author: DALY, J. LANDAU, J.,

text:
    ALEXANDER KURTI v. CAROLYN H. BECKER ET AL.
    (AC 17978)
    Landau, Sullivan and Daly, Js.
    Argued February 25
    officially released August 3, 1999

      Scott P. Birrell, for the appellants (defendants).

      Glory Martyn Lena, with whom, on the brief, was William S. Rogers, for the appellee (plaintiff).
   Opinion,

DALY, J.

The defendants, Carolyn H. Becker and Frederick Becker, appeal from the judgment against them fohowing a jury trial. The defendants claim that the trial court improperly (1) denied their motion for judgment notwithstanding the verdict and (2) refused to charge the jury as they requested. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Tuesday, January 25,1994, the eighty-nine year old plaintiff, Alexander Kurti, went to the defendants’ house to play his recorder with a group of people who gathered there every Tuesday. The plaintiff went to the defendants’ house almost every week for five years. On the morning of January 25, the temperature was below freezing, and the defendants’ property, other than the driveway, was covered with snow.

As the plaintiff pulled into the defendants’ driveway at about 10 a.m., he noticed that there was some ice on it. The plaintiff parked his car in the spot where he had parked it almost every time that he went to the defendants’ home, exited his car, walked around it, opened the passenger side of his car and slipped on the ice, breaking his leg. The defendants neither warned the plaintiff of the icy driveway nor attempted to remove the ice from the driveway.

I

The defendants claim that the trial court improperly denied their motion for judgment notwithstanding the verdict because (1) a reasonable jury could not have found from the evidence presented that the defendants had actual or constructive notice of the specific icy condition that caused the plaintiff to fall and (2) the plaintiff failed to prove that the defendants had breached any duty of reasonable care. We disagree.

Additional facts are necessary to our resolution of this claim. At the close of the plaintiffs evidence, the defendants filed a motion for a directed verdict, which the trial court denied. The defendants then rested without presenting any evidence. The jury subsequently returned a plaintiffs verdict of $186,135.11, finding the plaintiff 35 percent comparatively negligent. The defendants filed motions to set aside the verdict and for judgment notwithstanding the verdict, which the trial court denied.

“Our Supreme Court has repeatedly stated that directed verdicts are not favored. . . . Nevertheless, the trial court has the power to set aside a jury verdict that, in its opinion, is contrary to either the law or the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . . . Our review of the trial court’s action in rendering a judgment notwithstanding the verdict necessitates our considering the evidence in the light most favorable to the party who was successful at trial. . . . The verdict should not be set aside and judgment directed if the jury could reasonably and legally have reached its conclusion.” (Citations omitted.) Salaman v. Waterbury, 44 Conn. App. 211, 214-15, 687 A.2d 1318 (1997), rev’d, 246 Conn. 298, 717 A.2d 161 (1998).

A

The defendants claim that the trial court improperly denied their motion for judgment notwithstanding the verdict because a “reasonable jury could not have found from the evidence that the defendants had actual or constructive notice of the specific icy condition which caused the plaintiff to fall,” and, therefore, the evidence could not support the jury’s verdict. We disagree.

“In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. ... A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.” (Citations omitted.) Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).

“Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. ... A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. . . . Section § 52-557a of the General Statutes, which provides that [t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee, in effect recognizes a third kind of invitee, namely, the social invitee. The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee.” (Citations omitted; internal quotation marks omitted). Corcoran v. Jacovino, 161 Conn. 462, 465-66, 290 A.2d 225 (1971).

An occupier of land is chargeable with constructive notice of defects when dealing with invitees. See Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 286, 587 A.2d 1056 (1991). “The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it. . . . It is settled that circumstantial evidence can establish constructive notice.” (Citation omitted.) Id., 286-87.

We conclude that the juiy reasonably could have concluded that the plaintiff was a social invitee. The plaintiff had more than mere permission to be on the defendants’ premises because they invited him to be at their house every Tuesday to play his recorder with a group.

After reviewing the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the ice was on the defendants’ driveway for a period of time sufficient for the plaintiff to have had constructive notice of it. The jury reasonably could have inferred from the evidence that the warm air on the day before the plaintiffs fall could have caused the snow near the driveway to melt and then freeze on the defendants’ driveway when the air temperature fell below freezing on the morning of January 25. The record reveals that the air temperature dropped below freezing at least three hours before the plaintiff arrived at the defendants’ home, giving the defendants time to inspect their driveway for ice and to warn the eighty-nine year old plaintiff of the ice. Accordingly, we conclude that the jury reasonably could have found that the defendants had constructive notice of their icy driveway because “in the performance of a reasonable duty to inspect the premises the defendants would have discovered the defective condition which caused the plaintiffs fall in ample time to remedy it before the accident . . . .” Sheehan v. Sette, 130 Conn. 295, 297, 33 A.2d 327 (1943).

B

The defendants also claim that the jury reasonably could not have found that the defendants breached a duty of care to the plaintiff. We disagree.

As noted previously, we conclude that the jury reasonably could have found that the defendants had constructive notice of their icy driveway. The defendants, therefore, had a duty to warn the plaintiff of the ice or had a duty to take reasonable steps to remedy the icy condition. The record reveals that the defendants neither warned the plaintiff, nor remedied the icy condition because the defendants did not call the plaintiff or put sand or salt over the ice. Accordingly, we conclude that the jury reasonably could have found that the defendants breached their duty of reasonable care to the plaintiff.

II

The defendants’ final claim is that the trial court improperly refused to charge the jury that (1) the snow and ice on the defendants’ driveway were not evidence of the defendants’ breach of duty and (2) there is no legal duty to warn an invitee of a dangerous condition already known to the invitee.

Even though the defendants claim that the trial court’s jury instructions were improper, they have failed to furnish us with any portion of the transcript as part of the record of their appeal. “It is the responsibility of the appellant to provide an adequate record for review . . . .” Practice Book § 60-5. “When error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. . . . Evidence relevant to the claimed error shall be recited in narrative form with appropriate references to the page or pages of the transcript.” Practice Book § 67-4; Housing Authority v. Pine Assn., Inc., 13 Conn. App. 489, 491, 537 A.2d 526 (1988). Because the defendants have failed to provide us with transcripts of the trial court’s instructions, we cannot determine whether they were sufficient to guide the jury. Accordingly, we decline to address the defendants’ claim.

The judgment is affirmed.

In this opinion SULLIVAN, J., concurred.

LANDAU, J.,

dissenting. On appeal, the defendants claim that the trial court improperly (1) failed to set aside the verdict because the plaintiff did not prove that the defendants (a) had either actual or constructive notice of the icy condition that caused the plaintiff to fall and (b) breached any duty of care alleged in the complaint and (2) instructed the jury by refusing to charge (a) that finding ice on the driveway did not establish a breach of the defendants’ duty of care and (b) that there is no legal duty to warn an invitee of a danger of which he is aware. I respectfully dissent from the majority’s opinion because the plaintiff failed to produce evidence that the defendants had constructive or actual notice of the icy condition of their driveway, that they had a duty to warn the plaintiff and that they failed to remedy the icy condition. The trial court, therefore, improperly failed to grant the defendants’ motion to set aside the verdict.

Paragraph six of the plaintiffs complaint alleges: “The defendants’ negligence and carelessness caused the plaintiffs injuries in that: (a) they failed to inspect the premises and discover and remedy its dangerous condition; (b) they knew or should have known of the dangerous condition caused by the accumulation of ice and snow and should have remedied the same yet they failed to do so; (c) they failed to warn the plaintiff of the dangerous condition caused by the accumulation of ice and snow in that portion of the subject premises where the plaintiff fell; (d) they failed to clear the accumulation of ice and snow in the vicinity of the plaintiffs fall thereby causing a hazardous condition to exist; and (e) they failed to sand, salt or remove the ice and snow in that portion of the subject premises where the plaintiff fell.”

Only the plaintiff testified as to the condition of the driveway and how he fell. Although no one telephoned the plaintiff to tell him that there was ice on the driveway, the plaintiff himself saw icy spots on the driveway when he arrived. There was snow on the ground adjacent to the driveway. The day before the incident, the highest temperature was forty-three degrees at Bradley Airport. On January 25, 1994, the day of the plaintiffs fall, the temperature at Bradley Airport was above freezing prior to 7 a.m., thirty-one degrees Fahrenheit between 7 and 10 a.m., and above freezing for the remainder of the daylight hours. The plaintiff presented no evidence as to when the temperature in Manchester fell below freezing. He presented no evidence that the defendants knew that the temperature fell below freezing at Bradley Airport or in Manchester, as to when the ice on the defendants’ driveway formed, or that the defendants did not inspect their driveway or that they did not attempt to remedy the icy situation. In fact, when the plaintiff testified, his counsel did not even ask him whether there was salt or sand on the driveway. The plaintiff did not call the defendants as witnesses to present evidence as to whether they knew the temperature, whether they, in fact, inspected the driveway at a particular time and whether any ice was present.

“There are serious constitutional issues posed by setting aside a jury verdict. This is so because the [l]itigants have a constitutional right to have issues of fact decided by the jury. . . . The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for reasonable difference of opinion among fair-minded [people] passed upon by the jury and not by the court. . . . Accordingly, a court should move cautiously in deciding to set aside a jury’s verdict.” (Citations omitted; internal quotation marks omitted.) Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). “However, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence.” (Citations omitted; internal quotation marks omitted.) Id., 327.

For the plaintiff to recover from the defendants for their breach of duty owed to him as an invitee, he had to prove that the defendants “either had actual notice of the presence of the specific unsafe condition which caused [his] fall or constructive notice of it. White v. E & F Construction Co., 151 Conn. 110, 113, 193 A.2d 716 [1963]; Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710 [1946]. The plaintiff made no claim of any actual notice but relied on a claim of constructive notice, that is, that the situation had existed for such a length of time that, had the [defendants] exercised reasonable supervision of [their] premises, [they] would have known of its existence. We have repeatedly stated that the notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. White v. E & F Construction Co., supra, 114; New Britain Trust Co. v. New York, N.H. & H.R. Co., 145 Conn. 390, 393, 143 A.2d 438 [1958]; Drible v. Village Improvement Co., 123 Conn. 20, 23, 192 A. 308 [1937]. On a question of notice, the trier’s consideration must be confined to the defendant’s knowledge and realization of the specific condition causing the injury, and such knowledge and realization cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises. Krause v. Almor Homes, Inc., 149 Conn. 614, 618, 183 A.2d 273 [1962].” Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966); see also Fuller v. First National Supermarkets, Inc., 38 Conn. App. 299, 301, 661 A.2d 110 (1995); LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

The burden is on the plaintiff to prove his case, not for the defendants to disprove it. See Epstein v. Automatic Enterprises, 6 Conn. App. 484, 489, 506 A.2d 158 (1986). With respect to the question of notice, the plaintiffs entire case rests on circumstantial inferences that he hoped the jury would make, i.e., that because the weather was warm the day before his fall, the snow melted onto the driveway and froze that morning and that the defendants should have known about it. On the basis of my review of the plaintiff’s testimony, I conclude that there is no way the jury reasonably and legally could reach the conclusion that the defendants breached the duty of care that they owed the plaintiff. The plaintiff failed to produce any evidence that the defendants knew of the actual defect, namely, the ice on their driveway, on the morning the plaintiff fell. He failed to produce any evidence that the defendants knew that there was water on the driveway, that they knew it was cold enough to cause water to freeze and that they, therefore, should have inspected the driveway for ice. See Markee v. Turner, 140 Conn. 701, 704-705, 103 A.2d 533 (1954).

Furthermore, it is undisputed that the plaintiff knew of the ice on the driveway when he drove his automobile onto it. “The possessor of land has no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition. . . . The failure to warn an invitee of something he already knows is without legal significance.” (Citations omitted.) Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968). “Warning an invitee against dangers which are either known to him or are so obvious to him that he may be expected to discover them is unnecessary. 65 C.J.S. 768-70, Negligence, § 63 (53); Restatement (Second), 2 Torts § 343A and comment (e).” Warren v. Stancliff, supra, 222 (Alcorn, J., dissenting).

I conclude, on the basis of the allegations of the plaintiffs complaint, the evidence he produced at trial and the law, that there was insufficient evidence to prove that the defendants had actual or constructive knowledge of ice on their driveway, that they had reason to warn the plaintiff because he was aware of the ice and that they did not inspect their driveway or failed to remedy the icy condition. The trial court, therefore, improperly denied the defendants’ motion to set aside the verdict.

Accordingly, I would reverse the judgment and remand the case to the trial court with directions to set aside the verdict and to render judgment in favor of the defendants.

      A recorder is a wind instrument with eight finger holes and a whistle mouthpiece. Merriam-Webster’s Collegiate Dictionary (10th Ed.).


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    DIANE FERRARA v. HOSPITAL OF ST. RAPHAEL ET AL.
    (AC 17832)
    Schallcr, Spear and Sullivan, Js.

      Argued March 2
    officially released August 3, 1999

      John A. Keyes, with whom, on the brief, was M. M. Looney, for the appellant (plaintiff).

      Andrew A. Cohen, for the appellees (defendants).
   Opinion

SULLIVAN, J.

The plaintiff, Diane Ferrara, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s finding and award of compensation to the plaintiff. The plaintiff raises several issues on appeal, all of which argue essentially that the medical expert testimony did not support certain findings and conclusions reached by the commissioner. The plaintiff claims that the commissioner improperly (1) failed to apply the correct test of causation for the plaintiffs injuries and relied on the defendant’s independent medical examiner, (2) found that certain problems were not compensable, (3) found that Catherine Kennedy, a psychiatrist, was not a treating physician, (4) reached legally contradictory and inconsistent conclusions and (5) found that the plaintiff had reached maximum medical improvement. We affirm the decision of the board.

The commissioner held a hearing on September 26, 1995, and found the following facts. The plaintiff was, at all relevant times, an employee of the defendant, Hospital of St. Raphael (hospital). On August 26, 1991, the plaintiff was working as a nurse at the hospital when she sustained a nonsurgical low back injury when she attempted to lift a patient. The injury was compounded by numerous prior low back injuries and groin pulls that the plaintiff had suffered while performing her duties as a nurse. The compensability of the injury was accepted by voluntary agreement.

The plaintiff remained out of work through the end of 1992, at which point she was terminated from her employment at the hospital. The plaintiff, thereafter, suffered anxiety over the loss of her job, financial problems and marital difficulties. The various medical personnel reviewing the plaintiffs case uniformly recognized her as suffering from depression and recommended treatment. During this time, the plaintiff completed a master’s program and graduated with a dean’s list average.

The commissioner reviewed the evidence and found that the plaintiffs low back symptomatology combined with her depression and pain syndrome caused her to be totally disabled through August 23, 1994. The commissioner also found that the plaintiffs psychological depression was compensable, but had been resolved as of November 10, 1993. He ordered the defendant insurer to pay, in full, the bills of all but three of the physicians who had treated her, and to pay two other insurers in part. Further, the commissioner concluded that the plaintiff had reached maximum medical improvement as of August 23,1994, but remained with a 10 percent permanent partial disability of the low back.

Both the plaintiff and the defendants petitioned for a review of the finding and award of the commissioner, each raising multiple claims on appeal. On November 14, 1997, the board upheld the decision in all respects, finding that the testimony and evidence supported the commissioner’s decision. This appeal followed.

We first note our standard of review. “The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The commissioner’s conclusions are accorded the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause.” (Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526-27, 723 A.2d 1161 (1999).

I

The plaintiff first argues that the commissioner failed to apply the correct test in his analysis of the cause of her psychiatric problems and improperly relied on the defendant’s independent medical examiner. We disagree.

“ ‘[I]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . . The commissioner must determine as a factual matter the causal relationship between a claimant’s symptoms and a compensable injury. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it. ... Similarly, the conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ [Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319 (1995), aff'd, 40 Conn. App. 918, 669 A.2d 637 (1996)].” (Internal quoation marks omitted.) Gillis v. White Oak Corp., 49 Conn. App. 630, 637, 716 A.2d 115, cert. denied, 247 Conn. 919, 722 A.2d 806 (1998). “This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress [es] him as being most credible and more weighty.” (Internal quotation marks omitted.) O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816, 728 A.2d 527 (1999).

The plaintiff argues that the commissioner improperly found that her psychological problems were substantially due to other causes such as her job loss, the pending grievance process and the pending compensation claim. Our review of the record persuades us that the commissioner’s finding and award stated reasonable determinations that were based, in part, on different medical opinions regarding causation issues with respect to the plaintiff. Specifically, the finding and award referenced an opinion from an independent medical examiner, psychiatrist Douglas Berv, that stated that the plaintiffs depression and symptomatology as of November 10, 1993, were no longer due to the work injury. Further, Berv found that the plaintiffs medications, her activities and her exhibited state of mind dictated his opinion that her major depression was partially resolved and that her emotional condition was substantially due to her job loss, the pending grievance process and her pending compensation claim.

Berv also opined that the depression the plaintiff suffered was due to separate and distinct stressors not related to the original pain syndrome from her work injury. Specifically, he found that the plaintiffs depression was due to the loss of her job as a nurse at the hospital, her feeling of a lack of support from her husband and family, as well as her anger at the hospital, with the pending grievance process and with the overall workers’ compensation process. Berv concluded that, from a psychological standpoint, the plaintiff had a work capacity after November, 1993.

“The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” (Internal quotation marks omitted.) O’Reilly v. General Dynamics Corp., supra, 52 Conn. App. 815. The commissioner determined the causal relationship between the symptoms and the plaintiffs injury. Prior to the commissioner’s decision, the plaintiffs case was reviewed by many different physicians. Although there is conflicting medical evidence in the record, there is evidence to support the commissioner’s findings and, therefore, they must not be disturbed.

II

The plaintiff next claims that the commissioner improperly found some of the plaintiffs problems to be noncompensable. The plaintiff offered several pages of transcript testimony, but no analysis of the issue in her appellate brief. “ ‘Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.’ State v. Sewell, 38 Conn. App. 20, 29, 658 A.2d 598, cert. denied, 234 Conn. 918, 661 A.2d 98 (1995); State v. Gaines, 36 Conn. App. 454, 460, 651 A.2d 1297 (1994). Analysis, rather than mere ‘abstract assertion,’ is required in order to avoid abandoning an issue by failure to brief the issue properly. State v. Cain, 25 Conn. App. 503, 524, 596 A.2d 449 (1991) [aff'd, 223 Conn. 731, 613 A.2d 804 (1992)].” Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). We decline to review this claim.

III

The plaintiff also claims on appeal that the commissioner improperly found that psychiatrist Catherine Kennedy was not a treating physician. We disagree.

“In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990); see also Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). “Our scope of review of the actions of the review [board] is similarly limited. . . . The decision of the review [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Capen v. General Dynamics Corp./Electric Boat Division, 38 Conn. App. 73, 79-80, 659 A.2d 735 (1995), quoting Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

Applying these principles to the facts of this case, we conclude that the record contains evidence on which the commissioner reasonably could have relied in determining that Kennedy was a psychiatrist who oversaw the plaintiffs psychotropic medication in conjunction with a social worker’s counseling, but never actually undertook direct treatment of the plaintiffs psychological problems. The plaintiff argues that the commissioner specifically found that Kennedy was not a treating physician. The commissioner made no such finding, however, finding instead that Kennedy never undertook direct treatment of the plaintiff. That conclusion was supported by Kennedy’s testimony concerning her role in the plaintiffs treatment; therefore, we will not disturb the commissioner’s finding.

Furthermore, regardless of the commissioner’s finding regarding the role Kennedy played in the plaintiffs treatment, he was still entitled to credit the opinion of Berv over that of Kennedy. The plaintiffs argument that the commissioner should have accepted the testimony of Kennedy rather than that of Berv is a factual determination properly within the province of the commissioner. Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). That determination cannot be overruled by the board unless it could not find “any evidence” to support the conclusion. Id. The findings of the commissioner were clearly supported by the testimony of Berv. Therefore, the board properly upheld the factual determinations of the commissioner.

IV

The plaintiff next claims that the trial commissioner reached legally contradictory and inconsistent conclusions. Specifically, the plaintiff points to conclusions made by Beiv and those made by orthopedic surgeon John Sella, and argues that the commissioner’s reliance on the testimony of both physicians resulted in the commissioner’s making inconsistent findings. We disagree.

As previously stated, the findings of the commissioner will be upheld by this court unless they result from an incorrect application of the law to the facts or from an inference illegally or unreasonably drawn from them. Kolomiets v. Syncor International Corp., supra, 51 Conn. App. 526. The plaintiff argues that the findings of Berv and Sella conflict; therefore, the commissioner’s reliance on both of their findings is inconsistent. Upon examination of the commissioner’s findings we conclude that no such inconsistency exists.

In the first findings at issue, the commissioner relied on Berv’s report and found that as of November, 1993, the plaintiff’s psychiatric problems were no longer due to her work injury. Also, the commissioner found that the plaintiff had a work capacity from a psychological standpoint in late 1993. Further, the commissioner found that the plaintiffs low back symptomatology and her depression caused her to be totally disabled through August 23, 1994. The commissioner also relied on the opinions of another physician, John Sella, and found that, in the spring of 1993, the plaintiff had chronic, intractable, benign pain syndrome, and no work capacity as of that time. Further, the commissioner found that due to the plaintiffs low back symptomatology and depression, she was totally disabled through August 23, 1994.

Those findings are not inconsistent. The commissioner’s finding that the plaintiff was totally disabled through August, 1994, does not conflict with the finding that, as of November, 1993, the plaintiffs psychiatric problems were no longer due to her work injury. Further, the finding that the plaintiff had no work capacity from an orthopedic standpoint, as Sella found, but that the plaintiff had a work capacity from a psychological viewpoint, as Berv found, is not inconsistent. Accordingly, we conclude that the commissioner’s findings did not result from an incorrect application of the law to the facts or from an inference illegally or unreasonably drawn from them, and we will not disturb them.

V

We address finally the plaintiffs claim that the commissioner improperly found that she had reached maximum medical improvement. We disagree.

The commissioner determined that the plaintiff was totally disabled through August 23, 1994, and that she reached maximum medical improvement on that date. The commissioner relied on the deposition of orthopedic surgeon Michael Luchini in reaching his determination. Luchini examined the plaintiff at the request of the commissioner, and gave his opinion, within a reasonable degree of medical probability, that the plaintiff had reached maximum medical improvement as of August, 1994. Further, the commissioner found that on the date of Luchini’s examination, August 23, 1994, the plaintiff was capable of light sedentary work.

Although the record contains medical reports with findings that conflict with those of Luchini, his testimony provides reasonable support for the commissioner’s determination that the plaintiff had reached maximum medical improvement. Therefore, we conclude that the board properly upheld the factual determinations of the commissioner.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff also raised, as a separate issue, that the commissioner improperly credited the opinion of psychiatrist Douglas Berv. As this is encompassed by our discussion of the first issue on appeal, we will not address it separately.

       The hospital’s insurer, the Connecticut Hospital Association Worker’s Compensation Trust, is also a defendant in this case.

       The commissioner also awarded fees to an osteopath who appeared at the formal hearing.

       The defendants filed a cross appeal that was subsequently withdrawn.

       In her deposition, Kennedy agreed that although her role in treating the plaintiff was more than just monitoring her drug prescription, the psychotherapy was being done by Judith Kopman-Friend.

       Although Sella testified that his opinion about the plaintiffs inability to work included a psychological viewpoint, he also stated that he would defer that evaluation and disability determination to the psychiatrists.


author: DALY, J.

text:
    E & A DEVELOPMENT, INC. v. PARAGON BUILDERS OF CONNECTICUT, INC.
    (AC 18226)
    O’Connell, C. X, and Hennessy and Daly, Js.
    Argued February 26
    officially released August 3, 1999

      Lawrence P. Weisman, with whom, on the brief, was Debra B. Marino, for the appellant (defendant).

      Matthew J. Broder, for the appellee (plaintiff).
   Opinion

DALY, J.

The defendant, Paragon Builders of Connecticut, Inc., appeals from the trial court’s judgment granting the application filed by the plaintiff, E & A Development, Inc., to discharge the defendant’s mechanic’s lien on the plaintiffs premises and releasing two escrow accounts held as security for that lien. The defendant claims that the trial court improperly (1) failed to conduct a hearing prior to discharging the lien, (2) denied its motion for a continuance and discharged the lien in the absence of his counsel and (3) authorized the immediate release of the two escrow accounts in violation of the stay provision of General Statutes § 49-35c (b). We affirm the judgment of the trial court.

In October, 1995, the parties entered into a written contract whereby the defendant was to build a residence for the plaintiff in Weston, and the plaintiff was to pay the defendant $596,400. In September, 1997, the defendant filed a mechanic’s lien “for services rendered and materials furnished in the construction, raising, removal or repair of said buildings and improvements or for the site development or subdivision of the premises . . . commencing October 1, 1995, and ending September 12,1997.” On December 7,1997, the plaintiff filed an application to discharge the mechanic’s lien.

On January 5,1998, the trial court granted the application to discharge the mechanic’s lien because there was no objection filed. That day, the defendant filed a new mechanic’s lien for $262,748.31 for work performed between October 1, 1995, and October 31, 1997. On January 9, 1998, the plaintiff filed an application to discharge the January 5, 1998 mechanic’s hen on the grounds that “there is no probable cause to sustain the validity of such lien and that such lien is invalid because it was filed more than ninety days after work on the property had been substantially completed.” The trial court scheduled a hearing to take place on January 20, 1998, which never occurred. On January 21, 1998, the plaintiffs trial counsel opened two bank accounts, totaling $262,750, to be used as substituted security for the defendant’s lien. The January 20, 1998 hearing was rescheduled to February 17, 1998.

The trial court then rescheduled the February 17, 1998 hearing for March 2,1998, but the trial court subsequently rescheduled it for March 16, 1998, because the defendant’s counsel claimed that he did not have notice of the hearing. On March 9, 1998, the defendant’s counsel filed a motion for a continuance of the March 16, 1998 hearing, claiming that he needed to visit his ailing mother in Florida and could not get a return flight that would allow him to return by the hearing date. The plaintiff, in response, filed an objection to the defendant’s motion, noting that an officer of the plaintiff corporation had altered her vacation plans and had forfeited an airline ticket to attend the hearing. The plaintiff further indicated in its objection that there were several flights available to the defendant’s counsel that would have allowed him to return by the date of the hearing.

On March 16, 1998, the plaintiff appeared for the hearing on its application to discharge the mechanic’s lien. Neither the defendant nor the defendant’s counsel appeared in court that day. Because the defendant failed to appear at the hearing, the trial court granted the plaintiffs motion to discharge the mechanic’s lien and ordered the immediate release of the escrow funds. On March 19, 1998, the defendant filed a motion for reconsideration, this appeal and an application for stay pending appeal. On July 1, 1998, the trial court granted the application for stay pending appeal.

I

The defendant first claims that the trial court improperly failed to conduct a hearing prior to discharging the mechanic’s lien as required by General Statutes § 49-35a. We disagree.

Section 49-35a (a) provides in relevant part that “[w]henever one or more mechanics’ hens are placed upon any real estate . . . the owner of the real estate . . . may make application . . . that a hearing or hearings be held to determine whether such lien or hens should be discharged or reduced. The court or judge shall thereupon order reasonable notice of the application to be given to the henor or henors named therein and, if the application is not made by all owners of the real estate as may appear of record, shah order reasonable notice of the application to be given to all other such owners, and shah set a date or dates for the hearing or hearings to be held thereon. . . .” General Statutes § 49-35b (a) provides: “Upon the hearing held on the application or motion set forth in section 49-35a, the henor shall first be required to establish that there is probable cause to sustain the validity of his hen. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the hen should not be sustained or the amount of the lien claimed is excessive and should be reduced.”

Although the defendant claims that the trial court improperly discharged the lien without first holding a hearing, the record reveals that the trial court scheduled a hearing for March 16, 1998, for which the defendant failed to appear even though he had requested it himself and therefore had adequate notice of it. The trial court concluded that because the defendant failed to appear for the hearing on that date, it thereby failed to establish the probable cause necessary to sustain the validity of the lien. Even though the defendant had previously filed a motion requesting a continuance, the trial court did not act on the motion until the hearing. The defendant, therefore, forfeited its rights to defend against the plaintiffs application by failing to appear for the hearing. See Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 545-46, 621 A.2d 300, cert. denied, 225 Conn. 924, 625 A.2d 822 (1993); see also Practice Book §§ 17-19 and 17-33 (a).

II

The defendant’s second claim is that the trial court improperly denied its motion for a continuance and improperly discharged the lien in the absence of its counsel. The defendant’s claim is without merit.

This court will not interfere with a trial court’s decision to deny a motion for a continuance unless the trial court abused its discretion. Great Country Bank v. Pastore, 241 Conn. 423, 437, 696 A.2d 1254 (1997). “Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).

Our review of the record reveals that the trial court did not abuse its discretion in denying the defendant’s motion for a continuance and in discharging the defendant’s hen. The trial court scheduled the March 16,1998 hearing, and the defendant did not appear even though the trial court had not acted on his motion for a continuance prior to the hearing. The trial court was not bound to grant the defendant’s outstanding motion simply because the defendant’s counsel was not present in court on the day of the hearing. Accordingly, we conclude that the trial court properly denied the defendant’s motion for a continuance at the hearing and properly discharged the defendant’s lien.

Ill

The defendant’s final claim is that the trial court improperly authorized the release of the two escrow accounts in violation of the stay provision of General Statutes § 49-35c (b).

Assuming that the trial court inadvertently ordered the release of the escrow funds in violation of the stay provision of § 49-35c (b), we conclude that the claim is moot because the funds already had been distributed in accordance with the trial court’s order discharging the mechanic’s lien. Because the trial court properly discharged the mechanic’s hen, there was no need for the funds to have been held as security. “Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.” (Internal quotation marks omitted.) Twichell v. Guite, 53 Conn. App. 42, 51, 728 A.2d 1121 (1999). We conclude that the defendant’s claim is moot because we can no longer grant any practical relief. See id., 52.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record does not indicate that the trial court has taken any action on the motion for reconsideration.

       General Statutes § 49-35c (b) provides in relevant part: “No appeal may be taken from the order except within seven days thereof. The effect of the order shall be automatically stayed for the seven-day period. If an appeal is taken within the seven-day period, the party taking the appeal may, within that period, file an application with the clerk of the court . . . requesting a stay of the effect of the order pending the appeal .... Upon the filing of the application, the effect of the order shall be further stayed until a decision is rendered thereon. . . .”


author: SHEA, J.

text:
    STATE OF CONNECTICUT v. MELVIN MITCHELL
    (AC 18502)
    Landau, Spear and Shea, Js.
    Argued March 2
    officially released August 3, 1999

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Judith Rossi, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan Alexander, senior assistant state’s attorney, for the appellee (state).

      Robert E. Lancaster, Stephen Wizner and Frank R. Wright, law student intern, filed a brief for the Connecticut Legal Rights Project of The Jerome N. Frank Legal Services Organization as amicus curiae.
   Opinion

SHEA, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). He raises five grounds for reversal of the judgment: (1) the delay between the filing of the first information and the commencement of jury selection, claimed to exceed four years, violated his statutory and constitutional right to a speedy trial; (2) the trial court, in violation of his right to due process of law, failed to appoint an attorney to represent him in opposing the competency hearings; (3) the victim’s statement to the police was admitted in evidence pursuant to the constancy of accusation doctrine despite the unavailability for cross-examination of the officer who took the statement; (4) testimony about a subsequent encounter between the victim and the defendant, which was admitted to show consciousness of guilt, should have been excluded; and (5) the claimed failure to inform the defendant on the record in open court of the charges against him violated his right under the sixth amendment to our federal constitution and article first, § 8, of our state constitution, both of which provide that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation. We affirm the judgment of the trial court.

On the evening of May 17, 1991, the victim encountered the defendant, whom she knew from the neighborhood. They had a conversation and made plans to meet that evening. A short time later, the defendant drove his truck to a place where he again met the victim, who entered the truck. The defendant drove to an auto repair shop, where he and the victim smoked a small amount of cocaine. The defendant, accompanied by the victim, then drove to a club on Albany Avenue in Hartford, where he purchased more cocaine, gave it to the victim to hold and drove with her to his residence on Blue Hills Avenue, where he occupied a basement apartment. The defendant prepared some of the cocaine and both of them smoked it.

When the defendant asked the victim to remove her clothes, she refused and told him that she wanted to leave. The defendant became very angry, and the victim was frightened. She removed her clothes and claimed that the defendant forced her to perform oral sex and penetrated her vagina with his penis without her consent. He also performed oral sex on her without her consent.

Eventually the victim escaped by running out of the apartment without her clothes. She ran across the street to an apartment building to which she was admitted after ringing several doorbells. After the victim told the woman who admitted her that she had been raped, the police were called. On appeal, the defendant does not claim that the evidence at trial was insufficient to support the verdict of guilty on any of the counts of which he was convicted.

I

The sixth amendment to our federal constitution provides, inter alia, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” Article first, § 8, of the constitution of Connecticut provides that “[i]n all criminal prosecutions, the accused shall have a right ... to a speedy, public trial by an impartial jury. ...” General Statutes § 54-82m directs the judges of the Superior Court to adopt rules providing that the trial of a defendant charged with a criminal offense shall commence within twelve months from the date of the information or from the date of the arrest, whichever is later. The statute provides for dismissal of an information or indictment if a trial is not commenced within thirty days after a defendant has moved for a speedy trial. Practice Book §§ 43-39, 43-40 and 43-41 contain various provisions implementing the statute.

The defendant was first arrested on June 24, 1991. His first trial did not begin until March 10,1993, a delay of more than twenty months after his arrest. He was not incarcerated, however, during that period. Most of the delay resulted from continuances requested by the defendant to obtain new counsel because of his dissatisfaction with the attorney representing him. Six different attorneys filed appearances on behalf of the defendant while this case was pending in the trial court.

After commencement of his first trial on March 10, 1993, the defendant failed to attend that proceeding on March 15,1993, necessitating a mistrial, bond forfeiture and the issuance of a rearrest warrant. The defendant was rearrested in Massachusetts on October 14, 1993, and he was incarcerated thereafter. In his brief, the defendant concedes that he was responsible for all of the delay, except for two periods: (1) March 15, 1993, when the trial court declared a mistrial because the defendant did not appear for trial, until October 14, 1993, the date of his rearrest; and (2) June 22, 1994, when the court found the defendant incompetent to stand trial because of his inability to assist his counsel, until March 16, 1995, when the court found that he had regained his competence.

We hold, however, that neither of these two periods of delay can properly be charged against the state with respect to the defendant’s right to a speedy trial. “A defendant cannot complain of any delay attributable to his flight or unavailability.” United States v. Bey, 499 F.2d 194, 203-204 (3d Cir. 1974). “[L]aw enforcement officials are not expected to make heroic efforts to apprehend a defendant who is purposely avoiding apprehension or who has fled to parts unknown.” Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir. 1988). “In our view, an exception to the [sixty day] limitation period for acts of God and misconduct on the part of the defendant is a necessary implication.” United States v. Bubar, 567 F.2d 192, 200 n.20 (2d Cir. 1977), quoted with approval in State v. Brown, 242 Conn. 289, 308-309, 699 A.2d 943 (1997). There is no evidence that the state did not move promptly to apprehend the defendant once it learned of his whereabouts.

With respect to the delay resulting from the competency hearings and the time consumed during the defendant’s recovery, we see no basis for charging that delay to the state. It was the public defender then representing the defendant who first raised the question of his competence. On May 31, 1994, she requested that the trial court order a competency evaluation, and the court granted the request. The defendant did not object to the order, but said that he would not work with his attorney and that he wanted the court to dismiss her from his case. On June 22, 1994, at the start of the competency hearing, the defendant said that he had cooperated with the evaluation team and expected its members to testify favorably for him. A psychiatric social worker testified that the defendant believed the defense bar was in collusion with the prosecutors and, because of this delusion, the defendant was unable to assist counsel in his defense. The court found the defendant incompetent to stand trial and committed him to the custody of the commissioner for mental health until he regained competence.

On August 31, 1994, a physician from the Whiting Forensic Institute testified that the defendant still suffered from a persecutory delusional disorder and recommended treatment in a hospital setting with an antipsychotic medication, which the defendant refused to take. Finally, on March 16, 1995, the same physician from the Whiting Forensic Institute testified that, while the diagnosis of the defendant, who was still refusing the medication, had not changed, he had demonstrated an ability to work with an attorney whom the defendant had known for twenty-five years. The court found the defendant competent to stand trial on the basis of that testimony. On March 29, 1995, the court denied the defendant’s final speedy trial motion after excluding all of the time involved in the evaluation, treatment and restoration of the defendant’s competence.

We agree with the trial court that the time consumed in the proceedings relating to the defendant’s competence and in the treatment that eventually resulted in his being able to stand trial cannot be charged against the state for speedy trial purposes. Procedural due process requires that, when a serious question about the defendant’s competence arises, the trial court must conduct an inquiry into his mental capacity before proceeding with the case. State v. Gonzalez, 205 Conn. 673, 686, 535 A.2d 345 (1987). General Statutes § 54-56d mandates such an inquiry when counsel for the defendant or the state requests an examination to determine a defendant’s competence.

Our rejection of the defendant’s claim that the state should be charged with the delay resulting from his failure to appear for trial on March 15, 1993, and also with the delay between June 22, 1994, and March 16, 1995, caused by the competency proceedings, removes any basis for finding a violation of the defendant’s right to a speedy trial in view of the statement in his brief admitting that he was responsible for all of the remaining delay. We conclude that there is no merit in the defendant’s claim of such a violation.

II

The defendant claims that the failure of the trial court to appoint another attorney for him during the competency proceedings, which he claims to have opposed, violated his right to due process of law. No request for such an appointment was made at trial, but the defendant claims that the court should have appointed additional counsel, suo motu, once it appeared that his appointed attorney was requesting a procedure that the defendant opposed. We agree with the defendant that the claim involves a constitutional right and may be reviewed pursuant to State v. Golding, 213 Conn. 233, 239-240, 567 A.2d 823 (1989), despite the failure to raise it at trial. We hold, however, that the failure to appoint counsel to oppose the competency proceedings was harmless beyond a reasonable doubt.

The harm that the defendant claims as a result of the competency proceedings is the delay in commencing the second trial from May 31, 1994, when his counsel requested a mental evaluation because the defendant would not cooperate with her in preparing his defense, until March 16, 1995, when he was found to have regained competence. “A defendant shall not be tried, convicted or sentenced while he is not competent.” General Statutes § 54-56d (a). The American Bar Association’s Criminal Justice Mental Health Standards (1989) § 7-4.2(c) advise defense counsel to move for an evaluation of the defendant’s competence to stand trial whenever he in good faith doubts his Ghent’s competence. On appeal, the defendant does not claim that his trial counsel acted improperly in seeking an evaluation of his competence for trial. “If the court finds that the request for an examination is justified . . . the court shall order an examination of the defendant as to his competency.” General Statutes § 54-56d (d). The attorney who requested the competency examination had undertaken the representation of the defendant after four previous attorneys were permitted to withdraw because of lack of cooperation by the defendant. Under those circumstances, it is inconceivable that the court would not have ordered a mental examination of the defendant regardless of whether the defendant had counsel to assist him in opposing the competency proceeding.

If another attorney had been appointed to oppose the request for an evaluation of the defendant’s competence, the time consumed in the competency proceedings would not have been shortened but, more likely, would have been prolonged. Even if there had been no competency hearing, the second trial could not have proceeded until the defendant had established a satisfactory relationship with new counsel. Such a relationship was finally established with the attorney who represented him at trial. There is nothing in the record to indicate that the competency hearings delayed the defendant in obtaining counsel satisfactory to him. We conclude, beyond a reasonable doubt, that the defendant suffered no harm from the failure of the trial court to appoint counsel to oppose the competency proceeding.

Ill

The defendant claims that the victim’s written statement to the police made on the night of the crime should not have been admitted into evidence under the constancy of accusation doctrine because the officer who took the statement was unavailable for cross-examination and the trial court did not charge the jury on that doctrine. Prior to the decision in State v. Troupe, 237 Conn. 284, 297, 677 A.2d 917 (1996), our rule allowed the state to introduce the fact of the sexual assault complaint and the details thereof once the victim had testified regarding that crime and the identity of the person or persons to whom a complaint had been made. In Troupe, our Supreme Court modified the rule to limit the testimony of a person to whom a sexual assault victim has reported such a crime “to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the perpetrator.” Id., 304. The court, however, explicitly stated that the modification of the rule “will apply only to those cases in which constancy of accusation testimony has not yet been admitted into evidence on the date of publication of this opinion.” Id., 305. Troupe was officially released on June 11,1996, approximately eleven months after the jury returned its verdict in the present case on July 18,1995. Accordingly, the modification of the constancy of accusation rule effectuated by Troupe does not apply to this case.

The defendant’s claim that the victim’s statement to the police officer was inadmissible because of the unavailability of the police officer who recorded it is contrary to precedent in this state. “The statements being admissible when offered by the state it is immaterial that they are offered through the testimony of the declarant rather than the listener.” State v. Hamer, 188 Conn. 562, 565, 952 A.2d 313 (1982). Although the officer who took the statement was not available for cross-examination, the victim who gave the statement was available, and the defendant had ample opportunity to cross-examine her on every aspect of her statement.

As an additional ground for admitting the victim’s statement, the state contends that the written statement was properly admitted as a prior consistent statement after the defendant had cross-examined the victim to disclose inconsistencies in her testimony. The trial court, in its discretion, may admit into evidence a prior consistent statement of a witness who has been impeached by a prior inconsistent statement for the purpose of rehabilitating the witness. State v. Valentine, 240 Conn. 395, 413, 692 A.2d 727 (1997).

Contrary to the defendant’s assertion, the trial court instructed the jury at the time the victim’s statement was admitted into evidence that it could be used only for the purpose of evaluating her credibility and not for substantive purposes. The defendant never requested that such an instruction be included in the final charge to the jury or took any exception because of the lack thereof. There is no merit in the defendant’s claim that the victim’s written and sworn statement should not have been admitted into evidence.

IV

The trial court allowed the state to introduce evidence of a subsequent encounter of the defendant with the victim to prove consciousness of guilt on the part of the defendant. The victim was permitted to testily that in August, 1991, after the defendant was arrested on June 24,1991, and released on bond, she was walking along Sargeant Street in Hartford with a little girl for whom she was babysitting when the defendant drove up in his van. He crossed over to her side of the street and told her that he was mad at her because she had called the police on him and caused him to be arrested. The defendant then drove his van up on the sidewalk as if he was going to hit her with the van. She then grabbed the child and ran into a nearby park where other people congregated. The trial court instructed the jury briefly that this testimony was being admitted to show consciousness of guilt on the part of the defendant.

“On several occasions this court has approved the admission of threats against or attempted intimidation of witnesses as evidence of consciousness of guilt.” State v. Leecan, 198 Conn. 517, 534, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). A widely recognized exception to the rule excluding evidence of other crimes of a defendant allows evidence of criminal acts intended to obstruct justice or to avoid punishment for the crime presently charged. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970). The victim’s testimony describing her encounter with the defendant on Sargeant Street reasonably could be viewed to indicate that the defendant had attempted to intimidate her and thus qualified for admission within the discretion of the trial court.

V

The final claim of the defendant is that the transcripts of the proceedings fail to show that he was personally “informed of the nature and cause of the accusation” against him in violation of the sixth amendment to our federal constitution and article first, § 8, of our state constitution. Both constitutions provide that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusations. The defendant concedes that his counsel may have been so informed, but maintains that it is the accused and not his counsel to whom the right is given. He relies on Faretta v. California, 422 U. S. 806, 819-20, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), in which the United States Supreme Court construed the sixth amendment to establish the right of an accused to defend himself without an attorney. In this case, however, the defendant has never asserted such a right and has been represented by six different attorneys at various times during the trial court proceedings. The trial court file indicates that he was represented by an attorney on August 6, 1991, when pro forma not guilty pleas were entered to an information charging him with two counts of sexual assault in the first degree and one count of unlawful restraint in the second degree. He was similarly represented by counsel when substitute informations were filed and not guilty pleas were entered.

On March 10, 1993, at the start of the first trial, the court informed the venire panel in the presence of the defendant and his attorney that the defendant was charged with first degree kidnapping and three counts of sexual assault in the first degree. His attorney, who had received a copy of the information, waived its reading, entered a not guilty plea for the defendant and informed the court that the defendant knew his accuser. On February 10, 1994, the defendant told the court in rejecting a plea offer that he would not plead guilty to “this case of sexual assault that I didn’t do.” When the second trial began in June, 1995, the defendant was present when the court informed the prospective jurors of the charges. He was also present with counsel when the court read the long-form substituted information to the juiy before any evidence was presented.

We conclude that there is so little substance to the defendant’s claim that he was not “informed of the nature and cause of the accusation against him” in violation of the sixth amendment to our federal constitution and article first, § 8, of our state constitution that it warrants no further discussion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Connecticut Legal Rights Proj ect has been permitted to file an amicus curiae brief on this issue. In its brief, the amicus requests this court to formulate a rale regarding the role of defense counsel when a defendant opposes proceedings in which his competence to stand trial is questioned. Because we conclude that in this case the defendant suffered no harm from the failure to appoint counsel to oppose the competency proceeding, we need not comply with that request.

       “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

      Because the statement was signed and sworn to by the victim, who was available for cross-examination, it would also qualify for admission pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).


author: LAVERY, J.

text:
    RAYMOND O’CONNELL ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 17870)
    Lavery, Spear and Kulawiz, Js.

      Argued December 4, 1998
    officially released August 3, 1999

      John A. Cotter, for the appellants (plaintiffs).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

       This appeal was argued before a panel comprised of Judges Lavery, Spear and Kulawiz. Although Judge Kulawiz agreed with the other two judges regarding the resolution of this appeal, she died before she had the opportunity to concur with the written decision. The parties stipulated, however, rather than reargue the appeal to this court with a panel consisting of the original two judges and an additional judge, that they would permit the remaining two judges alone to render this written decision.

   Opinion

LAVERY, J.

The plaintiffs appeal from the Superior Court’s dismissal of their appeal from the freedom of information commission’s decision requiring them to produce requested records and imposing civil penalties on them. The plaintiffs claim that the Superior Court improperly determined that the commission did not abuse its discretion in concluding (1) that they were required to disclose the requested records to the complainants because they concerned public matters rather than “fraternal or social matters,” (2) that Public Acts 1996, No. 96-83 (P.A. 96-83), was not intended to apply retroactively to exempt the requested records from disclosure and (3) that the fines imposed by the commission were reasonable and did not violate public policy. We affirm the judgment of the trial court.

The following facts are necessary to our resolution of this appeal. In January, 1994, the complainants, Cindy Oulette and the Taxpayers Association of Norwich, requested copies of charters, by-laws, policies and procedures and names and addresses of current members of the five Norwich volunteer fire departments. After the plaintiffs denied the complainants access to copies of the requested documents, the complainants appealed to the commission. On October 12, 1994, the commission found that the fire departments were public agencies under General Statutes (Rev. to 1993) § l-18a (a) and that the requested records were public records under General Statutes §§ l-18a (d) and 1-19. The commission, therefore, ordered the plaintiffs to provide copies of the requested records to the complainants. The plaintiffs appealed to the Superior Court from the commission’s decision. On October 13, 1994, the Superior Court dismissed the appeal, concluding that the commission’s decision was reasonably based on the evidence and existing law. On August 13, 1996, this court, in a per curiam opinion, affirmed the dismissal.

On September 9, 1996, the complainant Oulette, contending that the plaintiffs failed to comply with the order, filed a second complaint with the commission.Oulette also requested that the commission impose civil penalties on the plaintiffs. The commission held a hearing on October 15, 1996, in which it concluded that the plaintiffs had failed to produce the requested documents pursuant to its order. The plaintiffs, at the hearing, argued that the recently enacted P.A. 96-83, which amended General Statutes (Rev. to 1995) § 7-314 (b), protected the “internal corporate records of the fire companies which are the subject of the proceeding.” On December 11,1996, the commission concluded that (1) P.A. 96-83 did not exempt the requested documents from disclosure and (2) even if P.A. 96-83 did exempt the requested documents from disclosure, the plaintiffs failed to establish that P.A. 96-83 could be applied retroactively. The commission also imposed a $750 penalty on each plaintiff for failing to comply with its original order. The plaintiffs appealed to the Superior Court from the commission’s order. The Superior Court dismissed the appeal, and the plaintiffs appealed to this court.

“Judicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. . . . When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA], . . . We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Dortenzio v. Freedom of Information Commission, 48 Conn. App. 424, 430, 710 A.2d 801 (1998).

“Conclusions of law reached by the administrative agency must stand if . . . they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion. . . . Neither we, nor the trial court, may retry the case or substitute our own judgment for that of the commission.” (Citations omitted; internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 51 Conn. App. 100, 104, 720 A.2d 268 (1998).

I

The plaintiffs first claim that the Superior Court improperly determined that the commission did not abuse its discretion in concluding that General Statutes (Rev. to 1995) § 7-314 (b), as amended by P.A. 96-83, required the plaintiffs to disclose the requested documents. Specifically, the plaintiffs claim that the Superior Court should have concluded that the commission should have examined the legislative history of § 7-314 (b), in addition to examining its plain language, to determine that the plaintiffs were not required to disclose the requested documents because the documents concerned “fraternal or social matters.” We disagree.

“A fundamental tenet of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance. . . . Where there is ambiguity in the statute, however, we ascertain the actual intent by looking to the language of the statute itself, its legislative history, the circumstances surrounding its enactment and its puipose. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise.” (Citation omitted; internal quotation marks omitted.) Bridgeport Firefighters Assn., IAFF, Local 834 v. Bridgeport, 48 Conn. App. 667, 670, 711 A.2d 1188, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998).

We conclude that the commission and the Superior Court properly examined only the plain language of the statute to conclude that the plaintiffs were required to disclose the requested documents. As the commission concluded, the plain language of the statute exempts records from disclosure only when they concern “fraternal or social matters.” The Superior Court, after reviewing the record, properly upheld the commission’s conclusion that the requested charters, by-laws, policies, procedures and names and addresses did not concern fraternal or social matters, but instead concerned public matters. We conclude, therefore, that the plain language of the statute required disclosure of the requested records and that there was no need for further interpretive guidance.

II

The plaintiffs’ second claim is that the Superior Court improperly failed to determine that the commission abused its discretion in concluding that, even if P.A. 96-83 exempted the requested documents from disclosure, that act was not intended to apply retroactively. Specifically, the plaintiffs claim that the Superior Court should have determined that the commission failed to examine the legislative history of the statute in concluding that it was not intended to be applied retroactively. In light of our conclusion that the plain language of the statute required the plaintiffs to disclose the requested documents, we decline to address the plaintiffs’ claim.

Ill

The plaintiffs’ final claim is that the Superior Court improperly failed to conclude that the fines imposed by the commission were unreasonable and violated public policy. Specifically, the plaintiffs contend that the Superior Court should have determined that the commission abused its discretion by imposing fines for the plaintiffs’ failure to comply with its order. We disagree.

General Statutes (Rev. to 1995) § l-21i (b) (2), now § 1-206 (b) (2), provides in relevant part: “[U]pon the finding that a denial of any right created by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, was without reasonable grounds . . . the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. . . .” The commission concluded that the plaintiffs unreasonably relied on P.A. 96-83 to not disclose the records and imposed a $750 fine on each plaintiff. We conclude that the commission reasonably could have determined that the plaintiffs’ reliance on P.A. 96-83 was an unreasonable ground for failing to disclose the records as ordered. As discussed previously, P.A. 96-83 clearly did not exempt the requested records from disclosure. Accordingly, we conclude that the commission’s imposition of fines is supported by the record.

The judgment is affirmed.

In this opinion SPEAR, J., concurred.

       The plaintiffs are Raymond O’Connell, chief of the Yantic fire department; Joseph W. Winsld, Sr., chief of the East Great Plain fire department; Steven Caisse, chief of the Taftville fire department; Kevin McKeon, chief of the Occum fire department; and Philip Johnson, chief of the Laurel Hill fire department.

       General Statutes (Rev. to 1993) § l-18a (a) provides: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only in respect to its or their administrative functions.” That section was transferred to General Statutes § 1-200 (1) in 1999.

       General Statutes (Rev. to 1993) § l-18a (d) provides: “ ‘Public records or files’ means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.” That section was transferred to General Statutes § 1-200 in 1999.

       General Statutes (Rev to 1993) § 1-19 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records . . . .” That section was transferred to General Statutes § 1-210 in 1999.

       See Yantic Volunteer Fire Co. v. Freedom of Information Commission, 44 Conn. Sup. 230, 682 A.2d 156 (1996).

       See Yantic Volunteer Fire Co. v. Freedom of Information Commission, 42 Conn. App. 519, 679 A.2d 989 (1996).

       General Statutes (Rev. to 1995) § 7-314 (b), as amended by P.A. 96-83, provides: “The records and meetings of a volunteer fire department which is established by municipal charter or constituted as a not-for-profit Connecticut corporation shall not be subject to the provisions of sections 1-15, 1-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, if such records and meetings concern fraternal or social matters. Records and meetings concerning matters of public safety, expenditures of public funds or other public business shall be subject to disclosure under said sections.” That section was subsequently amended to substitute “the Freedom of Information Act, as defined in section 1-200,” for the listed sections.

       The plaintiffs also claim that the commission improperly ordered them to disclose the names and home addresses of the members of the fire departments. “Connecticut courts have considered a person’s reasonable expectation of privacy and the potential for embarrassment as significant factors in determining if disclosure [of public records] would constitute an invasion of privacy.” (Internal quotation marks omitted.) West Hartford v. Freedom of Information Commission, 218 Conn. 256, 263, 588 A.2d 1368 (1991). Ordinarily, an address is not a private fact exempt from disclosure unless the party seeking exemption can show that it has taken significant efforts to keep its address private. Id., 265.
      Nothing in the record indicates that the plaintiffs have taken serious efforts to insulate their addresses from the public domain. Indeed, the plaintiffs, in their briefs, claim only that they “objected strenuously to the release of their names and home addresses” to the complainant. Accordingly, we conclude that the commission properly ordered the plaintiffs to release their names and addresses to the complainants.


text:
    GERALD SMITH v. WANDA REYNOLDS
    (AC 17955)
    Lavery, Landau and Schaller, Js.
    Argued April 19
    officially released August 3, 1999

      William F. Gallagher, with whom, on the brief, was George R. Temple, for the appellant (plaintiff).

      Ralph C. Crozier, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Gerald Smith, appeals from the trial court’s judgment granting the motion filed by the defendant, Wanda Reynolds, to restore the case to the docket after the plaintiff withdrew his cause of action. On appeal, the plaintiff claims that the trial court improperly restored the case to the docket because the trial court lacked subject matter jurisdiction. We reverse the judgment of the trial court.

The following facts are relevant to the appeal. The plaintiff commenced the lawsuit, a derivative action, on July 9, 1997. The defendant filed a motion for an appraisal of the corporation, which the trial court granted on October 20, 1997. Although the trial court granted the motion for an appraisal, no appraiser was ever appointed. The plaintiff withdrew the lawsuit on October 28, 1997. The defendant moved to restore the action to the docket on October 30,1997. On November 4, 1997, the trial court granted the motion to restore. The trial court denied the plaintiffs motion to reconsider its ruling on the motion to restore. The plaintiff appealed.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) United Technologies Corp. v. Groppo, 238 Conn. 761, 767, 680 A.2d 1297 (1996). Our review of the plaintiffs claim is, therefore, plenary.

The issue is controlled by General Statutes § 52-80, which provides in relevant part: “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.”

“The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.” (Internal quotation marks omitted.) H. G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 431, 601 A.2d 1040 (1992). “[A] withdrawal ‘does not need the permission of the court for cause shown if a hearing on an issue of fact has not commenced.’ ” Baker v. Cordisco, 37 Conn. App. 515, 521, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

The parties disagree as to whether the trial court’s granting the defendant’s motion for an appraisal of the corporation, without the appointment of an appraiser, is a hearing on an issue of fact. We hold that it is not an issue of fact. See Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 404, 480 A.2d 552 (1984) (plaintiff could not withdraw complaint without leave of court where court-appointed appraiser had begun process of appraising corporation, which constituted “hearing on an issue of fact”); Spears v. Kerars Realty Co., 171 Conn. 699, 704, 372 A.2d 121 (1976) (appraiser’s determination of value of corporation’s real estate prior to court appointment was not “hearing on an issue of fact” requiring court’s permission to withdraw action).

In this case, although the trial court granted the defendant’s motion for an appraisal of the value of the corporation, no appraiser was appointed to perform the evaluation. “It is clear . . . that this fact-finding function cannot commence prior to the appraiser’s formal appointment by the court.” Spears v. Kerars Realty Co., supra, 171 Conn. 703. The trial court improperly granted the defendant’s motion to restore the lawsuit to the docket because it lacked subject matter jurisdiction.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to restore the case to the docket.

In this opinion the other judges concurred.

       The defendant moved to dismiss the appeal for lack of a final judgment. We denied the defendant’s motion and treated the defendant’s motion to restore as a motion to open the judgment. See Sicaras v. Hartford, 44 Conn. App. 771, 776, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). “Generally, the granting of a motion to open a prior judgment is not a final judgment and, therefore, not immediately appealable. State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974). An exception to this rule, however, allows an appeal if it challenges the power of the trial court to open the judgment. Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989).” Cassella v. Kleffke, 38 Conn. App. 340, 344, 660 A.2d 378, cert. denied, 235 Conn. 905, 665 A.2d 899 (1995); see also Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418-19, 426 A.2d 1324 (1980).

       The corporation is Smith Enterprises, Ltd.

       The defendant filed a counterclaim on December 10, 1997.


author: PER CURIAM.

text:
    SAMUEL VEAL v. COMMISSIONER OF CORRECTION
    (AC 18367)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued May 3
    officially released August 3, 1999

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The petitioner appeals from the dismissal of his habeas corpus petition. On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to appeal to this court and (2) dismissed his writ of habeas corpus. We affirm the denial of certification to appeal and dismiss the petitioner’s appeal.

The following facts are necessary to the resolution of this appeal. The petitioner was convicted on June 11, 1984, following a jury trial, of murder in violation of General Statutes § 53a-54a. At the same time, the petitioner pleaded nollo contendere to a charge of assault in the second degree with a firearm in violation of General Statutes § 53a-60a (a). The conviction was affirmed by our Supreme Court on November 18, 1986. State v. Veal, 201 Conn. 368, 517 A.2d 615 (1986).

The denial of a prior writ of habeas corpus was affirmed by this court in Veal v. Warden, 28 Conn. App. 425, 611 A.2d 425, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992). The petitioner thereafter filed the present petition for a writ of habeas corpus, which the habeas court dismissed after a hearing. He then filed a request for certification to appeal to this court, which the habeas court also denied. This appeal followed.

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claim and a determination that the petitioner had failed to rebut the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The habeas court found that the issues that the petitioner would have had prior counsel raise were meritless and, therefore, his failure to raise those issues was not unreasonable.

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Citations omitted; internal quotation marks omitted.) Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997).

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

After a thorough review of the record and briefs and consideration of the oral arguments, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal the dismissal of his habeas corpus petition was a clear abuse of discretion or that an injustice has been done. See id.; Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.