author: PER CURIAM.

text:
    MICHAELA I. ALEXANDRU v. LISA J. CAPPALLI
    (AC 24309)
    Flynn, Bishop and McLachlan, Js.
    Argued February 24 —
    officially released April 13, 2004

      Michaela I. Alexandra, pro se, the appellant (plaintiff).

      Lisa J. Cappalli, pro se, the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Michaela I. Alexandra, appeals from the judgment of the trial court denying her application to vacate an arbitration award and granting the defendant’s motion to confirm the same arbitration award. We affirm the judgment of the trial court.

The plaintiff, by letter dated November 3, 2000, engaged the defendant attorney, Lisa J. Cappalli, to represent her in a dissolution of marriage action. The parties entered into a retainer agreement that set forth an hourly rate of $220 and estimated the cost “absent atrial or extensive discovery or court time, or contested custody” to be “in the range of $4,000-$13,000 if a full divorce case is processed.” The agreement further provided that this estimate might have to be revised depending on issues that could arise or changes in the plaintiffs objectives. The agreement also set forth that any disputes over fees would be submitted to binding arbitration by “the Legal Fee Arbitration Board of the Connecticut Bar Association.”

The defendant billed the plaintiff for approximately $20,000 in additional fees, exceeding the $35,000 that the plaintiff already had paid the defendant for legal services, and the plaintiff refused to pay the additional sum billed. The defendant then sought binding arbitration concerning the disputed fees. A hearing on this matter took place on April 1, 2003, and both parties were heard. The panel issued an award in favor of the defendant in the amount of $10,052.54.

At a hearing at which both parties were present, the court denied the plaintiffs application to vacate the award of the panel and granted the defendant’s motion to confirm the award in the amount of $10,052.54. The court found that the “[m]ovant had full opportunity to present her evidence and arguments to the arbitration panel. She has failed to establish any of the defects set forth in [General Statutes] § 52-418 (a).”

Our review is guided both by case law and statute. Every reasonable presumption will be made in favor of the arbitrators’ acts. Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983). An arbitration award may not be set aside on a mere showing that the complaining party, or even the court, would have decided the matter differently. Von Langendorff v. Riordan, 147 Conn. 524, 528, 163 A.2d 100 (1960). An order vacating an arbitration award will be granted, pursuant to § 52-418 (a), only if the court finds any of the following defects: “(1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made.” General Statutes § 52-418 (a).

The plaintiff does not allege any violations of subdivisions (2), (3) or (4) of § 52-418 (a), nor does she claim a violation of any strong public policy by virtue of the award’s confirmation. She centers her arguments on subdivision (1), which requires that a court vacate an award if “the award has been procured by corruption, fraud or undue means. ...” General Statutes § 52-418 (a) (1). After a careful review of the record, we conclude that the legal conclusions of the court are both legally and logically correct and that the court’s finding that the plaintiff failed to establish the existence of any of the defects that § 52-418 (a) authorizes as grounds to vacate an arbitration award was not clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The plaintiff also claims that the court improperly accepted a memorandum of law during the course of the hearing. We reject this argument because it is within the wide discretion of a court whether and when to accept briefs. See Practice Book § 5-1.

The judgment is affirmed.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DUDLEY HALL
    (AC 23045)
    Foti, McLachlan and Freedman, Js.

      Argued January 12 —
    officially released April 13, 2004

      Richard T. Meehan, Jr., with whom, on the brief, was Christopher Duby, certified legal intern, for the appellant (defendant).

      Melissa L. Streeto, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John R. Whalen, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Dudley Hall, a physician, appeals from the judgment of the trial court, rendered after a jury trial, convicting him of twenty-two counts of illegally prescribing a narcotic substance in violation of General Statutes § 21a-278 (b) and fourteen counts of illegally prescribing a controlled substance in violation of General Statutes § 21a-277 (b). On appeal, the defendant claims that the court improperly (1) admitted evidence, (2) concluded that General Statutes § 2 la-252 (a) was not unconstitutionally void for vagueness and (3) allowed an expert to testify as to an ultimate issue in the case. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. In the court’s memorandum of decision denying the defendant’s motions in arrest of the judgment and for a new trial, the court stated: “The [defendant’s] arrest arose from an undercover operation led by the health and social services fraud bureau within the office of the chief state’s attorney. The investigation began sometime in May, 2000, and included agents from the state department of consumer protection, drug control division, and the United States Drug Enforcement Administration. Working in conjunction with these agencies, the lead investigator ultimately secured the aid of [the defendant’s] receptionist and initiated a series of ‘undercover patient’ visits. It was at these visits where information was gathered concerning the prescription practice ... of [the defendant]. Over a four week time span and after sixteen (16) separate visits by four (4) different undercover officers, thirty-six (36) prescriptions for a variety of narcotic and controlled substances were issued by the defendant to the officers.”

On July 17, 2001, the defendant was arrested and charged with twenty-two counts of illegally prescribing a narcotic substance in violation of § 21a-278 and fourteen counts of illegally prescribing a controlled substance in violation of § 21a-277. The jury returned a guilty verdict on each of the thirty-six counts. The defendant was then sentenced to five years incarceration, execution suspended after one year, and five years of probation with special conditions. This appealed followed. Additional facts and procedural history relevant to the defendant’s claims will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence thirteen boxes of prescription pads containing 44,000 blank prescription forms that authorities had seized from him pursuant to a search warrant. Specifically, the defendant claims that the pads of prescription forms had a tendency to excite the passions and influence the judgment of the jury, and that they suggested a criminal propensity on his part. We do not agree.

We begin by setting forth our standard of review. “We have held generally that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Urich v. Fish, 261 Conn. 575, 580, 804 A.2d 795 (2002). Furthermore, because the claimed error is not constitutional in nature, the defendant bears the burden of demonstrating that it was harmful. See State v. John G., 80 Conn. App. 714, 731, 837 A.2d 829 (2004).

Here, we need not decide if the thirteen boxes of blank prescription forms were admitted into evidence improperly because even if we assume arguendo that the ruling was improper, it was harmless error. For an error to be harmful, the defendant must show that it is more probable than not that the court’s erroneous action affected the result of the proceeding. See State v. Breton, 264 Conn. 327, 364, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003). The defendant has not met his burden.

The defendant argues in his brief that the forms “had a tendency to excite the passions and influence the judgment of the jury” and implicated “criminal propensity.” That argument, however, is without merit because any prejudice resulting from the admission of the evidence was minimal and did not make it more probable than not that the result of the trial was affected. Furthermore, the evidence supporting the defendant’s conviction was so overwhelming that we cannot say that any prejudice resulting from the admission of the prescription forms was substantial.

We cannot conclude that the thirteen boxes of pads of prescription forms were the type of evidence that could excite the passions of the jury or implicate criminal propensity as could, for example, a gun, ski mask, rope or ammunition, as found in the cases cited by the defendant in support of his claim of harmful error. See, e.g., State v. Acklin, 171 Conn. 105, 114-16, 368 A.2d 212 (1976); State v. Ferraro, 160 Conn. 42, 44-46, 273 A.2d 694 (1970). We also note that the legitimate and obvious reasons for a physician to possess blank prescription forms minimize any prejudice that would possibly result. Finally, the jury was presented with substantial evidence, from four undercover police officers, with regard to the defendant’s illegal prescription of drugs. All four of the officers posed as patients of the defendant and provided similar testimony about how the defendant would write various prescriptions for drugs such as OxyContin, Xanax and Percocet, with little or no question or comment, and without performing a physical examination of the purported patient.

In light of that evidence, we cannot conclude that it was more probable than not that the admission of the thirteen boxes of blank prescription forms affected the trial’s result. Because the error, if any, was harmless, the defendant cannot prevail on his claim that the court improperly admitted the thirteen boxes of blank prescription forms.

II

The defendant next claims that the court improperly denied his amended motion to dismiss, his posttrial motion in arrest of the judgment and his amended post-trial motion for a new trial. Specifically, under each of those claims, the defendant argues that § 21a-252 (a) is unconstitutionally void for vagueness in that it fails to define adequately the circumstances under which a physician may prescribe narcotic and controlled substances. We do not agree. Because the defendant makes the same constitutional challenge under each of those claims, we will address the claims jointly.

The following additional facts and procedural history are relevant to the defendant’s claims. On February 19, 2002, the defendant filed an amended motion to dismiss, claiming that § 21a-252 (a) is unconstitutionally vague as it applies to §§ 21a-277 (b) and 21a-278 (b). The court heard argument on the motion and denied it on February 22, 2002. On May 10, 2002, following his conviction, the defendant filed an amended motion for a new trial and a motion in arrest of the judgment in which he renewed his argument that § 21a-252 (a) was unconstitutionally void for vagueness as it applied to him. The court denied both motions and, on September 10,2002, issued a memorandum of decision setting forth its reasoning. The court concluded that as applied to the particular facts of this case, § 21a-252 (a) “clearly sets forth the standards a physician must adhere to in prescribing narcotic and/or controlled substances” and is “ ‘sufficiently definite’ to enable a person of common intelligence to know what conduct is prohibited.”

On appeal, the defendant again challenges the constitutionality of § 2 la-252 (a), claiming that it is void for vagueness. Specifically, the defendant argues that the statute is vague because the use of the word “and,” rather than “or,” in § 21a-252 (a), which provides in relevant part that a physician may “prescribe, administer and dispense” controlled substances in accordance with law, necessitates the conclusion that the defendant had to do all three acts — prescribe, administer and dispense — and not merely prescribe, to come within the limited circumstances of § 2 la-252 (a) in which a physician may legally prescribe controlled substances and thereby avoid liability under §§ 21a-278 (b) and 21a-277 (b). We do not agree.

“In our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. . . . Furthermore, [i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 556, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999).

The defendant’s claim requires this court to interpret § 2 la-252 (a). “According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature.” (Internal quotation marks omitted.) Regency Savings Bank v. Westmark Partners, 70 Conn. App. 341, 345, 798 A.2d 476 (2002). Furthermore, “[i]t is basic that common sense must be used in statutory construction and that [a] statute should not be interpreted in any way to thwart its purpose . . . [or so as to lead] to absurd consequences and bizarre results.” (Internal quotation marks omitted.) Keeney v. Fairfield Resources, Inc., 41 Conn. App. 120, 132, 674 A.2d 1349 (1996).

Here, the defendant’s interpretation of the statute would lead to “absurd consequences and bizarre results.” (Internal quotation marks omitted.) Id. If we read § 21a-252 (a) as the defendant suggests and require that a physician must prescribe, administer and dispense, every physician who prescribes medication, yet is not responsible for dispensing or administering it, would not come within the exception provided by § 21a-252 (a), permitting a physician to prescribe medication under limited circumstances, and would be guilty under §§ 21a-277 (b) or 21a-278 (b). Such an interpretation clearly was not within the legislature’s intent. Consequently, we agree with the trial court that “the use of the conjunctive ‘and’ is merely to enumerate those acts in which a physician may engage in the course of the physician’s medical practice. There is nothing mandatory in the language to suggest that a physician necessarily must combine all three acts in each instance of prescription practice.” Because the defendant’s interpretation of the term “and” would lead to such an illogical result, we conclude that he has not met his heavy burden of proving that § 2 la-252 (a) is unconstitutionally void for vagueness beyond a reasonable doubt. The court, therefore, did not act improperly in denying the defendant’s amended motion to dismiss, his post-trial motion in arrest of the judgment and his amended posttrial motion for a new trial.

Ill

Last, the defendant claims that the court improperly allowed the state’s expert witness, Michael Robbins, a physician, to opine as to an ultimate issue in the case. Specifically, the defendant argues that the court improperly allowed Robbins to give his personal opinion on an ultimate issue of fact by responding to hypothetical questions. We do not agree.

We begin by setting forth our standard of review. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 123, 763 A.2d 1 (2000).

“An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. . . . An expert may, however, give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass . . . .” (Citations omitted; internal quotation marks omitted.) State v. Whitley, 53 Conn. App. 414, 421, 730 A.2d 1212 (1999); see also Conn. Code Evid. §7-3.

Here, the defendant argues that Robbins responded to hypothetical questions mirroring the facts at issue, which implicitly criticized the defendant’s medical determinations and implied that he lacked the requisite medical reasons for issuing the prescriptions. Even if we assume arguendo that Robbins’ testimony pertained to an ultimate issue, it was necessary to assist the jury in deciding the issue. See Conn. Code Evid. § 7-3 (a). Robbins’ testimony regarding prescription practices and procedures, which was elicited through the use of hypothetical questions, was necessary for the jury to understand the evidence presented to it and to resolve the matters at issue because such medical issues are “beyond the ken” of the average juror. See Conn. Code Evid. §§ 7-2, 7-3, and 7-4. Further, the jury was free to evaluate Robbins’ credibility and to accept or reject his opinions. See State v. Hooks, 80 Conn. App. 75, 82, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003). As a result, the court did not abuse its discretion by allowing the expert testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-252 (a) provides in relevant part that a “physician, in good faith and in the course of the physician’s professional practice only, may prescribe, administer and dispense controlled substances . . . for demonstrable physical or mental disorders . . . .”

       The defendant argues that if § 21a-252 (a) were held to be unconstitutional, there would be no exception under §§ 21a-277 (b) and 21a-278 (b) that would permit licensed physicians to prescribe medications.

       The defendant also argues that the phrases “good faith,” “in the course of the physician’s professional practice only” and “for demonstrable physical or mental disorders” in §21a-252 (a) are unconstitutionally void for vagueness. With respect to that claim, and in light of the defendant’s heavy burden of proving the statute’s unconstitutionality beyond a reasonable doubt, we agree with the trial court that the phrases are sufficiently definite to enable a person of common intelligence to know what conduct is prohibited. Additionally, the defendant argues that § 21a-252 (a) does not contain an appropriate mens rea or scienter requirement as is required of criminal statutes, but rather contains a good faith requirement. That argument is without merit because § 21a-252 (a) is not a criminal statute, but rather a statute creating an exception to criminal liability.

       The defendant argues for the first time on appeal that the court improperly allowed Robbins to opine about how he would have treated the hypothetical patients rather than testifying about an objective standard of care. Although the defendant did not properly object to that testimony at trial, he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because that is an evidentiary claim, it fails under the second prong of Golding. See State v. Carneiro, 76 Conn. App. 425, 430, 820 A.2d 1053, cert. denied, 264 Conn. 909, 826 A.2d 180, cert. denied, 540 U.S. 915, 124 S. Ct. 304, 157 L. Ed. 2d 208 (2003).


author: DiPENTIMA, J.

text:
    DANTE L. SCHETTINO ET AL. v. ANTHONY LABARBA
    (AC 24037)
    Lavery, C. J., and Bishop and DiPentima, Js.
    Argued January 15 —
    officially released April 13, 2004

      James P. Mooney, for the appellant (substitute defendant).
   Opinion

DiPENTIMA, J.

In this personal injury action, the substitute defendant, Michael Maronich, appeals from the judgment of the trial court setting aside the jury’s verdict and ordering anew trial on the issue of damages, rendered following the defendant’s refusal to accept the court-ordered additur. On appeal, the defendant claims that the court improperly granted the additur when there was no indication that the verdict was against the weight of the evidence or was otherwise based on prejudice. We agree with the defendant and, therefore, reverse the judgment and remand the case to the trial court with direction to reinstate the jury award.

The plaintiff Cecilia Schettino brought this action seeking damages for personal injuries allegedly sustained when a vehicle operated by Anthony Labarba struck the vehicle in which she was a passenger. Liability as to the accident was uncontested at trial. Damages were contested. The plaintiff claims that she suffered soft tissue injuries and disc herniation. She submitted evidence of special damages for medical treatment in the amount of $6631. The $6631 consisted of bills for medical treatment, including initial treatment at a walk-in clinic, treatment with Eric Katz, a physician, treatment with a physical therapy group and chiropractic treatment.

At trial, the plaintiff was cross-examined vigorously on her prior medical history. She claimed to have forgotten receiving treatment from another physician less than one year before the November 18, 1995 accident. The records of that prior treatment were admitted into evidence. Both sides presented testimony from medical experts regarding the source of the plaintiffs degenerative changes in her spine and spinal herniation. The defendant’s expert, Lewis Bader, a physician, testified that in his opinion, the herniation developed well after the accident and that the degenerative changes preexisted the accident. The plaintiffs expert testified that the accident caused the herniation.

On October 21, 2002, the jury awarded the plaintiff $450 in economic damages and zero noneconomic damages. Thereafter, the plaintiff filed a motion to set aside the verdict as to the damages award and for additur, claiming that the award of economic damages was insufficient and that the jury should have awarded her noneconomic damages. After a hearing on March 5, 2003, the court orally granted the motion to set aside the verdict. The court opined that in finding damages in the amount of $450, the juiy must have found that the plaintiff had lied and punished her because of her lying. The court considered that to be prejudice and, therefore, a proper basis for upsetting the verdict. The additur included $6631 for special damages, the total special damages claimed by the plaintiff, and $6369 for noneconomic damages for a total of $13,000. In accordance with General Statutes § 52-228b, the court ordered that if the defendant did not accept the additur, the motion to set aside the verdict automatically would be granted and a new trial ordered, limited to the issue of damages. The defendant did not accept the additur. This appeal followed.

The defendant claims that the court abused its discretion in granting the plaintiffs motion for additur. Specifically, the defendant argues that the court improperly granted an additur on the ground that the jury made a mistake or was prejudiced or that the verdict was against the weight of the evidence.

Our standard of review is well settled. “[I]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption.” (Citation omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 113-14, 663 A.2d 398 (1995). “[A] court’s decision to set aside a verdict and to order an additur ... is entitled to great weight and every reasonable presumption should be given in favor of its correctness. ... In determining whether the court abused its discretion, therefore, we decide only whether, on the evidence presented, the court reasonably could have decided that the jury did not fairly reach the verdict it did. To do so, we must examine the evidential basis of the verdict itself . . . .” (Citations omitted; internal quotation marks omitted.) Wallace v. Haddock, 77 Conn. App. 634, 637-38, 825 A.2d 148 (2003).

Although the court has broad discretion in setting aside a verdict, its discretion is not boundless. “Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached. . . . [I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will.” (Citations omitted; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000). “When determining whether to order an additur, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do.” Weiss v. Bergen, 63 Conn. App. 810, 814, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001).

Here, it was reasonable for the jury to believe, on the basis of the evidence presented, that an award of $450 in economic damages and zero noneconomic damages was sufficient compensation for the plaintiff. See Wichers v. Hatch, supra, 252 Conn. 188-89 (holding that jury not required to award noneconomic damages merely because it has awarded economic damages). Moreover, the personal injury claims were disputed at trial with each side proffering expert testimony on the issue of causation. The existence of conflicting evidence curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 58, 578 A.2d 1054 (1990). Here, there was conflicting evidence before the jury, and the jury could have accepted the evidence contrary to the plaintiffs claims. Furthermore, “[o]n issues where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the jury is one that reasonably could have been reached, it must stand even though the trial court might have reached a different result. ... A verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Internal quotation marks omitted.) Weiss v. Bergen, supra, 63 Conn. App. 813-14. In this case, the jury reasonably could have decided that $450 was the appropriate measure of damages. Consequently, we are persuaded that the evidence presented at trial supported the damages awarded by the jury, and that those damages properly fall within the necessarily uncertain limits of fair and reasonable compensation.

As a result, we must conclude that the court improperly exercised its discretion in finding the jury award inadequate and ordering an additur.

The judgment is reversed and the case is remanded with direction to reinstate the jury’s verdict and to render judgment thereon.

In this opinion the other judges concurred.

       During the action, the defendant, Anthony Labarba, died. Labarba was the driver of the automobile that struck the vehicle in which the plaintiffs, Dante L. Schettino and Cecilia Schettino, were riding. Maronich thereafter was substituted as the defendant.

       The plaintiffs failed to file a brief in this court, and we have considered the appeal solely on the basis of the defendant’s brief, the record and oral argument.

       Cecelia Schettino is the wife of Dante L. Schettino, the other plaintiff at trial. The jury returned a verdict in favor of Cecelia Schettino only and awarded damages to her only. Cecilia Schettino, therefore, will be referred to as the plaintiff throughout the remainder of this opinion.

         General Statutes § 52-228b provides that before the court may set aside a jury verdict and order a new trial, it must provide the parties with an opportunity to accept orto reject any court-ordered additur. General Statutes § 52-228a provides that a party aggrieved by an order of additur has the right to appeal from that order.


author: DUPONT, J.

text:
    ANDREW MONSAM v. MICHAEL DEARINGTON, STATE’S ATTORNEY
    (AC 23747)
    Lavery, C. J., and McLachlan and Dupont, Js.
    Argued January 7 —
    officially released April 13, 2004

      Francis T. Mandanici, assistant public defender, for the plaintiff in error.

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kevin Doyle, assistant state’s attorney, for the defendant in error.
   Opinion

DUPONT, J.

The plaintiff in error, Andrew Monsam, the defendant in an underlying criminal case, by writ of error filed in this court on November 6, 2002, seeks a vacation of the judgment and a vacation of the sentence of contempt imposed by the trial court. Shortly after the writ was filed, the trial court, on November 14, 2002, vacated its finding of contempt, vacated “the sentence entered thereon [previously] on October 16, 2002” and ordered that the plaintiff in error receive jail credit for the period of time served in connection with the contempt judgment.

The issues raised by the writ of error involve the difference between civil and criminal contempt, whether the doctrine of collateral consequences saves the writ of error from being moot and whether the court had jurisdiction to vacate its finding of contempt and to vacate the sentence previously imposed.

The defendant in error is the state’s attorney for the judicial district of New Haven, Michael Dearington, who is prosecuting the underlying case. He and the plaintiff agree that the court’s finding of contempt should have been reversed because the plaintiff had not refused to comply with a court order. The parties also agree that the finding of contempt and the contempt judgment involved a criminal contempt, that the writ of error is not moot, that the sentence imposed for the contempt had already been executed, and that the court therefore lacked jurisdiction to vacate its own finding of contempt and to sentence thereon. We agree with the conclusions of the parties.

Although both parties seek a reversal of the judgment and a remand to the trial court to vacate the judgment and sentence, they are not in complete agreement as to the reasoning leading to that result. We, therefore, discuss all of the putative issues raised. Furthermore, we are not bound to accept concessions made by the parties. See State v. Harris, 60 Conn. App. 436, 443, 759 A.2d 1040, cert. denied, 255 Conn. 907, 762 A.2d 911 (2000).

The procedural background and the facts of this case are not in dispute. On July 3, 2002, seeking to gather evidence to further the underlying criminal prosecution, the state filed a motion for nontestimonial evidence that included a sample of the plaintiffs blood. The court granted the motion over the plaintiff’s objection on August 5, 2002. In that objection, the plaintiff cited concerns over the qualifications of the person taking the blood sample and the cleanliness of the jail in which the sample was to be taken. In granting the motion for nontestimonial evidence, the court stated orally, on the record, that the person taking the sample should be a licensed phlebotomist.

On the day that the blood sample was to be taken, the plaintiff refused to submit to the procedure, citing the same concerns over the qualifications of the person taking the sample, sterility of the conditions, and the related dangers of acquiring the hepatitis type C virus and the human immunodeficiency virus. The plaintiff did not resist physically but stated that he would not allow the procedure to take place. Although the person taking the sample was qualified to take blood samples pursuant to General Statutes § 54-102a, she was not a licensed phlebotomist. On September 17, 2002, the court found the plaintiff in contempt for refusing to comply with its order granting the state’s motion for nontestimonial evidence but stated that it would defer sentencing until the order was satisfied.

After the plaintiffs concerns over cleanliness and the qualifications of the person performing the procedure were resolved, the plaintiff- submitted to having his blood drawn. On October 16, 2002, subsequent to a successful attempt by the state to draw his blood, the court sentenced the plaintiff to four months incarceration for contempt.

Subsequently, the court, sua sponte, vacated the contempt finding in a four line memorandum of decision dated November 14, 2002, and ordered credit granted for any time already served. On April 3, 2003, the court articulated its rationale for the vacation of the finding and the sentence. In its articulation, the court acknowledged that a trial court may not vacate a criminal judgment after the sentence has been imposed or has been executed, citing State v. Luzietti, 230 Conn. 427, 646 A.2d 85 (1994), but concluded that the case did not govern because this contempt finding was essentially civil in nature, rather than criminal.

We first address the question of whether the writ of error is moot because mootness implicates this court’s subject matter jurisdiction and is a threshold matter for resolution. Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996). In this case, the plaintiff cannot obtain practical relief by a reversal of the judgment of conviction or vacation of the sentence because the plaintiff is no longer imprisoned for the contempt. A determination of whether mootness exists is not only established by the presence or absence of practical present relief, but by the presence or absence of possible future prejudicial consequences as a result of the challenged impropriety of the appeal. State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002). The writ of error is not moot in this case because collateral consequences from the judgment of contempt itself may arise in the future.

“It is well established that since collateral legal disabilities are imposed as a matter of law because of a criminal conviction, a case will not be declared moot even where the sentence has been fully served.” Barlow v. Lopes, 201 Conn. 103, 112, 513 A.2d 132 (1986). In the present case, some twenty-eight days of the sentence already had been served when the court vacated the sentence. This case is not moot because the collateral consequences of a criminal conviction are legion, involving possible heavier penalties in the event of future convictions, and might affect a wide range of civil rights. Id., 112-13; see also Shays v. Local Grievance Committee, 197 Conn. 566, 570-74, 499 A.2d 1158 (1985).

We next consider whether the court had subject matter jurisdiction to vacate its contempt finding, judgment of contempt and sentence, all of which followed the imposition of sentence. That question rests on whether the contempt finding was criminal in nature or, as the trial court found, civil in nature. The parties agree that this was a criminal contempt conviction. We agree with the parties.

The distinction between civil and criminal contempt focuses on the intent of the punishment and the nature and character of the punishment. International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 827-29, 114 S. Ct. 2552, 129 L. Ed. 2d 642 (1994); McTigue v. New London Education Assn., 164 Conn. 348, 352, 321 A.2d 462 (1973). Contempt is civil if the intent of the punishment is coercive and the punishment is avoidable. If the effect of the punishment is such that a contemnor can avoid or reduce imprisonment, fine or any other punishment imposed, the contempt is civil in nature. International Union, United Mine Workers of America v. Bagwell, supra, 827. Civil contempt is designed to compel future compliance. After a finding of civil contempt, the court retains jurisdiction to vacate the finding or to give the contemnor the opportunity to purge the contempt by later compliance with a court order. See Ullmann v. State, 230 Conn. 698, 710, 647 A.2d 324 (1994).

Criminal contempt, in contrast to civil contempt, is punitive in nature. If the contemnor cannot avoid or has no opportunity to purge the defiance, the act of defiance is criminal. Id. A finding of criminal contempt is usually levied for completed acts of disobedience to vindicate the authority of the court itself. International Union, United Mine Workers of America v. Bagwell, supra, 512 U.S. 828; see also Ullmann v. State, supra, 230 Conn. 709 n.9, 710; McTigue v. New London Education Assn., supra, 164 Conn. 353-55.

In this case, the court made a finding of contempt on September 17,2002, but between that date and October 16, 2002, the date the plaintiff was sentenced to four months imprisonment, the court found that the plaintiff had complied with the order that was the subject of the contempt finding. The court stated that although it “appreciated the fact that [the plaintiff] didn’t cause any physical difficulties with the marshals,” “[the plaintiff] still disregarded the court’s order. Now, these orders have to have some kind of teeth, otherwise they are entirely ineffective and they result in the kind of delays we’ve had here and just a wasting of time and obstruction of justice, so there has to be some teeth to a defiance of this nature.” The court’s words reflect the punitive nature of the sentence and its intent to vindicate the authority of the court.

The definite period of the sentence, which was imposed alter the blood sample already had been drawn, without a condition by which the plaintiff might comply with the court’s order and reduce the sentence or purge the allegedly contemptuous act, leads to the conclusion that the contempt was criminal. Having determined that this is a criminal contempt proceeding, we next determine whether the court had jurisdiction to vacate its prior judgment of contempt and its prior sentence of four months incarceration.

Here, the defendant was sentenced on October 16, 2002, and his custody committed to the commissioner of correction to serve the four month sentence that was imposed. Nearly one month later, on November 14, 2002, the court vacated that sentence. We conclude that it had no jurisdiction to do so. The jurisdiction of a sentencing court ends when the sentence is put into effect; State v. Pagan, 75 Conn. App. 423, 429, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003); except where the legislature has granted continuing jurisdiction after the commencement of a sentence. See, e.g., General Statutes §§ 52-270, 53a-29 through 53a-34; see also General Statutes § 53a-39 (allowing modification of sentence after hearing and for good cause); State v. Waterman, 264 Conn. 484, 489 n.6, 825 A.2d 63 (2003) (imposition of sentence constitutes final judgment in criminal case). Neither party cites any statute, rule of practice or case granting the court continuing jurisdiction to vacate the plaintiffs sentence. We also do not know of any. Therefore, the precepts of Luzietti and Waterman cause us to hold that the court had no jurisdiction to do so in this case.

The parties agree, as do we, that the plaintiff should not have been held in contempt for refusing to follow the court’s order to submit to a blood test by a licensed phlebotomist. The precise reason for his refusal was that the person who was sent to draw his blood was not a licensed phlebotomist. He had not, therefore, refused to follow the court’s order. His conduct was not legally susceptible of constituting a contempt. That conclusion, however, did not confer jurisdiction on the court to vacate the sentence it already had imposed and that the defendant already had begun to serve.

The writ of error is granted; the conviction and sentence thereon are vacated, and it is ordered that the plaintiff be given credit for time he served from October 16 to November 14, 2002.

In this opinion the other judges concurred.

       The plaintiff was charged on April 10,2002, with one count of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1); seven counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1); three counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), (B) and (C); one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a); one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3); one count of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3); one count of threatening in the second degree in violation of General Statutes § 53a-62 (a) (1); and one count of reckless endangennent in the first degree in violation of General Statutes § 53a-63 (a). He pleaded not guilty to those offenses on April 16, 2002.

       A writ of error is an independent action commenced by service and return of process, as in a civil case, and is the sole method of review of summary criminal contempt proceedings. State v. Roman, 25 Conn. App. 734, 736-37, 596 A.2d 930, cert. denied, 220 Conn. 928, 598 A.2d 368 (1991); see also Ullmann v. State, 230 Conn. 698, 703, 647 A.2d 324 (1994). Regardless of whether the contempt in this case was summary, committed in the presence of the court; General Statutes §§ 51-33 and 51-33a; or nonsummary, not occurring within the presence of the court; Practice Book §§1-17 through 1-21; the plaintiff in error was required to use a writ of error to obtain review. See Kennedy v. QVC Network, Inc., 43 Conn. App. 851, 852, 686 A.2d 997 (1996).

       In a criminal case, the sentence imposed by the court constitutes the judgment of conviction. State v. Waterman, 264 Conn. 484, 489 n.6, 825 A.2d 63 (2003). As we will discuss, the contempt in this case was criminal. Convictions of criminal contempt are treated as crimes in the ordinary sense. Bloom v. Illinois, 391 U.S. 194, 201, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968).

       The word “plaintiff’ in this opinion refers to the plaintiff in error, Monsam, the defendant in the underlying criminal case.

       Because we conclude that the contempt here was criminal rather than civil, we discuss collateral consequences in terms of criminal cases. The mootness doctrine itself applies to writs of error, whether based on criminal or civil proceedings. Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 830 A.2d 711 (2003).

       But see footnote 7 for the contrast in the context of habeas corpus petitions.

       The lack of subject matter jurisdiction in the context of some habeas corpus petitions is not applicable in cases such as the present one. The essence of a habeas corpus petition is relief from unlawful custody. If a petitioner suffers no present restraint because he has fully served his sentence, there is no subject matter jurisdiction to entertain a petition for habeas corpus. Ford v. Commissioner of Correction, 59 Conn. App. 823, 827-28, 758 A.2d 853 (2000).

       The court’s characterization of the contempt as civil is subject to a de novo review on appeal. See International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 114 S. Ct. 2552, 129 L. Ed. 2d 642 (1994); Ullmann v. State, 230 Conn. 698, 709, 647 A.2d 324 (1994).

       Other statutes, rules of practice or cases allowing continuing jurisdiction after a judgment or final order do not apply to the vacation of sentences where the defendant has begun the imprisonment. General Statutes § 53a-39 grants jurisdiction to the trial court to modify or to reduce a sentence of less than three years, but the statute does not grant jurisdiction to the trial court to vacate the underlying judgment of conviction and sentence. State v. Luzietti, supra, 230 Conn. 433. Civil and criminal rulings, however, during the course of a trial, such as rulings on motions to suppress, may be set aside or opened within four months of the particular judgment pursuant to Practice Book § 17-4; State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986); but Practice Book § 17-4 does not apply to the vacation of a conviction after a defendant has begun serving a sentence pursuant to the conviction. See State v. Luzietti, supra, 433.
      In State v. Waterman, 264 Conn. 484, 489, 825 A.2d 63 (2003), the Supreme Court upheld the trial court’s jurisdiction to make a postconviction factual finding that allowed the court, after the defendant had begun serving his sentence, to advise the defendant of his mandatory registration requirements as a sex offender. Waterman leaves the majority decision in Luzietti intact because Waterman does not disturb the sentence itself.

       The parties make no claim that the sentence imposed was illegal or that there was an illegal disposition that could be corrected pursuant to Practice Book § 43-22. Both the trial court and this court have the power at any time to correct an illegal sentence. Excluding any illegal sentence or disposition, the trial court had no jurisdiction to alter its sentence by vacating it. See State v. Cator, 256 Conn. 785, 803-805, 781 A.2d 285 (2001).

       The underlying criminal charges against the plaintiff have not yet been resolved. In the event he eventually receives a prison sentence, he will be entitled to the credit.


author: DRANGINIS, J.

text:
    DONNA J. PLANTE v. STATE OF CONNECTICUT
    (AC 23998)
    Foti, Schaller and Dranginis, Js.

      Argued January 7 —
    officially released April 13, 2004

      Robert T. Rimmer, with whom, on the brief, were Robert I. Reardon, Jr., and Scott D. Camassar, for the appellant (plaintiff).

      Linsley J. Barbato, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendants).
   Opinion

DRANGINIS, J.

This appeal arises out of a negligence action brought by the plaintiff, Donna J. Plante, against the defendants, the state of Connecticut and two of its employees, Gary Hover and Michael Ducharme, for injuries she allegedly sustained while operating a motorcycle owned by the state as part of a state conducted motorcycle education course. The plaintiff claims that the trial court improperly granted the defendants’ motion to dismiss her case because (1) General Statutes § 52-556 applies to causes of action beyond those in which state employees are operators of state owned motor vehicles, and (2) negligent repair and control of the motorcycle by the state employees constituted operation of a motor vehicle within the meaning of § 52-556 to extend liability to Hover and Ducharme. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the plaintiffs appeal. In May, 2000, the plaintiff enrolled in a motorcycle education course at the Mohegan campus of Three Rivers Community College in Norwich. In her amended complaint, the plaintiff alleged that the state conducted the course, and owned, maintained and insured the motorcycles used by the students. During the training session of July 28,2000, the plaintiff noticed that there were problems with her motorcycle. It had a loose brake, a clutch lever that rotated on the handle bar and a throttle that was stuck in the open position. The plaintiff brought these problems to the attention of her instructors, Hover and Ducharme, who failed to correct the problems.

The plaintiff further alleged that while she was operating the motorcycle, the throttle opened and stuck in that position, causing the motorcycle to accelerate. As a result, she was unable to slow the motorcycle, lost control and crashed. She claimed that her injuries were directly and proximately caused by the negligence and carelessness of Hover and Ducharme. The plaintiff brought suit pursuant to § 52-556. The defendants subsequently filed a motion to dismiss, challenging the court’s subject matter jurisdiction over the plaintiffs cause of action. The defendants argued that the plaintiffs claims against the state were not within the scope of § 52-556 and that the counts against the state employees were barred by General Statutes § 4-165. The defendants further argued that the plaintiff had failed to obtain the permission of the claims commissioner to sue the state employees. The plaintiff rebutted the defendants’ arguments, claiming that her cause of action fell within § 52-556 because Hover and Ducharme, through their instruction and adjustment, had operated the motorcycle, causing injury to the plaintiff.

In a memorandum of decision, the court granted the defendants’ motion to dismiss. The court concluded that § 52-556 applies only to causes of action concerning incidents in which a state employee operated the state owned and insured motor vehicle and that the plaintiffs allegation, that Hover and Ducharme’s instruction and adjustment to the motorcycle constituted operation of a motorcycle, was not legally cognizable. The court further held that the plaintiffs claim against the state employees was barred by the doctrine of statutory immunity under § 4-165 because the plaintiff had failed to allege facts showing that Hover and Ducharme acted outside the scope of their employment or that they acted recklessly, maliciously or wantonly while conducting the motorcycle training course. The court did not address the defendants’ final claim that the plaintiff failed to seek permission from the claims commissioner because it was moot in light of its finding that the court lacked subject matter jurisdiction over the plaintiffs cause of action. This appeal followed.

We begin by setting forth the standard of review that governs our analysis of the plaintiffs claims. “A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Emphasis in original; internal quotation marks omitted.) East Hampton v. Dept. of Public Health, 80 Conn. App. 248, 251, 834 A.2d 783 (2003), cert. denied, 267 Conn. 915, 841 A.2d 221 (2004).

I

The plaintiff first claims that § 52-556 should be construed to mean that if a person is injured when operating a motor vehicle owned and insured by the state and the injury is caused by the negligence of a state employee, that injured person shall have a right of action. Specifically, the plaintiff argues that the clause “when operating a motor vehicle” modifies the phrase “[a]ny person injured . . . .” We disagree.

At the outset, we note that “[i]t is well settled in Connecticut that, under the doctrine of sovereign immunity, the state cannot be sued unless, by legislative enactment, it consents. . . . General Statutes § 52-556 creates a cause of action against the state and represents a statutoiy exception to the common law rule of sovereign immunity.” (Citation omitted.) Rivera v. Fox, 20 Conn. App. 619, 622, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990). “[B]ecause the state has permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity.” (Citations omitted.) White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).

The resolution of that issue is guided by well established principles of statutory construction. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc). The language of the statute is the most important consideration in determining the meaning of the statute. Id. In addition, the legislature has stated that courts should first look to the plain meaning of the words of the statute when interpreting the statute’s meaning. Public Acts 2003, No. 03-154.” (Internal quotation marks omitted.) State v. Groppi, 81 Conn. App. 310, 317-18, 840 A.2d 42 (2004).

Our analysis begins with the text of the statute at issue. Section 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” On appeal, the plaintiff argues that the issue to be decided is whether the clause “when operating a motor vehicle owned and insured by the state” modifies the phrase “[a]ny person,” the phrase “any state official or employee” or both.

The plaintiff seeks to interpret § 52-556 broadly. In her ten page brief, she has not provided us with legislative history or citations to any legal authority, and we are aware of none, suggesting that the legislature intended to allow a cause of action against the state other than in circumstances described in the plain words of the statute, i.e., when a person authorized to operate a state owned motor vehicle operates it in a negligent manner and causes injury to another person. Our review of cases concerning § 52-556 reveals the manner in which the legislature intended the statute to be interpreted when it was enacted in 1927. See Babes v. Bennett, 247 Conn. 256, 260, 721 A.2d 511 (1998) (“§ 52-556 provides a cause of action against the state when any person is injured through the negligence of any state employee while operating a motor vehicle owned and insured by the state”); Sullivan v. State, 189 Conn. 550, 556 n.7, 457 A.2d 304 (1983) (“legislature enacted § 52-556 in 1927 [to grant] a cause of action to the general public against the state for negligent operation of motor vehicles by state employees”).

In Rivera v. Fox, supra, 20 Conn. App. 619, we clarified how the word “when” was used in § 52-556 in relation to the time of operation of a motor vehicle and the occurrence of an injury. We stated that “[t]he statute requires, before there can be a right of action against the state for the recovery of damages for injury to person or property, that there be ‘negligence of any state official or employee when operating a motor vehicle’ owned by the state. The use of the phrase ‘when operating a motor vehicle’ implies simultaneous negligent operation and injury, because ‘when’ denotes the time or exact moment at which something is done.” Id., 622. Under those circumstances, the operator of the motor vehicle must be a state employee to trigger the statute and allow the state to be sued. That is not the case here.

“Given our obligation to construe [§ 52-556] strictly and to effect the least change in our law regarding sovereign immunity”; Martinez v. Dept. of Public Safety, 263 Conn. 74, 83, 818 A.2d 758 (2003); we conclude that the legislature did not intend the broad interpretation of the statute that the plaintiff asserts here. It is clear that the legislature intended to allow suit in the event of motor vehicle accidents caused by the negligent operation of one of its vehicles by a state employee or official. Accordingly, the plaintiffs claim must fail.

II

The plaintiff next claims that the negligent repair and control of the motorcycle by the state employees constitute operation of a vehicle within the meaning of § 52-556 to extend liability to Hover and Ducharme. The plaintiff also argues that the state’s ownership and maintenance of the motorcycle, its duty to repair the motorcycle and its offering the education course to the public constitute “operation” within the meaning of the statute. We disagree.

In addressing the plaintiffs claim, we must define the term “operation” as set forth in § 52-556. “Operation” is not defined in General Statutes § 14-1; “operator,” however, is defined in § 14-1 (a) (54) as “any person who operates a motor vehicle . . . .” General Statutes § 14-1 (a) (54); see Conti v. Rose Hill Poultry Co., 3 Conn. App. 246, 248, 486 A.2d 1145, cert. denied, 195 Conn. 802, 491 A.2d 1103 (1985). Although there is no statutory definition of operation, “[t]he general rule established by these cases and others in the context of various statutes is that operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is movement of the vehicle, or there is a circumstance resulting from that movement . . . from one place to another. State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939); Stroud v. Water Commissioners, 90 Conn. 412, 97 A. 336 (1916); see also Conti v. Rose Hill Poultry Co., [supra, 246].” Rivera v. Fox, supra, 20 Conn. App. 624.

In the present case, Hover and Ducharme were not engaged in any activity related to setting the motorcycle in motion at the time of the accident. In her amended complaint, the plaintiff alleged that Hover and Ducharme negligently repaired certain parts of the motorcycle prior to the plaintiffs operating it, which led to her injuries. Their negligent repairs, however, do not constitute operation as defined by our statutes and case law. As previously noted, to constitute a cause of action under § 52-556, the injury must result from the negligent operation of a motor vehicle by a state employee or official. Accordingly, we cannot construe § 52-556 to extend liability to Hoover and Ducharme when they were not operating the motorcycle within the meaning of the statute.

The judgment is affirmed.

In this opinion the other judges concurred.

       In other circumstances, an injured party claiming negligence against the state is required to seek the permission of the claims commissioner to bring suit against the state. “The legislature has established a system for the determination of claims against the state. General Statutes §§ 4-141 through 4-165b. A significant part of that system is the appointment of a claims commissioner; General Statutes §§ 4-142 and 4-142a; who is vested with sole authority to authorize suit against the state. General Statutes § 4-160 (a).” Cooper v. Delta Chi Housing Corp. of Connecticut, 41 Conn. App. 61, 64, 674 A.2d 858 (1996).

       The plaintiff cites Superior Court cases in an attempt to broaden the definition of “operation.” The cases cited are factually distinguishable. They involved plaintiffs who suffered injuries resulting from a slip and fall while disembarking from state owned vehicles, which were operated by state employees. The cases simply are not relevant to the claim.


text:
    DIANE MOLLEUR v. WILLIAM PERKINS, EXECUTOR (ESTATE OF LEONARD L. CLARK), ET AL.
    (AC 24207)
    Foti, West and McLachlan, Js.
    Argued February 23 —
    officially released April 13, 2004

      Steven P. Kulas, with whom, on the brief, was Prescott W. May, for the appellant (plaintiff).

      Kenneth A. Beck, for the appellee (named defendant).
   Opinion

FOTI, J.

The plaintiff, Diane Molleur, appeals from the judgment rendered by the trial court granting the defendant William Perkins’ motion to dismiss her appeal from the Probate Court for the district of Derby. The plaintiff claims that the trial court improperly dismissed her appeal after concluding that it lacked subject matter jurisdiction. We reverse the judgment of the trial court.

The procedural facts of this case are not in dispute. The plaintiff challenged the admission into probate of a codicil executed by the decedent, Leonard L. Clark. The plaintiff, claiming to be the decedent’s heir, argued that the codicil was invalid because the decedent lacked the requisite mental capacity when he executed it and because the defendant unduly influenced the decedent’s execution of the codicil. On January 29, 2003, the Probate Court issued the decree in dispute, admitting the codicil over the plaintiffs objections.

The plaintiff filed with the Probate Court on February 26, 2003, a motion for appeal from probate, and the Probate Court, issued the probate decree on March 3, 2003, allowing the appeal. The plaintiff thereafter appealed to the Superior Court for the judicial district of Ansonia-Milford. The defendant filed a motion to dismiss the appeal from probate, arguing that it was untimely under General Statutes § 45a-187 and, therefore, that the court lacked subject matter jurisdiction over the appeal. The trial court concluded that the Probate Court’s failure to allow the plaintiffs appeal within thirty days of the challenged January 29, 2003 decree created a “voidable defect” in the appeal. The court granted the defendant’s motion to dismiss, noting that the defendant timely raised that defect in the appeal by way of his motion to dismiss.

General Statutes § 45a-186 allows “[a]ny person aggrieved by any order, denial or decree of a court of probate” to appeal to the Superior Court for the judicial district in which that probate court is located. Such an appeal “shall be taken within thirty days. ...” General Statutes § 45a-187.

In concluding that the appeal was untimely under § 45a-187, the court relied on our Supreme Court’s decision in Fuller v. Marvin, 107 Conn. 354, 140 A. 731 (1928). We do not agree that the trial court was deprived of jurisdiction on the basis of Fuller. In Fuller, “the plaintiffs made a claim of appeal, which was accepted by the Probate Court, within thirty days of the decree appealed from, but neither posted an appeal bond nor actually obtained allowance of the appeal from the court within thirty days. [Our Supreme Court], in affirming the trial court’s sustaining of the defendant’s plea in abatement, held that, as the appeal was not allowed within thirty days, it could not be resurrected by the late filing of the appeals bond.” (Emphasis in original.) Kron v. Thelen, 178 Conn. 189, 195-96, 423 A.2d 857 (1979). In Fuller, the appeal was not given with “proper and sufficient bond with surety” and, therefore, the right to appeal had not been duly exercised. Fuller v. Marvin, supra, 357.

“[T]he Probate Court has the discretion and power to allow an appeal after the expiration and the time limitation but is not required to do so.” VanBuskirk v. Knierim, 169 Conn. 382, 387, 362 A.2d 1334 (1975). Further, if an aggrieved party properly files a request for allowance to appeal within the time limited by law, which is improperly denied by a Probate Court, the allowance may be compelled by mandamus. Williams v. Cleaveland, 76 Conn. 426, 430, 56 A. 850 (1904). “Upon compliance with . . . statutory requirements the court is obliged to allow the appeal.” Fuller v. Marvin, supra, 107 Conn. 356. Although a probate judge has discretion to allow a timely filed but defective motion to appeal, subject to its being perfected at a later time, there is no such discretion when a proper and timely motion to appeal is filed. The Probate Court must allow it.

We conclude that an aggrieved party who files a proper motion for appeal within the statutory time should not be deprived of his or her right of appeal merely because the probate judge does not perform his or her required duty promptly. “Whether the Probate Court was guilty of negligence, of inadvertence or of mistake in failing to do its legal duty should not deprive the innocent plaintiffs of their right to take an appeal. If the law was otherwise, a probate judge could wrongly and arbitrarily hold up the allowance of an appeal until after thirty days and thereby deprive an aggrieved person of his right to an appeal.” Jakaboski v. Jakaboski, 28 Conn. Sup. 49, 51, 248 A.2d 786 (1968). A party’s right of appeal may not be nullified by the power of the Probate Court by its mistake, omission or its failure to act properly or expeditiously.

Because the plaintiff filed her proper motion for appeal, as an aggrieved party, from the decree dated January 29, 2003, within the time allowed by statute, February 26, 2003, it was incumbent on the probate judge to act and grant it. His failure to perform that ministerial act until March 3, 2003, in excess of thirty days following the issuance of the decree, did not deprive the Superior Court of jurisdiction to hear the appeal. The plaintiffs statutory right of appeal could not be defeated by the lack of prompt action of the Probate Court.

The judgment is reversed and the case is remanded with direction to allow the plaintiffs appeal and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The sole defendant on appeal is Perkins. The Probate Court appointed Perkins executor of the estate of Leonard L. Clark in accordance with the terms of Clark’s will and codicil. We refer in this opinion to Perkins as the defendant.

       The plaintiff also claims on appeal that the court improperly (1) failed to credit an affidavit relative to when she received notice of the probate decision and (2) disallowed evidence regarding the delay in signing the appeal by the Probate Court and relative to the date on which she received notice of the probate decision. Given our resolution of this appeal, we need not address those claims.

       Because the probate judge for the district of Derby, Clifford D. Hoyle, disqualified himself, the probate judge for the district of Woodbridge, Robert H. Horowitz, heard the probate contest.

       In his motion to dismiss, the defendant asked the court to dismiss the appeal because “[t]he papers served do not comply with the requirements of Connecticut Practice Book section 10-76.” The court purposely made no finding with regard to that claim. The court stated: “The basis for my decision is that the appeal was not allowed within thirty days of January 29, 2003, by the Probate Court.” Thereafter, with regard to the ground of its decision, the court stated to the plaintiffs attorney: “You can always ask for an articulation.” The record fails to disclose such a request.

       We note that the sending of the notice of the probate decree causes the thirty day appeal period to become operative. Kron v. Thelen, supra, 178 Conn. 197. No evidence was presented as to when the Probate Court mailed notice of its January 29, 2003 decree.

       The defendant claims that the plaintiff failed to allege with specificity that she is an “aggrieved person” in her motion to appeal and that this failure constituted a jurisdictional defect. The matter of aggrievement pertains to the jurisdiction of the court. Maloney v. Taplin, 154 Conn. 247, 250, 224 A.2d 731 (1966). The motion for appeal represents that “[s]he is an heir at law of the deceased.” The trial court ruled that was sufficient for aggrievement. We agree.
      “To qualify as an aggrieved person, the plaintiff must have a pecuniary interest in the subject matter of the decree or order, and that pecuniary interest must be adversely affected by the decree or order from which the appeal is taken.” Lenge v. Goldfarb, 169 Conn. 218, 221, 363 A.2d 110 (1975). A mere conclusory claim that she is aggrieved is insufficient; Fitzhugh v. Fitzhugh, 156 Conn. 625, 626-27, 239 A.2d 513 (1968); the basis for her claim as stated, as a matter of law, adequately presents the nature of the plaintiffs pecuniary interests that the decree adversely affected.


text:
    STATE OF CONNECTICUT v. DANIEL J. HENDERSON
    (AC 23674)
    Dranginis, Bishop and Dupont, Js.
    Argued February 13 —
    officially released April 13, 2004

      Daniel J. Henderson, pro se, the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael A. Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Daniel J. Henderson, appeals from the trial court’s denial of his motion to correct an illegal sentence. On appeal, the defendant claims that the court’s conclusion that it had no authority to act on his motion was premised on its mischarac-terization of the motion as a request for a sentence modification and that this misunderstanding deprived him of an opportunity to be heard. We agree and reverse the judgment of the trial court and remand the case for further proceedings.

The following procedural history is relevant to our disposition of this appeal. After trial by jury, the defendant was convicted on two counts of larceny in the sixth degree and one count of forgery in the second degree. He then pleaded guilty to being a persistent larceny offender and to committing the charged offenses while free on pretrial release in connection with another unrelated criminal matter. On January 24, 1995, when the defendant failed to appear in court for his scheduled sentencing, the court committed him, in absentia, to the commissioner of correction for an effective period of fifteen years incarceration.

Following sentencing, the defendant appealed from his conviction unsuccessfully. Additionally, he filed a petition for sentence review that was denied. The defendant also filed two petitions for a writ of habeas coipus, alleging ineffective assistance of counsel. Both petitions were dismissed. Thereafter, on October 21, 2002, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22.

In response, the court issued a memorandum of decision in which it stated: “[General Statutes] § 53a-39 allows the court to modify a definite sentence of three years or less after [a] hearing and [for] good cause. The sentence imposed in the case at bar exceeds the three year statutory period. The sentencing court is thereby foreclosed from further action. The petitioner may petition the sentence review division of the Superior Court for modification of the sentence imposed. This court is without authority to act. Accordingly, the defendant’s motion is denied.”

Clearly, the court understood the defendant’s motion as one to modify a sentence. It is equally apparent that the court mistakenly declined to afford the defendant a hearing on his motion on the basis of its perception that it had no authority to act. Although the defendant’s pro se motion to correct an illegal sentence is in part disjointed and rambling, a fair reading of the assertions set forth therein leads us inescapably to the view that through the motion, the defendant sought to bring to the court’s attention the factual bases of a claim that his sentence had been imposed in an illegal manner.

The judgment is reversed only as to the denial of the motion to correct an illegal sentence and the case is remanded for a hearing on the motion. The judgment is affirmed in all other respects.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       Our determination that the defendant is entitled to a hearing on his motion should not be understood as an endorsement of the substantive claims in his motion.


author: McLACHLAN, J.

text:
    LUIS A. LEBRON v. COMMISSIONER OF CORRECTION
    (AC 23687)
    Schaller, Bishop and McLachlan, Js.

      Argued January 13 —
    officially released April 13, 2004

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, was Carolyn K. Longstreth, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

McLACHLAN, J.

The petitioner, Luis A. Lebrón, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas coipus. The petitioner’s sole claim on appeal is that the court improperly dismissed his petition on subject matter jurisdiction grounds after concluding that he did not satisfy the “in custody” requirement of General Statutes § 52-466. We affirm the judgment of the habeas court.

On September 18,1992, the petitioner was convicted of assault in the third degree in violation of General Statutes § 53a-61 and sentenced to a term of six months incarceration to be served consecutively to a sentence he already was serving for an unrelated assault. After serving his sentence, the petitioner was released from custody on April 15, 1996. On May 12, 1997, the petitioner was arrested and charged with murder in connection with a May 11, 1997 shooting. On August 12, 1999, the petitioner pleaded guilty to the lesser charge of manslaughter in the first degree in violation of General Statutes § 53a-55a and was sentenced to a term of thirty years incarceration.

The petitioner filed an amended writ of habeas corpus on October 7,2002, challenging the 1992 conviction and setting forth claims of ineffective assistance of counsel and actual innocence. The petition alleged that the 1992 conviction enhanced his current sentence for the 1999 conviction and enhanced his inmate security classification.

On August 7, 2002, the respondent, the commissioner of correction (commissioner), filed a motion to dismiss the petition, claiming that the court lacked subject matter jurisdiction because the petitioner could not demonstrate that he was “in custody” for the 1992 conviction under attack at the time the habeas petition was filed. In his memorandum in opposition, the petitioner countered that the sentence enhancements to which he was subjected constituted collateral consequences sufficient to render him “in custody” for purposes of a habeas attack on the 1992 conviction.

Following a hearing, the court concluded that it lacked subject matter jurisdiction to entertain the petition and granted the commissioner’s motion to dismiss. The court reasoned that in accordance with Ford v. Commissioner of Correction, 59 Conn. App. 823, 758 A.2d 853 (2000), the petitioner no longer was “in custody” under the 1992 conviction because the sentence imposed for that conviction had been served fully by the time the habeas petition was filed. The court then granted the petitioner’s petition for certification to appeal from the dismissal and this appeal followed.

Our habeas statute confers jurisdiction to consider petitions only from persons who are “illegally confined or deprived of [their] liberty . . . .” General Statutes § 52-466. As our habeas corpus jurisprudence has been found to be “wholly in accord” with federal habeas coipus jurisprudence, that statutory language has been construed in a maimer similar to the federal statute which confers jurisdiction to entertain petitions solely from persons who satisfy the status or condition of being “in custody” at the time the petition is filed. See Ford v. Commissioner of Correction, supra, 59 Conn. App. 826; see also Tracy v. Johnson, 156 Conn. 630, 631, 239 A.2d 477 (1968) (“‘[i]t is a condition upon . . . [the] Court’s jurisdiction to adjudicate an application for habeas coipus that the petitioner be in custody when that jurisdiction can become effective’ ”).

Our analysis of the issue presented in this appeal is controlled by our decision in Ford v. Commissioner of Correction, supra, 59 Conn. App. 826, in which we considered and rejected a similar challenge to the parameters of the “in custody” requirement. In Ford, the petitioner was serving concurrent sentences for burglary and robbery. After completing a three year sentence for the burglary conviction and while continuing to serve the longer concurrent sentence for the robbery conviction, the petitioner brought a writ of habeas corpus, challenging the burglary conviction. The commissioner sought to dismiss the petition, claiming that it was moot because the petitioner already had served his sentence for the burglary conviction that he was challenging. The court determined that it did not have subject matter jurisdiction because the petitioner was not “in custody” for the burglary conviction at the time the petition challenging that conviction was filed. We agreed and affirmed the habeas court’s dismissal.

In reaching that conclusion, we relied on Maleng v. Cook, 490 U.S. 488, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989), in which the United States Supreme Court determined that notwithstanding the liberal construction the “in custody” requirement has customarily been afforded, the court has “never held . . . that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” (Emphasis in original.) Id., 491.

In the present case, the petitioner was released from custody for his 1992 conviction on April 15, 1996, and did not bring either his original or amended habeas petition until several years later. We accordingly conclude, on the basis of Ford and Maleng, that the petitioner was not “in custody” under the 1992 conviction because the sentence imposed for that conviction had expired before the petition was filed.

In so holding, we specifically reject the argument advanced by the petitioner that, despite the expiration of the sentence imposed for the 1992 conviction, the “in custody” requirement was satisfied because he continues to suffer collateral consequences from that conviction in the form of sentence enhancements to his 1999 conviction. That proposition also was considered and rejected by the United States Supreme Court in Maleng v. Cook, supra, 490 U.S. 488. In Maleng, the petitioner claimed that the “in custody” requirement was satisfied by the possibility that a future sentence might be enhanced as a result of the conviction related to the expired sentence. The court disagreed and held that “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Id., 492. In declining to construe the “in custody” requirement in the expansive manner urged by the petitioner, the court commented that such an interpretation “stretches the language ‘in custody’ too far.” Id., 491.

On the basis of the foregoing, we conclude that the petitioner is jurisdictionally barred from asserting his habeas corpus action and that the court, therefore, properly dismissed his petition.

The judgment is affirmed.

In this opinion the other judges concurred.

       The 1992 assault conviction occurred while the petitioner was incarcerated at the Manson correctional institution in which he was serving a six year sentence for a 1991 conviction of assault in the first degree.

       The petitioner first filed a petition for a writ of habeas corpus in May, 1999.

       See State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002); see also Williams v. Ragaglia, 261 Conn. 219, 226, 802 A.2d 778 (2002).

       General Statutes § 52-466 (a) provides in relevant part: “An application for a writ of habeas coipus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty . . . .”

       See 28 U.S.C. § 2241 et seq.

       See, e.g., Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963) (holding that prisoner on parole remains “in custody”).


text:
    AEDAN MCCARTHY v. COMMISSIONER OF CORRECTION
    (AC 23665)
    SchaUer, Bishop and McLachlan, Js.

      Argued January 13 —
    officially released April 13, 2004

      Sandra J. Crowell, assistant public defender, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

McLACHLAN, J.

The petitioner, Aedan McCarthy, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus. The petitioner’s sole claim on appeal is that the court improperly dismissed his petition on the ground that it lacked subject matter jurisdiction after concluding that he did not satisfy the “in custody” requirement of General Statutes § 52-466. On the basis of the reasoning set forth in Lebron v. Commissioner of Correction, 82 Conn. App. 475, 844 A.2d 946 (2004), also released on the same date, following the precedent of Ford v. Commissioner of Correction, 59 Conn. App. 823, 758 A.2d 853 (2000), we disagree and affirm the judgment of the habeas court.

In February, 1958, the petitioner was convicted of ten counts of burglary in violation of General Statutes (Cum. Sup. 1955) § 3277d and sentenced to a term of five years and one day incarceration on each count, to be served concurrently, for a total effective sentence of five years and one day incarceration. It is not disputed that the petitioner served the sentence and was released from custody.

In January, 1995, more than thirty years after being released from custody for the 1958 conviction, the petitioner was convicted in United States District Court for the District of Maine on various charges stemming from three bank robberies. At sentencing, the government introduced evidence of the 1958 conviction and sought enhanced penalties in accordance with the Armed Career Criminal Act of 1984 (act), 18 U.S.C. §§ 922 (g) (1) and 924 (e) (1) and (2). The District Court determined that the petitioner’s 1958 conviction qualified him as an armed career criminal and accordingly sentenced him, pursuant to the provisions of the act, to a term of thirty-two years incarceration.

On August 21, 2000, the petitioner filed a second amended petition for a writ of habeas corpus, challenging the 1958 conviction. The petitioner alleged that the 1958 conviction had been utilized to enhance his federal sentence pursuant to the act. On September 27, 2000, the respondent, the commissioner of correction, filed a motion to dismiss the petition on the ground that the petitioner had served the sentence imposed for the 1958 conviction fully before filing the petition and, therefore, was not “in custody” for that conviction, as required by § 52-466. Relying on our decision in Ford v. Commissioner of Correction, supra, 59 Conn. App. 823, the court determined that the petitioner was not “in custody” for the 1958 conviction and granted the motion to dismiss. The court then granted the petitioner’s petition for certification to appeal from the dismissal and this appeal followed.

This case is controlled by our decisions in Ford and Lebrón, in which we concluded that a habeas petitioner is jurisdictionally barred from challenging a conviction for which the sentence imposed has expired fully before the petition is filed. We further concluded in Lebrón that the mere fact that the expired conviction was used to enhance a sentence for a subsequent conviction is not itself a collateral consequence sufficient to render the petitioner “in custody” for purposes of a habeas attack. See Lebron v. Commissioner of Correction, supra, 82 Conn. App. 479-80.

In the present case, the petitioner filed his habeas petition thirty-four years after the sentence imposed for the challenged conviction had expired fully. We conclude, in accordance with the principles articulated in Ford and Lebron, that the petitioner is jurisdictionally barred from asserting his habeas corpus action and that the court properly dismissed his petition.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner first filed a petition for a writ of habeas corpus in March, 1997.


author: WEST, J.

text:
    RETINELLA BRAMWELL v. DEPARTMENT OF CORRECTION
    (AC 22961)
    West, McLachlan and Peters, Js.

      Argued September 12, 2003 —
    officially released April 20, 2004

      John Rose, Jr., for the appellant (plaintiff).

      Terrence M. O’Neill, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Margaret Q. Chappie and Jane B. Emons, assistant attorneys general, for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, Retinella Bramwell, appeals from the judgment of the trial court rendered in favor of the defendant in the plaintiffs action alleging racial discrimination, negligent infliction of emotional distress and retaliation by the defendant department of correction. The plaintiff asserts that the court improperly denied her motion for a mistrial and for a new trial pursuant to General Statutes § 51483b because it was required to rule on the defendant’s motion for judgment of dismissal within 120 days of the date that the last brief was filed pertaining to that motion, but failed to do so. In addition, she claims that because the court did not rule on the motion within 120 days, it lost jurisdiction. We conclude that § 51483b does not apply to motions for judgment of dismissal and accordingly affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff began her employment with the department of correction as a head nurse in July, 1994. On June 5, 1997, the plaintiff brought an action against the defendant, alleging racial discrimination, negligent infliction of emotional distress and retaliation. The case was tried to the court on various dates between June and October, 2000.

At the close of the plaintiffs evidence, the defendant filed a motion for judgment of dismissal pursuant to Practice Book § 15-8 on the grounds that the plaintiffs claims were substantially time barred and that she had failed to establish a prima facie case of racial discrimination or retaliation. The court indicated that it would deny the motion at that time but would allow the defendant to renew its motion at the close of all the evidence.

After the close of the evidence, the court ordered the parties to file supplemental briefs on the defendant’s motion for judgment of dismissal. The court then stated that after receiving those briefs, it would render a decision on the defendant’s motion and that if it denied the motion, it would request posttrial briefs for the casein-chief from both parties. The parties made no objection to the schedule. The final brief relating to the defendant’s motion for judgment of dismissal was filed with the court on October 18, 2000.

Four and one-half months later, the court had not issued a ruling on the defendant’s motion for judgment of dismissal, and the plaintiff notified the defendant that more than 120 days had passed without a ruling and that the plaintiff was not waiving the 120 day rule of General Statutes § 51-183b. On March 12, 2001, the plaintiff filed a notice of objection to the allegedly past due judgment, which the court treated as a motion for a mistrial and for a new trial pursuant to § 51-183b. On March 30, 2001, 163 days after the last brief was filed, the court ruled on the defendant’s motion for judgment of dismissal, denying the motion on the ground that the plaintiff had presented a prima facie case.

On June 1, 2001, the court conducted a hearing on the plaintiffs motion for a mistrial and for a new trial pursuant to § 51-183b. On July 27,2001, the court denied the plaintiffs motion on the ground that the statutory 120 day time limit would not begin to run until the last posttrial brief was filed, which had not yet occurred at the time the court issued its ruling. On March 28, 2002, the court issued its memorandum of decision on the case-in-chief, which dismissed the plaintiffs complaint and rendered judgment for the defendant. This appeal ensued.

The plaintiff claims on appeal that it was improper for the court to deny her motion for a mistrial and for a new trial pursuant to § 51-183b. Specifically, the plaintiff argues that because the defendant’s motion for judgment of dismissal could have resulted in a judgment if it had been granted rather than denied, the court was bound by § 51-183b and was required to rule on the motion within 120 days of the filing of the briefs. The plaintiff further argues that because the court did not rule on the motion within 120 days, the court lost jurisdiction over the case and that a new trial should be ordered. We are not persuaded by the plaintiffs argument.

When presented with an issue of statutory construction, our review is plenary. Smith v. Yurkovsky, 265 Conn. 816, 821, 830 A.2d 743 (2003). In a case such as this, we ascertain the meaning of the statute from its text if, after examining the text and considering its relationship to other statutes, the meaning of the text is plain and unambiguous, and does not yield absurd or unworkable results. See Public Acts 2003, No. 03-154, § 1.

The language of § 51-183b provides in relevant part that the judge “who has commenced the trial of any civil cause . . . shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. . . .” (Emphasis added.) The language of the statute indicates only that the time limit is to apply to the rendering of judgments after trial. It does not, as drafted, contain any language that indicates that the time limit should also be applied to rulings on motions, regardless of whether they hypothetically could be dispositive of the case and could result in a judgment if granted. “Where, as here, the language of a statute is clear and unambiguous, courts may not by construction supply omissions in a statute merely because the court feels that it has good reasons for doing so and that the statute would thereby be improved.” Joyell v. Commissioner of Education, 45 Conn. App. 476, 486, 696 A.2d 1039, cert. denied, 243 Conn. 910, 701 A.2d 330 (1997). Thus, on the basis of the text of the statute, the 120 day time limit does not apply to the motion for judgment of dismissal in this case.

In addition, the plaintiffs claim also fails as a result of our Supreme Court’s prior interpretation of the phrase, “from the completion date of trial.” The completion date of trial, for purposes of the 120 day time limit of § 51-183b, “begins to run from the date that the parties file posttrial briefs or other material that the court finds necessary for a well reasoned decision. See Frank v. Streeter, 192 Conn. 601, 604-605, 472 A.2d 1281 (1984).” Cowles v. Cowles, 71 Conn. App. 24, 26, 799 A.2d 1119 (2002). In this case, at the time the court ruled on the motion for judgment of dismissal, the 120 day period had not begun to run. The parties had submitted only briefs pertaining to the defendant’s motion for judgment of dismissal and did not file posttrial briefs until well after the court denied the defendant’s motion. Although the plaintiff argues that “the trial of the matter was completed,” the trial was not in fact complete until the posttrial briefs were filed months later. There is no dispute that the court’s memorandum of decision resolving the case was rendered within 120 days of the filing of the last posttrial brief.

Although the plaintiff argues that the statute should be inteipreted to include rulings on motions for judgment of dismissal made during or at the end of trial, she has not provided this court with any authority to support the position that the statute means anything other than what it says. Although we note the importance of ruling on motions in a timely manner, we will not extend the 120 day time limit of § 51-183b to apply to a motion for judgment of dismissal pursuant to Practice Book § 15-8. Further, because the court was not bound by § 51-183b, it did not lose jurisdiction and, as such, a new trial is not warranted. “Delay in the trial courts is not remedied by affording disappointed litigants automatic access to new trials whenever the just resolution of their cases requires time for study and reflection.” Frank v. Streeter, supra, 192 Conn. 605.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       The final supplemental brief in the court file is date stamped October 23, 2000. That brief is an exact duplicate, however, of the defendant’s reply brief, which was filed on October 18, 2000.