author: LANDAU, J.

text:
    ALPHONSE KRONBERG v. TRINI PEACOCK ET AL.
    (AC 21813)
    Landau, Dranginis and Hennessy, Js.
    Argued November 28, 2001
    officially released January 22, 2002

      David T. Grudberg, with whom, on the brief, was Howard A. Jacobs, for the appellant (plaintiff).

      Carla Ottaviano, for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiff, Alphonse Kronberg, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendants, Trini Peacock and Carol Galinis. On appeal, the plaintiff claims that the court improperly concluded that the saving provisions of General Statutes § 52-593 did not apply to the facts of this case and that the plaintiff’s cause of action was time barred by the applicable statute of limitations. We affirm the judgment of the trial court.

The following facts are not in dispute. On August 13, 1994, the plaintiff was employed as an instructor by EZ Method Driving School, a business owned by Galinis. On that date, the plaintiff sustained personal injuries in a motor vehicle accident that occurred in the course of his employment. More specifically, the plaintiff was a passenger in a motor vehicle that was owned by Galinis and was being operated by Peacock, a student operator. Galinis had insured the vehicle pursuant to a policy issued by New Hampshire Insurance Company (insurer). The policy of insurance contained a provision excluding liability claims for bodily injury to an “employee of the ‘insured’ arising out of and in the course of employment by the ‘insured.’ ” On August 6, 1996, the plaintiff commenced an action against the insurer seeking uninsured motorist benefits. Kronberg v. New Hampshire Ins. Co., Superior Court, judicial district of New Haven at Meriden, Docket No. 254494 (January 25, 2000) (Kronberg I).

Kronberg I was stayed pending resolution of the dispute pursuant to arbitration. The arbitrators found that the plaintiff had failed to demonstrate that he had exhausted the liability insurance coverage for the tortfeasor vehicle and rendered an award in favor of the insurer. The plaintiff subsequently commenced this action on June 29, 2000.

The present action sounded in negligence against the defendants, the owner and the operator of the motor vehicle, and alleged that the plaintiff sustained injuries due to the accident on August 13, 1994. The plaintiff also alleged that his action was brought pursuant to General Statutes §§ 52-592 and 52-593. The defendants filed a motion for summary judgment, claiming that there were no genuine issues of material fact and that the plaintiffs action was barred by the applicable statute of limitations, General Statutes § 52-584. The plaintiff opposed the motion for summary judgment, arguing that the action was saved by § 52-593 because he had named the wrong defendant in Kronberg I. The defendants responded that the plaintiff had not named the wrong defendant in Kronberg I, but properly named the insurer in an action for uninsured motorist benefits.

The court agreed with the defendants, concluding that § 52-593 could not save the present action because the plaintiff did not name the wrong defendant in Kronberg I, an uninsured motorist action against an insurance company. In the present action, the plaintiff named different defendants under a different legal theory, one sounding in negligence.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]. . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). . . . Raynor v. Hickcock Realty Corp., 61 Conn. App. 234, 236, 763 A.2d 54 (2000).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).” (Internal quotation marks omitted.) Davies v. General Tours, Inc., 63 Conn. App. 17, 20-21, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001).

The plaintiff concedes, and we agree, that if this case is not saved by § 52-593, it is time barred by the statute of limitations, § 52-584. The plaintiff does not deny that he knew the identity of the defendants at the time of the collision. The plaintiff, however, argues that § 52-593 should be liberally construed to permit him to prosecute the present action. We disagree and conclude that this court’s recent decision in Isidro v. State, 62 Conn. App. 545, 771 A.2d 257 (2001), which is on point, controls this appeal.

“Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiffs original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual. See Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.2d 763 (1981); see also Vessichio v. Hollenbeck, 18 Conn. App. 515, 520, 558 A.2d 686 (1989). To illustrate, § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle. In Perzanowski, such a situation did not occur. There, the plaintiffs original civil rights action failed against the defendant city because the city was immune from liability in such an action. When the plaintiff later brought an action against the city under a different legal theoiy, the trial court dismissed the action for failure to comply with the statute of limitations. The plaintiff appealed from that judgment, arguing that § 52-593 applied and that, the action therefore was not barred on the basis of the statute of limitations. Our Supreme Court refused to apply § 52-593 because the plaintiffs original action was not dismissed as a result of ‘a mistake in naming a defendant.’ Perzanowski v. New Britain, supra, 507.” Isidro v. State, supra, 62 Conn. App. 549-50.

In Isidro, we concluded that § 52-593 did not save the plaintiffs action because her original action was not dismissed due to her failure to name the proper defendant as a matter of fact. Instead, the action was dismissed because, like the defendant in Perzanowski, the defendant was immune from liability. We noted in our decision in Isidro that the plaintiff did not make a mistake as to the identity of the owner of the vehicle at the time of the original action and that she had been free to pursue the owner in that action, but that for some reason, whether tactical choice or technical deficiency, she did not do so.

As in Perzanowski and Isidro, the plaintiff here brought an action naming the proper defendant for the legal theoiy alleged. He cannot save this negligence action against the owner and the operator of the vehicle from being time barred by claiming that he named the wrong party in Kronberg I because the insurer was the proper defendant in that uninsured motorist action. We therefore conclude that the trial court properly granted the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-593 provides: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action.”

        Kronberg I presently is on appeal before this court. Kronberg v. New Hampshire Ins. Co., AC 20510.

       The plaintiff subsequently withdrew his claim that the action was permissible pursuant to General Statutes § 52-592.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained . . . .”

       Because we conclude that the plaintiffs action is time barred by the statute of limitations and cannot be saved by General Statutes § 52-593, we need not consider the defendants’ alternate ground for affirming the judgment.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    RICHARD A. LAPOINTE v. COMMISSIONER OF CORRECTION
    (AC 21249)
    Lavery, C. J., and Mihalakos and O’Connell, Js.

      Argued October 31, 2001
    officially released January 22, 2002

      Paul Casteleiro, pro hac vice, with whom, on the brief, was W. James Cousins, for the appellant (petitioner).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Jo Anne Sulik, assistant state’s attorney, for the appellee (respondent).
   Opinion

O’CONNELL, J.

The petitioner, Richard A. Lapointe, appeals from the dismissal of his petition for a writ of habeas corpus. He claims that the habeas court improperly (1) denied his multiple motions to open the evidentiary portion of the habeas hearing, (2) failed to grant him a new trial because of ineffective assistance of habeas counsel and (3) failed to rule on his posttrial motion for disclosure. We affirm the judgment of the habeas court.

Following a jury trial, the petitioner was found guilty of capital felony, arson murder, felony murder, murder, arson in the first degree, assault in the first degree, sexual assault in the first degree, sexual assault in the third degree and kidnapping in the first degree. After hearing evidence in the penalty phase of the proceedings on the capital felony conviction, the jury determined that the state had proved an aggravating factor beyond a reasonable doubt and that the petitioner had proved a mitigating factor by a preponderance of the evidence. On September 8, 1992, the petitioner was sentenced to life in the custody of the commissioner of correction without possibility of release. On July 16, 1996, our Supreme Court affirmed the judgment of conviction in State v. Lapointe, 237 Conn. 694, 678 A.2d 942 (en banc), cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). The habeas corpus proceeding that is the subject of this appeal followed. The facts of the underlying crimes and trial court proceedings are detailed in the petitioner’s direct appeal. Id., 696-702. It is sufficient for purposes of this appeal to state that the defendant was convicted by a jury of sexually assaulting and murdering his wife’s eighty-eight year old grandmother, and thereafter setting her apartment on fire to cover the crimes.

Following the defendant’s direct appeal, a group known as “Friends of Richard Lapointe” (Friends) raised funds to retain an attorney to attack collaterally what the Friends perceived was a wrongful conviction. The group retained Henry Theodore Vogt, a member of the Connecticut bar, for this purpose. Vogt filed a petition for a writ of habeas corpus, which, after a series of amendments, came to trial on February 23, 2000, and continued on various dates until its conclusion on April 6, 2000.

As the habeas hearing progressed, the Friends became dissatisfied with the manner in which Vogt was handling the trial and attempted to terminate his representation of the petitioner. In the middle of the ongoing habeas trial, a New Jersey attorney, Paul Casteleiro, entered the courtroom and, without filing an appearance and without association with Vogt, seated himself at the counsel table. Casteleiro also delivered an affidavit to the court clerk that was critical of Vogt’s handling of the case. Vogt objected to Casteleiro’s presence, prompting a rebuke of Casteleiro by the court and an order for him to go back and sit in the spectator section of the courtroom. Undeterred, Casteleiro persisted in his efforts to interfere in the proceedings, causing the court to warn him that “[i]f you open your mouth once more, I am going to have the sheriff place you under arrest.”

The remainder of the habeas hearing proceeded without incident and concluded on April 6, 2000. On or about April 20, 2000, W. James Cousins, a Connecticut attorney, attempted to file an appearance on behalf of the petitioner. Vogt objected to Cousins’ appearance pursuant to Practice Book § 3-8. While Vogt’s appearance was still active in the case, Cousins filed a series of motions. These included a motion to open the trial, a motion to admit the New Jersey counsel, Casteleiro, as counsel pro hac vice and a motion to strike Vogt’s posttrial brief together with a memorandum of law in support of the request to open the evidence. The habeas court advised Cousins that he “had no right to file anything” until the question of whether he was to be counsel in the case was resolved by the court. Ultimately, the habeas court ruled that Vogt would remain in the case to file a reply to the respondent’s posttrial brief, if he chose to do so, and upon so filing, his services in the case would be concluded. The court allowed the pleadings filed by Cousins to stand, granted the motion to admit Casteleiro pro hac vice and made it clear that the court was not “going to start this case all over again, we are not going to reopen the evidentiary portion of this case. It’s far too late for that.” The court further indicated that it would decide the case on the evidence that was presented and would ignore those aspects of new counsel’s material that it considered beyond the scope of the hearing or harmful to the petitioner. In a comprehensive memorandum of decision, the habeas court dismissed the habeas petition.

The petitioner does not contend that the habeas court improperly dismissed the habeas petition on the basis of the evidence before the court. Rather, he contends that (1) habeas counsel should have presented additional evidence that would have warranted a favorable habeas ruling and (2) the habeas court should have allowed the petitioner the opportunity to offer such additional evidence after the close of the hearing.

I

The petitioner, through his new counsel, first argues that the court improperly refused his multiple motions to open the evidentiary portion of the trial. He sought to present evidence of actual innocence, prosecutorial misconduct and ineffective assistance of criminal trial counsel. A case may be opened to fill an evidentiary gap resulting from inadvertence, mistake or some compelling circumstance. Bortner v. Woodbridge, 250 Conn. 241, 265-67, 736 A.2d 104 (1999). Examination of the petitioner’s motions, the accompanying memorandum of law and his appellate brief make it clear that in this case, he was not seeking to merely fill in an inadvertent evidentiary omission, but rather to retry most of the case and to initiate entirely new theories of defense.

It is elementary that a habeas corpus petitioner may rely only upon that which he has pleaded and that his right to recover is limited to the allegations of his petition. Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001). Whether a court will open a case after the close of testimony is within the court’s discretion. State v. Carter, 228 Conn. 412, 420, 636 A.2d 821 (1994). This discretion must be carefully exercised. “If requests to reopen were casually granted and became routine, the orderly trial process, fundamental to our jurisprudence, would soon erode away.” (Internal quotation marks omitted.) State v. McKnight, 191 Conn. 564, 578, 469 A.2d 397 (1983). Every reasonable presumption is given in favor of the correctness of the habeas court’s ruling. See State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977).

We conclude that the habeas court did not abuse its discretion in declining to open the evidentiary portion of the trial.

II

The petitioner next claims that he is entitled to a new trial because of the ineffective assistance of his habeas counsel. The law presumes that counsel is competent until evidence has been introduced to the contrary. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is elementary jurisprudence that the determination of whether counsel’s conduct was ineffective is a peculiarly fact bound inquiry. Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991). No citation is needed for the fundamental principle that as an appellate tribunal, this court cannot find facts. Only a trial court could find that Vogt’s performance was constitutionally defective, and it could do so only after a claim of ineffective assistance of counsel was properly filed, pleaded and litigated. “Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for a writ of habeas corpus or a petition for a new trial, not a direct appeal. . . . Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence that is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.” (Citations omitted; internal quotation marks omitted.) State v. Owens, 63 Conn. App. 245, 262, 775 A.2d 325, cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001).

The petitioner is not without remedy. There is no bar to his filing a petition for a second writ of habeas corpus challenging the effectiveness of his first habeas counsel. Lozada v. Warden, 223 Conn. 834, 845, 613 A.2d 818 (1992). We conclude, therefore, that the petitioner improperly raised this claim on direct appeal from the dismissal of his habeas petition.

Ill

The petitioner’s final claim is that the habeas court improperly failed to rule on his posttrial motion for disclosure of certain allegedly exculpatory material. Following the close of the habeas trial, the petitioner filed a motion for disclosure of exculpatory evidence seeking to obtain reports and opinions concerning the bum time of the fire in the victim’s home. The habeas court never mled on this motion.

“ ‘It is elementary that to appeal from the ruling of a trial court there must first be a ruling.’ State v. Kim, 17 Conn. App. 156, 157, 550 A.2d 896 (1988). Without ... a hearing on [a] motion and ultimate findings or rulings of the trial court, there is no record for us to review. ‘[T]his court cannot review a nonexistent ruling.’ Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 179, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1381 (1991). It is the duty of the appellant to furnish this court with a proper appellate record.” State v. Kindrick, 30 Conn. App. 56, 60, 619 A.2d 1 (1993). Accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Attorney Casteleiro represented the petitioner on appeal before this court in pro hac vice status.

       Practice Book § 3-8 provides in relevant part: “Whenever an attorney files an appearance for a party . . . and there is already an appearance of an attorney ... on file . . . the attorney . . . filing the new appearance shall state thereon whether such appearance is in place of or in addition to the appearance or appearances already on file. If the new appearance is stated to be in place of any appearance or appearances on file, the party or attorney filing that new appearance shall serve, in accordance with Sections 10-12 through 10-17, a copy of Uiat new appearance on any attorney or party whose appearance is to be replaced by the new appearance. Unless a written objection is filed within ten days after the filing of an in-lieu-of appearance, the appearance or appearances to be replaced by the new appearance shall be deemed to have been withdrawn


text:
    RICHARD A. LORICCO, SR. v. EDMUND L. PANTANI ET AL.
    (AC 20570)
    Schaller, Mihalakos and O’Connell, Js.
    Argued October 31, 2001
    officially released January 22, 2002

      Max F. Brunswick, for the appellants (named defendant et al.).

      David S. Doyle, for the appellee (plaintiff).
   Opinion

O’CONNELL, J.

In this mortgage foreclosure action, the defendants Edmund L. Pantani (Edmund) and T. Maire Pantani (Maire) appeal from the judgment of the trial court determining the amount of mortgage debt due the plaintiff. On appeal, the defendants claim that the trial court improperly (1) granted the plaintiffs motion for summary judgment, (2) struck the case from the jury docket, (3) ruled that the defendants’ recoupment claim was barred by the statute of limitations, (4) granted the plaintiffs motion for a special finding and (5) awarded interest in an amount greater than that provided in the note. We affirm in part and reverse in part the judgment of the trial court.

The plaintiff brought this foreclosure action claiming that Edmund defaulted on a $112,800 note payable to the plaintiff and secured by a mortgage on real property in Stonington. Edmund filed an answer in which he asserted two special defenses: (1) that he was not the owner of the subject property; and (2) that at no time did he own more than a one-half interest in the property. He also filed a counterclaim to recover the value of legal services that he allegedly had rendered for the plaintiff and a separate claim for setoff and recoupment. Maire filed a separate answer and a counterclaim alleging that the plaintiff fraudulently induced Edmund into executing the note underlying the mortgage.

Thereafter, the court granted the plaintiffs motion for summary judgment as to liability only and dismissed Maire’s counterclaim because she had failed to appear for jury selection. The plaintiff then filed an amended complaint alleging that he was seeking to foreclose only on Edmund’s one-half interest in the property. Following a hearing in damages, the court denied Edmund’s recoupment and setoff claims, determined the debt, awarded attorney’s fees and rendered a judgment of foreclosure by sale. On March 3, 2000, the defendants appealed from the January 21, 2000 “judgment determining the amount of debt in foreclosure action.”

I

The defendants claim that the court improperly granted the plaintiffs motion for summary judgment as to liability on the underlying note. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) Benvenuti Oil Co. v. Foss Consultants, Inc., 64 Conn. App. 723, 726-27, 781 A.2d 435 (2001).

In its memorandum of decision, the court found that Edmund had raised no material issues of fact as to whether the note was executed, whether the plaintiff was the holder of the note or whether the note was in default. The defendants claim that there was a material issue of fact as to whether the plaintiff fraudulently induced Edmund into executing the note. It is important to note that Edmund, in his answer, did not plead fraud, but only unfair trade practice. Maire did plead fraud, but faded to file an affidavit or other proof cognizable in a summary judgment proceeding.

We conclude that the court properly determined that the defendants had failed to submit affidavits or other proof disclosing the existence of a genuine issue of material fact in regard to their liability on the note and, therefore, the plaintiff was entitled to summary judgment as a matter of law.

II

The defendants next claim that the court improperly struck the case from the jury docket. Maire claimed the case for the jury docket, but the court, on its own motion, struck it from the jury docket when Maire and her counsel did not appear for jury selection. The court then entered an order dismissing her counterclaim and scheduled the case for a trial to the court. Edmund claims that he had a constitutional right to have his counterclaims heard by a jury and was improperly deprived of a hearing on the matter. Edmund never filed a jury claim and relies solely on the jury claim filed by Maire that was struck by the court.

It is well established that this court is not required to review claims that were not properly raised in the trial court. Practice Book § 60-5; Brehm v. Brehm, 65 Conn. App. 698, 702-703, 783 A.2d 1068 (2001). Edmund failed to reclaim the case to the jury docket and did not raise any objection to the court’s striking of Maire’s claim from the docket. Rather, he acquiesced in having the case proceed as a trial to the court and now, for the first time, attempts to raise the issue on appeal. Because the defendants failed to raise an objection when the case was struck from the jury docket or during the ensuing trial, this issue is unpreserved, and we will not review it.

III

The defendants next claim that the court improperly ruled that Edmund was not entitled to a reduction of the debt by way of recoupment for legal work that he had performed for the plaintiff in the past. We disagree.

The court concluded that the claim for recoupment was barred by the statute of limitations because the services on which it was based were performed more than nine years ago and also because the services did not arise out of the same transaction that gave rise to the plaintiffs cause of action.

“Recoupment means keeping back something which is due, because there is an equitable reason to withhold it. Black’s Law Dictionary (5th Ed. 1979). The defense of recoupment has two characteristics: (1) the defense arises out of the transaction constituting the plaintiffs cause of action; and (2) it is purely defensive, used to diminish or defeat the plaintiffs cause, but not as the basis for an affirmative recovery. Id. It rests on the principle that both sides of a transaction should be settled at one time in order to prevent circuity of actions.” (Internal quotation marks omitted.) Genovese v. J. N. Clapp Co., 4 Conn. App. 443, 445-46, 495 A.2d 1079 (1985).

Although a claim of recoupment is not barred by the statute of limitations, it must arise out of the same transaction. Id. In this case, Edmund’s recoupment claim is based on unrelated legal services and, therefore, does not arise out of the same transaction as the plaintiffs cause of action. Accordingly, the court properly denied the claim on that ground.

IV

The defendants next claim that the court improperly granted the plaintiffs motion for a special finding as to the claims made by Maire. Specifically, the defendants claim that they had no opportunity to be heard on the motion.

After the court rendered judgment on February 1, 2000, the plaintiff filed a motion for a special finding against Maire pursuant to General Statutes § 52-226a, claiming that her actions and defenses in the case were without merit and brought in bad faith. Three days later, on February 4,2000, the court granted the motion. Maire never filed a response to the motion for a special finding. Additionally, she did not seek an articulation of the court’s order, nor did she seek to correct or to open the judgment granting the motion.

We first address the threshold question of whether this claim is reviewable. With respect to this motion, the record on appeal does not contain a written memorandum of decision or a transcribed copy of an oral decision signed by the court. See Practice Book § 64-1 (a). “The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant. . . . We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review.” (Internal quotation marks omitted.) Neihaus v. Cowles Business Media, Inc., 66 Conn. App. 314, 317, 784 A.2d 426 (2001). In fact, the defendants failed to include a copy of the motion or the judge’s order in the record. Additionally, the defendants make no claim that the court’s ruling prejudiced Maire. Although we acknowledge that the defendants are challenging the procedure in which the motion was granted rather than the substance of the order itself, we are unable to ascertain the basis for the decision or whether Maire was prejudiced by it. We conclude, therefore, that the record furnished to us is inadequate for our review.

V

Finally, the defendants claim that the court improperly calculated the damages by awarding interest in an amount greater than that allowed under the note. The plaintiff concedes that the interest rate used to calculate damages was incorrect. Accordingly, we must reverse the judgment and remand the case for a determination of the correct debt.

The judgment is reversed only as to the amount of interest on the debt and the case is remanded with direction to recalculate the debt and to reset the sale date.

In this opinion the other judges concurred.

       The defendant Branford Savings Bank is not involved in this appeal. We refer in this opinion to Edmund and Maire as the defendants.

       At trial, Edmund and Maire were represented by separate counsel. On appeal, both defendants are represented by the same counsel.

       A summary judgment as to liability only where the question of damages remains is not appealable. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985).

       Although foreclosure actions may not be claimed to the jury docket, Maire was entitled to a jury trial on her counterclaim seeking damages.

       On May 11, 1999, the plaintiff filed a motion to strike Maire’s claim from the jury list. On September 14, 1999, the court dismissed Maire’s counterclaim for failure to appear for jury selection and scheduled the case for a trial to the court.

       As discussed previously, in this opinion, Maire’s counterclaim was dismissed for failure to appear for jury selection.

       General Statutes § 52-226a provides in relevant part: “In . . . any civil action tried to the court, not more than fourteen days after judgment has been rendered, the prevailing party may file a written motion requesting the court to malte a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith. Any such finding by the court shall be admissible in any subsequent action brought pursuant to section 52-568.”

       On February 10, 2000, the defendants filed a motion for reargument and reconsideration of the court’s decision barring their claim of recoupment. In that motion, there was no mention of this claim. The trial court denied that motion.


author: HENNESSY, J.

text:
    MARY KRIZ v. COLDWELL BANKER REAL ESTATE ET AL.
    (AC 19745)
    Schaller, Mihalakos and Hennessy, Js.

      Argued January 9, 2001
    officially released January 29, 2002

      James E. Coyne, with whom, on the brief, was Kevin S. Coyne, for the appellants (defendant Danforth Smith et al.).

      Todd Thomas Trautz, for the appellee (plaintiff).

      Kevin M. Tepas, with whom, on the brief, was Brock T. Dubin, for the appellee (named defendant).
   Opinion

HENNESSY, J.

The defendants Danforth Smith and Deforest Smith (Smith defendants) appeal from the judgment, rendered after a jury trial, in favor of the plaintiff, Mary Kriz, after the trial court granted the motion for a directed verdict filed by the named defendant, Coldwell Banker Real Estate (Coldwell Banker). The Smith defendants claim that the trial court improperly (1) directed the verdict in favor of Coldwell Banker on the plaintiffs complaint and on their cross claim for apportionment, (2) admitted into evidence testimony concerning a prior accident, (3) admitted into evidence testimony concerning subsequent remedial measures and (4) charged the jury on the issues of control, notice, prior accident or occurrence and subsequent remedial measures. We reverse the trial court’s judgment on the first claim, and, therefore, we need not review the remaining claims.

The jury reasonably could have found the following facts. On October 9, 1995, the plaintiff, a real estate agent, intended to show a client a residential property that was listed by Coldwell Banker. At approximately 6 p.m., the plaintiff obtained a key to the property from Coldwell Banker’s Milford office. At approximately 7:20 p.m., the plaintiff went to Coldwell Banker’s office to return the key. Prior to the plaintiffs return, a Coldwell Banker employee had turned off the exterior lights to the building. The plaintiff, however, thought that the Coldwell Banker office was still open because the interior lights were on when she drove into the parking lot. The Coldwell Banker employee was still in the office and, when the employee saw the plaintiff drive into the parking lot, the employee turned off the interior lights. The plaintiff left her car engine running and hurried to Coldwell Banker’s door. By this time, the interior was dark. The Coldwell Banker employee stood inside in total darkness. As the plaintiff approached Coldwell Banker’s door, she fell, hit her head on the door and was injured.

The plaintiff commenced an action against Coldwell Banker, the tenant of the premises, and the Smith defendants, the owners and landlords of the premises, claiming that each defendant negligently caused her injuries by failing (1) to turn on the lights to the walk area so that the condition of the stairs could be seen by the plaintiff, (2) to light the walk area adequately so as to make it safe, (3) to maintain an automated illumination of the exterior step, (4) to warn the plaintiff of the dangerous condition and (5) to inspect the step to ensure that it was safe for use. The plaintiff further claimed that the defendants maintained the entranceway step in a dangerous condition by carpeting the stairs with a dark color carpet and by using a low step riser and configuring the step in an unusual and unsafe manner. The Smith defendants and Coldwell Banker filed separate answers to the complaint denying the plaintiffs claims and alleging special defenses that the plaintiff failed (1) to keep a proper lookout, (2) to be inattentive to her surroundings, (3) to make proper use of her senses and faculties and (4) to exercise reasonable care for her own safety. The plaintiff denied each of these special defenses.

The Smith defendants brought a cross claim for apportionment against Coldwell Banker, claiming that Coldwell Banker’s negligence and carelessness proximately caused the plaintiffs injuries. After the evidence but before final arguments, Coldwell Banker moved for a directed verdict on the plaintiffs complaint and the Smith defendants’ cross claim. The court granted Cold-well Banker’s motion and concluded that there was insufficient, evidence, as a matter of law, to prove the plaintiffs claims and the Smith defendants’ cross claim against Coldwell Banker. The court allowed the jury, however, to decide the plaintiffs action against the Smith defendants, which resulted in a jury verdict against them. This appeal followed.

The Smith defendants claim that the court improperly directed the verdict in favor of Coldwell Banker on the plaintiffs complaint and on their cross claim for apportionment. “Directed verdicts are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion.” (Internal quotation marks omitted.) Domogala v. Molin, 57 Conn. App. 525, 527, 749 A.2d 676 (2000). “Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail.” (Internal quotation marks omitted.) Colombo v. Stop & Shop Supermarket Co., 67 Conn. App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002). “In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom. ” (Internal quotation marks omitted.) Abramczyk v. Abbey, 64 Conn. App. 442, 447, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001).

I

The Smith defendants claim that the court improperly directed the verdict in favor of Coldwell Banker on the plaintiffs complaint as a matter of law. Specifically, the Smith defendants argue that the issue of who had exclusive possession and control over the lighting of the area where the plaintiff fell was a genuine issue of material fact to be decided by the jury. The Smith defendants’ claim turns on whether the jury reasonably could have concluded that Coldwell Banker had exclusive possession and control of the light switch.

“Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue.” Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969).

We conclude that the court improperly concluded that Coldwell Banker was entitled to a directed verdict as a matter of law. By granting the motion for a directed verdict in favor of Coldwell Banker, the court improperly concluded that the jury reasonably could not have found that Coldwell Banker was in exclusive possession and control of the light switch. Here, the lease agreement provided that the Smith defendants retained control over the area outside of Coldwell Banker’s leased premises. The lease agreement, however, failed to specify who had exclusive possession and control over the light switch that illuminated the common area. Exclusive possession and control of the light switch, which was located within Coldwell Banker’s leased premises, was a disputed fact. Although the court admitted evidence that showed that the landlords had changed the lights to an automated system after the plaintiffs injuries occurred for the limited purpose of showing control, there was also evidence that showed that the light switch was within Coldwell Banker’s premises and that Coldwell Banker’s employee had turned the lights off at the time of the plaintiff’s approach and immediately before her fall and injury. Viewing the evidence in a light most favorable to the plaintiff, we conclude that the jury reasonably could have found that Coldwell Banker had exclusive possession and control of the light switch. The trial court, therefore, improperly directed the verdict in favor of Coldwell Banker on the plaintiff’s complaint.

Coldwell Banker argues that it had no duty to the plaintiff because, as a matter of law, the Smith defendants, as landlords, had the duty to maintain the common area, including the duty to provide for adequate illumination. We disagree. The general rule requires the use of reasonable care not to cause injury to those whom a person reasonably could foresee might be injured by the person’s negligent conduct, whether that conduct consists of acts of commission or omission. See Gazo v. Stamford, 255 Conn. 245, 251, 765 A.2d 505 (2001). There is no question that Coldwell Banker had a duty to use reasonable care not to cause injury to the plaintiff and could reasonably foresee that the conduct of its employee in turning off the lights might cause the plaintiff injury.

Coldwell Banker further argues that the Smith defendants may not delegate their duty to light the walkway common area to an agent and, therefore, Coldwell Banker cannot be held liable for failing to light the walkway. We do not agree. Coldwell Banker had a separate and distinct duty to keep its business invitees safe from harm. If Coldwell Banker had exclusive possession and control of the light switch that lit the common area approach, then Coldwell Banker had a duty to act as a reasonable person would to protect its business invitees from harm.

The plaintiff argues that even if the directed verdict was improper, a new trial should be limited to apportionment and the jury’s determination of damages should not be disturbed. Specifically, the plaintiff argues that the jury was properly charged on the issue of comparative negligence and instructed on how to compute damages and, therefore, the verdict was determined correctly according to legal principles. We disagree.

“Ordinarily the reversal of a jury verdict requires a new trial of all the issues in the case. Where the error as to one issue ... is separable from the general issues, the new trial may be limited to the error found, provided that such qualification or hmitation does not work injustice to the other issues or the case as a whole.” (Internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 332, 736 A.2d 889 (1999). Generally, the issues of liability and damages are interwoven and may not be separated without injustice to one of the parties. Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988). Our Supreme Court has stated: “[W]here . . . liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for atrial on all issues.” (Internal quotation marks omitted.) Id., 456.

We conclude that because there is a question regarding liability, ordering a new trial limited to apportionment would be a serious injustice to Coldwell Banker. If the new trial were limited to apportionment, there would be an assumption that Coldwell Banker was liable without a determination by the jury of liability. Although Coldwell Banker participated in the trial, it did not participate in closing arguments, was not present at the jury charge or the following proceeding regarding the Smith defendants’ motion to set aside the verdict. For these reasons, a new trial on all issues is necessary.

II

The Smith defendants also claim that the court improperly directed a verdict in favor of Coldwell Banker as to their cross claim for apportionment. We agree.

“Apportionment does not affect the determination of whether the defendant is liable under a theory of negligence but, rather, affects the determination of his degree of fault once a trier of fact has determined that his breach of a reasonable standard of care was a substantial factor in causing the plaintiffs injuries. . . . Once it is determined that the defendant’s conduct has been a cause of some damage suffered by the plaintiff, a further question may arise as to the portion of the total damages which may properly be assigned to the defendant, as distinguished from other causes.” (Citation omitted; internal quotation marks omitted.) Henriques v. Magnavice, 59 Conn. App. 333, 338, 757 A.2d 627 (2000). In light of our decision in part I of this opinion, each of the defendants together or individually may be found liable, and, therefore, the further question as to the portion of the total damages that may properly be assigned to each is for the jury to determine. We conclude, therefore, that the court improperly directed the verdict on the Smith defendants’ cross claim for apportionment. We need not address the remaining claims.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Specifically, the Smith defendants claimed that Coldwell Banker failed (1) to turn on the lights to the entrance so that the condition of the stairs and area in front of the building could be seen by the plaintiff, (2) to light the area adequately so as to make it safe for the plaintiff and other invitees or patrons, (3) to inspect the premises and area to ensure that they were safe for the plaintiff, general public or other invitees, and (4) to warn the plaintiff, the general public or invitees of said dangerous condition when they could and should have done so. The Smith defendants further claimed that Coldwell Banker maintained the entranceway in a dangerous area relating to the lighting and other conditions alleged by the plaintiff.

       The court’s jury charge provided in relevant part: “I’ve come to the conclusion that with respect to the defendant Coldwell Banker, the tenant in this case, and against whom the plaintiff and the landlords have made separate claims of negligence, that there is insufficient evidence, as a matter of law, to establish such claims, and, therefore, I must direct you to return a verdict for the defendant Coldwell Banker.”

       The court directed the verdict in an oral decision. The parties submitted an unsigned copy of the transcript of the court’s findings. Although it would have been preferable for the Smith defendants to have moved for an articulation or at least to have asked the trial court to sign the transcript and indicate the relevant portion of the transcript where the court’s analysis could be found, we are satisfied with the transcript. See, e.g., Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). It is not uncommon for this court to review unsigned transcripts of oral decisions where the transcript reveals the basis of the trial court’s findings. Crystal Lake Glean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 145-46 n.7, 728 A.2d 1145, cert. denied, 250 Conn 920, 738 A.2d 654 (1999).

       Moreover, during oral arguments regarding the directed verdict motion, the court informed ColdweE Banker’s attorney that control of the Eght switch was a question of fact for the jury to decide.


author: PETERS, J.

text:
    ZML 301 TRESSER LIMITED PARTNERSHIP v. CITY OF STAMFORD PRUDENTIAL REALTY SECURITY II, INC. v. CITY OF STAMFORD
    (AC 21235) (AC 21236)
    Lavery, C. J., and Flynn and Peters, Js.

      Argued September 25, 2001
    officially released January 29, 2002

      Jonathan S. Bowman, with whom were Barbara M. Schellenberg and, on the brief, Monte E. Frank and Kenneth B. Pavadator, for the appellant (defendant in both cases).

      Elliott B. Pollack, with whom were Gregory F. Servodidio and, on the brief, Gwen P. Weisberg, for the appellees (plaintiff in each case).
   Opinion

PETERS, J.

Municipal taxation of real property is governed by state statutes. These statutes reflect the intent of the legislature that, with few exceptions, real property will be revalued only at the time of a periodic citywide revaluation. Without an annual showing of aggrievement, the market value of real property as established in the base year of revaluation carries over and so governs tax assessments for the interim years until the next citywide revaluation. General Statutes § 12-62 (a) (l). Interim changes in the market value of real property are not grounds for reassessment. See id.

One of the statutory exceptions to § 12-62 (a) (1) is found in General Statutes § 12-53a, which authorizes an interim reassessment if a taxpayer has made physical improvements to the property. The question at issue in this appeal is whether a taxpayer loses the carryover right established by § 12-62 (a) (1) once § 12-53a authorizes a reassessment. Under the circumstances of this case, the answer to that question turns upon the significance of the city’s failure to make a reassessment according to the market value standard that the city now claims to be appropriate. We conclude, as did the trial court, that the taxpayers herein did not lose their carryover rights under § 12-62 (a) (1) and therefore did not have to prove their aggrievement for subsequent tax years.

The plaintiffs, ZML 301 Tresser Limited Partnership, now EOP-Three Stamford Plaza, L.L.C., and Prudential Realty Security II, Inc., now EOP-Four Stamford Plaza, L.L.C., (taxpayers) brought separate actions in the Superior Court against the defendant city of Stamford (city) to obtain refunds for property taxes they allegedly had overpaid. 5See General Statutes § 12-117a. As originally filed, their complaints concerned the tax year 1993, the year of revaluation. While these complaints were pending, the taxpayers amended their complaints to include the tax years 1994 through 1998. For trial, the cases were consolidated and referred to an attorney trial referee; General Statutes § 52-434 (a) (4) and Practice Book (1999) § 19-2, now § 19-2A; for an evidentiary hearing.

In his report to the trial court, the attorney trial referee found that the taxpayers had established their aggrievement and their overtaxation both for the base tax year 1993, the year of revaluation, and for subsequent tax years 1994 through 1998. Over the objection of the city, the trial court accepted the report of the attorney trial referee and rendered judgments in favor of the taxpayers’ right to recover excess tax payments. We affirm these judgments.

In its appeal to this court, the city no longer contests the taxpayers’ aggrievement and their entitlement to tax refunds for 1993, the base year. With respect to the subsequent tax years, however, the city argues that, as a matter of law, the taxpayers were not entitled to tax refunds without a further annual showing, through expert testimony, of valuations of their properties that reflected the enhanced market value of their properties as improved. We are unpersuaded.

The report of the attorney trial referee sets out the relevant facts, which now are undisputed. As authorized by § 12-117a, the taxpayers filed tax appeals in the years 1993 through 1998. With respect to the base year, 1993, the taxpayers proved, through expert testimony, that they were aggrieved and had been overtaxed. For the subsequent tax years, the taxpayers introduced no further evidence of aggrievement and overassessment.

During these subsequent years, the taxpayers made substantial improvements to their properties. As a result of those improvements, the city assessor increased the taxpayers’ assessments to reflect the changes in the values of their properties as improved. The reassessments were based on the enhanced physical values of the properties. Inferentially, these reassessments did not purport to recalculate the value of the plaintiffs’ properties in light of citywide changes in market conditions that had occurred after 1993. The taxpayers paid the additional taxes resulting from the reassessments of the improvements, which they did not then or now contest.

On the basis of these factual findings, which are undisputed, the attorney trial referee concluded that the taxpayers had established their aggrievement and their over-assessments both for the base year and for the tax years 1994 through 1998. That conclusion was premised on the determination that the carryover provision in § 12-62 (a) (1) applied despite the taxpayers’ property improvements. The city’s disagreement with this conclusion is the focal point of its appeal to this court.

The city argues that, for three reasons, the taxpayers were not entitled to tax refunds for any year subsequent to 1993. It maintains that, with respect to succeeding tax years, the taxpayers have (1) relied on improper pleadings, (2) failed to prove their aggrievement and (3) failed to establish the market value of their properties.

Each of the city’s arguments presents an issue of law. In a tax appeal, “[w]hen . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Union Carbide Corp. v. Danbury, 257 Conn. 865, 871, 778 A.2d 204 (2001); see also DeSena v. Waterbury, 249 Conn. 63, 73, 731 A.2d 733 (1999); Davis v. Westport, 61 Conn. App. 834, 840, 767 A.2d 1237 (2001).

The second and third of these issues present questions of statutory construction. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

I

PLEADINGS

The city’s first claim is that the taxpayers are not entitled to relief because of significant defects in their amended pleadings. This claim need not long detain us because it is not sustained by the record. The city argues that the plaintiffs’ amended pleadings were improper because they contained no factual allegations to support their right to refunds for the years following 1993.

According to Practice Book § 60-5, this court is bound to review a claim on appeal only if “it was distinctly raised at the trial or arose subsequent to the trial. . . .” At trial, although the city initially had objected to the taxpayers’ amended pleadings, it thereafter formally withdrew its objection. The city has not directed our attention to anything in the record that would demonstrate that, despite the withdrawal, the issue was somehow revived during the hearing held by the attorney trial referee. The city does not argue that this claim is of such significance that it warrants plain error review. See Practice Book § 60-5. We decline to undertake any further review of the merits of this claim.

II

AGGRIEVEMENT

The city’s second and principal claim is that the judgments at trial improperly relieved the taxpayers of their burden to show their aggrievement for each of the tax years subsequent to 1993. Concededly, the taxpayers would have had no such burden if they had not improved their properties. According to the city, § 12-53a shifted that burden back to the taxpayers once they improved their properties. We disagree.

Before we address the merits of the city’s argument, we need to place it in context. For the ordinary tax appeal, § 12-117a “provide[s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property . . . .” (Internal quotation marks omitted.) Konover v. West Hartford, 242 Conn. 727, 734, 699 A.2d 158 (1997), and cases therein cited. In this case, by contrast, the taxpayers have not questioned the revaluation of their improved properties by the city’s tax assessor. Furthermore, there is nothing in the record to show that the city ever has reassessed their properties according to the market value standard that the city now claims to be applicable. Notably, under § 12-53a (c), reassessments are not effective until a taxpayer is given notice thereof. The taxpayers received no notice of any kind. Cf. United Illuminating Co. v. New Haven, supra, 240 Conn. 467. It is ironic, to say the least, that the taxpayers’ successful actions to correct 1993 overassessments based on market value should now serve as a platform for reducing their rights to refunds in subsequent years.

Despite the lack of a reassessment based on changed market values, the city contends that the taxpayers must show their aggrievement for every tax year after 1993. According to the city, they must prove that their improved properties were overvalued, not by 1993 market values, but by the annual market values of their improved properties in each succeeding tax year.

As a matter of statutory construction, the city argues for a market value standard that is nowhere to be found in the text of § 12-53a. Although the statute authorizes the reassessment of improved property, it fails to specify the standard that should govern such reassessments. To the best of our knowledge, there is no legislative history that might assist us in filling the statutory gap.

As a matter of case law, the city’s position is no stronger. The city relies on this court’s decision in Midway Green Corp. v. Board of Tax Review, 8 Conn. App. 440, 443, 512 A.2d 984 (1986), but that case is distinguishable for a number of reasons.

In Midway Green Corp., we affirmed the trial court’s factual finding that the taxpayer had failed, as a matter of fact, to overcome, for any tax year, the presumption of validity that attaches to a municipal assessment. Id. In this case, the taxpayers have succeeded in establishing their overtaxation for 1993.

Further, in this case, the city has not made any market oriented reassessments to which a presumption of validity might attach. See Ireland v. Wethersfield, 242 Conn. 550, 558, 698 A.2d 888 (1997). In the absence of such reassessments, we are not persuaded by the city’s argument that “[its] subsequent valuations should remain valid until proof of overvaluation for each of those years” is offered.

Finally, in Midway Green Corp., this court did not have the opportunity to consider subsequent interpretations of the applicable principles by our Supreme Court. In Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 102-103, 626 A.2d 1292 (1993), and subsequently in DeSena v. Waterbury, supra, 249 Conn. 75-77 n.15, that court stated that, if interim revaluations were appropriate, the base year of revaluation would be the appropriate measure of the market value of taxable property.

The city’s final argument addresses the policy behind municipal taxation of property generally and § 12-53a specifically. It maintains that an affirmance of the judgments in favor of the taxpayers would cause injustice and would “constitute a de facto repeal” of § 12-53a. In its view, this statute was intended to permit a municipality to reassess the market value of property that has undergone significant physical change. Without such a reassessment, a taxpayer would unjustly reap the benefits of an improved piece of property without a correlative duty to pay its fair share of taxes on that property. The city claims that this case illustrates the persuasiveness of its position because the taxpayers’ construction of the statute is tantamount to establishing the principle that improvements in real property have no tax consequences. This argument does not apply in this case because, as earlier noted, the taxpayers have paid higher tax bills as a result of the reassessments to which they have agreed.

Under the circumstances of this case, we conclude that the taxpayers are entitled to recover tax overpayments stemming from 1993 over-assessments. Perhaps the outcome would be different if the taxpayers were challenging actual reassessments pursuant to § 12-53a that incorporated considerations of current market values. That question is not before us. In light of the taxpayers’ acquiescence in the only reassessments that the city ever made, and the absence of further city reassessments based on changed market conditions, we are persuaded that the city cannot prevail on its claim that the taxpayers were required to prove their aggrievement in each tax year after 1993.

Ill

PROOF OF MARKET VALUES

The city’s final claim is that the taxpayers cannot prevail because they have failed to establish the market value of their properties. As the city acknowledges, this argument is closely tied to its argument about aggrievement. If, as we have concluded, the taxpayers are entitled, for the purpose of aggrievement, to avail themselves of the carryover provision contained in § 12-62 (a) (1), we can find no basis for any duty on their part independently to establish the market values of their properties. The statute permits the taxpayers to challenge overassessments relating to the market value of their property at the time of a periodic reassessment. The city has accepted that interpretation of the statute with respect to the base tax year 1993. It has not explained why taxpayers who have established that they have no duty to prove aggrievement for subsequent tax years nonetheless must prove the market value of their improved properties. The city has cited no statutory or case law support for its position. The cases that it does cite fail to make a distinction between proof of aggrievement and proof of market values. Further, all of those cases arose in the context of taxpayer challenges to actual assessments.

The city cannot prevail on this claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 12-62 (a) (1) provides in relevant part: “Commencing October 1, 1997, the assessor or board of assessors of each town shall revalue all of the real estate in their respective municipalities for assessment purposes in accordance with the provisions of subsection (b) of this section. The assessments derived from each such revaluation shall be used for the purpose of levying property laxes in such municipality in the assessment year in which such revaluation becomes effective and in each assessment year thereafter until the next succeeding revaluation in accordance with the provisions of subsection (b) of this section. . . .”
      The applicable statutes have been amended since 1993. The city has not taken issue with the taxpayers’ reliance on the present § 12-62 (a). We assume, therefore, that the statutory revisions were intended to be a clarification, rather than a substantive change from prior statutes.

       General Statutes § 12-53a provides in relevant part: “(a) Completed new construction of real estate completed after any assessment date shall be liable for the payment of municipal taxes from the date the certificate of occupancy is issued or the date on which such new construction is first used for the purpose for which same was constructed, whichever is the earlier, prorated for the assessment year in which the new construction is completed. . . .
      “(b) The building inspector issuing the certificate shall, within ten days after issuing the same, notify, in writing, the assessor of the town in which the property is situated.
      “(c) Not later than ninety days after receipt by the assessor of such notice from the building inspector or from a determination by the assessor that such new construction is being used for the purpose for which same was constructed, the assessor shall determine the increment by which assessment for the completed construcfion exceeds the assessment on the taxable grand list for the immediately preceding assessment date . . . and shall within five days notify the record owner . . . and the tax collector of the municipality of such additional assessment. . . .”

       Although these appeals involve two different taxpayers, their eases were consolidated both for trial and for appeal because, for present purposes, they are indistinguishable. For the sake of convenience, we refer to the taxpayers as having jointly brought one case.

       Before seeking relief in the Superior Court, the taxpayers properly had raised their claims before the city’s board of tax appeal.

       General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994 ... to the superior court for the judicial district in which such town or city is situated . . . .”

       See footnote 5.

       One taxpayer spent approximately $10 million and the other spent approximately $15 million on improvements.

       See footnote 2.

       See footnote 1.

       See footnote 2.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. GARRICK TURNER
    (AC 21020)
    Lavery, C. J., and Dranginis and Dupont, Js.
    Submitted on briefs September 17, 2001
    officially released January 29, 2002

      Carlton L. Hume and John A. Henneberger filed a brief for the appellant (defendant).

      Jonathan C. Benedict, state’s attorney, Michele C. Lukban, assistant state’s attorney, and Joseph Harry,
      senior assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Garrick Turner, appeals from the trial court’s judgment of conviction, rendered following his guilty plea, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l) and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (l). On appeal, the defendant claims that he was denied due process of law by ineffective assistance of counsel because his trial attorney did not inform him of his right to enter a conditional plea of nolo contendere so that he could appeal from the denial of his motion to suppress. We agree with the defendant and reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On March 8, 1998, the defendant went to the Bridgeport police station. His father had received a telephone call the day before from Mark McDaniel, a sergeant, requesting to speak to the defendant. The defendant was eighteen years old, had no prior criminal history and had been living in the United States for only two years. The defendant resided with his father, who, along with the defendant’s aunt, accompanied him to the police station.

At the station, McDaniel questioned the defendant alone. The interrogation lasted about thirty to forty minutes, three to four minutes of which were recorded. McDaniel asked the defendant if he had engaged in sexual intercourse with the victim and when that had occurred. The defendant responded that he had engaged in sexual intercourse with the victim two times in March, 1998, when the victim was fifteen years old. The defendant was subsequently charged with sexual assault in the second degree and risk of injury to a child.

Before entering his guilty plea, the defendant filed a motion to suppress his statement to the police, and an evidentiary hearing followed. The defendant’s counsel called the defendant as his only witness. The defendant claimed that his statement to the police was inadmissible because he had been interrogated at the police station, under circumstances from which it could be inferred that he was in custody, without having been notified of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

At the hearing, McDaniel admitted that he did not read the defendant Miranda warnings because the defendant was neither under arrest nor in custody. He testified that he told the defendant several times during the interrogation that he was free to leave and that he was not under arrest. McDaniel further testified that he did not threaten the defendant or pressure him into making his statement. The court concluded that the defendant failed to sustain his burden of proving that he was in custody at the time of the interview and therefore denied the motion to suppress. Thereafter, the defendant pleaded guilty to the charges of sexual assault in the second degree and risk of injury to a child.

On June 14, 2000, prior to sentencing, the defendant filed a motion to vacate and to withdraw his guilty plea on the ground that his trial counsel was ineffective in failing to inform him that by pleading guilty, he was waiving his right to appeal from the court’s denial of his motion to suppress. See Practice Book § 39-27 (4). The defendant requested the withdrawal of his plea so that he could enter a new plea of nolo contendere in accordance with General Statutes § 54-94a and thereby preserve his right to appeal from the denial of his motion to suppress. The court denied the motion to withdraw on the ground that the defendant had not demonstrated ineffective assistance of counsel. The court sentenced the defendant to a total term of incarceration of ten years, execution suspended after nine months, and ten years conditional probation in accordance with the state’s recommended sentence offered pursuant to its plea agreement with the defendant. The defendant’s appeal followed.

On appeal, the defendant claims that the court improperly denied his motion to vacate in that his guilty plea was involuntarily and unknowingly entered because he had received ineffective assistance of counsel. He cites counsel’s failure to inform him of his statutory right to plead nolo contendere and thereby preserve his right to appeal from the denial of his motion to suppress, in violation of his rights as guaranteed under the sixth and fourteenth amendments to the United States constitution. We agree and reverse the judgment of the trial court.

“We have long held that the proper forum in which to address claims of ineffective representation of counsel is in the habeas forum or in a petition for a new trial, rather than on direct appeal.” (Internal quotation marks omitted.) State v. Laracuente, 57 Conn. App. 91, 97, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000), quoting State v. Jones, 46 Conn. App. 640, 660, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). “As our Supreme Court has stated, an ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court . . . .” (Internal quotation marks omitted.) State v. Laracuente, supra, 97.

“Section 39-27 of the Practice Book . . . provides an exception [permitting a direct appeal] when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.) State v. Gray, 63 Conn. App. 151, 161-62, 772 A.2d 747, cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court adopted a two part standard for evaluating claims of ineffective assistance of counsel pursuant to which a defendant must show (1) that counsel’s representation fell below an objective standard of reasonableness and (2) that counsel’s deficient performance prejudiced the defense. See Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995); see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 664-65, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000). To prevail, a defendant must satisfy both prongs of the Strickland test. Quintana v. Commissioner of Correction, 55 Conn. App. 426, 445, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999). The court determined that the defendant had failed to meet his burden of satisfying either prong of the Strickland test.

After the trial court’s ruling here, our Supreme Court decided Ghant v. Commissioner of Correction, 255 Conn. 1, 761 A.2d 740 (2000), and, while not directly on point, it is instructive. 6In Ghant, our Supreme Court reversed a habeas court’s decision that counsel’s representation was ineffective because of counsel’s failure to inform the petitioner that he had a right to appeal from the judgment of conviction for murder after entering his guilty plea pursuant to the Alford doctrine. Id., 2-3. The Ghant court cited Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), in which the United States Supreme Court rejected a per se rule and concluded that a constitutionally imposed duty to consult with a defendant regarding an appeal exists if either (1) “a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) . . . this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 9. The Ghant court determined that the petitioner failed to show that there were nonfrivolous grounds for appeal from his conviction and, therefore, that counsel had no reason to think that a rational defendant would have wanted to appeal. Id., 16-17.

The state argues on appeal that, pursuant to Ghant, the failure to inform the defendant of his right to appeal does not amount to ineffective assistance of counsel because the appeal would have been wholly frivolous. We do not agree. Here, the defendant was entitled to be notified of his statutory right to plead nolo contendere and to appeal from the denial of his motion to suppress under the facts of this case. This is so because it is possible that he might have prevailed on his claim that his Miranda rights were violated because he believed he was in custody due to his inexperience with the criminal system. Without the confession, a finding of guilty after a jury trial would have been problematic, and, therefore, under the analysis set forth in Ghant, the defendant had nonfrivolous grounds for an appeal. His options, under the facts of this case, were severely limited because he was not informed of his statutory right to plead nolo contendere and to appeal from the denial of the motion to suppress. His ability to articulate a desire to appeal was hampered by counsel’s failure to inform. Under these circumstances, counsel’s failure to inform him was unreasonable. Furthermore, when the defendant consulted new counsel and was informed of the statutory right, he made a timely motion to withdraw the guilty plea, from which it can be inferred that he was expressing an affirmative desire to appeal once he had been properly informed.

A criminal defendant waives three constitutional rights when he pleads guilty: The privilege against compulsory self-incrimination; the right to a jury trial; and the right to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Section 54-94a provides the means whereby a defendant can preserve his right to appeal. “Such a significant protection of liberty as a right to appeal made available to all persons convicted of crimes, must be viewed as fundamental, although its basis is statutory rather than constitutional.” D'Amico v. Manson, 193 Conn. 144, 147, 476 A.2d 543 (1984).

Due process requires that a plea be entered voluntarily and intelligently. Boykin v. Alabama, supra, 395 U.S. 243 n.5; Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). “Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea.” State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986). “A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.” State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).

In this case, due to the ineffective assistance of counsel, the defendant was not told of his statutory right to plead nolo contendere and was prejudiced by the entry of a guilty plea, which extinguished his right to appeal. The defendant did not understand that a guilty plea, unlike a nolo plea, would waive his right to appeal from the decision on the motion to suppress. The defendant’s plea cannot be considered knowing or intelligent in that sense. We therefore conclude that the court abused its discretion in denying the defendant’s motion to vacate his guilty plea.

The judgment is reversed and the case is remanded with direction to vacate the guilty plea, to accept the defendant’s plea of nolo contendere pursuant to § 54-94a and to render judgment thereon.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered ... or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       The defendant did not appear at oral argument in this court and is deemed to have waived it. At the state’s request, the case was considered on the papers.

       General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court,’s denial of the defendant’s . . . motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. . . .”

       There is a vast difference between the facts of Ghant, which involved a claim pursuant to a writ of habeas corpus that the plea canvass prior to trial was defective, and the facts of this case, which concerns a claim that the defendant should have been permitted to withdraw his plea of guilty to allow him to appeal from the denial of his motion to suppress his confession.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt, but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” Henry v. Commissioner of Correction, 60 Conn. App. 313, 315 n.1, 759 A.2d 118 (2000).