author: MIHALAKOS, J.

text:
    STEPHANIE W. SHEA ET AL. v. CHASE MANHATTAN BANK, N.A.
    (AC 20633)
    Foti, Mihalakos and Daly, Js.
    Argued March 30
    officially released July 31, 2001

      Philip D. Russell, with whom, on the brief, was Roy S. Ward and Harold H. Dean, for the appellant (named plaintiff).

      Joseph L. Clasen, with whom, on the brief, were Eric W. G. Dawson and Linda H. Kolodny, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

In this action for vexatious litigation, the plaintiff Stephanie W. Shea appeals from the trial court’s judgment in favor of the defendant, Chase Manhattan Bank, N.A. (Chase). On appeal, the plaintiff claims that (1) the trial court improperly failed to apply the doctrine of collateral estoppel with respect to the prior litigation between the parties, thereby requiring years of relitigation of the issues, (2) the judicial findings from the prior proceeding that did not go to probable cause were sufficiently firm to bar their relitigation, (3) relitigation of probable cause was barred by estoppel and common-law rules governing vexatious litigation claims, (4) the trial court improperly held that General Statutes § 52-568 changed the common law and allowed analysis of postinitiation issues, (5) the trial court improperly allowed Chase to use an “unclean hands” defense, (6) the trial court improperly held that Chase had a viable “advice of counsel” defense and (7) the trial court improperly failed to analyze whether Chase’s prior claims under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., were brought with probable cause. We do not agree. We find that our resolution of the plaintiffs advice of counsel claim is dispositive in this case and decline to address the other claims.

The record reveals the following facts. In 1988, the plaintiff was the director and president of Deltrade International, Ltd. (Deltrade), a sulfur trading company. The plaintiff owned no stock in Deltrade or in any related corporation. A total of 94.5 percent of Deltrade stock was owned by Antonino Castellett, and 5.5 percent was owned by Castellett’s wife, through their ownership of Deltrade’s parent company, Deltacorp, Inc. The plaintiff, on behalf of Deltrade, requested a $7.5 million secured line of credit from Chase. On October 7, 1988, the plaintiff executed a general security agreement on behalf of Deltrade. Also on that date, the plaintiff, on behalf of Deltrade, signed a continuing acceptance agreement with Chase that states in part that “[t]he undersigned represents and warrants that . . . (b) each such draft will finance a current shipment of goods . . . [and] (f) no other financing is or will be outstanding in respect of such transaction during the period from the date of such draft until maturity thereof . . . .” At the time that those documents were executed, Chase believed that Deltrade was as Delaware corporation and was the trading arm of the business, that it was engaged in the trading of sulfur, and had both assets and sulfur.

In reality, there was a second corporation known as Deltrade International, Ltd. (Deltrade Bermuda). The second entity was a Bermuda corporation and was the actual trading arm of the business. Deltrade, a Delaware corporation formed in 1988, was a shell corporation that had no assets, was never involved in trading sulfur and had no income. That information was never made known to Chase. The plaintiff signed the certified resolution for United States corporations, which was issued in connection with the continuing acceptance agreement, as secretary of “Deltrade International, Ltd., a U.S. corporation,” a company that had neither assets nor income.

The plaintiff represented to Chase that there was a pending merger between Deltrade Bermuda and Del-trade and that, thereafter, Deltrade would be the trading entity. The plaintiff never informed Chase that the merger did not take place, and Chase, in turn, relied on the plaintiffs representations. There never was a merger; however, Chase believed that one had occurred.

Between October 26, 1988, and March 9, 1989, Chase made a series of loans to Deltrade under the secured line of credit. Only one of those loans was ever repaid. The remaining seven unpaid loans, totaling more than $8 million, were never repaid. All Deltacorp and Del-trade entities went into bankruptcy.

Chase’s in-house counsel, Lynne Barry, analyzed all the documents pertaining to the credit and loan transactions between Chase and Deltrade that involved the plaintiff. Chase hired the law firm Robinson & Cole LLP as outside counsel, and its attorneys also reviewed all the pertinent documents. In 1989, Chase commenced an action against the plaintiff, alleging fraud after both in-house and outside counsel had sufficient information to believe that the plaintiff had committed fraud by signing the various documents associated with the seven unpaid loan transactions when she knew (1) Del-trade had no inventory, (2) that for the seven financed transactions, the proceeds were paid by the purchaser to Deltrade prior to Chase’s payment and (3) no security existed for any of the seven transactions. Both counsel were aware that the plaintiff had signed documents on behalf of a Delaware corporation, Deltrade, that had no assets and on behalf of a Bermuda coiporation when the documents themselves indicated it was a United States based corporation. Chase alleged in the 1989 action that the plaintiff should be held personally responsible for activities she performed as an officer of Deltrade. Chase filed for and was granted an ex parte prejudgment attachment of the plaintiffs Connecticut home in the amount of $9 million. Chase alleged that it had been defrauded by the plaintiff in that (1) she misrepresented that a merger between Deltrade and Deltrade Bermuda had taken place, (2) in several transactions, there was no collateral for the loan from Chase to Deltrade, (3) there were no matching purchases and sales of sulfur as promised, and (4) several of the sales had been financed by another bank resulting in double financing. Chase also alleged that the plaintiff had violated CUTPA.

The plaintiff thereafter filed a motion, pursuant to General Statutes § 52-278e (c), to dissolve the attachment. The court, Lewis, J., granted the plaintiffs motion, finding that no probable cause existed for any of Chase’s allegations. That judgment was affirmed by this court. Chase Manhattan Bank, N.A. v. Shea, 24 Conn. App. 169, 586 A.2d 634, cert. denied, 218 Conn. 908, 588 A.2d 1384 (1991). On May 2, 1994, after four and one-half years of litigation and before going to trial, Chase withdrew its claims against the plaintiff.

In December, 1995, the plaintiff brought an action against Chase, alleging violations of § 52-568, CUTPA, and seeking damages for intentional infliction of emotional distress and prima facie tort. The court, Tierney, J., applied the test set forth in DeLaurentis v. New Haven, 220 Conn. 225, 597 A.2d 807 (1991), requiring that the plaintiff show that (1) the prior litigation was commenced by Chase, (2) the prior litigation ended in the plaintiffs favor and (3) Chase did not have probable cause for the prior litigation. The court found in favor of Chase, stating in its memorandum of decision that although the prior litigation had been commenced by Chase and had ended in the plaintiffs favor, the plaintiff could not show that Chase lacked probable cause for its 1989 fraud and CUTPA claims. This appeal followed.

Although the plaintiff asserts numerous claims on appeal, we find dispositive of this matter our resolution of her claim that the court improperly decided that Chase had a viable “advice of counsel” defense. We do not agree with that claim.

The following additional facts, found by the court, are necessary to our resolution of the plaintiff s claim. Barry analyzed each of the documents in Chase’s possession regarding the Deltrade transactions. Attorneys from Robinson & Cole LLP also analyzed each of the documents. Both counsel believed that the plaintiff had committed fraud by signing the various documents when she knew that no inventory existed as collateral and that the proceeds already had been paid by the purchaser. There was, therefore, no security for any of those transactions. Counsel also knew that the plaintiff had signed documents on behalf of a Delaware corporation that had no assets. They further knew that she had signed documents on behalf of a Bermuda corporation when the documents indicated that it was a United States based coiporation.

Steven R. Humphrey of Robinson & Cole LLP advised Chase that it had a strong foundation for a civil fraud claim and that such a claim should be made. Barry extensively interviewed Chase’s representatives in the Deltrade transactions and read Chase’s entire file. Barry further researched Connecticut and New York law on the relevant legal issues. Humphrey also reached the conclusion that Chase had a viable civil fraud claim against the plaintiff and recommended that one be filed. Humphrey’s associate, Katherine B. Larson, reached the same legal conclusion and gave the same advice. In 1994, after a cost-benefit analysis, Barry and Humphrey withdrew the 1989 action against the plaintiff, on the advice of Chase, because of the high costs of trial and the lack of assets available to collect on a judgment against the plaintiff.

“Advice of counsel is a complete defense to an action of . . . vexatious suit when it is shown that the defendant . . . instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing. The fact that the attorney’s advice was unsound or erroneous will not affect the result.” Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978).

The court in its memorandum of decision found in favor of Chase on its special defense that it relied on the advice of counsel, stating that “[t]he defendant has sustained its burden of proof in proving advice of counsel for both in-house and outside counsel. Both counsel had full knowledge of all the facts of this case. All counsel specifically advised Chase that it file a civil fraud action against Shea. The attorneys had the full cooperation [of] all the knowledgeable employees of Chase. They had all of Chase’s documentation. Counsel was able to obtain information unknown to Chase from other suppliers and other lending institutions. It was reasonable for Chase to rely on advice from both in-house and outside counsel in this matter.” We conclude that the court’s holding was proper in light of the previously discussed facts.

We further conclude that the court properly found that Chase did, in fact, rely in good faith on the advice of its attorneys and that this advice was given after the attorneys’ close review of all of the facts within Chase’s knowledge or those with which it was charged with knowing. Because advice of counsel is a complete defense to an action sounding in vexatious litigation, we decline to address the plaintiffs remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Michael P. Shea, the husband of the plaintiff Stephanie W. Shea, also was a plaintiff in this action. Because only Stephanie W. Shea has appealed, we refer to her in this opinion as the plaintiff.

       General Statutes § 52-278e (c) provides in relevant part: “The notice and claim form required by subsection (b) of this section shall contain (1) the name and address of any third person holding property . . . and (2) a statement of the procedure set out in subsection (d) of this section for requesting ahearing to move to dissolve or modify the prejudgment remedy.”

       General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL CARTER
    (AC 20210)
    Foti, Schaller and O’Connell, Js.
    Argued April 25
    officially released July 31, 2001

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom were Gail Hardy, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Paul Carter, appeals from the judgment of conviction, rendered following a trial before the court, of misconduct with a motor vehicle in violation of General Statutes § 53a,-57. On appeal, the defendant argues that the state failed to present sufficient evidence to prove beyond a reasonable doubt that he acted with criminal negligence. We affirm the judgment of the trial court.

The court found the following facts relevant to the defendant’s conviction under § 53a-57. At approximately 5 o’clock in the evening, during rush hour, Neil Johnson was traveling in the northbound lane on Route 8 in Waterbury, just before exit thirty-six. Traffic was heavy and moving quickly. Johnson ran out of gasoline, left his vehicle on the shoulder of the highway and telephoned his wife, requesting that she bring him some gasoline.

When Johnson returned to his car, he noticed a truck stopped on the shoulder behind his vehicle. The truck’s operator, Ralph Bird, also had run out of gasoline. Johnson spoke with Bird and told him that he would share some of the gasoline that his wife was bringing to him. Johnson’s wife arrived shortly thereafter. After Johnson poured some of the gasoline into his vehicle’s tank, he gave the gasoline can to Bird, who then proceeded to pour its contents into his truck’s gasoline tank. Johnson recalled that he watched Bird “very closely” and that at no point did Bird step onto the travel portion of the highway.

Just prior to this time, Richard Felten also was driving in the northbound lane on Route 8 in Waterbury. A white Volkswagen Jetta, operated by the defendant, moved two feet into his lane. Felten observed that the defendant was “bent over in a position . . . bent further down to the right ... it seemed like he was working on the radio or like he was installing the radio or something under the dash,” and was unable to see the road or where his car was going. After a few seconds, the defendant sat up and made eye contact with Felten. The defendant appeared “apathetic . . . like he didn’t care what he did.”

Approximately thirty seconds later, Felten noticed the defendant’s vehicle, then traveling in the right lane, move across the solid white line that separates the travel lane from the shoulder of the highway. Felten could not see the defendant’s head through the rear window of the defendant’s vehicle, as he would have expected. Felten observed, once again, that the defendant appeared to be working on something underneath the dashboard.

A second or two after Felten made those observations, he noticed Bird standing off to the right shoulder of the highway, pouring gasoline into his truck. He observed the defendant’s vehicle strike Bird, heard a scream and observed that Bird “disappeared.” Felten stopped his car beyond the scene of the crash and noticed the defendant sitting in his car near the guardrail with a “blank” stare. Johnson also observed the defendant’s vehicle leave the travel portion of the highway, strike the rear of Bird’s truck and strike Bird. Bird died as a result of his injuries.

Johnson’s wife, Marybeth Johnson, testified that when she came upon both her husband’s vehicle and Bird’s truck, they were parked on a flat, straight portion of the highway. She recalled that she was able to see the vehicles “quite clearly” from approximately one hundred feet or more as she approached them. She also witnessed the defendant’s vehicle strike Bird, her husband’s vehicle and her truck. She recalled that, after the accident, she had yelled to the defendant and had told him to get out of his vehicle. She noticed that the defendant had a “blank” look on his face and that he was nonresponsive.

After leaving his vehicle, the defendant sat on a nearby guardrail. Jose Campos, a Connecticut state police trooper, spoke with the defendant at the scene of the accident. At that time, the defendant stated that he did not know what had happened. At the hospital, the defendant told Campos that he thought he was hit. Later, while at the state police barracks, the defendant told Campos that he “thought and felt that he could have fallen asleep,” but that it was “a blank.”

William Cairo, a Connecticut state trooper duly qualified as an expert in accident reconstruction, testified that the defendant’s vehicle strayed no more than three feet into the shoulder from the travel portion of the highway. The defendant was traveling at a normal rate of speed. The defendant, however, did not apply his brakes prior to the accident to avoid the collision. Steve Babasick, a certified mechanic with over twenty years experience, testified that he had inspected the defendant’s vehicle and that it did not have any mechanical problems that would have contributed to the accident.

The defendant did not refute any of the state’s evidence. The defendant argued that the facts were not in dispute and that the case involved questions of law. The court concluded that the defendant was operating his vehicle while in an impaired condition and, therefore, was unable to maintain visual contact with the road. The court further concluded that the defendant’s operating his vehicle under the traffic conditions that existed at the time of the accident while not maintaining visual contact with the road “created a substantial and unjustifiable risk of death or serious body injury to other persons traveling on the road.”

The court reasoned that “[t]he defendant had an opportunity to perceive that he was unable to see where he was driving” because he resumed an upright position after he encroached on Felten’s lane. The court concluded that, by failing to pull off the road, the defendant demonstrated that he either failed to perceive or ignored the fact that driving in his condition posed a risk to other drivers. The court characterized the defendant’s decision to continue to drive in this condition to be “a gross deviation from the standard of care which a reasonable person would observe in such a situation. Consequently, by continuing to drive, the defendant acted with criminal negligence.”

The court noted the defendant’s second “relapse,” which rendered him unable to maintain visual contact with the road for a second time. The court found that, as a result of his criminal negligence, the defendant failed to see the vehicles on the shoulder of the highway and caused Bird’s death. In reaching its decision, the court stated that “[t]he defendant did not refute the testimony that he recovered from his lapse of consciousness after nearly colliding with Mr. Felten and thus had the opportunity to perceive the substantial and unjustifiable risk of death or serious bodily injury which driving in his condition posed to himself and others.” This appeal ensued.

The defendant claims that the evidence in the record does not support the court’s conclusion that he acted with criminal negligence. He argues, essentially, that the evidence does not support the court’s findings that he lost consciousness when he encroached on Felten’s lane, that he regained his awareness and that he lost consciousness once again just prior to striking Bird.

“Our standard of review for a sufficiency of the evidence claim is well established. In reviewing a sufficiency of the evidence claim, we 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. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . State v. DeCaro, 252 Conn. 229, 239, 745 A.2d 800 (2000). In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct. State v. Wager, 32 Conn. App. 417, 430, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).” (Internal quotation marks omitted.) State v. Paris, 63 Conn. App. 284, 288, 775 A.2d 994, cert, denied, 257 Conn. 909, 782 A.2d 135 (2001).

Section 53a-57 (a) provides that “[a] person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.” General Statutes § 53a-3 (14) defines criminal negligence: “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . .”

To convict the defendant under § 53a-57, the state had the burden of proving the following three elements beyond a reasonable doubt: (1) the defendant was operating a motor vehicle; (2) the defendant caused the death of another person; and (3) the defendant possessed the mental state for criminal negligence. The defendant does not challenge the court’s finding that he was operating the motor vehicle that struck Bird or that he caused Bird’s death. The defendant challenges the court’s conclusion that he acted with criminal negligence.

Under the statute, the state was required to prove that the defendant failed to perceive a substantial and unjustifiable risk that the manner in which he was operating his vehicle would cause the death of another. The state also had to prove that the defendant’s failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. General Statutes § 53a-3 (14); see also State v. Kristy, 11 Conn. App. 473, 482, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987).

We find ample support in the record for the court’s factual determinations. The court found that the defendant had operated his vehicle in an impaired condition when he first encroached on Felten’s lane. Felten testified that he had the opportunity to, and did, observe the defendant in a bent over position. The court logically could have concluded, as it did, that the defendant was unable to see either the road or where his car was heading while operating his vehicle in that position.

Felten also testified that, after the defendant’s vehicle had encroached on his lane, the defendant “corrected the position of the car,” and that he made eye contact with the defendant. Felten recalled noticing that the defendant’s “eyes were open . . . and he just gave me a kind of dull apathetic look. He wasn’t aggressive and he wasn’t apologetic . . . .” The court logically could have concluded, as it did, that the defendant had operated his car while “he was unable to maintain visual contact with the road,” thereby operating his vehicle while in an “impaired condition.” It also was reasonable and logical for the court to have found that the defendant had the opportunity after that episode with Felten to perceive that operating his vehicle in such a manner posed a substantial and unjustifiable risk of death or serious bodily injury to other persons traveling on the road.

Felten testified that, around thirty seconds later, the defendant’s vehicle was ahead of him in his lane. The defendant, however, was traveling with his tires about two feet over the solid white line separating the travel lane from the right shoulder of the highway. Felten further recalled that he had had the opportunity to observe, and did observe, that the defendant was not sitting upright while operating his vehicle. The court logically could have concluded, as it did, that the defendant exhibited the same behavior that caused his car earlier to have encroached on Felten’s lane. It also was logical for the court to conclude, as it did, that the defendant was unable to maintain visual contact with the road once again at that time.

The defendant argues that the court improperly found that he suffered from a loss of consciousness, for whatever reason, both when he encroached on Felten’s lane and when he subsequently crossed the solid line off to the right of the highway and ultimately struck Bird. He argues that “the most that can reasonably be inferred from [Felten’s] testimony is that the defendant was in a position permitting him to work on something under the dash, which diverted his attention from the road for ‘just a few seconds’. ...”

The court’s critical finding was as follows: “The defendant did, in fact, lean over while driving [his] motor vehicle, whether he was asleep, or whether he had blacked out, or whether he was doing something else at the time he was driving. In any event, he was not attentive to the road. He did encroach upon the lane of Mr. Felten and, after having done so, he sat up straight in his seat . . . .” The court further found that “[the defendant] at that time had the ability to perceive that for whatever reason, he was leaning over, be it a momentary blackout, be it having fallen asleep, be it fiddling with something under the dash, that his actions created a risk, a substantial unwarranted risk that he could cause the death of another person on the road. Instead of pulling over if he were sleepy or having some medical difficulty, or instead of paying attention to the road if he were doing something under the dash, he proceeded.”

The uncontroverted evidence established that the defendant, at the least, was not paying attention to the road while operating his vehicle at a fast speed in rush hour traffic when he was, as Felten described it, driving in a “bent over” position. Felten described the defendant as “working on the radio or . . . something under the dash . . . .” After an interview with Campos, the defendant gave a written, voluntary statement in which he acknowledged that he did not recall having caused the accident, but that he believed that he could have fallen asleep. The defendant also described his recollection of the incident as a “blank.”

Whether the defendant had been working on something under the dash or had fallen asleep is of little consequence to our analysis. The court had before it circumstantial evidence as to what caused the defendant to operate his vehicle while “bent over” and in an erratic manner. The court was free to “draw whatever inferences from the evidence or facts established by the evidence it [deemed] to be reasonable and logical.” (Internal quotation marks omitted.) State v. Peruccio, 47 Conn. App. 188, 195, 702 A.2d 1200 (1997), cert. denied, 243 Conn. 964, 707 A.2d 1266 (1998). The state was not required to prove exactly what caused the defendant’s impairment. The court had before it Felten’s testimony about how the defendant appeared and the manner in which he had operated his vehicle, as well as the defendant’s own recollections of the accident. It is a matter of common sense that drivers customarily stay in their own travel lane and do not drive in a “bent over” position in the absence of some type of an impairment or distraction affecting their ability to drive in a safe manner.

Given the testimony before it, the court properly concluded that a condition affecting the defendant’s ability to drive or a distraction of some type arose while the defendant was driving. The evidence also supports the court’s finding that this condition was of such a nature that, after it passed, the defendant should have perceived the dangers inherent in its reoccurrence, namely, that continuing to drive created an unjustifiable risk that he would cause the death of another. The evidence further supports the court’s finding that the same impairment did cause the defendant once again to lose consciousness of and visual contact with the road, as evidenced by the fact that he crossed the solid white line and failed to see Bird when he should have, which led to the impact that killed Bird.

Furthermore, those facts establish that the defendant possessed a state of mind sufficient to support a conviction under § 53a-57. We have noted that such a mental state requires proof that the failure to perceive the risk created “must be a gross deviation from the standard of a reasonable man; thus, it requires a greater degree of culpability than the civil standard of negligence.” (Internal quotation marks omitted.) State v. Ortiz, 29 Conn. App. 825, 833, 618 A.2d 547 (1993). In State v. Carty, 120 Conn. 231, 180 A. 287 (1935), our Supreme Court upheld a conviction for gross negligence in the operation of a motor vehicle in violation of General Statutes § 6047, the precursor to § 53a-57. The trial court in that case found that, while operating his vehicle in broad daylight on a main highway, the defendant had demonstrated an “inattention to conditions in and about the road ahead of him” that caused his vehicle to strike and kill a pedestrian on the road on which the defendant was traveling. Id., 235. Our Supreme Court found such inattentiveness to be sufficient evidence of gross negligence.

The factual scenario before the trial court in this case leads to a similar conclusion. The defendant was traveling on a busy highway, during rush hour, at speeds estimated at sixty-five miles per hour. Having regained an awareness of his surroundings and having resumed driving in a customary manner, he did not immediately slow his vehicle or pull off the road. He continued to drive. His failure to appreciate, or his decision to ignore, such a substantial risk to others demonstrates more than ordinary negligence. An operator of a motor vehicle is always under a duty to exercise reasonable care; see Clarke v. Connecticut Co., 83 Conn. 219, 224, 76 A. 523 (1910); and to keep a reasonable lookout for persons or traffic that he or she is likely to encounter. Palombizio v. Murphy, 146 Conn. 352, 357, 150 A.2d 825 (1959). If an operator of a motor vehicle encounters an impairment or distraction affecting his or her ability to exercise that duty of reasonable care, the disregard or failure to perceive the risk that he or she thereby creates by continuing to drive may surpass ordinary negligence. That is the case here. We conclude that the evidence sufficiently supported the court’s conclusion that the defendant operated his vehicle with criminal negligence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-57 (a) provides: “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.”

       On June 18, 1999, the court explained its factual findings and rendered its verdict in open court. The court subsequently filed a memorandum of decision, which the clerk issued on August 24, 1999.
      The state charged the defendant with misconduct with a motor vehicle under § 53a-57 (a) and with the lesser included offense of negligent homicide with a motor vehicle in violation of General Statutes § 14-222a. That statute provides: “Any person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both.” General Statutes § 14-222a. The defendant concedes that his conduct was sufficient to support a conviction under § 14-222a. The court also found that the defendant had operated a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 (a), as the state also charged. The defendant challenges only his conviction under § 53a-57.

       At the close of the evidence, the defendant filed a motion for a judgment of acquittal, thereby preserving this issue for our review.

       Felten testified in this regard as follows: “[The defendant] seemed to be bent over in a position as if he was doing something to the radio, but he seemed to be bent further down to the right and down in general than you might expect if he were adjusting a volume; it seemed like he was working on the radio or like he was installing the radio or something under the dash, but I couldn’t see his hands.”

       The court logically could have found that the defendant had an opportunity to perceive the risk caused by his impairment. Several factors demonstrate that the impairment that affected the defendant had ceased, that he had regained consciousness of and visual contact with the road, and that he had an ability to perceive the risk that he posed to others by continuing to drive. Those factors are: (1) the defendant, to some extent, resumed a more usual driving posture as evidenced by the fact that Felten was able to make eye contact with him and to observe his facial expressions; (2) the defendant looked at Felten, demonstrating an awareness of others traveling on the highway; (3) the defendant straightened his car on the highway at that time; and (4) thirty seconds passed before Felten noticed the defendant exhibiting further signs of an impairment that caused him to lose visual contact with the road and, once again, to veer from his travel lane.

       Felten’s testimony in this respect is as follows: “I have a vague recollection of remembering that it didn’t seem like a normal view from the back, like as if I either didn’t see his head or I saw his shoulder again. I remember thinking to myself, he must be, you know, doing that again He went on to testify that he was unclear as to whether the defendant was “ [w] orking on the dash or working underneath the dash.”


author: FLYNN, J.

text:
    DAVID JOHNSON ET AL. v. TOWN OF NORTH BRANFORD ET AL.
    (AC 19891)
    Foti, Flynn and Dupont, Js.
    Argued February 15
    officially released July 31, 2001

      Barry N. Silver, for the appellants (plaintiffs).

      Stephen J. Courtney, for the appellee (named defendant).
   Opinion

FLYNN, J.

The plaintiffs, David Johnson and Eileen Johnson, appeal from the judgment of the trial court rendered after the court directed the verdict in favor of the defendant town of North Branford (town). On appeal, the plaintiffs argue that the court improperly determined that the applicable statutes of limitation barred their common-law negligence and nuisance claims and their statutory claim under General Statutes § lSa-138. We affirm the judgment of the trial court.

The plaintiffs commenced the present action against the town by service of process on July 14,1994. At trial, following the plaintiffs’ case-in-chief, the town filed a motion for a directed verdict, in part, on the ground that the applicable statutes of limitation barred the plaintiffs’ claims. The town argued that General Statutes § 52-584 barred the plaintiffs’ common-law negligence claim, that General Statutes §§ 52-577 and 52-584 barred the plaintiffs’ common-law nuisance claim, and that General Statutes § 13a-138a barred the statutory claim against the town. The court denied the motion on April 28, 1999. At the close of evidence, the town renewed its motion for a directed verdict, which the court again denied. The court reconsidered the matter sua sponte, however, and granted the town’s motion for a directed verdict the following day. The court reasoned in an oral decision that “the statute requires that . . . the action be brought within a period of time, and in this case it was not brought within that period of time prescribed by the statute. And I found nothing sufficient enough for me to change my mind with regard to having the statute extended by some — some outside circumstances.” Thereafter, on May 10, 1999, the plaintiffs filed a motion to set aside the verdict, which the court denied on July 23, 1999. This appeal followed.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. ... A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) McNeff v. Vinco, Inc., 59 Conn. App. 698, 702-703, 757 A.2d 685 (2000).

Considering the evidence in the light most favorable to the plaintiffs, the following facts are relevant to this appeal. The plaintiffs purchased their home at 39 Hummingbird Drive in the Northford section of the town of North Branford in 1988. The property consists of a dwelling, which was built in 1984, and a detached garage, a shed, an above ground swimming pool and an outdoor dog run, all of which are situated behind the dwelling.

In 1990, the plaintiffs experienced serious flooding problems on their property following extremely heavy rainstorms. During storms in 1990, 1992, 1996, 1998 and 1999, the plaintiffs’ property suffered flooding and damage caused by water runoff and debris washing down from their neighbor’s property at 43 Hummingbird Drive. The runoff originates, however, further up Totoket Mountain on which Hummingbird Drive is located. It then travels down Skylark Drive, which is located upstream from Hummingbird Drive, and is collected in a catch basin on Skylark. From there, the runoff travels through the backyard of a Skylark Drive property to a swale located in the backyard of the neighbor’s property, and then onto and through the plaintiffs’ backyard.

In either 1969 or 1970, the town filled in the swale on the neighbor’s property with riprap at the request of Florence. Taylor, the then owner of the property. That resulted in diverting water runoff away from the neighbor’s property and onto 39 Hummingbird Drive, which at the time was an unimproved lot. The real property at 39 Hummingbird Drive remained an unimproved wooded lot until the original owner of the lot commenced building a dwelling thereon in 1983.

In 1990, when the plaintiffs first experienced heavy flooding in their backyard, they contacted the town for assistance. Kurt Weiss, the town engineer, visited the plaintiffs’ property and surveyed the problem. In a letter dated January 24, 1991, Weiss explained that the proposed construction plan for 39 Hummingbird Drive, which the builder had submitted to the town in 1983, included a grading plan. The letter provided in part: “Included in the grading plan . . . were plans to reconstruct the existing swale across your property to confine the drainage to the swale. The swale, as constructed, is not well defined and appears to be insufficient during times of heavy run-off.” Weiss further explained that the town was not responsible for improving the drainage swale through the plaintiffs’ property because it was the responsibility of the developer and subsequent property owners to maintain the flow of water through the property. Weiss did offer, however, to provide some riprap that the plaintiffs could install at the upstream property line to minimize any future erosion to their property. Notwithstanding the installation of the riprap and other remedial measures taken by the plaintiffs at their own expense, the flooding and resulting damage to the plaintiffs’ property have continued.

We first address the plaintiffs’ claim that the court improperly determined that the statute of limitations contained in § 52-584 barred their common-law negligence and nuisance claims against the town.

“General Statutes § 52-584 is the statute of limitations applicable in an action to recover damages for injury to the person or property caused by negligence .... That statute imposes two specific time requirements on prospective plaintiffs. The first requires a plaintiff to bring an action ‘within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . .’ The second provides that in no event shall a plaintiff bring an action ‘more than three years from the date of the act or omission complained of . . . .’ The statutory clock on this three year time limit begins running when the negligent conduct of the defendant occurs. McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 330, 471 A.2d 646 (1984). Consequently, an action may be time barred even if no injury is sustained during the three years following a defendant’s act or omission. Id.; see also Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 127 A.2d 814 (1956).” Nardi v. AA Electronic Security Engineering, Inc., 32 Conn. App. 205, 210-11, 628 A.2d 991 (1993).

Here, the negligent act complained of occurred in either 1969 or 1970, when the town filled the swale on the neighbor’s property with riprap. The evidence further shows that the plaintiffs were aware of actionable harm in 1990, when they experienced severe flooding for the first time after they purchased the property. The plaintiffs did not commence this action, however, until July, 1994, which is beyond the time period permitted by § 52-584. We conclude, therefore, that the court properly determined that the statute of limitations bars the plaintiffs’ common-law claims.

The plaintiffs next claim that the court improperly determined that § 13a-138a bars their statutory claim under § 13a-138. We disagree.

Although the trial court did not provide a detailed explanation for its ruling on this issue, and neither party sought an articulation of that ruling, we determine that the record is sufficient for our review of the issue. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 39297, 757 A.2d 1074 (2000). In the present case, there is no dispute as to the date on which the town’s act occurred, and the question to be resolved is one of law that requires our de novo review. See id.

Section 13a-138a serves as a limitation on actions for drainage damages brought pursuant to § 13a-138. Section 13a-138a provides in relevant part that “[n]o action shall be brought by the owner of land adjoining a public highway ... for recovery of damage to such property ... by reason of any draining of water into or through such land by any town, city, borough or other political subdivision of the state pursuant to subsection (a) of section 13a-138, but within fifteen years next after the first occurrence of such drainage, except that if such drainage first occurred prior to October 1, 1981, no such action shall be brought after October 1, 1986.”

The trial court found that, as to all three counts, the statute of limitations began to run in 1970, the year in which the town installed riprap into a swale on the neighbor’s property. Taylor testified that, following the installation of the riprap, storm water runoff was diverted from her property onto the property at 39 Hummingbird Drive. On the basis of the language of § 13a-138a, as a matter of law, the plaintiffs could not bring any action after October 1, 1986, because the drainage first occurred before October 1, 1981. The plaintiffs brought the present action in July, 1994, a date well beyond October, 1986. We conclude that the court properly determined that § 13a-138a bars the plaintiffs’ claim under § 13a-138.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-138 provides: “(a) Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person’s land for the purpose named in this section, it shall be done in such way as to do the least damage to such land.
      “(b) Nothing in this section shall be so construed as to allow the drainage of water from such highways into, upon, through or under the yard of any dwelling house, or into or upon yards and enclosures used exclusively for the storage and sale of goods and merchandise.”

       The town also claimed that a municipality could not be liable for common-law negligence or nuisance, but the court did not base its decision on that ground.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for iiyury ... to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” See Collum v. Chapin, 40 Conn. App. 449, 451, 671 A.2d 1329 (1996) (“ ‘[sjection 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs’ ”).

       General Statutes § 13a-138a provides: “Limitation on actions for drainage damage. No action shall be brought by the owner of land adjoining a public highway, or of any interest in such land, for recovery of damage to such property or interest by reason of any draining of water into or through such land by any town, city, borough or other political subdivision of the state pursuant to subsection (a) of section 13a-138, but within fifteen years next alter the first occurrence of such drainage, except that if such drainage first occurred prior to October 1, 1981, no such action shall be brought after October 1, 1986.”

       Pursuant to Practice Book § 64-1, the court’s oral decision was transcribed and signed by the judge. The court also signed the transcript of the oral decision of its denial of the plaintiffs’ motion to set aside the directed verdict.

       A swale is an area of land that is graded, thereby creating a lower area or channel through which water can flow. In appearance, a swale is similar to a brook or a stream.

       Riprap consists of large stones or chunks of concrete that are layered on an embankment slope to prevent erosion. Memam-Webster’s Collegiate Dictionary (10th Ed. 1998).

       We review the court’s decision with respect to the plaintiffs’ negligence claim to the extent that the plaintiffs did not concede the issue at trial. At oral argument on the plaintiffs’ motion to set aside the verdict, counsel for the plaintiffs stated in relevant part: “I think Your Honor has framed the issue with respect to my negligence claim correctly. I think what I would bring to the court’s attention is that in addition to my negligence claim, there is a statutory claim, and I cited [§] 13a-138.”

       We decline to determine whether § 52-577 also bars the plaintiffs’ nuisance claim for several reasons. First, we note that in the second amended second revised complaint, the operative pleading, the plaintiffs rely on the same operative facts for their nuisance claim that form the basis for their negligence claim. Second, because the nuisance claim is predicated on negligence, § 52-584 is the applicable statute of limitations. Last, it is not at all clear from our reading of the transcript of the court’s oral decision whether the court directed the verdict for the town, in part, because § 52-577 applies to the plaintiffs’ nuisance claim, and the plaintiffs did not seek an articulation of the court’s decision. See Practice Book § 66-5.

       Section 52-584 may be tolled, however, where there is evidence of the defendants’ continuous course of conduct, “thereby allowing a plaintiff to commence his or her lawsuit at a later date. . . . [T]o support a finding of a continuous course of conduct that may toll the statute of limitations there must be evidence of the breach of duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Internal quotation marks omitted.) Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 369-70, 746 A.2d 753 (2000). Here, the plaintiffs have neither pleaded nor produced any evidence of a special relationship between themselves and the town or any subsequent wrongful conduct by the town related to the complained of act that would have tolled § 52-584 for purposes of bringing the present action. Therefore, the continuous course of conduct doctrine is inapplicable.

       According to the testimony of the plaintiff David Johnson, the plaintiffs first experienced flooding following a heavy rainstorm in 1990, which caused riprap, tree trunks and other debris to wash down from the neighbor’s property onto their property. David Johnson’s testimony is consistent with a letter from Weiss to the plaintiff Eileen Johnson, dated January 24, 1991, in which Weiss acknowledged receipt of her earlier letter regarding the drainage problem in the plaintiffs’ backyard.

       The parties briefed and argued the issue to the trial court, and the court rendered judgment on all of the counts of the plaintiffs’ complaint. The court, however, in its oral decision on the town’s motion for a directed verdict, specifically decided that § 52-584 barred the plaintiffs’ common-law claims for negligence and nuisance.


author: HENNESSY, J.

text:
    ROSEMARY YOUNG v. DOUGLAS YOUNG ET AL.
    (AC 18387)
    Lavery, C. J., and Dranginis and Hennessy, Js.
    Argued May 8
    officially released July 31, 2001

      Brian E. Lambeck, for the appellants (defendants).

      Joseph A. Kriz, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

This matter is before us on remand from our Supreme Court. Young v. Young, 249 Conn. 482, 733 A.2d 835 (1999). Previously, we granted the plaintiffs motion to dismiss the defendants’ appeal without opinion. Our Supreme Court granted the defendants’ petition for certification. Young v. Young, 247 Conn. 913, 719 A.2d 906 (1998). The Supreme Court reversed this court’s judgment dismissing the defendants’ appeal and remanded the case to us with the direction to consider the merits of the defendants’ appeal. Young v. Young, supra, 249 Conn. 498.

The defendants in this summary process action, Douglas Young and Maureen Young, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Rosemary Young, granting her exclusive and immediate possession of the premises at 28 Lighthouse Point in Fairfield. The defendants claim that the court improperly found that (1) there was an escrow agreement between the parties, and (2) there was no delivery of a quitclaim deed from the plaintiff to Douglas Young and, therefore, he was not the owner of the property at issue. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On April 22, 1997, the plaintiff instituted a summary process action, pursuant to General Statutes § 47a-23a, seeking to evict the defendants from the premises. The plaintiff asserted nonpayment of monthly rent and claimed immediate possession on the ground that the defendants’ right or privilege to occupy the premises had terminated. At trial, the defendants denied that they had failed to pay the rent due and claimed that in October, 1994, the plaintiff had conveyed the property to Douglas Young by a quitclaim deed. Additionally, the defendants argued that even if the plaintiff had not conveyed the property by quitclaim deed, the plaintiff had conveyed a life estate in the property to Douglas Young.

The court found that the quitclaim deed did not divest the plaintiff of ownership of the premises because the deed was given to the defendants’ attorney to be held in escrow until Douglas Young paid $12,000 to the attorney and that this condition had not been satisfied. The court concluded that the defendants’ prior right or privilege of possession had terminated and, on April 17, 1998, rendered judgment of possession in favor of the plaintiff.

On April 20, 1998, the defendants filed a motion to reargue pursuant to Practice Book § 11-11. On May 4, 1998, the court denied the defendants’ motion to reargue and this appeal followed. Additional facts will be provided as necessary.

Our analysis begins with the appropriate standard of review. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court.” (Internal quotation marks omitted.) Criscuolo v. Mauro Motors, Inc., 58 Conn. App. 537, 543, 754 A.2d 810 (2000).

I

The defendants first claim that the court improperly found that there was an escrow agreement between the parties. The defendants argue that the court’s finding that there was an escrow agreement directly contravenes Galvanek v. Skibitcky, 55 Conn. App. 254, 738 A.2d 1150 (1999), and Kallas v. Harnen, 48 Conn. App. 253, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998). We are not persuaded.

In Galvanek v. Skibitcky, supra, 55 Conn. App. 257, we held that “ ‘where, pursuant to an agreement, money is left in the hands of the attorney or agent of one of the parties, the money is not delivered in escrow.’ ” Applying that principle to the facts in that case, we concluded that because the money was held by the plaintiff’s attorney, and the interest of the plaintiff and his attorney were identical, the plaintiffs attorney never acquired the independent status as an escrow agent and, therefore, the money was not held in escrow. Id. Similarly, in Kallas v. Harnen, supra, 48 Conn. App. 258, we held that where the parties to a contract deposited money into an escrow account controlled by the defendant’s attorney and agent, no escrow was established.

Contrary to the defendants’ claim, Galvanek and Kallas are distinguishable from the present case. In the present case, the court found that the defendants’ attorney held the quitclaim deed in escrow for the benefit of both the plaintiff and Douglas Young, subject to the agreed on conditions. The court further found that the attorney would not have recorded the deed until Douglas Young satisfied his part of the bargain and, if requested, would have returned the deed to the plaintiff when it was clear that the agreed on conditions were not being fulfilled. On the basis of those findings, the court concluded that although the attorney represented the defendants with respect to certain matters between the parties, he did not act as the defendants’ attorney with respect to the escrow agreement.

After a careful review of the record, we conclude that the evidence supports the court’s determination that the attorney did not act as the defendants’ attorney with respect to the escrow agreement. The attorney “acquired independent status as an escrow agent.” Galvanek v. Skibitcky, supra, 55 Conn. App. 257. Galvanek and Kallas, therefore, are not applicable to the present case. Accordingly, we conclude that the court’s finding that there was an escrow agreement between the parties is not clearly erroneous.

II

The defendants next claim that the court improperly found that there was no delivery of the quitclaim deed from the plaintiff to Douglas Young and, therefore, he was not the owner of the property at issue. Specifically, the defendants argue that the court’s finding is inconsistent with Shelinsky v. Foster, 87 Conn. 90, 94, 87 A. 35 (1913), in which our Supreme Court held that a finding that a deed was left by a party in the physical custody of his attorney did not give rise to the conclusion that the deed was delivered in escrow. The defendants further argue that in the present case, the plaintiff gave the quitclaim deed to the defendants’ attorney and, pursuant to the holding in Shelinsky, that action constituted delivery of the deed. We are not persuaded.

The court found that the plaintiff had delivered the quitclaim deed to the attorney in his role as an escrow agent and not as the defendants’ attorney. Therefore, the defendants’ reliance on Shelinsky is misplaced. Moreover, because Douglas Young failed to satisfy the agreed on conditions for the delivery of the deed to be accomplished, the deed was not delivered to him, and the plaintiff remains the legal owner of the property. Accordingly, we conclude that the court’s finding that Douglas Young was not the owner of the subject property because there was no delivery of the quitclaim deed is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The grant of certification was limited to the following issues: “1. Whether the defendants’ motion to reargue pursuant to Practice Book § 11-11 tolled the appeal period until the denial of that motion?
      “2. Whether, under the circumstances surrounding this case, the defendants’ failure to post a bond within five days of the entry of judgment formed a proper basis for the dismissal of the defendants’ appeal?” Young v. Young, supra, 247 Conn. 913.

       The court did not prepare a written memorandum of decision and did not sign the transcript of its oral decision, as required by Practice Book § 64-1. “The duly to provide [the Appellate Court] with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review. See id., 608-609. “We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.1, 751 A.2d 394 (2000). In the present case, the defendants have filed an unsigned transcript and, although we do not encourage that practice, we will review their claims.

       General Statutes § 47a-23a provides in relevant part: “Complaint, (a) If . . . the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the Superior Court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process, but which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises. . . .”

       The defendants are the plaintiffs son and daughter-in-law.

       The court stated: “Based upon the testimony and stipulations and credible testimony, the court finds and concludes that the plaintiff has sustained her burden of proof as to the allegation of the second count in the complaint for immediate possession of the premises. That the right previously had been terminated.
      “Accordingly, judgment for possession of the premises shall enter in favor of the plaintiff on the second count only, the prior right or privilege having been terminated.”

       On May 16, 2000, tho legislature enacted Public Acts 2000, No. 00-74 (P.A. 00-74), which is codified at General Statutes § 51-81h. General Statutes § 51-81h (b) provides: “No escrow agreement shall be ineffective, invalid or unenforceable because the escrow holder is the attomey-at-law, law firm or agent for one or more parties to the escrow agreement, whether in connection with the matter to which the escrow agreement is related or otherwise.” Although P.A. 00-74 legislatively overruled our holdings in Galvanek v. Skibitcky, supra, 55 Conn. App. 254, and Kallas v. Harnen, supra, 48 Conn. App. 253, it is not applicable to the present case because it applies only to escrow agreements in existence on or after May 16,2000, the effective date of the act.

       The defendants also appear to claim that the court improperly permitted the plaintiff to allege one cause of action and recover on another. That claim is without merit. The plaintiff brought a summary process action pursuant to General Statutes § 47a-23a, seeking immediate possession of the subject premises on the ground that the defendants’ right or privilege to occupy them had terminated. The court, in rendering judgment in favor of the plaintiff, stated that “the plaintiff has sustained her burden of proof as to the allegation of the second count in the complaint for immediate possession of the premises. . . . Accordingly, judgment for possession of the premises shall enter in favor of the plaintiff on the second count only, the prior right or privilege having been terminated.” We conclude that there is no inconsistency between the cause of action alleged by the plaintiff and the cause of action on which she recovered.


author: PER CURIAM.

text:
    GEORGE ORTIZ v. COMMISSIONER OF CORRECTION
    (AC 21363)
    Lavery, C. J., and Dranginis and O’Connell, Js.
    Submitted on briefs June 13 —
    officially released July 31, 2001

      Vicki H. Hutchinson, special public defender, filed a brief for the appellant (petitioner).

      Richard Blumenthal, attorney general, and Madeline A. Melchionne, assistant attorney general, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, George Ortiz, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to appeal and (2) denied his petition for a writ of habeas corpus. We dismiss the appeal.

The record discloses that the petitioner filed an amended petition for a writ of habeas corpus, alleging that the defendant commissioner of correction improperly classified him as a security risk group safety threat member following the receipt of a disciplinary report. The petitioner claimed that he (1) was denied his right to present witnesses at a disciplinary hearing, (2) was denied his right to be present at the hearing, (3) lost ninety days of earned good time without due process of law and (4) as a result of his classification, was rendered ineligible to receive statutory good time credits while being so designated. Following a hearing, the court found that the petitioner was provided with advance notice of his hearing, a prison advocate to represent him and an opportunity to call witnesses. He was present at the hearing and was removed due to his own conduct. The court concluded that the petitioner was provided with all of the due process requirements and, therefore, was not entitled to the relief that he sought. Accordingly, the court denied the petition for a writ of habeas corpus and subsequently denied certification to appeal.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

After considering the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the habeas court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See id.; Johnson v. Commissioner of Correction, 58 Conn. App. 729, 731, 754 A.2d 849, cert. denied, 254 Conn. 928, 761 A.2d 753 (2000); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.