author: SHEA, J.

text:
    JOSEPH GRIGERIK v. GARY SHARPE
    (AC 15099)
    Landau, Heiman and Shea, Js.

      Argued January 21
    officially released July 22, 1997

      Elizabeth Fairbanks Flynn, with whom was Lorinda S. Coon for the appellants (defendants).

      Michael C. Stumo, with whom, on the brief, was Timothy Brignole, for the appellee (plaintiff).
   Opinion

SHEA, J.

The defendants, Gary Sharpe and Angus McDonald-Gary Sharpe and Associates, Inc., have appealed from a judgment rendered on a jury verdict awarding the plaintiff, Joseph Grigerik, damages for breach of a contract to perform soil and percolation tests and to design a site plan and septic system for unimproved land of the plaintiff and also for the defendants’ negligence in performing the contract. As grounds for reversing the judgment, the defendants claim that (1) the plaintiff, who is not a party to the contract, fails to qualify for the status of a third party beneficiary entitled to enforce the contract, (2) the negligence count of the complaint is barred by the applicable statute of limitations, and (3) the trial court abused its discretion in allowing amendments to the complaint adding new allegations of misconduct by the defendants and in ruling that the opinions of two expert witnesses for the plaintiff were admissible. We reverse the judgment on the contract count of the complaint because of an improper charge and order a new trial on that count. We agree with the defendants that the judgment on the negligence count must be reversed because of the statute of limitations and order that judgment for the defendants be rendered on that count. That disposition of the negligence count makes it unnecessary to consider the propriety of allowing the amendments to that count. With respect to the challenged rulings on evidence, we find no abuse of discretion.

There is no significant dispute about the facts that the jury might reasonably have found from the evidence in support of their verdict. In 1983, Edward Lang purchased a tract of undeveloped land on Reservoir Road in the town of Killingworth. The property contained a hill, a marshy area, trees and many vines and bushes. Lang removed some of the trees and bushes and also obtained the release of a power line easement that the utility company no longer needed. Because the land was adjacent to a reservoir, it was within a designated watershed area.

In 1985, Lang negotiated with the plaintiff for the sale of the land. The plaintiff offered $9000 for the property “as is.” He told Lang, however, that he would pay $16,000 if Lang would do the work necessary to obtain the town’s approval of the land as a building lot. Lang agreed to do so. Both of them accompanied the sanitarian for Killingworth when he examined the property. He told them that, because the land was within a watershed district, they needed an engineer to prepare a site plan for drainage.

Lang hired the defendant Gary Sharpe, a professional engineer, and the corporate defendant to prepare a site plan, to design a subsurface sanitary sewage disposal system and to perform the necessary soil testing. Lang told Sharpe that he needed the site plan in order to obtain approval of the land as a building lot and that he had a buyer for the land if the town granted approval. Sharpe did some of the work necessary for the application and various employees of his firm performed the remainder. They completed their work on the site plan on October 16, 1985. After receiving the site plan from Sharpe, Lang presented it to the Killingworth inland wetlands commission, which granted its approval. On November 19,1985, Lang sold the property to the plaintiff for $16,000, as they had agreed.

In the spring of 1986, the plaintiff cleared the land and applied to the town sanitarian for the permits necessary to begin construction of a house in August. The new town sanitarian for Killingworth denied the plaintiffs application for a building permit even though his predecessor had told the plaintiff that the septic system would be approved. The new sanitarian said he was concerned about the suitability of the soil conditions and whether the percolation tests had been performed in the presence of the previous sanitarian. He told the plaintiff that additional percolation tests would have to be performed by an engineer in the presence of arepresentative of the state department of health (department) during the following spring when the soil would be saturated.

When the percolation tests were performed on March 5, 1987, it was concluded that a curtain drain would have to be installed on the land in order to control the seasonally high groundwater. After the plaintiff had constructed the curtain drain, more percolation tests were completed and submitted to the department. On May 20, 1987, that department informed the plaintiff that the tests indicated that the land was unsuitable for a septic sewage disposal system. Additional percolation testing was done in the spring of 1989 in the presence of a department representative, who determined that the tests indicated that minimum public health standards for a septic system could not be met and that the building permits could not be issued.

The plaintiff commenced this action by service on Sharpe on September 20, 1989, and, pursuant to a motion to cite in an additional defendant, his corporation was served on June 5, 1991. After a trial, the jury found the issues for the plaintiff and rendered a verdict for damages of $44,024, including interest, on both the negligence and breach of contract counts of the complaint.

I

THIRD PARTY BENEFICIARY

Because the plaintiff was not a party to the oral contract between Lang and Sharpe, he cannot prevail in this suit on that contract unless he was a third party beneficiary thereof. On this issue the trial court charged the jury that, “[i]f it was intended that [the plaintiff] was an intended, contemplated or foreseeable beneficiary to the contract, then you must find that [the plaintiff] was a third party beneficiary to the contract.” The court submitted three interrogatories to the jurors inquiring whether they found the plaintiff to be an “intended third party beneficiary,” “a contemplated third party beneficiary,” or “a foreseeable third party beneficiary.” The jurors responded no to the first and second inquiries and yes to the third. The defendants claim that the charge was erroneous because the test to be applied is “whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party . . . .” (Internal quotation marks omitted.) Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963). The defendants also claim that the negative responses to the first and second interrogatories indicate that the jury found that the parties to the contract never intended to create such a direct obligation to the plaintiff.

The first Restatement of Contracts recognized the right of a nonparty to enforce a contract made by others if he was either a donee or creditor beneficiary thereof. 1 Restatement (First), Contracts § 133 (1) (a) and (b) (1932). Any other persons who might benefit from performance of the contract were termed “incidental beneficiaries” and would have no legal rights under the contract. Id., §§ 133 (1) (c) and 147. In this case, the plaintiff was not a donee beneficiary because there is no evidence that the promisee, Lang, intended to make a gift to him. Id., § 133 (1) (a). Their relationship was contractual, involving the sale of land. The plaintiff qualifies as a creditor beneficiary of Sharpe’s agreement with Lang, however, if “performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary . . . .” Id., § 133 (1) (b). Lang agreed to obtain the necessary permits from the town for construction of a house on the land he sold to the plaintiff as a condition of their agreement. In order to fulfill his obligation to the plaintiff, Lang employed the defendants to design a septic system and to perform the percolation tests required. He informed Sharpe of his intention to sell the land upon obtaining such approval rather than use the lot himself. Lang’s purpose in contracting with the defendants was to fulfill his obligation to the plaintiff to convey an approved building lot to him. The evident purpose of the transaction with the defendants was to enable Lang to sell his land to the plaintiff at the enhanced price agreed on for the lot. Thus, “performance of the promise [would] satisfy an actual duty of the promisee to the [plaintiff]” and the plaintiff would qualify as a creditor beneficiary of that contract according to § 133 (1) (b) of the Restatement (First) of Contracts.

The Restatement (Second) of Contracts classifies third party beneficiaries into two categories, “intended beneficiaries,” who have a right to enforce a contract made by others, and “incidental beneficiaries,” who have no such right. 2 Restatement (Second), Contracts § 302 (1981). “Unless otherwise agreed ... a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” Id. The apparent reason for abandonment of the “donee” and “creditor” beneficiary classifications was to inaugurate a fresh start in this area of the law by adopting the view of Professor Corbin that nonparties eligible to qualify as third party beneficiaries ought not to be restricted to the donee and creditor categories that Professor Williston had coined. See 2 Restatement (Second), supra, c. 14, Reporter’s Note. There is no indication that the authors of § 302 intended to allow only those creditors to become third party beneficiaries whom a promisor has agreed to pay in satisfaction of a monetary debt of the promisee, as provided explicitly in § 302 (a). Section 302 (b) is sufficiently broad to encompass both donee and creditor beneficiaries. Accordingly, as a creditor beneficiary under the first Restatement, the plaintiff would be an intended beneficiary under § 302 (b) of the Restatement (Second).

In Baurer v. Devenis, 99 Conn. 203, 121 A.2d 566 (1923), our Supreme Court reexamined its earlier decisions involving third party beneficiary contracts, which had been generally regarded as denying to a nonparty the right to maintain an action at law on a contract for his benefit. The court noted that, in each of the cases in which a remedy at law had been denied, “the court has been careful to point out the equitable remedy . . . open to such person.” Id., 208. Ultimately, in view of the union of law and equity achieved by our Practice Act (General Statutes § 52-91 [formerly § 607]), the court concluded that “[u]nless there be numerous parties or conflicting interests, we can see no sound reason why a third person to a contract made for, and intended by the parties for, his benefit, should not maintain his action, whether the relief demanded is legal or equitable.” Id., 216.

In Byram Lumber & Supply Co. v. Page, 109 Conn. 256, 259-60, 146 A.2d 293 (1929), the court declared that “the intent which must exist on the part of the parties to the contract in order to permit the third party to sue was not a desire or purpose to confer a particular benefit upon him, but an intent that the promisor should assume a direct obligation to him.” Despite the reference to the intent of the “parties,” the court acknowledged the absurdity of inferring that a promisor, in the absence of an explicit provision to that effect, would actually have intended to create a direct obligation that would furnish the basis for a possible suit against him. Referring to its decision in Levy v. Daniels’ U-Drive Auto Renting Co., 108 Conn. 333, 339, 143 A.2d 163 (1928), the court; observed that “surely it would be a far cry to attribute to the person leasing the motor vehicle a purpose or desire to confer a benefit upon one injured by its operation.” Byram Lumber & Supply Co. v. Page, supra, 260. In that case the court had upheld the right of an injured person, as a third party beneficiary of the leasing contract, to sue the lessor of an automobile that injured him while being operated by the lessee pursuant to a statute creating such a liability.

Nevertheless, our courts have continued to refer to the intent of the parties “to create a direct obligation” between the promisor and the beneficiary as the test for determining whether a nonparty to the contract is a third party beneficiary thereof. The term “direct obligation,” as used by the courts, implies a right of the beneficiary to enforce the contract. It does not require that the promisor’s performance be rendered directly to the beneficiary. Stowe v. Smith, 184 Conn. 194, 197, 441 A.2d 81 (1981). In determining whether a person has a right of action as a third party beneficiary, “[t]he ultimate test to be applied ... is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” (Internal quotation marks omitted.) Knapp v. New Haven Road Construction Co., supra, 150 Conn. 325; see Gateway v. DiNoia, 232 Conn. 223, 231, 654 A.2d 342 (1995); Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 202, 75 A.2d 507 (1950).

The notion that the promisor and promisee must share the same intent is at variance with most authorities. “There is no requirement of a mutual intent, as to the right of enforcement, on the part of the contracting parties; instead, it is the intent or purpose of the promisee who pays for the promise that has generally been looked upon as governing.” 2 S. Williston, Contracts (3d Ed. 1959) § 356A, p. 836. The Restatement (Second) adopts Williston’s view that it is the intent of the promisee “to give the beneficiary the benefit of the promised performance” that controls. 2 Restatement (Second), supra, § 302, comment (b). Professor Corbin agrees that the intent of the promisor with respect to creating a right of enforcement in the third party is not significant. “[W]e can disregard the purposes and motives of the promisor after we once determine that he has made a legally operative contract with his promisee.” 4 A. Corbin, Contracts (1951) § 776, p. 16.

In Stowe v. Smith, supra, 184 Conn. 196, the court appears to have departed from the view of the earlier cases that a mutual intent of the parties to create a direct obligation of the promisor to the beneficiary is essential to create a right of enforcement on the part of the third party. The opinion acknowledges the numerous cases in which it has “stated that a third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party”; id., 196; as well as the criticism of that doctrine by Williston, Corbin and other commentators. Id., 196-97 n.1. The court upheld the right of a beneficiary of a will to bring a contract action against the attorney who had drafted the will for his failure to follow the instructions of the testatrix, to the detriment of the beneficiary. “A promise to prepare a will pursuant to the instructions of a testatrix states a direct obligation to render a performance beneficial to her, i.e., the creation of a document which would enable her upon her death to effect the transfer of her assets to the beneficiaries named in her instructions. ... If the defendant thwarted the wishes of the testatrix, an intended beneficiary would also suffer an injury in that after the death of the testatrix the failure of her testamentary scheme would deprive the beneficiary of an intended bequest. It therefore follows that the benefit which the plaintiff would have received under a will prepared in accordance with the contract is so directly and closely connected with the benefit which the defendant promised to the testatrix that under the allegations of the complaint the plaintiff would be able to enforce the contract.” (Citations omitted.) Id., 197-98.

We can see no reason for refusing to apply the doctrine of Stowe to the case before us. There is no indication in Stowe that the attorney who prepared the will consciously intended to assume a direct obligation to the beneficiary who brought the malpractice action. Probably neither he nor the testatrix thought about that subject. It was appropriate, nevertheless, to imply a right of enforcement on the part of the beneficiary in order to effectuate the intentions of the testatrix, the promisee.

The benefit that the plaintiff in this case would have received pursuant to the contract between Lang and the defendant Sharpe is also “directly and closely connected with the benefit which the defendant promised to [Lang under] the contract.” Id., 198. The performance promised to Lang, to design a septic system and to do the necessary soil testing, is identical to that on which the plaintiff bases his claim. The circumstance that the plaintiff is a creditor beneficiary while Stowe was a donee beneficiary provides no reasonable ground for distinguishing the two cases. Nor is it significant that the identity of Stowe as a beneficiary of the will was disclosed to her attorney by the testatrix. It is not required that the third party beneficiary be named or otherwise identified at the time of the contract. Byram Lumber & Supply Co. v. Page, supra, 109 Conn. 261; Levy v. Daniels’ U-Drive Auto Renting Co., supra, 108 Conn. 339. “It is not essential to the creation of a right in an intended beneficiary that he be identified when a contract containing the promise is made.” 2 Restatement (Second), supra, § 308.

“[I]n third party beneficiary contracts, intent has become a somewhat confusing basis of decision.” 2 S. Williston, supra, § 356A, p. 836. In contract law, intent does not necessarily refer to the conscious mental processes of the parties making a contract. When making an oral contract, parties seldom focus on such contingencies as who would be entitled to enforce it in the event of a breach. The intent of a contract must be determined, not by speculating as to the thoughts of the parties, but from their words and acts under the circumstances revealed by the evidence. “The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” Ives v. Willimantic, 121 Conn. 408, 411, 185 A. 427 (1936).

We return to the claim of the defendants that the trial court should have set aside the verdict for error in the charge and that judgment should be rendered for the defendants because of the jury’s negative responses to the interrogatories as to whether the plaintiff was an intended or contemplated beneficiary of the contract. The defendants requested a charge to the effect that, unless the jury found that both Lang and Sharpe intended by their contract to create a direct obligation of the defendants to the plaintiff, the verdict on the contract count of the complaint should be for the defendants. Such a charge might have been appropriate in this state prior to Stowe v. Smith, supra, 184 Conn. 194, but we have concluded that the implications of that decision have changed the law and that such a mutual intent of the promisor and promisee is no longer necessary for a beneficiary to have a right to enforce the contract.

We also reject the claim that the answers to the interrogatories, finding that the plaintiff was neither an intended nor contemplated beneficiary of the contract, entitle the defendants to judgment on the contract count of the complaint. First, we agree with the defendants that the instruction to the jury that the plaintiff was a third party beneficiary eligible to recover damages for breach of contract if the jury should find that he was “an intended, contemplated or foreseeable beneficiary [of] the contract” was incorrect. The plaintiff cites no authority, and we are aware of none, that supports the proposition that, if it is foreseeable that “any buyer of the property would derive a benefit from the contract,” as the court charged, he becomes a third party beneficiary thereof. Such a person would be classified as an “incidental beneficiary” under both the first and second Restatements and would have no legal rights under the contract. 1 Restatement (First), supra, §§ 133 (1) (c) and 147; 2 Restatement (Second), supra, § 302, comment (e). Foreseeability in the law of torts is a useful concept in defining the circumstances under which a duty may arise to protect others against a particular harm. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 43, pp. 297-300. It is not, however, a sufficient basis for establishing a contractual relationship. Id., § 92, pp. 655-56.

The instruction that, if he was a foreseeable beneficiary of the contract between Lang and the defendants, the plaintiff would be eligible to recover damages against the defendants for breach of contract, while harmful to the defendants, may also have misled the jurors with respect to their responses to the interrogatories concerning whether he was an “intended” or “contemplated” beneficiary. Although the charge linked those terms with “foreseeable” both disjunctively (thrice) and conjunctively (once), the jurors may well have been under the impression that the practical consequences of determining which of those categories best fits the plaintiff were insignificant in view of the instruction that any one of them was sufficient to support an award of damages to the plaintiff. Foreseeability is a more elastic standard than either of the alternatives, which under the charge required a determination of the mutual intent of both Lang and Sharpe. Their testimony conflicted on whether Sharpe had been told of Lang’s intention to sell the property when the land had been approved as a building lot. The jurors may have decided to circumvent the resolution of that issue by choosing the “foreseeable” alternative, on which a unanimous verdict could be more easily obtained.

The most serious flaw in the charge, however, was the failure of the court to instruct the jury that it was the intent of Lang, the promisee, that should determine whether the plaintiff was a third party beneficiary. If Lang’s purpose in contracting with the defendants was to fulfill the condition of his agreement with the plaintiff concerning approval of the land as a building lot, the plaintiff was a creditor beneficiary of that contract regardless of whether Lang informed the defendants of his intention to sell the property when he obtained such approval. The plaintiff was also an “intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and . . . the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” 2 Restatement (Second), supra, § 302 (1) (b).

We conclude that the judgment on the breach of contract count of the complaint must be set aside and that the case must be remanded to the trial court for a new trial on that count.

II

STATUTE OF LIMITATIONS

The jury awarded the same amount of damages, $44,074, on the negligence count of the complaint as on the contract count. The defendants, however, had pleaded the defense of the “applicable” statute of limitations, presumably intending to refer to General Statutes § 52-584, which provides that “[n]o action to recover damages for injury ... to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” The plaintiff does not dispute that the defendants completed their work on or about October 16, 1985, and delivered the site plan to Lang prior to October 23, 1985, when it was approved by the inland wetlands commission. He must have realized that something was wrong with the defendants’ performance in the spring of 1986 when his application to the new town sanitarian for a permit in order to begin construction was denied. He has not claimed that he could not have discovered the deficiencies in the work of the defendants if he had exercised reasonable care. This action, therefore, which was brought on September 20, 1989, more than three years after the completion of the work, is barred by § 52-584, if that statute is applicable.

The plaintiff claims, however, that the appropriate statute of limitations is General Statutes § 52-584a (a), which provides that “[n]o action ... (1) to recover damages (A) for any deficiency in the design ... or construction of an improvement to real property . . . shall be brought against any architect or professional engineer performing or furnishing the design ... or construction of such improvement more than seven years after substantial completion of such improvement.” If § 52-584a is applicable, it is indisputable that the plaintiffs action was timely.

In R.A. Civitello Co. v. New Haven, 6 Conn. App. 212, 222-29, 504 A.2d 542 (1986), this court reviewed the developments in modem tort law relating to the liability of architects and professional engineers who design buildings or other construction projects and concluded that the result had been “to extend their liability beyond the date of completion of an improvement to all foreseeable users.” Id., 225; see Zapata v. Burns, 207 Conn. 496, 516-17, 542 A.2d 700 (1988). The opinion discusses the background of the model act, adopted with various revisions by thirty states at that time, and concludes that its history indicates that “the model act was drafted not to preempt existing statutes of limitations but to provide these professions additional protection.” R.A. Civitello Co. v. New Haven, supra, 225. The opinion also examines the legislative history of § 52-584a and quotes the remarks of several legislators concerning the need to establish a definite period after completion of a building or project after which the liability of an architect or engineer would terminate. Id., 226-27. The court concluded that § 52-584a “was not intended to give more time than the contract and negligence statutes of limitation may give when applicable, as in the present case. The intent of the seven year statute, and its clear mandate, was to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion, regardless of the nature of the claim, while leaving any other lesser limitations in effect.” (Emphasis added.) Id., 229. Our Supreme Court in Zapata v. Burns, supra, 508, adopted this construction of § 52-584a in rejecting constitutional challenges to the statute claiming violations of the equal protection clauses of our state and federal constitutions as well as the open court’s provision of our state constitution.

The plaintiff maintains that the plan for the septic sewage system, which the defendants completed prior to October 16, 1985, constitutes an “improvement” to real estate because it enhances the value of the land, regardless of whether the system is ever constructed. One of the several definitions of the word “improvement” is “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Webster’s Third New International Dictionary. The trial court concluded that “a properly completed site plan for a septic system would enhance or bring into a more valuable or desirable condition (raw land) as something done or added to the subject land that increased its value.”

We conclude that a plan or design for a structure cannot constitute the kind of “improvement” contemplated by the legislature in establishing “seven years after substantial completion of such improvement” as the time after which architects and engineers become insulated from claims arising out of their participation in the design of a building or other structure. “Section 52-584a is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues.” Zapata v. Burns, supra, 207 Conn. 508. One legislative purpose in establishing such a limitation was to provide a reasonable period for discovery of any design defects that would not become manifest except through actual use for a reasonable period of time. The legislative scheme to allow seven years for discovery of defects after substantial completion of the improvement for that purpose would be frustrated if that period began to run as soon as the architects and engineers involved in the design of a building or structure have completed their work. Such designs are ordinarily completed long before construction begins and, when different persons or firms participate in the design of various phases of a project, it would be unusual for all of them to complete their work at the same time. Often many years elapse before substantial completion of a large construction project. The seven years allowed by the legislature for the discovery of defects after a structure is in use would be greatly reduced and, possibly, never materialize for some participants in the design work, if that period began when their work was completed. We are not inclined to adopt a construction of the statute that in many instances would defeat a significant purpose for its enactment.

As the defendants requested, the trial court should have instructed the jury that the negligence count of the complaint was barred by the applicable statute of limitations, General Statutes § 52-584, and directed a verdict for the defendants on that count. Accordingly, we order that judgment on the negligence count of the amended complaint be rendered for the defendants.

Ill

RULINGS AT TRIAL

The defendants claim that the trial court abused its discretion (a) by permitting the plaintiff to amend his complaint after the jury had been selected and the trial was to commence and (b) by allowing expert witnesses called by the plaintiff to testily that the defendants had failed to perform the percolation tests properly.

A

The contract count of the original complaint dated September 18, 1989, alleged that the defendant Sharpe had breached the contract “by either failing to perform percolation rate tests or by performing said tests improperly.” The negligence count alleged that he had been negligent in performing the site plan work in one or more of four specified ways, each of which involved performance of the percolation rate tests. The same allegations were repeated in the first amended complaint, dated May 10,1991, when the defendant corporation was joined as an additional party.

On May 11, 1995, after the jury had been selected, the plaintiff moved to amend the complaint by adding six additional specifications to the negligence count. Four of these related to deficiencies in the performance of the percolation tests. The other two claimed that the defendants had failed “to follow the proper protocol in completing the site plan in violation of’ a specified state regulation and had “designed the septic system in a faulty manner.” Over the defendants’ objection, the trial court granted the motion to amend, but allowed an additional day for the defendants to investigate the new allegations and to depose one of the plaintiffs expert witnesses.

Because we hold in part II of this opinion that the negligence count is barred by the statute of limitations, § 52-584, it would be an academic exercise to consider whether the trial court, in allowing the amendment, exceeded its broad discretion with respect to such a matter. See Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992). Moreover, that issue is not likely to arise at the new trial we have ordered in part I on the contract count. Under the broad allegation of that count that the defendants “breached the contract by either failing to perform percolation rate tests or by performing said tests improperly,” any evidence relevant to improper performance of the percolation tests would be admissible, regardless of whether it fits within the specifications of negligence contained in the negligence count of the amended complaint.

B

The remaining claims of the defendants relate to rulings allowing the admission of the opinions of two expert witnesses of the plaintiff, Robert Hart and Philip Block, that the defendants had failed to perform the percolation tests with reasonable care. The admissibility of this testimony is likely to arise again at the retrial of the contract count when the plaintiff attempts to prove defective performance of the contract.

The defendants filed a motion in limine to preclude Hart from offering opinions beyond those disclosed in his deposition, which the defendants had taken almost three years before trial. At the deposition, on examination by the defendants, Hart testified initially that he thought that the defendants had performed the percolation tests negligently. His opinion was based on the substantial difference between the results of his own percolation tests on the property and those obtained by the defendants pursuant to the contract with Lang. On further examination by the defendants at the deposition, Hart testified that he would not say that the defendants’ tests were performed negligently, but that they were not indicative of what he had found. He remarked that he could not tell whether the person who performed the tests for the defendants had done them negligently because he was not there. He said that he would not testily that the tests were performed in a negligent manner and would say only that the percolation rates he found from his tests in 1987 and 1989 were different from those reported by the defendants from their tests in 1985. The trial court denied the motion to restrict Hart’s testimony by excluding his opinion as to whether the defendants had been negligent, opining that the defendants could use any inconsistency to attack his credibility and that he should be given the opportunity to explain why he had changed his opinion.

We find no abuse of discretion in the trial court’s ruling. Hart testified at trial that he had formed the opinion that the percolation tests of the defendants were performed negligently after hearing the testimony of the defendants’ employee who had conducted the tests. A witness cannot be prevented from changing his opinion in light of new information he has received. See, e.g., Kaplan v. Mashkin Freight Lines, Inc., 146 Conn. 327, 330, 150 A.2d 602 (1959).

The defendants also argue that Block was not qualified to testily as an expert witness because he was not a professional engineer but only a sanitarian. Block testified that he has acted as a sanitarian for various municipalities since 1967. He was trained in biology, physics and the construction of sewage and septic systems. He is familiar with the public health code regulations and the state health department’s design manual for on-site sewage disposal systems. He is certified by the state to review septic and sewage disposal plans and, in his work as a sanitarian, he has examined many. He has designed many such systems for professional engineering firms.

The fact that Block did not hold a civil engineering degree or a license as a professional engineer “might properly have affected the weight of his testimony, but not its admissibility.” Conway v. American Excavating, Inc., 41 Conn. App. 437, 449, 676 A.2d 881 (1996). A trial court has broad discretion in determining the qualifications of an expert and “the exercise of this discretion is not to be disturbed unless it has been abused or the eixor is clear and involves a misconception of the law.” State v. Asherman, 193 Conn. 695, 716, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

The judgment is reversed as to both counts of the complaint that were submitted to the jury and the case is remanded with direction to render judgment for the defendants on the negligence count and for a new trial on the breach of contract count.

In this opinion the other judges concurred.

       The amended complaint contains four counts. Separate counts alleging breach of contract are directed against the individual and the corporate defendant and the two negligence counts are similarly pleaded. Before the case was submitted to the jury, however, the first two counts against the individual defendant were withdrawn. The jury verdict was rendered against both defendants on the third count for breach of contract and on the fourth count for negligence. The opinion refers to these counts respectively as the breach of contract count and the negligence count.

       The defendant Gary Sharpe testified at trial that Lang had not informed him of his intention to sell the property.

       See footnote 2.

       “Since the terms ‘donee’ beneficiary and ‘creditor’ beneficiary carry overtones of obsolete doctrinal difficulties, they are avoided in the statement of rules in this Chapter.” 2 Restatement (Second), supra, c. 14, Introductory Note. “The stated reason for the change was the ‘creditor’ and ‘donee’ categories were applied differently in different states, some recognizing an enforceable right in only one category, some in the other. Furthermore, courts in numerous cases had allowed recovery by third parties who were neither creditors nor donees, often purporting to apply the Restatement categories, and in so doing they had distended those classifications to the point that the law required restating.” A. Waters, “The Property in the Promise: A Study of the Third Party Beneficiary Rule,” 98 Harv. L. Rev. 1111, 1171-72 (1985).

       “Unless otherwise agreed . . . a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and . . . (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” 2 Restatement (Second), supra, § 302 (D (b).

       The trial court instructed the jury on the third party beneficiary doctrine as follows: “The next question is whether [the plaintiff] was a third party beneficiary 1o the contract between Mr. Lang and the defendants. Thus, you must determine whether [the plaintiff] was an intended or foreseeable beneficiary of the contracts. ... In light of all the evidence, you must determine whether [the plaintiff] was an intended, contemplated or foreseeable third party which was to derive a benefit from the contract for professional services entered into between the defendants and Mr. Lang. You must determine that it was intended, contemplated and foreseeable that any buyer of the property would derive a benefit from the contract or you may determine that it was intended, contemplated or foreseeable that [the plaintiff] specifically would derive a benefit from the contract. If you find that it was intended that [the plaintiff] was an intended, contemplated or foreseeable beneficiary to the contract, then you must find that [the plaintiff] was a third party beneficiary to the contract. In summary, if you determine that [the plaintiff] was a third party beneficiary to the contract and that the defendants breached the contract, then [the plaintiff] is entitled to the damages caused him as a result of the breach.”

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-584a provides: “(a) No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement.
      “(c) For purposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
      “(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring action.”

       “We chose deliberately seven years because we felt if there were going to be any defect in a building it would certainly show up in a seven-year period.” 13 H.R. Proc., Pt. 8, 1969 Sess., p. 4005, remarks of Representative Gerard S. Spiegel.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    TRI-STATE TANK CORPORATION v. HIGGANUM HEATING, INC.
    (AC 16379)
    O’Connell, Lavery and Hennessy, Js.
    Argued April 24
    officially released July 22, 1997

      William Howard, with whom was Eric T. Kaplan, for the appellant (plaintiff).

      Joseph S. Borkowski, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Tri-State Tank Corporation, appeals the judgment of the trial court dismissing its complaint against the defendant, Higganum Heating, Inc., for lack of personal jurisdiction over the defendant. On appeal, the plaintiff contends that the trial court improperly concluded that the state of Kansas did not have personal jurisdiction over the defendant when the plaintiff sought to enforce in Connecticut a judgment obtained in Kansas.

The following facts and procedural history are necessary for the disposition of this appeal. The plaintiff, a Kansas corporation having its principal place of business in Kansas City, Kansas, is engaged in the business of fabricating and selling oil delivery trucks. The defendant is a Connecticut corporation engaged in the business of selling and delivering home heating oil. The parties entered into a contract whereby the plaintiff was to fabricate a tank truck to the defendant’s specifications. After the plaintiff had completed work on the truck, the defendant refused delivery of it.

The plaintiff subsequently instituted an action against the defendant in the District Court for Wyandotte County in Kansas. Joseph Bibisi, the High Sheriff of Middlesex County, served the writ and complaint in that action on J. Norman Comeau at the offices of Higganum Heating, Inc., in Haddam. Bibisi went to the defendant’s offices and asked who was “in charge.” Comeau informed Bibisi that the owner of the business, Clayton Forman, was “out on the road.” Comeau also identified himself as being “in charge of the office” and as having the authority to accept the service.

On February 13, 1996, the defendant failed to appear in the Kansas action and the plaintiff obtained a default judgment against the defendant in the amount of $8200 plus costs and interest.

On April 19, 1996, the plaintiff instituted the present action to enforce the judgment obtained in Kansas. The defendant responded by filing a motion to dismiss the plaintiffs action, asserting that the Kansas court did not have jurisdiction over the defendant. After conducting an evidentiary hearing, the trial court granted the defendant’s motion to dismiss, stating: “Kansas had no personal jurisdiction over the defendant due to failure to serve the appropriate party as specified in the return of service and according to [Kansas Statutes] § 60-304 (e) (3). Therefore, Connecticut lacks subject matter jurisdiction over this action.” This appeal followed.

The plaintiffs appeal centers on its contention that the trial court improperly concluded that, under Kansas law, Kansas did not have personal jurisdiction over the defendant. We agree with the plaintiff.

Our Supreme Court has held that issues regarding the jurisdiction of a foreign court are determined by the law of the foreign state. Smith v. Smith, 174 Conn. 434, 438, 389 A.2d 756 (1978). “[A] judgment presumes jurisdiction over the subject matter and over the persons. ... To overcome this presumption, the burden of undermining the decree of a sister state ‘rests heavily upon the assailant.’ ” (Citation omitted.) Id., 438.

We, therefore, look to the Kansas long arm statute, to determine whether proper service was effectuated in this case. Kansas Statutes Ann. § 60-308 (c) provides: “Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in subsection (b), may be made by serving the process upon the defendant outside this state, as provided in subsection (a) (2), with the same force and effect as though process had been served within this state . . . .” Kansas Statutes Ann. § 60-308 (a) (2), in turn, provides: “The service of process shall be made (A) in the same manner as service within the state, by any officer authorized to make service of process in this state or in the state where the defendant is served . . . .” Kansas Statutes Ann. § 60-304 (e) provides that service on a corporation or partnership may be made “(1) by serving an officer, partner or a resident, managing or general agent, or (2) by leaving a copy of the summons and petition at any business office of the defendant with the person having charge thereof, or (3) by serving any agent authorized by appointment or required by law to receive service of process, and if the agent is one authorized by law to receive service and the law so requires, by also mailing a copy to the defendant. ...”

In the present case, Bibisi’s affidavit states that when he arrived at the defendant’s place of business he inquired as to who was in charge. Bibisi stated that Comeau identified himself as being in charge and freely accepted the service. Furthermore, at the evidentiary hearing, the defendant’s president, Clayton Forman, admitted that he had received the process from Comeau. Forman also admitted that he had given the process to the defendant’s lawyer, Joseph Borkowski. Therefore, since the sheriff left “a copy of the summons and petition at [the] business office of the defendant with the person having charge thereof,” we conclude that proper service was effectuated on the defendant pursuant to Kansas Statutes Ann. §§ 60-304 (e) (2) and 60-308 (a) (2).

The defendant’s reliance on the Uniform Enforcement of Foreign Judgments Act, for the proposition that Connecticut cannot give “full faith and credit” to this default judgment obtained in Kansas, is misplaced. While default judgments are specifically excluded from the definition of “foreign judgments” under General Statutes § 52-604, this action was brought as a common-law suit on a judgment and not as an action under the Uniform Enforcement of Foreign Judgments Act. Moreover, “[General Statutes] § 52-607 preserved the common-law right of a judgment creditor to bring an independent action on the judgment.” Seaboard Surety Co. v. Waterbury, 38 Conn. Sup. 468, 470, 451 A.2d 291 (1982). The plaintiff, therefore, is not precluded from pursuing its common-law action on the Kansas judgment.

Having concluded that the requirements of the Kansas long arm statute have been satisfied, we shift our inquiry to whether the exercise of personal jurisdiction in this case comports with the principles of due process. “The due process clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1984). The United States Supreme Court has held that the test to be applied in considering the reach of personal jurisdiction is whether (1) the nonresident party has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state, and (2) the exercise of jurisdiction based on those minimum contacts would not offend traditional notions of fair play and substantial justice. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 111-12, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987); Burger King Corp. v. Rudzewicz, supra, 475-76; Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction. McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 2 L. Ed. 223 (1957).” Cashman v. Cashman, 41 Conn. App. 382, 389, 676 A.2d 427 (1996).

Although the defendant contends that the Kansas court did not have in personam jurisdiction over it, the plaintiff met the requirements of Kansas Statutes Ann. § 60-308 (b), which was enacted by the Kansas legislature to extend the jurisdiction of Kansas courts to the fullest extent authorized by the due process clause of the fourteenth amendment. Davis v. Grace, 4 Kan. App. 2d 704, 709, 610 P.2d 1140 (1980). Kansas Statutes Ann. § 60-308 (b) provides in pertinent part: “Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts ... (5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state . . . .”

In the present case, the defendant initially contacted the plaintiff in Kansas for the manufacture of a custom tank truck to haul fuel oil. The defendant, on several occasions, contacted the plaintiff in Kansas concerning various details concerning the manufacture of the truck. The plaintiff eventually entered into an express contract with the defendant, which was forwarded to the plaintiffs place of business in Kansas. The plaintiff assembled and manufactured portions of the truck in Kansas.

We hold that the defendant established sufficient contacts with Kansas when it entered into a contract with the plaintiff for the construction of a tank truck, which was to be at least partially constructed in Kansas. By initiating this business transaction, the defendant could have reasonably anticipated being amenable to legal proceedings in Kansas. We conclude that the due process clause is not violated because the defendant purposefully availed itself of the benefits and protection of the laws of Kansas.

We conclude, therefore, that the trial court improperly granted the defendant’s motion to dismiss for lack of personal jurisdiction. On the basis of the evidence presented and the facts found by the trial court, we determine that sufficient service was effectuated and that the defendant had sufficient contacts with Kansas to subject it to personal jurisdiction in that state.

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

In this opinion the other judges concurred.

       General Statutes §§ 52-604 through 52-609.

       General Statutes § 52-604 provides: “As used in sections 52-604 to 52-609, inclusive, ‘foreign judgment’ means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance or by confession of judgment.”

       General Statutes § 52-607 provides: “The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired.”


author: CRETELLA, J.

text:
    STATE OF CONNECTICUT v. JOSEPH PETRUZZELLI
    (AC 16053)
    Foti, Lavery and CreteUa, Js.

      Argued April 21
    officially released July 22, 1997

      Denise B. Smoker, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Philip A. Scarpellino, assistant state’s attorney, for the appellant (state).

      Stuart T. Cadwell, for the appellee (defendant).
   Opinion

CRETELLA, J.

With the court’s permission, the state has appealed from the judgment dismissing a charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. That charge was dismissed following the granting of the defendant’s motion to suppress the results of a blood test. The state sought to use those results in the defendant’s prosecution on that charge. The defendant’s argument is that the taking of his blood sample at Yale-New Haven Hospital did not meet the requirements for admissibility pursuant to § 14-227a(Q.

In its oral decision from the bench, the trial court stated: “The state failed to prove that the defendant had suffered any personal or alleged personal injuries under § 14-227a (1) and that the blood test was taken for diagnosis and treatment of any injury. . . . The court finds that the blood test was not taken for the purpose of diagnosis and treatment of any injury sustained, but for the primary purpose of providing evidence to convict him of the driving while under the influence charge under § 14-227a (1). The state has failed by preponderance of the evidence to comply with the requirements of § 14-227a (l) (1). Furthermore, it violated his constitutional rights against unreasonable search and seizure guaranteed by article first, § 7, of the Connecticut Constitution and [the fourth amendment to] the United States Constitution.” We disagree and reverse the order suppressing the blood test data.

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... Practice Book § 4061 .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996).

At the outset we note that the defendant’s written motion to suppress made no claim of unreasonable search and seizure under article first, § 7, of the Connecticut constitution or the fourth amendment to the United States constitution. The defendant did briefly refer to the fourth amendment during his oral argument and the court agreed to consider it. In his brief to this court, the defendant alleged only that “the taking of the blood sample from the defendant constituted an illegal search and seizure.” We will dispose of the argument concerning illegal search and seizure by noting that the issues in this matter do not involve fourth amendment claims. The police did not take the blood sample or ask for it to be drawn. See Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (“Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative”). We will, therefore, direct our attention only to whether the use of the blood sample and test thereon was in violation of § 14-227a (Z).

The record from the motion to suppress hearing provides extensive evidence that the defendant’s vehicle struck a tree with great force, causing substantial damage to the vehicle. There was probable cause to arrest the defendant at the scene for driving while intoxicated but, on the basis of their observations, the trained medical personnel who came to the scene deemed it advisable, necessary and prudent to have the defendant transported to a hospital for a more complete medical diagnosis. For the police to have done otherwise would have been in dereliction of their duties and at possible peril to the defendant’s health. The hospital personnel took a sample of the defendant’s blood to determine if his behavior was related to intoxication or to a latent head injury. The state later obtained the results of the blood test pursuant to a warrant not challenged in this appeal.

The trial court’s requirement that the state prove that the defendant either suffered actual physical injury or that he claimed he was physically injured is flawed. The fact that the defendant, following the accident, stated he had not sustained any injuries is not the test. Also unimportant is whether the defendant consented to the blood test at the hospital. Consent is not a prerequisite for the admission of the blood test under the statute. The conclusion of the hospital emergency room report that the defendant had not suffered injuries in the accident also had no bearing on the application of § 14-227a (7). The test under the statute is whether the defendant has suffered or allegedly suffered physical injury in such accident. The medical personnel who observed the defendant following the accident agreed that he should be examined for possible internal injuries. This conclusion met the alleged physical injury requirement.

The next condition for admissibility is whether the blood sample was taken for the diagnosis and treatment of such injury or alleged injury. The record reveals no evidence to support the court’s finding that the blood test was taken “for the primary purpose of providing evidence to convict him of the driving while under the influence charge under § 14-227a (T).” The hospital report’s conclusion that the defendant suffered no injuries does not support the finding of the court that the blood test was done to aid the state. One finding does not follow from the other. There was no evidence that the blood was tested at the request of the police. The defendant presented no evidence to contradict the hospital report’s conclusion or the testimony of a physician from the hospital’s emergency room that the blood sample was taken for the diagnosis and treatment of the defendant for possible injury.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 14-227a © provides in relevant part: “[E]vidence respecting the amount of alcohol or drug in the blood of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person after such accident at the scene of the accident, while en route to a hospital or at a hospital, shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if: (1) The blood sample was taken for the diagnosis and treatment of such injury

       The trial court also cited the Connecticut constitution’s provision protecting against unreasonable search and seizure, article first, § 7, as aground for its decision. The decision did not suggest that the protection in article first, § 7, differs from the fourth amendment protection in relation to the issue presented here. Moreover, the defendant has never argued that the state constitution affords him greater protection than does the federal constitution. Because no serious claim has been raised under the state constitution, we confine our analysis to the fourth amendment. See State v. Floyd, 217 Conn. 73, 74 n.2, 584 A.2d 1157 (1991).

       There was no evidence to support the trial court’s conclusion that the defendant was sent to the hospital as a pretext to enable the police to gather evidence to convict him of driving while under the influence.


author: HENNESSY, J.

text:
    SCOTT LARKIN v. COMMISSIONER OF CORRECTION
    (AC 16570)
    O’Connell, Landau and Hennessy, Js.

      Argued April 24
    officially released July 22, 1997

      John K. McDonald, for the appellant (petitioner).

      Vincent J. Dooley, assistant state’s attorney, with whom, on the brief, were MarkS. Solak, state’s attorney, and Mark A. Stabile, assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Scott Larkin, was convicted of two counts of sexual assault in the second degree, one count of sexual assault in the fourth degree and one count of risk of injury to a child. The petitioner appealed that conviction to this court. We affirmed the judgment of the trial court. State v. Larkin, 38 Conn. App. 125, 659 A.2d 1211, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). The petitioner thereafter filed a petition for a writ of habeas corpus, which, after a hearing, was dismissed by the habeas court. The petitioner then filed a request for certification of appeal by this court, which was also denied. This appeal followed.

On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification of appeal by improperly (1) denying his request to review the victim’s medical and psychological records, (2) finding that State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), did not apply retroactively and (3) concluding that the petitioner had effective assistance of counsel.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. Id. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. Id.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).” (Emphasis in original; internal quotation marks omitted.) Tatem v. Commissioner of Correction, 39 Conn. App. 813, 815-16, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996). We now apply this standard of review to each of the petitioner’s claims.

I

The petitioner first claims that the habeas court abused its discretion in refusing to review the victim’s medical and psychological records and to allow him to amend his petition. We disagree.

The following facts pertain to this issue. During the original trial, the court reviewed the victim’s medical and psychological records in camera. The court gave certain of these records to the defendant and sealed others for appellate review. Sometime prior to filing his petition for habeas corpus, the petitioner gained access to the sealed portion of the victim’s records. The records contained a statement that the victim had seen and conversed with her dead grandfather. During the course of the hearing, the petitioner discovered that the records containing the victim’s statement were not disclosed to the defense at trial. He then sought to amend his petition to add the allegation that the trial court had failed to turn over this exculpatory information to him. The habeas court denied his request. The petitioner also sought to have the habeas court reexamine all of the victim’s records to make an independent determination as to what information the trial court should have disclosed. The habeas court refused to do so.

The petitioner claims that, if the habeas court had reviewed the records, it could have determined whether either the trial court had improperly failed to disclose exculpatory information to the defense or the state had improperly failed to turn over the information to the trial court for its review. Moreover, he argues that, had these records been available to him at trial, he could have attacked the credibility of the victim and used it to impeach the state’s expert witness who testified that the victim could distinguish reality from fantasy. The petitioner, therefore, maintains that the habeas court abused its discretion in not reviewing the records or allowing him to amend his petition to add this issue. The habeas court denied his requests because it found that the petitioner could have pursued the issue concerning access to the victim’s records on appeal. We conclude that the petitioner failed to establish that the habeas court abused its discretion.

“The appropriate standard for reviewability of a constitutional claim not raised before sentencing or on direct appeal is the Wainwright ‘cause and prejudice’ standard. Jackson v. Commissioner of Correction, 227 Conn. 124, 133-34, 136, 629 A.2d 413 (1993); Johnson v. Commissioner, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991); Bowers v. Commissioner of Correction, [33 Conn. App. 449, 451, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994)]. ‘The petitioner must show good cause for his failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.’ Daniels v. Warden, 28 Conn. App. 64, 71, 609 A.2d 1052, cert. denied, 224 Conn. 924, 614 A.2d 820 (1992).” Baez v. Commissioner of Correction, 34 Conn. App. 236, 239-40, 641 A.2d 147, cert. denied, 231 Conn. 905, 648 A.2d 148 (1994).

Here, the petitioner failed to offer any evidence explaining why he did not previously challenge the trial court’s determination that certain records were not material to the impeachment of the victim by requesting the Appellate Court to review the sealed records. The petitioner also failed to demonstrate adequately that he was prejudiced by his lack of access to the records. The habeas court properly denied the petitioner’s requests.

II

The petitioner next claims that the habeas court improperly determined that the holding in State v. Cassidy, supra, 236 Conn. 112, did not apply retroactively. We disagree with the petitioner.

The petitioner alleges that the state violated his constitutional right to due process by remarks made during its cross-examination of the petitioner and its closing argument. In Cassidy, the court held that the prosecutor’s argument invited the jury to draw an inference adverse to the defendant solely because he asserted his constitutional right to be present at trial. The prosecutor had argued to the jury that the defendant, because he was present throughout the trial, was able to tailor his testimony to that of the state’s witnesses. Id., 120. In this case, because the prosecutor cross-examined the petitioner regarding his presence in court and made similar comments in closing argument, the petitioner claimed in his habeas petition that he was entitled to a new trial.

In reviewing this claim, the habeas court noted that direct review had been completed and that the petitioner was attempting collaterally to attack his conviction on the basis of the holding in Cassidy. Relying on Johnson v. Warden, 218 Conn. 791, 796, 591 A.2d 407 (1991), the habeas court held that the holding in Cassidy did not apply because new constitutional rules of criminal procedure cannot be announced or applied to cases that are on collateral review.

The petitioner urges this court to apply the criteria set forth in Stovall v. Deno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), to determine the retroactivity of a rule. We decline to do so and agree with the habeas court that the rule announced in Cassidy should not be applied retroactively to cases on collateral review.

In Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the United States Supreme Court abandoned the criteria applied in Stovall for cases on collateral review. It held that, for such cases, new rules generally should not be applied retroactively. Id., 310; see also Johnson v. Warden, supra, 218 Conn. 797, citing the holding of Teague. It also identified two exceptions to this general rule of nonretroactivity: (1) if the rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or (2) if the new rule requires the observance of those procedures that are implicit in the concept of ordered liberty. Teague v. Lane, supra, 307. In the present case, the petitioner has failed to demonstrate that the rule announced in Cassidy falls within one of these exceptions. The habeas court, therefore, properly declined to apply Cassidy retroactively.

Ill

The petitioner next claims that the habeas court abused its discretion in concluding that the petitioner had effective assistance of counsel. Prior to trial, the trial court granted the petitioner’s motion pro hac vice, allowing Attorney Frederick Busconi, a member of the Massachusetts bar, to represent him. In compliance with Practice Book § 24, Busconi was “sponsored” by local counsel. The petitioner argued at the habeas hearing that the local counsel’s lack of experience and failure to participate in the proceedings contributed to depriving him of effective assistance of counsel. We disagree.

“The sixth amendment of the federal constitution requires that ‘the accused shall enjoy the right ... to have the assistance of counsel for his [defense]’ in all criminal prosecutions.” State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108 (1977). “The right to counsel means the right to the conscientious services of competent counsel.” Id.

“In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial. Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A reviewing court can find against the petitioner on whichever ground is easier. Valeriano v. Bronson, supra [85-86]; Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).” (Internal quotation marks omitted.) Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990).

The petitioner maintains that local counsel’s lack of basic knowledge of Connecticut criminal law and Connecticut trial practice and her failure to participate in the defense of the client resulted in the denial of effective assistance of counsel. We are not persuaded that the rules of practice set forth such requirements for local counsel; however, the petitioner must also demonstrate that local counsel’s alleged lack of competence deprived him of a fair trial. We conclude that the petitioner has failed to meet this burden.

The petitioner has not presented this court with any evidence that he was prejudiced by local counsel’s alleged incompetence. Specifically, there is no support in the record that Busconi, the petitioner’s chosen trial and appellate counsel, did not have adequate knowledge of Connecticut criminal law and, therefore, had to rely on local counsel. The habeas court found that Busconi’s representation was more than adequate. In the absence of such evidence, we cannot conclude that local counsel’s performance deprived the petitioner of a fair trial.

We now turn to the gravamen of the petitioner’s complaint that Busconi rendered ineffective assistance in the conduct of his representation, thereby depriving him of a fair trial. The facts in this case as recited in State v. Larkin, supra, 38 Conn. App. 127, are as follows. “On April 5,1991, the defendant, a twenty year old male, met the victim, a twelve year old girl, at a highway picnic area across the street from the victim’s house. He gave the victim a beer and drove her to a wooded area where they engaged in sexual intercourse and other sexual acts. The victim told several people about her sexual encounter with the defendant, all of whom testified at trial. The victim’s parents, upon learning about the incident from reading the victim’s diary, reported the incident to the state police.”

“In reviewing the claim [of ineffective assistance of counsel], this court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under these circumstances, the challenged action might be considered sound trial strategy. Levine v. Manson, [195 Conn. 636, 640, 490 A.2d 82 (1985)]; see also Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). In assessing the petitioner’s claim, this court must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Strickland v. Washington, supra [466 U.S.] 689. Levine v. Manson, supra [640]; see also Valeriano v. Bronson, supra, [209 Conn.] 87.” (Internal quotation marks omitted.) Magnotti v. Meachum, supra, 22 Conn. App. 674-75.

In this case, the petitioner claimed at his habeas hearing that his trial attorney lacked knowledge of the rules of evidence. As an example, he cited the fact that Busconi did not object to the prosecutor’s improperly commenting on the defense’s failure to call the petitioner’s brother and others as defense witnesses. The petitioner avers that if his attorney had been familiar with the rule in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), those comments would have been stricken from the record and a cautionary instruction would have been given. The habeas court noted that neither the petitioner nor Busconi testified at the habeas hearing and, as a result, the habeas court had no evidence before it that the attorney did not know the rule or that his failure to assert it was something other than trial strategy. We agree with the habeas court.

The petitioner also argued that Busconi rendered inadequate representation in that he failed to take any action regarding the prosecutor’s statements that the petitioner’s presence in the courtroom during the trial allowed him to tailor his testimony, in violation of the holding in State v. Cassidy, supra, 236 Conn. 112. At the time of the petitioner’s original trial, however, Cassidy had not been decided. His attorney, therefore, can hardly be held accountable for ignoring a ruling not yet made.

The petitioner additionally claimed that his attorney made errors of omission and commission regarding other evidentiary matters. After a careful review of the record and transcripts, we agree with the habeas court that the performance of the petitioner’s trial counsel did not fall below the standard of reasonable competence.

The petitioner has failed to demonstrate that the habeas court abused its discretion in resolving the issues raised in his petition. We, therefore, conclude that the habeas court did not abuse its discretion in denying the petitioner’s certification to appeal the dismissal of his petition for habeas corpus.

The appeal is dismissed.

In this opinion the other judges concurred.

       It is not clear from the record how the petitioner gained access to the sealed psychiatric records for his habeas hearing.

        Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).

       “The criteria guiding resolution of the question [of the retroactivity of the rule] implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Deno, supra, 388 U.S. 297.

       Practice Book § 24 provides: “An attorney who is in good standing at the bar of another state, the District of Columbia, or the commonwealth of Puerto Rico, may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state; provided, however, that (1) such application shall be accompanied by the affidavit of the applicant certifying whether such applicant has a grievance pending against him or her, has ever been reprimanded, suspended, placed on inactive status, disbarred, or has ever resigned from the practice of law and, if so, setting forth the circumstances concerning such action and (2) a member of the bar of this state must be present at all proceedings and must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded. Where feasible, the application shall be made to the judge before whom such cause is likely to be tried. Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include a showing that by reason of a longstanding attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with respect to the client’s affairs important to the trial of the cause, or that the litigant is unable to secure the services of Connecticut counsel.”

       The petitioner urges this court to adopt the standard set forth in Dorador v. Wyoming, 573 P.2d 839 (Wyo. 1978), which requires that local counsel take an active part in the representation of the client. The petitioner, however, misreads the requirement set forth in this case. The Wyoming Supreme Court ruled that local counsel should “be something more than a matter of form or protocol; it is not intended that he be only a figurehead. It is expected that he take an active part in the representation of the client concerned ... in the absence of out of state counsel.” (Emphasis added.) Id., 841.

       The rule set forth in Secondino provides: “The failure of a party to produce a witness who is within his power to produce, and who would naturally have been produced by him, permits an inference that the evidence of the witness would have been unfavorable to the party’s cause.” Secondino v. New Haven Gas Co., supra, 147 Conn. 675.


author: Per Curiam.

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. CRAIG K. NELSEN ET AL.
    (AC 16626)
    Dupont, C. J., and Landau and Spear, Js.
    Submitted on briefs March 24
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    PETER R. LAMPASONA ET AL. v. GLENN E. FERGIONE ET AL.
    (AC 16287)
    Foti, Spear and Hennessy, Js.
    Argued March 20
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    NEW ENGLAND ROAD, INC. v. NERI CONSTRUCTION COMPANY ET AL.
    (AC 16057)
    Foti, Spear and Hennessy, Js.
    Argued March 20
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    TEXENE BOSCO v. J. NEALE MACDONALD COMPANY, INC., ET AL.
    (AC 15161)
    Lavery, Heiman and Hennessy, Js.
    Submitted on briefs March 24
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    AMERICAN ENVIRONMENTAL TECHNOLOGIES, INC. v. PETER A. BRAY
    (AC 16234)
    Lavery, Schaller and Thim, Js.
    Argued March 20
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    ELIZABETH C. BELTER v. ROBERT A. BELTER
    (AC 15757)
    Dupont, C. J., and Landau and Schaller, Js.
    Submitted on briefs March 24
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    IKE’S AUTO BODY, INC. v. COMMISSIONER OF MOTOR VEHICLES
    (AC 15971)
    Lavery, Heiman and Hennessy, Js.
    Submitted on briefs March 24
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    QUINCY CARPENTER v. COMMISSIONER OF CORRECTION
    (AC 16101)
    Dupont, C. J., and Schaller and Kaplan, Js.
    Argued March 20
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    MAXINE RICHARDSON NISCHAN v. CONNECTICUT NATURAL FOOD MART, INC.
    (AC 16072)
    O’Connell, Lavery and Landau, Js.
    Argued March 20
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    HOSPITAL OF SAINT RAPHAEL v. ROBERT H. MONTGOMERY ET AL.
    (AC 16321)
    Dupont, C. J., and Foti and Spear, Js.
    Submitted on briefs March 24
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    MARGARET EDWARDS ET AL. v. JAMES TIERNEY
    (AC 15760)
    O’Connell, Foti and Spear, Js.
    Submitted on briefs March 24
    officially released April 29, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STEPHEN C. ELDRIDGE v. PHYLLIS ELDRIDGE
    (AC 15839)
    O’Connell, Foti and Spear, Js.
    Submitted on briefs March 24
    officially released May 6, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. SYDNEY M. LIBBY
    (AC 14832)
    Foti, Landau and Schaller, Js.
    Argued March 21
    officially released May 6, 1997
   Per Curiam.

The judgment is affirmed.


text:
    FRANK J. DUFFY v. DIANNE M. LAWRENCE ET AL.
    (AC 16123)
    Lavery, Spear and Hennessy, Js.
    Argued March 21
    officially released May 6, 1997
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES MADDELENA ET AL. v. MARC IANNUCCI ET AL.
    (AC 16152)
    O’Connell, Foti and Schaller, Js.
    Submitted on briefs March 24
    officially released May 6, 1997
   Per Curiam.

The judgment is affirmed.


text:
    CITYTRUST v. LEON E. COOPER ET AL.
    (AC 15923)
    Lavery, Heiman and Hennessy, Js.
    Submitted on briefs March 24
    officially released May 6, 1997
   Per Curiam.

The judgment is affirmed.


text:
    JERALD S. BARBER v. JOHN DESTEFANO, JR., ET AL.
    (AC 16353)
    Landau, Schaller and Spear, Js.
    Argued March 19
    officially released May 6, 1997
   Per Curiam.

The judgment is affirmed.


text:
    HERBERT K. GLENN v. GLENN FENCE COMPANY ET AL.
    (AC 16047)
    Landau, Schaller and Thim, Js.
    Argued March 20
    officially released May 6, 1997
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    STATE OF CONNECTICUT v. RICHARD STEVENSON
    (AC 15396)
    O’Connell, Schaller and Hennessy, Js.
    Argued April 25
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LUIS BANKS
    (AC 15066)
    Landau, Heiman and Daly, Js.
    Argued April 25
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    BEVERLY SMITH HAYES v. RICHARD PATRICK HAYES
    (AC 16317)
    Dupont, C. J., and Landau and Daly, Js.
    Argued April 25
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    SUSAN A. KIREKER v. JOHN LOUIS HOLDING CORPORATION
    (AC 16171)
    O’Connell, Foti and Spear, Js.
    Argued April 23
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    GERALD FISHBACH v. ANTHONY WALKER ET AL.
    (AC 15787)
    O’Connell, Foti and Spear, Js.
    Argued April 23
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    KENNETH R. MILLER v. ALFRED J. ONORATO ET AL.
    (AC 16142)
    Herman, Spear and Hennessy, Js.
    Argued April 21
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    MOIRA MCGLADRIGAN v. CHERYL ANN REYNOLDS ET AL.
    (AC 16249)
    Foti, Lavery and Cretella, Js.
    Argued April 21
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    JULIE NELSON v. DEB’S, INC., ET AL.
    (AC 16116)
    Lavery, Schaller and Hennessy, Js.
    Argued April 22
    officially released May 20, 1997
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    STATEWIDE PARKING SERVICES, INC. v. CITY OF HARTFORD ET AL.
    (AC 15749)
    Lavery, Schaller and Hennessy, Js.
    Argued April 22
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    CAROL LOSCHIAVO v. ANTHONY A. CARBONE
    (AC 15970)
    O’Connell, Foti and Spear, Js.
    Submitted on briefs April 23
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    LAWRENCE DEANGELIS v. COMMISSIONER OF REVENUE SERVICES
    (AC 16305)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued April 24
    officially released May 20, 1997
   Per Curiam.

The judgment is affirmed.


text:
    CANAAN VENTURE PARTNERS LIMITED PARTNERSHIP ET AL. v. ALAN E. SALZMAN
    (AC 15933)
    (AC 16063)
    O’Connell, Lavery and Hennessy, Js.
    Submitted on briefs April 24
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    ROSEMARY LUCIBELLO v. MICHAEL A. LUCIBELLO
    (AC 16254)
    O’Connell, Lavery and Hennessy, Js.
    Argued April 24
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    GERALD F. DEAN v. NORWALK CONTAINER, INC., ET AL.
    (AC 16237)
    Foti, Lavery and Spear, Js.
    Argued April 25
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    H. CLIFFORD O’SHEA, JR., ET AL. v. GERALD F. DEAN ET AL.
    (AC 15370)
    Foti, Lavery and Spear, Js.
    Argued April 25
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. VICTOR MILLAN STATE OF CONNECTICUT v. PABLO ROSADO
    (AC 16448)
    (AC 16449)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued April 24
    officially released May 27, 1997
   Per Curiam.

The judgments are affirmed.


text:
    OSCAR MARTINEZ DEJESUS v. COMMISSIONER OF CORRECTION
    (AC 16085)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued April 24
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    AFSCME, COUNCIL 4, AFL-CIO v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 16535)
    Foti, Landau and Spear, Js.
    Argued April 25
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH PEABODY v. CITY OF SHELTON
    (AC 16501)
    Foti, Schaller and Hennessy, Js.
    Argued April 29
    officially released May 27, 1997
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    CITY OF HARTFORD v. STANLEY V. TUCKER
    (AC 13558)
    Foti, Schaller and Hennessy, Js.
    Argued April 29
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. SAMUEL GIZZIE
    (AC 15811)
    Ileiman, Spear and Stoughton, Js.
    Argued April 29
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ANDREW BASSINGTON BAKER
    (AC 15703)
    Foti, Lavery and Schaller, Js.
    Argued May 2
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    TED BLASSINGAME v. ACME STEEL COMPANY ET AL.
    (AC 16517)
    Foti, Schaller and Hennessy, Js.
    Submitted on briefs May 5
    officially released May 27, 1997
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    ANDREW BURNHAM v. JOHN CARR
    (AC 16515)
    Foti, Schaller and Hennessy, Js.
    Submitted on briefs May 5
    officially released May 27, 1997
   Per Curiam.

The judgment is affirmed.


text:
    LIBERTY BANK v. VINCENT P. PAGANO ET AL.
    (AC 16028)
    Foti, Lavery and Schaller, Js.
    Argued May 2
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    JOHN MITCHELL v. ATLANTIC MUTUAL INSURANCE COMPANY
    (AC 16322)
    Foti, Schaller and Hennessy, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    DAVID RUBIN v. CITY OF BRIDGEPORT
    (AC 16365)
    Foti, Schaller and Hennessy, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPHINE RIDER ET AL. v. V. W. CREDIT, INC.
    (AC 16326)
    O’Connell, Landau and Spallone, Js.
    Argued May 2
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. PATRICIA MURTY
    (AC 16058)
    Lavery, SchaHer and Cretella, Js.
    Argued April 30
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. BRUCE S. BEATON
    (AC 15992)
    Lavery, Schaller and Cretella, Js.
    Argued April 30
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    DORETTA F. SENDER v. JOSEPH J. SENDER
    (AC 16232)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    MAXIMINO RIVERA v. RICHARD BLUMENTHAL, ATTORNEY GENERAL, ET AL.
    (AC 16514)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    ALFRED W. ACKER, JR., ET AL. v. ROMMERRO H. FARRAH ET AL.
    (AC 15752)
    O’Connell, Lavery and Healey, Js.
    Argued May 1
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    LUCILLE SHARP v. SHORELINE CARE LIMITED PARTNERSHIP ET AL.
    (AC 15990)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    BALDWIN PIANO AND ORGAN COMPANY v. CONTEMPORARY MISSION, INC.
    (AC 16136)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    BANK OF NEW HAVEN v. NOOROLLAH KHORSANDI ET AL.
    (AC 16194)
    Dupont, C. J., and Heiman and Spear, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    CONNECTICUT LIGHT AND POWER COMPANY v. STANLEY V. TUCKER
    (AC 15869)
    Dupont, C. J., and Heiman and Spear, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    WRIGHT BROTHERS BUILDERS, INC. v. JOSEPH A. DOWLING ET AL.
    (AC 16135)
    Dupont, C. J., and Heiman and Spear, Js.
    Submitted on briefs May 5
    officially released June 3, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DANIEL CARTER
    (AC 16126)
    Landau, Spear and Hennessy, Js.
    Argued May 27
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. GILBERT G. ELY III
    (AC 12713)
    Landau, Schaller and Hennessy, Js.
    Argued May 27
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM A. JUPIN v. COMMISSIONER OF CORRECTION
    (AC 15912)
    Landau, Schaller and Hennessy, Js.
    Argued May 27
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    MELINDA DIAZ v. JAYESH B. SHELAT ET AL.
    (AC 15994)
    O’Connell, Lavery and Schaller, Js.
    Argued May 27
    officially released June 24, 1997
   Per Curiam.

This case is controlled by Guthrie v. Hartford National Bank & Trust Co., 146 Conn. 741, 156 A.2d 192 (1959).

The appeal is dismissed for lack of a final judgment.


text:
    STATE OF CONNECTICUT v. JOSEPH MOORE
    (AC 15756)
    Lavery, Landau and Healey, Js.
    Argued May 30
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    JOHN L. FABALE v. LINDA FABALE
    (AC 15369)
    O’Connell, Lavery and Spear, Js.
    Argued May 27
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    HALLORAN AND SAGE v. ROBERT PARKER ET AL.
    (AC 16033)
    O’Connell, Lavery and Landau, Js.
    Argued May 28
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    NEW ENGLAND SAVINGS BANK v. MEADOW LAKES REALTY COMPANY ET AL.
    (AC 16250)
    O’Connell, Schaller and Hennessy, Js.
    Argued May 29
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    JAY BRUMBERG, TRUSTEE v. JAMES MASCIA ET AL.
    (AC 16083)
    O’Connell, Schaller and Hennessy, Js.
    Argued May 29
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    FRANKLIN L. FRANK v. LEON E. COOPER ET AL.
    (AC 15617)
    Foti, Landau and Heiman, Js.
    Argued May 29
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    P AND L PROPERTIES, INC. v. CITY OF NEW HAVEN
    (AC 16013)
    Foti, Landau and Heiman, Js.
    Argued May 29
    officially released June 24, 1997
   Per Curiam.

The judgment is affirmed.


text:
    IN RE VETERANS MEMORIAL MEDICAL CENTER
    (AC 16010)
    Heiman, Schaller and Spear, Js.
    Argued May 30
    officially released June 24, 1997
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    GRAHAM HERWERTH v. CITY OF GROTON
    (AC 16788)
    Foti, Landau and Heiman, Js.
    Argued June 4
    officially released July 8, 1997
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    STATE OF CONNECTICUT v. RONALD COTTON
    (AC 15734)
    Foti, Landau and Heiman, Js.
    Argued June 4
    officially released July 8, 1997
   Per Curiam.

This appeal is controlled by State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

The judgment is affirmed.


text:
    MELANIE G. WATROUS v. MARK LOPEZ ET AL.
    (AC 16384)
    Heiman, Schaller and Spear, Js.
    Argued May 30
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DARNELL TOLES
    (AC 16345)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued June 2
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSEPH VON BRITTON
    (AC 15395)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued June 2
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    GARY RAMISK v. COMMISSIONER OF MOTOR VEHICLES
    (AC 16284)
    Schaller, Spear and Hennessy, Js.
    Argued June 4
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    MARYLOU BRADLEY v. TIMOTHY P. RANDALL ET AL.
    (AC 16301)
    Dupont, C. J., and Lavery and Heiman, Js.
    Argued June 6
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ALLEN YOUNG
    (AC 15767)
    O’Connell, Spear and Hennessy, Js.
    Argued June 6
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    RODNEY DAVIS CONTRACTOR, INC. v. SALLY R. HUNGERFORD SALLY R. HUNGERFORD v. RODNEY DAVIS ET AL.
    (AC 16096)
    O’Connell, Spear and Hennessy, Js.
    Argued June 6
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    ERNEST BREINER v. VIN’S KEY CLUB, INC., ET AL.
    (AC 15962)
    O’Connell, Spear and Hennessy, Js.
    Argued June 6
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.