated judgment. Specifically, it claims that the trial court improperly concluded that the plaintiffs attorney possessed apparent authority to enter into a settlement agreement and to bind the plaintiff to the terms of that agreement. As a result, the plaintiff contends that the court should have granted its motion to open and set aside the judgment. We are not persuaded and, accordingly, affirm the judgment of the trial court.

The origin of the plaintiff’s appeal lies in a factually complex summary process action filed by the plaintiff with respect to a parcel abutting 266 College Street in New Haven, described as a shed and walkway. In November, 2001, the defendant, Out of the Box, LLC, had entered into a ten year lease with the owner of 266 College Street, Asimina Antonellis. On January 26,2005, the plaintiff obtained from Antonellis a quitclaim deed to 1016-1020 Chapel Street, which included the shed. In June, 2005, the plaintiff and Antonellis entered into a license agreement allowing Antonellis and her tenant, the defendant, use of the shed for a term of seven years. In October, 2005, the plaintiff offered a license agreement to the members of the defendant, Arturo Camacho and Suzette Franco-Camacho, for use of a walkway at the rear of 266 College Street. Additionally, after Camacho and Franco-Camacho had purchased 266 College Street, the plaintiff offered the defendant a license for use of the shed. The members, on behalf of the defendant, refused to sign the license agreement offered by the plaintiff. As a result, the plaintiff filed a summary process action, claiming that neither Anto-nellis nor the defendant had any right or privilege to its parcel. The defendant filed, inter alia, a motion to stay the summary process action.

The court scheduled a hearing on the defendant’s motion for July 10,2006. Thomas Sansone, the plaintiffs attorney, David Newton, the plaintiffs director of university properties, Franco-Camacho and David Kras-sner, the defendant’s attorney, met with a housing specialist in an effort to reach a settlement. The hearing then was postponed until August 10, 2006. On that date, Sansone, Newton, Franco-Camacho and Krassner continued their negotiations and reported to the court that they had reached a settlement to the satisfaction of both parties. Newton agreed to each of the terms reached during the negotiations between the parties. Sansone, on behalf of the plaintiff, and Franco-Camacho and Krassner, on behalf of the defendant, signed the settlement. After canvassing Franco-Camacho and commending the parties, the court accepted the settlement.

The terms of the settlement stated that judgment of possession in favor of the plaintiff would enter, with a stay of execution through August 9, 2008, subject to the following terms: (1) judgment of possession may-enter in favor of the plaintiff and against the defendant; (2) the parties agree that there was no admission as to whether the plaintiff had legal title or the right to possession, and the defendant expressly retained all rights to pursue an adverse possession, prescriptive easement or related claim; (3) the plaintiff was prevented from bringing an action to quiet title; however, the defendant retained the option to do so; and (4) the plaintiff agreed to grant a minimum two year license agreement to use the parcel in question. The license agreement incorporated the following conditions: (1) a two year minimum term renewable annually unless terminated by either party; (2) if the defendant remained in possession in excess of seven years, then it would bear the cost of removing the shed; (3) any reconstruction was subject to the plaintiffs approval; and (4) the defendant expressly retained its potential adverse possession claim as to the rear door of 266 College Street and the pathway leading thereto.

On August 15, 2006, the plaintiff filed a motion to open and set aside the judgment pursuant to Practice Book § 17-4. The motion alleged that Sansone had exceeded the scope of his authority to settle the matter on the terms stipulated as a result of “a misinterpretation of the instructions that had been provided to him by the plaintiff.” Attached to this motion were affidavits from Sansone, Newton, Bruce Alexander, the plaintiffs vice president for New Haven and state affairs and campus development, and Dorothy Robinson, the plaintiffs vice president and general counsel. The defendant filed an objection. Following an extended evidentiary hearing conducted over the course of several months, the court denied the plaintiffs motion to open and set aside the judgment. The court concluded that the plaintiff, acting through Alexander and Robinson, led the defendant to believe that good faith negotiations had occurred and that the plaintiff would be bound by the action of its agent, Sansone. Specifically, the court determined that “the plaintiff failed to show that . . . Sansone lacked authority. Instead, the evidence leads to the conclusion that . . . Sansone had apparent authority to enter into the stipulation.” This appeal followed.

Our Supreme Court expressly has stated: “The procedural posture of this case determines the scope of our review.” Ruddock v. Burrowes, 243 Conn. 569, 573, 706 A.2d 967 (1998); see also Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 306, 695 A.2d 1051 (1997) (“[o]ur consideration of these claims is hindered, however, by the procedural posture in which the present case arrived at our doorstep”). Our case law is replete with examples of the significance of procedural posture to appellate review. See, e.g., Tellar v. Abbott Laboratories, Inc., 114 Conn. App. 244, 245, 969 A.2d 210 (2009) (when reviewing pretrial motion to dismiss, allegations taken in most favorable light to nonmoving party); Misata v. Con-Way Transportation Services, Inc., 106 Conn. App. 736, 740, 943 A.2d 537 (2008) (posture of case determined whether this court considered merits of underlying judgment or limited to whether trial court abused discretion in denying motion to open); Samaoya v. Gallagher, 102 Conn. App. 670, 675, 926 A.2d 1052 (2007) (due to failure to file motion to correct findings in workers’ compensation case, party unable to challenge findings on appeal).

The procedural posture of the case before us is the denial of a motion to open and set aside a judgment. “The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation. . . . The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal. ... We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Emphasis added; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94-95, 952 A.2d 1 (2008); see also Gillis v. Gillis, 214 Conn. 336, 337, 572 A.2d 323 (1990); Eremita v. Morello, 111 Conn. App. 103, 105-106, 958 A.2d 779 (2008); Cox v. Burdick, 98 Conn. App. 167, 176, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006); Magowan v. Magowan, 73 Conn. App. 733, 737, 812 A.2d 30 (2002), cert. denied, 262 Conn. 934, 815 A.2d 134 (2003). The posture of the present case is whether the court properly denied the motion to open the stipulated judgment between the parties. It follows that we review such a claim pursuant to the abuse of discretion standard.

On appeal, the plaintiff claims that the court improperly concluded that Sansone possessed apparent authority to enter into a settlement agreement and bind the plaintiff to the terms of the agreement. We note that in both its appellate brief and at oral argument before this court, the plaintiff expressly disavowed any challenge to the relevant factual findings made by the trial court. Instead, the plaintiff maintains that the court’s legal conclusion that Sansone had apparent authority was improper. We are not persuaded that the court acted unreasonably or abused its discretion in denying the plaintiffs motion to open and set aside the judgment.

A brief discussion of the law of agency will facilitate our discussion. “Agency is defined as the fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act. 1 Restatement (Third), Agency, § 1.01, p. 17 (2006).” (Internal quotation marks omitted.) LeBlanc v. New England Raceway, LLC, 116 Conn. App. 267, 274, 976 A.2d 750 (2009). As a general matter, a principal is liable for the acts of its agent. Hallas v. Boehmke & Dobosz, Inc., 239 Conn. 658, 673, 686 A.2d 491 (1997). An agent’s authority may be actual or apparent. State v. Marsala, 116 Conn. App. 580, 585-86, 976 A.2d 46, cert. denied, 293 Conn. 934, 981 A.2d 1077 (2009).

“Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. . . . Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action.” (Citations omitted; emphasis added; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 734-35, 629 A. 2d 333 (1993); see also Gordon v. Tobias, 262 Conn. 844, 850-51, 817 A.2d 683 (2003); 1 Restatement (Third), supra, § 2.03, p. 113. This type of authority may be derived from a course of dealing. Hall-Brooke Foundation, Inc. v. Norwalk, 58 Conn. App. 340, 346, 752 A.2d 523 (2000); see also Edart Truck Rental Corp. v. B. Swirsky & Co., 23 Conn. App. 137, 140, 579 A.2d 133 (1990).

The general rules regarding agents and apparent authority become more complicated when, as in the present case, the agent is a lawyer who has settled a case for his or her client. See generally J. Pamess & A. Bartlett, “Unsettling Questions Regarding Lawyer Civil Claim Settlement Authority,” 78 Or. L. Rev. 1061 (1999). One court aptly has observed that the intersection of ethical guidelines, contract law, agency law, the attorney-client relationship and policy considerations is the reason for the difficulty in determining the extent of an attorney’s authority to effectuate a settlement without the express authorization of the client. Makins v. District of Columbia, 861 A.2d 590, 593 (D.C. 2004). Our Supreme Court expressly has noted that “[a]n attorney who is authorized to represent a client in litigation does not automatically have either implied or apparent authority to settle or otherwise to compromise the client’s cause of action.” Acheson v. White, 195 Conn. 211, 213 n.4, 487 A.2d 197 (1985); Cole v. Myers, 128 Conn. 223, 227, 21 A.2d 396 (1941).

The court found that Sansone had been retained by the plaintiff in 1986 and had been involved in the dispute over the shed and walkway from 2001. Sansone had engaged in extensive negotiations with the defendant regarding the various property issues. During this time, Sansone worked closely with Newton, who also had substantial contact with the defendant and its attorney. Additionally, Sansone and Newton had participated in discussions regarding the lease of 1044 Chapel Street, a nearby restaurant location owned by the plaintiff and leased to Camacho and Franco-Camacho. Sansone had considerable correspondence with Krassner, the defendant’s lawyer for over four years. Finally, Franco-Camacho contacted Alexander directly, via e-mail, in an effort to resolve the dispute. This e-mail began: “I write to you at the risk of asking for your involvement on an issue that is most certainly otherwise below your concern.” Franco-Camacho indicated a willingness to sign a license agreement and requested “ten minutes of [Alexander’s] time . . . .” Alexander, Newton’s supervisor, responded to Franco-Camacho’s e-mail but did not correct or address her statement that this matter was below his concern. On the day of the settlement, both Sansone and Newton were present, and Newton approved each term contained in the written agreement between the parties.

Simply put, this is not a case in which the court found apparent authority simply as a result of retaining a lawyer and having him negotiate on behalf of a client. See, e.g., Acheson v. White, supra, 195 Conn. 213 n.4. Instead, on the basis of the totality of the circumstances of this case, the court reasonably determined that San-sone had apparent authority. See 1 G. Hazard & W. Hodes, The Law of Lawyering (3d Ed. Sup. 2003) § 5.7, pp. 5-22 through 5-22.2; see, e.g., Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 573-74, 845 A.2d 417 (2004) (although general rule is that corporate vice president lacks inherent authority to bind corporation, in certain cases that individual may have apparent authority to do so). There is no finding that either the members of the defendant or Krassner were told or made aware that Alexander’s approval was required to settle the dispute. The plaintiff acknowledged that Alexander and Robinson had delegated the authority to negotiate to Newton and Sansone. When Franco-Camacho presented the matter directly to Alexander, he failed to indicate that his approval was necessary; instead, his e-mailed response acted as confirmation that the matter was, as described by Franco-Camacho, “below [his] concern.” In other words, the issue of authority was raised with Alexander, and he did not address that issue. By this omission or inadvertence, Alexander caused or allowed the members of the defendant to believe that Sansone, part of the team that had been, in effect, the “face” of the plaintiff, possessed the authority to settle the dispute. Finally, Newton, a direct subordinate to Alexander and an employee of some consequence, was present at the time the parties reached the settlement and voiced no opposition to any of the terms. The court properly determined that the actions and inactions of the plaintiff, the principal, caused or allowed the defendant reasonably to believe that Sansone, the agent, had the authority to enter into and to bind the plaintiff to the settlement with the defendant.

Last, as discussed previously, the question is limited to whether the court abused its discretion or acted unreasonably in denying the motion to open and set aside. We are required to make every reasonable presumption in favor of its action. Accordingly, we conclude that the court did not abuse its discretion in denying the plaintiffs motion to open.

The judgment is affirmed.

In this opinion FLYNN, C. J., concurred.

BORDEN, J.,

dissenting. The majority’s opinion rests on two premises, namely, that (1) our scope of review is limited to whether the trial court abused its discretion in denying the motion to open and set aside the stipulated judgment in question and (2) in light of that limited scope of review, there was sufficient evidence in the record to support the trial court’s determination that Thomas Sansone, the attorney for the plaintiff, Yale University, had apparent authority to enter into that judgment. I disagree with both premises. I therefore dissent.

I begin with the scope of our review. As the majority opinion acknowledges, the plaintiff has expressly disavowed any challenge to the facts found by the trial court. Although the question of agency is a question of fact when the evidence is conflicting or is susceptible of more than one reasonable inference; Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 606, 799 A.2d 1027 (2002); agency becomes a question of law when, as in the present case, the facts are undisputed. Russo v. McAviney, 96 Conn. 21, 24, 112 A. 657 (1921). Furthermore, it is a question of law when, as I will discuss, no reasonable fact finder could find agency in the circumstances of this particular case. Hallas v. Boehmke & Dobosz, Inc., 239 Conn. 658, 674, 686 A.2d 491 (1997). Although, as the majority notes, ordinarily the scope of appellate review of a trial court’s ruling on a motion to open a judgment is abuse of discretion, that scope of review does not apply when, as in the present case, the decision on that motion depends entirely on the purely legal question of whether, under the undisputed facts of the case, Sansone had apparent authority to stipulate to the judgment in question. Put another way, a trial court cannot have discretion to deny a motion that depends entirely on a question of law. See Water Pollution Control Authority v. OTP Realty, LLC, 76 Conn. App. 711, 713-14, 822 A.2d 257 (plenary review applies when purely legal question concerning standing was presented in motion to open), cert. denied, 264 Conn. 920, 828 A.2d 619 (2003). Thus, contrary to the approach of the majority, the trial court’s conclusion that Sansone had apparent authority is not entitled to deference on appeal. We review that conclusion de novo.

I turn next, therefore, to the question of whether, on the undisputed facts of the present case, Sansone had apparent authority to bind the plaintiff to this stipulated judgment. I would conclude that he did not.

The law of apparent authority is well settled, particularly as it applies, as in the present case, to the apparent authority of an attorney to bind his client by way of stipulating to a judgment. “Apparent authority must be derived not from the acts of the agent but from the acts of his principal. [T]he acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.” (Internal quotation marks omitted.) Hallas v. Boehmke & Dobosz, Inc., supra, 239 Conn. 674. It “must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority.” (Emphasis added.) Gordon v. Tobias, 262 Conn. 844, 851, 817 A.2d 683 (2003). Thus, only a principal with actual authority can clothe an agent with apparent authority, and that clothing must appear from his conduct or his knowing permission of the agent’s acting as if he had such authority.

Furthermore, it is unquestioned that the authority to settle a claim rests with the client, not the attorney. Rodriguez v. State, 76 Conn. App. 614, 623-24, 820 A.2d 1097 (2003). “An attorney who is authorized to represent a client in litigation does not automatically have either implied or apparent authority to settle or otherwise to compromise the Ghent’s cause of action.” Acheson v. White, 195 Conn. 211, 213 n.4, 487 A.2d 197 (1985). The authority of an attorney to negotiate on behalf of a client does not imply actual authority or clothe him with apparent authority to settle a matter. See Norwalk v. Board of Labor Relations, 206 Conn. 449, 453, 538 A.2d 694 (1988) (counsel with authority to negotiate on behalf of client “was without authority to bind [client] to a settlement”); see also Johnson v. Schmitz, 237 F. Sup. 2d 183, 192 (D. Conn. 2002) (counsel’s authority to engage in negotiations is “distinct and materially different [from his] authority to execute or agree to a specific settlement”). Application of these principles leads to the conclusion that Sansone had no apparent authority to enter into the stipulated judgment on behalf of the plaintiff.

First, it is worthy of note that, as the plaintiff explains, this judgment had at least one significant adverse effect on the plaintiffs claim to ownership of the property in question, which is located in downtown New Haven. Under the terms of the stipulation, despite the fact that the defendant, Out of the Box, LLC, did not concede the plaintiffs right to ownership or possession of the parcel in question, and despite the fact that the defendant retained the right to bring claims of adverse possession, prescriptive easement or related claims, thus creating clouds on the title, only the defendant, and not the plaintiff, could bring a quiet title action. Thus, if someone approached the plaintiff to buy the property, the plaintiff would be at the defendant’s mercy insofar as clearing the title of the clouds created by the defendant’s claims is concerned.

Second, the question of whether Sansone had apparent authority to enter into this stipulation has been clarified by three appropriately candid concessions of the defendant at oral argument in this court. The defendant candidly acknowledged that (1) neither David Newton, the plaintiffs director of university properties, nor Sansone had actual authority to settle the case, (2) only Bruce Alexander, the plaintiffs vice president for New Haven and state affairs and campus development, had actual authority to settle the case and (3) therefore, to prevail, the defendant must have established that Alexander clothed Sansone with apparent authority. This is clear, moreover, from the bylaws of the plaintiff, introduced into evidence, and from the undisputed fact that throughout the lengthy negotiations, all of the proposed leases and other documents showed Alexander’s signature as acting on behalf of the plaintiff. Indeed, Suzette Franco-Camacho, one of the defendant’s principals, testified specifically that Alexander never told her that Sansone had authority to settle, and that she was led to believe that he had such authority solely from the fact that he had been negotiating on the plaintiffs behalf and that he appeared in court. Furthermore, the defendant’s attorney testified that “ ‘the only people that possibly could have’ ” led him to believe that San-sone had authority to settle were Sansone himself and Newton.

The question, then, becomes quite simple: did Alexander do anything to clothe Sansone, the plaintiffs attorney, with apparent authority, or knowingly permit him to act as if he had actual authority, to settle this matter? The answer is clearly no. All that Alexander did was to permit Sansone to enter into a series of negotiations with the defendant and to send Sansone to court to negotiate in an effort to reach a settlement of the matter. Negotiation is precisely what attorneys are hired to do on behalf of a client, but it is the client that makes the decision on settlement. The authority of an attorney to negotiate on behalf of a client, which is unquestioned, does not and cannot clothe him with apparent authority to settle the case on the client’s behalf. Norwalk v. Board of Labor Relations, supra, 206 Conn. 452; Johnson v. Schmitz, supra, 237 F. Sup. 2d 192.

The only matters that the majority relies on for the assertion that Alexander clothed Sansone with apparent authority to settle are: (1) the lack of a finding that “either the . . . defendant or [its attorney] were told or made aware that Alexander’s approval was required to settle the dispute”; and (2) Alexander’s response to an e-mail sent to him by Franco-Camacho, in which Franco-Camacho had asked for Alexander’s involvement in what Franco-Camacho, not Alexander, characterized as “otherwise below your concern,” a characterization that, according to the majority, Alexander “did not correct or address” in his response. From these, the majority argues that “the issue of authority was raised with Alexander, and he did not address that issue. By this omission or inadvertence, Alexander caused or allowed the members of the defendant to believe that Sansone, part of the team that had been, in effect, the ‘face’ of the plaintiff, possessed the authority to settle the dispute.” This simply cannot be.

First, the majority’s reliance on the lack of a finding that either the defendant or its attorney was told that Alexander’s approval was required for the settlement turns the law on its head. When the apparent authority of an attorney to settle is at issue, it is the other party’s burden to establish that the principal and client — in this case, Alexander — clothed the attorney with apparent authority; it is not the principal’s or client’s burden to show that it told the other party that only the client, and not the attorney, has the authority to settle.

Second, the lengthy e-mail exchange between Franco-Camacho and Alexander not only is wholly bereft of support for the weight placed on it by the majority, it belies that support. The exchange began with a lengthy, unsolicited e-mail, the date of which is not indicated, from Franco-Camacho to Alexander, the full text of which is set forth in footnote 3 of this opinion. On May 19, 2006, nearly four months before the “settlement” at issue in this case, Alexander replied at length with an e-mail of his own, the full text of which is set forth in footnote 4 of this opinion.

Nowhere in either e-mail is Sansone even mentioned, either by name or by reference to his role as the plaintiffs attorney. Furthermore, contrary to Franco-Camacho’s characterization that the matter of the dispute between the plaintiff and defendant was “otherwise below [Alexander’s] concern,” the fact of and the content of Alexander’s reply indicates clearly that it was definitely within his concern. Thus, the fact that Alexander did not specifically address Franco-Camacho’s characterization of “the matter” between them, in the majority’s phrasing — which “matter” was, by the way, not the question of Alexander’s authority, as the majority suggests, but the underlying real estate dispute — in no way can be construed as confirming that characterization. Alexander had no duty specifically to address every assertion or characterization in Franco-Camacho’s lengthy and, at times, very personal, e-mail. He certainly cannot be held to have clothed Sansone with apparent authority to enter into a settlement four months later merely by not specifically addressing that characterization, in the context of a response that, on its face, specifically did address the substance of her concerns and showed that he was directly concerned with those concerns on the plaintiffs behalf. Finally, the majority’s metaphorical assertion that Sansone was “part of the team that had been, in effect, the ‘face’ of the plaintiff,” adds nothing to the analysis of apparent authority. The “team” was vested solely with the authority to negotiate, which is what attorneys and subordinates normally do on behalf of their clients and principals. Therefore, if Sansone was the “face” of the plaintiff, he was the negotiating “face,” which did not, absent something from Alexander clothing him with apparent authority, give him apparent authority to settle the case. In this case, there simply was no such “something.”

The wise words of the United States Court of Appeals for the Second Circuit in a similar case bear repeating here. “We realize that the rule we announce here has the potential to burden, at least occasionally, [trial] courts which must deal with constantly burgeoning calendars. A contrary rule, however, would have even more deleterious consequences. Clients should not be faced with a Hobson’s choice of denying their counsel all authority to explore settlement or being bound by any settlement to which their counsel might agree, having resort only to an action against their counsel for malpractice.” (Emphasis in original.) Fennell v. TLB Kent Co., 865 F.2d 498, 503 (2d Cir. 1989).

Whether one views this case through the prism of a total lack of evidence to support a determination of apparent authority in Sansone or through the prism that no reasonable fact finder could find apparent authority, the conclusion is the same. Sansone had no apparent authority to bind his client to this settlement, and the client should not be bound by it.

I would, therefore, reverse the judgment and remand the case with direction to grant the motion to open and set aside.

       The court explained: “The shed (at times referred to as the rear room or hut) is a cinder block structure which has been attached to the rear of 266 College Street for approximately fifty years.” The walkway is located at the rear of 266 College Street.

       Despite the quitclaim deed provided to the plaintiff, both the members, on behalf of the defendant, and Antonellis believed that valid claims of adverse possession existed with respect to the shed and a prescriptive easement as to the walkway.

       “Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit. A court’s authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings.” (Internal quotation marks omitted.) Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993).

       We are not persuaded by the dissent’s citation to Water Pollution Control Authority v. OTP Realty, LLC, 76 Conn. App. 711, 713-14, 822 A.2d 257, cert. denied, 264 Conn. 920, 828 A.2d 619 (2003). In that case, because the defendant claimed that the plaintiff lacked standing and thus implicated the court’s subject matter jurisdiction, we employed the plenary standard of review. Id. The lack of the court’s subject matter jurisdiction is readily distinguishable from a claim that a motion to open was denied improperly.
      We are also aware of our Supreme Court’s decision in Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 780 A.2d 916 (2001). In that case, following a stipulated judgment, the plaintiff sought an award of attorney’s fees pursuant to General Statutes § 52-240a. Although the dissent in Wallerstein characterized the appeal as whether the trial court had abused its discretion in denying the plaintiffs motion to open; id., 308-309 (Zarella, J., dissenting); the majority determined that the issue was one of statutory construction and therefore utilized the plenary standard of review. Id., 302-307.
      The issues of standing, subject matter jurisdiction or statutory inteiq>retation are not before us. Undeniably, our jurisprudence requires the plenary standard of review for such claims. The present case concerns only the issue of whether the court abused its discretion or acted unreasonably in denying the plaintiffs motion to open the stipulated judgment.

       In its appellate brief, the plaintiff acknowledges the abuse of discretion standard with respect to our review of the denial of a motion to open and set aside. It then notes that ordinarily, the question of proof of agency is a question of fact. See Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 606, 799 A.2d 1027 (2002); see also Host America Corp. v. Ramsey, 107 Conn. App. 849, 858, 947 A.2d 957, cert. denied, 289 Conn. 904, 957 A.2d 870 (2008). The plaintiff correctly argues that when the facts are undisputed; Russo v. McAviney, 96 Conn. 21, 24, 112 A. 657 (1921); or when no reasonable fact finder could find that an agency relationship existed; Hallas v. Boehmke & Dobosz, Inc., 239 Conn. 658, 673-74, 686 A.2d 491 (1997); then the issue of agency becomes a legal question. Nevertheless, the ultimate question before us is whether the trial court abused its discretion or acted unreasonably in denying the plaintiffs motion.

       See rule 1.2 (a) of the Rules of Professional Conduct (“[a] lawyer shall abide by a client’s decision whether to settle a matter”).

       “To be sure, settlement of disputes . . . is to be encouraged as sound public policy. . . . [Nevertheless, as] between the client and the third party, the third party should bear the risk of an unauthorized settlement because the third party should know that settlements are normally subject to approval by the client . . . .” (Citations omitted; internal quotation marks omitted.) Makins v. District of Columbia, 861 A.2d 590, 597 (D.C. 2004). Under the facts of the present case as well as the limited standard of review that we must employ here, the latter policy does not prevail.

       In its brief, the plaintiff refers to certain language from Cole v. Myers, supra, 128 Conn. 223, in support of its argument that the court improperly determined that Sansone had apparent authority to settle the summary process action. “The rule is almost universal that an attorney who is clothed unth no other authority than that arising from his employment in that capacity had no implied powers by virtue of his general retainer to compromise and settle his client’s claim or cause of action, except in certain conditions of emergency. Either precedent special authority from the client or subsequent ratification by him is essential in order that a compromise or settlement by an attorney shall be binding on his client.” (Emphasis added.) Id., 227. We note that in the present case, the court found that Sansone had been clothed with apparent authority. Because the court in Cole was not describing apparent authority, the three conditions detailed in that case, emergency, precedent condition and subsequent ratification, would not appear to apply here to bind the plaintiff to the actions of Sansone.

       Alexander’s e-mail indicated that he had reviewed the actions taken by “University Properties” and concluded that appropriate actions had been taken. He consistently referred to “University Properties” as “they” and gave no indication of any authority over that group. He did not direct, order or instruct University Properties; instead he “asked” and “requested” that they resolve the issue of an unsigned lease with Franco-Camacho. Most importantly, nothing in the e-mail would dispel Franco-Camacho’s belief that the matter was beneath Alexander’s concern or would suggest that he had to approve any settlement.

       “It is well settled . . . that a corporation is a distinct legal entity that can act only through its agents.” Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 505, 656 A.2d 1009 (1995).

       Although the court did not expressly find that Newton had received authority to settle the matter on his own, the fact that he had received the authority to engage in settlement discussions with the defendant is significant on its own. Sansone was accompanied by an employee of the plaintiff of some importance and when the terms of the settlement were finalized, Newton agreed to each term. This fact buttresses the claim that Sansone had the apparent authority to complete the settlement.

       The plaintiff also argues that the court failed to find that the defendant’s belief that Sansone had the necessary authority to bind it was not reasonable. We simply note that the court concluded that Robinson and Alexander, “by their actions or lack thereof, left the parties to believe that they were negotiating in good faith and [that the plaintiff] would be bound by the actions of its agent.” It further observed that the plaintiff failed to meet its burden to show that Sansone lacked authority. It is implicit in the court’s decision that it found that the belief of Franco-Camacho that Sansone had the authority to settle the matter was reasonable. Because the plaintiff does not challenge any of the court’s factual findings, we need not address this argument further.

       In the present case, it is clear to me that the defendant has not met the first part of this two part test, namely, whether the principal held out the agent as having sufficient authority or knowingly permitted him to act as having such authority. I therefore do not discuss the second part of the test. I note, however, that the plaintiff also claims that the second part of the test was not satisfied by the evidence in the case.

       The majority also cites the fact that Newton, Alexander’s subordinate, who, the majority recognizes, “had received the authority to engage in settlement discussiom(emphasis added); was present when Sansone stipulated for the settlement and “agreed to each term,” as support for “the claim that Sansone had the apparent authority to complete the settlement.” This fact cannot provide any such support. First, the authority to engage in settlement discussions — which means no more than the authority to negotiate — does not imply the authority to settle. Second, it escapes me how a subordinate’s authority to negotiate, along with the principal’s attorney, can provide support for the assertion that his principal clothed the attorney with the apparent authority to settle. Third, it is undisputed that Newton had no authority to settle; indeed, the defendant’s concession that only Alexander had such authority completely strips Newton’s conduct of any support for the claim that Alexander clothed Sansone with such apparent authority.

       The full unedited text of the e-mail sent by Franco-Camacho to Alexander provides as follows:
      “Dear Bruce,
      “I write to you at the risk of asking for your involvement on an issue that is most certainly otherwise below your concern. I know how busy you are especially since you recently took on additional responsibilities at the university. But in the past we were incredibly appreciative of your generosity to help us resolve a very difficult situation regarding the aftermath of Franco’s arrest. As we fear we are facing difficult times again, this time surrounding the easement issues from our building, I hoped it would not be considered too forward for me to reach out one last time in hopes that perhaps there is still a solution that could avoid a legal process and still put your concerns at ease.
      “I should say, I know that I can be stubborn at times (though one can’t really survive in our business without a little persistence) and I did resist for quite some time to understand the importance of eliminating any potential future adverse possession claims on your property. But now that we are finally in the position (for the first time) of being able to sign the license agreement as the owner rather than wait for the previous owner to sign on our behalf, I have come to understand that the agreement is about preserving the university’s future growth and there are probably few parcels left for you to develop. Sometimes we restaurateurs can be stuck in the present in order to remain successful but I’ve come to appreciate that it must be difficult sometimes to protect the long-term interests of the university at the expense of otherwise reasonable requests that are short-term in comparison. I can only presume that this is the difficult situation in which the university stands but it requires maintaining tough lines at times.
      “I hope also that you can appreciate how far we’ve come in complying with your initial requirements regarding the easement issues. Four years and several hundred thousand dollars later, we were able to accommodate a second means of egress inside by giving up a sizeable amount of dining space. I have come to understand now that for the university to protect its future right against all adverse possession claims, that perhaps there can be no physical structures existing on your property. I should say that I would be very grateful if there were a way to sign a waiver to any and all future claims and continue leasing the shed even with a termination clause that allows you short notice for removal. But even that is not as important to me now as simply the right for my family and only my family to be able to exit the rear of the building. Years ago, when these discussions began, David Newton had consistently told us that if we made the investment in creating a second means of egress inside the space, that he would ensure that, just for our personal use, we would be given some license to be able to exit.
      “This last consideration has become so important to me because of the implications for my children. To me knowledge, we are the only family with young children that has made the commitment to pioneer in downtown living by buying a residence that is right in the middle of the downtown. As I watch all these condos go up around me and hear that the developers are struggling to recruit families into their buildings, I am eager to show that our story has been so positive in hopes that it will continue to help 1he revitalization of downtown. However, these past few months without access through the back have been difficult and I am very afraid of the impact opening our restaurant is going to have on our ability to continue to live above. If I can’t walk my dogs or bring my children in and out of our home without taking them through the restaurant, I have to consider the substantial negative impact this will have on them. We have been proud to be a part of the downtown renaissance and we hope that the investment we’ve made both in our home as a model of what downtown living can be and also our newest restaurant will continue to set high standards for the downtown. That is the most important part of we have respected deeply that it is also your top priority as well. But I am also a mother and I must worry about my kids. Being a small business owner of any kind is always difficult but being a restaurateur has even far greater challenges to raising a family and I am worried that if we do not have a safe place for my children and our pets to enter and exit in the evenings when the restaurant is open then I may not be able to continue living downtown and then, after pioneering for so long, I fear we will only have proven the ‘nay-sayers’ right that downtown new haven isn’t a place for families to live.
      “If signing the license agreement could still allow us this consideration for our family, then I would be eager to sign it. But as I see this process push down a certain path, I was wondering if there wasn’t a way to step back on last time and perhaps with ten minutes of your time I could show you the issues at the building so that you could see the situation as we see it and even perhaps if you could help us see alternatives that could alleviate the issue that perhaps we haven’t seen ourselves. Again, at this point, the only issue that I see as insurmountable is the ability for my family to have a private exit and entrance into our home that does not pass through the restaurant. I suppose I am recalling these few times in the past when you have stepped in and shown us great neighborly support and I am hoping that perhaps it could be possible to trouble you once more in this way knowing you probably have the most experience with these issues and that your intentions both for the university and for downtown development are the most pure.
      “I am writing this letter outside the legal process that has begun intentionally to your attention. If you find it isn’t possible to meet with us briefly, I would be grateful if you could get back to me directly so that I at least know it has reached you.
      “Thank you very much for your time to read this note.
      “Best Regards,
      “Suzette”

       The full unedited text of Alexander’s reply e-mail to Franco-Camacho provides as follows:
      “Dear Suzette,
      “Thank you for your email. After carefully reviewing the matters about which you wrote I feel University Properties has acted appropriately.
      “As much as University Properties would like to be neighborly, there are now plans to develop the lot in question and it is inappropriate to use the University’s property — at a substantial loss of useable land for future development — to provide an easement for the convenience of an adjacent property owner. There is also little point providing a temporary solution when a permanent one will need to be found shortly.
      “With respect to the second issue of the shed on our property, my review of the correspondence indicates that University Properties has made it clear that they have always been willing to grant you a license for its use, but the University must be protected from liability. Since they are trying to accommodate you, it seemed peculiar that your lawyer should demand a series of concessions in return for your signing it. He must feel that you have property rights and the only way to resolve that matter, if the license is not signed, is through the courts, regrettable though that is.
      “I now also understand that you have never signed the renewal of the Roomba lease, a matter which is well over a year old. Since this distinguishes you from our other 84 retail tenants I have asked University Properties to send you new execution copies and have requested that they resolve the matter promptly with you.
      “We respect and recognize your hard work and contributions to New Haven and continue to wish you and your family well with your endeavors.

        “Best regards,
      “Bruce Alexander”

      I confess that I am baffled by the majority’s reliance on the passing references in Alexander’s response to the role of university properties. Although the majority does not make clear what or who “university properties” is, the record does so. Newton was director of university properties and, as such, reported directly to Alexander, and was responsible for day-to-day management of the plaintiffs apartment units, retail spaces (including the parcel at issue in this case), and office space. It is clear, therefore, that university properties was simply the real estate arm of the plaintiff, under the authority of Alexander. Indeed, the majority’s reliance on these passing references is even more inexplicable in light of the fact that both Franco-Camacho and the defendant’s attorney specifically testified that nothing Alexander had said had led them to believe that Sansone had authority to settle; there was no evidence that the defendant, either by its principals or its attorney, relied on these passing references in forming their belief that Sansone had authority to settle.

       I note that the use of the term “Hobson’s choice” was inaccurate under the circumstances in Fennell v. TLB Kent Co., 865 F.2d 498, 503 (2d Cir. 1989). “That term does not signify a situation in which either alternative may be unfavorable; rather, it represents an illusory choice that is, in fact, no choice at all.” State v. Perkins, 271 Conn. 218, 273 n.2, 856 A.2d 917 (2004) (Katz, J., dissenting); see also State v. Messler, 19 Conn. App. 432, 436 n.3, 562 A.2d 1138 (1989) (“The term is derived from the practice of Thomas Hobson ... an English liveryman, of requiring each customer to taire the next available horse. Thus, in modem usage a Hobson’s choice is ‘[a]n apparent freedom of choice with no real alternative.’ American Heritage Dictionary of the English Language, New College Edition, [p.] 626.”). Consequently, a Hobson’s choice is not a choice between two nags; it is, instead, the “choice” to take the nag that is chosen for you. The course that the court in Fennell was deploring was a choice between two unfavorable alternatives, not an illusory choice that was, in fact, no choice at all.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARK ANDREW COYNE
    (AC 29390)
    Bishop, Robinson and Foti, Js.
    Argued October 28, 2009
    officially released January 12, 2010

      Jonathan R. Sills, with whom, on the brief, was Steven A. Torneo, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Dina Urso, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Mark Andrew Coyne, appeals from the judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2005) § 14-227a (a) (1). See footnote 5 of this opinion. On appeal, the defendant asserts a number of evidentiary claims and also claims that the evidence was insufficient to sustain his conviction. Specifically, the defendant claims that the court improperly (1) denied his motion to preclude evidence of the horizontal gaze nystagmus test administered to him by the police, (2) denied his motion to preclude any evidence regarding the National Highway and Traffic Safety Administration’s methods, procedures, training and scoring on standardized field sobriety tests, (3) admitted the results of the standardized field sobriety tests he took, which were not in compliance with the National Highway and Traffic Safety Administration standards and (4) admitted evidence of his refusal to submit to a chemical breath test. Finally, as noted, the defendant claims that the guilty verdict was not supported by sufficient evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the early morning hours on December 2, 2005, Greenwich police Officer Kristy Purzycki was on patrol when she noticed the defendant traveling eastbound on Route 1, also known as East Putnam Road, in a Chevrolet model pickup truck. While traveling behind the defendant’s vehicle, Purzycki observed the truck speed up and slow down for no apparent reason. Purzycki also saw the defendant’s vehicle drift from the right travel lane to the left lane without using a directional signal. As Purzycki was following the defendant, she saw him turn right into a gasoline station lot, rolling over a bright orange traffic cone in the process. He then exited the other side of the gasoline station lot and, without signaling, turned onto Sheeps Hill Road, back in the general direction from which he had come. Purzycki turned her vehicle around to follow the defendant, and after observing him continue to swerve between lanes, she initiated a traffic stop. The defendant, without signaling, drove into an empty parking lot.

After effectuating the stop, Purzycki approached the driver’s side window of the defendant’s truck and explained to the defendant why she had stopped him. The defendant smelled of alcohol, appeared confused and did not respond to Purzycki. His eyes were bloodshot and glossy. When questioned, the defendant stated that he could not remember where he was coming from or if he had had anything to drink. His speech was slurred during this exchange. When Purzycki asked him for his license, registration and proof of insurance, the defendant fumbled around in his pockets and was only able to produce his registration, which was located in the glove compartment. Purzycki then asked the defendant to get out of his truck in order to administer field sobriety tests. The defendant appeared unsteady when getting out of his truck and swayed while Purzycki was explaining the testing procedures.

First, Purzycki explained and then administered the horizontal gaze nystagmus test, which indicated to her that the defendant had consumed alcohol. Next, Pur-zycki administered the walk and turn test. Before beginning the test, Purzycki explained it, demonstrated how it was to be done and asked the defendant if there was any reason he would be unable to perform the test. The defendant did not indicate any reason that he could not do so. Purzycki indicated that prior to commencing the test, the defendant was unable to maintain the starting position. While endeavoring to complete the test, the defendant was unable to touch heel to toe, stopped to steady himself, stepped off the line, raised his arms and stopped counting aloud, all contrary to Purzycki’s instructions. Last, Purzycki attempted to administer the one leg stand test to the defendant. She explained and demonstrated the test, but the defendant indicated that because of a right ankle injury he could not perform the test. Although Purzycki reminded the defendant that he could do the test with his other foot, he declined altogether to perform this test.

Also present during the field sobriety testing was Greenwich police Officer Pierre Corticelli, who had arrived as backup shortly after Purzycki had initiated the traffic stop. Corticelli was familiar with the defendant from a prior occasion and observed that the defendant was acting very differently than in their previous encounter. Corticelli testified that the defendant’s cognitive ability was “very much impaired,” that he appeared confused even by simple questions, had slower than normal reaction time, his breath smelled of alcohol, his eyes were glassy and bloodshot, and that he had difficulty maintaining his balance. Corticelli observed Purzycki administer the field sobriety tests and concurred in her conclusions.

Following the defendant’s refusal to complete the one leg stand test, he was placed under arrest, read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and taken to the Greenwich police department. The defendant read and signed a notice of rights form and was allowed to use a telephone to contact an attorney. When questioned, the defendant was able to remember when and what he last ate, when and what medications he had taken that morning but stated that he did not remember when he started and stopped drinking, what he had been drinking, how much he drank or where he had been drinking. After the defendant was read the implied consent advisory and asked to submit to a breath test, he refused.

At trial, defense witness Clark Miller, a nonpracticing podiatrist working for a “forensic gait analysis group,” testified that the defendant had come to him for a gait analysis in connection with the drunken driving charge. This assessment consisted of visual analysis, field sobriety testing and a computerized analysis. Miller testified that on the basis of the results of this analysis, he concluded that the defendant had a problem with his gait that would prevent him from performing the field sobriety tests. Miller was not able, however, to connect the defendant’s gait issues with the inculpatory results of the horizontal gaze nystagmus test, the defendant’s inability to drive or to count properly, his bloodshot and glassy eyes, his memory, his confusion or the odor of alcohol on his breath. Following the conclusion of evidence, the jury returned a guilty verdict, and, on the same day, the defendant pleaded nolo contendere to a part B information charging him as a second time offender. On October 17, 2007, the defendant was sentenced to two years imprisonment, execution suspended after 145 days and three years probation. The defendant now appeals from the judgment of conviction.

On appeal, four of the five claims raised by the defendant allege that the court improperly admitted certain evidence. “The applicable standard of review for evidentiary challenges is well established. We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion.” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 396, 963 A.2d 956 (2009). “Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm.” (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 158, 971 A.2d 676 (2009). “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 352, 904 A.2d 101 (2006). “[A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Beavers, supra, 396-97.

In this instance, we need not discuss the merits of any of the defendant’s evidentiary claims because the defendant has failed, completely, to provide any meaningful analysis of harm. Thus, even if we were to assume, without deciding, that the corut improperly admitted all of the challenged evidence, the defendant’s brief has failed to elucidate how any of the rulings at issue were harmful. Absent any analysis regarding harm, we cannot conclude that the admission of the subject evidence had any bearing on the trial’s outcome. See State v. Gonzalez, 106 Conn. App. 238, 249, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008); State v. LaVallee, 101 Conn. App. 573, 579, 922 A.2d 316, cert. denied, 284 Conn. 903, 931 A.2d 267 (2007); Bicio v. Brewer, 92 Conn. App. 158, 171-72, 884 A.2d 12 (2005).

The defendant claims that the evidence was insufficient to sustain the judgment of conviction. Specifically, the defendant argues that once the allegedly improperly admitted evidence is eliminated from consideration, the remaining evidence is insufficient to support a finding of guilt. The defendant’s analysis is misguided.

The standard governing our review of sufficiency of evidence claims is well established. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cox, 293 Conn. 234, 245, 977 A.2d 614 (2009). “[T]he jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proven beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Calabrese, 116 Conn. App. 112, 119, 975 A. 2d 126, cert. denied, 293 Conn. 933, 981 A.2d 1076 (2009). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Cox, supra, 245. We also note that our “sufficiency review does not require initial consideration of the merits of [the defendant’s evidentiary claims] .... Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error.” (Internal quotation marks omitted.) State v. Calabrese, supra, 118-19.

Because our review requires us to consider all of the evidence presented at trial, irrespective of any alleged impropriety, we reject the defendant’s invitation to consider the sufficiency of only the evidence he concedes was admitted properly. As noted, to evaluate the sufficiency of the evidence presented, we assess all the evidence admitted at trial to determine whether the state produced sufficient evidence to prove each of the required elements under General Statutes (Rev. to 2005) § 14-227a (a) (1). In this instance, for the jury to have found the defendant guilty beyond a reasonable doubt of violating this statute, it had to find that he operated a motor vehicle, on a public highway and that he did so while under the influence of intoxicating liquor. The defendant does not contend that the state failed to produce sufficient evidence that he was operating a motor vehicle on a public road; rather, he claims only that the state failed to prove that he was under the influence of intoxicating liquor. The facts do not support such a conclusion.

At trial, the jury heard testimony describing the defendant’s erratic driving, including drifting between travel lanes, turning without signaling, driving over a traffic cone, failing to maintain a consistent speed and making a U-tum despite being familiar with the area. There was also testimony that upon being stopped, the defendant smelled of alcohol, appeared confused, swayed back and forth, had bloodshot and glassy eyes, was initially unresponsive, slurred his speech when he did speak, had slow reaction time and fumbled around when looking for his license and registration. The police testified that the defendant either failed or declined to take the field sobriety tests. He failed both the horizontal gaze nystagmus and the walk and turn tests, and he refused to perform the one leg stand test. Finally, once at the police station, he refused to submit to a Breathalyzer test. On the basis of the totality of this evidence, we conclude that there was ample evidence on which the juiy could have found beyond a reasonable doubt that the defendant was guilty of operating a motor vehicle while under the influence of intoxicating liquor.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The horizontal gaze nystagmus test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 770 n.3, 970 A.2d 108 (2009).

       The walk and turn test requires the subject to walk, with his hands at his sides, heel to toe along a straight line for nine paces, pivot and then walk back heel to toe along the line for another nine paces. The subject is required to count each pace aloud from one to nine. State v. Popeleski, 291 Conn. 769, 771 n.4, 970 A.2d 108 (2009).

       “The one leg stand test requires the subject to stand on one leg with the other leg extended in the air for [thirty] seconds, while counting aloud from [one]to [thirty].” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 771 n.5, 970 A.2d 108 (2009).

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of such person’s constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that such person’s license or nonresident operating privilege may be suspended in accordance with the provisions of this section if such person refuses to submit to such test . . . and that evidence of any such refusal shall be admissible in accordance with subsection (e) of section 14-227a and may be used against such person in any criminal prosecution, refuses to submit to the designated test, the test shall not be given ....
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that such person has an elevated blood alcohol content, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . .”

       General Statutes (Rev. to 2005) § 14-227a (a) (1) was amended by Public Acts 2006, No. 06-147, and the requirement that the state prove the element that the motor vehicle was operated on a public highway was removed. Because the defendant was arrested prior to this change in the law, however, the state was required to produce evidence for each element of the statute as it existed in 2005.

       Purzycki testified that when the defendant turned into the gasoline station and drove out in the direction that he had just come from, she thought that he might be trying to avoid her. The jury could reasonably have considered this act as evidence of consciousness of guilt.


author: PER CURIAM.

text:
    LISA A. FARKAS v. SANDOR FARKAS
    (AC 30075)
    Flynn, C. J., and Bishop and Beach, Js.
    Argued November 12, 2009
    officially released January 12, 2010

      Sandor Farkas, pro se, the appellant (defendant).

      Maria Chiarelli, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Sandor Farkas, appeals from a dissolution of marriage judgment rendered by the trial court. On appeal, the defendant claims that the court made incorrect factual determinations that the plantiff, Lisa A. Farkas, was unable to work and that the status of his physical ailments remain unresolved. The defendant also claims that the court’s property allocation and financial awards were unreasonable in light of the evidence presented at trial. We affirm the judgment of the trial court.

A review of the record reveals that the plaintiff and the defendant were married on January 3,1977, in Nor-walk. There were no minor children issue of the marriage at the time of dissolution. Following a trial, the court, on February 21, 2008, rendered judgment of dissolution, finding that the marriage had broken down irretrievably, with no hope of reconciliation. Pursuant to the dissolution decree, the court made certain orders for the payment of alimony and the distribution of property. Specifically, the court ordered each of the parties to pay the other $1 per year in alimony, subject to termination upon death, remarriage or cohabitation and that the parties each would be responsible for their respective health care insurance. The court also issued detailed orders regarding the sale of the parties’ jointly owned real property, located at 11 Bartlett Avenue in Norwalk. The court ordered that the net proceeds derived from the sale be divided between the parties, with the plaintiff to receive 80 percent and the defendant to receive 20 percent. The defendant also was ordered to be responsible for the payment of all expenses and costs, present and future, associated with the property while its sale was pending, including mortgage payments, taxes, insurance, maintenance and repairs.

The court awarded the real property located at 2 Flllow Street in Norwalk, and lot 24, Spring View Acres, in Iredell County, North Carolina, solely to the defendant. The court ordered that the parties would be responsible for their own debts, except for $22,000 in real estate taxes that were to be paid by the defendant. The parties were to retain their own assets and accounts, including that the plaintiff would retain her 401(k) retirement plan and the defendant would retain 490,000 shares of certain stock in his name, as well as the balance of his prior personal injury settlement.

Initially, we set forth our standard of review regarding factual findings made by the court. “The trial court’s findings [of fact] are binding upon this court unless they are clearly erroneous .... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn. App. 325, 330-31, 983 A.2d 293 (2009).

The defendant first claims that the court made an incorrect factual determination regarding the employ-ability of the plaintiff. We disagree. The court noted that the plaintiff previously had been employed as a nurse but that she presently was unemployed and that the Social Security Administration had declared her to be disabled due to multiple ailments. The court’s conclusions in this regard find ample support in the record. Accordingly, the court’s determinations were not clearly erroneous.

Next, the defendant claims that the court incorrectly determined that his medical problems remain unresolved. Here, perhaps the defendant misunderstands the import of the court’s comments. The court found that the defendant, at times a self-employed painter, was unemployed at the time of the marital dissolution. The court noted that the defendant had developed medical problems, which impeded his ability to work, and that his surgeries had left him in chronic pain. In this context, the court observed that the plaintiffs medical problems remain unresolved. Our review of the record leads us to believe that the court’s finding that the defendant’s physical problems remain unresolved was not intended to minimize the defendant’s ailments but, rather, was an acknowledgement by the court that the defendant suffers multiple ongoing ailments. We further conclude that this finding is supported by the record.

Finally, the defendant claims that the court’s allocation of property was unsupported by the trial evidence. We are not persuaded.

Initially, we note that “[a]n appellate court will not disturb atrial corut’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) McMellon v. McMellon, 116 Conn. App. 393, 394-95, 976 A.2d 1, cert. denied, 293 Conn. 926, 980 A.2d 911 (2009). Further, we note that pursuant to General Statutes § 46b-81 (c), “[i]n fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties to the acquisition, preservation or appreciation in value of their respective estates.”

Our review of the record leads us to conclude that the court properly considered the factors set forth in § 46b-81 (c), and that the awards made by the court were both supported by the evidence and within the parameters of the court’s discretion.

The judgment is affirmed.