text:
    GEORGE BATOR v. YALE-NEW HAVEN HOSPITAL
    (AC 22691)
    Foti, Schaller and West, Js.
    Submitted on briefs September 16 —
    officially released November 12, 2002

      John R. Williams filed a brief for the appellant (plaintiff).

      Margaret P. Mason and Paul L. Bader filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, George Bator, appeals from the judgment of the trial court rendered subsequent to its granting of the motion to strike filed by the defendant, Yale-New Haven Hospital. The issue in this action for intentional infliction of emotional distress is whether the court properly determined that the allegations of the plaintiffs complaint fail to allege conduct on the part of the defendant that “has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000), quoting 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). We affirm the judgment of the trial court and conclude that the plaintiffs complaint fails to allege conduct “that exceeds all bounds usually tolerated by decent society . . . .” (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 210.

The complaint alleged that the plaintiff was employed by the defendant as a respiratory therapist in February, 1989. During the course of his employment, the defendant’s agents, servants and employees subjected him to abusive and disparate treatment. Specifically, the plaintiff alleged, among other things, that his supervisor once scheduled him to report for duty when he was under a physician’s care. When the plaintiff failed to report as scheduled, the supervisor recommended that he be disciplined. The plaintiff alleged further that he received less compensation than other, less experienced employees in his position. When a nurse accused the plaintiff of being rude to her, a supervisor falsely accused the plaintiff of endangering a patient’s life. One of his supervisors suggested that the plaintiff seek psychiatric help when he complained about his schedule and assignments. Another of his supervisors recommended that the plaintiff attend anger management classes after he had a confrontation with a nurse. When the plaintiff complained about a change in his monthly rotation assignment, he was given a written warning. Following another verbal altercation with a nurse about a patient’s care, the plaintiffs supervisor gave him a final written warning for violence. The plaintiff further alleged that as a result of the alleged disparate treatment he received in the defendant’s employ, he suffered severe emotional distress that he could no longer endure and resigned on March 28, 2001. The defendant filed a motion to strike the plaintiffs complaint.

Practice Book § 10-39 (a) provides in relevant part that “[w]henever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof.” “[0]ur review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 538, 778 A.2d 93 (2001). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). “Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Bell v. Board of Education, 55 Conn. App. 400, 410, 739 A.2d 321 (1999). Only where reasonable minds disagree does it become an issue for the jury. Id.” Appleton v. Board of Education, supra, 254 Conn. 210.

On the basis of our plenary review of the plaintiffs complaint, taking the facts together or in isolation, we cannot say that this case is “one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ .... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citation omitted; internal quotation marks omitted.) Id., 211.

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MATTHEW ROBINSON v. COMMISSIONER OF CORRECTION
    (AC 22556)
    Foti, Schaller and West, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      Richard C. Marquette, special public defender, filed a brief for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Matthew Robinson, appeals from the habeas court’s judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that he was innocent in fact and that the court improperly concluded that the assistance rendered by the petitioner’s trial counsel was not ineffective. We affirm the judgment of the habeas court.

In December, 1997, a jury convicted the petitioner of having murdered Raymond Felix on May 19, 1997, in Bridgeport. The conviction was upheld by this court in State v. Robinson, 56 Conn. App. 794, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000). At trial, the petitioner asserted an alibi defense that he could not have committed the murder because he was applying for a job at United Parcel Service at the time of the crime. He and his girlfriend testified to that effect on the basis of the petitioner’s having called for her at her place of employment after he left the United Parcel Service office. No one at that office remembered the petitioner’s applying for employment. The state presented the testimony of three individuals who identified the petitioner as the person who shot Felix, and one of the witnesses testified as to the petitioner’s motive to kill Felix. The state also presented evidence of the petitioner’s flight from Bridgeport as consciousness of guilt.

The petitioner filed a second amended petition on June 19, 2001. He alleged that his state and federal constitutional rights were violated because the public defender who represented him at trial provided ineffective assistance of counsel in that his performance fell below the range of competence demonstrated by lawyers of ordinary training and skill in the area of criminal law and that as a result of his counsel’s deficient performance, the petitioner suffered prejudice. Specifically, the petitioner alleged that his counsel failed (1) to provide adequate and effective advice with respect to the petitioner’s testifying at trial, (2) to conduct an adequate pretrial investigation and (3) to prepare the petitioner’s case for trial. After a hearing, the court concluded that the petitioner had failed to overcome the presumption of effective assistance of counsel. See Safford v. Warden, 223 Conn. 180, 194, 612 A.2d 1161 (1992). The court thereafter granted the petitioner’s petition for certification to appeal to this court.

“In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. ... A convicted defendant’s claim that counsel’s assistance was so defective as to require a reversal of the conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Citation omitted; internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 316-17, 759 A.2d 118 (2000).

The court found that the petitioner and his counsel had discussed the need for the petitioner to testify because there was only one alibi witness, the petitioner’s girlfriend, and the state had presented the testimony of three eyewitnesses, one of whom testified about the petitioner’s motive for shooting Felix. The habeas court found that the petitioner had made the decision to testify and that counsel's advice represented sound trial strategy. At the habeas hearing, the petitioner failed to produce the second alibi witness, whom he claimed his counsel had failed to investigate. The court, therefore, concluded that it was left to speculate or to surmise as to whether there was evidence that would have resulted in a different outcome at trial. The court also concluded that the petitioner’s claim that his counsel was not prepared for trial was not supported by the evidence. On the basis of our review of the record, we agree that the performance of the petitioner’s trial counsel was not deficient. The petitioner was not prejudiced by the representation that he received.

The judgment is affirmed.

       In his brief to this court, the petitioner claims that he was innocent in fact and that the habeas court applied an improper standard to his claim of actual innocence. In fact, the bulk of the petitioner’s appellate brief concerns the standard to be applied to a claim of actual innocence. The respondent commissioner of correction has argued that this claim is not reviewable because it was not raised during the habeas proceedings. We agree.
      We have conducted a thorough review of the petition for a writ of habeas corpus, the transcript of the hearing and the brief the petitioner asked to submit to the habeas court. Nowhere did the petitioner allege or present evidence of innocence in fact or cite the standard applicable to such a claim. A claim of actual innocence never was raised before the habeas court, and the court did not address such a claim in its memorandum of decision.
      “In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement. . . . The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Citations omitted; internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001).

       There was evidence that the petitioner and his girlfriend never informed counsel of the second alibi witness.


text:
    ROFIO GREENFIELD v. COMMISSIONER OF CORRECTION
    (AC 22295)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      William B. Westcott filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, and Margaret Gaffney Radionovas and Mary Elizabeth Baran, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Rofio Greenfield, appeals from the habeas court’s judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove his claim of ineffective assistance of counsel. Specifically, the petitioner claims that he was denied effective assistance when his trial counsel permitted the trial court to comment on reasons why the petitioner may have chosen not to testily at his criminal trial. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. The petitioner was convicted of murder and sentenced to forty-five years imprisonment. On direct appeal, our Supreme Court upheld his conviction. State v. Greenfield, 228 Conn. 62, 78, 634 A.2d 879 (1993).

The petitioner subsequently filed an amended petition for a writ of habeas corpus on April 6,1998, alleging seven claims of ineffective assistance of trial counsel. After conducting a hearing, the court denied each of the petitioner’s claims. The court thereafter granted the petitioner’s petition for certification to appeal to this court. The petitioner now challenges the court’s finding that he was not denied effective assistance when his trial counsel did not object to the trial court’s charge to the jury that “[t]here maybe many good and sufficient reasons why the [petitioner] has not testified, such as advice of counsel.”

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Alterisi v. Commissioner of Correction, 67 Conn. App. 625, 627-28, 789 A.2d 489 (2002).

In his brief, the petitioner concedes that the trial court’s language in its jury instruction as to why he may have chosen not to testify met the dictates of General Statutes § 54-84 (b). It is the petitioner’s argument that the court’s statement that “[t]here may be many good and sufficient reasons why the [petitioner] has not testified, such as advice of counsel,” amounted to a violation of § 54-84 (a), which prohibits a court from commenting on a defendant’s decision to not testily. Section 54-84 (a), however, is limited by subsection (b) of § 54-84, which requires a court to instruct the jury that it may not draw any unfavorable inferences from the defendant’s decision to not testily, which the court did in this case.

“Whenever a defendant does not testify at trial, § 54-84 (b) requires that, [u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” (Internal quotation marks omitted.) State v. Yurch, 229 Conn. 516, 522, 641 A.2d 1387, cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343 (1994). In the present case, the court instructed the jury as follows: “Now, [the petitioner] did not testify in this case, and an accused person is under no obligation to become a witness in his own behalf, nor is he obliged to produce any evidence whatsoever. Under our law, an accused person may testify or not as he sees fit. It’s for the state to prove him guilty of the charges, and nothing rests upon him in his position. There may be many good and sufficient reasons why the [petitioner] has not testified, such as advice of counsel. Therefore, you should not allow such fact to enter into your discussions or deliberations, and you, as the jury, should draw no adverse inferences against the [petitioner] merely from his failure to testify.”

“Failure to follow the exact wording of § 54-84 (b) does not require reversal in all circumstances. ... In cases where a no unfavorable inferences charge was given, but in language deviating slightly from the precise wording of the statute, we have examined the entire charge to see if the words as given were sufficient to satisfy the statute. ” (Citation omitted; internal quotation marks omitted.) State v. Reid, 22 Conn. App. 321, 326-27, 577 A.2d 1073, cert. denied, 216 Conn. 828, 582 A.2d 207 (1990). The charge that the court gave to the jury, when read in its entirety, clearly demonstrates that the impetus for the court using the contested language was to reinforce the mandate of § 54-84, namely, that the jury was not to draw any adverse inferences from the petitioner’s decision not to testify.

It also should be noted that the petitioner, who did not object to the jury charge at trial, filed a request to charge on his right not to testify that included language almost identical to that which he now is challenging. The petitioner requested the following language to be included in the charge to the juiy: “Not only is it his right not to testify, but there may be a host of reasons for the decision made by counsel and his client not to have the defendant testify. Often, decisions are made for tactical reasons having nothing whatsoever to do with the merits of the case.” (Emphasis added.) The petitioner cannot request the court to charge the jury in one way, permit the court to charge the jury in substantially the same manner as was requested, and then claim on appeal that his counsel provided ineffective assistance by not objecting to the charge that he requested.

Accordingly, the petitioner has failed to sustain his burden of proving that counsel’s performance was deficient and that he suffered actual prejudice. See Strickland v. Washington, supra, 466 U.S. 687. We therefore conclude that the habeas court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

       General Statutes § 54-84 (b) provides: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testily. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       General Statutes § 54-84 (a) provides in relevant part: “The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.” (Emphasis added.)

       The state did object to the court’s inclusion of the language that the petitioner now contests, claiming that the charge should not have invited the jury to speculate as to why the petitioner was not testifying. The court, in denying the objection, held that the charge, when read in its entirety, properly directed the jury that in making its decision, it was not to consider the fact that the petitioner did not testify.


text:
    LUBA HILL v. PHILIP BARTELS ET AL.
    (AC 22276)
    Foti, SchaUer and West, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      Luba Hill, pro se, the appellant (plaintiff), filed a brief.

      Paul E. Pollock filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Luba Hill, appeals from the judgment of the trial court rendered after it granted the motion for a nonsuit filed by the defendants, Philip Bartels, the law firm of Holland, Kaufmann and Bartels, and the law firm of Duel and Holland. The plaintiff claims that the court improperly (1) granted the defendants’ motion for a nonsuit and (2) overruled her objection to the granting of the motion. We decline to review the plaintiffs claims.

The defendants represented the plaintiff in her divorce proceedings from June, 1992, through January, 1993, when the plaintiff terminated the relationship. In June, 1998, the plaintiff brought an action against them alleging extortion, legal malpractice, breach of the duty of care, intentional infliction of emotional distress, negligence, reckless conduct, abuse of power as an attorney, concealment of theft, misappropriating trust funds, fraud, perjury, mental suffering and violations of the Connecticut Unfair Trade Practices Act. The defendants thereafter filed a request to have the plaintiff revise her complaint in October, 1998, seeking to have her file a “plain and concise statement of the material facts” alleged. The plaintiff filed her revised complaint, consisting of 455 counts, in November, 1998. The defendants filed a second request to revise in February, 1999, and the plaintiff responded by filing another revised complaint in March, 1999, consisting of 528 counts. In October, 2000, the defendants filed a third request to revise, to which the plaintiff never responded.

On December 21, 2000, a judgment of dismissal was rendered. The plaintiff subsequently filed a motion to open the judgment of dismissal, which was granted. The defendants then filed a motion for nonsuit, which was granted by the court.

On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for a judgment of nonsuit and overruled her objection to the granting of the nonsuit because the defendants’ motion was not signed and she never received the defendants’ request to revise, which was the basis for the filing of the motion for a judgment of nonsuit. The plaintiff, however, cites no legal authority to support her claims. We decline to address the plaintiffs claims. “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 359, 794 A.2d 1043 (2002). “Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Baris v. Southbend, Inc., 68 Conn. App. 546, 551, 791 A.2d 713 (2002). We decline, therefore, to review the plaintiffs claims and deem them abandoned.

The judgment is affirmed.


text:
    JAMES STERBINSKY v. COMMISSIONER OF CORRECTION
    (AC 22024)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      Dennis P. McDonough, special public defender, filed a brief for the appellant (petitioner).

      Mary M. Galvin, state’s attorney, and Leon F. Dalbec, Jr., senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, James Sterbinsky, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus and his petition for certification to appeal to this court. On appeal, the petitioner claims that the court (1) abused its discretion when it denied his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus by concluding that the legality of his sentence was res judicata, and that his allegations regarding vindictive behavior on the part of the prosecution and the court in the probation violation matter were nonspecific and frivolous. We dismiss the appeal.

The following facts are relevant to the appeal. On December 15,1995, the petitioner was arrested for violation of probation with respect to two separate underlying convictions. The court, Coceo, J., revoked the petitioner’s probation and sentenced him to twelve and one-half years in prison. The judgment of revocation was affirmed by this court in State v. Sterbinsky, 47 Conn. App. 918, 703 A.2d 1194 (1997), cert. denied, 243 Conn. 970, 707 A.2d 1270 (1998).

The petitioner subsequently filed, pro se, a petition for a writ of habeas corpus in the judicial district of Ansonia-Milford, claiming that the sentence imposed by the court in the probation revocation matter was improper. The habeas court, Arnold, J., denied the petition on the ground that a petition for habeas corpus was not the proper procedure by which to obtain sentence review. The petitioner did not appeal from the denial of his first petition for a writ of habeas corpus, but filed a second petition for a writ of habeas corpus in the judicial district of Danbury. In his second petition, the pro se petitioner alleged that the first habeas court improperly denied his petition, and that the prosecutor and the trial court in the probation revocation matter had been vindictive.

The second habeas court, Carroll, J., denied the second petition on the ground that the petitioner’s sentencing claim was res judicata. As to the petitioner’s claims that the prosecution and the trial court in the probation revocation matter had been vindictive, the second habeas court determined that the allegations were nonspecific and frivolous. Furthermore, the second habeas court concluded that the petitioner’s claims of vindictiveness had not been raised in his direct appeal, that he had failed to preserve those claims at trial, and that he had failed to allege and to demonstrate actual prejudice.

The petitioner filed a petition for certification to appeal from the second habeas court’s judgment, which petition the court denied. The court subsequently, in a sua sponte articulation of its denial of the petition for certification, granted the pro se petitioner’s application for a waiver of fees, costs, expenses and the appointment of counsel on appeal to pursue his claim that the court had abused its discretion in denying his petition for certification to appeal. The petitioner appealed to this court.

After review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right, and, further, that he has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); 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. 290, 661 A.2d 100 (1995); see also Losada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

General Statutes § 51-195 provides that a person sentenced shall file an application for review with the clerk of the court in the judicial district in which the judgment was rendered for review of the sentence by the review division. Furthermore, a petitioner seeking review of a judgment by a habeas court shall do so by following the procedure set forth in Practice Book § 80-1, not by filing a subsequent petition for a writ of habeas corpus. We agree with the second habeas court that the petitioner’s allegations regarding vindictive behavior on the part of the prosecution and the court are insufficient to raise a viable claim.

The appeal is dismissed.


text:
    CORINE CARR v. FLEET BANK
    (AC 22260)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      Corine Carr, pro se, the appellant (plaintiff), filed a brief.

      Erica W. Todd filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Corine Carr, appeals from the trial court’s judgment denying her motion to open the judgment of dismissal. The plaintiff claims that the court improperly denied the motion because the defendant, Fleet Bank, acted fraudulently by failing to provide her with the name of its registered agent for service of process, which led to the judgment of dismissal. We affirm the judgment of the trial court.

The following procedural history is relevant. On December 1, 2000, the plaintiff endeavored to commence an action against the defendant seeking damages for injuries she allegedly suffered at one of its drive through teller stations. In her complaint, the plaintiff alleged that the bank teller operated the tray at the drive through station in such a manner as to cause a noise that resulted in the plaintiffs suffering an ear injury and permanent hearing loss, and that the teller operated the station in a negligent and malicious manner.

On February 16, 2001, the defendant filed a motion to dismiss the action in which it claimed that service of process had not been made on its duly authorized agent for service. See General Statutes § 33-929 (a). On April 30, 2001, the court granted the defendant’s motion to dismiss. On July 26, 2001, the plaintiff filed a motion to open the judgment, stating as the grounds therefor “fraudulent contrivance and prejudice by the defendant,” and arguing, inter alia, either that the defendant would not tell her who its registered agent was so that she could effect a proper service of process or that the defendant had conveyed inaccurate information to her regarding the identity of its agent. On July 27,2001, the defendant objected to the plaintiffs motion to open, and on August 14, 2001, the court sustained that objection. This appeal followed.

We first note our standard of review. “[I]n granting or denying a motion to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion.” (Internal quotation marks omitted.) Conway v. Hartford, 60 Conn. App. 630, 634, 760 A.2d 974 (2000). “In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” (Citations omitted; internal quotation marks omitted.) Carlin Contracting Co. v. Dept. of Consumer Protection, 49 Conn. App. 501, 502-503, 714 A.2d 714 (1998).

A court may open a judgment obtained by fraud, including fraudulent nondisclosure. Pospisil v. Pospisil, 59 Conn. App. 446, 449-50, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000). “Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action. . . . The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment. . . . Fraud by nondisclosure, which expands on the first three of these four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak.” (Citation omitted; internal quotation marks omitted.) Id., 450.

We are mindful that the plaintiff has represented herself throughout the proceedings, and that “[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” (Internal quotation marks omitted.) Macricostas v. Kovacs, 67 Conn. App. 130, 133, 787 A.2d 64 (2001). Nonetheless, the record for this appeal contains neither a memorandum of decision nor a transcript signed by the trial judge, and the plaintiff did not seek an articulation of the court’s ruling. As such, there is nothing evidencing the court’s factual findings or legal conclusions regarding the plaintiffs allegations of fraud. “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Id.

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § [61-10] .... It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claim] would be entirely speculative.” (Internal quotation marks omitted.) Id.

Because the record is incomplete, we are left only with the plaintiffs assertions that the defendant, by declining to assist her in prosecuting her action against it, acted fraudulently. Without the court’s findings regarding what, if anything, the defendant told the plaintiff, what the defendant knew and intended at the time, and what the plaintiff did as a consequence, we cannot conclude that the court abused its discretion.

The judgment is affirmed.

       The plaintiff has proceeded pro se in both the trial court and on appeal.

       Practice Book § 10-31 (a) provides in relevant part that “[t]he motion to dismiss shall be used to assert ... (4) insufficiency of process, and (5) insufficiency of service of process. . . .” According to an appended affidavit of Lama Giuliano, a branch manager for the defendant, a sheriff had served her with a civil summons on or about January 11, 2001, but she lacked authority to accept service of process on behalf of the defendant.


text:
    SCOTT LEWIS v. COMMISSIONER OF CORRECTION
    (AC 22517)
    Foti, Schaller and West, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      Scott Lewis, pro se, the appellant (petitioner), filed a brief.

      Michael Dearington, state’s attorney, and Christopher T. Godialis, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

In this uncertified appeal, the pro se petitioner, Scott Lewis, seeks reversal of the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the court acted improperly (1) in concluding that the testimony of Michael Sweeney, a police detective, did not constitute newly discovered evidence and (2) in failing to draw an adverse inference against the respondent commissioner of correction when Ovil Ruiz, a witness at the habeas trial, invoked his fifth amendment privilege against compelled self-incrimination.

The record discloses that the petitioner, pursuant to General Statutes § 52-470 (b), filed a petition asking Associate Justice Joette Katz of the Supreme Court for certification to appeal from the judgment of the habeas court and that she denied his petition. Accordingly, the petitioner bears the burden of demonstrating that Justice Katz’s ruling constituted an abuse of discretion. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999). If the petitioner fails to satisfy that burden, then his claim that the judgment of the habeas court should be reversed does not qualify for consideration. See Simms v. Warden, supra, 612.

In the present case, the petitioner, in both his principal brief and in his reply brief, failed to advance any arguments challenging the propriety of Justice Katz’s ruling. Moreover, the record before us does not include the transcript of the petitioner’s habeas trial. Instead of providing that transcript, the petitioner wrote a letter to this court, stating that “no transcript is deemed necessary to be ordered.”

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review.” (Citation omitted; internal quotation marks omitted.) Fuller v. Commissioner of Correction, 66 Conn. App. 598, 602, 785 A.2d 1143 (2001); see also Practice Book § 61-10. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a [habeas] court.” (Internal quotation marks omitted.) State v. Torres, 60 Conn. App. 562, 571, 761 A.2d 766 (2000), cert. denied, 255 Conn. 925, 767 A.2d 100 (2001). Under those circumstances, we only can speculate as to the existence of a factual predicate for the habeas court’s rulings. See Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608, 710 A.2d 190 (1998). “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 303, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001). On the basis of the foregoing reasons, we decline to review further the petitioner’s claims.

The denial of the petitioner’s petition for certification to appeal did not result from an abuse of discretion.

The appeal is dismissed.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63^ (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”


text:
    ROBERT W. KING v. COMMISSIONER OF CORRECTION
    (AC 21908)
    Mihalakos, Flynn and Hennessy, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      William A. Snider filed a brief for the appellant (petitioner).

      Scott J. Murphy, state’s attorney, Melissa L. Streeto, special deputy assistant state’s attorney, Mary Rose Palmese, supervisory assistant state’s attorney, and Louis J. Luba, Jr., assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Robert W. King, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly failed to conclude that his trial counsel was ineffective during plea negotiations and that prejudice resulted to the petitioner. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant. In connection with acts he was alleged to have committed against his live-in girlfriend on July 30,1996, the petitioner was charged with unlawful restraint in the first degree in violation of General Statutes § 53a-95, assault in the second degree in violation of General Statutes § 53a-60, breach of the peace in violation of General Statutes § 53a-181 and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70. After he rejected two plea offers and jury selection for a trial had commenced, the petitioner pleaded guilty to a substitute information charging him with assault in the second degree in violation of § 53a-60 (a) (1), kidnapping in the second degree in violation of General Statutes § 53a-94 (a), and attempt to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70a (a) (2) and (3). Although he was exposed to a potential forty-five years incarceration, the petitioner, after being canvassed by the court, received a sentence of only eight years imprisonment, five of which were mandatory. On April 13, 2000, he filed an amended petition for a writ of habeas corpus in which he alleged that his trial counsel was ineffective in various respects during the plea negotiations. After a hearing on October 3 and 26,2000, the court denied the petition and granted certification to appeal to this court.

We first note the applicable standard of review. “Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review; Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147, 747 A.2d 1058, cert. denied, 253 Conn. 920, 755 A.2d 215 (2000); [wjhether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, 61 Conn. App. 55, 58, 762 A.2d 491 (2000).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, supra, 466 U.S. 686. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . Pretrial negotiations impheating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system . . . .” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 61 Conn. App. 58-59.

“In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992); Daniel v. Commissioner of Correction, [57 Conn. App. 651, 664, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000)]. Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, 466 U.S. 694.” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 61 Conn. App. 59. With regard to claims arising from the plea negotiation process, the petitioner must “show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Id., quoting Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. Denby v. Commissioner of Correction, 66 Conn. App. 809, 813, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).

The petitioner makes a number of claims of ineffective assistance, each of which merits only brief discussion. First, the petitioner claims that his trial counsel was ineffective in failing to investigate and to advise him as to a possible intoxication defense. Because the court’s memorandum of decision is devoid of any findings or analysis on that issue, and because the petitioner did not seek an articulation, the record is inadequate and we cannot review his claim. See, e.g., Gipson v. Commissioner of Correction, 67 Conn. App. 428, 435, 787 A.2d 560 (2001); Adorno v. Commissioner of Correction, 66 Conn. App. 179, 187-88 n.3, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).

The petitioner claims next that his counsel was ineffective in failing to advise him accurately regarding the mandatory portion of the sentence. In denying that claim, the court focused on the prejudice prong of the Strickland analysis. The court concluded that the petitioner had not demonstrated prejudice because during the plea canvass, the sentencing court fully apprised him of the nature of the sentence that he would receive pursuant to his plea and of the forty-five year sentence that he could receive after a trial. The petitioner thereafter stated that he did not want to continue to trial. We agree with the court’s conclusion that in light of the foregoing, the petitioner failed to demonstrate that it was reasonably probable that but for counsel’s alleged inaccurate advice, he would have chosen to proceed to trial rather than to plead as he did.

The petitioner also claims that counsel was ineffective for failing to advise him of his right to seek review of his sentence. The trial court found that the petitioner had waived his right to seek review in this instance.

“[A] ‘plea agreement,’ for the purpose of excluding sentence review under [General Statutes] § 51-195, requires that the defendant and the state’s attorney agree to a recommendation of a specific term of years of incarceration, without a reservation by the defendant of the right to argue for a lesser sentence. Any reservation of the right to argue for a lesser sentence affords the court the very discretion that the statute intended to monitor.” State v. Anderson, 220 Conn. 400, 407, 599 A.2d 738 (1991).

We agree with the court that in this case, the right to seek review did not apply because the petitioner’s sentence resulted from the court’s acceptance of a plea agreement, pursuant to which the petitioner waived the right to argue for a lesser sentence. See General Statutes § 51-195; State v. Anderson, supra, 220 Conn. 407.

The petitioner claims last that his counsel was ineffective for failing to advise him regarding his right to appeal from his conviction. There is no constitutional mandate that to provide reasonably competent assistance, defense counsel always must inform a criminal defendant of the right to appeal from the judgment rendered after the acceptance of a guilty plea. Ghant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000). Instead, counsel has a constitutional obligation to advise a defendant of appeal rights “when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id. In this case, it is not contested that the petitioner did not express any interest in appealing. Further, the petitioner has not demonstrated any defects or irregularities in the plea negotiation and acceptance process that suggest that an appeal would have been anything but frivolous. The court properly rejected the petitioner’s claim.

The judgment is affirmed.

       The petitioner pleaded guilty to the first two charges. He pleaded guilty to the third charge pursuant to the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Nonetheless, our review of the record discloses virtually nothing that supports the notion that an intoxication defense would have been successful and, thus, that the petitioner was prejudiced by his counsel’s failure to pursue that defense. We note that although the habeas court did not allow the petitioner to testily about the events of July 30,1996, he has not appealed from that evidentiary ruling.


author: PETERS, J.

text:
    VANESSA J. DOUCHETTE SEVASTIAN v. LEMUEL B. SEVASTIAN ET AL.
    (AC 22622)
    Lavery, C. J., and West and Peters, Js.
    Argued September 10 —
    officially released November 19, 2002

      Joseph T. Coppola, for the appellant (plaintiff).

      Elizabeth Conway, with whom, on the brief, were MarkR. Kravitz and Erika L. Amarante, for the appellee (defendant Mashantucket Pequot Tribe).
   Opinion

PETERS, J.

As a matter of federal law, Native American tribes are not subject to suit in state court unless Congress authorizes suit or the tribe unequivocally waives its sovereign immunity. The issue in this case is whether an Indian tribe waives its immunity from state court tort actions by purchasing property outside the reservation. The trial court dismissed the plaintiffs tort action against the tribe. It concluded that the purchase of off-reservation property does not constitute a waiver of tribal immunity. We agree.

On August 31, 2001, the plaintiff, Vanessa J. Douchette Sevastian, brought an action for damages against the defendants, Lemuel B. Sevastian and the Mashantucket Pequot Tribe (tribe). In her complaint, the plaintiff alleged that Lemuel Sevastian invited her onto property, owned by the tribe, located off the reservation at 81 Stoddards Wharf Road in Ledyard. The plaintiff further averred that Lemuel Sevastian kept a dog on the property and that the dog, unprovoked, had attacked her and had caused her serious injury. The plaintiff claimed that both defendants are hable for her injuries under General Statutes § 22-357 and common-law negligence.

On September 21, 2001, the tribe filed a motion, pursuant to Practice Book § 10-30, to dismiss counts three and four of the complaint. The tribe claimed that the court lacked subject matter jurisdiction because the tribe had sovereign immunity from the plaintiffs suit. On December 10, 2001, the trial court granted the motion to dismiss. The plaintiff now appeals from the trial court’s dismissal of her action against the tribe.

“It is well established that [i]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). A challenge to the jurisdiction of the court presents a question of law and our review is plenary. Lawrence Brunoli, Inc. v. Branford, supra, 410.

In support of her appeal, the plaintiff argues that the tribe waived its immunity by purchasing property outside the borders of the reservation. The plaintiff also argues that, as a matter of policy, the tribe should be subject to suit because the tribe enjoys the protection of state substantive law when it sues in state court.

The tribe contends that the plaintiffs appeal is defective both procedurally and substantively. First, the plaintiff did not provide the court with an adequate record, specifically the trial court’s memorandum of decision. Second, the appeal is without merit because the United States Supreme Court and our Supreme Court have rejected similar arguments. See Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998); Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 52-54. We agree with the tribe on both contentions.

As a procedural matter, we are persuaded that the record in this case is inadequate for review. The trial court neither prepared a written memorandum of decision nor signed a transcript of its oral decision, as required by Practice Book § 64-1. It is the responsibility of the appellant to provide an adequate record for review. Practice Book § 61-10; Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746, cert. denied, 245 Conn. 923, 717 A.2d 239 (1998). In the absence of an adequate record, we cannot review the plaintiffs appeal properly. See Honan v. Dimyan, 52 Conn. App. 123, 126, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999).

Even if we were to consider the merits of the plaintiffs appeal, the trial court’s judgment would stand. We agree with the tribe that it did not waive its immunity by purchasing off-reservation property.

On appeal, the plaintiff makes two arguments. She claims that (1) the tribe is subject to suit because it purchased off-reservation property, and (2) the tribe waived its sovereign immunity because it has initiated actions in state court.

“[A]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity . . . and the tribe itself has consented to suit in a specific forum. . . . Absent a clear and unequivocal waiver by the tribe or congressional abrogation, the doctrine of sovereign immunity bars suits for damages against a tribe. . . . However, such waiver may not be implied, but must be expressed unequivocally.” (Citations omitted; internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 53-54.

The United States Supreme Court has addressed the question of whether an Indian tribe’s sovereign immunity is dependent upon the locus of the tribal activities. In Kiowa Tribe, the Indian tribe purchased stock issued by a nonmember coiporation. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., supra, 523 U.S. 753. The transaction was executed off the reservation. Id., 754. The tribe subsequently defaulted and the corporation brought suit in Oklahoma state court. Id. The Oklahoma Court of Civil Appeals affirmed the trial court’s decision that an Indian tribe is subject to suit in state court for breaches of contract involving ofireservation commercial conduct. Id.

The United States Supreme Court reversed. It held that tribal immunity applies to tribal activities occurring on or off the reservation. Id., 760. The court further concluded that the immunity doctrine does not distinguish between tribal activities that are commercial or governmental in nature. Id.

The plaintiff attempts to distinguish Kiowa Tribe of Oklahoma from the present case by arguing that it would be unjust to extend tribal immunity to cover state tort actions. In Kiowa Tribe of Oklahoma, however, the Supreme Court addressed tribal immunity within the context of tort actions. The court explained that “[i]n our interdependent and mobile society . . . tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. ... In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.” (Citations omitted; emphasis added.) Id., 758. The court concluded as it did in full recognition of the adverse effect of tribal immunity on tort victims. Id.

The plaintiffs second argument is a claim that the tribe is not immune from suit because it can and does resort to state court for legal redress. The United States Supreme Court has addressed this argument as well. In Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986), the court struck down a North Dakota statute conditioning an Indian tribe’s access to state court on its waiver of any claim raised by a nonmember against the tribe. Id., 893. The court observed that “[tjhe perceived inequity of permitting the Tribe to recover from a non-Indian for civil wrongs in instances where a non-Indian allegedly may not recover against the Tribe simply must be accepted in view of the overriding federal and tribal interests in these circumstances, much in the same way that the perceived inequity of permitting the United States or North Dakota to sue in cases where they could not be sued as defendants because of their sovereign immunity also must be accepted.” Id.

In conclusion, the doctrine of tribal sovereign immunity protects Native American tribes from state tort actions occurring on off-reservation land owned by the tribe. The plaintiff has failed to establish that Congress abrogated the tribe’s immunity or that the tribe waived its immunity from such actions in state court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 22-357 provides in relevant part: “If any dog does any damage to either the body or property of any person, the owner or keeper . . . shall be liable for such damage, except when such damage has been occasioned to the body or property of aperson who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. . . .”

       The motion to dismiss addressed counts three and four of the complaint because the first two counts were directed at Lemuel Sevastian.

       Both federal and state law recognize the tribe and its reservation. See 25 U.S.C. §§ 1751 to 1759; General Statutes § 47-63.


text:
    CAROL PEREZ v. COMMISSIONER OF CORRECTION
    (AC 21514)
    Lavery, C. X, and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      Alan E. Dillon, special public defender, filed a brief for the appellant (petitioner).

      Kevin T. Kane, state’s attorney, and Denise B. Smoker and Jo Anne Sulik, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Carol Perez, appeals from the judgment of the habeas court denying her petition for certification to appeal from its judgment dismissing her petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying her certification to appeal and that it improperly concluded that her trial counsel was not ineffective. We dismiss the petitioner’s appeal.

The following facts and procedural history are pertinent. On August 24, 1995, the petitioner was arrested and charged with one count of risk of injuiy to a child in violation of General Statutes § 53-21 and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a. The charges stemmed from an incident that occurred about thirteen months earlier, when the petitioner was baby-sitting the victim. On July 21, 1995, during an interview with the police, the petitioner confessed to the acts alleged by the victim and underlying the subsequent charges.

In May, 1997, the petitioner’s case was referred to attorney Elisa L. Villa of the public defender’s office. Thereafter, the matter was scheduled for trial and, because the petitioner claimed that she had been threatened at the police interview, Villa filed a pretrial motion to suppress the petitioner’s confession. On April 15, 1998, during jury selection, the petitioner, after considering Villa’s advice regarding her options, entered a plea of nolo contendere to the risk of injury charge. The state had agreed to nolle the sexual assault charge, and the trial judge had indicated that he would not sentence the petitioner to more than two years imprisonment if she pleaded nolo contendere. On May 7, 1998, the petitioner was sentenced to five years imprisonment, execution suspended after two years, and five years probation.

After serving the mandatory portion of her sentence, the petitioner was released from incarceration and, on September 21, 2000, filed an amended petition for a writ of habeas corpus alleging that Villa’s representation had been ineffective in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. She claimed, among other things, that Villa was ineffective in advising her to plead nolo contendere rather than seeking a hearing on the motion to suppress and proceeding to trial. The court held a hearing on the amended petition on October 3 and 13, 2000, and thereafter dismissed the petition and denied certification to appeal. This appeal followed.

“To prevail on an appeal from the habeas court’s denial of a petition for certification to appeal, the petitioner must make a substantial showing that he has been denied a state or federal constitutional right and that in denying certification to appeal, the habeas court clearly abused its discretion and that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); 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). To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Dwyer v. Commissioner of Correction, 69 Conn. App. 551, 552-53, 796 A.2d 1212, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002).

The petitioner’s underlying constitutional claim implicates her right to effective assistance of counsel. “A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system . . . .” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, 61 Conn. App. 55, 58-59, 762 A.2d 491 (2000).

“[T]o prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. . . . Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, 466 U.S. 694.” (Citations omitted; internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 61 Conn. App. 59.

The court focused largely on the deficient performance element of the Strickland test and concluded that it was not satisfied. The evidence, cited by the court in its memorandum of decision, established that the petitioner would have had to clear substantial hurdles to prevail on the motion to suppress her confession and at trial, and that so proceeding involved significant risks, namely, a potential ten year sentence and required registration as a sex offender. For example, the petitioner testified that at the interview during which she confessed, the police threatened her, she was disoriented from prescription medications, and she believed that she was in custody and not free to leave. Her version of events, however, was contested strongly by the testimony of the police officer who took her confession, her signed volunteer interview form and her signed confession, and by other circumstances, i.e., she arrived at the police station via her own transportation, was not detained following the interview and was not arrested until more than one month later.

Moreover, the petitioner did not present any medical evidence regarding the effects of her various medications, nor did she call to testify other officers who had witnessed the circumstances of her confession. The court also found Villa credible. She testified as to her concerns about proceeding to trial and how she had conveyed those concerns to the petitioner. Specifically, in investigating the case, Villa learned that the victim was a credible witness and that there would be substantial constancy of accusation testimony. Furthermore, given the petitioner’s criminal record and history of psychological problems, Villa had concerns about her ability to testify credibly.

The court’s conclusion that the petitioner did not establish that Villa’s performance was deficient was based largely on its evaluation of the witnesses’ testimony. We note in that regard that “[t]his 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. . . . Colon v. Commissioner of Correction, 55 Conn. App. 763, 765, 741 A.2d 2 (1999), cert. denied, 252 Conn. 921, 744 A.2d 437 (2000). The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. Velez v. Commissioner of Correction, 57 Conn. App. 307, 309, 748 A.2d 350 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219.” (Internal quotation marks omitted.) Dwyer v. Commissioner of Correction, supra, 69 Conn. App. 561-62.

On the basis of our review of the evidence submitted at the hearing and our deference to the court’s factual findings, we cannot state that the issue of Villa’s competence was debatable, that the court could have resolved it differently or that it merits further proceedings. Accordingly, we conclude that the court, in denying the petition for certification to appeal, did not abuse its discretion such that an injustice has been done.

The appeal is dismissed.

       The petitioner initially was represented by attorney John S. Papa, Jr., of the public defender’s office.

       The petitioner does not pursue her other claims on appeal.


text:
    OCWEN FEDERAL BANK, FSB v. ANDREW L. THACKER ET AL.
    (AC 22846)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      James M. Nugent filed a brief for the appellant (Olhe F. Thacker).

      Marjorie R. Gruszkiewicz filed a brief for the appellee (substitute plaintiff Chase Manhattan Bank).
   Opinion

PER CURIAM.

The defendant Olhe F. Thacker appeals from the judgment of the trial court denying her motion to reopen the judgment of strict foreclosure that was rendered on January 22, 2002. We affirm the judgment of the trial court.

The following background information is relevant to our resolution of the defendant’s appeal. The plaintiff, Ocwen Federal Bank, FSB, commenced an action to foreclose a mortgage executed by Andrew L. Thacker and Ollie F. Thacker that secured a note in the original principal amount of $189,850. The Thackers defaulted as a result of nonpayment on October 1, 1996. On November 29, 1999, the court rendered a judgment of strict foreclosure against the Thackers, scheduling the first law day for February 7, 2000. On January 4, 2000, the Thackers filed a motion to open and to set aside the judgment, and to extend the law day. On February 7, 2000, the court granted the motion, extending the law day to November 13, 2000. On October 31, 2000, the Thackers again filed a motion to open and to set aside the judgment of foreclosure, and to extend the law day. The court granted that motion as well, and the law day was extended to July 30, 2001. On July 6, 2001, the Thackers filed a motion, for the third time, to open the judgment of foreclosure and to extend the law day. The court extended the law day to October 1, 2001.

Ollie Thacker thereafter filed a chapter 13 bankruptcy petition, staying the running of the law days. The bankruptcy petition was dismissed on October 26, 2001. The court thereafter rendered another judgment of strict foreclosure on January 22, 2002, and set a new law day of March 11, 2002.

On March 11,2002, the defendant again filed a motion to have the judgment of foreclosure reopened and the law day extended. In support of that final motion, the defendant attached an affidavit claiming that the servicer of the loan secured by the mortgage, Litton Loan Servicing LP (Litton), had offered to assist her in avoiding foreclosure of the subject property. The affidavit stated that although the defendant had responded to the offer of assistance by sending the required documents to Litton by guaranteed overnight delivery, Litton claimed to have not received them. The defendant then requested an extension to take such steps as necessary to avoid strict foreclosure on the property. The defendant also claimed an equity of approximately $25,000 in the property that would be lost if the plaintiff were allowed to foreclose. The court denied that motion on March 11, 2002. This appeal followed.

“[A] foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Federal National Mortgage Assn. v. Dicioccio, 51 Conn. App. 343, 344-45, 721 A.2d 569 (1998). This court must make every reasonable presumption in favor of the trial court’s decision when reviewing a claim of abuse of discretion. Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. Connecticut National Bank v. Zuckerman, 29 Conn. App. 541, 545, 616 A.2d 814 (1992).” (Internal quotation marks omitted.) First Union National Bank v. Bonito, 52 Conn. App. 52, 54-55, 725 A.2d 393, cert. denied, 249 Conn. 901, 732 A.2d 775 (1999).

In this appeal, we cannot conclude that the court abused its discretion. The defendant was successful in obtaining extensions of the law day on five separate occasions. Although the defendant claimed that she was attempting to work out an arrangement with the servicer for the debt whereby she could retain the property, the only evidence presented to that effect was an unsubstantiated claim in an affidavit that the defendant had sent relevant documents to the servicer, but that the servicer claimed to have not received them.

Moreover, the court found that the defendant already had more than one year to accomplish those things for which she had sought extensions of the law day. At the hearing on the motion, the defendant conceded that it did not appear as if the debt servicer was going to assist her in avoiding foreclosure. We conclude that the court reasonably could have concluded that granting yet another extension of the law day would serve no purpose other than to delay the inevitable.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

       The named defendant, Andrew L. Thacker, has not joined in this appeal. We therefore refer in this opinion to Ollie Thacker as the defendant.

       On March 12,2001, Chase Manhattan Bank was substituted as the plaintiff on the basis of a March 17, 2000 assignment to it of the interest of the plaintiff, Ocwen Federal Bank, FSB, in the action.

       From the record, it appears that the motion was filed by Ollie Thacker individually and that Andrew Thacker did not join in that motion.


author: BISHOP, J.

text:
    DENNIS SMITH v. CONNECTICUT LIGHT AND POWER COMPANY
    (AC 21812)
    Flynn, Bishop and West, Js.

      Argued September 9 —
    officially released November 19, 2002

      Kenneth W. Williams, for the appellant (plaintiff).

      Richard S. Bartlett, for the appellee (defendant).
   Opinion

BISHOP, J.

This is an appeal from the decision by the workers’ compensation review board (board) affirming the determination by the workers’ compensation commissioner (commissioner) that the plaintiff, Dennis Smith, did not sustain a compensable injury. We affirm the decision of the board.

The commissioner found the following pertinent facts. The plaintiff has been an employee of the defendant, Connecticut Light & Power Company, since 1971, when he was hired as a gas fitter. In 1985, the plaintiff sustained a compensable back injury that kept him out of work for three months. When he returned, he was assigned to light duty, though he claimed the work was no different from his usual tasks. He then received notice that he had ninety days to find another position within the company or to face termination because he no longer was able to perform the duties of his job.

On September 29, 1986, the plaintiff was reassigned to the position of meter and service mechanic’s helper, a job that paid less than his former job, though he was promoted approximately two and one-half years later. During 1990, the plaintiff sustained a compensable injury to his knee and was out of work for approximately three months. When he returned, he was able to perform his job with the aid of a knee brace.

The defendant thereafter assigned the plaintiff to work in the Bristol area, where, according to his testimony, he remained for two years despite requests to be rotated to different areas in which to work. His supervisor, Michael Nestico, reassigned the plaintiff to the Meriden region, where, according to the plaintiffs testimony, he was required to disconnect the electrical service of disgruntled friends and acquaintances who had failed to pay their electric bills. When the plaintiff requested not to be assigned to disconnect his godchild’s service, he was not required to do so. Also, although his requests to be reassigned to another area were not granted, his requests for reassignment of certain work orders that presented a conflict were granted.

At the time of the injury at issue, the plaintiff had medical restrictions regarding lifting and climbing stairs. In addition, the defendant did not allow the plaintiff to work overtime because it would require that he work by himself, and the defendant did not want to place him in a situation that exceeded those restrictions.

On September 17, 1992, at approximately 2:45 p.m., the plaintiff was given two assignments to reconnect electrical service. His work shift, however, ended at 3:30 p.m. Because he was ineligible for overtime, he reported back to the office at 3:55 p.m., having failed to complete the two reconnects. The plaintiff placed the two work orders in the “incomplete” pile, marked them “CGI” (“can’t get in”) and went home.

When the plaintiff reported to work the next day, September 18, Nestico reprimanded him for failing to inform anyone that he had not completed the two reconnects. Nestico told him that letters of reprimand might be placed in his personnel file regarding the incident, as well as a prior incident in which he had been seen traveling outside his assigned work area.

The plaintiff testified that he believed that three letters of reprimand in a personnel file meant that his employment could be terminated. As a result, he became angry during his conversation with Nestico, swore, kicked Nestico’s desk, slammed the door to Nestico’s office, left the building to go to his car, and then came back and stared at Nestico through an office window.

After leaving the building, the plaintiff immediately went to see his family physician, who prescribed medication and referred him to a psychiatrist. The plaintiff believed that other workers with compensable injuries had received better treatment than he had received. He also thought his employer had been seeking to terminate his employment because of his past workers’ compensation claims. There was no evidence, however, that the plaintiff had sought a remedy through his union at that time.

Thomas Kennedy, a psychiatrist, diagnosed the plaintiff with posttraumatic stress disorder as a result of the cumulative effect of a series of events that caused the plaintiff to fear losing his job, culminating with the events of September 18, 1992. An independent examiner, Donald Grayson, evaluated the plaintiff and diagnosed him as suffering from major depression and adjustment disorder secondary to perceived work-related stress. He explained that the plaintiff might have had difficulty in determining the severity and significance of certain statements due to his limited intellectual capacity. Michael Tulco, a neuropsychologist, evaluated the plaintiff and concluded that he is an individual of modest intelligence who has difficulty understanding ambiguous situations and who perceived himself helpless in the face of unfair criticism, which, in conjunction with the pressures he felt at work, led to his outburst.

The plaintiff remained out of work from September 18, 1992, until January 26, 1994, when the defendant terminated his employment. The plaintiff filed a claim for compensation for his “mental-mental” injury, i.e., a mental injury caused by nonphysical stimuli. He also made allegations of retaliatory discrimination, claiming that the defendant had retaliated against him because he had filed two prior workers’ compensation claims. He further claimed that this manifested itself in the form of harsher working conditions for him than for other similarly situated employees. The commissioner bifurcated those two claims, refusing to hear evidence on discrimination and stating that the issue was better left for a separate determination at the conclusion of the compensability claim.

With respect to the compensation claim, the commissioner found that the plaintiff suffered from depression and adjustment disorder, but found that the plaintiffs injury was not compensable. The commissioner reasoned that even though the injury occurred during the course of the plaintiffs employment, it did not arise out of his employment because he was not subjected to any greater stimuli than those of everyday employment life, despite his perceptions that the actions of the defendant amounted to discrimination and an effort to terminate his employment. The commissioner also found that the plaintiff had failed to prove that he was a victim of discrimination. The board affirmed the commissioner’s findings, and this appeal followed.

On appeal, the plaintiff argues that the board and the commissioner (1) improperly found that the plaintiff did not suffer a compensable injury and made conclusions of law that were not supported by his findings of fact, and (2) improperly made findings with respect to the retaliatory discrimination claim.

When the decision of a commissioner is appealed to the board, the board is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. See Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). “The 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.” Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). Our scope of review of the actions of the board is similarly limited. DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 (1990), cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

I

ARISING OUT OF EMPLOYMENT

The plaintiff first claims that the commissioner improperly found that he did not sustain an injury that is compensable under the Workers’ Compensation Act, General Statutes § 31-275 et seq. The plaintiff raises two related issues. First, he alleges that the commissioner’s factual findings were erroneous. Second, he alleges that the commissioner’s legal conclusions were erroneous. We analyze those issues together and conclude that the commissioner properly found that the plaintiffs injury did not arise out of his employment.

The commissioner found that the plaintiff sustained a mental injury as a result of his unilateral misperception of the defendant’s actions. He concluded that the plaintiff mistakenly believed that the defendant had discriminated against him in an effort to terminate his employment. As a result, the commissioner found that the plaintiff had failed to prove that the injury arose out of his employment.

To recover under the Workers’ Compensation Act, a plaintiff must prove that the claimed injury is connected causally to the employment by demonstrating that the injury (1) arose out of the employment and (2) occurred in the course of the employment. Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984). The commissioner found that the plaintiffs injury occurred during the course of his employment, but that it did not arise out of his employment.

Our Supreme Court has held that “[a]n injury arises out of an employment when it ... is the result of a risk involved in the employment or incident to it, or to the conditions under which it is required to be performed. The injury is thus a natural or necessary consequence or incident of the employment or of the conditions under which it is carried on. . . . [An] accidental injury or an occupational disease arising out of an employment is one which is causally traceable to the employment.” (Citation omitted; internal quotation marks omitted.) Ohmen v. Adams Bros., 109 Conn. 378, 384-85, 146 A. 825 (1929). The finding that an injury arises out of employment is a factual determination to be made by the trier, the burden of proof being upon the plaintiff. See Spatafore v. Yale University, 239 Conn. 408, 417-18, 684 A.2d 1155 (1996).

We hold that the commissioner’s findings of fact were not clearly erroneous. He found that the plaintiffs injury did not result from unusually stressful or extraordinary conditions of his employment, but rather from the plaintiffs misperception of the significance and severity of those events. His injury was not the result of risks involved in, or incident to, his employment or a result of the conditions under which it was to be performed. See Ohmen v. Adams Bros., supra, 109 Conn. 385. The commissioner found that the plaintiff had experienced no event any more stressful than those encountered in the everyday workplace. As such, the commissioner concluded that the plaintiffs injury did not arise out of his employment and was, therefore, not compensable. We hold that this conclusion did not result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. See Adzima v. UAC/Norden Division, supra, 177 Conn. 118.

II

THE DISCRIMINATION CLAIM

The plaintiff next claims that the commissioner improperly made findings regarding the discrimination claim without allowing the plaintiff to introduce evidence on the issue. We disagree.

During the hearings, the commissioner decided to bifurcate the plaintiff’s compensability and discrimination claims, and to make findings regarding the discrimination claim after the conclusion of the compensability issue. In his findings, the commissioner determined that the plaintiff had failed to establish, by a preponderance of the evidence, that he was discriminated against or treated differently from other employees on the basis of his injuries.

The plaintiff, in his brief to this court, claims that he had alleged retaliatory discrimination under General Statutes § 31-290a in his initial claim to the workers’ compensation commission. Our review of the record has failed to disclose the existence of a complaint filed with the workers’ compensation commission, as required by § 31-290a (b) (2). Even if we assume arguendo that the plaintiff had presented the discrimination issue as part of his claim for compensation, we note that the plaintiff alleges that the commissioner improperly considered the discrimination claim after bifurcating it from the claim for compensation and that bifurcation effectively precluded any evidence of discrimination from being introduced at the compensability hearings. Such evidence, it is contended, would have shed light as to the truth of the plaintiffs feelings and perception of his work conditions.

The plaintiff is precluded from raising that issue for the first time on appeal. When the commissioner issued his findings, he specifically found that the plaintiff had failed to establish that the defendant had discriminated against him. That issue should have been directly raised before the commissioner through either a motion for correction of findings; Regs., Conn. State Agencies § 31-301-4; or through a motion for rectification or articulation. Practice Book § 66-5.

The plaintiff followed neither approach and instead raises the issue for the first time on appeal. Because the plaintiff failed to pursue the issue before the commissioner, he is precluded from doing so on appeal. See Practice Book § 60-5. The plaintiff has offered no compelling reason for us to deviate from the requirement that to consider that issue, it should have been raised first before the commissioner.

The decision of the worker’s compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff previously had received two letters of reprimand, the first on August 7, 1984, for not being “on call,” and another, one week later, for sustaining an accident with a company vehicle.

       The plaintiff subsequently was reinstated on June 6, 1995, after a union grievance and arbitration proceeding.

       Counsel for both parties briefed the question of whether mental-mental injury claims are compensable. We do not need to reach that issue because the commissioner’s finding that the injury did not arise out of the plaintiffs employment is dispositive regardless of the type of injury.

       General Statutes § 31-290a provides in relevant part: “(a) No employer . . . shall dischar ge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits ....
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court ... or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. . . .” (Emphasis added.)

       Section 31-301-4 of the Regulations of Connecticut State Agencies provides in relevant part: “If the appellant desires to have the finding of the commissioner corrected he must. . . file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for . . . .” (Emphasis added.)

       Practice Book § 66-5 provides in relevant part: “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. ...”

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”