text:
    Kalman I. Nulman’s Appeal from Probate Kalman I. Nulman v. Joseph Weill
    (4893)
    (4894)
    Spallone, Daly and Norcott, Js.
    Argued January 12 —
    decision released January 26, 1988

      James F. Stapleton, with whom was Peter M. Nolin, for the appellants (The Daphne Seybolt Culpeper Foundation, Inc., et al.).

      William A. Phillips, for the appellant (plaintiff).

      Paul J. Pacifico, for the appellees (Rodney S. Eielson et al., administrators c.t.a., d.b.n.).

      John R. Whelan, assistant attorney general, with whom, on the brief, were David E. Ormstedt and Linda Pearce Prestley, assistant attorneys general, for the appellee (Joseph I. Lieberman, attorney general).
   Per Curiam.

The appellants challenge a judgment rendered by the trial court removing the plaintiff as a coexecutor of the decedent’s estate on the ground that the facts found by the trial court were erroneous. An appellate court may not retry facts and its duty upon review of such a claim is limited to a determination of whether the trial court’s judgment was clearly erroneous in this respect or otherwise contrary to law. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to pass upon the credibility of witnesses and the weight to be accorded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984).

Our review of the record and briefs, with particular attention to the trial court’s exhaustive and carefully drawn memorandum of decision, indicates that the factual findings of the court are fully supported by the evidence and its legal conclusions are legally and logically sound.

There is no error.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Boehringer Ingleheim Pharmaceuticals, Inc. v. Morganti, Incorporated
    (5615)
    Spallone, Daly and Norcott, Js.
    Argued January 12 —
    decision released February 10, 1988

      William J. Egan, with whom, on the brief, 'was, Penny Q. Seaman, for the appellant (plaintiff).

      David E. Rosengren, with whom, on the brief, was Louis R. Pepe, for the appellee (defendant).
   Per Curiam.

On August 29, 1986, the defendant moved to dismiss the plaintiff’s action for injunctive relief. A hearing on the defendant’s motion to dismiss was scheduled for September 15,1986. On September 11, 1986, the plaintiff filed a motion for extension of time to file its memorandum of law in opposition to the motion to dismiss. No action was taken on that motion and the plaintiff filed its memorandum in opposition the following day. On September 15, 1986, the trial court addressed the merits of the motion to dismiss, and granted the motion. The plaintiff appeals from the granting of that motion.

We find this case to be controlled by our holdings in Czaja v. Sallak, 13 Conn. App. 411, 412, 536 A.2d 1001 (1988), and Burton v. Redding Planning Commission, 13 Conn. App. 400, 408-409, 536 A.2d 995 (1988). In those cases, we held that “the timely filing of a memorandum of law in opposition to a motion to dismiss, pursuant to Practice Book § 143, is mandatory, and that noncompliance with the five-day time period mandated by § 143 required that the motion be granted without regard to its merits.” Czaja v. Sallak, supra, 412.

There is no error.

       “[Practice Book] Sec. 143. —grounds
      “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”


text:
    John G. Burgdorf et al. v. Planning and Zoning Commission of the Town of South Windsor
    (5535)
    Borden, O’Connell and Stoughton, Js.
    Argued January 6 —
    decision released February 10, 1988

      Ralph J. Alexander, town attorney, with whom, on the brief, was Richard M. Rittenband, former town attorney, for the appellant (defendant).

      Ronald P. Sherlock, with whom, on the brief, was James W. Sherman, for the appellees (plaintiffs).
   Per Curiam.

Subsequent to the oral argument in this appeal, the plaintiffs moved to dismiss the appeal on the ground of mootness. On the basis of the briefs of the parties on the motion, and on the hearing held thereon, we conclude that the appeal is moot.

The plaintiffs’ motion to dismiss is granted; the appeal is dismissed.


text:
    John G. Groppo, Commissioner of Revenue Services v. Bertha J. Krause
    (5901)
    Dupont, C. J., Borden and Stoughton, Js.
    Submitted on briefs February 11 —
    decision released February 22, 1988

      Gilbert Shasha filed a brief for the appellant (defendant).

      Joseph I. Lieberman, attorney general, Albert E. Sheary, first assistant commissioner of revenue services, and Richard D. Nicholson, tax attorney, filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    John H. Murphy v. Fox Hollow Development Corporation
    (5636)
    Spallone, Bieluch and O’Connell, Js.
    Submitted on briefs February 5 —
    decision released February 22, 1988

      Kerry M. Wisser filed a brief for the appellee-appellant (defendant).

      Geraldine Battistoli filed a brief for the appellantappellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Doris C. Chlebowski v. Edmond M. Chlebowski
    (5809)
    Spallone, O’Connell and Norcott, Js.
    Submitted on briefs February 5 —
    decision released February 22, 1988

      Robert P. Hanahan filed a brief for the appellant (plaintiff).

      Kevin P. Thornton filed a brief for the appellee (defendant).
   Per Curiam.

The plaintiff’s claims of error implicate the factfinding function and the discretionary powers of the trial court. Our review of the record and transcripts clearly indicate that the court acted properly and in accordance with applicable law.

There is no error.


text:
    Amr A. Wasfi v. Board of Veterinary Registration & Examination et al.
    (5722)
    Spallone, Daly and Norcott, Js.
    Argued January 21 —
    decision released February 22, 1988

      Kenneth B. Povodator, with whom, on the brief, was Noel R. Newman, for the appellant (plaintiff).

      Paul J. Lahey, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Per Curiam.

The plaintiff is appealing the judgment

of the trial court dismissing his administrative appeal from the decision of the defendant, Connecticut Board of Veterinary Registration and Examination.

The trial court held that it lacked subject matter jurisdiction to hear the appeal because the defendant was served outside the thirty-day time limitation mandated by General Statutes § 4-183. We agree.

This case is controlled by the holding in Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985), which states that “[t]he failure to file an appeal from an administrative agency within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it.” See also Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); Minichino v. Freedom of Information Commission, 6 Conn. App. 148, 149, 503 A.2d 1189 (1986).

There is no error.


text:
    R. Place Restaurant Corporation v. Regina Costa Regina Costa et al. v. R. Place Restaurant Corporation
    (5783)
    (5784)
    Spallone, O’Connell and Norcott, Js.
    Argued February 3 —
    decision released February 22, 1988

      John R. Williams, for the appellants (defendant in the first case, plaintiffs in the second case).

      Raymond F. Parlato, for the appellee (plaintiff in the first case, defendant in the second case).
   Per Curiam.

Both of these appeals concern an action of summary process. At oral argument, it was revealed that the tenant is no longer in possession of the premises. Accordingly, the matters have been rendered moot. See Yankee Sailing Co. v. Yankee Harbor Marina, Inc., 5 Conn. App. 153, 157, 497 A.2d 93 (1985).

The appeals are dismissed.


text:
    Marilyn Gambardella v. City of New Haven
    (5686)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 10 —
    decision released February 22, 1988

      Charles G. Albom, with whom, on the brief, was Patricia Cofrancesco, corporation counsel, for the appellant (defendant).

      Arthur R. Riccio, Jr., for the appellee (plaintiff).
   Per Curiam.

The defendant’s first claim of error is that the defendant’s stop sign, which was improperly located so as to be obscured from view, could not as a matter of law be a highway defect. This claim was not raised in the trial court in any way, and does not qualify for review under the plain error doctrine. The defendant’s second claim of error, namely, that there was insufficient evidence of constructive notice, is without merit.

There is no error.


text:
    Karen Cote v. Robert B. Gagne et al.
    (6136)
    Daly, Bieluch and Foti, Js.
    Submitted on briefs February 18 —
    decision released February 23, 1988

      Vincent J. Trantolo, for the appellant (plaintiff).

      Robert E. Beach, Jr., for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    In re Troy M.

    (6149)
    Daly, Bieluch and Foti, Js.
    Argued February 16 —
    decision released February 24, 1988

      Lynn B. Cochrane, special public defender, for the appellant (respondent).

      Bruce A. Tonkonow, state advocate, for the appellee (state).

       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.

There is no error.


text:
    Frederick J. Zivic v. Kay Brooke
    (5658)
    Daly, Bieluch and Foti, Js.
    Argued February 16 —
    decision released February 24, 1988

      Larry R. Levine, for the appellant (plaintiff).

      Michael J. Auger, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Lees Curtain Company, Inc. v. Robert D. Scinto et al.
    (5443)
    Spallone, Daly and Norcott, Js.
    Argued January 20 —
    decision released February 29, 1988

      Robert K. Lesser, with whom, on the brief, was Toby M. Schaffer, for the appellants (defendants).

      Clifford J. Grandjean, for the appellee (plaintiff).
   Per Curiam.

The defendants challenge a judgment rendered by the trial court ordering specific performance of a lease provision with an option to purchase. Although the defendant’s list five issues on appeal, this appeal boils down to whether the facts found by the trial court were erroneous. We find no error.

The availability of the remedy of specific performance depends upon the evaluation of equitable consideration. Frumento v. Mezzanotte, 192 Conn. 606, 615, 473 A.2d 1193 (1984); Ecos Corporation v. Conlon, 4 Conn. App. 572, 574, 495 A.2d 1111 (1985).

“An appellate court may not retry facts and its duty upon review of such a claim is limited to a determination of whether the trial court’s judgment was clearly erroneous in this respect or otherwise contrary to law. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to pass upon the credibility of witnesses and the weight to be accorded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984).” Nulman’s Appeal from Probate, 13 Conn. App. 811, 812, 537 A.2d 495 (1988).

Our review of the record indicates that the factual findings of the court are fully supported by the evidence and its legal conclusions are legally and logically sound.

There is no error.


text:
    State of Connecticut v. Irving Nixon
    (3992)
    Spallone, O’Connell and Norcott, Js.
    Submitted on briefs February 2 —
    decision released February 29, 1988

      Irving Nixon, pro se, the appellant (defendant), filed a brief.

      Carolyn K. Longstreth, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

The defendant appeals his conviction, after a jury trial, of assault in the first degree, in violation of General Statutes § 53a-59 (a) (1).

The jury could reasonably have found the following facts. The defendant and his victim, Preston Kinsey, encountered each other on a New Haven street corner. A hostile conversation ensued and, as the victim began to walk away, two shots were fired from somewhere behind him. Kinsey turned and saw the defendant pointing a handgun in his direction. Two more shots were fired, both of which hit Kinsey. The resulting injuries required the hospitalization of the victim for over three months.

The defendant was arrested, tried and convicted, by a jury, of assault in the first degree. The defendant has appealed and claims the trial court erred (1) in failing to assure that the exhibits admitted during trial were delivered to the jury before deliberations were commenced, and (2) in rendering judgment although there was insufficient evidence to support the jury’s verdict.

The defendant’s first claim of error is not reviewable. First, because it was not raised in the trial court; Practice Book § 4185; and second, because it does not manifest any exceptional circumstances which would warrant a review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

The second claim of error is without merit. Our review of the record and transcripts discloses ample support for the jury’s verdict. See, e.g., State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983); State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 479 (1980); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978).

There is no error.


text:
    Stanley V. Tucker v. Hartford Electric Light Company et al.
    (5669)
    Dupont, C. J., Bokden and Stoughton, Js.
    Argued February 9 —
    decision released March 2, 1988

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      Bourke G. Spellacy, with whom, on the brief, were Karen P. Blado and D. William White, for the appellee (named defendant).

      Jeffrey L. Williams, with whom, on the brief, was Barbara B. Sacks, for the appellees (defendant Timothy McNally et al.).

      William J. Melley III, for the appellee (defendant Peerless Insurance Company).
   Per Curiam.

The plaintiff appeals from the trial court’s granting of summary judgment in favor of the defendants. The plaintiff claims that the court erred (1) in granting summary judgment based on a defense which was not specially pleaded by the defendants, (2) by not finding that permission of the court is unnecessary to sue a court appointed receiver after the receivership has been terminated, (3) in finding a lack of subject matter jurisdiction due to the plaintiff’s failure to obtain permission to sue the receiver, (4) in unconstitutionally denying the plaintiff access to the courts, and (5) in rendering summary judgment “on grounds in law and fact that are false.”

This case is controlled by our decision in Tucker v. American Ins. Co., 3 Conn. App. 397, 488 A.2d 1278, cert. denied, 196 Conn. 802, 492 A.2d 1239 (1985). “ ‘A receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without the leave of the court whose officer he is, granted in the cause in which he was appointed.’ ” Id., 399, quoting Links v. Connecticut River Banking Co., 66 Conn. 277, 284, 33 A. 1003 (1895). The plaintiff’s failure to obtain permission of the court to sue the receiver is dispositive of this appeal.

There is no error.


text:
    Frank X. Lo Sacco v. Debra M. Young et al.
    (5736)
    Daly, Bieluch and Foti, Js.
    Argued February 18 —
    decision released March 8, 1988

      Frank X. Lo Sacco, pro se, the appellant (plaintiff).

      Joseph P. Patrucco filed a brief for the appellees (defendants).
   Per Curiam.

The plaintiff appeals following the trial court’s denial of his motion to set aside the verdict and for a new trial. The jury rendered its verdict on November 26, 1986, which the court accepted and on which judgment was rendered. The plaintiff filed a motion to set aside the verdict and for a new trial on December 4, 1986. The determination of the timeliness of the plaintiff’s motion is dispositive of this appeal.

Practice Book § 320 provides in part: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open; provided that for good cause the court may extend this time.” (Emphasis added.)

Practice Book § 405 provides in relevant part: “Clerks’ offices shall be open each weekday from Monday to Friday inclusive, between 9 o’clock in the forenoon and 5 o’clock in the afternoon, but they shall not be open on legal holidays. If the last day for filing any matter in the clerk’s office falls on a day on which such office is not open as thus provided . . . then the last day for filing shall be the next business day upon which such office is open.”

Our Supreme Court has recently concluded that, “[b]y its very terms, § 405 applies only to the ‘last day for filing’ or terminal day of the time period. . . . Our interpretation accords with the common law rule that ‘if the last day for performance of certain acts falls on a Sunday or a legal holiday, the doing of that act on the following day would be timely.’ Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 9, 363 A.2d 1386 (1975). Intervening nonterminal days in which the clerk’s office is not open are immaterial.” (Citation omitted.) Small v. South Norwalk Savings Bank, 205 Conn. 751, 757-58, 535 A.2d 1292 (1988). The plaintiff’s motion to set aside the verdict and for a new trial was, therefore, filed well beyond the five-day limit.

The plaintiff’s failure to file a timely motion to set aside the verdict limits this court to ascertaining whether there was plain error. Id., 758. After a careful review of the record and the briefs we cannot find that the trial court committed plain error.

There is no error.


author: PETERS, J.

text:
    LUTHER E. THURLOW ET AL. v. LEE ANN HULTEN ET AL.
    (AC 30398)
    Bishop, Bear and Peters, Js.

      Argued March 9
    officially released July 5, 2011

      Michael S. Bonnano, with whom, on the brief, was Paul M. Geraghty, for the appellants-cross appellees (defendants).

      Richard S. Cody, with whom, on the brief, was Jon B. Chase, for the appellees-cross appellants (plaintiffs).
   Opinion

PETERS, J.

“[T]he determination of the scope of an easement is a question of fact . . . [and the] decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 699, 923 A.2d 737 (2007). The dispositive issue in this appeal is the relationship between this fact-finding responsibility of the trial court and the procedural requirement of General Statutes § 47-31 (d) that, in an action for adjudication of a claimed interest in real or personal property, the answer of a defendant must identify “the nature and extent of the estate, interest or encumbrance which he claims . . . .” The defendants challenge the propriety of the trial court’s conclusion that they failed to comply with § 47-31 (d) and therefore were precluded from contesting the plaintiffs’ right to access an easement over the defendants’ property for all lawful purposes. We reverse the judgment of the court and remand the case for a new trial.

On June 14, 2006, the plaintiffs, Luther E. Thurlow, Anthony Denning and Steven Pelletier, filed a nine count substituted complaint, alleging, inter alia, that the defendants, Lee Ann Hulten and Linda K. Dieters, had blocked their access to an easement for which they sought to quiet title pursuant to § 47-31. As exhibits to their complaint, the plaintiffs attached two quitclaim deeds, one describing a nine acre parcel of land located in the town of Canterbury with an express easement over the defendants’ land, the other describing the parcel owned by the defendants.

On September 25, 2006, the defendants filed their amended answer. They admitted to being the record owners of the parcel of land described in the attachment to the plaintiffs’ substituted complaint but denied that their parcel was encumbered by a right-of-way in favor of the plaintiffs.

On October 30,2007, the court, Hon. D. Michael Hurley, judge trial referee, rendered judgment in favor of the plaintiffs on their claim for quiet title and for an injunction preventing the defendants from interfering with the plaintiffs’ use of the easement. The court did not address the plaintiffs’ other claims. The defendants have appealed.

The following facts are largely undisputed. On April 10, 2003, in a quitclaim deed describing and conveying a parcel of land, referred to at trial as “lot 21,” the plaintiffs’ predecessors in title conveyed to them an easement over a parcel of land owned by the defendants. The relevant language in the easement conveyed a right-of-way “as deeded to Frank H. Tillinghast by Mrs. George Bromley, Adm. of Estate of Joseph Famum and is described as follows; A right of way from my house across two lots and through-wood; and following the path thence to what is called the Rainsford Wood lot, for the purpose of going to and from said lot, cut and cart wood and timber standing on said lot and occupying said lot, always putting up bars on said lot.”

The defendants maintain that they first learned of the claimed right-of-way in 1999, when the plaintiffs’ predecessors listed lot 21 for sale with a right-of-way. The defendants’ attorney, Stuart R. Norman, Jr., wrote a letter to one of the plaintiffs’ predecessors, Leonard L. Montesi, notifying him that the defendants contested the right-of-way. Norman testified that, in response to the letter, Montesi had called Norman to say that “for the sake of being neighbors they wouldn’t drive across the property . . . .” There was evidence at trial that the plaintiffs were aware of this dispute when they purchased lot 21 in 2003.

Following the closing, Denning began using lot 21 for recreational purposes such as hunting and riding all-terrain vehicles, and for business purposes such as cutting firewood in anticipation of selling it. Denning testified that he accessed lot 21 using the pathway described in the quitclaim deed across the property of the defendants. Although the defendants attempted to block his access in various ways, Denning continued using the contested pathway to access his property until a confrontation with one of the defendants in late 2004. After that confrontation, the plaintiffs stopped using the pathway and brought the present action.

Ruling in favor of the plaintiffs on the quiet title count of their substituted complaint, the court held that the defendants’ pleading failed to conform to the requirements of § 47-31 (d), and that they therefore could not contest either the existence of, or the extent of, the plaintiffs’ use of the easement. Accordingly, the court concluded that the easement allowed the plaintiffs to use the pathway for any lawful purposes.

The defendants have appealed, claiming that the court improperly (1) held that they had failed to comply with the requirement of § 47-31 that they plead their interest in an estate contrary to that claimed by the plaintiffs, (2) enlarged the scope of the plaintiffs’ easement and (3) denied their various posttrial motions, including their motion to reargue and a motion for a new trial. We agree with the defendants’ first two claims, and, therefore, reverse the judgment of the court. In anticipation of a new trial, we also hold that the court improperly enlarged the scope of the easement to permit the plaintiffs to use their right-of-way “for all lawful purposes.” Our resolution of these issues obviates the need for us to resolve the other claims of the parties.

I

The defendants maintain that the court improperly held that they had failed to plead an estate contrary to that alleged in the plaintiffs’ substituted complaint and attached exhibits and improperly concluded that, pursuant to § 47-31 (d), this deficiency in their pleading precluded them from contesting the plaintiffs’ claimed easement at trial. We agree with the defendants.

Section 47-31 (d) provides that in actions for quiet title, “[e]ach defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived.” According to well established principles, we exercise plenary review over questions involving statutory interpretation. Discover Bank v. Mayer, 127 Conn. App. 813, 816, 17 A.3d 80 (2011). Our review is guided by General Statutes § l-2z, which requires us to rely on the plain meaning of the statutory text.

In the relevant portions of their answer, the defendants admitted that they had an ownership interest in the property described in the deed attached to the plaintiffs’ complaint, and denied the plaintiffs’ allegation that they held an unrestricted easement to use a right-of-way over the defendants’ parcel. The defendants contend that these pleadings satisfied the requirements of the statute because, in the deed attached to the plaintiffs’ complaint, the plaintiffs adequately had set forth the defendants’ interest of unencumbered ownership of the parcel of land.

At trial, over the objection of the plaintiffs, the defendants presented evidence to establish their ownership of the property so as to have a basis for contesting the plaintiffs’ claim of an easement over the property. The parties contested both the existence of the easement described in the plaintiffs’ deed and the scope of the easement established thereby. During the trial, the court expressly reserved judgment on the admissibility of the defendants’ evidence. Thereafter, in its final judgment, the court resolved this issue in favor of the plaintiffs. The defendants’ appeal challenges the validity of the court’s ruling.

“Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried .... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008). However, “[i]t is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects. ... It is our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Citations omitted; internal quotation marks omitted.) Boyles v. Preston, 68 Conn. App. 596, 603, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).

The defendants argue that if the complaint sets forth the defendants’ interest in the estate, the “answer should simply admit the allegations of the complaint, and thereupon the question of law determinative of the conflicting claims of title would be in issue.” (Internal quotation marks omitted.) Hartford-Connecticut Trust Co. v. Cambell, 95 Conn. 399, 403, 111 A. 864 (1920). Additionally, they cite Loewenberg v. Wallace, 147 Conn. 689, 166 A.2d 150 (1960), in which our Supreme Court discussed the pleading requirements of the respective parties pursuant to § 47-31: “A plaintiffs proof of an interest necessary to enable him to maintain an action under the statute is technically distinct from his proof of the facts necessary to entitle him to an affirmative adjudication in his favor. It is for this reason that a defendant may, if he chooses, put in issue whether the plaintiff has, within the purview of the allegations of the complaint, title to, or an interest in, the property sufficient to enable him to maintain the action. ... If the allegations of the complaint fail on their face to show in the plaintiff such a title to, or interest in, the property, their insufficiency may be attacked by demurrer. ... If a defendant desires to controvert their truth, he may do so by denying them in his answer.” (Citations omitted; emphasis added.) Id., 693.

The plaintiffs do not contest seriously the defendants’ argument that the pleadings in this case must be read as a whole, so that the plaintiffs’ pleadings inform the inferences to be drawn from the defendants’ pleading denying the existence of the easement. They do, however, challenge the sufficiency of the defendants’ pleadings to raise the issue of whether the plaintiffs have overused their easement on the defendants’ pathway. “The issue of [reasonable use] is a question of fact to be determined on a case by case basis, considering all the relevant circumstances, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting.” Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983). The plaintiffs maintain that the defendants’ denial of the existence of the plaintiffs’ easement did not give notice that the defendants would contest the scope of the plaintiffs’ easement. For this reason, they ask us to sustain the trial court’s procedural ruling in their favor.

In support of their strict construction of § 47-31 (d), the plaintiffs rely on Loewenberg v. Wallace, supra, 147 Conn. 689, and Wynnick v. Allen, Superior Corut, judicial district of Ansonia-Milford at Milford, Docket No. CV-00-00708047S (July 1, 2002). The plaintiffs cite the court’s statement, in Loewenberg, that the defendants, who were claiming adverse possession of a disputed strip of land, were required to “describe it, and the manner in which [they] acquired it, in [their] answer.” Loewenberg v. Wallace, supra, 698. In its ruling, however, the Loewenberg opinion did not rely on the pleadings but addressed the merits of the adverse possession claim that was in dispute. Id., 699. In Wynnick, the court held that a defendant who, in his answer, had failed to state any interest in the property at issue, was precluded by § 47-31 from pursuing a claim of adverse possession at trial. We are not persuaded that either of these precedents is enlightening under the circumstances of this case.

The question that remains, therefore, as a matter of first impression, is whether the plaintiffs were entitled, in this case, as a matter of proper pleading under § 47-31, to express notice in the defendants’ answer that the defendants would contest the propriety of their use of their easement. Our Supreme Court repeatedly has enjoined us to eschew applying the law in such a hyper-technical manner that we would elevate form over substance. Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). In the present case, the pleadings, taken as a whole, advised the plaintiffs that the defendants unequivocally claimed ownership of an -unencumbered parcel of land, as described in the deed attached as an exhibit to the plaintiffs’ complaint. We hold that, by expressly contesting the existence of the easement claimed by the plaintiffs, the defendants impliedly informed the plaintiffs and the court that they were reserving their right to contest the scope of the easement.

We hold, therefore, that the trial court improperly concluded that the defendants failed to plead an estate contrary to that of the plaintiffs’ alleged easement.

The judgment of the court in favor of the plaintiffs must be set aside and the case remanded for a new trial.

II

In light of the need for a retrial, we have decided to provide guidance regarding another underlying issue of law that this case presents. The defendants claim that, in addition to improperly finding that they had failed to plead an estate contrary to that alleged in the plaintiffs’ complaint, the court improperly enlarged the scope of the easement to permit the plaintiffs to use their right-of-way “for all lawful purposes.” We agree with the defendants.

“In determining the scope of an express easement, the language of the grant is paramount in discerning the parties’ intent. In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered.” Leposky v. Fenton, 100 Conn. App. 774, 778, 919 A.2d 533 (2007).

The text of the plaintiffs’ deed provided for a right-of-way “for the purpose of going to and from said lot, cut and cart wood and timber standing on said lot and occupying said lot ... .” The defendants maintain that the language of the easement and the plain meaning of the terms therein must be read as a restriction on the activities in which the plaintiffs may engage in then-use of the right-of-way. By contrast, the plaintiffs assert on appeal, as they did at trial, that they are free to use the right-of-way for any purpose. Although, at trial, they presented evidence concerning their own use of the easement, they presented no evidence to show that the parties intended to deviate from the plain meaning of the terms of the express easement as alleged in the plaintiffs’ complaint.

For additional support of the trial court’s ruling, the plaintiffs argue that, because the wording of the easement was ambiguous, the court was free to interpret their easement by a reasonable use standard. We note, however, that the court did not identify any ambiguity in the terms of the easement and did not offer any justification for its departure from the plain language of the easement. In light of this record, we reverse the court’s conclusion that the scope of the easement, if one exists, permits the plaintiffs’ use of the defendants’ pathway for all lawful purposes.

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

In this opinion the other judges concurred.

       In addition to the count for quiet title, the complaint also contained counts for easement by prescription under claim of title, easement by prescription, injunction for obstruction of the right-of-way, trespass, negligence, conversion, tortious interference with business relations and tortious interference with contract.

       We note that the plaintiffs characterize this letter as contesting the very existence of any pathway on the defendants’ land. At trial, however, the defendant Hulten testified that the pathway did exist at the time the letter was written, but that it had never existed for purposes of a right-of-way across the land.

       There is no claim that the right-of-way was the plaintiffs’ only access to lot 21. The plaintiffs, therefore, are not claiming to have an easement by necessity.

       The plaintiffs have cross appealed, claiming that the court improperly denied their claim for monetary damages. In light of our conclusion on the defendants’ appeal, we do not reach this claim.

       On November 15, 2007, shortly after rendering judgment in this case, Judge Hurley died. On November 16, 2007, the defendants filed a motion to reargue, and on November 27, 2007, they filed a motion for a new trial. On September 11, 2008, the court, Martin, J., denied both motions.
      We note that the plaintiffs have raised a final judgment issue, arguing that the notice of the denial of a motion for a new trial was sent after the notice of the denial of the motion to reargue from which the defendants appealed, and no new appeal was taken. The plaintiffs argue that, because the motion for a new trial could have rendered the judgment appealed from ineffective, the defendants’ appeal from the earlier motion to reargue was not from a final judgment. On February 25, 2009, this court denied a motion to dismiss asserting the same grounds raised in the plaintiffs’ appellate brief. As no new grounds have been raised, we decline to address the plaintiffs’ final judgment argument.

       Although the court also found that, at trial, the plaintiffs had presented evidence in support of their claimed right to an easement over the defendants’ property, the court’s judgment in their favor was based on the applicability of § 47-31 (d).

       The plaintiffs also contest the defendants’ right to challenge the court’s determination of the scope of the easement. Even if we agreed with them that the defendants may not now assert an alternative to what was in the pleadings, that conclusion would not prevent the defendants from challenging the court’s interpretation of the plain meaning of an express easement. Even if the defendants could be found to have admitted to the existence and the validity of the plaintiffs’ easement, such an admission would not authorize the court, in determining the scope of the easement, to disregard express limitations in the easement’s stated terms.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. JUAN ESTEBAN CHAVARRO
    (AC 32074)
    Gruendel, Robinson and Pellegrino, Js.
    Argued March 22
    officially released July 5, 2011

      Elio C. C. Morgan, special public defender, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Steven G. Weiss, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Juan Esteban Chavarro, appeals from the judgment of the trial court denying his motion, filed pursuant to General Statutes § 54-lj, to vacate the judgment and to withdraw his plea of guilty in connection with the charge of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). On appeal, the defendant claims that the court abused its discretion in denying his motion because (1) prior to accepting his plea, it did not inquire as to whether his attorney had advised him of the deportation consequences of his plea, (2) after accepting his plea, it made statements that rendered the § 54-lj advisement ambiguous, and (3) it failed to conduct an evidentiary hearing on his motion sua sponte. In addition, the defendant claims that he was denied the right to a fair trial. We dismiss the appeal as moot.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant is a Colombian national. In December, 1997, immigration officials granted him permission to reside in the United States until June 22,1998. After June 22,1998, the defendant remained in the United States illegally.

On March 1, 2007, the police executed a search and seizure warrant for the defendant’s residence in Stamford and seized twenty-five plastic bags of marijuana, containing approximately nineteen grams. On June 7, 2007, the defendant entered a plea of guilty to the charge of possession of marijuana with intent to sell. Following a plea canvass, the court found that the plea was voluntary and understandingly made with the assistance of competent counsel. Thereafter, it accepted the plea and found the defendant guilty of possession of marijuana with intent to sell. In accordance with a plea agreement, the defendant was sentenced to three years of probation.

On or about July 1,2009, the Department of Homeland Security (department) issued to the defendant a notice to appear. The notice provided that the department had commenced removal proceedings against the defendant pursuant to the Immigration and Nationality Act. See 8 U.S.C. § 1101 et seq. In the notice, the department charged that the defendant was subject to removal from the United States because (1) he had remained in the United States illegally and (2) he had been convicted of possession of marijuana with intent to sell. On October 28, 2009, the United States Immigration Court (immigration court) ordered the defendant deported to Colombia. The order did not set forth the basis for the court’s decision.

On November 3, 2009, the defendant filed a motion to vacate the judgment and to withdraw his plea of guilty, but he did not request an evidentiary hearing on the motion. After hearing oral arguments from the parties, the trial court denied the motion, and this appeal followed.

Following oral arguments before this court, we sua sponte ordered supplemental briefs to address the issue of whether the present appeal was moot, pursuant to our Supreme Court’s decision in State v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006). The defendant argues that Aquino does not render the present appeal moot because there is evidence in the record that establishes a causal connection between his deportation and the guilty plea. The state, on the other hand, argues that the appeal is moot because the defendant has failed to produce any evidence demonstrating that his guilty plea was the sole reason for his deportation, as required by Aquino. We agree with the state.

The issue of mootness may be raised by this court sua sponte because it implicates our subject matter jurisdiction and, therefore, is a threshold matter that must be resolved. See, e.g., Zoll v. Zoll, 112 Conn. App. 290, 297-98, 962 A.2d 871 (2009). “In determining mootness, the dispositive question is whether a successful appeal would benefit . . . [the] defendant in any way. ... In other words, the ultimate question is whether the determination of the controversy will result in practical relief to the complainant.” (Citation omitted; internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691, 899 A.2d 586 (2006).

In State v. Aquino, supra, 279 Conn. 294-95, the defendant, an immigrant who had entered this country illegally, pleaded guilty to one count of attempt to commit assault in the second degree in violation of General Statutes §§ 53a-60 (a) (1) and 53a-49 (a) (2), and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. Prior to sentencing, the defendant filed a motion to withdraw his guilty plea, which the trial court denied. Id., 297. The defendant appealed the denial of his motion to this court, and, while the appeal was pending, he was deported. Id.; State v. Aquino, 89 Conn. App. 395, 400, 873 A.2d 1075 (2005), appeal dismissed, 279 Conn. 293, 901 A.2d 1194 (2006).

With regard to the issue of mootness, this court concluded initially that, as a result of the defendant’s deportation, it could provide the defendant with little practical relief. State v. Aquino, supra, 89 Conn. App. 400. Thereafter, the court considered whether it could retain jurisdiction over the defendant’s appeal pursuant to the collateral consequence doctrine. Id. The defendant argued that “as a collateral consequence of the denial of his motion to withdraw his plea, his ability to petition for naturalization [would] be gravely impaired.” Id., 401. After careful consideration, this court agreed and determined that the defendant’s contention was “a likely consequence,” rather than “mere speculation.” Id. Accordingly, this court concluded that “subject matter jurisdiction [was] not a bar to the defendant’s . . . appeal.” Id.

On appeal from that decision, our Supreme Court revisited the issue of mootness and concluded that the appeal was moot. In reaching that conclusion, the court provided: “The defendant did not produce any evidence at the hearing on his motion to withdraw his guilty plea—indeed, he did not even claim—that he would be deported solely as the result of his guilty plea. . . . There is no evidence in the record as to the reason for his deportation. If it was not the result of his guilty plea alone, then this court can grant no practical relief . . . .” (Emphasis added.) State v. Aquino, supra, 279 Conn. 298. On the basis of that conclusion, the court dismissed the appeal.

In light of our Supreme Court’s decision in Aquino, we conclude that the present appeal is moot. Prior to filing the motion at issue in the present case, the immigration court ordered the defendant deported to Colombia. As the record indicates, the defendant was subject to deportation for two reasons: (1) his illegal immigration status; and (2) his conviction for possession of marijuana with intent to sell. The immigration court, however, did not set forth in its order the reason, or reasons, for the defendant’s deportation. Furthermore, the defendant has failed to produce any evidence from which it could be determined on what basis the court ordered the defendant deported. Consequently, we are unable to discern whether the defendant was deported because of his illegal immigration status, his conviction or both. Therefore, because the defendant has failed to establish that his deportation was “the result of his guilty plea alone”; id.; we are unable to provide the defendant with any practical relief and, accordingly, the appeal is moot.

The defendant nevertheless argues that we may retain jurisdiction over his appeal pursuant to the collateral consequences doctrine. We disagree.

Under the collateral consequences doctrine, this court may retain jurisdiction and consider a claim that otherwise has been rendered moot “when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur.” (Internal quotation marks omitted.) Williams v. Ragaglia, 261 Conn. 219, 226, 802 A.2d 778 (2002). “Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. . . . Where there is no direct practical relief available from the reversal of the judgment . . . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future. The reviewing court . . . determines, based upon the particular situation, whether, the prejudicial collateral consequences are reasonably possible.” State v. McElveen, 261 Conn. 198, 208, 802 A.2d 74 (2002).

The record reveals that the defendant has a wife and a child, both of whom are citizens of the United States. According to the defendant, as a prejudicial collateral consequence of the denial of his motion, he is permanently barred from applying for a green card or from reentering the United States. The defendant, however, has failed to produce any evidence that, in the absence of his conviction, he would be allowed to apply for a green card or reenter the United States. In the absence of any such evidence, it is merely conjecture that the defendant will be subject to the claimed prejudicial collateral consequences as a result of his conviction alone. See State v. Aquino, supra, 279 Conn. 298 n.3 (rejecting collateral consequences argument under similar facts).

The appeal is dismissed.

In this opinion the other judges concurred.

       In relevant part, the notice provided: “[I]t is charged that [the defendant is] subject to removal from the United States pursuant to the following provision(s) of law:
      “Section 237 (a) (1) (B) of the Immigration and Nationality Act (Act), as amended, in that after admission as a nonimmigrant under Section 101 (a) (15) of the Act, [the defendant has] remained in the United States for a time longer than permitted, in violation of this Act or any other law of the United States.
      “Section 237 (a) (2) (A) (iii) of the Immigration and Nationality Act (Act), as amended, in that, at any time after admission, [the defendant has] been convicted of an aggravated felony as defined in Section 101 (a) (43) (B) of the Act, an offense relating to the illicit trafficking in a controlled substance, as described in section 102 of the Controlled Substances Act, including a drug trafficking crime, as defined in section 924 (c) of Title 18, United States Code.
      “Section 237 (a) (2) (B) (i) of the Immigration and Nationality Act, as amended, in that, at any time after admission, [the defendant has] been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulations of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. [§] 802), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.”

       As the court noted, the defendant may have been deported based on his guilty plea or his immigration status. State v. Aquino, supra, 279 Conn. 298 n.2.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. ANTONIO MILNER
    (AC 31572)
    Beach, Alvord and Schaller, Js.

      Argued February 3
    officially released July 5, 2011

      David J. Reich, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris Pelosi, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Antonio Milner, appeals from the judgment of the trial court finding him in violation of probation in violation of General Statutes § 53a-32. The defendant claims that (1) there was insufficient evidence for the court to find by a preponderance of the evidence that a probation violation had occurred, (2) the court discouraged him from exercising his right to allocution during the dispositional phase of the probation revocation hearing and (3) the court abused its discretion when, during the dispositional phase, it revoked his probation and sentenced him to forty-eight months imprisonment. We dismiss the appeal insofar as it relates to whether the defendant violated the terms of his probation and otherwise affirm the judgment of the trial court.

The following facts and procedural history are relevant. In 1995, the defendant was convicted, following a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 and was sentenced to fifteen years imprisonment, execution suspended after ten years, followed by three years probation. On August 24, 2005, the defendant was released from prison and began serving his probationary term. Upon his release from prison, the defendant signed a form listing his conditions of probation, which included, inter alia, the general terms that he not violate any criminal laws and that he report as directed by his probation officer.

The defendant’s sentence included a term of three years probation, which ran from August 24, 2005, to August 24, 2008. On January 28, 2008, the defendant was arrested and charged with unsafe backing of a motor vehicle in violation of General Statutes § 14-243, reckless driving in violation of General Statutes § 14-222, failure to obey an officer’s signal in violation of General Statutes § 14-223 (b), operating a motor vehicle under a suspended license in violation of General Statutes § 14-215, larceny in the second degree in violation of General Statutes § 53a-123, interfering with a police officer in violation of General Statutes § 53a-167a (a), criminal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal possession of a pistol in violation of General Statutes § 53a-217c. Additionally, the defendant was charged with violating the terms of his probation.

At the hearing on the violation of probation charges, the court apparently credited the following testimony. Anthony Niglio, the defendant’s probation officer, testified that the defendant was scheduled to meet him at the office of adult probation on January 18, 2007. Prior to that date, however, Niglio took paternity leave. He testified that because he was not at work on January 18,2007, he had no knowledge of whether the defendant reported on that date. Probation officer Tiana Armstrong testified that the defendant’s case was assigned to her on January 31, 2007. She testified that there was no indication in the defendant’s file that he reported on January 18,2007. Armstrong testified that as a result, on February 22, 2007, she mailed a letter to the address that the defendant had provided, asking him to report to her on April 3, 2007. The defendant did not report on that date. On June 15, 2007, Armstrong attempted to contact the defendant by telephone using the number he had provided as his home telephone number. Armstrong received a recording indicating that the number was out of service. On September 18, 2007, Armstrong again placed a telephone call to the defendant’s home number and again received a message that the number was out of service. She then telephoned the defendant’s cell phone number and was directed to voice mail by a female voice. Armstrong left a detailed message stating that the defendant was in “violation status” because he had failed to report and asking the person who created the voice prompt to tell the defendant to contact her as soon as possible or to contact her if the person knew his whereabouts.

When Armstrong did not receive a response from the defendant, she tried to contact the defendant using both telephone numbers on October 16,2007. The home telephone number registered as “out of service,” and she did not leave an additional voice mail message on the defendant’s cell phone because Armstrong was unsure of the identity of the woman who created the voice prompt.

On October 25, 2007, Armstrong mailed a certified letter to the defendant at his home address, directing the defendant to report in person to her on October 31, 2007. The letter was accepted at the defendant’s home address. On January 16, 2008, Armstrong again telephoned the defendant’s home number. The telephone rang and a male answered. He said that he was the defendant’s brother. The person said that the defendant was not there and that he did not know where the defendant was. He agreed to give the defendant a message from Armstrong that the defendant was in violation of his probation for not reporting.

Sean Spell, a sergeant with the Hartford police department, testified that on January 18, 2008, he was alerted to an “active burglary” in the Frog Hollow section of Hartford. As Spell was traveling toward the scene, he received a radio message from a responding officer that two vehicles were chasing each other at a high rate of speed northbound toward Allen Place. Spell positioned his police cruiser on Allen Place and waited for the cars to arrive. Spell observed a Lexus with heavily tinted windows traveling at a high rate of speed on Allen Place, and he pursued the vehicle. At some point, the defendant, who was driving the Lexus, was confronted with heavy traffic. The defendant then drove the Lexus in reverse at a high rate of speed down Allen Place and toward Spell’s cruiser. Spell activated the lights on his cruiser and drove into a driveway to avoid being hit. Another cruiser arrived, in which Officer Frank Verrengia and other officers were riding. Both cruisers pursued the Lexus. While the Lexus was still in reverse, the defendant crashed it into a tree. The defendant revved the engine, and the tires spun in an embankment of snow.

Spell blocked the Lexus with his cruiser. Spell and the other officers drew their guns and surrounded the Lexus, ordering the defendant to turn off the engine and open the doors. The occupants of the Lexus ignored these orders. Spell observed “a lot of movement” in the Lexus. It looked as though someone was trying to conceal or to grab something, but he was unable to discern precisely what was happening because of the dark tint of the windows. Spell ordered the other officers to smash the windows. Verrengia shouted, “10-83,” which was a code for the presence of a gun, and Spell noticed a gun in the center console. The officers physically had to remove the defendant and the other occupant from the Lexus. The officers later learned that the Lexus was reported to have been stolen. Verrengia testified similarly. He added that when he shouted, “10-83,” it appeared as if the driver was reaching toward the weapon.

The defendant does not dispute that he was the driver of the Lexus. The defendant, however, provided the court with a different version of events, which the court did not credit. The court found that the defendant had violated the terms and conditions of his probation and that his probation should be revoked. The corut imposed a total effective sentence of forty-eight months imprisonment. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the following standards. “[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked.” (Internal quotation marks omitted.) State v. Fowler, 102 Conn. App. 154, 165, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).

I

The defendant first claims that there was insufficient evidence for the court to find by a preponderance of the evidence that a probation violation occurred. Before we address the merits of the defendant’s claim, we must resolve a preliminary issue raised by the state. The state argues that we should dismiss as moot the defendant’s claims insofar as they challenge the court’s finding of a violation of probation. We agree with the state.

“Mootness implicates a court’s subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review. . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute .... [T]he requirement of an actual controversy ... is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . . Moreover, [a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; internal quotation marks omitted.) State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008). “We have long held that because [a] determination regarding a . . . court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) State v. Alexander, 269 Conn. 107, 112, 847 A.2d 970 (2004).

The state argues that the defendant’s challenge to the finding of violation of probation is moot because on March 24, 2010, the defendant pleaded guilty, pursuant to the Alford doctrine, to one of the underlying criminal charges, namely, the offense of carrying a pistol without a permit, and has not filed a timely direct appeal. The time for filing an appeal has long expired. The defendant argues that his challenge to the court’s findings during the adjudicatory phase is not moot because, during the pendency of this appeal, he filed a petition seeking habeas corpus relief from the underlying criminal conviction. The defendant contends that the habeas petition, which collaterally attacks the underlying criminal conviction, has revived the controversy as to the underlying conviction. We agree with the state.

Our jurisprudence holds quite clearly that where a defendant’s probation has been found to have been violated on the ground that he had engaged in criminal activity during the period of his probation and, after the judgment of violation of probation, he pleads guilty to a crime arising from the same activity, there is no longer a live controversy as to whether he engaged in the criminal activity, and any appeal from the violation of probation judgment on that issue is mooted. See State v. Singleton, 274 Conn. 426, 439, 876 A.2d 1 (2005). An intervening conviction after trial of a crime arising from the same activity likewise moots the issue in an appeal from the judgment of violation of probation. State v. T.D., supra, 286 Conn. 364. If the criminal conviction has been appealed, and the appeal is pending at the time of the appeal from the probation hearing, then a five controversy still exists and the issue on appeal in the probation context is not mooted. Id., 366-67. In State v. T.D., supra, 366-67, our Supreme Court held: “If a defendant has been convicted of criminal conduct, following either a guilty plea, Alford plea or a jury trial, and the defendant does not challenge that conviction by timely appealing it, then the conviction conclusively establishes that the defendant engaged in that criminal conduct. An appeal challenging a finding of violation of probation based on that conduct is, therefore, moot. When, however, the defendant has pursued a timely appeal from a conviction for criminal conduct and that appeal remains unresolved, there exists a live controversy over whether the defendant engaged in the criminal conduct, and an appeal challenging a finding of violation of probation stemming from that conduct is not moot.”

Our jurisprudence has not answered the question whether a collateral attack on the intervening criminal conviction has the same effect as a direct appeal. Although cogent arguments exist on both sides of the question, we hold that a collateral attack on the intervening criminal conviction does not serve to revive the controversy such that mootness is averted. Several reasons support this conclusion. First, the unambiguous language of cases such as State v. T.D., supra, 286 Conn. 353, speaks only in terms of direct appeal: “If a defendant has been convicted of criminal conduct, following either a guilty plea, Alford plea or a jury trial, and the defendant does not challenge that conviction by timely appealing it, then the conviction conclusively establishes that the defendant engaged in that criminal conduct. An appeal challenging a finding of violation of probation based on that conduct is, therefore, moot.” Id., 366. In the course of discussing precedents, the court in State v. T.D., supra, 353, stressed the importance of the appeal in assessing finality: “ [In prior cases] the period in which to appeal from the judgment in the underlying criminal matter had long since expired, indicating that no appeal was forthcoming. Accordingly, each defendant’s criminal conviction was final and unchallenged, thus making it clear that any controversy over whether he had engaged in the conduct underlying his probation violation unquestionably had concluded and that the conviction was so definite as to establish conclusively that a violation of probation had occurred.” (Emphasis added.) Id., 365.

Second, policy reasons underlying the rule favor a bright line demarcation. Our Supreme Court has stated that the mootness consideration underlying the bar is not whether practical relief can be afforded, but, rather, whether a live controversy exists as to whether the defendant committed the criminal conduct. See State v. Singleton, supra, 274 Conn. 439. If no appeal is taken, or if a direct appeal is decided adversely to the defendant, the conviction is, for jurisprudential purposes, final. State v. T.D., supra, 286 Conn. 365. There is no time limitation, other than considerations of custody and collateral consequences, on the filing of a petition seeking habeas corpus relief, and, additionally, several years can pass between the filing of a claim for habeas corpus relief and its disposition.

Finally, this court in State v. Mapp, 118 Conn. App. 470, 984 A.2d 108 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010), was presented with a situation much like that in the present case. The defendant in Mapp had been found to have violated terms of his probation by committing a criminal act and subsequently pleaded guilty to a crime based on the same conduct as that underlying the violation of probation. While the appeal from the judgment of violation of probation was pending, the defendant apparently filed a habeas corpus petition attacking the guilty plea. This court, though not expressly addressing the issue, held that the issue as to whether there was sufficient evidence to support the finding of violation of probation was nonetheless moot. We stated that “[t]o the extent that the defendant challenges the validity of his guilty plea, we decline to address his claim because the guilty plea cannot be challenged in this forum.” Id., 477 n.4. The dissent in Mapp suggested that the court should have requested briefs from the parties to address the issue of whether the habeas action revived the controversy. Id., 479-80 (Berdon, J., dissenting).

In essence, the Singleton doctrine is one of policy. Classical mootness does not apply: the reviewing court can afford practical relief, and the parties have an actual dispute as to whether sufficient evidence was provided at the violation of probation hearing. Our Supreme Court simply has decided that if one is convicted of a crime, he may not claim that in a prior violation of probation hearing regarding the same course of conduct, there was insufficient evidence to prove the violation. We reinforce that principle today.

II

The defendant next claims that the court discouraged him from exercising his right to allocution during the dispositional phase of the probation revocation hearing. We conclude that the court did not abuse its discretion.

A defendant has the right under our rules to address the court at the time of sentencing in the dispositional phase of a probation revocation hearing. State v. Strickland, 243 Conn. 339, 703 A.2d 109 (1997). Practice Book § 43-10 (3) provides that before imposing a sentence in a criminal case after a finding of guilty “[t]he judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence.”

Following the close of evidence and during final argument of defense counsel on the adjudicatory question of whether the defendant violated the terms of probation, the following colloquy occurred:

“The Court: If we were talking about just somebody who lost touch at the end of probation because he didn’t call in and people didn’t give him messages, you know, after a period of good behavior or a short period of incarceration he’d be back on the street. So, we’re talking about the gun in the car.

“[Defense Counsel]: Yeah, Your Honor, again, I think that it’s a matter of credibility. I mean if—you know the environment in Hartford is such that it’s a dangerous place, and I think that if [the defendant] believed that he was really being chased by somebody who meant to do him no good his reaction is understandable.

“The Court: Let me ask you this. I heard that the sergeant saw the car speeding down the road and as he observed it, it went down a road which was blocked and then he came back and that the second car, the one driven by the uniformed officer with the Crown Victoria, pulled in behind that car. So, what car was chasing [the defendant] when originally observed by the police? I can’t reconcile the two stories.

“[Defense Counsel]: I don’t know the answer, Your Honor, but, you know—

“The Court: See, that’s . . . where his story falls apart.

“The Defendant: Not my story, their story. . . .

“[Defense Counsel]: It depends who you believe, I guess, Your Honor.

“The Defendant: Excuse me. Can I say something?

“The Court: No. You testified. That’s it.”

The court stated that it found the defendant in violation of probation. The court then turned to the dispositional phase and both counsel offered arguments. At no time did the defendant, either himself or by counsel, request the right to speak personally during the dispositional phase.

The defendant argues that the court’s statement, “No. You testified. That’s it,” prevented him from exercising his right to allocution during the dispositional phase. He contends that although the court’s statement occurred during the adjudicatory phase, it occurred immediately prior to the dispositional phase of the hearing. As such, the defendant argues, the clear implication of the court’s response was that the defendant did not have any further right to speak during the remainder of the trial.

The defendant’s claim is unpreserved. The defendant seeks review of his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant’s claim fails under the second prong. Although the defendant characterizes the right of allocution as being of constitutional dimension, “[t]he right of allocution in Connecticut derives from a rule of practice. There is no Connecticut authority that has recognized a constitutional right of allocution. See State v. Strickland, [supra, 243 Conn. 340 n.1].” State v. Hooks, 80 Conn. App. 75, 85 n.6, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003). The right of allocution is not a right guaranteed by the federal constitution but rests instead on the traditions of the common law. State v. Hedman, 62 Conn. App. 403, 409, 772 A.2d 603 (2001), rev’d on other grounds, 261 Conn. 390, 802 A.2d 842 (2002).

The defendant also requests review under the plain error doctrine. See Practice Book § 60-5. “[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . [W]e recently clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . We made clear . . . that this inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal.” (Citation omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009).

We conclude that the defendant cannot prevail under the plain error doctrine because the trial court did not commit error, much less plain error. It is clear from the context that the court was questioning how it could reconcile the different versions of events presented to it during the adjudicatory phase. The defendant wanted to expand on his testimony, despite the fact that his testimony had concluded and evidence was closed. The court did not permit the defendant to testify further. After finding that the defendant had violated probation, the court clearly indicated that it was moving on to the dispositional phase. The defendant did not request to exercise his right to allocution during this phase. There is nothing in the record to indicate that the court discouraged the defendant from exercising his right to allocution during the dispositional phase.

The defendant also requests that we exercise our supervisory powers over this claim. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 762 n.28, 859 A.2d 907 (2004). This case does not present the type of extraordinary circumstances for which our supervisory powers are reserved. Accordingly, we decline to exercise our supervisory power to review this claim.

Ill

The defendant last claims that the court abused its discretion when, during the dispositional phase, it revoked his probation and sentenced him to forty-eight months imprisonment. We disagree.

“The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004). “On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Internal quotation marks omitted.) State v. Mapp, supra, 118 Conn. App. 478.

During the dispositional phase, the court made the following findings: “In isolation, I could believe one of his contentions, but these are a series of hard to believe contentions by a man who’s lived his whole life . . . not observing the rules. Like I said, he didn’t know he was in violation of status, he never got a letter, never got a message, never saw the gun, didn’t know the car was stolen, thought ... he was being chased by somebody other than the police. All these things in isolation, if taken separately, are hard to believe. All together, I mean, it’s . . . like a fairy tale. It’s a fantasy. The claims of the state are consistent with the way he’s lived his whole life. He’s always been involved in criminal activity, and he probably always is going to be involved in criminal activity based on his record. The most logical explanation of his operation that night is that he knew a gun was in the car and he was involved in some kind of illegal activity with [Bryon Womack, the passenger in the car with him]. That makes the most sense to me. Not this other nonsense that he tried to sell on the [witness] stand here.” The court later noted that the defendant was facing a potential five year sentence, but reasoned that it was going to impose a slightly lesser sentence of forty-eight months because the defendant “got a hefty sentence for the original incident.”

The court based its finding of a violation of probation on the defendant’s failure to report and constructive possession of the gun in the Lexus, among other things. The defendant argues that the court exceeded its authority in imposing the sentence because the sentence was based on the erroneous finding that he knew there was a gun in the Lexus. As stated in part I of this opinion, there was evidence that the defendant, who was driving the Lexus at the time, made furtive movements and leaned over the center console, in which the gun was located. The court could have found by a preponderance of the evidence that the defendant constructively possessed the gun. Accordingly, the court did not err by taking into consideration the defendant’s constructive possession of the gun when revoking the defendant’s probation and imposing a forty-eight month sentence.

The court did not abuse its discretion when it concluded that the rehabilitative and the beneficial aspects of probation were not being met. The court noted that the defendant, who was forty-seven years old and who had multiple felony convictions, was found in illegal possession of a firearm and was involved in criminal activity with Womack. In imposing the sentence, the court mitigated the potential five year sentence by taking into account the defendant’s lengthy sentence for the underlying burglary conviction.

On the basis of the whole record, we conclude that the court properly considered whether the beneficial aspects of probation were being served and, therefore, did not abuse its discretion by revoking the defendant’s probation and reinstating a portion of the remainder of the defendant’s original sentence.

The appeal is dismissed as moot only as to the claim that there was insufficient evidence to establish that the defendant violated his probation. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       An appeal maintains the controversy, while a habeas corpus action at most arguably revives the controversy.

       The defendant sought to speak during the a<(judicatory phase but never sought to exercise his right to allocution during the dispositional phase. Under these circumstances, his claim is unpreserved.

       Under State v. Golding, supra, 213 Conn. 239-40, “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.” (Emphasis in original.)

       When finding the defendant in violation of probation, the court stated: “I don’t accept his explanation of losing contact with probation. He knew he was supposed to report. He didn’t report. I don’t believe that he didn’t know that he was considered in violation. You know, he says he never got a letter, never got a message, never saw the gun, didn’t know the car was stolen. And his explanation of the events just—I don’t accept his explanation of the reckless operation. The reckless operation was in progress when the police arrived on the scene. And it’s more consistent with a person who is involved in some kind of illegal activity and knows that they’re going to get caught and knows that there’s a gun in the car. That’s what I find. So, he’s in violation of his probation.”