text:
    William L. Johndrow et al. v. State of Connecticut
    (9146)
    Dupont, C. J., Spallone and Norcott, Js.
    Submitted on briefs March 26
    decision released June 4, 1991

      Lois Frankforter filed a brief for the appellants (intervening plaintiff et al.).

      Lewis C. Maruzo filed for the appellees (plaintiffs).
   Spallone, J.

The plaintiffs, William L. Johndrow and Ila Johndrow, commenced suit against the state of Connecticut seeking to recover for injuries sustained by William Johndrow when a truck owned by the state collided with his motor vehicle. At the time of the accident, Johndrow was acting in the course of his employment with Nutmeg Piping Supply and Service, Inc. (Nutmeg). Johndrow and Nutmeg had executed workers’ compensation agreements that were approved by the workers’ compensation commissioner. Johndrow duly notified Nutmeg that he had commenced an action against the state. On August 25,1989, Hartford Accident and Indemnity Company (Hartford), which insured Nutmeg for its liability under the Workers’ Compensation Act, moved to intervene in the plaintiff’s suit as a plaintifff, which motion was granted on September 11, 1989.

Subsequently, Hartford filed a motion to substitute the plaintiff’s employer, Nutmeg, as an intervening plaintiff in place of Hartford. The Johndrows moved to dismiss Hartford’s intervening complaint, alleging that Hartford had no standing to intervene because General Statutes § 31-293 grants the right of intervention in this case exclusively to the employer, and that the court lacked subject matter jurisdiction. The trial court agreed and struck Hartford’s intervening complaint. The court concluded that it lacked the power to grant or deny the relief requested, granted the motion to dismiss for lack of jurisdiction, and held that the motion to substitute was moot.

Hartford and Nutmeg contend that the trial court improperly granted the plaintiffs’ motion to dismiss and improperly failed to consider the motion to substitute on its merits before granting the motion to dismiss. We disagree.

Intervention, pursuant to the Workers’ Compensation Act, is controlled specifically and solely by § 31-293 (a). See, e.g., Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 528 A.2d 826 (1987); Ricard v. Stanadyne, Inc., 181 Conn. 321, 435 A.2d 352 (1980); McClendon v. Soos, 18 Conn. App. 614, 559 A.2d 1163 (1989); Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988); Police Department v. Giordano, 3 Conn. App. 450, 488 A.2d 1293 (1985); Norwalk v. Van Dyke, 33 Conn. Sup. 661, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976). That statute provides that “any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against [the tortfeasor] to recover any amount that he has paid or has become obligated to pay as compensation to [an] injured employee. If . . . such employee . . . brings such an action against such third person, he shall . . . notify the [employer], in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and [the employer] may join as a party plaintiff in such action within thirty days after such notification, and, if [the employer] fails to join as a party plaintiff, his right of action against such third person shall abate.” General Statutes § 31-293 (a).

An insurance carrier does not constitute an employer for the purposes of intervention within the meaning of General Statutes § 31-293. McClendon v. Soos, supra, 618. Accordingly, Hartford does not constitute an employer under § 31-293 and never had a right to intervene in this action. It had no standing to pursue any cause of action under this section, or to file any motions pertaining thereto. Id.

By failing to move for intervention in a timely fashion, Nutmeg also lost any right it may have had to intervene in this action. Once statutory notice has been given by the employee to the employer, the employer has thirty days to intervene or “his right of action against such third person shall abate.” (Emphasis added.) General Statutes § 31-293 (a). “Where a cause of action has been created by statute, strict compliance with the prescribed procedure has been deemed essential.” Norwalk v. Van Dyke, supra, 664. Nutmeg did not move to intervene in this action within thirty days of receiving notice of the suit. Accordingly, it lost its right to intervene.

The trial court was also correct in not considering Hartford’s motion to substitute Nutmeg as intervenor. When the issue of subject matter jurisdiction is brought to the attention of the trial court, it must decide the question of jurisdiction before it proceeds any further with the case. Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 32, 392 A.2d 485 (1978). Having decided the issue of jurisdiction by holding that Hartford had no standing to intervene, the trial court correctly concluded that Hartford’s motion to substitute was moot and that it need not be considered on its merits.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note Practice Book § 101 which contemplates a motion to substitute the plaintiffs where substitution “is necessary for the determination of the real matter in dispute.” The real issue disputed in this action is the defendant’s liability in tort and not the indemnification of another. Accordingly, this section does not apply to this case.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Anthony Lozada v. Warden, State Prison
    (9184)
    O’Connell, Landau and Heiman, Js.
    Argued February 7
    decision released June 4, 1991

      James J. Ruane, special public defender, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Edward Ricciardi, assistant state’s attorney, for the appellee (respondent).
   O’Connell, J.

The sole issue in this appeal is whether a person convicted of a crime may seek a writ of habeas corpus on the ground that his attorney at a prior habeas corpus hearing failed to render effective assistance. The trial court dismissed the petition on the theory of res judicata. We reverse the judgment of the trial court.

The petitioner had pleaded guilty to felony murder in violation of General Statutes § 53a-54c and was sentenced to twenty-five years in the custody of the commissioner of correction. At all times relevant to this appeal, he has been incarcerated. Subsequent to his conviction, the petitioner filed a habeas corpus petition alleging that his guilty plea and imprisonment were the consequence of the ineffective assistance of his trial counsel. Following an evidentiary hearing on March 5, 1985, the court, Kline, J., denied the petition. The petitioner did not seek certification to appeal this decision.

On July 30,1986, the petitioner filed a second habeas corpus petition, this time alleging ineffective assistance of the counsel who had represented him at his first habeas corpus hearing. The court, Kaplan, J., dismissed the second petition, pursuant to Practice Book § 531, on grounds that it (1) repeated allegations previously adjudicated in the first habeas action, and (2) failed to state a claim on which relief could be granted.

The court granted certification to appeal and appointed a special public defender to represent the petitioner. On appeal, the petitioner claims that the trial court improperly (1) concluded that the petition was based on the same grounds as the original habeas petition and (2) held that the petitioner could not challenge the effectiveness of counsel in his original habeas action through a second writ of habeas corpus.

The state argues that there cannot be a habeas on a habeas. This is an overstatement of the law. A second habeas may be granted if it is not grounded on the same facts as the first petition. Tirado v. Commissioner of Correction, 24 Conn. App. 152, 156, 586 A.2d 625 (1991).

Here, the first petition was based on the claimed ineffectiveness of the attorney who had represented him in his murder case, whereas the second petition was based on the claimed ineffectiveness of the attorney who had represented him at his first habeas hearing. Clearly, these two petitions are not based on the same grounds despite the fact that the second petition, of necessity, incorporates an allegation of the original trial counsel’s ineffectiveness. The gravamen of the petitioner’s argument, therefore, is that there never was a proper determination, on the merits, of his allegation concerning the denial of effective assistance by his trial counsel because his habeas counsel was also ineffective.

In support of its decision, the trial court found that the petitioner’s second habeas counsel had indicated on the record that no new issues were being raised and, therefore, the petition was clearly dismissible under Practice Book § 531. Although such an admission would be extremely favorable to the state, it has not directed this court to any reference in the transcript where that admission is found, and the petitioner denies making the statement. We conclude that the record in this case does not support this trial court finding.

A further review of the record reveals that the petitioner’s counsel did concede that there was no newly discovered evidence available to support a petition for a new trial. Evidence of the first habeas counsel’s ineffectiveness is not newly discovered evidence sufficient to support a petition for a new trial because such evidence was not in existence at the time of the first habeas hearing. In fact, it was the first habeas hearing that generated this evidence. See Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987). Therefore, the trial court erroneously concluded that the proper route to attack the first habeas corpus judgment was by a petition for a new trial.

The trial court also improperly stated that the petitioner’s alternate remedy was a direct appeal of the first habeas action. A direct appeal, however, is not required where the sole claim is ineffective assistance of counsel. State v. Rivera, 196 Conn. 567, 570-71, 494 A.2d 570 (1985).

The state correctly argues that there is no constitutional right to counsel in a habeas corpus hearing. Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); Franko v. Bronson, 19 Conn. App. 686, 691, 563 A.2d 1036 (1989). The state, however, extends this argument, claiming that because there is no constitutional right to habeas counsel, there is no requirement that counsel at a habeas hearing be effective. We do not agree.

Although there is no constitutional right to habeas counsel, a statutory right to such counsel has been created in this state by General Statutes § 51-296. Franko v. Bronson, supra, 692. There is no merit to the state’s contention that although the petitioner has a statutory right to counsel, the statute does not include a requirement that counsel render effective assistance. To adopt this reasoning would require us to condone ineffective representation. This argument ignores the principle that statutes are not to be construed so as to reach a bizarre result. State v. Williams, 206 Conn. 203, 211, 536 A.2d 583 (1988). We read General Statutes § 51-296 as requiring that counsel appointed thereunder must render effective assistance to the petitioner.

In view of our conclusion that a habeas petitioner is entitled to effective counsel, there must be a procedure to review a claim of ineffectiveness of that counsel. Connecticut courts have relentlessly held that claims of ineffective assistance of counsel should be determined by way of a habeas corpus action. State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Farrar, 7 Conn. App. 149, 163, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). The same reasoning that requires habeas corpus proceedings for claims of ineffective trial counsel; State v. Leecan, supra; and ineffective appellate counsel; Valeriano v. Bronson, 209 Conn. 75, 88, 546 A.2d 1380 (1988); logically dictates that habeas proceedings should be available to challenge the ineffective assistance of habeas counsel.

The trial court relied on State v. Leecan, supra, and Valeriano v. Bronson, supra, for its ruling that habeas corpus claims are reserved for attacking the effectiveness of trial counsel or appellate counsel during the original criminal proceedings. We find no authority in those cases imposing any such limit on the use of a writ of habeas corpus.

The trial court also held that a habeas corpus action is available solely for the purpose of attacking the judgment by which the petitioner is being detained. Extending this reasoning, the trial court also held that because the second habeas did not attack the judgment giving rise to the petitioner’s detention, the second habeas could not be entertained. This narrow view fails to consider the expanded use of the writ of habeas corpus in modern jurisprudence. See Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984) (constitutional right to timely prosecution of appeal from conviction); Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982) (confinement in administrative segregation units); Rogue v. Warden, 181 Conn. 85, 434 A.2d 348 (1980) (loss of good time credit for having possession of documents advocating opposition to correctional system); Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553 (1977) (civil confinement to mental hospital); Doe v. Doe, 163 Conn. 340, 307 A.2d 166 (1972) (custody and visitation disputes).

We recognize the risk of abuse by a disenchanted prisoner who continually files successive habeas petitions seeking retrial of a claim previously considered and decided against him. At common law, there was no prohibition against such successive writs so that “[a] person detained in custody might . . . proceed from court to court until he obtained his liberty.” Cox v. Hakes, 15 AC 506, 527 (H.L. 1890). This procedural hazard is virtually eliminated in Connecticut by Practice Book § 531 that allows summary dismissal, without hearing, of successive habeas petitions brought on previously denied grounds. The United States Supreme Court also sanctions dismissal, without hearing, of successive petitions as the trial court’s protection from this abuse. Sanders v. United States, 373 U.S. 1, 9, 15, 83 S. Ct 1068, 10 L. Ed. 2d 148 (1963); see also 28 U.S.C. § 2255, rule 9b.

The petitioner properly argues that, despite the “once removed status” of the second habeas petition, the underlying reason for his illegal confinement is the original conviction which resulted from his trial counsel’s ineffectiveness and which was compounded by the ineffectiveness of his habeas counsel. Accordingly, unless we are prepared to accord this petitioner a right to effective counsel without a remedy to enforce it, the petitioner must be given his day in court through a second habeas corpus hearing.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The failure to take a direct appeal does not invoke the deliberate bypass prohibition against bringing the second habeas corpus action because the deliberate bypass doctrine does not apply where, as here, the sole claim is ineffective assistance of counsel. State v. Rivera, 196 Conn. 567, 570-71, 494 A.2d 570 (1985).

       General Statutes § 51-296 mandates that counsel be appointed for an indigent defendant “in any habeas corpus proceeding arising from a criminal matter . . . .”

       This historical English practice has now been curtailed by statute. Administration of Justice Act, 1960, 8 & 9 Eliz. II, c. 65, § 14 (2).

       Practice Book § 531 provides: “If the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.”

       28 U.S.C. § 2255, rule 9b provides: “(b) successive motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the writ.”


author: Heiman, J.

text:
    Charles Tyson v. Warden, State Prison
    (9285)
    Dupont, C. J., Foti and Heiman, Js.
    Argued February 6
    decision released June 4, 1991

      Denise Dishongh, special public defender, with whom, on the brief, was Louis S. Avitabile, special public defender, for the appellant (petitioner).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, was Mary Elizabeth Baran, assistant state’s attorney, for the appellee (respondent).
   Heiman, J.

The petitioner appeals from the habeas court’s determination that his confinement is legal and its dismissal of his petition for a writ of habeas corpus. The petitioner claims that this judgment is fatally flawed because the habeas court improperly concluded that (1) the petitioner’s Alford plea was voluntarily and intelligently made, and (2) the petitioner had not been denied the effective assistance of counsel. We affirm the trial court’s judgment.

The facts necessary to the resolution of this appeal may be summarized as follows. The petitioner was charged with the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The robbery was alleged to have occurred on February 15, 1986, at Chucky’s Country Store (Chucky’s) in New Haven. The store clerk was struck on the side of the head by what was claimed by the state to have been a blunt instrument. As a result, the clerk was treated at a hospital emergency room. Her injuries were diagnosed as a neck contusion, a cervical strain, and a hemorrhage in the mastoid bone or a temporal bone fracture. Another employee of Chucky’s who had witnessed the robbery positively identified the petitioner as the perpetrator, but neither this employee nor the clerk could specify what type of weapon had been employed. A videotape of the robbery indicates that the petitioner removed something from his waist area just before he struck the clerk.

On May 13, 1986, the petitioner entered a plea of guilty to a single count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The information alleged that the petitioner used a dangerous instrument—a blunt instrument—in the course of committing the crime. Under the terms of the plea agreement, the petitioner was to receive a sentence of ten years of incarceration, and was to have another criminal case that was then pending against him nolled. At the time that the petitioner’s plea was entered, the court conducted a plea canvass and found that the defendant had pleaded guilty voluntarily, with full knowledge of the crime with which he was charged, with full understanding of the consequences of his plea and with the effective assistance of counsel. On June 20, 1986, the petitioner was sentenced to the custody of the commissioner of correction for a term of ten years. No appeal was taken from that judgment. The other case that was then pending against him was nolled, in accord with the plea agreement.

On July 23, 1986, the petitioner filed a petition for a writ of habeas corpus claiming that his sentence was illegal because the factual basis underlying the crime to which he pleaded guilty supported a charge of robbery in the third degree, but not robbery in the first degree. On March 10, 1989, an amended petition was filed in which the petitioner claimed that his guilty plea was not intelligently made because (1) the trial court failed to advise him of the nature of an Alford plea, (2) he was denied the effective assistance of counsel in that his trial court counsel failed both to explain the nature of an Alford plea and to explain that a necessary element of robbery in the first degree, i.e., the use of a dangerous instrument, requires proof that more than the defendant’s hand and arm was employed. The petitioner also asserted that his failure to appeal from his conviction resulted from his ignorance, and was not the result of a deliberate bypass of the appeal procedure.

The habeas court held a full evidentiary hearing on the amended petition. That court first concluded that the petitioner had not intelligently, understanding^ and voluntarily bypassed his right to a direct appeal. This conclusion is adequately supported by the facts found, including the fact that the sentencing transcript indicates that the petitioner was not advised of his right of direct appeal, and by the testimony of his trial counsel at the habeas hearing stating that she had not advised him of his right to appeal. See State v. James, 197 Conn. 358, 497 A.2d 402 (1985). The court further concluded, however, that the petitioner’s trial counsel had adequately explained all of the elements of the crime of robbery in the first degree to the petitioner, that no constitutional requirement exists mandating that the nature of an Alford plea be explained by the trial court taking the plea in order for such a plea to be valid, that the record of the plea canvass adequately showed that the state had claimed that the petitioner had employed a blunt instrument as the requisite dangerous instrument, and that his trial counsel had provided him with effective assistance. On the basis of these conclusions, the court ordered that the petition for a writ of habeas corpus be dismissed.

As a preliminary matter, we note that as a general proposition a petitioner in a habeas corpus proceeding must allege and prove by a fair preponderance of the evidence in the habeas court that he did not deliberately bypass the exercise of his right to direct appeal. D’Amico v. Manson, 193 Conn. 144, 146, 476 A.2d 543 (1984); Morin v. Manson, 192 Conn. 576, 579, 472 A.2d 1278 (1984); Sutton v. Robinson, 6 Conn. App. 518, 520, 506 A.2d 556 (1986). That rule, however, has been modified to the extent that, before we can deny the review of a petition, “the record before us must disclose some reasonable basis for concluding that a convicted person has intelligently, understanding^ and voluntarily waived his statutory right to appeal.” D’Amico v. Manson, supra, 146-47; see also Paulsen v. Manson, 193 Conn. 333, 338, 476 A.2d 1057 (1984). Where, however, the habeas petition invokes a claim of ineffective assistance of counsel, the deliberate bypass rule is relaxed. State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (1986); State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985). “[A]ny claim invoking ineffective assistance of . . . counsel automatically satisfies the deliberate bypass requirement.” Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988). Thus, we will address the two claims raised by the petitioner because each implicates an ineffective assistance of counsel claim, thereby satisfying the deliberate bypass standard. Id.

I

The petitioner asserts that a guilty plea made pursuant to the Alford doctrine can never be manifestly intelligent when the trial court fails to determine on the record (1) that the petitioner understands the nature and meaning of the Alford plea, and (2) that trial counsel has advised the petitioner that the trial court would explain the nature and meaning of the Alford plea. We disagree.

Under the federal constitution, a person entering a guilty plea waives three fundamental constitutional rights: (1) the privilege against compulsory self-incrimination guaranteed by the fifth amendment to the United States constitution and made applicable to the states by the fourteenth amendment; (2) the right to a trial by jury; and (3) the right of confrontation. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). These same rights are guaranteed by the Connecticut constitution, article first, § 8, as amended by amendment XVII. State v. Suggs, 194 Conn. 223, 227 n.3, 478 A.2d 1008 (1984).

In order for a guilty plea to be knowingly, voluntarily and intelligently made, a trial court must advise a defendant that his plea operates as a waiver of these three fundamental constitutional rights. State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). “ ‘There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.’ ” Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990).

We have specifically held that there is no constitutional requirement that a defendant be advised of every possible consequence of an Alford plea. State v. Brown, 19 Conn. App. 640, 644, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989); see also Oppel v. Lopes, 200 Conn. 553, 560, 512 A.2d 888 (1986). The petitioner asserts that because his trial counsel indicated that the plea court would explain the nature and the meaning of an Alford plea, the habeas court should have found that the petitioner was not advised of the nature and meaning of his plea. We disagree. As we have already stated, the trial court’s failure to inquire as to the petitioner’s understanding of the meaning of an Alford plea does not constitutionally invalidate his plea. State v. Brown, supra.

The habeas court heard the testimony of trial counsel who testified that she had thoroughly discussed the plea and all of its ramifications with the petitioner. Further, the habeas court had the transcript of the plea proceedings before it, including the petitioner’s affirmative answer to the court’s question as to whether the petitioner was pleading guilty because “you are anticipating a sentence of ten years as opposed to the possibility had you elected to proceed to trial and been convicted that you could receive a twenty year sentence.” The habeas court was entitled to believe the petitioner’s affirmative response, and conclude that the plea and its consequences were adequately explained to the petitioner. Oppel v. Lopes, supra, 557; Bowers v. Warden, 19 Conn. App. 440, 442-43, 562 A.2d 588 (1989). We conclude that the habeas court was correct in rejecting this claim.

II

The petitioner next claims that he was denied the effective assistance of counsel in the trial court in violation of the rights that are guaranteed to him under the sixth amendment to the United States constitution. He posits that his claim of ineffective assistance of counsel is supported by the fact that (1) his plea of guilty was entered when there was insufficient evidence to satisfy a requisite element of robbery in the first degree, i.e., the use of a dangerous instrument during the commission of the robbery, and (2) his trial counsel did not properly investigate this lack of evidence. The petitioner argues that these alleged facts, of necessity, should vitiate the voluntariness or intelligence of the plea of guilty.

The habeas court held a full hearing on the claim of ineffective assistance of counsel. The petitioner’s trial counsel testified as to all of the steps that she took to satisfy herself that the state had a provable case against the petitioner. The habeas court concluded that the petitioner’s trial counsel had fully met her professional obligation to the petitioner in that she had thoroughly investigated the case, and had advised the petitioner of both the nature of the offense and the facts on which he could be found guilty if he went to trial. The habeas court thus concluded that the petitioner did not prove that his trial counsel had failed to meet the performance standard. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The petitioner relies on the factual findings and conclusions of the habeas court as the predicate for his attack on its decision. It is our obligation as an appellate court to make a two part analysis to determine whether the habeas court’s decision is clearly erroneous. First, where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts that are set forth in the memorandum of decision; second, where the factual basis of the decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence. See Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986); State v. Battista, 10 Conn. App. 499, 503, 523 A.2d 944 (1987). It is the right of the trier of fact to draw reasonable and logical inferences from the facts that it finds to be proved. State v. Martin, 195 Conn. 166, 171, 487 A.2d 177 (1985). We cannot substitute our judgment for that of the habeas court.

“ ‘ “Defense counsel’s performance must be reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” ’ ” Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981). The burden of proof is upon the petitioner to show that his trial counsel’s performance fell below that standard. State v. Gethers, 193 Conn. 526, 541, 480 A.2d 435 (1984); Siemon v. Stoughton, supra. The habeas court’s conclusion that the trial counsel’s performance did not fall below that standard is clearly supported by the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 53a-134 provides in pertinent part: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument

       General Statutes § 53a-136 provides: “robbery in the third degree: class D felony, (a) A person is guilty of robbery in the third degree when he commits robbery.
      “(b) Robbery in the third degree is a class D felony.”

       The state argues that the petitioner’s first claim should not be reviewed because it is not of constitutional magnitude and, therefore, it does not meet the criteria set out in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We do not address this argument in this opinion in light of our Supreme Court’s recent decision holding that the Evans standard for appellate review is inappropriate in a habeas corpus proceeding. Johnson v. Commissioner, 218 Conn. 403, 415, 589 A.2d 1214 (1991).

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”


author: Per Curiam.

text:
    State of Connecticut v. Jeffrey A. Walker
    (9316)
    O’Connell, Norcott and Heiman, Js.
    Argued April 30
    decision released June 4, 1991

      KentDrager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Frank McQuade, assistant state’s attorney, and, on the brief, Mary Galvin, state’s attorney, for the appellee (state).
   Per Curiam.

This is an appeal from the judgment of the trial court rendered after the defendant had entered a plea of guilty to a single count of carrying a pistol without a permit in violation of General Statutes § 29-35, under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

In his appeal, the defendant asserts that the trial court acted improperly in accepting the plea and in finding it to have been entered knowingly, intelligently and voluntarily because the factual basis advanced by the state was inadequate, lacking specificity as to a necessary element of the offense—that the length of the barrel of the pistol was less than twelve inches. General Statutes § 29-27.

On the basis of our decision in State v. Brown, 19 Conn. App. 640, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989), we conclude that the claims of the defendant are without merit. See Paulsen v. Manson, 203 Conn. 484, 525 A.2d 1315 (1987); see also Tyson v. Warden, 24 Conn. App. 729, 591 A.2d 817 (1991).

The judgment is affirmed.


author: Heiman, J. O’Connell, J.,

text:
    Lisa Pagani v. BT II, Limited Partnership et al.
    (8805)
    O’Connell, Foti and Heiman, Js.

      Argued January 9
    decision released June 4, 1991

      Warren W. Pierce II, with whom was Donald J. O’Brien, for the appellant-appellee (named defendant).

      Donald R. Holtman,with whom, on the brief, was William Norton, for the appellee-appellant (plaintiff).
   Heiman, J.

The defendant appeals from the judgment, rendered after a jury trial, awarding the plaintiff $8440.48. The plaintiff has cross appealed.

In its appeal, the defendant claims that the trial court improperly (1) refused to credit its claim that the knowing but passive acceptance of workers’ compensation benefits by the plaintiff precluded her from maintaining a civil action for her injury, (2) denied its motion to set aside the verdict, and (3) granted the plaintiff’s motion in limine that precluded the defendant from offering evidence of the receipt by the plaintiff of workers’ compensation payments.

In her cross appeal, the plaintiff challenges the actions of the trial court in (1) refusing to submit a CUTPA count to the jury, (2) refusing to admit the plaintiff’s exhibit I for identification into evidence as a full exhibit, (3) submitting interrogatories to the jury, and (4) ordering the plaintiff to reimburse to the defendant’s workers’ compensation insurer all payments made by it for her benefit.

We affirm that portion of the judgment from which the defendant appeals and reverse the judgment on the plaintiff’s cross appeal with regard to the order of reimbursement only.

The jury could reasonably have found the following facts. On January 30,1987, the plaintiff was employed as a cocktail waitress at a restaurant known as BT II, which was owned and operated by the defendant. She arrived at the restaurant sixty to ninety minutes before the commencement of her work day in order to eat a meal prior to beginning her shift. All employees of the defendant received discounts on food. The maximum discount was available only on days that the employee was scheduled to work. On the day in question, the plaintiff sat at a special table that was reserved for employees, ordered, and consumed a meal. Subsequently, she changed her clothes on the premises and prepared to begin work. Within seventy-two hours, the plaintiff was afflicted with salmonella poisoning. She notified the defendant that she would be unable to work because of the illness. As a consequence of her illness, the plaintiff was under the care of a physician, and was admitted to the New Britain General Hospital for four days. By February 27, 1987, the plaintiff was feeling well, although she was not permitted to resume work in a food handling facility until she had tested negative for salmonella on three successive occasions. The plaintiffs hospital, medical and prescription bills approximated $2342.38, and her lost wage claim was approximately $1600.23.

I

The Defendant’s Appeal

A

The defendant first asserts that the plaintiffs knowing acceptance of workers’ compensation benefits constitutes a waiver of her right to prosecute this civil action, and that a contrary result would frustrate the legislative intent of General Statutes § 31-284 of the Connecticut Workers’ Compensation Act. We do not agree.

Several additional facts are necessary to a resolution of this claim. After she fell ill, the plaintiff notified her supervisor of her illness and advised her that she would be unable to work her shifts. The supervisor notified the defendant’s workers’ compensation carrier. On its own, the carrier began sending checks to the plaintiff for lost wages, and paid medical, hospital and prescription bills on behalf of the plaintiff. The carrier’s total expenditure was $3901. The carrier was not a party to this action.

The defendant argues that the passive acceptance by the plaintiff of these payments precludes her from maintaining her civil action. We do not agree.

Our scheme of workers’ compensation creates an exclusive remedy for job related injuries. Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989). Our statute is mandatory in its terms and specifically provides that an employer “shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees . . . .” General Statutes § 31-284 (a).

The defendant did not pursue either an estoppel theory or a claim of election of remedies before the trial court. Its theory, simply stated, is that voluntary payments that are made by an employer’s workers’ compensation carrier to an employee who falls ill, preclude that employee from maintaining a civil action against the employer even where the plaintiff asserts that her illness did not arise out of or in the course of her employment.

Our Supreme Court has expressly stated that “[t]he purpose of the [workers’] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.” Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979).

We are not prepared to provide an employer with an election of remedies when the employee, for whose benefit the statute was enacted, is statutorily denied this privilege. See Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). Our examination of the statutes relating to workers’ compensation does not admit to such a construction.

When a plaintiff has filed a workers’ compensation claim against a defendant employer seeking compensation for injuries, and the employee has been paid such benefits, the employee is thereafter precluded from seeking damages from the employer in a common law tort action. Homey v. Johnson, 167 Conn. 621, 622-23, 356 A.2d 879 (1975). We cannot, however, say that the defendant employer, by its voluntary actions, can create an exclusive remedy where none is created by statute.

It is a salutary rule of statutory construction that statutes in derogation of the common law are to be strictly construed. McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981). “In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). “ ‘ “No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.” . . .’ ” (Citation omitted.) State v. Nugent, 199 Conn. 537, 548, 508 A.2d 728 (1986); see also Zotta v. Burns, 8 Conn. App. 169, 173, 511 A.2d 373 (1986).

To apply the construction advocated by the defendant would, in effect, require us to amend the Workers Compensation Act by judicial fiat. This we are neither authorized nor prepared to do. Cf. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989).

B

The defendant next asserts that the trial court was required to set aside the judgment because there was sufficient evidence to conclude that the plaintiff’s injury arose out of and in the course of her employment. We disagree.

The legislative intent of the Workers’ Compensation Act is to compensate injured employees for those injuries arising out of and in the course of employment as a form of strict liability on the employer. Jett v. Dunlap, supra.

In a situation where it is undisputed that the plaintiff was engaged in the course of his employment at the time of his injury, whether he is barred by the Workers’ Compensation Act from maintaining a civil action is a question of law for the court. Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979). Conversely, where, as here, a factual dispute exists as to whether the injury complained of arose out of and in the course of employment, it is an issue for resolution by the trier of fact. F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 513, 427 A.2d 392 (1980); see also Parlato v. Connecticut Transit, 181 Conn. 66, 434 A.2d 322 (1980). Further, in this case the defendant assumed the burden of proof on the issue of whether the injury arose out of and in the course of employment by pleading the Workers’ Compensation Act as a special defense. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 237, 520 A.2d 1008 (1987); see Practice Book § 164.

The defendant argues that the decision of our Supreme Court in McNamara v. Hamden, 176 Conn. 547, 398 A.2d 1161 (1979), mandates a conclusion that the plaintiff’s injury arose out of or in the course of her employment. We do not agree. McNamara is an appeal from a decision of a compensation commissioner that held that an injury suffered by an employee during a Ping-Pong game on his employer’s premises was not a compensable injury. The court in McNamara established tests for determining if an injury is compensable: “In order to be compensable, an injury must (1) arise out of employment; and (2) occur in the course of the employment. To occur in the course of the employment, the injury must take place (a) within the period of the employment, (b) at a place where the employee may reasonably be, and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” Id., 556.

In addition, the rule for determining whether the activity is incidental to the employment turns on whether the activity is regularly engaged in on the employer’s premises, within the period of employment, and with the employer’s approval or acquiescence. Id. Nothing in McNamara transforms these issues into anything other than fact bound issues to be resolved by the trier of fact.

At the defendant’s request, interrogatories were submitted to the jury. These interrogatories were prepared by the defendant and were submitted to the jury over the objection of the plaintiff. The trial court instructed the jury that in order for the defendant to prevail on its special defense, all five interrogatories must be answered in the affirmative. Additionally, the trial court charged the jury fully and fairly with respect to the special defense of exclusivity of the workers’ compensation act.

The defendant took no exceptions to this charge, and specifically did not except to the instruction that all five interrogatories had to be answered affirmatively for the defendant to prevail on its special defense. Further, the defendant does not argue on appeal that the trial court improperly instructed the jury that all five interrogatories had to be answered in the affirmative. It simply asserts that the jury’s negative answer to the third interrogatory was not reasonably supported by the evidence. It is not our function to rewrite or amend the issues as presented, nor is it our right to decide issues that are not properly raised by the parties; see Carley v. Lumbermens Mutual Casualty Co., 10 Conn. App. 135, 140, 521 A.2d 1053 (1987); as is suggested in part I of the dissent, where it attempts to set forth a claim that all five interrogatories did not require affirmative answers for the defendant to prevail, a position not espoused by the defendant. See L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 35 n.4, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). The jury concluded that the injury did not occur while the plaintiff was reasonably fulfilling her duties of employment. On the evidence presented, the jury could fairly reach this conclusion.

In determining whether a verdict should be set aside, the court is obligated first to review the evidence giving it a construction most favorable to sustaining the jury’s verdict. Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843 (1981). In addition, the trial court’s refusal to disturb the jury’s verdict is entitled to great weight, and every reasonable presumption should be given in favor of its correctness. Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 247, 522 A.2d 829 (1987). In reviewing this issue, our sole responsibility is to decide-whether, on the evidence presented, the jury could fairly reach the conclusion they did. Wu v. Fairfield, 204 Conn. 435, 440, 528 A.2d 364 (1987).

Our review of the evidence leads us to conclude that the trial court was correct in denying the motion to set aside the verdict.

C

The defendant’s final claim is that the trial court acted improperly when it granted a motion in limine, the effect of which was to preclude the introduction of the plaintiff’s receipt of workers’ compensation payments into evidence. We do not agree.

Trial courts are vested with a wide and liberal discretion with respect to the relevancy of evidence. Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980); State v. Peruta, 24 Conn. App. 598, 591 A.2d 140 (1991).

The defendant now claims that it desired to offer evidence of compensation payments to impeach the credibility of the plaintiff. The record does not support this claim. The record reflects that the defendant intended to offer such evidence in order to claim that by accepting the voluntarily offered checks of the carrier, the plaintiff thereby admitted that the injury was compensable and that she is, therefore, barred from bringing an action in tort.

In light of our discussions with respect to the workers’ compensation issues, the trial court was correct in its ruling.

II

The Plaintiff’s Cross Appeal

A

The first claim made by the plaintiff in her cross appeal is that the trial court improperly directed a verdict in favor of the defendant on the third count of the complaint, which alleges a CUTPA claim in violation of General Statutes § 42-110a et seq. We disagree. Because the plaintiff failed to file a motion to set aside the verdict, however, we shall not provide a full review of this claim. Atlantic Richfield Co. v. Canaan Oil Co., supra, 249.

Practice Book § 320 requires that motions to set aside the verdict must be filed within five days after the day the verdict is accepted. General Statutes § 52-228b provides in part that “[n]o verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court.” The reason for requiring such a motion is to give the trial court an opportunity to pass upon claims that may become the subject of appeal. Id., 250-51. The statute and the rule of practice apply with equal force to a directed verdict. Id. In the absence of compliance by the plaintiff with Practice Book § 320 and General Statutes § 52-228b, we are limited in our consideration of the attack upon the directed verdict to the plain error doctrine. Practice Book § 4185; Dunham v. Dunham, 204 Conn. 303, 310-11, 528 A.2d 1123 (1987).

As a basis for her claim of a CUTPA violation, the plaintiff alleged that her injuries were caused by the defendant’s wilful, intentional or reckless disregard for safety and health standards and practices imposed on it by law and by common practice in the restaurant industry. The plaintiff claims that the defendant so wilfully, wantonly, intentionally or recklessly violated such standards, that its conduct violated General Statutes § 42-110a et seq.

The only evidence offered in support of this count was exhibit H, a report of the state department of health services indicating that the defendant’s restaurant was found at one inspection to have thirty-four violations of the health regulations. The totality of the plaintiff’s complaint was that on one occasion she was served food contaminated with bacteria and other organisms and impurities. The trial court concluded, and we agree, that a single inspection of the premises was not sufficient to establish wanton, intentional or reckless conduct as alleged in the plaintiff’s complaint.

“A directed verdict is appropriate 'when the jury could not reasonably and legally have reached any other conclusion.’ ” Buckley v. Lovallo, 2 Conn. App. 579, 583, 481 A.2d 1286 (1984). A finding of liability cannot be predicated on conjecture, surmise or guess. Berchtold v. Maggi, 191 Conn. 266, 273, 464 A.2d 1 (1983). Mere possibilities or suppositions will not sustain a legitimate inference of a fact, nor can such an inference be drawn by conjecture only. Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 558 n.8, 447 A.2d 406 (1982). “When an element necessary to a cause of action cannot be established without conjecture, the evidence presented cannot withstand a motion for a directed verdict.” Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986). By couching her complaint in the language that she did, the plaintiff assumed the burden of proving each and every allegation as a condition of having the issue submitted to the jury. An examination of exhibit H reveals that it does not support the claims of the complaint. Thus, the court correctly removed the issue from the consideration of the jury.

The plaintiff also asserts that the trial court based its decision to direct a verdict on an incorrect interpretation of the CUTPA statute. An examination of the record does not support this claim.

The court correctly directed a verdict for the defendant on the CUTPA count of the complaint, and did not commit plain error in so doing.

B

The plaintiff next claims that the court should have permitted her to enter the defendant’s employee manual, that was marked as exhibit I for identification, into evidence as a full exhibit.

The plaintiffs only claim of admissibility is that this exhibit could have impeached a witness on the question of employee benefits. Because this assertion goes only to the applicability of the Workers’ Compensation Act to this cause of action, this claim is moot in light of our resolution of that issue.

C

The plaintiff next attacks the trial court’s submission of interrogatories to the jury.

The submission of interrogatories to the jury ordinarily rests within the sound discretion of the trial court. Ubysz v. DiPietro, 185 Conn. 47, 61, 440 A.2d 830 (1981). The proper function of interrogatories is to provide a means by which the jury may record the findings of fact that form the basis for their verdict. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 127, 412 A.2d 311 (1979).

The record before us clearly supports the conclusion that the trial court did not abuse its discretion in submitting the interrogatories to the jury.

D

As her final claim on her cross appeal, the plaintiff asserts that the trial court acted improperly when it ordered that a part of the judgment recovered by the plaintiff be paid over to the defendant’s workers’ compensation insurer, a nonparty to this action. We agree with the plaintiff.

Subsequent to the verdict in this case, the trial court held a hearing concerning the right of setoff claimed by the defendant in its third special defense. After hearing evidence and argument, the trial court found that the nonparty compensation carrier had paid either to the plaintiff, or for her benefit, the sum of $3902.61. The trial court then ordered that that sum, or a negotiated lesser settlement, be reimbursed to the compensation carrier from the verdict proceeds.

The record is clear that the workers’ compensation carrier did not seek to intervene; General Statutes § 31-293; nor was it impleaded by either party. As to this action, the carrier was not before the court and was a total stranger to the case.

“ ‘It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.’ ” Winick v. Winick, 153 Conn. 294, 298, 216 A.2d 185 (1965). In the present case, no evidence exists that the carrier was either actually or constructively notified of the hearing.

Additionally, the defendant’s pleadings raise only the issue of a right of setoff as against the plaintiff. They do not allege a right of reimbursement that may or may not be due to a nonparty. “Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).

Before the court has the power to hear and determine a cause, three elements must exist: (1) the court must have cognizance of the class of cases to which the one to be adjudged belongs; (2) the proper parties must be present; and (3) the point that is to be decided must be one that is properly raised by the pleadings. Lobsenz v. Davidoff, 182 Conn. 111, 116, 438 A.2d 21 (1980).

In this case, the compensation carrier, who was a necessary party was not before the court, and the issue that was decided was not raised by the pleadings. The trial court improperly ordered that the plaintiff pay over any part of her recovery to the workers’ compensation insurer.

On the defendant’s appeal, the judgment is affirmed.

On the plaintiff’s cross appeal, that part of the judgment that requires payment by the plaintiff to the workers’ compensation carrier is reversed and the case is remanded with direction to render judgment as modified in accordance with this opinion.

In all other respects the judgment is affirmed.

In this opinion Foti, J., concurred.

O’Connell, J.,

dissenting. I disagree with the majority’s decision for three reasons. First, in my opinion, the plaintiff was an employee within the meaning of the Workers’ Compensation Act; second, the decision misinterprets the exclusivity of the workers’ compensation remedy in Connecticut; and third, the decision applies incorrect rules of statutory construction. Accordingly, it is my opinion that the plaintiff is barred from bringing this tort action against the defendant.

I

The majority’s conclusion that the plaintiff’s injury falls outside the scope of workers’ compensation is unavailing in light of McNamara v. Hamden, 176 Conn. 547, 398 A.2d 1161 (1979), a seminal case in this area. I focus on the McNamara requirement that the injury must occur when the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. Id., 551. This requirement is phrased in the alternative. Therefore, the plaintiffs injury is compensable even if the jury finds that it did not occur while she was fulfilling the duties of her employment if the jury finds that the injury was incidental to her employment.

Although I agree with the majority that this was a fact bound issue, it is my opinion that the jury found facts that brought the injury within the scope of McNamara v. Hamden, supra. Interrogatory five asked the jury “[W]as the plaintiffs injury incidental to her employment?” and the jury replied “yes.” The trial court, however, erroneously instructed the jury that the defendant’s workers’ compensation special defense was conditioned on all five interrogatories being answered in the affirmative. In my opinion, the defendant sustained its burden of proof on the special defense despite a negative answer to either question three or question five. (See majority footnote 3, supra.)

II

I also disagree with the majority’s analysis of the tort rights of employees and the liability of employers. The majority appears to eliminate an employee’s right to sue the employer only if the employee files a workers’ compensation claim and the employer pays benefits. Although some jurisdictions provide the worker with such an election of remedies, Connecticut does not. General Statutes § 31-284. “Our Supreme Court has consistently held that where a worker’s personal injury is covered by workers’ compensation, statutory compensation is the sole remedy and recovery in common law tort against the employer is barred.” Greene v. Metals Selling Corporation, 3 Conn. App. 40, 45, 484 A.2d 478 (1984). Neither the employee nor the employer may, by their actions, place an injury within or outside the scope of workers’ compensation law. Thus, the defendant’s voluntary payment of benefits to the plaintiff is irrelevant. “We have consistently held that the exclusivity provisions of the workers’ compensation act operate as a total bar to actions brought by employees against their employers for job related injuries. . . . This bar operates whether or not the employee actually collects compensation . . . .” (Citations omitted.) Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989).

Ill

I also disagree with the application of the general rule of statutory construction that statutes in derogation of the common law are to be strictly construed. Workers’ compensation statutes do not fall under this rule but rather are to be broadly and liberally interpreted so as to effectuate the remedial purpose of the workers’ compensation laws. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979).

The jury, through its interrogatories, found that the plaintiff as the defendant’s employee, suffered injuries arising out of and in the course of her employment. Consequently, her sole remedy against the defendant was a claim under the Workers’ Compensation Act. The trial court should have granted the defendant’s motion to set aside the verdict.

I would reverse the judgment and remand the case with instruction to render judgment for the defendant.

       BT II, Limited Partnership, James H. Dumond and Wallace E. Ronald were named as defendants in the plaintiffs complaint. The action was withdrawn as to Dumond and Ronald before trial. For the purpose of this opinion, the term defendant refers only to BT II, Limited Partnership.

       CUTPA is the acronym that will be used throughout this opinion for the Connecticut Unfair Trade Practices Act found in General Statutes § 42-110a et seq.

       “1. Did the plaintiffs injury occur within the period of her employment?
      “Answer: Yes.
      “2. Did the plaintiffs injury occur at a place where she may reasonably have been?
      “Answer: Yes.
      “3. Did the plaintiff’s injury occur while she was reasonably fulfilling her duties of employment?
      “Answer: No.
      “4. Did the plaintiffs injury occur while she was engaged in conduct that was performed with the regular approval or acquiescence of her employer?
      “Answer: Yes.
      “5. Was the plaintiff’s injury incidental to her employment?
      “Answer: Yes.”

       “The Court: Counsel, are you pleading estoppel or are you not?
      “Mr. Pierce: No. It’s not my intent to plead estoppel. I may have used the word—
      “The Court: Use the language of estoppel, you’ve used the language of estoppel in that second defense.
      “Mr. Pierce: I realize that. All I’m saying is having held herself to be employee, by accepting the benefits, she should not now be holding herself out as a patron of the restaurant in accepting the benefits. She’s accepted benefits is what I’m saying, Your Honor, specifically that is evidence that she is employee on a workers’ comp., that’s what I’m holding.
      “The Court: Wouldn’t you be positing that as an evidentiary matter rather than as a special defense?

        “Mr. Pierce: Well, Your Honor, I think it goes to a specific instance as I stated earlier. I was contemplating the Homey decision at the time, although I disagree with opposing counsel’s reading of that decision, and I was contemplating the fact having held one out by accepting benefits as an employee, that it would necessarily follow that if the injury for which the benefits are being offered is work related, that you should not now be asking for jurisdictional, or civil litigation. You’ve already stated in fact this is a work related injury and that you were an employee, and arose out of the course of your employment.”

       Paragraph 9 of the third count of the plaintiff’s complaint reads as follows: “9. Plaintiff’s injuries were the proximate result of defendants’ wilful, intentional or reckless disregard for safety and health standards and practices imposed on them by law and by common practice in the restaurant industry.” (Emphasis added.)

       Paragraph 10 of the third count of plaintiff’s complaint reads as follows: “10. By so willfully, wantonly, intentionally or recklessly violating such safety and health standards and practices, the defendants’ conduct constituted an unfair or accepted act or practice in violation of the Connecticut Unfair Trade Practices Act (CUTPA), C.G.S. section 42-110a et seq."

       General Statutes § 31-284 (a) unequivocally states that “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained . . . (Emphasis added.)


text:
    Board of Education of the City of Hartford v. Hartford Federation of Teachers, Local 1018
    (9580)
    Spallone, Heiman and Cretella, Js.
    Argued April 29
    decision released June 4, 1991

      James C. Ferguson, for the appellant (defendant).

      Helen Apostolidis, assistant corporation counsel, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from the judgment of the trial court granting the plaintiff Hartford board of education’s application to vacate the arbitrator’s award and denying the defendant Hartford Federation of Teachers’ application to affirm said award.

The sole question presented is whether the trial court improperly held that the arbitrator went beyond the contract, and added to it, by construing the contract to include longevity pay within the ambit of “annual salary” for the purposes of computing severance pay.

Our review of the record indicates that the trial court substituted its interpretation of the contract for that of the arbitrator. This it cannot do. See, e.g., Hartford v. IAFF, Local 760, AFL-CIO, CLC, 24 Conn. App. 254, 258, 587 A.2d 435 (1991).

The judgment of the trial court is reversed and the case remanded with direction to render judgment confirming the arbitrator’s award.


author: Foti, J.

text:
    K. A. Thompson Electric Company v. Wesco, Inc.
    (9927)
    Dupont, C. J., Foti and Heiman, Js.
    Considered March 14
    decision released June 4, 1991

      Duncan Ross MacKay, in support of the motion.

      Kerry M. Wisser, in opposition of the motion.
   Foti, J.

The dispositive issue of this motion to dismiss the appeal is whether the timely filing of a motion to reargue tolls the running of the appeal period. We conclude that it does.

The facts are not in dispute. This is a breach of contract action in which judgment was rendered for the defendant on January 3, 1991. On the following day, the plaintiff filed a motion to reargue, which was heard and subsequently denied on January 22, 1991. On February 4, 1991, more than twenty days after final judgment, the plaintiff filed the present appeal. On February 8,1991, the defendant filed a timely motion to dismiss the appeal pursuant to Practice Book § 4056, asserting that the appeal was untimely.

The defendant argues that no authority exists in this state that allows for the filing of a motion to reargue in the trial court, and that the court, therefore, had no authority to act on the plaintiffs motion. The defendant reasons that because a motion to reargue does not extend the appeal period under Practice Book § 4009, the plaintiffs appeal should be dismissed as untimely. We disagree.

We start our analysis with the observation that, although it may be true that no statute or trial court rule of practice specifically authorizes the filing of a motion to reargue following the rendering of judgment, it has long been recognized to be within the inherent power of the trial court to determine whether such a motion should be considered, and, if so, to act on the motion. See Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 709 n.1, 125 A.2d 488 (1956).

Having recognized that the trial court has the inherent power to decide motions to reargue, we must therefore look to our appellate rules of practice to determine whether the appeal period is tolled by the timely filing of such a motion. Practice Book § 4009 provides in relevant part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion or the expiration of the time within which a remittitur is ordered filed.”

Although this rule of practice lists certain motions as examples that, if granted, would render the judgment or decision ineffective, it is clear from the use of the words “any motion” together with the reference to “example,” that it is the substance rather than the title of the motion that controls. The appropriate test is whether the motion, if granted, would render the judgment or decision ineffective. It is obvious that the granting of a motion to reargue might render a judgment or decision ineffective. We conclude therefore that it satisfies the test of Practice Book § 4009.

The plaintiff’s motion to reargue sought to address alleged inconsistencies in the trial court’s memorandum of decision as well as claims of law that the plaintiff claimed were not addressed by the court. We note that it is not relevant, for purposes of extending the appeal period under § 4009, whether the claim raised by the motion to reargue had merit in the eyes of the trial court because that motion, if granted, would have required that the trial court render a new judgment, taking additional claims of law into account. See Whitney Frocks, Inc. v. Jaffe, 138 Conn. 428, 429 n.1, 85 A.2d 242 (1951); Crozier v. Zaboori, 14 Conn. App. 457, 461, 541 A.2d 531 (1988).

Because the plaintiff’s motion to reargue was timely filed within the original appeal period and the appeal was filed within twenty days of the denial of that motion, we conclude that the plaintiffs appeal was timely filed.

The defendant’s motion to dismiss the appeal is denied.

In this opinion the other judges concurred.

       Practice Book § 4056 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.”


text:
    Augustus J. Simmons v. State of Connecticut et al.
    (9213)
    Spallone, Daly and Foti, Js.
    Argued January 7
    decision released January 22, 1991

      Otto P. Witt, for the appellant (plaintiff).

      Arnold K. Shimelman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (named defendant et al.).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Jose Cotto
    (8730)
    O’Connell, Foti and Lavery, Js.
    Argued January 8
    decision released January 22, 1991

      Brian M. O’Connell, with whom was Philip L. Pettijohn, law student intern, for the appellant (defendant).

      Margaret G. Radionovas, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Paul Murray, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Fernando Aponte
    (8742)
    Dupont, C. J., Spallone and Norcott, Js.
    Argued January 8
    decision released January 22, 1991

      Ronald Gold, assistant public defender, for the appellant (defendant).
    ' Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, sad Mark Brodsky, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    John Jones et al. v. Slater Road Associates
    (9189)
    Daly, Poti and Lavery, Js.
    Argued January 8
    decision released January 22, 1991

      Richard F. Tolisano, for the appellant (defendant).

      Craig S. Sampson, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Catherine Khang v. Meadows Associates of Middletown, Inc.
    (9119)
    O’Connell, Foti and Landau, Js.
    Argued January 14
    decision released January 29, 1991

      Leanne M. Kinsley, for the appellant (defendant).

      Charles W. Snow, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Nancy Macker v. Harold J. Macker, Jr.
    (8754)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued January 7
    decision released January 29, 1991

      James B. McCarthy, for the appellant (plaintiff).

      Geraldine Ficarra, for the minor child.
   Per Curiam.

In this appeal from the judgment dissolving her marriage to the defendant, the plaintiff challenges the orders of the trial court concerning custody of the couple’s minor child, visitation rights, and the distribution of the marital assets. We affirm the trial court’s judgment.

The plaintiff and the defendant were married in 1968 and have three children, only one of whom is presently a minor. In 1988, the plaintiff instituted this action and a guardian ad litem was appointed for her. A trial was held at which both parties and the minor child were represented by counsel. The trial court heard testimony from both parties, the family relations officer, the child’s psychotherapist, the plaintiff’s psychiatrist, and the plaintiff’s sister, who was serving as the plaintiff’s guardian ad litem. On the basis of the evidence, the trial court awarded sole custody of the minor child to the defendant with specific rights of visitation to the plaintiff. The court also awarded exclusive use of the marital residence to the custodial parent until the minor child reaches the age of majority, and also made other financial orders.

The trial court is vested with broad discretion in family matters and is in the best position to evaluate the demeanor of witnesses and weigh and interpret the evidence. Caristia v. Caristia, 22 Conn. App. 392, 395, 577 A.2d 1096 (1990). There is “no presumption in favor of the mother or the father as custodial parent . . . .” Hurtado v. Hurtado, 14 Conn. App. 296, 301, 541 A.2d 873 (1988). The court must be guided by the best interests of the child. General Statutes § 46b-56 (b); Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981); see Cabrera v. Cabrera, 23 Conn. App. 330, 344, 580 A.2d 1227 (1990).

The plaintiff contends that she is entitled to joint custody, more extensive visitation, and possession of the marital home, but has failed to demonstrate that the court abused its discretion. Upon careful examination of the briefs, the record and the trial transcript, we conclude that the court correctly applied the law and could reasonably conclude as it did. See Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990); Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

The judgment is affirmed.


text:
    Linda Melillo v. Elizabeth Martindale et al.
    (8959)
    Norcott, Lavery and Landau, Js.
    Argued January 9
    decision released January 29, 1991

      Glenn W. Falk, for the appellants (defendants).

      David S. Doyle, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Michael C. Ruotolo v. Boyer Realty Management, Inc.
    (9252)
    O’Connell, Foti and Landau, Js.
    Argued January 14
    decision released January 29, 1991

      Michael C. Ruotolo, pro se, the appellant (plaintiff).

      Susan B. Handy, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Sandra J. Raynor v. Rupert Mallach et al.
    (8296)
    Daly, O’Connell and Norcott, Js.
    Argued January 14
    decision released January 29, 1991

      John W. Pickard, with whom, on the brief, was Maureen E. Donahue, for the appellants (named defendant et al.).

      Catherine G. Roraback, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Charles S. Lange
    (9333)
    O’Connell, Foti and Landau, Js.
    Argued January 14
    decision released January 29, 1991

      Charles S. Lange, pro se, the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Paul Gaetano, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Brian E. Kicklighter
    (9128)
    O’Connell, Foti and Landau, Js.
    Argued January 17
    decision released February 5, 1991

      Nicholas P. Cardwell, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Donald Caldwell, state’s attorney, and Sandra Tullis, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Lueke Cooper
    (8476)
    Daly, Nokcott and Heiman, Js.
    Argued January 18
    decision released February 5, 1991

      Thomas C. C. Sargent, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Anthony Sabellico et al. v. Planning and Zoning Commission of the Town of Wallingford et al.
    (9068)
    Norcott, Foti and Lavery, Js.
    Argued January 16
    decision released February 5, 1991

      James F. McCann, for the appellants (plaintiffs).

      Janis M. Small, town attorney, for the appellees (defendants).
   Per Curiam.

Certification improvidently granted.

The appeal is dismissed.


text:
    Daniel Adams v. Maria Adams
    (9033)
    Daly, Norcott and Landau, Js.
    Argued January 15
    decision released February 5, 1991

      Judith A. Busch, for the appellant (defendant).

      Jeffrey D. Ginzberg, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Judith Osgood v. Mallory Crawford
    Mallory Crawford v. Judith Osgood
    (8641)
    Spallone, O’Connell and Heiman, Js.
    Argued January 16
    decision released February 5, 1991

      Mallory Crawford, pro se, the appellant (defendant in the first case, plaintiff in the second case).

      Thomas J. Hagarty, Jr., for the appellee (plaintiff in the first case, defendant in the second case).
   Per Curiam.

Two judgments of the trial court are the subjects of this appeal.

In Osgood v. Crawford, the defendant is appealing from the judgment rendered on the jury’s verdict for the plaintiff. In Crawford v. Osgood, the plaintiff is appealing from the judgment rendered after the jury returned a directed verdict for the defendant.

Our review of the record, transcripts and briefs in light of the claims properly before us reveals that the trial court acted properly and in accordance with applicable law.

The judgments are affirmed.


text:
    State of Connecticut v. Jeffrey Membrino
    (9230)
    Spallone, Lavery and Landau, Js.
    Argued February 5
    decision released February 19, 1991

      A. Paul Spinella, with whom, on the brief, was Susan V. Tirrell, law clerk, for the appellant (defendant).

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Marcia B. Smith, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction after his entry of guilty pleas to three counts of sale of narcotics in violation of General Statutes § 21a-277 (a).

Our review of the record, transcripts and briefs clearly indicates that the canvasses undertaken by the trial courts and their determinations that the guilty pleas of the defendant were intelligently and voluntarily made were fully in accord with Practice Book § 711. See also Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 264 (1969); Sherbo v. Manson, 21 Conn. 172, 572 A.2d 378, cert. denied, 215 Conn. 808, 809, 576 A.2d 539 (1990).

The judgment is affirmed.


text:
    ABF Freight System, Inc. v. Edward Ochman
    (8985)
    Dupont, C. J., Spallone and Heiman, Js.
    Argued January 15
    decision released February 19, 1991

      Gregory P. Lynch, with whom, on the brief, was Brian Rockwell, legal intern, for the appellant (defendant).

      Richard J. Shapiro, for the appellee (plaintiff).
   Per Curiam.

This appeal, in essence, constitutes a challenge directed to the factfinding and discretionary powers of the trial court.

Our review of the record, transcripts and briefs fails to disclose that the factual findings of the trial court are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. Practice Book § 4061.

The judgment is affirmed.


text:
    Boyer Agency, Inc. v. Paul Beletsky et al.
    (9301)
    Daly, O’Connell and Heiman, Js.
    Argued February 5
    decision released February 26, 1991

      Raymond L. Baribeault, Jr., with whom, on the brief, was Lloyd L. Langhammer, for the appellant (plaintiff).

      EdwardS. Domnarski, Jr., with whom, on the brief, was R. Scott Patterson, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    In re Robert C.

    (9134)
    Dupont, C. J., Daly and Heiman, Js.
    Argued February 5
    decision released February 26, 1991

      Kent Drager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (respondent).

      Joseph J. Kristan, Jr., state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    Joseph Echevarria v. David Hennes
    (9117)
    Dupont, C. J., Daly and Heiman, Js.
    Argued February 5
    decision released February 26, 1991

      Martin M. Looney, with whom, on the brief, was John A. Keyes, for the appellant-appellee (defendant).

      Mark G. Ouellette, for the appellee-appellant (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Glen T. Oxton v. Deborah A. Cowan
    (8982)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued February 6
    decision released February 26, 1991

      Mary Ellen Wynn, for the appellant (plaintiff).

      Philip R. McKnight, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Stephen A. Wise v. William Cruz
    (9365)
    Spallone, Noecott and Foti, Js.
    Argued February 14
    decision released March 5, 1991

      Stephen A. Wise, pro se, the appellant (plaintiff).

      William Cruz, pro se, the appellee (defendant), filed a brief.
   Per Curiam.

The judgment is affirmed.


text:
    Mary Jane Grier v. Edward G. Grier
    (9220)
    O’Connell, Landau and Heiman, Js.
    Argued February 7
    decision released March 5, 1991

      Ellen B. Lubell, for the appellant (plaintiff).

      Arnold Rutkin, with whom, on the brief, was Kathleen A. Hogan, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. William Outlaw
    (9147)
    O’Connell, Landau and Heiman, Js.
    Argued February 7
    decision released March 5, 1991

      Patrick J. Culligan, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Elpedio N. Vitale, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Nelson E. Smith v. Richard Fisher et al.
    (9368)
    Spallone, Foti and Heiman, Js.
    Argued February 13
    decision released March 5, 1991

      Raymond T. Trebisacci, for the appellant (plaintiff.

      Robert I. Reardon, Jr., with whom, on the brief, was Rita Provatas, for the appellees (defendants Nationwide Insurance Co. et al.).

      Wayne G. Tillinghast filed a brief for the appellee (named defendant).
   Per Curiam.

Our review of the pleadings, transcript, record and briefs, measured against the mandates of Practice Book § 142 et seq., provides no basis upon which the defendants’ motions to dismiss could have been properly granted.

The judgment is reversed and the case is remanded with direction that the pleadings be closed forthwith and that the case proceed to trial. See Practice Book §113.


text:
    Amy L. Labshere et al. v. North Canaan Apartments Associates Limited Partnership
    (8629)
    Daly, Norcott and Lavery, Js.
    Argued February 13
    decision released March 5, 1991

      Robert L. Fisher, Jr., for the appellants (plaintiffs).

      Mark V. Connolly, with whom, on the brief, was Susan A. Quinn, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Morris Silverstein’s Appeal from Probate
    (9398)
    O’Connell, Foti and Lavery, Js.
    Argued February 14
    decision released March 5, 1991

      Morris Silverstein, pro se, the appellant (named plaintiff).

      David C. Rappe, for the appellee (defendant Dorothy Mitchell).
   Per Curiam.

The judgment is affirmed.


text:
    Philip C. Ferraro v. Rocco T. Lauretti et al.
    (9017)
    (9324)
    Daly, Norcott and Lavery, Js.
    Argued February 13
    decision released March 19, 1991

      Craig S. Taschner, with whom, on the brief, was Peter Rustin, for the appellants (named defendant et al.).

      Joseph F. Skelley, Jr., with whom was Edward W. Gasser, for the appellee (plaintiff).
   Per Curiam.

These are appeals by the defendants from a judgment of the trial court quieting title to nine properties in favor of the plaintiff, and awarding the plaintiff $42,000 and moneys held by the receiver of the rents for the disputed properties. The defendants claim the trial court was incorrect (1) in concluding that title to the nine properties should settle in the plaintiff, (2) in refusing to award the defendant Rocco Lauretti a 30 percent interest in the land, (3) in concluding that the defendant Rocco Lauretti was not entitled to specific performance of the December 30, 1986 buy-back agreement, and (4) in awarding the plaintiff $42,000 as reimbursement for the removal of asbestos.

After careful consideration, we conclude that this appeal is a request that this court accept, exclusively, the defendants’ version of the facts and ignore the factual findings of the trial court. A review of the record discloses that the conclusions of the trial court are legally and logically correct and are based on facts supported by the evidence. This case presented controversial issues of fact that were within the sole province of the trial court to decide. This court cannot retry the case. Vitale v. Crocco, 1 Conn. App. 184, 185, 469 A.2d 793 (1984).

The judgment is affirmed.


text:
    Dawn Cameron LaGanza v. Robert Allen LaGanza
    (8954)
    Daly, Norcott and Lavery, Js.
    Argued February 15
    decision released March 19, 1991

      Paul J. Pacifico, for the appellant (defendant).

      Walter M. Andrew, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Jack J. Branco v. Gerard B. Patton et al.
    (9374)
    O’Connell, Foti and Lavery, Js.
    Submitted on briefs February 14
    decision released March 19, 1991

      Robert E. Quish filed a brief for the appellants (defendants).

      David O. Chittick filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendants appeal from the judgment of foreclosure of a mechanic’s lien for renovation work on their Milford property. The defendants claim the trial court improperly (1) found that there was no express contract between the parties, (2) found that certain charges for labor and materials were reasonable, and (3) failed to consider a limited restitution recovery. The court rendered a judgment of foreclosure by sale. We affirm that judgment.

The defendants own a mixed residential and commercial building in Milford. They engaged the plaintiff, a general contractor, to perform remodeling work on their building. The plaintiff then filed a mechanic’s lien for his services and subsequently commenced this foreclosure action.

The defendant’s appeal is based on the flawed premise that the trial court found there was no express contract between the parties and rendered judgment based on an implied contract for the reasonable value of the plaintiff’s services. The trial court, however, did find an express contract. After a detailed analysis of the parties’ conduct, the court found that they had “[ejntered into what is known as a cost plus contract, namely one where one of the parties undertakes to pay all costs incurred by the other party in the performance of the contract and a fixed fee over and above such costs.” See Continental Copper & Steel Industries, Inc. v. Bloom, 139 Conn. 700, 703-704, 96 A.2d 758 (1953).

“Our review of the trial court’s factual findings is limited solely to the determination of whether they are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, they are clearly erroneous. . . . The function of the appellate court is to review, and not retry, the proceedings of the trial court.” (Citations omitted.) Petti v. Balance Rock Associates, 12 Conn. App. 353, 357, 530 A.2d 1083 (1987). We conclude that the trial court’s findings are adequately supported by the record and are not clearly erroneous.

The judgment is affirmed and the case is remanded with direction to reschedule the foreclosure by sale.


text:
    Elinor Marino, Administratrix (Estate of Leonard Marino) v. Hartford Casualty Insurance Company Hartford Casualty Insurance Company v. Elinor Marino, Administratrix (Estate of Leonard Marino)
    (9337)
    (9489)
    Spallone, Landau and Heiman, Js.
    Argued March 18
    decision released April 9, 1991

      Michael G. Tansley, with whom, on the brief, was Michael H. Cicchetti, for the appellant (plaintiff in the first case, defendant in the second case).

      Philip F. von Kuhn, for the appellee (defendant in the first case, plaintiff in the second case).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Bernard Bewry
    (9145)
    Spallone, Daly and Landau, Js.
    Argued March 20
    decision released April 9, 1991

      Kenneth W. Simon, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and James E. Thomas, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Aqua Pool and Patio, Inc. v. Peter W. Bauer et al.
    (9608)
    Spallone, Lavery and Landau, Js.
    Argued March 19
    decision released April 9, 1991

      William G. Reveley, for the appellant (plaintiff).

      Nicholas W. Francis, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Rutkin and Effron, P.C. v. Edward Baiamonte
    (9214)
    Dupont, C. J., Daly and Heiman, Js.
    Argued March 18
    decision released April 9, 1991

      Edward Baiamonte, pro se, the appellant (defendant).

      Louis A. Afonso, with whom, on the brief, was Kathleen A. Hogan, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


author: Per Curiam;.

text:
    ABC Builders, Inc. v. Keith F. Iodice et al.
    (9279)
    Daly, Landau and Heiman, Js.
    Argued March 27
    decision released April 16, 1991

      William Mark, for the appellants (named defendant et al.).

      Mark F. Volpe, for the appellee (plaintiff).
   Per Curiam;.

Our review of the record provides no basis on which the motion to dissolve the unauthorized attachment of property owned by the defendant K I Associates, Inc., could have been properly denied.

The judgment is reversed and the case is remanded with direction to grant the motion to dissolve the attachment.


text:
    Laurie L. Rae v. Benjamin G. Rae III
    (9186)
    O’Connell, Lavery and Cretella, Js.
    Argued March 27
    decision released April 16, 1991

      Wayne D. Ejfron, for the appellant (defendant).

      Ellen B. Lubell, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Barbara Schrader v. United Service Automobile Association
    (9497)
    Nokcott, Heiman and Cretella, Js.
    Argued March 25
    decision released April 16, 1991

      Mary-Margaret Dalton, for the appellant (plaintiff).

      Earl F. Dewey II, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Christopher Clarke v. Roberta N. Clarke
    (9300)
    O’Connell, Foti and Heiman, Js.
    Argued March 25
    decision released April 16, 1991

      Warren P. Joblin, for the appellant (plaintiff).

      Victoria die Toledo, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Ideal Forging Corporation v. Pye and Hogan Machine Company, Inc.
    (9292)
    Daly, Lavery and Cretella, Js.
    Argued March 26
    decision released April 16, 1991

      John J. Carta, Jr., for the appellant (defendant).

      Robert A. Izzo, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Paragon Mortgage Company v. E. Douglas Grissette
    (9496)
    O’Connell, Norcott and Landau, Js.
    Argued March 28
    decision released April 23, 1991

      E. Douglas Grissette, pro se, the appellant (named defendant).

      Alan P. Rosenberg, with whom, on the brief, was Donald G. Rosenberg, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded with direction to set new law days.


text:
    Philip C. Ferraro v. Rocco T. Lauretti et al.
    (9546)
    O’Connell, Norcott and Landau, Js.
    Argued March 28
    decision released April 23, 1991

      Edward W. Gasser, with whom, on the brief, was Joseph F. Skelley, Jr., for the appellant (plaintiff).

      Peter Rustin, with whom, on the brief, was Craig S. Taschner, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    In re Carrie B.

    (9455)
    Dupont, C. J., Norcott and Lavery, Js.
    Argued April 24
    decision released April 24, 1991

      Lawrence A. Dubin, for the appellant (respondent).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (state).

      Mark Edwards, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    Mitchell Friedman v. Peter Demato et al.
    (9341)
    Spallone, Norcott and Lavery, Js.
    Argued April 26
    decision released May 14, 1991

      David S. Grossman, for the appellants (defendants).

      John T. Shearman, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Marianne Lippmann v. Walter Lippmann
    (9387)
    Spallone, Daly and Norcott, Js.
    Argued April 22
    decision released May 14, 1991

      Robert M. Davidson, for the appellant (defendant).

      Arnold Orlovitz, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Anita Cecere et al. v. Hi-Tech Forming Systems, Inc., et al.
    (9628)
    Spallone, Heiman and Cretella, Js.
    Argued April 29
    decision released May 14, 1991

      Otto P. Witt, for the appellants (plaintiffs).

      David Tilles, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Diane Gauthier v. Town of Fairfield et al.
    (9541)
    Daly, O’Connell and Heiman, Js.
    Argued March 27
    decision released May 14, 1991

      S. Antoinette Morton, with whom, on the brief, was Derby F. Anderson, for the appellant (plaintiff).

      Roy H. Erwin, Sr., with whom, on the brief, was Roy H. Erwin, Jr., for the appellees (defendants).
   Per Curiam.

The sole issue in this case is whether the term “owner of land” as used in General Statutes § 52-557g includes a municipality or is limited to a private land owner. In Manning v. Barenz, 24 Conn. App. 592, 590 A.2d 980 (1991), this court held that this statute applies to municipalities.

The judgment is affirmed.


text:
    Joseph Ancona v. Board of Television and Radio Examiners
    (9380)
    Foti, Landau and Heiman, Js.
    Argued April 22
    decision released May 14, 1991

      Donald E. Wasik, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant-appellee (defendant).

      Donald L. Mackie, for the appellee-appellant (plaintiff).
   Per Curiam.

We find no merit to the appeal or the cross appeal.

The judgment is affirmed.


text:
    Claire Friedlander v. Henry Friedlander
    (8918)
    Spallone, O’Connell and Norcott, Js.
    Argued April 29
    decision released May 14, 1991

      Henry Friedlander, pro se, the appellant (defendant).

      Saul Kwartin, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Lori Monnier v. Dwight Monnier
    (9305)
    Lavery, Heiman and Cretella, Js.
    Argued March 26
    decision released May 21, 1991

      Louis Kiefer, for the appellant (defendant).

      Marcia E. Tannenbaum, with whom, on the brief, was Ann Hodgdon, for the appellee (plaintiff).
   Per Curiam.

The only issues presented by the defendant challenge the trial court’s orders that obligate him to pay a portion of the fees for the court appointed doctor who made a psychological examination of the minor child and a portion of the fees for the court appointed attorney for the child.

The decision to award such fees is clearly within the trial court’s discretion. In this case, the trial court found that each of the parties should share equally in the payment of such fees. We can find no abuse of discretion in such a ruling. Costa v. Costa, 11 Conn. App. 74, 77-78, 526 A.2d 4 (1987). The record, however, contains no evidence that any bills for such services were ever submitted or reviewed by the court to determine the reasonableness of the fees.

The judgment is affirmed as to the trial court’s determination that the parties share equally in the payment of fees and the case is remanded for a hearing to determine the amount of such fees.


text:
    John McKechnie et al. v. Frank Vandever et al.
    (9442)
    Spallone, O’Connell and Norcott, Js.
    Argued April 29
    decision released May 21, 1991

      Charles A. Sherwood, for the appellants-appellees (plaintiffs).

      WillaB. Perlmutter, with whom was Gary P. Sklaver, for the appellee-appellant (defendant Union Trust Company).
   Per Curiam.

The judgment is affirmed.


text:
    Marianna Bakula, Administratrix (Estate of Richard Bakula) v. Bell Helmets, Inc.
    (8311)
    O’Connell, Noecott and Heiman, Js.
    Argued April 30
    decision released May 21, 1991

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      William C. Franklin, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Joseph Catalano v. Housing Authority of the City of Meriden
    (9519)
    Dupont, C. J., Foti and Lavery, Js.
    Argued May 1
    decision released May 21, 1991

      Barry T. Pontolillo, for the appellant (defendant).

      Judy D. Rintoul, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Allan Lee et al. v. Cheryl Vandever
    (9346)
    Spallone, O’Connell and Norcott, Js.
    Argued April 29
    decision released May 21, 1991

      Charles A. Sherwood, for the appellants (plaintiffs).

      Carl A. Secóla, Jr., for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.