author: Heiman, J.

text:
    William T. Evans v. Commissioner of Correction
    (12887)
    Laveky, Heiman and Schallek, Js.
    Argued January 11
    decision released May 2, 1995

      Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (respondent).
   Heiman, J.

The petitioner appeals from the judgment of the habeas court dismissing his habeas corpus petition. On appeal, the petitioner claims that (1) certain factual findings of the habeas court were unsupported by the evidence presented at the habeas hearing, (2) the findings of the habeas court that the petitioner was not prejudiced by the actions of counsel were unsupported by the evidence, and (3) the habeas court improperly declined to review the petitioner’s claim that his conviction was rendered in violation of due process. We affirm the judgment of the habeas court.

The following brief history of the case is necessary for a resolution of this appeal. On September 30,1983, a man approached the courtesy booth of the Finast supermarket in New London. He displayed a gun and demanded that a brown paper bag be filled with money. After receiving $1950 in $1 bills, the robber fled from the scene in a two-tone yellow car. Store employees provided police with a description of the robber’s physical features and clothing.

Constable Bernard Douton of the Old Lyme police department was patrolling the area near the Finast store at the time of the robbery. He received a description over the police radio of the suspect and the car in which the suspect had fled the scene. Upon sighting a car and driver meeting the description, Douton signaled for the driver to pull over. The driver refused and Douton pursued the driver until the driver lost control of his vehicle and hit a stone wall. The driver then exited the vehicle and fled on foot, eluding Douton.

A search of the car abandoned by the suspect revealed that the car was owned by the petitioner’s uncle and had been reported stolen from Philadelphia. The petitioner’s fingerprints were found on a sales receipt and a Bradlees bag found in the car and his palm print was identified on the counter of the courtesy booth in the store that had been robbed.

The petitioner was thereafter arrested and charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and with being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). He was convicted after separate jury trials on each count and sentenced to twenty-five years imprisonment. The petitioner’s conviction was upheld by our Supreme Court in State v. Evans, 200 Conn. 350, 511 A.2d 1006 (1986).

On February 10,1993, the petitioner filed a petition for a writ of habeas corpus claiming that his conviction and resultant imprisonment were obtained in violation of his constitutional rights to due process and effective assistance of counsel. After trial, the habeas court dismissed the petition for a writ of habeas corpus and this appeal followed.

I

The petitioner first claims that the habeas court’s dismissal of his petition was based on findings of fact that were not supported by the evidence. Specifically, the petitioner claims that the habeas court’s finding that the sales receipt, which was introduced as evidence at the criminal trial, had been attached to the bag that contained the stolen money is in direct contradiction to the evidence presented at the habeas hearing.* We do not agree that the habeas court’s finding of fact was clearly erroneous.

The following facts are necessary for the resolution of this issue. At the criminal trial, the state introduced into evidence a sales slip from a Bradlees store in East Haven. Testimony at trial established that the sales slip and the brown Bradlees bag to which it was attached had been found in the vehicle chased by Douton and abandoned by the suspect. No testimony was introduced regarding the contents of that bag. Fingerprint analysis by the Federal Bureau of Investigation revealed that the petitioner’s fingerprints were on the sales slip.

At the hearing on the petitioner’s habeas petition, various witnesses testified that the sales receipt bearing the petitioner’s fingerprints was attached to the bag in which the stolen money was found. During closing argument, counsel for the respondent contended that the significance of the sales slip rested not on the date that it was issued, but on the fact that it was attached to the bag that contained the stolen money. The petitioner did not refute this contention before the habeas court.

In its memorandum of decision, the habeas court repeatedly referred to the sales slip bearing the petitioner’s fingerprint as having been attached to the bag in which the stolen money was found. The petitioner now claims that this factual finding is in direct contradiction of the evidence.

In order to evaluate the petitioner’s claim, “[w]e first consider our scope of review. In a habeas corpus appeal, this court may not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Veal v. Warden, 28 Conn. App. 425, 428, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992); Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). [W]e are called upon to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). McKnight v. Commissioner of Correction, 35 Conn. App. 762, 765, 646 A.2d 305, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994).” (Internal quotation marks omitted.) Ranciato v. Nelson, 36 Conn. App. 678, 679-80, 654 A.2d 358 (1995); see also Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

Upon review of the transcript of the habeas proceedings and of the whole record, we cannot say that the habeas court’s finding that the sales slip was attached to the bag that contained the money was clearly erroneous. Contrary to the petitioner’s assertions, no evidence was submitted at his criminal trial as to the contents of the Bradlees bag to which the sales slip was attached. Store employees testified that the robber presented a brown paper bag and requested that the bag be filled with money. The Bradlees bag introduced into evidence was also brown. No testimony established whether the bag requested to be filled and the Brad-lees bag were one and the same. Without evidence to the contrary, we cannot say that the findings of the habeas court that the sales slip bearing the petitioner’s fingerprints was attached to the bag containing the stolen money was clearly erroneous.

II

The petitioner next claims that the habeas court’s legal conclusions that he was not denied effective assistance of trial and appellate counsel were not supported by the evidence presented at the habeas hearing. The petitioner asserts that the habeas court improperly determined that he was not prejudiced by (1) trial counsel’s failure to conduct independent tests to determine the date on the Bradlees sales slip, (2) the actions of his trial and appellate counsel in failing to challenge the fact that the same judge who had signed the warrant for his arrest had also presided over the hearing on his motion to suppress, (3) trial counsel’s failure to inform the jury of an alleged discrepancy in a witness’ testimony, (4) trial counsel’s failure to object to, and appellate counsel’s failure to raise on appeal, the trial court’s failure to reinstruct the jury not to draw an adverse inference from his refusal to testify, (5) the failure of his trial and appellate counsel to challenge a witness’ comment regarding his postarrest silence, (6) the failure of his trial and appellate counsel to challenge the trial court’s improper instruction on the definition of a “pistol,” and (7) the failure of his trial and appellate counsel to challenge the trial court’s instruction on intent. We agree with the findings of the habeas court that the petitioner was not prejudiced by the conduct of his trial and appellate counsel.

We first set forth the legal authority necessary for the review of the petitioner’s claims and then address each claim seriatim. “Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of . . . the petitioner’s constitutional right to effective assistance of counsel is subject to plenary review by this court, unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050 (1995); see also Phillips v. Warden, supra, 220 Conn. 131.

“ ‘Our Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984)], to determine if counsel’s assistance was ineffective. . . . Under this analysis, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. . . .’” (Citations omitted.) Johnson v. Commissioner of Correction, supra, 36 Conn. App. 701, citing Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990). “A court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice.” Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988); see also Bethea v. Commissioner of Correction, 36 Conn. App. 641, 644, 652 A.2d 1044 (1995).

In order to establish prejudice by the actions of trial or appellate counsel, the burden is on the petitioner to show that their errors have burdened him with an unreliable conviction. Bunkley v. Commissioner of Correction, supra, 222 Conn. 445-46; see also Johnson v. Commissioner of Correction, supra, 36 Conn. App. 702. Habeas relief will be granted on a claim of ineffective assistance of counsel only if “the petitioner can demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 702; see also Commissioner of Correction v. Rodriquez, 222 Conn. 469, 477, 610 A.2d 631 (1992). It is not enough for the petitioner to demonstrate an impropriety that might entitle him to relief on appeal. D’Amico v.Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); Jeffrey v. Commissioner of Correction, 36 Conn. App. 216, 218, 650 A.2d 602 (1994).

Applying the foregoing standards, we review each of the habeas court’s findings that the petitioner was not prejudiced by the actions of either trial or appellate counsel in terms of whether the conduct of counsel resulted in a trial with an unreliable result.

A

The petitioner claims that the habeas court incorrectly determined that he was not prejudiced by trial counsel’s failure to conduct independent tests on the sales slip to determine its date. We disagree.

The following additional facts are necessary for the resolution of this claim. During the petitioner’s criminal trial, the state introduced into evidence the sales slip found attached to the Bradlees bag located in the car abandoned by the suspect who had been chased by Douton. The officer who seized this evidence from the car testified that the sales receipt bore the date of the robbery, September 30, 1983. The officer further testified that he made a notation of that date on his official police report at the time that the evidence was seized. The evidence remained in the possession of the New London police department until it was forwarded to the Federal Bureau of Investigation for latent fingerprint analysis. Due to the testing procedures used by the Federal Bureau of Investigation, the printing on the sales slip was obliterated and the date on the slip was illegible at the time of trial. Counsel for the petitioner did not conduct independent tests on the illegible sales slip to establish whether the officer was correct about the date.

At the habeas hearing, the petitioner testified that he informed counsel during his criminal trial that he was not in Connecticut on the date of the robbery and that the date on the sales slip was September 26 or 27. He claimed that he told counsel that on the date of the robbery he was in New York with friends. The petitioner’s counsel testified, however, that the petitioner did not inform him of the possible discrepancy in the date of the sales receipt until after the trial and that the petitioner’s alibi could not be corroborated. Counsel further testified that it was a tactical decision to argue to the jury that the slip was illegible rather than to test it to establish a specific date in light of the fact that he believed the evidence as to the date to be insignificant in the context of the other evidence presented at trial.

Kenneth Zercie of the police forensic laboratory testified that independent tests conducted at the request of the petitioner’s habeas counsel revealed with a “high degree of probability” that the date on the sales slip was “9/2?/83 rather than 9/30/83,” the date of the robbery. Zercie testified that the technology used to reveal this date was available at the time of the petitioner’s criminal trial.

The habeas court found that trial counsel’s failure to conduct tests to establish that the date on the slip was not the date of the robbery failed the second prong of Strickland v. Washington, supra, 466 U.S. 687, in that the result of the petitioner’s trial would not have been different had the tests been conducted. We agree.

The habeas court’s determination that the petitioner was not prejudiced by his counsel’s failure to conduct an independent investigation of the date of the sales slip is amply supported by the record. Even had the petitioner’s counsel established at trial that the date on the sales receipt was some days prior to the robbery, the remaining evidence was sufficiently conclusive as to cast no doubt on the reliability of the petitioner’s conviction. The petitioner’s palm prints were identified on the counter of the courtesy booth in the store that was robbed. His physical characteristics and clothing met the description of the robber given by store employees. In addition, his fingerprints were found in the car that met the description of the one in which the robber left and that was located by Douton within a short time after the robbery and within a short distance from the scene of the crime. In light of this evidence, the petitioner has not met his burden of proving that the outcome of the trial would have been different had independent testing been conducted on the sales receipt.

B

The petitioner claims that the habeas court incorrectly determined that he was not prejudiced by the actions of his trial and appellate counsel in failing to challenge as improper that the same judge who signed the warrant for his arrest presided over the hearing on his motion to suppress.

The following facts are necessary for a resolution of this claim. After Douton chased the suspect and was unable to apprehend him, Douton was shown an array of photographs that included a photograph of the petitioner. Douton was unable to identify the petitioner from this array. The day after the robbery, Douton was shown a single photograph of the petitioner and identified him as the suspect he chased.

On October 1, 1983, Officer William Gavitt of the New London police department prepared a warrant application for the petitioner’s arrest. In the affidavit, Gavitt set forth the facts of the crime, the descriptions given of the robber by various store employees, and Douton’s description of the suspect and his identification of the petitioner. In addition, the affidavit established that the vehicle abandoned by the suspect was registered to the petitioner’s uncle and that contact with the petitioner’s uncle established that the uncle suspected the petitioner of stealing his car. On the basis of that information, Judge Seymour Hendel signed the arrest warrant application.

On April 26, 1984, trial counsel moved to have Douton’s identification suppressed as unnecessarily suggestive. Judge Hendel presided over the hearing on this motion. The petitioner’s trial counsel did not request Judge Hendel’s recusal, nor did his appellate counsel raise the issue on appeal. The habeas court found that the petitioner was not prejudiced by the actions of either counsel.

The petitioner relies on General Statutes § 51-183h, Practice Book § 996, and Canon 3C of the Code of Judicial Conduct in support of his claim that Judge Hendel should not have presided over the hearing on the motion to suppress. The petitioner failed, however, to provide us or the habeas court with any case law supporting his contention that a hearing on a motion to suppress an identification contained in an arrest warrant is equivalent to a motion attacking a warrant’s validity or sufficiency. Contrary to the petitioner’s assertions, Douton’s single photo identification of the petitioner was not the central piece of evidence identified in the warrant affidavit. Rather, it was one piece of evidence supported by parallels in the descriptions of the robber by store employees and the physical characteristics of the petitioner, Douton’s descriptions of the suspect chased in the yellow car, and the fact that the yellow car was owned by the petitioner’s uncle and was suspected of having been stolen by the petitioner. Whether Douton’s single photo identification of the petitioner should have been suppressed was a question entirely different from a question of whether the warrant affidavit set forth sufficient facts to establish probable cause for the petitioner’s arrest.

The petitioner has, therefore, failed to meet his burden of proving that he was prejudiced in any way by the actions of counsel.*

C

The petitioner claims that the habeas court incorrectly determined that the petitioner was not prejudiced by the fact that trial counsel failed to inform the jury of an alleged discrepancy in a witness’ testimony. Specifically, the petitioner claims that Douton’s testimony at the hearing on the petitioner’s motion to suppress that the suspect he chased was wearing a purple shirt could not have been true in light of the fact that at the time that Douton was chasing the suspect, fellow officers were retrieving a purple shirt from the roadside near the scene of the crime.

The following facts are necessary for a resolution of this issue. The description of the robber given by the Finast employees included information that the robber was wearing a purple shirt. At the suppression hearing, Douton testified that the shirt worn by the suspect he was chasing was “purple” and “dark colored.” At trial, Douton again described the shirt worn by the suspect as “dark colored.” He testified further that there were various articles of clothing scattered about the car that had been abandoned by the suspect. Detective Donald McCarthy of the Waterford police department then testified that he retrieved a purple shirt from a roadway close to the site of the robbery.

The petitioner contends that trial counsel was ineffective in not establishing that Douton could not have been chasing a person with a purple shirt if a purple shirt was found by the Waterford police at the same time as Douton was conducting his chase. We do not agree that the testimony presented at the criminal trial was necessarily contradictory or that trial counsel should have cross-examined as to the alleged inconsistency. Various items of clothing were found in the car abandoned by the suspect and there could well have been more than one “purple” or “dark colored” shirt. In light of the other evidence presented at trial, the habeas court correctly concluded that any possible inconsistency in the description of the clothing worn by the suspect chased by Douton would not have altered the outcome of the petitioner’s criminal trial.

D

The petitioner claims that the habeas court incorrectly determined that he was not prejudiced by his trial and appellate counsel’s failures to challenge the trial court’s failure to reinstruct the jury that it should not draw an adverse inference from the petitioner’s choice not to testify.

The following facts are necessary for the resolution of this claim. Both charges against the petitioner were tried to the jury; the petitioner did not testify at either trial. On Friday, May 11,1984, final arguments were presented and the jury was instructed on the law to be applied to the petitioner’s case on the charge of robbery in the first degree. Among the various charges to the jury, the trial court instructed the jury in compliance with General Statutes § 54-84 (b) that it should not draw any unfavorable inference from the fact that the petitioner had chosen to exercise his right not to testify. The jury returned a verdict of guilty on the count of robbery in the first degree that afternoon.

On Monday, May 14,1984, the charge of being a persistent dangerous felony offender was presented to the same jury. The evidence presented by the state consisted of the testimony of Officer Robert Bosworth, a records clerk at the community correctional center at Montville. Bosworth testified that the records of the center established that the petitioner had been previously convicted and incarcerated on a charge of robbery in the first degree.

In instructing the jury on the persistent dangerous felony offender charge, the trial court stated: “In considering the evidence presented by the state on this charge, you should recall the instructions which I gave on Friday, insofar as they are applicable to this particular matter, including particularly the instructions which I gave you concerning the presumption of innocence and proof beyond a reasonable doubt.” The trial court did not otherwise repeat its instruction not to draw any adverse inference from the petitioner’s decision not to testify. The petitioner’s trial counsel did not object to the trial court’s failure to so charge and appellate counsel did not raise the issue on appeal.

The petitioner has failed to show how the failure of trial counsel to except to the trial court’s instruction or the failure of appellate counsel to appeal the issue prejudiced him in any way. The petitioner has given us no reason to believe that the jury was misled to believe that the petitioner’s failure to testify on the charge of being a persistent dangerous felony offender could be considered to reflect adversely on his innocence. The trial court correctly instructed the jury on the charge of robbery in the first degree that no adverse inference could be drawn from the petitioner’s decision to remain silent and not testify in his own behalf. Two days later, the same jury was instructed on the charge of being a persistent dangerous felony offender to recall the instructions given on the first charge. The trial court thereby incorporated by reference the charge not to draw any adverse inferences from the petitioner’s failure to testify into its later instructions. It is unlikely that counsel’s failures to raise the issue of the trial court’s failure to give such an instruction affected the result of the trial in any way.

E

The petitioner claims that the habeas court incorrectly determined that he was not prejudiced by the failure of his trial and appellate counsel to challenge a witness’ comment regarding his postarrest silence in violation of his rights under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

At trial, Detective Gerard Gaynor testified that the petitioner was arrested in early January, 1984. Gay-nor stated that he brought the petitioner to an interrogation room and read him his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After answering some preliminary questions in which the petitioner claimed to be in New York on the date of the robbery, the petitioner exercised his right to remain silent until he could consult with an attorney.

In its memorandum of decision, the habeas court stated that the petitioner’s Doyle claim was combined in his posttrial brief with the claim that the trial court should have reiterated the charge to the jury to draw no adverse inference from the petitioner’s exercise of his choice not to testify. The habeas court did not, therefore, separately address the petitioner’s Doyle claim.

The petitioner did not file a motion for articulation requesting the habeas court to address this claim. As a result, there is no record before us of the habeas court’s reasoning on this issue. “In accordance with Practice Book § 4059, the petitioner has a duty to provide this court with a record for review. . . . The [petitioner’s failure to comply with this section renders the record inadequate and] . . . the petitioner’s claim must fail.” (Citations omitted; internal quotation marks omitted.) Rouillard v. Commissioner of Correction, 35 Conn. App. 754, 758, 646 A.2d 948, cert. denied, 231 Conn. 945, 653 A.2d 827 (1994).

F

The petitioner claims that the habeas court improperly determined that he was not prejudiced by his trial and appellate counsel’s failures to challenge the trial court’s improper instruction on the definition of a “pistol.”

The following facts are necessary for the resolution of this claim. At the petitioner’s criminal trial, the jury was instructed that the petitioner was charged with robbery in the first degree under General Statutes § 53a-134 (a) (4). The statutory definition was then read to the jury. The trial court later defined the term “pistol” as “a handgun normally held and fired with one hand.”

The petitioner has again failed to show that his criminal trial was prejudiced by the failure of his trial counsel to object to the trial court’s definition of a “pistol” or by his appellate counsel’s failure to raise the issue on appeal. The robbery statute under which the petitioner was charged allows a conviction when a criminal defendant has used or has threatened to use “what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” General Statutes § 53a-134 (a) (4). Whether the gun displayed by the petitioner was a “pistol” or “other firearm” would not affect his conviction. Any erroneous definition of “pistol” was not, therefore, prejudicial.

G

The petitioner claims that the habeas court improperly found that he was not prejudiced by the trial court’s instruction to the jury concerning intent. Trial counsel did not take exception to this instruction, and appellate counsel did not raise the issue on appeal. The petitioner claims that the instruction violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2540, 61 L. Ed. 2d 39 (1979).

The following facts are necessary to a resolution of this claim. While instructing the jury on the charge of robbery in the first degree, the trial court stated: “In accordance with common experience, and observations in determining the intent of any person, you may but you are not required to infer that [the petitioner] intended the natural and probable consequences which ordinarily follow his voluntary action.” The petitioner’s trial counsel took no exception to this charge, nor did his appellate counsel raise the issue on appeal.

We cannot say that the petitioner was prejudiced by the conduct of either counsel. “In Sandstrom v. Montana, [supra, 442 U.S. 517-24], the United States Supreme Court held that a jury instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts violated the defendant’s due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. . . .We have, however, recognized that the rule of Sandstrom must not be oversimplified. . . . Sandstrom does not invalidate, for example, the use of an entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. . . . A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” (Citations omitted; internal quotation marks omitted.) State v. Turmon, 34 Conn. App. 191, 199-200, 641 A.2d 138, cert. denied, 229 Conn. 922, 642 A.2d 1216 (1994); see also State v. Cooper, 227 Conn. 417, 443, 630 A.2d 1043 (1993).

The trial court correctly instructed the jury that it was “not required to infer that [the petitioner] intended the natural and probable consequences which ordinarily follow his voluntary action.” The jury was in no way instructed that it was required to make such a conclusion. The petitioner’s counsel could not properly challenge this correct statement of the law.

III

The petitioner’s final claim is that the habeas court improperly refused to address his assertion that his conviction was rendered in violation of due process.

The petitioner’s amended application for habeas corpus was brought in three counts. Count one alleged various violations of due process. Each of the claims in count one was repeated in either count two or three and rephrased in terms of ineffective assistance of counsel. In the petitioner’s posttrial brief, his due process claims were addressed in general terms of the right to a fair trial and to be proven guilty beyond a reasonable doubt. The only specific claim addressed was the fact that the jury did not know that the date on the sales slip may not have been the date of the robbery. Each specific claimed impropriety was addressed in the final portion of the petitioner’s posttrial brief, labelled: “The Petitioner was denied his right to due process and his right to effective assistance of trial and appellate counsel.”

In its memorandum of decision, the habeas court decided each of the petitioner’s claims in terms of ineffective assistance of counsel. In finding that the petitioner was not prejudiced by the actions of either his trial or appellate counsel, the habeas court found also that “the petitioner [had] not shown that any of the claimed imperfections . . . violated any of his constitutional rights or created prejudice as defined in Strickland [v. Washington, supra, 466 U.S. 668].”

On appeal, the petitioner claims that the habeas court improperly failed to address his claim that his conviction and imprisonment were obtained in violation of due process. In response to the petitioner’s motion for articulation, the habeas court again reiterated that it was unnecessary to separately address the petitioner’s claims under the rubric of due process.

We agree with the habeas court that the petitioner’s due process claims were subsumed in his claims of ineffective assistance of counsel and need not have been addressed separately. Our Supreme Court has held that in situations “where the petitioner’s claim of a violation of due process is so inextricably bound up in the issue of the effectiveness of his trial [or appellate] counsel ... a separate claim of a violation of the right to due process is not required.” Commissioner of Correction v. Rodriquez, supra, 222 Conn. 476. In reaching this conclusion, the Supreme Court reasoned: “If counsel has been ineffective in violation of the mandates of the sixth amendment to the United States constitution, then it follows, a fortiori, that- the accused has been deprived of the right to a fair trial and to the concomitant right to due process.” Id. A habeas court need not, therefore, separately address due process claims subsumed by claims of ineffective assistance of counsel. The habeas court’s finding that the petitioner was not prejudiced by any of the alleged improprieties of trial and appellate counsel necessarily disposed of the petitioner’s due process claims as well.

The judgment of the habeas court is affirmed.

In this opinion the other judges concurred.

       The underlying facts of the petitioner’s conviction are set forth more fully in State v. Evans, 200 Conn. 350, 511 A.2d 1006 (1986).

       The petitioner’s direct appeal concerned claims that a pretrial identification was unnecessarily suggestive and unreliable and that the denial of his motion to dismiss a substitute information was violative of his constitutional right to equal protection.

       This amended petition was filed on remand from this court, Evans v. Warden, 29 Conn. App. 274, 613 A.2d 327 (1992).

       The petitioner’s writ of habeas corpus contained three counts. In count one of his petition, the petitioner claimed that his right to due process was violated in that (1) the same judge who had signed the warrant for the petitioner’s arrest heard the petitioner’s motion to suppress a pretrial identification, (2) a state’s witness was permitted to comment on the petitioner’s exercise of his right to remain silent during police interrogation, (3) the trial court instructed the jury that it could infer that the petitioner intended the natural consequences of his actions, (4) the trial court improperly instructed the jury on the definition of a “pistol,” (5) the trial court failed to repeat an instruction to the jury when considering the charge of being a persistent dangerous felony offender, and (6) the prosecutor allowed false and misleading evidence to be presented to the trial court.
      In count two of his amended petition, the petitioner alleged ineffective assistance of trial counsel because such counsel did not properly object to or preserve the above improprieties, and in addition, (1) failed to investigate adequately the petitioner’s defense by conducting independent tests on a sales slip that established that the petitioner was in Connecticut on the date of the robbery, (2) failed to request a limiting instruction to the jury on the purpose of the sales receipt, and (3) established that the petitioner had been previously arrested.
      In count three of his amended petition, the petitioner alleged ineffective assistance of appellate counsel in failing to raise on appeal (1) the impropriety of the same judge’s hearing the motion to dismiss, (2) the omission of a limiting instruction on the purpose of the admission of the sales receipt, (3) the fact that a state’s witness was allowed to testify that the petitioner chose to remain silent until he could speak with an attorney, (4) the improper instruction on the definition of a pistol, (5) the improper instruction that the jury could infer that the petitioner intended the natural and probable consequences of his actions, and (6) the failure of the trial court to repeat an instruction during the trial on the charge of being a persistent serious felony offender.
      The petitioner also claimed that his rights were violated by the fact that the prosecutor was allowed to file a substitute information after the commencement of the case without a showing of good cause, that trial counsel did not object to or preserve this impropriety, and appellate counsel did not raise the issue on appeal. This claim was withdrawn at the time of trial before the habeas court.

       The transcript of the criminal trial was introduced as evidence at the petitioner’s habeas hearing.

       In the petitioner’s brief, counsel articulates her doubt that the habeas judge reviewed the suppression and trial transcripts as claimed in the memorandum of decision. When questioned at oral argument about this statement, counsel stated that she did not intend to east aspersions on the integrity of the habeas court. We draw to the attention of the bar the following Rules of Professional Conduct:
      Rule 8.2 (a) provides in relevant part: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge
      Rule 8.4 provides in relevant part: “It is professional misconduct for a lawyer to . . . (d) [ejngage in conduct that is prejudicial to the administration of justice . . . .”
      We caution counsel against making statements not intended to question the court’s integrity but that might be construed in that manner.

       The petitioner was unable to provide the names of anyone who could corroborate his presence in New York on the date of the robbery. He also claimed to have used an assumed name at the hotel in New York.

       General Statutes § 51-183h provides: “No judge may preside at the hearing of any motion attacking the validity or sufficiency of any bench warrant of arrest which he has signed.”

       Practice Book § 996 provides in pertinent part: “A judicial authority may not preside at the hearing of any motion attacking the validity or sufficiency of any warrant issued by him nor may he sit in appellate review of a judgment or order originally rendered by him.”

       Canon 3C of the Code of Judicial Conduct provides in pertinent part: “(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”

       We note also that our Supreme Court upheld Judge Hendel’s decision that Douton’s single photograph identification of the petitioner was reliable regardless of any suggestion. State v. Evans, supra, 200 Conn. 350.

       In Ms brief, the petitioner seems to intimate that the state’s attorney and Douton somehow conspired to present false evidence to the jury. The petitioner claims that the state’s attorney elicited from Douton at the suppression hearing that the shirt worn by the suspect was “purple” and that this testimony was changed at the criminal trial to a description of the shirt as “dark colored.” Our review of the transcripts of both the hearing on the motion to suppress as well as the criminal trial reveal that Douton’s testimony at each was consistent. Douton testified alternately that the shirt was “purple” and that it was “dark colored.” These descriptions are not contradictory.

       General Statutes § 54-84 (b) provides in relevant part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. . . .”

       The petitioner cites State v. Burke, 182 Conn. 330, 438 A.2d 93 (1980), as support for the contention that it is reversible error for a trial court to omit the instruction to a jury to draw no adverse inference from a criminal defendant’s failure to testify. Although Burke may stand for the proposition that the failure to give such an instruction will warrant reversal on direct appeal, such is not the standard when considering an application for a writ of habeas corpus. As we have stated, in order for the petitioner to prevail on his claim of ineffective assistance of trial and appellate counsel, he bears the burden of proving that their improprieties prejudiced him in such a way that the result of his criminal trial is unreliable, not that he may have been successful on direct appeal. See Bunkley v. Commissioner of Correction, supra, 222 Conn. 445. The petitioner has not demonstrated any way in which the failure of the trial court to repeat the instruction against drawing adverse inferences adversely affected his criminal trial on the charge of being a persistent dangerous felony offender.

        “Doyle v. Ohio, supra, 426 U.S. 610, established the principle that after Miranda warnings are given the state may not use the silence of a defendant . . . to impeach the defendant’s testimony . . . or to indicate a consciousness of guilt.” (Citation omitted.) Johnson v. Commissioner of Correction, 34 Conn. App. 153, 160-61, 640 A.2d 1007, cert. denied, 229 Conn. 919, 644 A.2d 914 (1994).

       The petitioner erroneously asserts that his trial counsel elicited this information from Gaynor during cross-examination. Our review of the transcripts of the criminal trial establish that this information was given by Gaynor in response to questioning on direct examination by the state.

       General Statutes § 53a-134 (a) (4) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime . . . he . . . displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes § 53a-3 (18) defines a pistol as “any firearm having a barrel less than twelve inches . . . .”

       See footnote 4.

       The petitioner acknowledged in his posttrial brief that his claims under both constitutional provisions are guided by the same standard. The petitioner stated: “Under the due process analysis and the StricklandJBunkley analysis of ineffective assistance of counsel, the necessary determination to be made by [the habeas court] is whether or not the Petitioner’s conviction is reliable.”


source: Caselaw Access Project

author: Hennessy, J.

license: Public Domain

text:
    George Reardon v. Department of Public Health and Addiction Services et al.
    (14091)
    Dupont, C. J., and O’Connell, Lavery, Landau and Hennessy, Js.
    Considered March 8
    decision released May 2, 1995

      Henry A. Saltón, assistant attorney general, with whom, on the brief, was Thomas J. Ring, assistant attorney general, in support of the motion.

      John Thomas Scully, in opposition to the motion.
   Hennessy, J.

The defendants, the department of public health and addiction services (department) and the state medical examining board (board), have filed a motion to dismiss the appeal of the plaintiff, George Reardon, for lack of a final judgment. The dispositive issue is whether a final judgment exists when the trial court dismisses an administrative appeal for lack of subject matter jurisdiction under General Statutes § 4-183 (b). We conclude that the plaintiffs appeal is from a final judgment and deny the motion to dismiss.

The following facts are relevant to this appeal. The department presented the board with a four count statement of charges dated February 13, 1993, alleging misconduct on the part of the plaintiff, a physician, in the treatment of four patients. The charges were later amended to include additional counts concerning three other patients. The department’s prayer for relief requested that “the Connecticut medical examining board, as authorized in [General Statutes] § 20-13c, revoke or take any other actions as authorized in [General Statutes] § 19a-17 against the medical license of George Reardon as it deems appropriate and consistent with law.”

On December 1, 1993, the plaintiff retired from the practice of medicine. His license expired on May 31, 1994. The plaintiff did not apply for renewal of his license. By motion dated June 1, 1994, the plaintiff requested that the board dismiss the charges against him as moot. He argued that the department clearly limited the scope of relief requested to action against his medical license. Because his medical license had expired, the plaintiff argued that the charges were moot. During a hearing held on June 10, 1994, the board denied the plaintiff’s motion on the ground that General Statutes § 19a-14a gave the board jurisdiction to consider the charges against the plaintiff despite the expiration of his license.

The plaintiff appealed from the board’s denial of his motion to dismiss to the Superior Court pursuant to General Statutes § 4-183 (b), which provides: “A person may appeal a preliminary, procedural or intermediate agency action or ruling to the superior court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy.” The trial court granted the plaintiff’s motion for a stay of the administrative proceeding pending resolution of the appeal.

In considering whether it had jurisdiction over the plaintiff’s appeal, the trial court determined that postponement of the appeal would not result in an inadequate remedy, as required under § 4-183 (b). The trial court, therefore, concluded that it was without subject matter jurisdiction and dismissed the plaintiff’s administrative appeal. The plaintiff then appealed to this court. The board and the department argue that the appeal should be dismissed for lack of a final judgment.

“ ‘Under the Uniform Administrative Procedure Act [UAPA], General Statutes § 4-166 et seq., further appellate review of superior court rulings on administrative appeals is limited to cases in which the Superior Court has rendered a final judgment. General Statutes § 4-184. That statutory provision accords with the general proposition that, except in special cases, such as appeals upon reservations; State v. Sanabria, 192 Conn. 671, 681-85, 474 A.2d 760 (1984); or upon certification pursuant to General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984); the jurisdiction of this court is restricted to appeals from judgments that are final. General Statutes § 52-263; Practice Book § 4000 (formerly § 3000); Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987); Doublewal Corporation v. Toffolon, 195 Conn. 384, 388-89, 488 A.2d 444 (1985).’ Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 408-409, 521 A.2d 566 (1987).” Lieberman v. State Board of Labor Relations, 216 Conn. 253, 271-72, 579 A.2d 505 (1990).

Pursuant to General Statutes § 4-184, “[a]n aggrieved party may obtain a review of any final judgment of the superior court . . . .” An order of the trial court dismissing an administrative appeal for lack of subject matter jurisdiction under UAPA has been considered a final judgment for purposes of appeal; see Lewis v. Gaming Policy Board, 224 Conn. 693, 620 A.2d 780 (1993); even if the administrative proceeding itself has not yet been finally resolved. See Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990).

Although these cases involve dismissal by the trial court under General Statutes § 4-183 (a), we see no reason why a dismissal under § 4-183 (b) requires a different result. This conclusion is consistent with the rule regarding appealable interlocutory orders articulated in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). Under Curcio, where an order or action so concludes the rights of the parties that further proceedings cannot affect them, the order is immediately appealable. Id., 31. Section 4-183 (b) provided the plaintiff the right to a preliminary appeal from the board’s denial of his motion to dismiss the charges against him. In dismissing the appeal for lack of subject matter jurisdiction, the trial court finally concluded the plaintiff’s right to appeal under § 4-183 (b). If not considered by this court now, any right the plaintiff has to an intermediate appeal will be lost. For these reasons we conclude that the plaintiff has appealed from a final judgment.

The defendants’ motion to dismiss the appeal is denied.

In this opinion the other judges concurred.

       The trial court granted the stay of the administrative proceeding on the conditions that (1) the stay take effect after the witness who was then testifying before the board completed testimony and (2) the plaintiff would not attempt to practice medicine in Connecticut or any other state.

       The defendants argue that the order from which the plaintiff appealed is not a final judgment within the meaning of General Statutes § 4-183 (j). That subsection provides in pertinent part that “[flor purposes of [§ 4-183 (j)3 a remand is a final judgment. ’ ’ The final judgment provision in subsection (j) applies to trial court orders that remand a proceeding to the administrative agency that originally considered the case. Because this appeal does not involve a remand order, we conclude that the motion before us should not be analyzed under the provisions of § 4-183 (j).

       General Statutes § 4-184 provides: “An aggrieved party may obtain a review of any final judgment of the superior court under this chapter. The appeal shall be taken in accordance with section 51-197b.”


author: Foti, J. O’Connell, J.,

text:
    First Constitution Bank v. Harbor Village Limited Partnership et al.
    (11548)
    O’Connell, Foti and La very, Js.
    Submitted on briefs December 13, 1994
    decision released May 2, 1995

      Jonathan D. Elliot, with whom was Monica M. Coportino, for the appellant (substitute plaintiff).

      Jonathan S. Bowman, with whom was Paul H. Begemann, for the appellee (defendant Fairfield Dock Company, Inc.).
   Foti, J.

This matter is before us on remand from our Supreme Court; First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 822, 646 A.2d 812 (1994); for our consideration of the plaintiff’s remaining two claims. See First Constitution Bank v. Harbor Village Ltd. Partnership, 31 Conn. App. 15, 622 A.2d 1063 (1993). The plaintiff claims that the trial court improperly (1) failed to find that its mortgage had priority over the mechanic’s lien filed by Fairfield Dock Company, Inc. (Fairfield), under the doctrine of equitable subrogation, and (2) upheld the validity of Fair-field’s mechanic’s lien.

The following facts are relevant to the plaintiffs claim of equitable subrogation. On June 18, 1987, the Mechanics and Farmers Bank (M&F) loaned the defendant Harbor Village Limited Partnership (Harbor Village) the sum of $11,451,500; the loan was secured by a mortgage. On December 29, 1988, First Constitution Bank (FCB), the plaintiffs predecessor in interest, loaned Harbor Village the sum of $11,451,500 enabling the defendant to pay off the M&F loan. The mortgage was released that same day. Also on that day, M&F issued a letter of credit in the amount of $11,451,500 to FCB as security for the loan, with the letter of credit being secured by a mortgage from Harbor Village to M&F in that amount. As of that date, FCB had no mortgage to secure its loan. Its only security was the letter of credit from M&F. On May 8,1989, Harbor Village and William O. Rockwood, Jr., trustee (Rockwood), executed a promissory note to FCB for $21,500,000 and the sum of $11,451,500 was advanced, enabling Harbor Village to pay off the first FCB loan. The second M&F mortgage was released on May 8, 1989, and the letter of credit was to be returned to M&F. FCB never called the letter of credit; M&F never paid any moneys pursuant to that letter of credit. Also, on May 8,1989, Harbor Village, in order to secure the FCB loan in the amount of $21,500,000, granted a mortgage to FCB. This is the mortgage that First Marine Corporation sought to foreclose.

The trial court found that until May 8, 1989, when Harbor Village granted the mortgage to FCB, FCB was looking to the letter of credit issued by M&F as security for its loan, not to the property. The court noted that at the time that FCB loaned the sum of $11,451,500 to Harbor Village on December 29,1988, FCB did not take a mortgage from Harbor Village as security for that loan. The sole security for the loan was the letter of credit from M&F, which in turn took a mortgage to secure any payments that might have been made pursuant to the letter of credit.

The court concluded that FCB had not advanced money to discharge a prior lien on the property and did not take a new mortgage as security. Therefore, because the plaintiffs predecessor in interest had no equitable interest in the property, the court denied the plaintiffs claim that it was entitled to equitable subrogation.

The plaintiff argues that it should be entitled to priority over Fairfield’s mechanic’s lien because, although it paid off its own bridge loan for which it held no mortgage on the property, it should somehow step into or relate back to M&F’s position, which had a mortgage to secure repayment on the letter of credit. We do not agree.

We start by noting, as the trial court did, that the letter of credit was never called and never funded, and we agree that the loan paid off was not M&F’s loan, as M&F had never advanced money under its mortgage. The court’s findings show that in December, 1988, FCB, not M&F, loaned Harbor Village the “bridge loan.” That loan was secured by a letter of credit in favor of FCB in the same amount issued by M&F. M&F thereafter recorded its mortgage deed to secure the repayment of amounts that it might advance pursuant to its letter of credit. Since Harbor Village did not default, the letter of credit was never called and M&F made no advance; FCB had no cause to draw on the M&F letter of credit. No advances were made on the 1988 M&F mortgage.

We concluded that since no advances were made, the plaintiffs claim of equitable subrogation attempting to relate back to the 1988 M&F mortgage is without merit. The plaintiffs reliance on Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 193 A. 769 (1937), for the application of the doctrine of equitable subrogation is misplaced. Since no relating back is available, there is no mortgage position to which the plaintiff can be subrogated.

The plaintiff next claims that the trial court improperly determined that the mechanic’s lien was not invalid because Fairfield failed to name the parties to its mechanic’s lien foreclosure in the lis pendens. The plaintiff argues that General Statutes § 52-325 expressly requires that the notice of lis pendens set forth the name of the parties, and, absent the subsequent recording of a notice of lis pendens and the commencement of a foreclosure within one year after the recording of the certificate of lien, a mechanic’s lien expires as a matter of law. The plaintiff claims that since Fairfield’s notice of lis pendens names only the plaintiff and omits alleged subsequent encumbrancers, it is plainly defective and therefore invalid, resulting in a corresponding extinguishment, as a matter of law, of the mechanic’s lien. The plaintiff argues that the naming of all the parties is mandatory, and the reference “et al.” is insufficient as a legal phrase to validate the lis pendens. We do not agree.

The record discloses that the notice of lis pendens was recorded on March 28, 1991, within the one year period that commenced on April 16, 1990. The record also discloses that the case caption of the lis pendens states: “Fairfield Dock Company, Inc. v. Harbor Village Limited Partnership, Market Corp. Real Estate, Inc., Trustee, et al.” The lis pendens also contains the return date and court, thus allowing an interested party to view the full summons and complaint that lists every party in detail. In the present matter, we need not determine whether the name of every defendant be indicated on a lis pendens in order that a mechanic’s lien not be invalidated.

A notice of lis pendens is appropriate where the pending action will in some way, either directly or indirectly, affect the title to or an interest in the real property itself. Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988). A lis pendens is a creature of statute and a person invoking its provisions must comply with the statutory requirements. H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). “Nevertheless, the provisions of the statute should be liberally construed to implement reasonably and fairly its remedial intent of giving notice of claims pertaining to the real property which is the subject of the litigation.” Manaker v. Manaker, 11 Conn. App. 653, 660-61, 528 A.2d 1170 (1987). “The purpose of the lis pendens in the context of a mechanic’s lien is the same as it is in any other situation in which real property is the subject of litigation; namely, it is intended to give constructive notice to persons seeking to purchase or encumber property after the recording of a lien or the commencement of a foreclosure suit. . . . Thus, if a person has actual notice of the lien and a suit commenced thereon, that actual notice may take the place of constructive notice imparted by the filing of a lis pendens. . . . To hold otherwise would exalt constructive notice over actual notice.” (Citations omitted; internal quotation marks omitted.) Meyer, Kasindorf & Mancino v. Lafayette Bank & Trust Co., 34 Conn. Sup. 84, 86-87, 377 A.2d 861 (1977).

“The doctrine underlying lis pendens is that a person who deals with property while it is in litigation does so at his peril .... [I]f the power of the courts to determine the rights of the parties to real property could be defeated by its transfer, [during the pendency of litigation], to a purchaser without notice, additional litigation would be spawned and the public’s confidence in the judicial process could be undermined.” (Citations omitted; internal quotation marks omitted.) Williams v. Bartlett, 189 Conn. 471, 480, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983).

Since the filing of notice of lis pendens is not a condition precedent to a right of action; Meyer, Kasindorf & Mancino v. Lafayette Bank & Trust Co., supra, 34 Conn. Sup. 87; and since the plaintiff, or its predecessor, had actual notice of the action for foreclosure of the mechanic’s lien, Fairfield’s lien is not invalid to this plaintiff. The plaintiff suffered no prejudice even if the notice of lis pendens did not “contain the names of the parties.” As our Supreme Court has recently said, in validating this lien in this matter, despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting

prejudice was claimed, “ 'we do not think a court of equity can be called upon to declare [a] lien utterly void upon the motive of persons who have lost nothing by [the] mistake.’ ” First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 230 Conn. 816. Because the plaintiff can show no prejudice, even if the notice of lis pendens should be invalid, its application to discharge the defendant’s mechanic’s lien on this basis was properly denied.

The judgment is affirmed.

In this opinion Lavery, J., concurred.

O’Connell, J.,

concurring. I write separately on the issue of the validity of the lis pendens because of its importance to the reliability of land records. I do not agree that a lis pendens does not have to contain the names of all parties to the action, that the name of the first defendant followed by the words “et al.” is sufficient. The relevant portion of General Statutes § 52-325 (a), the lis pendens statute, provides that “the plaintiff . . . may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties . . . .” (Emphasis added.) I cannot conceive of a clearer statement of the law.

Courts must interpret statutes as written; Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1994); and, if a statute is clear and its language unambiguous, there is no room for construction. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). Because the lis pendens statute unequivocally declares that a recorded lis pendens must contain “the names of the parties,” (emphasis added) we have no right to construe it so as to allow a substitute for “the names of the parties.”

Furthermore, we should look to the purpose of the statute and construe it so as to effect that purpose. State v. Harrison, 228 Conn. 758, 762, 638 A.2d 601 (1994). The sole purpose of the land records is to give constructive notice to the world of instruments recorded therein. Cowles v. Bacon, 21 Conn. 451, 462-63, 56 A. 371 (1852). A fortiori, the purpose of recording a lis pendens on the land records is to give constructive notice to the world that an action is pending that may affect the title to the real property of the persons named therein. The majority decision in this case is not consistent with this purpose.

The danger of allowing et al. in lieu of a party’s name is illustrated in a situation where A and B own property as cotenants. A foreclosure is commenced against the interests of both owners, but the lis pendens filed on the land records discloses only that the action is against “A et al.” Town clerks are statutorily required to enter the names of all grantors in the grantor index. General Statutes § 7-25. For indexing purposes, the defendants in a foreclosure are treated as grantors. In this example, the town clerk will index the lis pendens in the grantor index solely under A’s name. Consequently, the land records will fail to disclose that an action is pending that may affect B’s title to the property.

To say that an interested party may go to the courthouse and obtain further information from the writ, summons and complaint, furnishes an empty remedy. Because B’s name does not appear in the grantor index, a person interested only in B is not put on notice that there is any reason to repair to the courthouse for further information. The same concern affects the interests of subsequent encumbrancers whose interests are concealed sub nom. et al.

“It has always been the policy of our law that the land records should be the authentic oracle of title on which a bona fide purchaser or attaching creditor might safely rely.” Safford v. McNeil, 102 Conn. 684, 687, 129 A. 721 (1925). “Indeed the whole system of registering deeds of land would become of no value if a purchaser could not rely upon the records as he finds them.” Kinney v. Whiton, 44 Conn. 262, 270, 26 A. 462 (1877).

The issue here is quite different from that considered by our Supreme Court when this case was before it in First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 646 A.2d 812 (1994). The sole question considered then by our Supreme Court was whether a properly recorded and indexed mechanic’s lien with a missing property description could give constructive notice to the world of its existence. The majority answered that question in the affirmative, reasoning that a properly recorded and indexed mechanic’s lien would direct a title searcher to the proper court where the property description would be available in the writ, summons and complaint.

In this decision, we move on to the question of whether the lis pendens was properly recorded and indexed. In my opinion, it could not be properly indexed because it did not contain sufficient information (i.e., names of all the parties) for the town clerk to index it in the grantor index under each defendant. The example given demonstrates that the absence of indexing under the name of a party hidden under the et al. would not lead a title searcher to a courthouse.

The defendant Fairfield Dock Company, Inc., confuses a lis pendens with a pleading in a lawsuit. Although et al. is accepted lawyer shorthand for use in the caption of a pleading to indicate the existence of additional parties, there is no authority for using it as a shorthand substitute in a statutory instrument that mandates including the names of the parties.

The trial court held that “to invalidate a mechanic’s lien because of a failure to place the name of the defendant in the caption of the case, instead of using the phrase ‘et al.,’ constitutes splitting hairs for which no purpose has been advanced . . . .”1 might be inclined to agree with the trial court if the problem were that the et al. appeared only in the caption of the lis pen-dens and the names of all the parties were listed in the body of the lis pendens. That is not the case here, however. Here, the names of numerous parties are missing, not only from the caption, but also from the body of the lis pendens.

Because it does not comply with the statute, it is my opinion that the lis pendens in this case is invalid. This invalidity, however, does not affect the outcome of the appeal because the plaintiff acknowledges actual notice of the pendency of the action. See footnote 5 of the majority opinion.

       The underlying facts may be found in First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 230 Conn. 807. Additional facts will be set forth as required.

       The substitute plaintiff, First Marine Corporation, appealed as successor in interest to FCB; we refer to First Marine Corporation as the plaintiff.

       Equitable subrogation is a doctrine borrowed from the civil law and administered so as to secure justice without regard to form or mere technicality. Home Owners’Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 238, 193 A. 769 (1937).

       General Statutes § 52-325 provides in relevant part: “notice of lis pendens, (a) In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, or (2) a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property .... This section shall be construed to apply to mechanics’ liens . . . .”

       The plaintiff acknowledges that its predecessor, FCB, was named as a defendant in the foreclosure action. The issue of actual notice was raised by the defendant and was argued. The defendant’s brief stated that “all parties named in the action received service of the complaint, thus giving them actual notice.”

       This appeal arose from a determination of priorities in which the validity of the interest of the defendant Fairfield Dock Company, Inc., as a subsequent encumbrancer was questioned because of a possibly invalid lis pendens.

       Our immediate concern here is the validity of the lis pendens and not the validity of the underlying mechanic’s lien.


author: Foti, J.

text:
    Anthony N. Fraulo et al. v. Mario Gabelli Mario Gabelli v. Anthony N. Fraulo et al.
    (12961)
    FOTI, HEIMAN and SCHALLEK, Js.

      Argued February 14
    decision released May 2, 1995

      David P. Burke, for the appellants (plaintiffs in the first case, defendants in the second case).

      Richard L. Albrecht, for the appellees (defendant in the first case, plaintiff in the second case).
   Foti, J.

This case involves a commercial arbitration proceeding. Anthony N. Fraulo and CFC Greenwich Realty Corporation (CFC) appeal from the trial court’s judgment denying their application to vacate an arbitration award brought pursuant to General Statutes § 52-418 and concomitantly granting the application of Mario Gabelli for an order confirming the award. On appeal, Fraulo and CFC claim that the trial court improperly determined that (1) the arbitrator did not exceed his powers when rendering the interim orders and the final award, and (2) the arbitrator was not guilty of misconduct when he refused to hear evidence allegedly pertinent to the controversy. We affirm the judgment of the trial court.

The relevant facts are as follows. In 1985, Anthony Fraulo, Vincent Colangelo and Capital Impact Corporation formed CFC Greenwich Realty Corporation. In 1987, CFC constructed a “spec” house (property) in Greenwich. On August 30, 1988, CFC and Gabelli entered into a joint venture agreement. Under the terms of this agreement, Gabelli agreed to assist CFC by providing funds for servicing the construction debt and for other expenses related to carrying the property for up to two years. In return, Gabelli was to be reimbursed for his financial contributions out of the net proceeds from the sale of the property. Gabelli was also to receive a share of any profits from the sale. On September 19,1988, Fraulo and Colangelo executed a document titled “Guaranty.” Under the terms of this document, Fraulo and Colangelo “jointly and severally . . . guarantee^] the punctual payment of the sums due Mario Gabelli under the Joint Venture Agreement . . . .” From September, 1988, through June, 1990, Gabelli made payments to Fraulo totaling $326,000.

As of January, 1990, the property had not been sold. At that time, Gabelli claimed to have discovered certain misrepresentations and nondisclosures by Fraulo and Colangelo in conjunction with the venture. The joint venture agreement expressly provided for the arbitration of certain disputes, and, on December 21, 1990, Gabelli filed a demand for arbitration with the American Arbitration Association. Gabelli claimed that Fraulo, who is an attorney, breached his fiduciary duty to Gabelli in relation to the joint venture agreement. In his initial demand for arbitration, Gabelli claimed that “the agreement should be rescinded because of a breach of fiduciary duty, misrepresentations, and nondisclosure of material facts.” The relief sought was a return of the funds advanced by Gabelli to the venture plus interest, attorney’s fees and rescission of the agreement.

Shortly after the commencement of arbitration proceedings, Fraulo, Colangelo and CFC (respondents) brought an action in the Superior Court seeking to enjoin Gabelli from continuing with arbitration claiming that the issues of breach of the agreement and rescission were issues to be resolved by the court and not by arbitration. By memorandum of decision dated May 2,1991, the trial court denied the application for an injunction. The court held that under the broad language of the agreement’s arbitration provision, the question of what was subject to arbitration was for the arbitrator to decide. The respondents took no further action regarding these proceedings and the question of arbitrability.

Thereafter, the respondents filed a counterclaim in the arbitration proceeding seeking payment of sums owed by Gabelli under the agreement and “[rjescission of the personal guaranty of . . . Fraulo and . . . Colangelo . . . which guaranty was solicited by [claimant for the promises in the agreement.” In February, 1992, Gabelli learned that Fraulo was in the process of negotiating a sale of the property. Gabelli requested information regarding these negotiations but Fraulo refused to disclose the information. On February 7,1992, Gabelli filed a motion for interim measures with the arbitrator, seeking orders that would require the respondents to provide Gabelli with a copy of any proposed sales contract and orders relating to the disposition of any sale proceeds. On February 14, 1992, the arbitrator conducted a telephone conference with counsel for all parties and ordered that a copy of the unsigned sales contract be provided to Gabelli. On February 18,1992, a sales contract was executed without an unsigned copy being given to Gabelli. On February 21, 1992, the arbitrator issued the first of four interim orders. In this order, the arbitrator directed that a copy of the contract of sale be provided to all the parties within three days, that an appraisal of the property be conducted, and, pursuant to rule 34 of the Commercial Arbitration Rules, that there be no further proceedings toward the sale. The arbitrator stated that “[t]his order arises out of the imminent sale of the . . . property . . . and questions raised by . . . claimant as to the value of such property and, if the property is sold, the safeguarding of the sale proceeds pending a final award in this proceeding.” After this order was issued, Gabelli filed a caveat on the Greenwich land records giving notice of the order.

On April 10,1992, the respondents sought a modification of the arbitrator’s ruling precluding the sale of the property. The arbitrator issued his second interim order, directing that the property could be sold with the net proceeds being promptly remitted to Gabelli. Following this order, Gabelli caused an amended caveat to be filed on the Greenwich land records.

On April 16,1992, Gabelli filed an amendment to his original demand for arbitration. In his amended claim for relief, Gabelli continued to seek rescission of the agreement, return of the funds advanced by him to the venture and attorney’s fees. He also sought, however, in the alternative, damages for breach of contract under the joint venture agreement and an award based on the guaranty. Gabelli’s amendment was allowed on May 16, 1992.

On June 30, 1992, the property was sold and the respondents remitted to Gabelli a check in the amount of $3432.86 as his share of the net proceeds from the sale. After reviewing the closing statement from the sale, the arbitrator, on July 30, 1992, issued a third interim order. He found that the allocation of proceeds was inconsistent with his ruling of April 10, 1992, and that there was a balance due Gabelli in the amount of $106,397.51. The respondents filed a motion for reconsideration with the arbitrator. In response, the arbitrator issued his fourth interim order on September 29, 1992, wherein he amended his finding to provide that the balance due Gabelli was $140,279.11.

In his final award issued after the conclusion of the evidence, the arbitrator awarded Gabelli damages in the amount of $275,084.15. All of Gabelli’s other demands for relief, including rescission of the joint venture agreement, were denied. The counterclaims by the respondents were also denied.

On March 17,1993, Gabelli filed an application, pursuant to General Statutes § 52-417, to confirm the arbitration award. The respondents filed an application to vacate the award. By memorandum of decision dated October 8,1993, the trial court confirmed the arbitration award and denied the application to vacate.

I

The respondents first claim that the trial court improperly determined that the arbitrator did not exceed his powers when rendering the interim orders and the final award. Their argument is essentially that the submission to arbitration in this case was restricted, and the arbitrator exceeded his powers by making awards beyond the scope of the submission. We disagree.

On appeal, the respondents deal with each interim order and the final award of the arbitrator separately. They raise essentially the same claim, however, as to each of the awards. They posit that the awards involve a determination of contract damages under the joint venture agreement, and such a determination exceeds the scope of the submission.

The arbitration clause in a contract constitutes the written submission to arbitration. Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980). “ ‘When 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.’ (Citations omitted.)” International Assn. of Fire Fighters, Local 1339, AFL-CIO v. Waterbury, 35 Conn. App. 775, 778, 647 A.2d 361 (1994), quoting Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992).

The respondents claim that the submission in this case was restricted in scope. The trial court found that it was unrestricted. We agree with the trial court that the submission was unrestricted. In determining whether a submission is unrestricted, we look to the authority of the arbitrator. “ ‘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.’ ” International Assn. of Fire Fighters, Local 1339, AFL-CIO v. Waterbury, supra, 35 Conn. App. 778, quoting Garrity v. McCaskey, supra, 223 Conn. 5.

In the present case, the agreement does not limit the arbitrator’s authority in a manner that would make this a restricted submission. The language of the arbitration clause indicates an intent by the parties to include all disputes that may arise under the agreement and that are not provided for in the agreement. There is no other restrictive language in the clause. Once it is determined that a dispute is subject to arbitration under the clause, the authority of the arbitrator is not limited by any express language. The trial court properly construed the submission as unrestricted.

If a submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error. Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, 28 Conn. App. 337, 343, 610 A.2d 1324 (1992). We have recognized three grounds for vacating an award even in the case of an unrestricted submission: (1) the award rules on the constitutionality of a statute; (2) the award violates clear public policy; or (3) the award contravenes one or more of the statutory proscriptions of General Statutes § 52-418. Garrity v. McCaskey, supra, 223 Conn. 6; International Assn. of Fire Fighters, Local 1339, AFL-CIO v. Waterbury, supra, 35 Conn. App. 779.

The respondents maintain that the award should be vacated because the arbitrator exceeded his power by making awards that failed to conform to the submission. They argue that at the time the arbitrator issued the first interim order, Gabelli was seeking rescission of the agreement. The order went beyond the scope of the submission in that it dealt with the sale of the property. The respondents argue that the remaining interim orders and the final award, which incorporated the interim orders, went beyond the scope of the submission in that they dealt with contract damages under the joint venture agreement and the guaranty.

General Statutes § 52-418 (a) provides in relevant part that “[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” In deciding whether the arbitrator has exceeded his power under § 52-418 (a) (4), we compare the award with the submission to determine if the award and the submission conform. See New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415, 544 A.2d 186 (1988); Hartford v. Local 760, 6 Conn. App. 11, 13, 502 A.2d 429 (1986). “The submission defines the scope of the entire arbitration proceedings by specifically delineating the issues to be decided and no matter outside the submission may be included in the award.” Board of Education v. Hartford Federation of School Secretaries, 26 Conn. App. 351, 353, 600 A.2d 1053 (1992). “The burden of demonstrating the nonconformity of the award to the submission is on the party seeking to vacate the award.” Id., 353-54. Every reasonable presumption will be made in order to sustain an award. Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981).

On the basis of the record provided in this case, we conclude that the trial court acted properly in determining that the respondents did not meet the burden of showing a nonconformity of the award to the submission, which was unrestricted. In his original demand for arbitration, Gabelli raised the issue of whether the joint venture agreement should be rescinded on the bases of a breach of fiduciary duty, misrepresentations and nondisclosure of material facts. Gabelli also sought a return of the funds he contributed to the venture plus attorney’s fees. In his amended claim for relief, Gabelli continued to seek the same relief. He also sought in the alternative, however, contract damages under the agreement. In response to Gabelli’s claims, the arbitrator awarded damages for breach of contract. He denied Gabelli’s request for rescission of the agreement and for attorney’s fees. There is no evidence in the record that the arbitrator’s interim orders and final award exceeded the scope of the submission. There was an unrestricted submission raising the issues of breach of contract and rescission, issues that were not otherwise provided for under the joint venture agreement. The arbitrator had the power to determine all factual and legal questions with respect to the submission. O & G/O ’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 153, 523 A.2d 1271 (1987).

In their brief, the respondents argue that the arbitrator’s third and fourth interim orders were inconsistent with his prior orders. They further argue that the arbitrator, in issuing the interim orders, failed to consider the effect of his prior order enjoining the sale of the property and the effect of the caveats placed by Gabelli on the relevant land records. We are unpersuaded by the respondents’ attempt to retry the facts here. “ ‘If [a] question has been entrusted to the [arbitrator], then the court should not rule upon the merits of the issue and it should not usurp the function conferred upon that tribunal by the parties to the agreement.’ ” Bridgeport v. Connecticut Police Dept. Employees Local 1159, 32 Conn. App. 289, 295, 628 A.2d 1336, cert. denied, 227 Conn. 925, 632 A.2d 703 (1993). “Having bargained for the decision of the arbitrator on the question . . . the parties are bound by it, even if it be regarded as unwise or wrong on the merits . . . .” (Citations omitted; internal quotation marks omitted.) Id. As we have frequently stated, we cannot, and do not, retry the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).

The respondents argue that the arbitrator improperly considered the guaranty that they executed for Gabelli as part of the parties’ agreement. They argue that since there was no actual arbitration clause in the guaranty, there was no obligation to arbitrate any liability under its provisions. They claim that the arbitrator ignored the existence of the guaranty as a distinct legal undertaking, and improperly made it an integral part of the joint venture agreement. He then used the guaranty as a basis for imposing liability on Fraulo and Colangelo individually.

“Arbitrators are only required to render an award in conformity to the submission and an award need contain no more than the actual decision of the arbitrators. An explanation of the means by which they reached the award, unless required by the submission, is needless and superfluous.” Malecki v. Burnham, 181 Conn. 211, 213, 435 A.2d 13 (1980). We agree with the trial court that the arbitrator duly decided that the guaranty constituted an integral part of the agreement. The arbitration proceeding in this case was a creature of contract, and the scope of the arbitration issues was set by the parties in the contract. As part of their counterclaim in the arbitration proceeding, the respondents sought a rescission of the guaranty. The arbitrator determined that both the agreement and the guaranty constituted the basis of the parties’ contract. This was a decision on a legal question that the arbitrator was authorized to make. See Bio-Polymers, Inc. v. D’Arrigo, 23 Conn. App. 107, 111, 579 A.2d 122 (1990).

The parties in this case agreed to submit disputes arising out of the agreement and not covered by the agreement to arbitration. The parties submitted the issue of breach of the agreement, and the submission did not contain limiting or conditional language. The submission, therefore, was unrestricted. Our review of the record indicates that the award conforms to the submission, and the respondents’ claim that the arbitrator exceeded his powers is without merit.

II

Next, the respondents claim that the trial court improperly determined that the arbitrator was not guilty of misconduct when he refused to hear certain evidence. We disagree.

On the first day of the arbitration proceedings, the parties recited a settlement agreement into the record. During the course of testimony before the arbitrator, the respondents attempted to present evidence pertaining to why the settlement had not been concluded. The arbitrator refused to admit this evidence on the basis that it was not relevant. The respondents claim that they also attempted to place in evidence certain information relating to the sale of the property and the distributions from that sale. The arbitrator refused to admit this evidence as well. The respondents argue that the arbitrator, in refusing to admit this evidence, was guilty of misconduct under General Statutes § 52-418 (a) (3).

Section 52-418 (a) provides in relevant part that “[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced

In O & G/O ’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 133, our Supreme Court discussed the standard to be applied under § 52-418 (a) (3). The court noted that “arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which relieve[s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision. . . . Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily. . . . This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities of litigation.” (Citations omitted; internal quotation marks omitted.) Id., 148-49.

In light of these principles, the court “decline[d] to interpret [General Statutes] § 52-418 (a) (3) as mandating that every failure or refusal to receive evidence, even relevant evidence, constitutes misconduct. . . . To establish that an evidentiary ruling . . . rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law. . . . Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel.” (Citations omitted.) Id., 149.

Here, the respondents have neither claimed nor proven that they were denied a full and fair hearing by virtue of the arbitrator’s evidentiary rulings. It was within the arbitrator’s “substantial” discretion to determine the relevancy of the proffered evidence. On the basis of the record before us, we find that the trial court properly concluded that the arbitrator, rather than the court, was the proper judge of the admissibility of the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Colangelo is subject to the arbitration award being challenged in this appeal but he is not a party to this appeal. Capital Impact Corporation was severed from the arbitration proceeding after being placed in receivership proceedings in the United States District Court for the District of Connecticut. No judgment was entered as to Capital Impact Corporation.

       Section 10 of the joint venture agreement, entitled “Arbitration,” provides that “[a]ny matter in dispute, and which is not provided for in this agreement, shall be submitted to arbitration. ...”

       Rule 34 of the Commercial Arbitration Rules provides: “interim measures: The arbitrator may issue such orders for interim relief as may be deemed necessary to safeguard the property that is the subject matter of the arbitration without prejudice to the rights of the parties or to the final determination of the dispute.”

       Specifically, the arbitrator ordered that “[t]he . . . property may be sold .... The net proceeds of the sale . . . shall be remitted promptly to . . . Gabelli. The term ‘net proceeds’ means . . . the sale price of $1,395,000 less the outstanding balance of loans secured by the property and required to be paid in order to convey clear title to the property . . . . The foregoing supercedes the arrangement set forth in paragraph 5 of my letter of February 21, 1992.”

       This amount included the $140,279.11 previously awarded Gabelli in the third and fourth interim orders. It also included $25,000 that had been escrowed with a title insurance company in order to address the caveats placed on the land records, and $109,805.04 with interest from September 15, 1988.

       See footnote 2.

       As discussed previously, the arbitrability of the dispute in this case was challenged by the respondents in their motion to vacate the arbitration award. The trial court determined that the question of arbitrability was a question for the arbitrator. The respondents have not challenged this ruling on appeal.

       In Ms final award, the arbitrator wrote that “[t]he claims of Claimant filed in this proceeding, as amended on April 16,1992, including all claims arising under, or related to, the Guaranty, dated September 19,1988, signed by Respondents Fraulo and Colangelo, are deemed arbitrable pursuant to . . . Section 10 (‘Arbitration’) of the joint venture agreement, dated August 30, 1988 .... The Guaranty . . . constitutes an integral part of the Joint Venture Agreement.”