source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOSHUA MCRAE v. COMMISSIONER OF CORRECTION
    (AC 27067)
    Schaller, McLachlan and Freedman, Js.
    Argued March 19
    officially released April 10, 2007
   Per Curiam.

The judgment is affirmed.


text:
    EMMANUEL SMITH v. COMMISSIONER OF CORRECTION
    (AC 27176)
    Harper, Lavine and Peters, Js.
    Argued March 15
    officially released April 10, 2007
   Per Curiam.

The appeal is dismissed.


text:
    DANIEL MORGAN v. COMMISSIONER OF CORRECTION
    (AC 27860)
    DiPentima, Gruendel and Harper, Js.
    Submitted on briefs March 16
    officially released April 10, 2007
   Per Curiam.

The appeal is dismissed.


text:
    JOSE CALDERON v. COMMISSIONER OF CORRECTION
    (AC 27241)
    Flynn, C. X, and Schaller and Bishop, Js.
    Submitted on briefs March 16
    officially released April 10, 2007
   Per Curiam.

The appeal is dismissed.


text:
    KAREN MURPHY v. J. C. PENNEY REGIONAL CATALOG CENTER ET AL.
    (AC 27857)
    Flynn, C. J., and Schaller and Bishop, Js.
    Submitted on briefs March 16
    officially released April 10, 2007
   Per Curiam.

The judgment is affirmed.


text:
    WAYNE HALL v. COMMISSIONER OF CORRECTION
    (AC 27353)
    McLachlan, Harper and Stoughton, Js.
    Argued March 14
    officially released April 10, 2007
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. JOHN PRESTON
    (AC 27051)
    Harper, Lavine and West, Js.
    Argued March 22
    officially released April 17, 2007
   Per Curiam.

The judgment is affirmed.


text:
    MARTHA HUNDLEY v. BERT COPPOTELLI
    (AC 27745)
    Harper, Lavine and West, Js.
    Submitted on briefs March 22
    officially released April 17, 2007
   Per Curiam.

The judgment is affirmed.


text:
    VICTOR WRIGHT v. PAUL ECCARD
    (AC 27979)
    McLachlan, Lavine and Foti, Js.
    Submitted on briefs March 16
    officially released April 17, 2007
   Per Curiam.

The judgment is affirmed.


text:
    FAIR HAVEN DEVELOPMENT CORPORATION v. CITY OF NEW HAVEN
    (AC 27303)
    McLachlan, Lavine and Foti, Js.
    Submitted on briefs March 16
    officially released April 17, 2007
   Per Curiam.

The judgment is affirmed.


author: PER CURIAM.

text:
    ALICJA NIVER v. COMMISSIONER OF CORRECTION
    (AC 26426)
    Bishop, Rogers and McDonald, Js.
    Argued February 20
    officially released May 1, 2007

      Kathryn Steadman, special public defender, for the appellant (petitioner).

      Sarah Hanna, special deputy assistant state’s attorney, with whom, on the brief, were David Shepack, state’s attorney, and Dawn M. Gallo, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Alicja Niver, appeals from the judgment of the habeas court denying her amended petition for a writ of habeas corpus. The petitioner’s sole claim on appeal is that she received ineffective assistance of counsel because she was not informed adequately concerning the immigration consequences of her guilty plea. We affirm the judgment of the habeas court.

The relevant facts and procedural history are set forth in the court’s memorandum of decision. The petitioner was charged in connection with an incident that occurred on June 3,1999, in which she entered a coffee shop in Torrington and, after indicating that she was armed, unlawfully stole money and fled the scene wdth a patron’s vehicle. Following her arrest and arraignment, the petitioner entered into a plea agreement with the state through which she agreed to plead guilty to robbery in the third degree in violation of General Statutes § 53a-136 and larceny in the third degree in violation of General Statutes § 53a-124. Pursuant to the agreement, she would receive a total effective sentence of ten years incarceration, suspended after five years, with a right to argue for less. Thereafter, the petitioner was sentenced to ten years incarceration, execution suspended after three years, and five years probation.

The petitioner filed an amended petition for a writ of habeas corpus on March 2, 2004, claiming ineffective assistance of counsel. On January 5, 2005, the court denied the petitioner’s amended petition, finding that the petitioner’s trial counsel had provided competent representation, which did not affect the validity of her guilty plea, and that she would not have pleaded otherwise or insisted upon going to trial. Accordingly, the court concluded that the petitioner had failed to satisfy either prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court subsequently granted the petition for certification to appeal, and this appeal followed.

On appeal, the petitioner claims that the court improperly denied the habeas corpus petition on the basis of her assertion that defense counsel failed to inform her that she would “definitely” or “certainly” be deported as a result of her guilty plea, and, as a result, her guilty plea was not knowingly, intelligently and voluntarily made. We are unpersuaded.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 86 Conn. App. 392, 397, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005).

“In Strickland . . . the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Citation omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 424-25, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).

Moreover, “[i]n Hill v. Lockhart, [474 U.S. 52, 57-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard. . . . [I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn. App. 751, 755-56, 895 A.2d 242 (2006).

The crux of the petitioner’s claim is that her counsel, in conjunction with advising her regarding her potential guilty plea, was obligated to inform her that her deportation would be a certainty and not a mere possibility. The failure to do so, the petitioner alleges, constituted ineffective assistance of counsel. We disagree.

“A defendant need only be made aware of the direct consequences of his plea for it to be valid. Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Our Supreme Court has explained that [although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. ... In Connecticut, the direct consequences of a defendant’s plea include only [those enumerated in Practice Book § 39-19 (2), (3) and (4)]. The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense. . . . [U]nder Connecticut law, [t]he impact of a plea’s immigration consequences on a defendant, while potentially great, is not of constitutional magnitude and cannot transform this collateral consequence into a direct consequence of the plea.” (Citation omitted; internal quotation marks omitted.) State v. Aquino, 89 Conn. App. 395, 403-404, 873 A.2d 1075 (2005), rev’d on other grounds, 279 Conn. 293, 901 A.2d 1194 (2006).

Additionally, in this instance, the court found that “at various times during [defense counsel’s] . . . representation, [he] clearly and repeatedly advised the petitioner that a conviction of these offenses might, could and probably would result in her deportation to Poland. [Counsel] did not, however, definitively inform the petitioner that conviction would certainly or definitely result in her deportation. . . . The petitioner, [however,] was not concerned about the potential for deportation since she had had several previous convictions and the Immigration and Naturalization Service had never deported her before. The petitioner’s prime concern in regard to her criminal case was to get the matter resolved with as little prison time as possible.” We also note that the petitioner, during her canvass, was specifically advised that conviction of these offenses could result in deportation.

Thus, counsel for the petitioner specifically discussed the potential immigration consequences of her plea. Moreover, counsel cannot be expected to be a seer. His performance was not inadequate for having advised the petitioner that her deportation was a probability and not an absolute certainty, as he had no basis for making such an absolute prediction, particularly in light of the petitioner’s prior felony history that did not result in her deportation. Thus, the record amply supports the court’s conclusion that the performance of the petitioner’s trial counsel was not deficient.

Even if counsel’s performance could be found to have been deficient, it caused no prejudice to the petitioner. The record reveals that the petitioner’s main objective at the time of plea was to minimize her incarceration time and not her potential deportation, as she was then facing up to forty-three years in prison if convicted of all the charges then pending against her. Moreover, the petitioner provided the habeas court with no evidence to demonstrate that even if she had elected trial, the outcome would have been more favorable or her chances of deportation less likely. The overwhelming evidence against her included eyewitness testimony from multiple witnesses, the petitioner’s written confession, as well as her statement to the police and her oral confession to her boyfriend. On this record, it would not be reasonable for the court to conclude that the petitioner, even facing the certainty of deportation, would have pleaded not guilty and elected to go to trial, thus risking a substantially longer period of incarceration. Therefore, the court correctly denied the petition.

The judgment is affirmed.


author: HARPER, J.

text:
    JACQUELINE PROPERTIES, LLC v. JOSEPH C. GARTRELL ET AL.
    (AC 27189)
    (AC 27252)
    Bishop, Harper and Foti, Js.

      Argued November 16, 2006
    officially released May 1, 2007

      Gordon Bednarz, for the appellant (named defendant).

      Thomas J. Farrell, for the appellee (plaintiff).
   Opinion

HARPER, J.

In this foreclosure action, the defendant Joseph C. Gartrell challenges the orders of the trial court confirming the sales of two properties he owned. The defendant claims on appeal that the court improperly confirmed the sales without the return of appraisals mandated by General Statutes § 49-25. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The plaintiff, Jacqueline Properties, LLC, is the holder of municipal tax liens purchased from the city of Hartford. The liens were recorded against two adjacent properties located on Albany Avenue in Hartford, which we refer to herein as 696-714 Albany Avenue and 690 Albany Avenue. Both properties were owned by the defendant. In 2002, the plaintiff sought foreclosure of the tax hens and related equitable relief on both properties.

The court rendered judgments of foreclosure by sale on both properties on August 2, 2004. The court found the value of 696-714 Albany Avenue to be $260,000 and the value of 690 Albany Avenue to be $145,000. The court-appointed appraiser returned appraisals on September 9, 2004, valuing 696-714 Albany Avenue at $240,000 and 690 Albany Avenue at $135,000.

The court granted the defendant’s subsequent motions to open and to extend the sale date for both cases to January 15, 2005. On January 13, 2005, the defendant filed a petition for relief under chapter 7 of the United States Bankruptcy Code, which, pursuant to 11 U.S.C. § 362, stayed the sale date. On May 18, 2005, the Bankruptcy Court dismissed the petition with a 180 day bar on refiling. The plaintiff then moved to reopen the judgments in both foreclosure cases. On June 6, 2005, the court again rendered judgments of foreclosure by sale in both cases. The court found the values of each property to be the same as the values found in the original judgments, $260,000 and $145,000, respectively, noted that the returns of appraisal previously had been ordered and set a sale date of September 3, 2005. On August 23, 2005, the court granted the defendant’s motion to extend the sale date in both cases, setting a new sale date of October 1, 2005.

At the foreclosure sales on October 1, 2005, the successful bid on 696-714 Albany Avenue was $230,000, and the successful bid on 690 Albany Avenue was $186,000. The defendant filed an objection to the motion for approval of committee sale of 696-714 Albany Avenue on October 20, 2005, arguing that the sale price was inadequate. At a hearing on November 14, 2005, the court approved the committee sale and deed on both properties and overruled the defendant’s objection. This appeal followed.

The defendant claims that the court improperly approved the foreclosure sales of the properties because it did not order and receive new appraisals pursuant to § 49-25 when, in June, 2005, it rendered judgments of foreclosure by sale. We disagree.

Prior to the sale of the subject properties, the defendant did not object to the court order of sale. The defendant never raised a claim regarding the filing of appraisals required by § 49-25. “As a general rule, we will not consider a claim on appeal that was not distinctly raised at the trial level.” Dime Savings Bank of New York v. Grisel, 36 Conn. App. 313, 317, 650 A.2d 1246 (1994). The defendant, however, has requested plenary review under the plain error doctrine; see Practice Book § 60-5; arguing that the court did not comply with the provisions of § 49-25. “In civil cases, [p]lain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” (Internal quotation marks omitted.) Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994). A court’s failure to follow the mandatory provisions of a statute prescribing trial procedures constitutes plain error subject to plenary review. Dime Savings Bank of New York v. Grisel, supra, 318. Contrary to the defendant’s allegations, this is not such a case because the court complied with the mandatory provisions of § 49-25 by ordering appraisals that were returned on September 9, 2004.

Section 49-25 unambiguously requires a court to order an appraisal of property prior to a foreclosure sale. This requirement is designed to give the court a factual basis for determining the fair market value of a property and whether to approve a proposed sale as fairly realizing the value of the property. Id., 319; New England Savings Bank v. Lopez, 227 Conn. 270, 279, 630 A.2d 1010 (1993).

Here, the court complied with § 49-25 as evidenced by the return of court-ordered appraisals on September 9,2004. Section 49-25 does not mandate a new appraisal prior to sale. Although the return of the appraisals in this case occurred more than one year prior to the sale, the defendant did not at any time request an updated appraisal or a second court-ordered appraisal, as permitted by § 49-25. The defendant argues that our holding in Dime Savings Bank of New York v. Grisel, supra, 36 Conn. App. 313, supports his request for plain error review in this case. Integral to the holding in Dime Savings Bank of New York was the fact that the record clearly indicated that the court did not have the benefit of any court-ordered appraisal pursuant to § 49-25 when it confirmed the sale. Id., 317. Thus, Dime Savings Bank of New York is clearly distinguishable from the present case.

Further, the lapse in time between the return of the valuation on the properties by the court-appointed appraiser and the actual date of sale was the result of the defendant’s requests for extensions and his intervening bankruptcy petition. If the defendant believed, given these delays, that an updated appraisal was necessary for the court’s consideration of the fairness of the sale price, he should have requested one. In short, plain error review is unavailing when, as here, the defendant’s own tactical decisions directly caused the circumstance of which he now complains.

The defendant did not raise any claim as to the sufficiency of the appraisals to the court, and plain error review is not properly invoked because § 49-25 did not mandate the return of updated appraisals in this case.

The judgments are affirmed.

In this opinion the other judges concurred.

       This is a consolidated appeal from the foreclosure of two adjacent properties owned by Gartrell. The plaintiff, Jacqueline Properties, LLC, brought these actions for foreclosure against Gartrell and numerous holders of encumbrances of record on the properties. These other parties have not joined Gartrell on appeal, and we therefore refer only to Gartrell as the defendant.

       General Statutes § 49-25 provides in relevant part: “When the court in any such proceedings is of the opinion that a foreclosure by sale shall be decreed, it shall, in ils decree, appoint a person to make the sale and fix a day therefor, and shall direct whether the property shall be sold as a whole or in parcels, and how the sale shall be made and advertised; but, in all cases in which such sale is ordered, the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold and make return of the appraisal to the clerk of the court. Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. . . .”

       The defendant’s objection to the approval of the committee sale did not encompass the sole issue he now raises on appeal, that is, whether the court complied with the mandatory appraisal provisions of General Statutes § 49-25.


author: BERDON, J.

text:
    TRUGREEN LANDCARE, LLC v. ELM CITY DEVELOPMENT AND CONSTRUCTION SERVICES, LLC, ET AL.
    (AC 26861)
    Bishop, DiPentima and Berdon, Js.

      Argued November 28, 2006
    officially released May 1, 2007

      William F. Gallagher, with whom, on the brief, was David McCarry, for the appellants (defendants).

      Kevin M. Kennedy, for the appellee (plaintiff).
   Opinion

BERDON, J.

The dispositive issue in this appeal is whether the defendant landlords, Elm City Development and Construction Services, LLC, and Maltby Street, LLC, collectively were the “nonprevailing party,” hable for attorney’s fees and costs under the terms of a real estate lease as a result of a disciplinary nonsuit entered against the landlords in a separate action to evict the plaintiff, Trugreen Landcare, LLC (tenant), from real property known as 86 Fitch Street, New Haven (premises). Paragraph 16 (B) of the lease of the premises provides: “In the event of a default, breach or other dispute arising under this lease, the reasonable costs and attorneys fees for both parties shall be borne by the nonprevailing party in any suit, action, mediation, arbitration or other form of dispute resolution.”

The landlords brought an action against the tenant seeking to evict it from the premises on the ground that the tenant breached the lease in several ways, including contaminating the soil of the property by washing equipment in an improper manner, storing salt in violation of state regulations and damaging a building. Discovery was sought, including the deposition of Paul Dispazio, the president and principal owner of the landlord companies.

Dispazio’s deposition was interrupted several times because of personal telephone calls he received. He finally unilaterally terminated the deposition by throwing a copy of the lease at the tenant’s counsel and storming out of the office where the deposition was being conducted. He refused to resume the deposition at another date. As a result of Dispazio’s failure to continue with the deposition, the landlords in the eviction action were nonsuited.

After the landlords unsuccessfully attempted to open the nonsuit, the tenant brought the present action for damages to recover its attorney’s fees and costs pursuant to paragraph 16 (B) of the lease, which provided that the nonprevailing party would be obligated to pay the same. The court found that the landlords were the nonprevailing party in the eviction proceeding and awarded the tenant $15,000 in attorney’s fees plus costs of $2282.31, for a total award of $17,282.31. This appeal followed.

The landlords claim that the term “nonprevailing party,” as used in the lease to assign payment of attorney’s fees, does not include a party who has failed to successfully maintain an action due to a judgment of nonsuit. We disagree.

The landlords’ claim raises an issue of contract interpretation for which our standard of review is well established. When, as here, “there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). Accordingly, our review is plenary. See id., 230.

“The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109-10, 900 A.2d 1242 (2006). “Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecti-cut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).

It is true, as the landlords argue, that we adhere to the “American rule,” which provides that “attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.” (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72, 689 A.2d 1097 (1997). In this case, the clear and unambiguous language in the lease provides that the attorney’s fees and costs shall be borne by the “nonpre-vailing party” and therefore, by implication, shall be paid to the prevailing party.

Our Supreme Court has held that a party is a “prevailing party” when a judgment has been ordered in the party’s favor, “irrespective of the route by which he received that judgment.” Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 303, 780 A.2d 916 (2001). Other jurisdictions have reached similar conclusions. “To be a prevailing party does not depend upon the degrees of success at different stages of the suit; but whether at the end of the suit, or other proceeding, the party, who has made a claim against the other, has successfully maintained it. If he has, he is the prevailing party.” Bangor & Piscataquis R.R. Co. v. Chamberlain, 60 Me. 285, 286 (1872); see also Dean Vincent, Inc. v. Krishell Laboratories, Inc., 271 Or. 356, 358, 532 P.2d 237 (1975) (concluding that prevailing party was one “in whose favor final judgment is rendered,” which includes defendant who was dismissed after plaintiff moved for voluntary nonsuit).

Indeed, this case fits the mold of the plain meaning of prevailing party, which is “ [t]he party who is successful or partially successful in an action, so as to be entitled to costs.” Ballentine’s Law Dictionary (3d Ed. 1969). At oral argument, counsel for the landlords conceded that the tenant could have taxed costs upon having been granted a nonsuit in the eviction action. Here, the tenant secured a judgment of the court in its favor and therefore was the prevailing party.

The eviction action was dismissed by nonsuit over the landlords’ objection. In these circumstances, the landlords were the nonprevailing party on the basis of the clear and unambiguous meaning of that term as used in the lease.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Elm City Development and Construction Services, LLC, which was formerly known as 86 Fitch Street, LLC, and 75 Maltby, LLC, were the lessors of the premises. The plaintiff, Trugreen Landcare, LLC, took possession of the premises and assumed the lease through a valid assignment from a prior lessee.


author: LAVINE, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. DAVON HICKS
    (AC 26878)
    Harper, Lavine and Berdon, Js.
    Argued October 25, 2006
    officially released May 1, 2007

      Conrad Ost Seifert, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Davon Hicks, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and assault in the first degree in violation of General Statutes § 53a-59 (a) (4). On appeal, the defendant claims that (1) his right to due process of law was violated by an unnecessarily suggestive identification procedure, (2) his warrantless arrest was unconstitutional and (3) there was insufficient evidence to convict him of assault in the first degree in violation of § 53a-59 (a) (4). None of these claims was preserved at trial, and the defendant seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In Waterbury, during the early hours of August 5, 2000, the victim, Stephen Alseph, had an altercation in the parking lot of his apartment building with Chan-tell Paris and Tierra Mourning, friends of his wife, Keisha Alseph. When Paris and Mourning departed, the Alsephs retired to their apartment. Less than one hour later, Cornelius Flowers, Arthur Trent and the defendant broke into the apartment and attacked the victim in his bedroom. The men repeatedly struck the victim with their fists, and Trent hit the victim on the head with a ceramic lamp, causing bruises and lacerations. After the victim chased his assailants from the premises, the police were called. The victim was taken to a hospital where surgical staples were used to close the lacerations in his scalp.

Keisha Alseph told Officer David Rovinetti of the Waterbury police department that she recognized Flowers as one of the assailants. She also told Rovinetti that she recognized the defendant as a man whom she had seen before and knew to be involved romantically with Chivone Trent, but she did not know the defendant’s name. Keisha Alseph attributed the assault to the victim’s earlier argument with her girlfriends. The victim also recognized his assailants but did not know their names. Rovinetti informed police headquarters that Flowers was one of the suspects.

At the time the police were investigating the assault, Victoria Vasquez reported that Flowers, her former boyfriend, had made repeated threatening telephone calls to her in violation of a protective order. The police traced the origin of the telephone calls to the home of Steven Gadue. Gadue permitted the defendant to come and go from his home, but the defendant did not have a key to the house. Police went to the residence, and Gadue let them enter. The police found the defendant and Flowers attempting to hide under a bed. The police handcuffed the defendant and Flowers and took them outside. The victim and Keisha Alseph were transported to the scene, where they made individual identifications of the defendant and Flowers.

The defendant was charged in a three count substitute information. A jury found him guilty beyond a reasonable doubt of all three charges. On May 17, 2001, the court sentenced the defendant to an effective term of twenty years, execution suspended after eight years, and five years of probation. The defendant did not timely pursue his appellate rights, and his appeal was dismissed by this court on January 4,2002. Those rights were restored by the habeas court, Hon. Sidney Axel-rod, judge trial referee; see Hicks v. Warden, Superior Court, judicial district of Danbury, Docket No. CV-02-0345064-S (January 20, 2006); and the defendant filed the present appeal.

I

We will address the defendant’s first two claims together. The defendant claims that the police arrested him without probable cause and that the “show-up” identification procedure was unduly suggestive in contravention of his constitutional rights. The claims are not reviewable.

At trial, the defendant failed to file a motion to suppress evidence related to his arrest or evidence of the subsequent “show-up” identification. He seeks Golding review of his appellate claims. Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

Although the defendant’s claims are of a constitutional magnitude, we cannot review them because the record is inadequate. The trial court made no factual findings or came to any legal conclusions with respect to those claims. An appellate record containing a set of facts concerning the question of whether probable cause existed to arrest the defendant is necessary for appellate review. See State v. Canales, 281 Conn. 572, 579-80, 916 A.2d 767 (2007) (declining Golding review where neither probable cause nor legality of arrest were subject of “meaningful discussion” at suppression hearing). Likewise, factual findings and legal conclusions concerning the suggestiveness and reliability of the identification procedure specific to this case are essential to the adjudication of the defendant’s claim. See State v. Morgan, 274 Conn. 790, 793 n.5, 877 A.2d 739 (2005).

II

The defendant’s third claim is that there was insufficient evidence to convict him of assault in the first degree in violation of § 53a-59 (a) (4). We will review this unpreserved claim as we would review any preserved claim. “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. . . . [N]o practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim . . . .” (Citation omitted; internal quotation marks omitted.) State v. Singleton, 97 Conn. App. 679, 684 n.7, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006). The defendant cannot prevail, however, because he has misconstrued the application of § 53a-59 (a) (4) to an accessory through General Statutes § 53a-8.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the juiy’s verdict.” (Internal quotation marks omitted.) State v. Thomas, 62 Conn. App. 356, 361, 772 A.2d 611, cert. denied, 256 Conn. 912, 772 A. 2d 1125 (2001).

As previously stated, the third count of the substitute information charged the defendant with assault in the first degree in violation of § 53a-59 (a) (4). “A person is guilty of assault in the first degree when ... (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person . . . .” General Statutes § 53a-59 (a). The defendant filed a motion for a bill of particulars in which he asked the state to provide the specific nature of the offenses with which he was charged and the specific acts that he performed that constitute all of the necessary elements of the crime charged.

The state filed, in part, the following response to the motion for a bill of particulars: “The defendant along with at least two others unlawfully entered an apartment at 163-4 Mark Lane, Waterbury, Connecticut. It is the State’s contention that the group entered to either assault and or threaten [the victim] in retaliation for a prior incident involving [the victim] . . . Mourning and . . . Paris. The group attacked [the victim] inside the apartment repeatedly beating him causing bodily injury. The defendant participated in the beating striking [the victim] causing bodily injury. Also during the assault one of the group picked up a lamp and smashed it over the head of [the victim] causing serious physical injury. The State is proceeding against the defendant as both a principal and an aider and [abettor]. As to aiding and abetting, the defendant, acting with the mental state necessary for commission of an offense (. . . Assault in the First Degree [§] 53a-59 [a] [4]), intentionally aided another person to engage in conduct which constituted the offenses herein listed.”

The substance of the defendant’s claim is that because there was unequivocal evidence that Trent struck the victim on the head with the ceramic lamp, the only way the defendant could be convicted was as an accessory and that accessory liability emanates from § 53a-8. We disagree with the defendant’s claim.

“Connecticut long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility. . . . The modem approach is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. . . .

“The established rule ... is that accomplice liability extends to acts of the principal . . . which were a natural and probable consequence of the criminal scheme the accomplice encouraged or aided. . . . [T]he aider and abettor is responsible not only for the success of the common design, but also for the probable and natural consequences that flow from its execution, even if those consequences were not originally intended.” (Citation omitted; internal quotation marks omitted.) State v. Henry, 253 Conn. 354, 361, 752 A.2d 40 (2000).

The modem approach to accessory liability, which Connecticut has adopted through § 53a-8, simply is to “provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. ... [A] person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he . . . aids or agrees or attempts to aid the other person in planning or committing it . . . .” (Internal quotation marks omitted.) In re Luis R., 204 Conn. 630, 638, 528 A.2d 1146 (1987).

Here, the jury heard evidence that the defendant entered the victim’s apartment with two other men and that the defendant hit the victim with his fists. The defendant continued to hit the victim while Trent broke a lamp over the victim’s head, inflicting lacerations and braising, injuries that were treated at a hospital. Those facts and the reasonable inferences to be drawn from them were sufficient for the jury to have found beyond a reasonable doubt that the defendant shared with the principal the criminal intent and unlawful puipose to inflict serious physical injury on the victim with two others present and that the defendant knowingly and wilfully assisted the facilitation and consummation of the act through his active participation in beating the victim.

The defendant has argued on appeal that he is not guilty as an accessory because when accessory liability is applied to § 53a-59 (a) (4), there are not enough aiders present to satisfy the elements of the statute. His argument is that one cannot give the aid necessary to satisfy the element of the assault statute requiring that two or more people aid the offense and simultaneously give the aid necessary to be implicated as an accessory to the crime under § 53a-8. Convicting the defendant as an accessory to assault is not, as the defendant argues in his brief, to construe him “as the 'he’ who actually inflicted hands-on injury while simultaneously construing Trent, the actual assailant, to be a non-hands-on aider.” (Emphasis in original.) Rather, the defendant is punished as if he were the principal offender because his intent and willing assistance make him as culpable as the principal under § 53a-8.

In a similar analysis, our Supreme Court considered the application of robbery in the second degree; see General Statutes § 53a-135 (a) (l); to an accessory. See State v. Crump, 201 Conn. 489, 518 A.2d 378 (1986). An element of robbery in the second degree is the presence of one or more persons who aid in the offense. In that case, “the defendant or his companion actually pushed [the robbery victim] away from the open cash register and took the $300 from it. It is not required that the proof show that the defendant was the actual perpetrator because the proof does show that the perpetrator [was] aided by another person actually present.” (Internal quotation marks omitted.) Id., 494. Our Supreme Court upheld the conviction for robbery in the second degree because the defendant was a participant and had the intent to commit the crime. Id. Therefore, one who is an aider for the purpose of establishing an element of the crime also may be criminally liable as an accessory for giving such aid.

The plain language of § 53a-59 (a) (4) does not directly penalize the two or more persons actually present who aid the principal. The statute indicates that the culpable individual is the person who actually causes the serious injury, not those who are present and aid him, though their presence is an element of the crime. Statutes are generally constructed to implicate the principal offender in this manner. The plain language of the statute does not limit our ability to punish one whose aid also constitutes an element of the crime when, as here, his actions constitute accessory liability under § 53a-8.

The judgment is affirmed.

In this opinion HARPER, J., concurred.

BERDON, J.,

concurring. I agree with the majority opinion that because the trial court made no factual findings, we are unable to review whether the police arrested the defendant, Davon Hicks, without probable cause and whether the “show-up” identification was suggestive in contravention of the defendant’s constitutional rights. I also agree with the majority opinion that on the basis of the present record, there was sufficient evidence to convict the defendant.

I write this concurring opinion because I would not stop there. Rather, I would remand the case to the trial court, pursuant to our rules of appellate procedure, to find the facts necessary for this court to determine whether the police had probable cause to arrest the defendant and whether the “show-up” procedure was unduly suggestive.

Section 60-2 of the rules of practice provides in relevant part that the court “on its own motion or upon motion of any party . . . [may] (9) remand any pending matter to the trial court for the resolution of factual issues where necessary . . . .”1 am aware that our Supreme Court has held that these “supervisory powers are not alast bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Emphasis in original; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998).

This is one of those cases that requires that we invoke our supervisory power under subdivision (9) of § 60-2 of the rules of practice. This appeal involves the defendant’s conviction, which dates back to May 17, 2001, for an incident that occurred on August 4, 2000. He is a black man who was convicted by an all white jury and was represented by a trial attorney who was eventually suspended from the practice of law. After the defendant’s conviction, and before being sentenced to twenty years imprisonment, suspended after eight years, an attorney, other than the defendant’s trial attorney, moved for a new trial, alleging that the victim’s wife, Keisha Alseph, had given him an oral statement, recorded on tape, that she “now knows it was not the defendant who was one of her three assailants, but another party who clearly resembles the defendant.” The motion was summarily denied by the trial court. The defendant took this appeal to this court, which was dismissed on January 4, 2002, because counsel did not pursue it in a timely manner. The habeas court restored the defendant’s appellate rights on August 9, 2005, resulting in the present appeal.

I recognize, as referenced in footnote 3 of the majority opinion, that the defendant can seek review of claims as to his warrantless arrest and the “show-up” identification procedure through a new or reinstated petition for habeas corpus, on the basis of ineffective assistance of counsel. Under these circumstances, such review is insufficient. This defendant has now been incarcerated for more than six years and, with credit for good time, likely will have served his entire sentence before he can get an effective review of his conviction through the habeas route. The exercise of our supervisory powers to remand the case for further factual findings would accomplish the same result in a more expeditious manner.

       Flowers was tried separately and convicted of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). His conviction was upheld on appeal to this court but was overturned by our Supreme Court on the basis of an improper jury instruction. See State v. Flowers, 278 Conn. 533, 898 A.2d 789 (2006).

       Paris was arrested in connection with the incident. She pleaded guilty under the Alford, doctrine; see North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to conspiracy to commit burglary in the first degree and conspiracy to commit assault in the first degree.

       Although this court is unable to review the defendant’s claims with respect to his warrantless arrest and the “show-up” identification procedure, the defendant has a remedy by which to obtain judicial review of those claims. In resolving the defendant’s amended petition for a writ of habeas corpus alleging the ineffective assistance of counsel, Judge Axelrod noted that the claims concerning the filing of various motions typically must be raised on direct appeal, not in a habeas corpus proceeding. Judge Axelrod anticipated that this court might not address the claims and addressed the issue in his memorandum of decision. Judge Axelrod stated that in the event that this court declined to review the claims concerning the motions to suppress, the defendant would have the right either to reclaim the issues in a new petition for a writ of habeas corpus or to ask that the petition he was adjudicating be reinstated for the limited purpose of having the issues regarding the motions resolved. See Hicks v. Warden, supra, Superior Court, Docket No. CV-02-0345064-S.

       General Statutes § 53a-8 (a) provides in relevant part: “A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present. . . .”

       The defendant also claims that the court improperly instructed the jury as to accessory liability for the charge of assault in the first degree pursuant to General Statutes § 53a-59 (a) (4). The defendant’s argument with respect to the jury instruction is the same one he made with respect to his sufficiency of the evidence claim. We conclude, for the same reasons stated in part III, that the court’s instruction was correct in the law.


author: ROGERS, J.

text:
    FIDELE J. SAVOIE, EXECUTOR (ESTATE OF HUBERTE MARIE SAVOIE), ET AL. v. IBRAHIM M. DAOUD ET AL.
    (AC 26941)
    DiPentima, Gruendel and Rogers, Js.

      Argued January 17
    officially released May 1, 2007

      Kathleen L. Nastri, with whom, on the brief, was Neal A. De Young, for the appellants (substitute plaintiff Amy S. Luby et al.).

      Eugene A. Cooney, with whom, on the brief, was Lorinda S. Coon, for the appellee (named defendant).
   Opinion

ROGERS, J.

The plaintiff Fidele J. Savoie, executor of the estate of his deceased wife, Huberte Marie Savoie (plaintiffs decedent), brought this action for medical malpractice, and individually for loss of consortium, against the defendant Ibrahim M. Daoud, a general surgeon. The plaintiff appeals from the trial court’s judgment in favor of the defendant, rendered after a jury verdict. The issue on appeal is whether the court improperly charged the jury on the doctrine of schools of thought regarding the proper standard of care. Specifically, the plaintiff argues that (1) the court acted improperly by charging the jury regarding schools of thought when there was no evidence of the existence of two schools of thought, and (2) the court improperly marshaled evidence in its charge to the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the plaintiffs appeal. In January, 1999, the plaintiffs decedent went to the defendant at the recommendation of her gynecologist for surgical repair of a ventral hernia. On February 8,1999, the defendant performed a laparos-copic ventral hernia repair. During the coruse of this surgeiy, the defendant discovered adhesions, or scar tissue, between the intestines of the plaintiffs decedent, and a marlex mesh, which had been used to patch her abdominal wall during a prior hernia repair. The mesh had adhered to the abdominal wall and bowel of the plaintiffs decedent. Before he could repair the hernia, the defendant lysed or cut through the adhesions and cut away the mesh from the abdominal wall. During the surgery, the defendant made an effort to cut away the bowel from the mesh but determined that doing so was not safe. The defendant instead decided to cut around the area where the mesh was attached to the bowel and release the bowel from the abdominal wall with a piece of mesh still attached to the bowel. The defendant continued the hernia repair using a new mesh to patch the abdominal wall defect.

The plaintiffs decedent was discharged from the hospital later that day. Over the course of the following days, the plaintiffs decedent became increasingly septic from the effects of an intestinal perforation. On February 12, 1999, the plaintiffs decedent was in great pain, and the plaintiff contacted the defendant. The defendant instructed the plaintiffs decedent to go to the emergency room, where he met her and took her to the operating room. During a second surgery, the defendant discovered the bowel perforation and resected the injured portion of the bowel. The plaintiffs decedent spent the next several weeks in the hospital. She did not recover from the effects of the septic shock and died on March 31, 1999.

At trial, the parties’ expert witnesses agreed that in a surgery such as that performed on the plaintiffs decedent, a careful inspection of the bowel is necessary, but they disagreed with respect to whether the standard of care required removal of all existing mesh adherent to the bowel. The defendant and his expert witness, Todd Henniford, a general surgeon, testified that leaving an existing piece of mesh attached to the bowel meets the standard of care. Henniford testified that when existing mesh becomes densely adherent to the bowel, it is impossible to separate the two without leaving some bowel on the mesh or some mesh on the bowel. He testified that he has performed approximately 600 ventral hernia repairs in his career, with approximately 400 of them laparoscopic, and that in the course of teaching other surgeons, he has encountered this question numerous times. He also testified that the complication is described numerous times in the medical literature. When this complication occurs, he testified, it is appropriate for surgeons first to attempt to remove the existing mesh. If the mesh cannot be removed, he explained further, then leaving the mesh on the bowel is preferable to the alternative of resecting the portion of the bowel adherent to the mesh because of the risks attendant to such a bowel resection and the loss of the ability to perform the hernia repair for many months.

The plaintiffs expert witness, Thomas Gouge, a general surgeon, disagreed with the defendant and his expert and, instead, expressed his opinion that the defendant failed to meet the standard of care by leaving a piece of mesh in the abdomen of the plaintiffs decedent attached to the bowel. Gouge reasoned that a surgeon needs to do whatever is necessary in order to remove the existing mesh in all cases because of the need to inspect the bowel for perforations. On cross-examination, Gouge agreed that there are two schools of thought with respect to whether it is safe and acceptable to leave a piece of mesh attached to the bowel. This testimony came into evidence without objection. On redirect examination, the plaintiffs counsel continued the line of questioning regarding the “schools of thought” terminology, specifically asking the following:

“[The Plaintiffs Counsel]: You agreed with [the defendant’s attorney], Dr. Gouge, that there are two schools of thought with respect to leaving marlex mesh in place after this kind of surgery?

“[The Witness]: Yes, ma’am. . . .

“[The Plaintiffs Counsel]: Are you aware of whether or not the defense experts in this case will have the opposite school of thought? . . .

“[The Witness]: Yes, I’m aware that they’re going to hold that opinion.

“[The Plaintiffs Counsel]: Can you tell us whether or not, Dr. Gouge, there are any differences in schools of thought regarding the standard of care for being able to inspect the intestine?

“[The Witness]: No, ma’am.”

The defendant requested a jury charge on schools of thought, and the court so instructed the jury. Specifically, the court instructed: “In this case, it is my recollection—and again, it’s your recollection that controls— it is my recollection that there was some testimony by Dr. Gouge that there may be two schools of thought on whether a previously installed mesh, which has adhered to the small bowel, must be completely removed from the bowel or be allowed to remain attached to the bowel when making a subsequent hernia repair. Whether two schools of thought on this subject exist and whether the defendant’s course of treatment comported with the standard of care is for you to determine after consideration of all the evidence in the case. As long as the defendant met the standard of care according to one school of thought rather than the other, he incurred no liability simply because that choice led to the unfortunate outcome of the death of the [plaintiffs decedent].” The plaintiff took an exception to the charge.

The jury returned a verdict in favor of the defendant. Thereafter, the plaintiff filed a motion to set aside the verdict. The court denied the plaintiffs motion and rendered judgment in accordance with the jury verdict. This appeal followed.

I

The plaintiff first claims that the court acted improperly by charging the jury regarding schools of thought. Specifically, the plaintiff claims that the record provided no support for the charge because there was no evidence of the existence of two schools of thought pertaining to mesh removal, and the charge regarding mesh removal allowed the jury to disregard the real standard of care issue at trial, namely, careful inspection of the bowel during a hernia surgery. We are not persuaded.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) MoKonnen v. Pro Park, Inc., 96 Conn. App. 625, 629, 901 A.2d 725, cert. denied, 280 Conn. 924, 908 A.2d 1088 (2006).

The plaintiff argues that the charge was improper because the court misinterpreted the medical issue in contention at trial. The plaintiff avers that the school of thought charge regarding the removal of mesh improperly directed the jury away from his real claim of negligence, which was not that the defendant negligently failed to remove the mesh but, rather, that he failed to inspect the intestine of the plaintiffs decedent adequately after surgery. We do not agree with the plaintiffs characterization of the standard of care issue at trial.

The central surgical issue at trial was whether the defendant improperly dissected the mesh. The plaintiff did not allege in his complaint that the defendant deviated from the standard of care in failing to inspect the bowel properly but, rather, claimed in paragraph 5e of the amended complaint that there was an improper dissection of the marlex mesh. In addition, the central focus of Gouge’s testimony was the duty to remove all of the old mesh. When the plaintiff first asked Gouge to express his opinions, he stated: “what in my opinion does not meet the standard of care, what he did that was not correct is leaving this foreign body, this piece of mesh, in the abdomen attached to the intestine.” Gouge repeated several times throughout his testimony his opinion that the standard of care requires the removal of existing adherent mesh and presented the need for inspection as a basis for his opinion. During closing arguments, the plaintiffs counsel argued to the jury that “common sense should lead you to conclude that [the defendant] breached the standard of care in two respects, failure to return the phone call on [February 10, 1999], and the manner in which he dissected the mesh during the February 8 procedure.” The only surgical issue that went to the jury was whether the defendant “improperly dissected the marlex mesh.” We are not persuaded by the plaintiffs effort to reinterpret the standard of care issue tried. We review a case on the theory on which it was tried in the trial court. Haigh v. Haigh, 50 Conn. App. 456, 459 n.3, 717 A.2d 837 (1998).

Gouge’s testimony provided an adequate foundation for the schools of thought charge. He testified on cross-examination and redirect examination that there were two schools of thought on the issue of whether it is safe and acceptable to leave adherent mesh on the bowel. The defendant’s counsel asked Gouge on cross-examination: “[W]ould you agree with me that there are two schools of thought in this country on the issue of whether it’s safe and acceptable to leave an old piece of marlex mesh in the patient attached to the bowel?” Gouge responded: “Yes, sir, I would. There is no solid evidence one way or the other. There is anecdotal experience in both directions.” Instead of objecting to the adequacy of the foundation for the question when it was asked by the defendant’s counsel, the plaintiffs counsel chose to allow the answer and to continue with the “schools of thought” terminology in her questioning.

The plaintiffs counsel specifically asked whether there are two schools of thought with respect to leaving existing mesh in place after this kind of surgery, to which Gouge answered affirmatively. The plaintiff contends that the charge was improper because evidence concerning the principles and practices of schools of thought pertaining to mesh removal was lacking. Whether or not there was an underlying basis at that time for Gouge’s testimony, the plaintiff did not object, and, consequently, his express unchallenged statement became part of the evidence, and the trier of fact was free to use that testimony for whatever it deemed its worth. See State v. Jeffreys, 78 Conn. App. 659, 677-81, 829 A.2d 569 (single unchallenged, affirmative statement that subject apartment complex was public housing project sufficient to support defendant’s conviction of possession of narcotics with intent to sell within 1500 feet of public housing project where defendant failed to object to testimony, cross-examine witness on issue or request offer of proof as to witness’ qualifications to testify to such), cert. denied, 266 Conn. 913, 833 A.2d 465 (2003); In re Jose M., 30 Conn. App. 381, 390, 620 A.2d 804 (testimony became part of evidence and properly considered by fact finder where respondent failed to object to question or request answer be stricken despite claim on appeal of insufficient evidentiary foundation to permit admission of hearsay statements under coconspirator exception to hearsay rule), cert. denied, 225 Conn. 921, 625 A.2d 821 (1993).

The plaintiffs counsel not only made the tactical decision not to object to the schools of thought testimony but also elicited from the plaintiffs own witness on redirect examination an affirmation of the witness’ conclusion that there were two schools of thought on the subject of mesh removal. Gouge’s unchallenged ultimate conclusion concerning the existence of two schools of thought stated on cross-examination and on redirect examination provided an adequate basis for the charge. “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 867, 794 A.2d 997 (2002).

II

The plaintiff next claims that the court improperly marshaled evidence in its charge to the jury. Specifically, the plaintiff argues that the court misled the jury when it pointed out in its charge that Gouge had testified that there were two schools of thought with respect to leaving a piece of adherent mesh on the bowel. We disagree.

“The matter of commenting on evidence rests in a trial court’s sound discretion. . . . Although a trial court has not only the right, but often the duty to comment on the evidence ... [a] court’s review of the evidence in its charge to the jury is subject to the overriding consideration that its comments be fair and that they not mislead the jury, so that injustice is not done to either party. . . . The nature and extent of a court’s comments depends largely on the facts of a case and the manner in which it was tried. ... It is the duty of the trial judge, in submitting the law and the facts to the consideration of a jury, to refer to the testimony so far as may be necessary to assist the jury to a clear apprehension of the relation of the testimony, whose credibility [it] must determine, to the material facts [it] must decide .... It is evident that whenever this duty is well done, the charge must to some extent uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case.” (Citations omitted; internal quotation marks omitted.) Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 669, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991).

When giving the charge on schools of thought, the court instructed: “In this case, it is my recollection— and again, it’s your recollection that controls—it is my recollection that there was some testimony by Dr. Gouge that there may be two schools of thought on whether a previously installed mesh, which has adhered to the small bowel, must be completely removed from the bowel or be allowed to remain attached to the bowel when making a subsequent hernia repair.” The court’s reference to Gouge’s testimony was an accurate account of the evidence. In response to questions on cross-examination and redirect examination, Gouge testified that there are two schools of thought concerning the removal of adherent mesh.

In addition, the court prefaced its remark with a reminder to the jurors that their recollection controls. The jurors already had been instructed that they were the sole judges of the facts. Prior to giving the schools of thought charge, the court specifically instructed: “Now, if I refer to any of the evidence in this charge, and I will do so, it will be simply for purposes of illustration and clarification, and you are not to understand that I intend to emphasize any evidence I mention or limit your consideration to that evidence alone. If I omit reference to any evidence, you will supply it from your own recollection. If I incorrectly state any of the evidence, you will correct my error because it is your province to review the evidence and determine the facts established by it.” After a thorough review of the testimony and the court’s charge, we conclude that the charge was reasonable and fair and within the limits of the court’s broad discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Fidele J. Savoie died on June 1, 2006. On September 11, 2006, the plaintiffs attorney filed a motion to substitute party plaintiff, requesting permission to substitute Amy S. Luby and Suzan Savoie-Swist, the executrices of Fidele J. Savoie’s estate, for Fidele J. Savoie in his individual capacity, and to substitute Suzan Savoie-Swist, the coexecutrix of Huberte Marie Savoie’s estate, for Fidele J. Savoie in his capacity as the executor of Huberte Marie Savoie’s estate. We granted the motion on September 28, 2006. For clarity, we refer in this opinion to Fidele J. Savoie as the plaintiff.

       Initially, the action also was brought against Saint Francis Hospital and Medical Center, but the action w'as later withdrawn with respect to that defendant. We refer in this opinion to Daoud as the defendant.

       The plaintiffs expert witness, Thomas Gouge, a general surgeon, testified that a ventral hernia is a break in the abdominal wall through which abdominal organs protrude.

       Gouge testified that laparoscopic hernia repair is a minimally invasive surgery of the abdomen performed by making a number of small incisions in the patient’s abdomen through which scopes, cameras and instruments are placed. It is contrasted with open abdominal surgery, which involves large incisions through the abdominal wall.

       “Resect” is defined as “to perform a resection; cut off or away.” American Heritage Dictionary of the English Language (New College Ed. 1981). “Resection” is defined as “the surgical removal of part of an organ or structure.” Id.

       Specifically, the following testimony was elicited from Gouge on cross-examination:
      “[The Defendant’s Counsel]: Doctor, since the time you formed your opinion in this case on whether it is safe to leave an old piece of marlex mesh attached as [the defendant] did in this case, since the time you formed your opinions, you have learned through reading other depositions in this case that other doctors disagree with your opinion?
      “[The Witness]: Yes, sir.
      “[The Defendant’s Counsel]: And would you agree with me that there are two schools of thought in this country on this issue of whether it’s safe and acceptable to leave an old piece of marlex mesh in the patient attached to the bowel?
      “[The Witness]: Yes, sir, I would. There is no solid evidence one way or the other. There is anecdotal experience in both directions.
      “[The Defendant’s Counsel]: But you respect the fact that . . . there are at least two schools of thought on the issue. Fair enough?
      “[The Witness]: Yes, sir, and that there—it is that, yes, I’ll just agree with you, sir.”

       “Dissection” is defined as “the act of dissecting.” American Heritage Dictionary of the English Language (New College Ed. 1981). “Dissect” is defined as “to cut apart or separate. . . .” Id.

       For example, the following testimony was elicited from Gouge by the plaintiff on direct examination:
      “[The Plaintiffs Counsel]: ... Do you have an opinion to a reasonable degree of medical probability as to whether or not [the defendant] complied with the standard of care applicable to general surgeons in the performance of the laparoscopic ventral hernia repair on February 8, 1999? . . .
      “[The Witness]: That he did not, did not within a reasonable degree of medical probability meet the standard of care expected of a general surgeon performing a laparoscopic, recurrent ventral hernia repair. In the maimer in which he dissected the mesh and in the manner of that dissection, leaving the mesh in the abdomen attached to the intestine, both by just leaving the mesh and because of that fact having that two inch by seven or eight inch piece of mesh with fat on the top of it in there prevented him from adequately inspecting the intestine that he had been working on in doing that surgery.
      “[The Plaintiffs Counsel]: And why is it a breach in the standard of care to leave the mesh and the fat on the intestine?
      “[The Witness]: Because you can’t see the intestine underneath, and you can’t see whether there was a problem with the intestine to start off with that you have now opened up by taking this down. You can’t tell whether you injured the intestine in your initial dissection by trying to pull it away from the mesh, and you can’t tell whether the instruments that you’ve used to cut through the fat have caused, by heating the fat up, some ii\juiy to the intestine below the mesh.”

       The plaintiff also alleged in his complaint that the defendant failed to return his telephone calls, thereby delaying diagnosis of the decedent’s bowel perforation. This claim is not at issue on appeal.

       Over the defendant’s objection, the court permitted Gouge to testily regarding improper inspection of the bowel, reasoning that the testimony came within paragraph 5e of the compliant. Although the experts did not dispute that careful inspection of the bowel is necessary, the central surgical issue on which the experts disagreed was whether all adherent mesh needed to be removed from the bowel in order to comply with the standard of care.

       The schools of thought doctrine involves recognized and established schools of medical thought that maintain their own “established rules and principles of practice for the guidance of all [their] members . . . (Internal quotation marks omitted.) Wasfi v. Chaddha, 218 Conn. 200, 208, 588 A.2d 204 (1991). Any argument by the plaintiff that Gouge was using the term “schools of thought” in a manner different from the way it is used in Connecticut case law and that, consequently, there was no evidentiary foundation for the jury charge is unavailing. The plaintiff used the term “schools of thought” on redirect examination but did not give any indication that the term was being used in a manner different from how it is used in Connecticut case law. Additionally, Gouge did not give any indication of confusion as to the terminology. The record does not provide any basis that the term was used in a manner different from the way it is recognized under Connecticut case law.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. LONNIE OWEN
    (AC 27803)
    Gruendel, Lavine and Foti, Js.
    Argued February 21
    officially released May 1, 2007

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Joseph T. Corradino, senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Lonnie Owen, appeals from the judgment of conviction, rendered after a juiy trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly failed to admit into evidence a witness’ written statement. We affirm the judgment of the trial court.

On January 1, 2003, at approximately 7:40 a.m., the body of Jikki Bruce was found on Center Street in Bridgeport. The cause of Bruce’s death was a single gunshot wound to his abdomen. After an investigation, the police determined that the defendant had shot Bruce on the fifth floor of a building in a housing project approximately eight hours before Bruce’s body was found. Bruce fled from that building and then collapsed and died one block away on Center Street. The state charged the defendant with murder, but he claimed that he had been at a New Haven nightclub at the time that Bruce had been shot. After a trial, the jury returned a verdict of guilty. The court rendered judgment in accordance with the verdict and sentenced the defendant to sixty years incarceration. This appeal followed.

The defendant’s sole claim on appeal is that the court should have admitted into evidence the written statement of Juan Gomes, who lived near the site of Bruce’s death on Center Street. Gomes provided his statement to the police shortly after Bruce’s body was found. According to Gomes’ statement, he had been drinking beer with his friends on his porch at approximately 2 a.m. on January 1, 2003, and had seen three or four men chase and shoot at another man on Center Street. Gomes admitted in his statement that he had been drunk at that time and that he could not describe the man who had been chased and shot at because it was dark and the incident happened quickly. Although Gomes was unavailable to testify at trial, the defendant moved to admit Gomes’ statement into evidence under the residual exception to the rule against hearsay. The court determined that that statement was not reasonably necessary to the resolution of the case and therefore excluded it.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Alexander, 95 Conn. App. 154, 159, 895 A.2d 865, cert. denied, 280 Conn. 909, 908 A.2d 539 (2006).

“An out-of-court statement used to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception applies.” (Internal quotation marks omitted.) Brown v. Bright Clouds Ministries, Inc., 94 Conn. App. 181, 185, 891 A.2d 999, cert. denied, 278 Conn. 907, 899 A.2d 35 (2006). Section 8-9 of the Connecticut Code of Evidence provides: “A statement that is not admissible under any [other exception to the rule against hearsay] is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule. ” “The requirement of reasonable necessity is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.” (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 727-28, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006); accord Conn. Code Evid. § 8-9, commentary.

We conclude that the court properly excluded Gomes’ statement because it was not reasonably necessary to the resolution of the defendant’s case. It is not clear that Gomes’ observation of three or four men chasing and shooting at another man had any relationship to the murder of Bruce. Gomes admitted that he was drunk and could not see the man who had been chased and shot at because it was dark and the incident happened quickly. Even if that man had been Bruce, Gomes did not have any information that cast doubt on the defendant’s guilt because the defendant could have been one of the three or four men chasing and shooting at the man assumed to be Bruce. Gomes’ statement did not contain any facts of sufficient value to meet the requirement of reasonable necessity under the residual exception to the rule against hearsay. Accordingly, the court did not abuse its discretion in refusing to admit Gomes’ statement into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claimed in his brief that the court improperly admitted into evidence another witness’ written statement and a transcript of that witness’ testimony at a probable cause hearing. In a letter to this court prior to oral argument, the defendant abandoned that claim upon realizing that defense counsel had failed to object to the admission of the written statement and transcript at the defendant’s trial.


author: GRUENDEL, J.

text:
    DENNIS W. BYARS v. FEDEX GROUND PACKAGE SYSTEM, INC., ET AL.
    (AC 27385)
    DiPentima, Gruendel and Harper, Js.
    Argued November 29, 2006
    officially released May 8, 2007

      Dennis W. Byars, pro se, the appellant (plaintiff).

      Tasos C. Paindiris, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

This case arises from a default judgment in an employment discrimination action rendered in favor of the pro se plaintiff, Dennis W. Byars. The plaintiff appeals from the trial court’s denial of his motion to reargue and to vacate the order to open the default judgment. The trial court subsequently granted the motion to dismiss filed by the defendant FedEx Ground Package System, Inc., and rendered judgment dismissing the action. On appeal, the plaintiff claims that the court improperly (1) granted the defendant’s motion to open the judgment prior to the expiration of his allotted time to respond, (2) denied his motion for an extension of time and (3) failed to place his request for production of documents on the short calendar. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issues on appeal. On August 25, 2004, the plaintiff filed a complaint wdth the commission on human rights and opportunities (commission), alleging employment discrimination on the basis of race, color and age. The commission dismissed the case, observing that the defendant was exempt from its jurisdiction because the position sought by the plaintiff was that of an independent contractor and not of an employee. Thereafter, on September 13, 2004, the plaintiff commenced the discrimination action in the trial court. The court, Levine, J., granted the plaintiffs motion for default on January 7, 2005, due to the defendant’s failure to appear. On November 15, 2005, the court, Dunnell, ■/., rendered judgment and awarded the plaintiff $60,000 in damages.

On December 27, 2005, the defendant filed a motion to open the judgment and a motion to dismiss the plaintiffs complaint. 5On January 5, 2006, the plaintiff filed a motion for an extension of time in which to respond to both of the defendant’s motions; the court took no action on the plaintiffs motion. Instead, it placed the defendant’s motion to open the judgment on the short calendar docket for January 9,2006, marked as nonarguable. On January 9, 2006, the court, R. Robinson, J., granted the defendant’s motion to open the judgment. On January 18, 2006, the court granted the defendant’s motion to dismiss. On January 23, 2006, the plaintiff filed a motion to reargue and to vacate the trial court’s January 9,2006 order opening the judgment. On January 30, 2006, the plaintiff filed a motion to reargue and to vacate the trial court’s January 18, 2006 order dismissing the action. The plaintiffs January 23 motion was denied on February 6, 2006, and, on February 14, 2006, the plaintiff filed this appeal. Also on February 14, the court granted the plaintiff’s January 30 motion and scheduled reargument on the defendants’ motion to dismiss. On April 13, 2006, the court again granted the motion to dismiss and rendered judgment dismissing the action.

“Our standard of review is well settled. Whether a court has authority to grant a motion to open requires an interpretation of the relevant statutes. Statutory construction, in turn, presents a question of law over which our review is plenary.” Opoku v. Grant, 63 Conn. App. 686, 690, 778 A.2d 981 (2001). “We interpret provisions of the Practice Book according to the same well settled principles of construction that we apply to the General Statutes. ... In determining the meaning of a statute, [it] must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” (Internal quotation marks omitted.) Wilson v. Troxler, 91 Conn. App. 864, 871, 883 A.2d 18, cert. denied, 276 Conn. 928, 929, 889 A.2d 819, 820 (2005).

I

The plaintiff first claims that the court improperly granted the defendant’s motion to open the judgment prior to the expiration of the allotted fifteen day time period to respond to the motion. We disagree.

In support of his claim, the plaintiff cites Practice Book § 10-8, entitled “Time to Plead,” which provides in relevant part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required . . . .” (Emphasis added.) We note that Practice Book § 10-8 is inapposite to the present appeal because it relates to the time periods allowed for pleadings. See, e.g., Schilberg Integrated Metals v. Continental Casualty Co., 263 Conn. 245, 275, 819 A.2d 773 (2003); Dauti v. Stop & Shop Supermarket Co., 90 Conn. App. 626, 636, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).

Practice Book § 11-15 provides in relevant part: “Matters to be placed on the short calendar shall be assigned automatically by the clerk without written claim .... No such matters shall be so assigned unless filed at least five days before the opening of court on the short calendar day. ...” (Emphasis added.) This rule implements “the fundamental principle of judicial administration [t]hat no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” (Internal quotation marks omitted.) Fattibene v. Kealey, 18 Conn. App. 344, 353, 558 A.2d 677 (1989). The defendant’s motion to open the judgment was filed on December 27, 2005, thirteen days before the motion was considered at short calendar on January 9,2006. Therefore, the court’s actions in placing the motion on the short calendar did not violate our rules of practice, and the plaintiffs first claim fails.

II

The plaintiff also claims that the court improperly granted the defendant’s motion to open the judgment because he was not permitted an extension of time to respond to the motion. Specifically, he claims that the court had no authority to ignore his timely submitted motion. We disagree.

The plaintiff relies on Practice Book § 10-30, entitled “Motion to Dismiss; Request for Extension of Time to Respond.” Section 10-30 provides in relevant part: “Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant the request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request.” (Emphasis added.) The plaintiff filed his motion for an extension of time on January 5, 2006, within ten days of the defendant’s filing of the motion to open the judgment on December 27, 2005. He claims that the language of the rule of practice mandated that the clerk grant his motion for an extension of time.

Practice Book § 10-30 is inapplicable, as it refers to motions to dismiss and not motions to open the judgment. Despite the mandatory language in this section, we are unable to locate any authority for the proposition that granting a request for an extension of time to respond to a motion to open the judgment is mandatory. On the contrary, the precedent in our appellate courts dictates that trial courts are given discretion to grant or deny a request for an extension of time to respond to all but a limited number of motions. See, e.g., Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 580 n.2, 441 A.2d 593 (1981); Sachs v. Sachs, 22 Conn. App. 410, 416-19, 578 A.2d 649, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990). Accordingly, the court did not exceed its authority by failing to grant the plaintiffs motion for an extension of time.

Ill

The plaintiffs final claim is that the court improperly granted the defendant’s motion to open the judgment after refusing to place his request for production of documents on the short calendar docket. We disagree.

Practice Book § 13-9 provides in relevant part: “(b) Requests for production may be served upon any party without leave of court at any time after the return day. . . . (e) The party serving such request . . . shall not file it with the court. . . .” (Emphasis added.) It is only when the adverse party objects to the request that it may be filed with the court. See Practice Book § 13-10 (b). The defendant filed an objection on January 11, 2006, and no further action was taken by the plaintiff. Practice Book § 13-10 (c) provides in relevant part: “No objection to any such request shall be placed on the short calendar list until an affidavit by either counsel is filed certifying that bona fide attempts have been made to resolve the differences concerning the subject matter of the objection and that counsel have been unable to reach an accord. ...” Pursuant to our rules of practice, the court’s failure to place the plaintiffs request on the short calendar was not improper. Cf. Esposito v. Presnick, 15 Conn. App. 654, 663-64, 546 A.2d 899 (trial court’s failure to consider pro se plaintiffs objection to production request improper), cert, denied, 209 Conn. 819,551 A.2d 755 (1988). Accordingly, the court did not exceed its authority in acting on the defendant’s motion to open the judgment without having placed the plaintiffs request for production on the short calendar.

The judgment is affirmed.

In this opinion the other judges concurred.

       The action was withdrawn as against the other defendant, the commission on human rights and opportunities, on February 2, 2005. We hereinafter refer to FedEx Ground Package System, Inc., as the defendant.

       In part, the plaintiff also argues that the court’s rulings resulted in a denial of his equal protection rights. His equal protection claims are beyond the scope of our limited review because they do not implicate the trial court’s power to open the judgment. Generally, the granting of a motion to open is not a final judgment from which an appeal will lie. See RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 686, 899 A.2d 586 (2006) (“with limited exceptions . . . this court lacks jurisdiction over an appeal filed subsequent to the granting of a motion to open because there is no final judgment, an essential prerequisite to our jurisdiction” [citation omitted]). An appeal from the granting of amotion to open may be filed, however, where the authority of the trial court to do so is challenged. See Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980). Accordingly, we address these claims only insofar as they challenge the court’s power to open the judgment.
      We are also unable to review the plaintiffs additional claim that the court improperly granted the motion to open the judgment based only on the defendant’s allegations rather than a “ ‘showing’ sufficient to satisfy statutory requirements.” As noted, we review the plaintiffs claims only insofar as they challenge the court’s authority to grant the motion.

       On November 25, 2005, the plaintiff appealed to this court from the award of damages. On April 26, 2006, this court granted the defendant’s motion to dismiss the plaintiffs November 25, 2005 appeal because the trial court had opened the judgment in the case, after which there was no final judgment from which the plaintiff could appeal. See Sasso v. Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985).

       In its motion to open the judgment, the defendant argued that the plaintiff did not serve process on the defendant’s registered agent; in its motion to dismiss, it alleged that the court lacked personal jurisdiction over the defendant.

       The granting of a motion to open the judgment is governed by General Statutes § 52-212, which provides in relevant part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.

        “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear. . . .”
      Because the granting of a motion to open the judgment is not an appealable final judgment, we decline to review the merits of the motion. See footnote 2.

       Although not specifically stated in the motion or the plaintiffs brief, we assume, because of timing, that the plaintiffs request for production was intended for his opposition to the defendant’s motion to open the judgment. We therefore review the plaintiffs claim.