text:
    GILBERTO GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 30361)
    Harper, Beach and Robinson, Js.
    Argued January 15
    officially released June 29, 2010

      Andrew S. Knott, special public defender, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Gilberto Gonzalez, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly rejected his claim that his trial counsel was ineffective in that he failed to challenge the validity of an arrest warrant. We affirm the judgment of the habeas court.

The following facts and procedural history underlie the petitioner’s appeal. The petitioner was charged with two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. A jury found the petitioner guilty of these crimes, and the trial court rendered judgment in accordance with the jury’s verdict, imposing a total effective sentence of sixty years imprisonment, execution suspended after forty years, and ten years probation. As set forth in a prior opinion of this court, the jury reasonably could have found the following facts: “The victim was bom in 1985. In 1993 and 1994, the victim lived with her mother, the victim’s two half-sisters and the [petitioner]. The [petitioner] and the victim’s mother had lived together from the time that the victim was two years old.

“The victim testified that the [petitioner] sexually assaulted her at least four times a week during 1993 and 1994. Those assaults occurred in the family home while the victim’s mother was either absent from the apartment or while she was in another part of the apartment sleeping. The victim testified that she did not cry out or otherwise attempt to tell her mother about the assaults because the [petitioner] had threatened her. One of the victim’s half-sisters witnessed the assaults on the victim on several occasions. The [petitioner] unsuccessfully attempted to coerce the half-sister into participating in those acts.

“The half-sister eventually disclosed the [petitioner’s] abuse of the victim to a friend at school. That friend, in turn, told the school social worker about the sexual assaults. On March 24, 1994, the social worker spoke with the victim about the assaults. The victim testified that although her half-sister had encouraged her to confide in the school social worker, she initially had lied to the social worker and denied that the [petitioner] had assaulted her. At trial, the victim stated that she had denied that those assaults had occurred because she was afraid of the [petitioner]. The victim eventually did tell the school social worker that the [petitioner] had assaulted her. The victim also was interviewed by an intake worker for the department of children and families (department) and a sexual assault crisis counselor. During those interviews, the victim confirmed the allegations of abuse.

“Following those interviews, the victim and her half-sister confronted the [petitioner] and the victim’s mother with the allegations of abuse during a meeting at the department’s offices. After that meeting, the department took the children into its custody. Three days later, the [petitioner] fled to Puerto Rico. On March 2, 2000, a fugitive task force arrested the [petitioner] in Puerto Rico. He was extradited to Connecticut on March 22, 2000.

“On April 5, 1994, a physician examined the victim on the department’s referral. Although his examination did not establish conclusively that the victim had been sexually assaulted, the physical evidence was sufficient for the physician, to form ‘a very high degree of suspicion’ that the victim had been exposed to some form of sexual contact.” State v. Gonzalez, 75 Conn. App. 364, 366-68, 815 A.2d 1261 (2003), rev’d, 272 Conn. 515, 864 A.2d 847 (2005).

Following the petitioner’s direct appeal, this court reversed the trial court’s judgment and remanded the case for a new trial. State v. Gonzalez, supra, 75 Conn. App. 386. Following its grant of certification to appeal; State v. Gonzalez, 263 Conn. 913, 822 A.2d 242 (2003); our Supreme Court reversed this court’s judgment and remanded the case to this court with direction to affirm the trial court’s judgment. State v. Gonzalez, 272 Conn. 515, 545, 864 A.2d 847 (2005).

In 2005, the petitioner, appearing pro se, filed a petition for a writ of habeas corpus. In April, 2008, the petitioner, represented by counsel, filed an amended petition for a writ of habeas corpus. In his amended petition, the petitioner alleged that his confinement was illegal because he had been deprived of his right to the effective assistance of trial counsel, guaranteed by the federal and state constitutions. With regard to the claim raised on appeal, the petitioner alleged that his trial counsel, Matthew Davis, was ineffective in that “[he] failed to file a [mjotion to [dismiss pursuant to . . . General Statutes § 54-193[a], based upon a stale arrest warrant.” The respondent, the commissioner of correction, denied the petitioner’s claim that he had received ineffective assistance of trial counsel.

The basis of the petitioner’s claim was that although a warrant for his arrest had been issued within the relevant statute of limitations, the warrant had not been executed thereafter within a reasonable period of time. The claim was that his prosecution did not commence within the statute of limitations and that Davis should have filed a motion to dismiss based on the applicable statute of limitations. The petitioner asserted that he neither took evasive action nor was difficult to apprehend after the issuance of the warrant. The petitioner argued that Davis failed to raise a “valid affirmative defense appropriate for a [m]otion to [dismiss” and that, had Davis raised the issue at trial, “the outcome of the trial would have been different in that there would not have been a trial . . . .”

The court held an evidentiary hearing related to the petition. By memorandum of decision filed June 19, 2008, the court denied the petition. The court found that the petitioner’s arrest warrant issued on April 5, 1994, and the petitioner’s arrest occurred on March 2, 2000. The court noted that the applicable statute of limitations provides in relevant part that “no person may be prosecuted for any offense . . . involving sexual abuse, sexual exploitation or sexual assault of a minor except within thirty years from the date the victim attains the age of majority or within five years from the date the victim notifies any police officer or state’s attorney acting in such police officer’s or state’s attorney’s official capacity of the commission of the offense, whichever is earlier . . . .” General Statutes § 54-193a. The court was guided by the analysis in State v. Crawford, 202 Conn. 443, 447-50, 521 A.2d 1034 (1987), in which our Supreme Court applied the similarly worded statute of limitations codified in General Statutes § 54-193 (b). The court observed that in Crawford, our Supreme Court “held that the issuance of an arrest warrant constitutes ‘prosecution’ within the meaning of § 54-193 (b), thus tolling the limitations period.” The court then cited the following language from Crawford: “[S]ome limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation. . . . Therefore, we adopt, what we think is the sensible approach of the model penal code, and conclude that, in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193 (b), must be executed without unreasonable delay. . . . We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations.” (Citations omitted.) State v. Crawford, supra, 450-51. Noting similarities in the language of §§ 54-193a and 54-193 (b), the court deemed it reasonable to apply Crawford’s “unreasonable delay” test to the present case.

The court stated: “The petitioner argues that he was not difficult to apprehend and did not actively attempt to ‘elude’ authorities. The petitioner claims that his address in Puerto Rico was available through family members or through state agencies, including the support enforcement division and [the] unemployment compensation division. At trial, Sergeant John Wacker-man of the Willimantic police department testified that he was unable to locate the [petitioner] after interviewing the victim and obtaining an arrest warrant because he ‘had fled to Puerto Rico’ on March 27,1994, three days after being initially confronted by [the department]. He did not locate the [petitioner] until March 2, 2000, when the [petitioner] was arrested by the fugitive task force of the United States Marshals [Service]. Sergeant Wackerman testified that he had attempted, unsuccessfully, to find out from the family specifically where he was living in Puerto Rico but had not checked with the support enforcement or unemployment compensation divisions of Connecticut. Officer Robert Rosado testified that, when he interviewed the petitioner after [he was] returned to the United States, the petitioner changed his story several times as to why he left for Puerto Rico and why he did not leave an address with the police. [M], the mother of the victims, found out soon after the petitioner left that he was [in Puerto Rico], and went to the police with this information shortly after she, herself, returned from Puerto Rico. She informed Officer Wackerman that he was somewhere in Puerto Rico but could not remember exactly when this [conversation] occurred, stating only that it was in 1995. There is no evidence that the police knew that they could obtain the petitioner’s address from the state agencies.

“It is not entirely clear why it took until 2000 for the [petitioner] to be located; however, this court is not convinced that the efforts to do so were not diligently undertaken. Relocation to Puerto Rico is a far cry from simply moving around towns within Connecticut . . . or to a readily available address in New York . . . and renders a person substantially more difficult to locate and [to] apprehend. While the trial transcript reveals that the authorities may have been aware [that] the petitioner was in Puerto Rico as early as 1995, there is no indication that they knew his exact address or how to directly contact him. The burden of proving unreasonable delay is on the petitioner . . . and he has not met his burden. . . . Therefore, this court cannot say that, but for counsel’s actions, the petitioner would probably have succeeded on a motion to dismiss, and he has failed to establish prejudice under [Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].”

After the court denied the petition for a writ of habeas corpus, the petitioner filed a petition for certification to appeal to this court. The court granted the petition, limited to the claim analyzed previously. This appeal followed.

Relying solely on the federal constitution’s guarantee of effective representation, the petitioner argues that he was deprived of effective assistance in that Davis “fail[ed] to challenge the validity of the arrest warrant” by means of a motion to dismiss. In substance, the petitioner advances the same arguments that he did at his habeas trial, asserting that there was an unreasonable delay or lack of due diligence in the execution of the arrest warrant. The petitioner states: “The claim of the petitioner is that, while the statute of limitations was satisfied by the police when they obtained the warrant, the arrest warrant was stale and thus null and void. This issue of the warrant’s legal effect is an issue for the court to decide in a motion to dismiss.” The respondent argues that the court properly concluded that a motion to dismiss would have been meritless and that the court properly concluded that the petitioner could not establish that Davis’ conduct caused him any prejudice.

We begin our analysis by setting forth the principles that guide our review of the court’s decision. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, [supra, 466 U.S. 687], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. ... [A] reviewing court can find against a petitioner on either ground, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009).

At the hearing on the habeas petition, Davis testified that for tactical reasons, he did not file a motion to dismiss the case based on the validity of the warrant. As stated previously, the court concluded that the petitioner was unable to demonstrate prejudice because he did not demonstrate that it was likely that he would have prevailed on a motion to dismiss. The court properly focused on the delay by law enforcement in executing the warrant. Like the habeas court, we focus on Strickland’s prejudice prong and conclude that the petitioner has not demonstrated that he likely would have prevailed on a motion to dismiss based on the delay in the execution of the warrant.

Several appellate decisions shed light on the issue before us. In Crawford, our Supreme Court laid the framework for analyzing claims involving a delay in the execution of a warrant. The court emphasized: “We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable . . . .” State v. Crawford, supra, 202 Conn. 451. The defendant in Crawford challenged the trial court’s denial of his motion to dismiss, but the Supreme Court rejected the defendant’s claim, noting that he had not attempted to satisfy his burden of demonstrating that there had been an unreasonable delay in the execution of the warrant. Id. The court stated that “[w]e cannot assume, nor could the trial court, that the warrant was not executed with due diligence. . . . There was no evidence to the contrary.” (Citation omitted.) Id.

Our Supreme Court followed Crawford’s analysis in State v. Ali, 233 Conn. 403, 416, 660 A.2d 337 (1995), when it held that a defendant had presented evidence sufficient to warrant an instruction with respect to his affirmative defense related to the statute of limitations. In Ali, there was evidence that during a delay between the issuance and execution of a warrant, the police knew the defendant’s address, the defendant had contact with his children and he sent checks to his children. Id. The court reasoned that it would have been reasonable for a jury to conclude, on these facts, that the police could have effectuated the defendant’s arrest sooner, and, thus, “the issue of whether the state executed the warrant within a reasonable period of time was properly a question of fact for the jury.” Id.

In Thompson v. Commissioner of Correction, 91 Conn. App. 205, 210-16, 880 A.2d 965 (2005), appeal dismissed, 280 Conn. 509, 909 A.2d 946 (2006), this court concluded that the petitioner had demonstrated that his trial counsel had rendered ineffective assistance by failing to file a motion to dismiss a charge on the ground that the offense at issue had not been prosecuted within the statute of limitations. Similar to the present case, the claim centered on a delay in the execution of a warrant; more than nine years had passed between the time the warrant was issued and the time it was executed. Id., 210. This court stated: “We disagree with the conclusion of the [trial] court that the petitioner was difficult to apprehend because he relocated from Newington to Meriden and then to Wallingford. That conclusion is contrary to the evidence because it overlooks the number of times that the petitioner was arrested in Connecticut and taken to the police station for questioning. On those occasions, the petitioner provided his current address and gave his current operator’s license to the police. Under those circumstances, we cannot say that the petitioner consciously tried to avoid apprehension. . . . We also cannot say that the respondent commissioner of correction could show an absen[ce] [of] evidence of a lack of due diligence on the part of the officer charged with executing the warrant . . . .” (Citation omitted; internal quotation marks omitted.) Id., 214-15. This court, in Thompson, concluded that the petitioner’s trial counsel acted in a deficient manner by failing to raise the statute of limitations issue before the trial court and concluded that the deficient performance was harmful because “there is a reasonable probability that the trial court would have dismissed that charge due to the delay between the issuance of the warrant and the execution of the warrant more than nine years later.” Id., 216.

The defendant in State v. Soldi, 92 Conn. App. 849, 887 A.2d 436 (2005), cert. denied, 277 Conn. 913, 895 A.2d 792 (2006), challenged the trial court’s denial of her motion to dismiss in which she claimed, in part, that the prosecution of her violation of probation charge was untimely, as the warrant for the violation had not been executed with due diligence. The warrant was executed more than five years after it had been issued. Id., 851. At a hearing on the motion, the defendant presented evidence that the police readily could have executed the warrant after it had been issued. Id., 853. In denying the motion to dismiss, the trial court in Soldi reasoned that the defendant had failed to present evidence that the police had acted with unreasonable delay or with a lack of due diligence in executing the warrant. The trial court stated: “Without evidence to the contrary, this court cannot assume that the warrant was executed with unreasonable delay or lack of due diligence.” (Internal quotation marks omitted.) Id., 854. This court disagreed with the trial court’s analysis, stating: “[0]nce the defendant put forth evidence that she did not attempt to elude arrest, she was living in West Haven for all but two months during that five year period, her daughter attended West Haven schools, utilities for her residences were in her name, a vehicle was registered at her address, her driver’s license had her address on it and her probation officer testified that he knew of those addresses, the burden should have shifted to the state to prove that due diligence was exercised despite failing to serve the warrant for more than five years.” Id. After concluding that the state failed to demonstrate the reasonableness of the delay, this court reversed the judgment of the trial court denying the defendant’s motion to dismiss. Id., 860.

At the hearing on the habeas petition, the petitioner did not dispute that he had left Connecticut for Puerto Rico three days after the sexual abuse allegations came to light. The petitioner testified that he did not reside in Puerto Rico in an attempt to avoid the authorities and that family members in Connecticut, whom he did not specify, knew his whereabouts after he had left the state. The petitioner testified that several state agencies, including the support enforcement division and the department of labor, had his information on file during the time that he was living in Puerto Rico.

The court had before it transcripts from the petitioner’s underlying criminal trial. The court noted Wacker-man’s trial testimony that when he attempted to interview the petitioner at his residence, he could not locate the petitioner and was told only that he was in Puerto Rico. Wackerman testified that the petitioner had “fled to Puerto Rico” three days after the department had advised him of the victim’s allegations. Wack-erman testified that he had tried to determine the petitioner’s whereabouts from his family members but that he did not contact the support enforcement division or the unemployment compensation division in attempt to locate the petitioner. Further, Wackerman testified that the petitioner was arrested in Puerto Rico by the United States Marshals Service’s fugitive task force after Wackerman had learned of the petitioner’s address in Puerto Rico and provided it to the task force.

Also, the court noted Rosado’s trial testimony that he had interviewed the petitioner following his apprehension. As the court observed, Rosado testified that the petitioner had changed his story several times concerning the reason why he left Connecticut for Puerto Rico. Rosado testified that the petitioner stated that prior to the time he had been contacted by the department concerning the allegations of abuse, he had plans to relocate to Puerto Rico. Later, the petitioner stated that it was his wife’s idea to move to Puerto Rico. When Rosado asked the petitioner why he had not left his contact information with the police, the petitioner blamed his wife. Additionally, Rosado testified that the petitioner had wanted to return to the United States, but “his wife wouldn’t let him come back to the United States because she felt he would be imprisoned for his actions, sexually assaulting her daughters.”

The court also noted the trial testimony of M, the victim’s mother. M testified that the petitioner “left” when the allegations of abuse surfaced. When asked where the petitioner went, M testified: “If he went to Puerto Rico, I don’t know, because I didn’t go with him.” M testified that later, she had learned that the petitioner was in Puerto Rico and that she had traveled to Puerto Rico, where she spoke with him. M recalled that prior to that time, she met with employees of the department concerning the abuse allegations. She stated that at that time, she did not know what to believe concerning the allegations. M testified that following that meeting, the petitioner told her that “he was leaving because he wasn’t going to go to jail being innocent.” M testified that after she returned from Puerto Rico, in 1995, she notified the police that he was in Puerto Rico so that they could bring the petitioner back to Connecticut to answer the charges.

The petitioner does not dispute any of the court’s factual findings, and the court’s factual findings were consistent with the evidence presented. The issue is whether the petitioner satisfied his burden of demonstrating that the warrant was not executed within a reasonable period of time. The court found, on the basis of all of the evidence, that the petitioner had made himself difficult to locate and to apprehend and that he had not left the police with any ready means to contact him. The evidence was uncontroverted that the petitioner left Connecticut for Puerto Rico within days of learning of the victim’s allegations of sexual abuse. The evidence also demonstrated that the petitioner relocated to Puerto Rico, a self-governing, unincorporated territory of the United States, until the time of his apprehension. The petitioner admitted that he did not leave any contact information with the police, and family members did not provide such contact information to the police. Although the petitioner denied consciously eluding the authorities, there was ample evidence to the contrary. In light of the petitioner’s relocation from Connecticut to Puerto Rico and the fact that there was no evidence that the police knew of his Puerto Rico address, we cannot conclude that the petitioner satisfied his burden of demonstrating that there was an unreasonable delay in the execution of the warrant. The timing of the petitioner’s relocation and the fact that he did not relocate to another town or even another state, but to Puerto Rico, is compelling. This is not a case in which evidence was presented that the petitioner had not acted in an elusive manner or that he was readily accessible to the police. Cf. State v. Soldi, supra, 92 Conn. App. 857. Thus, we do not conclude that the burden of proof shifted to the state to demonstrate that it had not acted unreasonably in executing the warrant. Under these circumstances, we conclude that it was unlikely that if Davis had filed a motion to dismiss based on a delay in the execution of the petitioner’s arrest warrant, the petitioner would have prevailed on the motion. Accordingly, we conclude that the court properly concluded that the petitioner was unable to satisfy Strickland’s second prong and properly denied the petition for a writ of habeas corpus on that ground.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       In support of his petition, the petitioner relied on five other claimed acts and omissions by Davis during the trial process. The court rejected those aspects of the petitioner’s ineffectiveness claim, and those grounds and the court’s resolution of those grounds are not relevant to the claim before us.

       As the habeas court noted, before that court the petitioner incorrectly referred to General Statutes § 54-193 as the applicable statute of limitations. In his appellate brief, the petitioner acknowledges that the applicable statute of limitations is codified in General Statutes § 54-193a.

       General Statutes § 54-193 (b) provides in relevant part: “No person may be prosecuted for any offense ... for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense . . . except within one year next after the offense has been committed.”

       We recognize that the claim raised before and addressed by the habeas court was whether Davis improperly failed to bring a motion to dismiss based on the applicable statute of limitations. Before this court, the petitioner focuses solely on Davis’ failure to challenge the validity of the warrant based on the delay in its execution. The habeas court addressed the issue of delay in the execution of the warrant, as that issue was integral to the claim raised in the habeas court. Thus, despite the apparent change in emphasis in the petitioner’s claim, we do not consider it to be materially distinct from the claim raised before the habeas court.

       The petitioner places much emphasis on his testimony that state agencies, specifically the support enforcement division and the department of labor, had information concerning his whereabouts in Puerto Rico and that, upon his apprehension in Puerto Rico, he had waived extradition to Connecticut. We are not persuaded that the petitioner’s conduct following his apprehension is relevant to our consideration of whether he was easy to apprehend. Additionally, there was no evidence that the police were aware of the petitioner’s whereabouts in Puerto Rico or that they were aware that state agencies, which plainly are unrelated to law enforcement or the victim’s allegations, had such information. Thus, we are not persuaded that the petitioner’s purported contacts with these state agencies demonstrated that he had not acted elusively or that his whereabouts were readily ascertainable by the police. We may speculate that, with the luxury of unlimited resources, there are ways to ascertain the location of most persons. Our analysis is not affected by the petitioner’s hypothesis that there was a method by which the police might have located him but by whether the petitioner had eluded authorities or made himself difficult to apprehend.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    JULIUS W. HULL III v. ANTHONY T. FONCK
    (AC 31147)
    Gruendel, Harper and Peters, Js.

      Argued March 9
    officially released June 29, 2010

      Gary A. Mastronardi, for the appellant (defendant).

      Ernest C. LaFollette, for the appellee (plaintiff).
   Opinion

PETERS, J.

General Statutes § 20-327b requires a seller of residential property to execute a report documenting his knowledge of specified aspects of the condition of the property. The issue in this case is whether a disclaimer in the contract for the sale of the property is a bar to an action to recover damages from the seller for a negligent misrepresentation in this mandated report. Because the negligent misrepresentation concerned a defect in the property that was known to the seller and not readily discoverable by the purchaser at the time of the conveyance, the trial court upheld a jury verdict awarding damages to the purchaser. The seller has appealed. We affirm the judgment of the trial court.

On March 9, 2006, the plaintiff, Julius W. Hull III, filed a three count complaint seeking damages from the defendant, Anthony T. Fonck, for fraudulent misrepresentation, fraudulent concealment and negligent misrepresentation in the sale of residential property in Monroe. In response to special interrogatories, the jury found the defendant liable only for negligent misrepresentation. Applying the principle of comparative negligence recognized by Kramer v. Petisi, 285 Conn. 674, 682-83, 940 A.2d 800 (2008), the jury awarded the plaintiff damages of $44,200. The defendant has appealed from the judgment of the trial court denying his motion for judgment notwithstanding the verdict.

The defendant’s appeal does not challenge the accuracy of the underlying facts reported in the trial court’s memorandum of decision denying his motion. Section 20-327b required the defendant, at the time of the sale of the property, to execute a residential property condition disclosure report that became an addendum to the contract of sale between the parties. In the § 20-327b report, the defendant negligently answered “unknown” in response to question 16, which asked: “FOUNDATION/ SLAB problems/settling? Explain _.” In fact, the defendant knew that a crack ran across the entire length of the foundation wall to the floor slab and continued across the slab. In 1972 or 1973, when he had remodeled his basement, he had covered this crack with new walls and new flooring. Because of the wallboard and the flooring, when the plaintiff bought the property from the defendant in 2003, the crack was not discoverable without invasive and destructive testing. The crack did not become visible until November, 2005, when, after unusually heavy rains, the basement of the house became flooded. The flooding caused the plaintiff to remove the basement walls and flooring, thereby revealing the existence of the crack.

The defendant’s appeal likewise does not challenge the trial court’s statement of the general principles governing the law of negligent misrepresentation. As the court held, in accordance with Restatement (Second) of Torts § 552 (1977), “[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” See also D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217, 520 A.2d 217 (1987).

I

The centerpiece of the defendant’s appeal is his argument that he is not hable to the plaintiff because, as a matter of contract law, the contract of sale and, specifically, clauses such as the “CONDITION OF PREMISES” clause contained therein, conclusively established that the plaintiff did not rely on the defendant’s misrepresentation. As authority for this argument, the defendant cites two Supreme Court cases that enforced similar disclaimer clauses to bar actions for innocent misrepresentation. See Gibson v. Capano, 241 Conn. 725, 733, 699 A.2d 68 (1997); Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993).

The trial court rejected this defense on both factual and legal grounds. As a matter of fact, the court held that, in the present case, unlike those described in the cases cited by the defendant, the dispute concerned a risk about which the parties were not equally knowledgeable and therefore not equally competent to bargain. As a matter of law, it held that cases governing disclaimers for innocent misrepresentation do not govern a case, like the present case, in which the misrepresentation was negligent. It cited Martinez v. Zovich, 87 Conn. App. 766, 769, 867 A.2d 149, cert. denied, 274 Conn. 908, 876 A.2d 1202 (2005), in which this court held that “[a] claim that a seller’s intentional, reckless or negligent misrepresentation caused a buyer to enter into a contract for the sale of property is a valid cause of action, even if the contract that the parties entered into constituted the entire agreement between the parties and the contract included a clause disclaiming any representations by the seller as to the conditions of the property.” Id., 778; see also Warman v. Delaney, 148 Conn. 469, 474, 172 A.2d 188 (1961).

The defendant’s appeal challenges the validity of the court’s legal conclusion. His claims of law are entitled to plenary review by this court. See Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 664, 778 A.2d 237 (2001).

The defendant’s contention that the law of innocent misrepresentation enforcing contractual disclaimers is applicable in this case has a number of subparts. As a matter of law, he emphasizes (1) the absence of a claim that his misrepresentation was made in bad faith or that his conduct was unconscionable, (2) the location of the claim in “language contained within the four comers of a form contract” and the fact that the § 20-327b form was extraneous to the terms of the contract of sale between the parties.

The defendant’s first claim of law merits little discussion. We know of nothing in the common-law definition of negligent misrepresentation that requires a party pursuing such a claim to prove either bad faith or uncon-scionability. The defendant has cited no authority for such a proposition. Furthermore, the defendant has not challenged the propriety of the trial court’s jury instructions on negligent misrepresentation, which presumably followed the precepts articulated in § 552 of the Restatement (Second) of Torts, to which the court referred in its memorandum of decision.

The defendant’s second claim of law concerns the actionability of a negligent misrepresentation in a § 20-327b report. This claim is governed by Giametti v. Inspections, Inc., 76 Conn. App. 352, 824 A.2d 1 (2003), in which this court held, as a matter of law, that although a disappointed purchaser of residential property has no damages claim for an innocent misstatement in a § 20-327b report; id., 360; such a purchaser may maintain a common-law action for a negligent misrepresentation therein. Id., 362. This court nonetheless held, on the facts of the record in that case, that the purchaser could not prevail because the seller had had only constructive knowledge of the undisclosed defect in the property, and the purchaser had not established reliance on the misrepresentation. Id.

Applying Giametti to the facts of this case, we are persuaded that it supports the trial court’s conclusion that the defendant’s negligent misrepresentation in his § 20-327b report was a proper basis for the jury’s verdict holding him liable to the plaintiff. The defendant’s misstatement served to conceal his actual knowledge of a defect in the condition of the property that he sold to the plaintiff. See Dockter v. Slowik, 91 Conn. App. 448, 456-57, 881 A.2d 479 (actual knowledge of well’s limited ability to produce water made § 20-327b misrepresentation actionable), cert. denied, 276 Conn. 919, 888 A.2d 87 (2005). Indeed, the significance of the defendant’s misrepresentation in this case was reinforced by his representation in the contract of sale that the floor areas under any rugs or furniture were in substantially the same condition and material as the floor areas that were visible to inspection by the plaintiff. Finally, it bears emphasis that the defendant cannot dispute the fact that, in this case, the defect was not discoverable by any reasonable inspection by the plaintiff at the time of the sale.

Under the circumstances of this case, the trial court properly rejected, as a matter of law, the defendant’s motion for judgment notwithstanding the jury verdict finding him liable to the plaintiff for negligent misrepresentation. We agree with the trial court that the contract principles that govern the law of innocent misrepresentation are not directly transferable to the tort principles that govern the law of negligent misrepresentation.

II

In addition to these claims of law, the defendant also raises a number of essentially factual claims about the validity of the judgment against him. He contests the finding that his misrepresentation was negligent, arguing that his denial of knowledge about settlement problems was accurate because he did not know the severity of the settling and the consequent enlargement of the crack that occurred subsequent to the time of his remodeling of the basement. He likewise contests the jury’s finding of reliance by the plaintiff, arguing that its finding of comparative negligence on the part of the plaintiff establishes the plaintiff’s prepurchase knowledge of a defect in the condition of the house and conclusively refutes the plaintiff’s reliance on the defendant’s misrepresentation. The defendant further maintains that any gaps in the plaintiff’s knowledge were attributable to the plaintiff’s negligence. Specifically, the defendant contends that the plaintiff could have hired additional experts to inspect the home but instead proceeded with the sale despite notice from his home inspector that the foundation had cracks that caused some settlement concerns.

The defendant’s motion for judgment notwithstanding the verdict did not ask the trial court to address the sufficiency of the evidence to support the jury’s verdict in favor of the plaintiff. Because these evidentiary claims are therefore not properly before us, we decline to address them. See Mack v. LaValley, 55 Conn. App. 150, 157, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 20-327b (a) provides in relevant part: “Except as otherwise provided in this section, each person who offers residential property in the state for sale, exchange or for lease with option to buy, shall provide a written residential condition report to the prospective purchaser at any time prior to the prospective purchaser’s execution of any binder, contract to purchase, option, or lease containing a purchase option. . . .”

       Before purchasing the property, the plaintiff engaged a home inspector who reported signs of cracking that were not unusual for a foundation consisting of poured concrete. He also reported “some settlement to the house along the right side, as the last 10 or 12 feet of the structure do tend to settle a little bit away from the structure. . . . The settlement seen is not severe at this time and in my opinion, does not warrant a repair at this time.”
      A prefatory note to the inspection report stated: “This report is based upon the observable unconcealed structural conditions of the residence reported on below at the time of this inspection. Inspectors cannot and do not move furniture or pull up wall-to-wall carpeting, puncture, perforate, lift or remove wall, floor, sidings or roofs to observe conditions behind or under them . . . .”

       The trial court opined that much of the water damage resulted from abnormal settling of a portion of the house, which, in turn, had been caused by improper fill initially put on the property by its builder, who was not a defendant in this case.

       Paragraph 8 of the real estate sales agreement, entitled “CONDITION OF PREMISES [THIS AGREEMENT IS NOT SUBJECT TO ANY INSPECTION CONTINGENCIES]” provides: “The BUYER agrees that he has inspected the Premises, is satisfied with the physical condition thereof and agrees to accept at closing the Premises in the present condition on an ‘as is’ basis .... Neither SELLER nor SELLER’S agents have made any representations or warranties as to said Premises on which Buyer has relied other than as expressly set forth in this Agreement.” This provision was part of a form contract drafted by counsel for the defendant.
      Neither the trial court nor the parties’ appellate briefs have addressed the significance of another sentence in the CONDITION OF PREMISES/ CONTINGENCIES paragraph that states, “SELLER represents that the floor areas under any area rugs or furniture, and the wall areas behind any furniture, wall hangings or other objects, are of substantially the same condition and material as the floor and wall areas that are visible to inspection by BUYER without moving any of the foregoing, and there are no holes in the floors or walls hidden by the same.”
      Although other provisions in the contract contained additional limitations on the defendant’s potential liability to the plaintiff, in this appeal neither party has challenged the propriety of the trial court’s decision to address only the CONDITION OF PREMISES/CONTINGENCIES clause in its memorandum of decision.

       The defendant also claims, on appeal, that, as a matter of fact, the plaintiff has not established his reliance on the defendant’s misrepresentation because there was no evidence that the defendant held himself out as having specialized knowledge about foundations in residential property. In his brief, however, the defendant concedes that, at trial, he did not raise this claim of insufficiency of the evidence in his motion for judgment notwithstanding the verdict. On this record, we agree with the plaintiff that we need not address the merits of this claim. See Practice Book § 60-5.

       The defendant also relies on another provision in the contract of sale in which the parties agreed that “none of the representations made in this Agreement or any addenda attached hereto shall survive delivery of the deed and all representations by SELLER are made to the best of SELLER’S knowledge and belief.” We need not address this claim. Functionally, we can see no distinction between a contract provision purporting to disclaim reliance on representations made by the seller and a contract provision purporting to disclaim the future actionability of any such representations. Procedurally, we note that this claim was not addressed in the trial court’s memorandum of decision and that the defendant did not file a motion for articulation to bring it to the court’s attention.


author: DiPENTIMA, J.

text:
    SENIEL LUCIEN v. MCCORMICK CONSTRUCTION, LLC
    (AC 30800)
    Bishop, DiPentima and Beach, Js.

    Argued February 8
    officially released July 6, 2010

      Michael J. Bamaby, for the appellant plaintiff).

      Gerald L. Garlick, for the appellee (defendant).

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

   Opinion

DiPENTIMA, J.

The plaintiff, Seniel Lucien, appeals from the judgment of the trial court denying her application to discharge the mechanic’s lien filed by the defendant, McCormick Construction, LLC. On appeal, the plaintiff claims that the court improperly concluded that the defendant satisfied its burden of establishing that the plaintiff asserted violations of the Home Improvement Act (act), General Statutes § 20-418 et seq., in bad faith. We reverse the judgment of the trial court.

The parties stipulated to the following facts. In late 2005, the parties commenced negotiations on a contract for the defendant to renovate a residence in Chester that the plaintiff later purchased. On December 13,2005, the defendant sent a proposed contract to the plaintiffs representative, Arlene Boop, an attorney based in New York. The two sides negotiated the terms of the contract, and, on March 20, 2006, the defendant sent Boop a copy of the contract and other related documents, including a “ ‘notice of cancellation.’ ” The plaintiff, however, never signed the contract or any document acknowledging receipt of the notice of cancellation.

The defendant began work on the plaintiffs residence in early May, 2006. From May, 2006, through May, 2007, the defendant sent invoices totaling $323,917.99 to the plaintiff. Of this total, $207,453 represented the original contract price, and the $116,464.99 balance was the result of change orders. The plaintiff has paid the defendant a total of $211,781.28, and the defendant claims that the plaintiff owes it a balance of $82,698.36.

From at least March, 2007, the plaintiff has communicated to the defendant that she disputes the amount the defendant claims that she owes, the change orders and whether the contract was properly or fully performed by the defendant. Additionally, the plaintiff has maintained that the defendant was responsible for delays in performance under the contract, though the defendant contends that the plaintiff was to blame for any delays.

On or about May 16, 2008, the defendant filed a mechanic’s lien with the town of Chester claiming a lien in the principal amount of $99,824.85 against the plaintiffs residence. On or about September 10, 2008, the plaintiff made an application to the Superior Court, pursuant to General Statutes § 49-35a, alleging that there was not probable cause to sustain the validity of the lien and seeking an order for the discharge of the lien pursuant to General Statutes § 49-35b. In seeking to discharge the mechanic’s hen, the plaintiff alleged that the construction contract failed to comply with the act. The court held a hearing regarding the application on September 29, 2008, and issued its memorandum of decision on February 5, 2009.

In its memorandum, the court noted that, based on the stipulated facts, it was unquestionable that the contract violated the act because it was not signed in violation of General Statutes § 20-429 (a) (2), a notice of cancellation was not attached to the contract in violation of General Statutes § 42-135a (2) and the contract failed to provide notice of the homeowner’s right to cancellation in violation of § 42-135a (1). Thus, the dis-positive issue was “whether noncompliance with the act is excused because [the] plaintiff has asserted this defense in bad faith.” After reviewing the facts, the court concluded that “under these circumstances, the defendant has satisfied [its] burden of proving that the plaintiff has acted in bad faith in asserting . . . violations [of the act]. While it is true that [the] plaintiff did make substantial payments on the contract, it is notable that she did not dispute any moneys owed, or the defendant’s performance, until shortly before the final balance was rendered in May, 2007. There is no record evidence to suggest that from the commencement of the construction process in March, 2006, until March, 2007, she registered any complaints about the invoice amounts, delays in performance or the quality of [the] defendant’s work. Further, it is undisputed that although the contract failed to comply with the [act] in a number of material respects, no mention of noncompliance was raised until almost eighteen months after work on the project commenced. [The] [p]laintiff correctly points out that it would be unusual for a party to a contract to recognize whether it complies with the [act], and therefore the late assertion of that defense should not be the basis of a finding of bad faith. Typically, [the] plaintiffs argument would be persuasive. In this case, however, [the] plaintiff was represented throughout the negotiation process by counsel. If defects in the contract were an issue, they could have, and should have, been timely raised. The assertion of this defense, at the eleventh hour, to defeat a significant claim of nonpayment is not consistent with good faith obligations imposed on both parties to a contract.” The court denied the plaintiffs application to discharge the mechanic’s lien, and this appeal followed.

On appeal, the plaintiff claims that the defendant failed to satisfy its burden of establishing that she asserted violations of the act in bad faith. Specifically, she argues that the bases supporting the court’s finding of bad faith—her failure to raise the violations of the act until after the completion of the project and that she was represented by counsel during negotiations— are not, without more, evidence of bad faith. We agree.

Prior to evaluating the plaintiffs claim, we must first articulate the relevant standard of review. “Because the parties have stipulated to the relevant facts, our review is plenary and we must determine whether the trial court’s conclusions of law are legally and logically correct and find support in the stipulated facts.” (Internal quotation marks omitted.) Ace Equipment Sales, Inc. v. H.O. Penn Machinery Co., 88 Conn. App. 687, 690, 871 A.2d 402, cert. denied, 274 Conn. 909, 876 A.2d 1200 (2005).

“The principles governing the . . . claim of bad faith are well established. In Barrett Builders v. Miller, [215 Conn. 316, 328, 576 A.2d 455 (1990)], our Supreme Court stated, in dictum, that a homeowner could not avail himself of the protection afforded to him by § 20-429 if he invoked the statute in bad faith. Our Supreme Court subsequently applied the bad faith exception in Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992), in which it upheld a trial court’s factual finding of bad faith. The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act. . . . Habetz made it clear, however, that mere disagreement about contract performance does not suffice to establish bad faith. Habetz defined bad faith as involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Citation omitted; internal quotation marks omitted.) New England Custom Concrete, LLC v. Carbone, 102 Conn. App. 652, 660-61, 927 A.2d 333 (2007). “It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact.” Habetz v. Condon, supra, 237 n.11.

As it was the defendant that alleged bad faith on the part of the plaintiff, it had the burden of establishing its existence. The court concluded that the defendant had met its burden, reasoning that the plaintiffs representation by counsel throughout the negotiation process and her failure to raise the noncompliance with the act until the defendant raised a claim of nonpayment established bad faith. Our Supreme Court, however, has held that neither of the grounds the court relied on in reaching its conclusion that the defendant had established bad faith on the part of the plaintiff, without additional evidence, rises to the level of bad faith.

In Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 618 A.2d 506 (1992), our Supreme Court considered a similar claim of bad faith on the part of the defendant homeowners in an action brought by the plaintiff to foreclose a mechanic’s lien. As evidence of bad faith, the plaintiff noted that the defendants “prepared the underlying defective contract through their New York attorneys and architect and then relied on the same contract as a defense to its enforcement . . . .’’Id., 248. In rejecting the allegation of bad faith, the court noted that “[t]he fact that the defendants had their architect and New York attorneys draft the contract does not in and of itself indicate bad faith on the part of the defendants. There is no allegation or proof that the attorneys intentionally omitted [the] requirement [that the contract contain notice of the right of cancellation] in order to have an escape hatch. At most, the New York attorneys were negligent in failing to consult Connecticut law and to include the required clause in the contract. An honest mistake does not rise to the level of bad faith.” Id., 248-49. Similarly, in this case there is nothing in the stipulated facts that supports the conclusion that the plaintiff or Boop acted with bad faith in failing to ensure that the contract in this case complied with the act. In the absence of such proof, we cannot conclude that the plaintiff acted in bad faith on this basis.

The court also concluded that the plaintiff acted in bad faith on the basis that she waited until “the eleventh hour” to raise the violations of the act, which the court viewed as “[inconsistent] with good faith obligations imposed on both parties to a contract.” “[initially enforcing the contract and subsequently asserting the contract’s invalidity . . . does not, by itself, present a claim of bad faith. There is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later . . . upon learning that the contract is invalid, then exercising their right to repudiate it.” Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 249. The facts stipulated to by the parties do not state that the plaintiff knew of the violation earlier, or that she purposely drafted the contract in violation of the act in order to later avoid her obligation to pay. There simply is nothing in the stipulated facts that can legally and logically support the court’s conclusion that the plaintiff acted with a dishonest purpose in claiming that the defendant violated the act. We therefore conclude that the court improperly denied the plaintiffs application to discharge the mechanic’s lien.

The judgment is reversed and the case is remanded with direction to grant the plaintiffs application to discharge the defendant’s mechanic’s lien.

In this opinion the other judges concurred.

       The difference in the amount of the lien and the amount now claimed by the defendant is the result of a payment to a vendor after the initial calculation of the amount of the lien.

       General Statutes § 49-35a (a) provides: “Whenever one or more mechanics’ liens are placed upon any real estate pursuant to sections 49-33, 49-34, 49-35 and 49-38, the owner of the real estate, if no action to foreclose the lien is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced. . . .”

       General Statutes § 49-35b provides: “(a) Upon the hearing held on the application or motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the lien should not be sustained or the amount of the lien claimed is excessive and should be reduced.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the lien is established; or (2) order the lien discharged if, (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is established; or (3) reduce the amount of the lien if the amount is found to be excessive by clear and convincing evidence; or (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount.”

       The defendant argues that the issue before that court was “whether there [was] probable cause to sustain the validity of the lien because of the plaintiffs bad faith.” The defendant provides no support for the proposition that he must provide only probable cause of bad faith, and we could find none. Although it is true that under § 49-35b (a); see footnote 3 of this opinion; the defendant needed only to show probable cause to sustain the validity of the lien, once this burden was met, the burden shifted to the plaintiff to “prove by clear and convincing evidence that the validity of the lien should not be sustained . . . .” General Statutes § 49-35b (a). It was at this point that the plaintiff raised the issue of the defendant’s noncompli-anee with the act, and, in order to defeat this claim and prevent the plaintiff from meeting her burden, the defendant asserted, and had to establish, the existence of bad faith.
      Although we note that at a hearing to discharge a mechanic’s lien, “the [lienor] does not have to establish that he will prevail”; (internal quotation marks omitted) 36 DeForest Avenue, LLC v. Creadore, 99 Conn. App. 690, 695, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007); even if we assume that the defendant is correct in its assertion that it must prove only that there was probable cause to sustain the validity of the lien because of the plaintiffs bad faith, the facts of this case do not support a finding of probable cause of bad faith. See id. (“[t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it” [internal quotation marks omitted]).

       The stipulation of facts does not make clear in what states Boop is admitted to practice law. It describes her only as “a New York based attorney.” On the basis of the stipulation, we cannot conclude that she is admitted to practice law in Connecticut and, thus, will not charge her with the burden of knowledge of the act.

       The only case cited by the defendant to support its claim of bad faith is Menillo v. Brian Calandro Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-08-5014822 (July 30, 2008). The Menillo case, which held that failure to raise defects of a contract until after a contractor filed its mechanic’s lien was evidence of bad faith, is contrary to appellate precedent; see Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 249; and “a decision of the Superior Court is not binding on this court.” Rodia v. Tesco Corp., 11 Conn. App. 391, 397, 527 A.2d 721 (1987).