author: LAVINE, J.

text:
    CITY OF NEW BRITAIN v. AFSCME, COUNCIL 4, LOCAL 1186
    (AC 30597)
    Lavine, Beach and Alvord, Js.

      Argued January 6
    officially released June 8, 2010

      Mary C. Pokorski, associate city attorney, for the appellant (plaintiff).

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo-DeLaura, for the appellee (defendant).
   Opinion

LAVINE, J.

The plaintiff, the city of New Britain, appeals from the judgment of the trial court denying its application to vacate the arbitration award in favor of the defendant, AFSCME, Council 4, Local 1186. The plaintiff claims that the court improperly denied its application because (1) the issue was not arbitrable, and (2) (a) the submission to the arbitration board was restricted and (b) the board exceeded the scope of the submission in fashioning the award. We affirm the judgment of the trial court.

The following facts and procedural history, as set forth by the court in its memorandum of decision, are relevant to the plaintiffs appeal. “[The plaintiff] and [the defendant] negotiated a collective bargaining agreement ([agreement]) running from July 1, 2003, to June 30, 2008. In January, 2006, [the plaintiff] and [the defendant] negotiated a number of upgrades that had the effect of increasing the pay of certain members of the bargaining unit. Thereafter, upon calculating the pay rate for certain of these employees, it was discovered that the supervisors of these employees, classified as ‘foremen,’ were paid a differential that was less than 5 percent above the rate paid to the employees whom they supervised. The civil service regulations of New Britain provide that persons classified as foremen shall be paid at least 5 percent more than the employees whom they supervise.

“The foremen, as a class, filed an unfair labor practice complaint, which was resolved via an agreement with [the plaintiff] on September 8, 2006. That settlement agreement provided: ‘[The plaintiff] hereby agrees that [the defendant] may file a grievance regarding the issue of [f]oremen being paid less than 5 [percent] more than their subordinates. This grievance shall be filed directly at arbitration. [The plaintiff] and [the defendant] further agree that either party may raise [any] claim or defense they could have made had they filed at step [one], including the issue of arbitrability but not including timeliness. In consideration of the above, [the defendant] agrees to the withdrawal and closing of [the unfair labor practice case].’

“The matter was thereafter submitted to arbitration in two phases. In the first submission to the state board of mediation and arbitration, [the plaintiff] argued that the matter was not arbitrable at all. [The plaintiff] pointed to a memorandum of understanding that had been signed with [the defendant] at the time of the January, 2006 upgrades, which read: ‘The parties hereby mutually agreed that the list of proposed upgrades on the attached pages (dated [January 18, 2006]) would go into effect retroactive to January 1, 2006. Any omissions, adjustments, corrections, etc. can only be made with the signature of both parties. The parties agree that arbitration shall NOT be used to redress all upgrades that have not been resolved in the negotiations.’ [Emphasis in original.]

“The board heard the parties and rendered an award that found that the matter of the claimed inadequacy in the pay differential for the foremen class was indeed arbitrable. Recognizing that the foremen pay differential issue was one that neither side had foreseen, and was an issue that was outside the scope of upgrades that would normally have been the subject of the collective bargaining process, as opposed to the grievance and arbitration process, the board found that the 2006 settlement agreement, read in conjunction with the [agreement] and the letter agreement regarding the upgrades, did not prohibit arbitration of the dispute.

“The parties then moved to the second phase of the arbitration. After hearing evidence, the board determined that the civil service rules that mandated a 5 percent pay differential for supervisors applied to this situation. This finding found support in the actual language of the [agreement], article 2.0, that affirms any other ‘statute, ordinance, regulation or other lawful provision over matters involving the municipality’ was to be followed as long as it did not conflict with the specific provision of the [agreement]. The board found that the merit rules of the civil service commission set forth, as a guiding principal, that supervisors are to be paid at a higher rate than their subordinates. The board found that there was nothing about this principal that conflicted with the provisions of the [agreement] and that, indeed, the two provisions could be read and applied in concert.

“Based on the evidence, the board found that it was clearly the intention of the parties to incorporate the language of the civil service rules into the salary schedules used by the parties. Moreover, the board credited evidence that the foreman group that constituted the class about whom the arbitration was filed were all actually supervisory personnel entitled to the benefit of the supervisors’ pay differential as prescribed in the civil service rules.”

On February 29,2008, the plaintiff filed an application to vacate the arbitration award on the ground that “the arbitration panel exceeded its powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made . . . .” See General Statutes § 52-418 (a) (4). The court denied the application on November 21, 2008. This appeal followed.

I

The plaintiffs first claim on appeal is that the court erred in denying its application to vacate the arbitration award because the arbitration board improperly found that the issue was arbitrable. We disagree.

“Whether a particular dispute is arbitrable is typically a question for the court. ... It is well established [however] that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator. ... In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators. . . . The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration . . . .” (Internal quotation marks omitted.) Wallingford v. Wallingford Police Union Local 1570, 45 Conn. App. 432, 436, 696 A.2d 1030 (1997).

“In Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn. App. 804, 811 n.6, 647 A.2d 755 (1994), this court recognized that an arbitrator cannot find a dispute arbitrable if language in the contract indicates that it is not. Furthermore, in White v. Kampner, 229 Conn. 465, 641 A.2d 1381 (1994), our Supreme Court stated: We initially note that, because we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the positive assurance test as set out in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). Under this test, judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance .... An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” (Internal quotation marks omitted.) Sacred Heart Teachers’ Assn. v. Sacred Heart High School Corp., 65 Conn. App. 195, 199-200, 782 A.2d 227 (2001).

Here, the plaintiff is the party that was reluctant to arbitrate this grievance. It argues that the January, 2006 memorandum of understanding specifically states: “The parties hereby mutually agreed that the list of proposed position upgrades on the attached pages (dated [January 18,2006]) would go into effect retroactive to January 1, 2006. Any omissions, adjustments, corrections, etc. can only be made with the signature of both parties. The parties agree that arbitration shall NOT be used to redress all upgrades that have not been resolved in the negotiations. ” Although the parties originally stated that arbitration would not be used to redress the issue of upgrades, they later signed, on September 8, 2006, a settlement agreement that provides: “[The plaintiff] hereby agrees that [the defendant] may file a grievance regarding the issue of Foremen being paid less than 5 [percent] more than their subordinates. This grievance shall be filed directly at arbitration. [The plaintiff] and [the defendant] further agree that either party may raise [any] claim or defense they could have made had they filed at step [one], including the issue of arbitrability but not including timeliness. In consideration of the above, [the defendant] agrees to the withdrawal and closing of [the unfair labor practice case].” It appears clear that the plaintiff, eight months after agreeing that arbitration should not be used to redress the upgrades, agreed to arbitrate the foremen’s grievance as part of its settlement agreement with the defendant. In these circumstances, we cannot say with positive assurance that the parties intended to exclude the issue from arbitration.

II

The plaintiff next claims that (1) the submission to the arbitration board was restricted and (2) the board exceeded the scope of its authority in fashioning the award. Specifically, it argues that the submission was restricted to the question of whether the plaintiff violated §§ 11.0 or 2.0 of the collective bargaining agreement by not upgrading the position of foreman. The plaintiff further contends that the board should have considered only the collective bargaining agreement, not the civil service rules, and that the board failed to rely on General Statutes § 7-474 (f), which provides that a contractual agreement prevails over a civil service rule in the event of a conflict. The board found that the submission was unrestricted, and the court agreed. We conclude that the award in this case arose out of an unrestricted submission and that the board’s award conformed to the submission.

A

“Our analysis is guided by the well established principles of law governing consensual arbitration. Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators. . . . The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. . . .

“Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . . Under an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . . The resulting award can be reviewed, however, to determine if the award conforms to the submission. . . . Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision. ... It is clear that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results. . . . The significance, therefore, of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.” (Citations omitted; internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 109-10, 779 A.2d 737 (2001).

In the present case, the September 8, 2006 settlement agreement between the plaintiff and the defendant constituted the submission to arbitration. The parties agreed that the defendant “may file a grievance regarding the issue of Foremen being paid less than 5 [percent] more than their subordinates.” The issue was characterized by the board as: “Did [the plaintiff] violate Sections 11.0 and/or 2.0 of the collective bargaining agreement by not upgrading the position of Foreperson? If so, what shall the remedy be?”

The plaintiff contends that the submission pertained only to §§ 2.0 and 11.0 of the agreement and that the submission was thus restricted to the agreement. In an analogous line of cases regarding arbitration awards, our Supreme Court consistently has concluded that “submissions that require arbitrators to determine whether a party has violated a particular section of a collective bargaining agreement constituted unrestricted submissions. For example, in Bic Pen Corp. v. Local No. 134, [183 Conn. 579, 581 n.1, 440 A.2d 774 (1981)], the issue submitted for arbitration was ‘whether the Company violated [article] IV (n) or other relevant provisions of the collective bargaining agreement by failing to distribute overtime equally among all toolmakers and, if so, what shall the remedy be?’ The court concluded that ‘[s]ince neither the submission formulated by the arbitrator, nor the issues suggested by the parties, contained conditional language, the submission at issue is unrestricted.’ ” Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., supra, 258 Conn. 111-12.

Like the submission in Bic Pen Corp., the submission in the present case does not contain any conditional language. It merely contemplates whether the plaintiff violated §§ 11.0 or 2.0 of the agreement by not increasing the pay of the foremen. In the absence of such conditional language, we cannot agree with the plaintiffs characterization of this submission as restricted. Having concluded that the submission was unrestricted, we must now consider whether the board exceeded the scope of its authority in fashioning the award.

B

“The well established general rule is that [w]hen the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . . Furthermore, in applying this general rule of deference to an arbitrator’s award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings. . . .

“When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. . . . An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.

“A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. . . . The party challenging the award bears the burden of producing evidence sufficient to demonstrate a violation of [General Statutes] § 52-418.” (Citations omitted; internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., supra, 258 Conn. 114-15.

In light of our well settled precedent, we decline to consider the plaintiffs claim that the board incorrectly applied § 7-474 (f). The question we must resolve is whether the award conforms to the submission. Here, the submission asked whether the plaintiff violated §§ 11.0 or 2.0 of the agreement by not upgrading the pay classification for the foremen. The board issued an award that provides: “[The plaintiff] violated [§] 11.0 of the collective bargaining agreement by not upgrading the position of Foreperson.

“[The plaintiff] shall immediately upgrade the classifications of Parks Foreperson, Public Works Foreperson, Water Foreperson and Water Foreperson (Meter) in accordance with the language of Civil Service Merit Rule XIV, [§] B.l.d. The personnel occupying the above listed foreperson classifications shall receive the monetary difference between the wages received and their increased wages retroactive to September 29, 2006, the date the grievance was received by the Personnel Director.” The award conformed to the scope of the submission in ruling that the plaintiff violated the agreement and awarding the aggrieved class an increase in pay and back wages. The board in no way exceeded the scope of its authority in fashioning this award.

The judgment is affirmed.

In this opinion the other judges concurred.

       Article 2.0 of the collective bargaining agreement provides: “Unless expressly limited or relinquished below by a specific section of this Agreement, the rights, power and authority held by [the plaintiff] and any of its Departments, Agencies or Boards pursuant to any Charter, general or special statute, ordinance, regulation or other lawful provision over matters involving the municipality, and the complete operational control over the policies, practices, procedures and regulations with respect to its employees shall remain vested solely and exclusively in [the plaintiff].”
      Article 11.0 of the collective bargaining agreement provides: “Wages shall be increased in accordance with the attached compensation plan.
      “An employee, after having served one (1) year (12 months) in grade will advance to the next step of the pay plan. The implementation of this higher rate will become effective the first full workweek occurring after such twelve (12) month period, provided Civil Service requirements governing such increments have been met. Should any employee be denied their step increase, it shall be grievable.”

       General Statutes § 7-474 (f) provides: “Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7-467 to 7-477, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any charter, special act, ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission, or any general statute directly regulating the hours of work of policemen or firemen, or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees’ retirement system or under the Policemen and Firemen Survivors’ Benefit Fund, the terms of such agreement shall prevail; provided, if participation of any employees in said system or said fund is effected by such agreement, the effective date of participation in said system or said fund, notwithstanding any contrary provision in such agreement, shall be the first day of the third month following the month in which a certified copy of such agreement is received by the Retirement Commission, or such later date as may be specified in the agreement.”


source: Caselaw Access Project

author: CARROLL, J.

license: Public Domain

text:
    JOSIAH CAMPBELL v. COMMISSIONER OF CORRECTION
    (AC 29548)
    Flynn, C. J., and Robinson and Carroll, Js.

      Argued January 11
    officially released June 8, 2010

      Ruth Daniella Weissman, special public defender, for the appellant (petitioner).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

CARROLL, J.

The petitioner, Josiah Campbell, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus on the basis of res judicata. The petitioner contends that his claims have never been litigated and that he has raised meritorious issues concerning the validity of the guilty plea he entered to the criminal charge against him. The respondent, the commissioner of correction, concedes that under the facts of this case, the matter should be remanded to the habeas court for an evidentiary hearing with regard to the question of res judicata. Under the unique circumstances of this case, and in light of the respondent’s concession, we exercise our supervisory powers and remand this matter to the habeas court for an evidentiary hearing to determine whether the principle of res judicata applies.

The following facts are relevant to the petitioner’s appeal. On November 28, 2007, the petitioner, using a preprinted form, filed a petition for a writ of habeas corpus. The petitioner alleged that in August, 2002, while represented by attorney Joseph Colarusso, he pleaded guilty to the charge of sexual assault in the third degree. He was sentenced on October 18, 2002. In response to the question on the preprinted form, “Have you filed any other habeas corpus petitions?” the petitioner checked, “yes,” and indicated that he had done so in the trial court in New London. In response to the question on this same form, “Have you raised the issue in this petition in any of the old petitions?” the petitioner wrote, “yes.” The petitioner also indicated, in part, that his attorney had “provided [him] with no knowledge of the seriousness of the penalties” and alleged that his attorney led him to believe that he was maintaining his innocence by pleading guilty under the Alford doctrine.

On December 17, 2007, the court, Schuman, J., dismissed the petition pursuant to Practice Book § 23-29 (3). The judgment of dismissal states in its entirety: “After having reviewed the above-captioned petition, the court finds the petition to be res judicata and dismisses the petition pursuant to [Practice Book] § 23-29 (3). See Josiah Campbell v. Warden, [CV-02-0564474-S], which was dismissed with prejudice on December 1,2004 by Judge Joseph Purtill.” On January 2,2008, the court denied the petitioner’s petition for certification to appeal. The petitioner then filed the present appeal, in which he contends that his claims have never been litigated and that he has raised meritorious issues concerning the validity of his plea. The respondent concedes that the matter should be remanded to the habeas court for a hearing to determine whether the petitioner’s claims are barred by the principle of res judicata.

“The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings. . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding.” (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn. App. 223, 233, 965 A.2d 608 (2009). “[A] second petition alleging the same ground as a previously denied petition will elude dismissal if it alleges grounds not actually litigated in the earlier petition and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier petition.” Id., 235.

In the present case, the petitioner acknowledged that he had filed a prior habeas petition in New London and that it raised the same issues as those raised here. The petition at issue in this appeal did not alert the habeas court to the circumstances surrounding the dismissal of the prior habeas petition, and the court was aware that the prior petition had been dismissed with prejudice. Under these circumstances, the court reasonably concluded that the petition was barred by the principle of res judicata.

The respondent concedes, however, that it would be appropriate, in the interests of justice, to remand this matter to the habeas court for a hearing to determine whether the principle of res judicata applies. In making this concession, the respondent notes that although the court reasonably concluded that the petition was barred by the principle of res judicata, the court’s ruling was premised on inaccurate and incomplete information provided by the petitioner with regard to what had occurred before Judge Purtill. According to the respondent, when the first petition was set down for a hearing before Judge Purtill, the petitioner failed to appear in court, and the petition was dismissed with prejudice. Although representations were made to Judge Purtill regarding attempts that were made to confirm that the petitioner was aware of the hearing date, it was not confirmed that the petitioner received actual notice of the hearing, and, in fact, the clerk of the court acknowledged that notice had been mailed to the wrong apartment in the petitioner’s building. According to the respondent, the record does not establish conclusively that the petitioner failed to keep the court advised of his whereabouts. Absent this finding, the respondent contends, it is not possible to determine whether the petitioner intentionally chose not to appear and to litigate his claims at the first habeas hearing or whether he did not appear because he was not informed of the hearing date. Under these unique circumstances, and in light of the concession by the respondent, we conclude that this matter should be remanded to the habeas court for the resolution of the factual issues necessary to determine whether the principle of res judicata applies. See Practice Book § 60-2 (9).

The case is remanded for further proceedings consistent with this opinion. We retain jurisdiction over this appeal.

In this opinion the other judges concurred.

       The court also denied the petitioner’s petition for certification to appeal.

       See Practice Book § 60-2 (9).

       The plea was entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .”

       The petitioner did indicate in his petition, inaccurately, that he had appealed from his conviction, that he had raised the issue of “ineffective representation of my counsel” in that appeal and that the appeal was “dismissed—absence from court date.”

       In considering the agreement by the respondent to remand the matter to the habeas court, we appreciate “the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [sjtate, who seek impartial justice for the guilty as much as for the innocent.” (Internal quotation marks omitted.) State v. King, 289 Conn. 496, 509, 958 A.2d 731 (2008).


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. LENORIS STARKS
    (AC 29836)
    Bishop, DiPentima and Harper, Js.

      Argued December 10, 2009
    officially released June 8, 2010

      Lenoris Starks, pro se, the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Anthony Bochicchio, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HARPER, J.

The defendant, Lenoris Starks, appearing pro se, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that (1) the court improperly rejected his claim that his sentence was imposed in an illegal manner because the sentencing court mistakenly believed that it was obligated to impose a mandatory minimum sentence of three years for the defendant’s violation of General Statutes § 21a-278a (b) and, consequently, improperly failed to permit the defendant to speak in mitigation of such sentence; (2) the court improperly rejected his claim that his conviction under General Statutes § 2 la-278 (b) was void ab initio and that the sentencing court committed plain error by sentencing him pursuant to § 21a-278 (b); and (3) the sentence imposed for his violation of General Statutes §§ 21a-279 (b) and 21a-278 (b) violated the constitutional prohibition against double jeopardy. We reverse the judgment of the trial court only as it relates to the portion of the defendant’s motion to correct that challenged the sufficiency of the evidence for his conviction under § 21a-278 (b). We affirm the judgment of the trial court in all other respects.

The following facts underlie the defendant’s appeal. Following a jury trial, the defendant was convicted of possession of a hallucinogenic substance in violation of § 21a-279 (b), possession of a hallucinogenic substance with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b), possession of a hallucinogenic substance with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b), possession of less than four ounces of marijuana in violation of § 21a-279 (c) and possession of marijuana with intent to sell in violation of General Statutes § 2 la-277 (b). The conviction arose from the defendant’s conduct on January 31,2003, when police officers, who were executing a search warrant at a residence in Dan-bury, observed the defendant at the residence engaging in conduct that was consistent with the illegal sale of drugs. Police surrounded the defendant as he attempted to leave the residence and, during a patdown search of the defendant, a police officer seized 3.25 grams of marijuana and ten pills containing ecstasy, a hallucinogenic substance, from the defendant’s watch pocket. This court affirmed the judgment of conviction following the defendant’s direct appeal. State v. Starks, 94 Conn. App. 325, 892 A.2d 959, cert. denied, 278 Conn. 918, 901 A.2d 44 (2006).

In October, 2007, the defendant filed a pro se motion in the Superior Court to correct an illegal sentence. The defendant set forth four grounds in support of his motion: (1) that the sentencing court mistakenly believed that it had to impose a mandatory minimum sentence of three years incarceration for his violation of § 21a-278a (b) and, consequently, improperly failed to permit him to speak in mitigation of such sentence; (2) that the sentencing court improperly sentenced him under § 21a-278 (b) because that statutory provision did not criminalize the possession of the amount of illegal drugs that were found in his possession; (3) that the court lacked subject matter jurisdiction to convict him under § 2 la-278 (b) because that statutory provision did not criminalize the possession of the amount of illegal drugs that were found in his possession and, thus, the conviction was void ab initio; and (4) the sentencing court relied on an inaccurate and incomplete presentence investigation report.

The court held a hearing on the motion following which it denied the motion, stating that the grounds raised in the motion were not the proper subject of a motion to correct an illegal sentence. After the defendant filed the present appeal from that judgment, the court, pursuant to this court’s order, filed an articulation related to its rejection of the defendant’s claims that the sentencing court had imposed an illegal sentence with regard to §§ 21a-278a (b) and 2 la-278 (b), as well as its rejection of the claim that the sentence was illegal because the sentencing court did not believe it could depart from any applicable mandatory minimum sentences.

Before turning to the defendant’s claims, we set forth some principles governing our review. “It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act. . . . Providing such authorization to act, Practice Book § 43-22 states: The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.

“An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is inherently contradictory. . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates the defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises .... We review the court’s denial of the defendant’s motion to correct the sentence under the abuse of discretion standard of review.” (Citations omitted; internal quotation marks omitted.) State v. Olson, 115 Conn. App. 806, 810-11, 973 A.2d 1284 (2009).

I

First, the defendant claims that the court improperly rejected his claim that his sentence was imposed in an illegal manner because the sentencing court mistakenly believed that it was obligated to impose a mandatory minimum sentence of three years for his violation of § 21a-278a (b) and, thus, improperly failed to permit him to speak in mitigation of such sentence. We disagree.

At the time of sentencing, the sentencing court stated in relevant part: “On the charge of simple possession of a hallucinogenic, that’s § 21a-279 (b), I’m going to let the conviction stand. I’m not going to impose a sentence on that. I’m going to combine that with his conviction for possession of a hallucinogenic with intent to sell. That’s § 2 la-278 (b). I’m going to sentence you to the custody of the commissioner of correction for a period of fifteen years on that. And he was also convicted ... of committing that offense within 1500 feet of a public housing project in violation of § 2 la-278a (b), and there’s a three year mandatory minimum—well, consecutive [sentence] that I must impose on that. So, I’ll impose that. ... So, that’s a total effective sentence of eighteen years, and including five years mandatory minimum for the possession with intent to sell as a . . . person [who is not drug-dependent].

“For the charge of possession of marijuana, I’m going to [let] that conviction stand and combine that with the conviction for possession of marijuana with intent to sell. The possession is § 2 la-279 (c), and the possession with intent to sell is § 21a-277 (lb). On the possession with intent to sell, I’m going to commit you to the custody of the commissioner of correction for a period of . . . seven years. . . . That’s going to be concurrent with the first sentence. So, the total effective sentence is eighteen years, including five years mandatory minimum, and I will waive any fees and costs.”

In its written articulation, the trial court set forth several reasons for rejecting the defendant’s claim. First, the court observed that the sentence imposed for the violation of § 21a-278 (b), fifteen years, fell within the statutory sentencing limits for the offense. The court noted that § 2 la-278 (b) authorized the sentencing court to impose a term of imprisonment of between five and twenty years in duration. Second, the court observed that the sentence imposed for the violation of § 21a-278a (b), three years, was within the statutory sentencing limits for the offense. The court noted that § 21a-278a (b) provides that an offender “shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section . . . 21a-278.” General Statutes § 21a-278a (b). Here, the court observed, the sentencing court imposed the statutorily prescribed sentence. Third, the court rejected the defendant’s assertion that the sentencing court’s remarks during the sentencing proceeding, as set forth earlier in this opinion, reflected its belief that it lacked the authority to deviate from any statutorily prescribed minimum sentence in accordance with General Statutes § 21a-283a for good cause shown. The court noted that the sentencing court “was not required to depart from the mandatory minimum . . . regardless of whether the defendant showed good cause to the court.” Furthermore, the court observed that the record of the sentencing proceeding reflected that the sentencing court heard mitigating arguments from both the defendant and his trial counsel. On the basis of the foregoing, the court concluded that the defendant had not demonstrated that the sentencing court abused its discretion by not departing from the mandatory minimum sentence for the violation of § 21a-278a (b) but had acted well within its discretion.

After carefully reviewing the record, we conclude that it does not support the defendant’s arguments. The defendant’s sentence fell within the relevant statutory sentencing limits. Furthermore, the sentencing court afforded the defendant and his trial counsel an ample opportunity to address it prior to the imposition of sentence, and both the defendant and his attorney addressed the sentencing court at length in an unmistakable effort to mitigate the sentence imposed. Contrary to the defendant’s interpretation of the sentencing court’s comments at the time of sentencing, the record does not suggest that the sentencing court believed that it could not depart from the mandatory minimum sentence for good cause shown. The sentencing court did not state that it would not consider departing from such mandatory minimum sentence but properly observed, in accordance with § 21a-278a (b), that its sentence for the violation of § 21a-278a (b) shall be consecutive to the sentence imposed under § 2 la-278 (b). It was within the sentencing court’s discretion to reject without discussion the defendant’s attempt to demonstrate that a departure from any mandatory minimum sentence should occur in this case. Thus, we conclude that the court’s analysis of the claim raised in the motion to correct was logically and legally sound; the defendant has not demonstrated that the court abused its discretion by denying the motion on these grounds.

II

Next, the defendant claims that the court improperly rejected his claim that his conviction under § 2 la-278 (b) was void ab initio and that the sentencing court committed plain error by sentencing him pursuant to § 21a-278 (b). We reject this claim.

The gravamen of the claim is that, at trial, the state did not present evidence sufficient to demonstrate that the defendant had violated § 21a-278 (b), of which he stood charged. According to the defendant, the evidence did not support a finding that he had violated § 2 la-278 (b) because the state demonstrated that he possessed only a small amount of illegal drugs, including ecstasy. Essentially, the defendant is attacking the validity of his conviction by challenging the sufficiency of the evidence with regard to this offense. The defendant did not raise this argument in his direct appeal, and the court lacked the jurisdiction or the authority to consider such argument raised in the defendant’s motion to correct an illegal sentence. The defendant was convicted of having violated § 2 la-278 (b), and the sentencing court imposed sentence under that provision. The defendant’s arguments do not concern the legality of his sentence or the manner in which it was imposed. Accordingly, we conclude that the court properly declined to consider the defendant’s arguments in this regard. “Our Supreme Court has concluded that to invoke successfully the court’s jurisdiction with respect to a claim of an illegal sentence, the focus cannot be on what occurred during the underlying conviction. ... In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.” (Citations omitted; internal quotation marks omitted.) State v. Koslik, 116 Conn. App. 693, 699, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).

Insofar as this portion of the defendant’s motion to correct constituted a collateral attack on his conviction and, thus, was outside of the court’s jurisdiction, the court should have dismissed, rather than denied, this portion of the motion. See, e.g., State v. Wright, 107 Conn. App. 152, 157-58, 944 A.2d 991, cert. denied, 289 Conn. 933, 958 A.2d 1247 (2008).

Ill

Finally, the defendant claims that the sentence imposed for his violation of §§ 21a-279 (b) and 21a-278 (b) violates the constitutional prohibition against double jeopardy in that it constituted a multiple punishment for the same conduct. We decline to review this claim.

The defendant acknowledges that he did not raise this claim in his motion to correct or at any time before the trial court. The defendant argues that this unpre-served claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine, codified in Practice Book § 60-5. Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. An appellant may obtain review under the plain error doctrine upon a showing that failure to remedy an obvious error would result in manifest injustice. See, e.g., State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009) (“[an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice” [internal quotation marks omitted]).

As set forth previously, in a motion to correct, a defendant properly may argue that his sentence is illegal because it violates his double jeopardy rights. Also, as set forth previously, “[t]he judicial authority may at any time correct an illegal sentence . . . .” (Emphasis added.) Practice Book § 43-22. Our Supreme Court has interpreted the term “judicial authority,” as used in Practice Book § 43-22, to refer to the trial court, not the appellate courts of this state. See Cobham v. Commissioner of Correction, 258 Conn. 30, 38 n.13, 779 A.2d 80 (2001) (“[t]oday we clarify the meaning of ‘judicial authority’ in [Practice Book] § 43-22 ... to mean solely the trial court”).

Our rules of practice confer the authority to correct an illegal sentence on the trial court, and that court is in a superior position to fashion an appropriate remedy for an illegal sentence. See id., 39 (discussing trial court’s unique access to certain remedies with regard to sentencing). Furthermore, the defendant has the right, at any time, to file a motion to correct an illegal sentence and raise the double jeopardy claim before the trial court. Typically, our appellate courts afford review under Golding or the plain error doctrine in circumstances in which the failure to undertake such an extraordinary level of review, effectively, would preclude an appellant from obtaining any judicial review of the claim raised. That is not the case here. Given the present circumstances, in which the defendant may seek and obtain any appropriate redress before the trial court, we are not persuaded that extraordinary review of the claim under Golding or the plain error doctrine is warranted or that our declining to review the claim would result in any hardship or injustice to the defendant.

The form of the judgment is improper. The judgment denying the portion of the defendant’s motion to correct an illegal sentence in which the defendant argues that the evidence was insufficient to sustain his conviction under § 21a-278 (b) is reversed and the case is remanded with direction to render judgment of dismissal. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The court imposed a total effective sentence of eighteen years imprisonment.

       Also, relying on State v. Casiano, 282 Conn. 614, 627-28, 922 A.2d 1065 (2007), the defendant requested the appointment of counsel with regard to his motion to correct an illegal sentence. The court appointed a public defender to review the motion, and the public defender reported to the court that a sound basis did not exist for the filing of the motion or from an appeal from the denial of the motion. Thereafter, the court informed the defendant that it would not appoint counsel to represent him. Later in the proceeding, the court denied a subsequent request by the defendant for the appointment of counsel. The defendant appeared pro se before the trial court and appears pro se in the present appeal.

       The defendant does not challenge the denial of this claim on appeal.

       General Statutes § 21a-283a provides in relevant part: “Notwithstanding any provision of the general statutes, when sentencing a person convicted of a violation of any provision of this chapter, except aviolation of subsection (a) or (c) of section 21a-278a, for which there is a mandatory minimum sentence . . . the court may, upon a showing of good cause by the defendant, depart from the prescribed mandatory minimum sentence, provided the provisions of this section have not previously been invoked on the defendant’s behalf and the court, at the time of sentencing, states in open court the reasons for imposing the particular sentence and the specific reason for imposing a sentence that departs from the prescribed mandatory minimum sentence.


author: PER CURIAM.

text:
    FARHAD MOASSER v. JAMES BECKER ET AL.
    (AC 31061)
    DiPentima, Beach and Stoughton, Js.

    Argued March 11
    officially released June 8, 2010

      Mark F. Katz, for the appellant (defendant Judith Becker).

      Philip M. French, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The defendant Judith Becker appeals from an award of postjudgment attorney’s fees to the plaintiff, Farhad Moasser, issued after a remand from this court. On appeal, the defendant claims that the trial court (1) improperly interpreted the remand as an order that the fees were mandated, (2) improperly awarded fees against a party whose interest in the subject real property was not foreclosed, (3) improperly awarded fees pursuant to General Statutes §§ 52-350f and 52-400c and (4) erred in its calculation of the fees. We do not agree with any of these claims and, accordingly, affirm the judgment of the trial court.

This appeal is the latest episode in a lengthy effort by the plaintiff to collect on money judgments obtained against James Becker, the former husband of the defendant. The following procedural history and factual background, as set forth by this court; see Moasser v. Becker, 107 Conn. App. 130, 946 A.2d 230 (2008); is relevant to the defendant’s claims. While James Becker and the defendant were married, the plaintiff recorded a series of judgment liens against James Becker’s interest in certain real property he and the defendant jointly owned. In 1992, the plaintiff initiated an action to foreclose on those liens, and, after much litigation, a foreclosure by sale took place on November 13, 2004. By the time of the sale, the defendant was the sole owner of the equity of redemption in the real property at issue.

On July 12, 2006, the court ordered disbursement of the sale proceeds. The plaintiff thereafter appealed from that order, claiming, in part, that the court had improperly denied his request for an additional post-judgment attorney’s fee award. Specifically, the plaintiff claimed that the court improperly determined that no statutory authority existed that would have justified such an award. This court reversed the portion of the judgment denying the plaintiffs request for postjudgment attorney’s fees and remanded the case for further proceedings. See id., 139-40. In that opinion, we observed that we saw no reason why the statutory sections relied on by the plaintiff, namely, General Statutes §§ 52-350f, 52-400c and 52-249, would not authorize the attorney’s fee award requested by the plaintiff were the court to have concluded that the plaintiff was so entitled upon a balancing of the equities. Id., 139. On remand, the court awarded the plaintiff $62,916.75 in attorney’s fees. This appeal followed.

“[W]e review an award of attorney’s fees under the abuse of discretion standard of review. This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) LaBossiere v. Jones, 117 Conn. App. 211, 221-22, 979 A.2d 522 (2009).

We have carefully reviewed the entire record and the decision of the court, which was rendered orally. It is abundantly clear that the court, far from construing the remand as an order mandating a fee award, considered and balanced the equities in arriving at what it deemed in the exercise of its discretion to be a fair and reasonable attorney’s fee. Because the defendant was the sole owner of the equity of redemption in the foreclosed property and therefore received her former husband’s interest subject to the encumbrances, the court determined that she should pay the attorney’s fees out of her proceeds from that sale. The court found that portions of the award were due to delay and that portions were due because the underlying case was a foreclosure action and the defendant was the owner of the equity. The court also concluded that attorney’s fees were awardable under all three statutes.

The defendant, however, did not request an articulation, and, as a consequence, we are unable to determine whether and to what extent the award was made under one or another or all three of the enumerated statutes authorizing fees. “It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review.” (Internal quotation marks omitted.) DeLuca v. DeLuca, 37 Conn. App. 586, 588, 657 A.2d 690 (1995). In this case, the court employed its own knowledge and experience and considered the record and submissions of counsel in deciding on a fee award that it deemed fair and reasonable. When the decision of the court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the court acted properly. Id.

After review of the record and briefs and our consideration of the arguments of counsel, we find no abuse of discretion on the part of the court in its award of postjudgment attorney’s fees.

The judgment is affirmed.

       Also named as defendants in the underlying action were several encumbrancers of the real property that was the subject of the judgment liens and foreclosure sale that gave rise to this appeal. Because those encumbrancers are not parties to this appeal, we refer in this opinion to Judith Becker as the defendant.

       The marriage between James Becker and the defendant was dissolved in 1994, and he transferred his one-half interest in the property at issue to her in connection with their divorce. Moasser v. Becker, supra, 107 Conn. App. 133.


author: BORDEN, J.

text:
    ERICA TODD v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (AC 31041)
    Flynn, C. J., and Harper and Borden, Js.

      Argued March 22
    officially released June 8, 2010

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellant (plaintiff).

      Miles N. Esty, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BORDEN, J.

In this action for underinsured and conversion coverage benefits, the plaintiff, Erica Todd, appeals from the summary judgment rendered by the trial court in favor of the defendant, Nationwide Mutual Insurance Company. The plaintiff claims that the court improperly granted the defendant’s motion for summary judgment. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are undisputed for purposes of the plaintiffs appeal. On May 31, 2000, the plaintiff was involved in an automobile accident in which her vehicle, which was covered by the defendant’s underinsured and conversion coverage policy, was struck by another vehicle that was operated by Christopher Bemacchi. Bemacchi’s vehicle was a leased vehicle that was owned by American Honda Finance Corporation (Honda) and insured by Pacific Employers Insurance Company (Pacific) under a liability policy with limits of $1 million. The plaintiff brought an action alleging negligence against Bemacchi and alleging that Honda was vicariously liable for Ber-nacchi’s negligence. The plaintiff also alleged that Ber-nacchi was an authorized driver of the leased vehicle. Bemacchi had a liability policy with GEICO with limits of $100,000. Bemacchi’s carrier paid the plaintiff the $100,000 limit of his policy, and the plaintiff settled with Honda for $275,000 through its carrier, Pacific.

The plaintiff then brought this action against the defendant for underinsured and conversion coverage benefits. The plaintiff, purportedly having discovered that Bemacchi had not been an authorized driver of the leased vehicle at the time of the accident, alleged the payment of $100,000 by Bemacchi’s carrier and, further, that the “plaintiff has exhausted all bodily injury liability bonds or insurance policies applicable at the time of the accident, in accordance with [General Statutes] § 38a-336a. . . . The owner of the motor vehicle that was being operated by the legally liable operator . . . Bemacchi, was [Honda], which had no legal obligation to pay under current law as . . . Bemacchi was not an authorized driver under the leasing agreement. Said company, however, made a contribution to the settlement of $275,000, rendering the total payment of $375,000.” The defendant moved to strike the complaint for failure to allege exhaustion of all applicable policies and, thus, for failure to state a claim under General Statutes § 38a-336, the uninsured and underinsured motorists statute. The court, Cosgrove, J., denied the motion to strike, ruling, first, that the applicable statute was § 38a-336a, the underinsured motorists conversion coverage statute, rather than § 38a-336, the uninsured and underinsured coverage statute; and, second, that, taking all the plaintiffs allegations as true, including that Bemacchi was not an authorized driver under the lease agreement, “the plaintiff adequately alleged the exhaustion of all applicable liability bonds and policies.”

The defendant then filed a motion for summary judgment, claiming that the plaintiff had not exhausted “all bodily injury liability bonds or insurance policies applicable at the time of the accident in accordance with [§ 38a-336a],” namely, the Pacific policy. In support of its motion, the defendant produced two affidavits. The first was the affidavit of John F. McDevitt, an employee of ACE USA, an affiliate of Pacific. McDevitt stated that the Pacific policy “provided liability insurance coverage with limits of $1,000,000,” and that Pacific, “as the liability insurer of [Honda] paid $275,000 out of its available coverage of $1,000,000 under [the policy] to [the plaintiff] to settle the aforementioned lawsuit.” The second affidavit in support of the motion for summary judgment was that of Diane Adams, an employee of Honda, who stated that its vehicle was covered on the date of the accident by the Pacific policy with a limit of $1 million.

In its memorandum of law, the defendant relied solely bn the facts that the Pacific policy had a limit of $1 million and that only $275,000 of that limit had been paid. It did not address the plaintiffs factual claim that Bemacchi had not been an authorized driver under the leasing agreement. Instead, regarding the plaintiffs claim that, as the defendant characterized it, “Honda was not obligated to make such a payment,” namely, the $275,000 settlement, the defendant relied on a trial court decision in which the court had ruled, in effect, that acceptance of a settlement from a third party’s liability carrier by an insured under an uninsured motorists coverage policy precludes the insured from recovering uninsured motorists benefits. The plaintiff did not file any affidavits but filed a memorandum of law in opposition to the defendant’s motion, relying solely on the prior ruling of the court on the motion to strike under the doctrine of the law of the case. See Carothers v. Capozziello, 215 Conn. 82, 107, 574 A.2d 1268 (1990). The defendant then filed a reply to the plaintiffs memorandum in opposition to summary judgment, bringing to the court’s attention the fact that the plaintiff had, in the negligence action against Bemacchi, alleged that Bemacchi was an authorized driver of the leased vehicle. The court, Hon. George W. Ripley II, judge trial referee, relying on a trial court decision cited by the defendant, Smith v. New Hampshire Ins. Co., Superior Court, judicial district of Tolland, Docket No. CV-93-54227-S (August 23, 1994), granted the defendant’s motion for summary judgment, finding that the defendant “has shown that [Honda] settled with [the plaintiff] for $275,000, out of a $1 million policy. It is uncontested that [the plaintiff] accepted the settlement and received the $275,000 from . . . Honda. [The plaintiffs] acceptance of this settlement precludes the recovery of underinsured [motorists] benefits, as the applicable liability policies have not been exhausted.” This appeal followed.

The plaintiff claims that the defendant has failed to establish that the Pacific policy covering Honda’s leased vehicle was an “ ‘applicable policy’ ’’within the meaning of § 38a-336a because there is still a genuine issue of fact regarding whether Bemacchi was an authorized driver of the vehicle. We agree.

“As a preliminary matter, we set forth the appropriate standard of review. In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

General Statutes § 38a-336a (c) provides in relevant part: “Each insurer shall be obligated to pay to the insured, up to the limits of the policy’s underinsured motorist conversion coverage, after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements. . . .” (Emphasis added.) When the tortfeasor’s vehicle is a leased vehicle, the question of whether a policy covering that vehicle was “applicable at the time of the accident”; General Statutes § 38a-336a (c); depends on whether the driver thereof was authorized to drive it under the terms of the lease that “limit the identity of the drivers authorized to use the vehicle.” (Internal quotation marks omitted.) Moncrease v. Chase Manhattan Auto Finance Corp., 98 Conn. App. 665, 669, 911 A.2d 315 (2006). If the driver was so authorized, he is in lawful possession of the vehicle pursuant to the lease contract terms and the policy covering the vehicle is applicable at the time of the accident and its limits must be exhausted as a precondition of recovery of conversion coverage benefits; if not, the policy is not applicable and its limits need not be exhausted. See id., 668-69.

Thus, in the present case, in order for the defendant at the summary judgment stage to establish that the Pacific policy was applicable at the time of the accident, within the meaning of the statute, it was necessary for the defendant to make it quite clear that Bemacchi was an authorized driver under the terms of the lease. The defendant failed to do this. Its affidavits did no more than to establish that there was a policy covering the vehicle, the limits of which had not been exhausted. Those affidavits did not address the status of Bemacchi as driver of the leased vehicle at the time of the accident.

In this regard, we reject the defendant’s reliance, in this court, on the language of McDevitt’s affidavit that Pacific “paid $275,000 out of its available coverage of $1,000,000 . . . .” (Emphasis added.) First, the defendant did not make that argument in the trial court. Second, at best, that language is ambiguous with regard to whether Bemacchi was an authorized driver; especially considering the rule that we are obligated to take the facts presented in the light most favorable to the nonmovant, that language falls short of meeting the defendant’s obligation to remove all questions of material fact on its motion for summary judgment.

Similarly, we reject the defendant’s reliance on the assertion that, as a matter of law, if the insured has accepted funds in settlement from any of the third parties involved in the negligence action, he is precluded from thereafter recovering uninsured, underinsured or conversion coverage benefits under his own policy. As the plaintiff points out, the statute focuses on whether a policy is “applicable at the time of the accident. . . .” General Statutes § 38a-336a (c). It is difficult for us to see how subsequent conduct can alter that factual and legal status. Moreover, as a practical matter, it does not take much imagination to understand that there may well be cases in which such settlement funds are paid precisely to avoid having that factual and legal status authoritatively determined by going through litigation to its end.

Finally, we also reject the defendant’s reliance on the plaintiffs prior pleading, in the negligence case against Bemacchi, which alleged that Bemacchi was an authorized driver of the vehicle at the time of the accident. As a prior pleading in a different case, although that pleading may well have evidentiary value in the present case, it is not legally binding on the plaintiff in the present case. See State v. James, 247 Conn. 662, 684, 725 A.2d 316 (1999) (Berdon, J., dissenting) (testimony at prior trial admissible on retrial as evidentiary admission); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.16.3, p. 587 (“Judicial admissions are conclusive only in the judicial proceeding in which made. . . . In subsequent proceedings, such prior judicial admissions are merely evidentiary admissions, to be used as evidence to prove a matter in dispute in the subsequent trial.” [Citation omitted.]).

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for summary judgment and for further proceedings according to law.

In this opinion the other judges concurred.

       See Smith v. New Hampshire Ins. Co., Superior Court, judicial district of Tolland, Docket No. CV-93-54227-S (August 23, 1994).