author: DiPENTIMA, C. J.

text:
    STANLEY FOOTE v. COMMISSIONER OF CORRECTION
    (AC 31008)
    DiPentima, C. J., and Harper and SchaHer, Js.

      Argued September 16
    officially released November 30, 2010

      Wayne A. Francis, special public defender, for the appellant (petitioner).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The dispositive issue in this appeal is whether the petitioner’s continued silence after the expiration of the 120 day statutory deadline for the rendering of judgment effected a waiver of the requirement imposed by General Statutes § 51-183b. In his appeal from the denial of his petition for a writ of habeas corpus, the petitioner, Stanley Foote, claims that the habeas court abused its discretion when it denied his motion to set aside the judgment. We conclude that it did and, consequently, reverse the judgment of the habeas court and remand the case for a new trial.

The following facts and procedural history are relevant to the resolution of the petitioner’s appeal. In the underlying case, the petitioner had been charged with possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of cocaine in violation of General Statutes § 2 la-279 (a) and operating a motor vehicle with a suspended license in violation of General Statutes § 14-215 (a). Following the court’s denial of his motion to suppress the narcotics evidence, the petitioner entered a conditional nolo contendere plea to the charge of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b), reserving his right to appeal from the denial of his motion to suppress. The petitioner appealed from the denial of his motion to suppress, and this court affirmed the trial court’s judgment in State v. Foote, 85 Conn. App. 356, 857 A.2d 406 (2004), cert. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005).

Thereafter, the petitioner filed a petition for a writ of habeas corpus alleging the ineffective assistance of trial and appellate counsel. A trial on the merits was held and at the close of trial on August 28, 2008, the habeas court took the matter under advisement. The record reveals that neither party made any additional filings or requests, nor did the court communicate with either party. The habeas court rendered its judgment denying the petition on March 16, 2009, 200 days after the completion of the trial.

In its decision, the habeas court acknowledged, in a footnote, that its judgment was not rendered within 120 days of the completion of trial in apparent violation of § 51-183b. The court concluded, however, that because neither party had objected prior to the decision’s being filed, it was able to render a late decision. On March 25, 2009, nine days after judgment had been rendered, the petitioner filed a motion to set aside the judgment, arguing that he had not waived the requirement of § 51-183b. The court summarily denied the petitioner’s motion on April 15, 2009. This appeal followed.

On appeal, the petitioner contends that he did not waive the 120 day requirement of § 51-183b or consent to the habeas court’s late judgment. As a result, the petitioner asserts that the habeas court abused its discretion when it denied his motion to set aside the judgment that he filed nine days after the habeas court rendered its untimely decision. We agree.

We begin by setting forth our standard of review. “Habeas corpus is a civil proceeding.” Collins v. York, 159 Conn. 150,153, 267 A.2d 668 (1970). “The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Bove v. Bove, 103 Conn. App. 347, 351, 930 A.2d 712 (2007).

Our Supreme Court has stated that “[i]n past cases interpreting § 51-183b and its predecessors, we have held that the defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. . . . We have characterized a late judgment as voidable rather than as void . . . and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties.” (Citations omitted.) Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). “[A]n unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void.” Id., 692-93.

As a preliminary matter, we note that it is undisputed that the habeas court’s decision rendered on March 16, 2009, was outside the 120 day limitation imposed by § 51-183b. This late judgment, however, was merely voidable when rendered because, as noted in footnote 2 of the habeas court’s decision, neither party had objected prior to the judgment being issued. Nine days after the judgment was issued, the petitioner filed a motion to set aside the judgment, which the court denied. Thus, the critical inquiry before us is whether the petitioner’s motion to set aside the judgment voided the habeas court’s judgment.

Rearranging the principles set forth in Waterman v. United Caribbean, Inc., supra, 215 Conn. 692-93, our syllogism becomes: (1) a late judgment is voidable, not void, (2) a court maintains personal jurisdiction over the parties until and unless they object, (3) but a late judgment may be waived by conduct or consent, (4) therefore, absent waiver, avoidable judgment becomes void upon objection. Because the petitioner’s motion to set aside the judgment was an objection, the dispositive issue, as correctly identified by both parties, is one of waiver. The petitioner claims that he did nothing to consent to the court’s late judgment and that his mere silence prior to the court’s rendition of the judgment could not be a waiver of the requirement of § 51-183b. In reply, the respondent, the commissioner of correction, contends that the petitioner’s eighty day period of continued silence after the expiration of the 120 day statutory deadline but prior to the filing of the late judgment was implied consent to the habeas court’s late judgment. Therefore, according to the respondent, the petitioner impliedly waived the 120 day requirement of § 51-183b, thereby validating the habeas court’s voidable judgment. We agree with the petitioner.

“That the lateness of the decision of a case may be waived by the conduct of a party there can be no doubt.” Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952). “Waiver is the intentional relinquishment of a known right. . . . Intention to relinquish [must] appear, but acts and conduct inconsistent with intention [to assert aright] are sufficient.” (Citations omitted; internal quotation marks omitted.) Dichello v. Holgrath Corp., 49 Conn. App. 339, 349-50, 715 A.2d 765 (1998). Thus, “[w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Id., 350. “Whether conduct constitutes a waiver is a question of fact. . . . Our review therefore is limited to whether the judgment is clearly erroneous or contrary to law.” (Citation omitted; internal quotation marks omitted.) Ford v. Ford, 72 Conn. App. 137, 141-42, 804 A.2d 215 (2002).

“[A] waiver is not ordinarily to be inferred from the mere inaction of a party prior to the time the judge files with the clerk his memorandum of decision.” Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 538, 294 A.2d 573 (1972). “Implications from silence or inaction . . . import some duty or occasion to speak or act, and in order to imply consent that rendition of judgment . . . might be deferred beyond the limit of time imposed by statute, there must be found to exist some obligation on the part of the [parties] or their counsel either seasonably to admonish the trial judge that the statute must be complied with or, after the [time limit imposed by statute] and before judgment, to interpose objection to its entry thereafter. We find no justification for so far expending the duty of a party or his counsel. The impracticability, if not the impropriety, of the first course is obvious; as to the second, it seems that the most that can reasonably be required is objection seasonably made after the filing of the decision.” (Emphasis added.) Spelke v. Shaw, 117 Conn. 639, 646, 169 A. 787 (1933). Therefore, “[u]nless some situation develops which in reason requires the party to protest and he does not protest, or unless he consents to the delay either expressly or impliedly, as by agreeing to an additional hearing or by a tardy filing of his brief, no waiver will be spelled out.” Hurlbutt v. Hatheway, supra, 139 Conn. 263.

A review of the case law cited by both parties is consistent with such observations concerning waiver. In each of the cited cases, waiver was not based on silence per se but on some other act or conduct that either delayed the start of the 120 day deadline, created a duty to protest in the silent party or served as an affirmative act of waiver or consent. See, e.g., O.J. Mann Electric Services, Inc. v. Village at Kensington Place Ltd. Partnership, 99 Conn. App. 367, 374-75, 913 A.2d 1107 (2007) (plaintiff failed to object to court issued letter giving alleged erroneous 120 day deadline and plaintiff thereafter submitted brief beyond 120 day deadline he had claimed); Rowe v. Goulet, 89 Conn. App. 836, 845-46, 875 A.2d 564 (2005) (after 120 days but prior to rendition of late judgment plaintiff participated in hearing on damages and failed to object seasonably after late judgment rendered); Franklin Credit Management Corp. v. Nicholas, 73 Conn. App. 830, 836, 812 A.2d 51 (2002) (plaintiff failed to object to unsolicited trial brief submitted by defendant), cert. denied, 262 Conn. 937,815 A.2d 136 (2003); Dichello v. Holgrath Corp., supra, 49 Conn. App. 351-52 (after untimely judgment rendered, plaintiff filed motion to open judgment to submit additional evidence and thereafter failed to file seasonable objection to untimely decision); Ippolito v. Ippolito, 28 Conn. App. 745, 749, 612 A.2d 131 (start of 120 day deadline delayed by lack of objection to defendant’s unsolicited brief), cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

Likewise, these observations are consistent with “the clear intent of [§ 51-183b, which is] to place the onus on judges to decide cases in a timely fashion.” Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420, 426 A.2d 1324 (1980). “[A]s a practical matter, there is nothing that counsel can do to require the trial judge to comply with [§ 51-183b]. . . . Thus, the statute . . . attempts to balance judicial expediency with fairness to the parties and to reduce delays over which counsel have little, if any, control.” (Citations omitted.) Gordon v. Feldman, 164 Conn. 554, 556-57, 325 A.2d 247 (1973). “The salutary effect of [§ 51-183b] is to compel diligence and a prompt decision on the part of the judge who tried the case, and to avoid manifest disadvantages attendant on long delay in rendering judgment.” Id., 556.

Guided by these principles, we conclude that the court implicitly made a finding of waiver that was clearly erroneous. As established above, absent waiver, a party voids what is until then only a voidable judgment by objecting to it. The petitioner objected to the voidable decision by filing a motion to set aside the judgment; therefore, the denial of the petitioner’s motion to set aside the judgment could only have been made by finding waiver. The record, however, reveals that the only conduct that could serve as a basis for such waiver was the petitioner’s silence. The habeas trial record shows that the trial concluded on August 28, 2008. Thereafter, neither party submitted any additional filings or requests, and there was no activity on the file until March 16, 2009, when the court rendered its judgment. After judgment was filed, no other activity took place and the petitioner remained silent for nine days until, on March 25, 2009, he filed his motion to set aside the judgment.

The petitioner’s prejudgment silence, however, occurred while he was under no duty to speak or to protest. Because “the most that can reasonably be required is objection seasonably made after the filing of the decision”; Spelke v. Shaw, supra, 117 Conn. 646; the passage of time after the expiration of the 120 day statutory deadline but prior to the filing of the decision, even if significant, cannot, in and of itself, create a duty to speak. See, e.g., Connecticut Light & Power Co. v. Costle, supra, 179 Conn. 420 (passage of almost four years did not create duty to object prior to judgment being filed).

On the other hand, the petitioner’s postjudgment silence did occur while he was under a duty to protest. In this context, a party is duty bound to raise an objection “seasonably” after judgment is rendered. See Spelke v. Shaw, supra, 117 Conn. 646. The petitioner, however, raised a seasonable objection by filing his motion to set aside the judgment nine days after the habeas court had rendered its judgment. See, e.g., Connecticut Light & Power Co. v. Costle, supra, 179 Conn. 420 (objection filed ten days after judgment rendered is seasonable and no claim of waiver or consent tenable); Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89,104, 669 A.2d 620 (motion filed five days after judgment rendered is seasonable objection), cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996); compare Dichello v. Holgrath Corp., supra, 49 Conn. App. 352 (objection filed 280 days after judgment rendered not seasonable); Rowe v. Goulet, supra, 89 Conn. App. 845-46 (objection raised for first time on appeal not seasonable objection). The petitioner’s nine days of postjudgment silence, therefore, could not have effectuated a waiver of the requirement of § 51-183b.

Our careful review of the record reveals that the only evidence on which the habeas court made its implicit finding of waiver was the petitioner’s silence. Prior to rendition of judgment, however, the petitioner was under no duty to object. After judgment was rendered, the petitioner was under a duty to protest, and he did so by seasonably filing his motion to set aside the judgment nine days later. Under such circumstances, we cannot conclude that the petitioner’s silence was “the intentional relinquishment or abandonment of a known right or privilege, which is the cornerstone of a claim of waiver.” Citicorp Mortgage, Inc. v. Tarro, 37 Conn. App. 56, 61, 654 A.2d 1238 (1995). The habeas court’s finding of waiver was clearly erroneous and, accordingly, it was an abuse of discretion to deny the petitioner’s motion to set aside the judgment. A new trial is required.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The petitioner filed a “motion to void judgment” with the habeas court, in which he effectively requested to have the judgment rendered on March 16,2009, set aside. Accordingly, we treat the petitioner’s motion as a motion to set aside the judgment. See, e.g., Waterman v. United Caribbean, Inc., 215 Conn. 688, 690-91, 577 A.2d 1047 (1990) (challenge to court’s untimely decision pursuant to § 51-183b brought as motion to set aside judgment); Franklin Credit Management Corp. v. Nicholas, 73 Conn. App. 830, 812 A.2d 51 (2002) (same), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003); Cowles v. Cowles, 71 Conn. App. 24, 799 A.2d 1119 (2002) (same).

       Because we conclude that the petitioner did not waive the requirement of § 51-183b, we do not reach the merits of his claim that the habeas court improperly determined that he received effective assistance of counsel during his plea negotiations.

       The state nolled the remaining charges against the petitioner.

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

       The petitioner filed simultaneously a petition for certification to appeal and an application for waiver of fees, costs and expenses and appointment of counsel on appeal.

       The court granted simultaneously the petitioner’s petition for certification to appeal and application for waiver of fees, costs and expenses and appointment of counsel on appeal.

       We recognize that it has been stated that consent to a late judgment may “be implied . . . from the silence of the parties until the judgment has been rendered . . . (Emphasis added.) Lawrence v. Cannavan, 76 Conn. 303, 306, 56 A. 556 (1903); see also O.J. Mann Electric Services, Inc. v. Village at Kensington Place Ltd. Partnership, 99 Conn. App. 367, 372, 913 A.2d 1107 (2007); Rowe v. Goulet, 89 Conn. App. 836, 845, 875 A.2d 564 (2005). On several occasions, however, our Supreme Court has clarified that silence may be implied consent only when the silent party is faced with a duty to speak or to protest. See Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420, 426 A.2d 1324 (1980); Gordon v. Feldman, 164 Conn. 554, 556-57,325 A.2d 247 (1973); Bogaert v. Zoning Board of Appeals, supra, 162 Conn. 538; Hurlbutt v. Hatheway, supra, 139 Conn. 263; Spelke v. Shaw, 117 Conn. 639, 646, 169 A. 787 (1933).
      Thus, waiver of § 51-183b was found in O.J. Mann Electric Services, Inc. v. Village at Kensington Place Ltd. Partnership, supra, 99 Conn. App. 374, because the plaintiff proceeded without objection in the argument of the case by submitting a supplemental brief beyond the 120 day deadline he had claimed. Likewise, in Rowe v. Goulet, supra, 89 Conn. App. 845-46, waiver was found not because the party had simply remained silent but because the party actively participated in a hearing on damages prior to rendition of the late judgment and then, once judgment was rendered, remained silent when faced with an obligation to raise a seasonable objection.

       We are mindful that fidelity to judicial expediency likewise places a burden on a party to object seasonably after late judgment has been rendered. Thus, “a judgment rendered [beyond the statutory deadline] is irregular but not void. If no timely and appropriate advantage is taken of the delay, it will be assumed that the parties consented to it.” Borden v. Westport, 112 Conn. 152, 154, 151 A. 512 (1930); see also Gordon v. Feldman, 164 Conn. 554, 556-57, 325 A.2d 247 (1973) (“judicial economy dictates that the parties will be deemed to have consented to the delay if they fail to take timely and appropriate advantage of it”).

       Moreover, in footnote 2 of its decision, the habeas court recognized that prior to rendition of its judgment neither party had objected to the late decision and indicated that a court may imply consent from such conduct.

       We also note that the respondent essentially conceded in his brief to this court that the petitioner filed a seasonable objection by stating: “To be clear, this is not a case where we need to consider whether the timeliness of the petitioner’s objection filed after the late judgment is valid or even at issue . . . .” (Emphasis in original.)

       See Sanchez v. Prestia, 29 Conn. App. 157, 161-62, 612 A.2d 824 (“[t]he consequence of the trial court’s failure to render a decision within the statutory time limit is the revocation of the judgment eventually rendered, and the concomitant necessity for a new trial”), cert. denied, 224 Conn. 913, 617 A.2d 167 (1992).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. HERIBERTO LUIS GUZMAN
    (AC 30604)
    Beach, Robinson and Mihalakos, Js.

      Argued September 17
    officially released November 30, 2010

      Mary Beattie Schairer, for the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David R. Shannon, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Heriberto Luis Guzman, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1), one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (4), one count of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (5), two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1), three counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (4) and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that the trial court erred when it (1) instructed the jury regarding the element of general intent and (2) convicted him of two counts of conspiracy arising out of a single agreement in violation of the constitutional prohibition against double jeopardy. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. The charges at issue in this case arose from an altercation that occurred on August 2, 2004, at 11:30 p.m. at an outdoor basketball court at the Eden Drive housing complex in Danbury. Approximately one week before the altercation occurred, Rudy Ortiz believed that one or more of the victims in this case had struck him over the head with a bottle. In an attempt to exact retribution, on the afternoon of August 2, 2004, Ortiz orchestrated a plan in which several of his friends and relatives, including the defendant, would ambush and attack the victims at the Eden Drive basketball court. Ortiz solicited the help of some female friends to entice the victims to come to the basketball court under the guise of a party.

Later that same night, Ortiz and approximately twenty of his friends and relatives positioned themselves in locations surrounding the basketball court in a manner conducive to execute the ambush. At approximately 11:15 p.m., the five victims, Herbie Servil, Kenny Poteau, Clifford Cemilion, Stanley Bruno and Keven Louis, arrived outside of the basketball court and were greeted by the female friends whom Ortiz had solicited for help. The females escorted the five victims onto the enclosed basketball court, and they all began socializing.

Pursuant to Ortiz’ plan, two of his friends, Juan Macias and Ulises Collazo, approached Louis and asked him for “a light . . . .” Immediately thereafter, Macias struck Louis in the face, and Collazo began attacking one of the other victims. A large brawl then ensued in which Ortiz, the defendant, and several of Ortiz’ friends and relatives stormed into the basketball court and began attacking the victims, who were now trapped inside the basketball court. Upon entering the basketball court, the defendant approached Louis and shot him twice. The defendant then approached one of the victims who was attempting to climb over the fence and stabbed him multiple times in the back. A short time later, the attacks ended, and the assailants all ran out of the basketball court area and left the vicinity.

As a result of the attack, the victims suffered serious injuries. Louis, who was shot twice, remained in a hospital for approximately two months. Louis’ injuries required him to use a colostomy bag for six months, and a metal rod had to be inserted in his right hip, which extended down to his right knee. Bruno sustained twelve separate lacerations and a liver injury that did not require surgery. Servil suffered a penetrating injury to his back that resulted in a collapsed lung.

On April 18, 2008, the jury found the defendant guilty of nine of the ten counts with which he was charged. On June 6, 2008, the court sentenced the defendant to a total effective term of twenty-nine years incarceration, ten of which were a mandatory minimum. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court erred when it instructed the jury regarding both specific intent and general intent because all of the crimes with which he was charged required a mens rea of specific intent. The defendant argues that the court’s instruction on general intent misled the jury into believing that he could be found guilty of the crimes charged if he merely had the intent to engage in the prohibited conduct without determining that he specifically intended to cause serious physical injury. The state contends that the jury was instructed properly and could not have been misled because the court clearly set out the specific intent element for each crime charged. We agree with the state.

The following additional facts are relevant to our resolution of the defendant’s claim. On April 17, 2008, before the completion of evidence, the court held a charging conference on the record. At the conference, the court indicated that the parties had met earlier in the morning to discuss the charge. The court mentioned that some mistakes were made in the charge, in that victims and counts were mismatched, and that a new version was being made to fix the problem. When asked if either party had any comments regarding the charge, the state expressed that it did not. The defendant stated that, with the exception of one request to charge regarding reasonable doubt, which the court declined to give, he was satisfied with the court’s charge. The defendant also stated that he would take exception to the instruction on reasonable doubt when it was given. The court again asked if either party had any other objection to the charge, and both parties stated that they did not.

Prior to instructing the jury as to each particular count of the information, the court instructed the jury as to the concept of intent generally. The court stated: “Intent relates to the condition of mind of the person who commits the act; his purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result when his conscious objective is to cause the result. A person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct.” Throughout the remainder of the jury instructions, the court referred the jury back to this definition of intent on three occasions.

Following the instruction on intent generally, the court instructed the jury on the elements of each offense with which the defendant was charged. With respect to the intent element of assault in the first degree under § 53a-59 (a) (1), as charged in counts one, four, six and nine, the court instructed the jury that it needed to find that “the defendant intended to cause serious physical injury to another person” to have the requisite intent required by the statute. In summarizing the elements of assault under § 53a-59 (a) (1), the court stated that “the state must prove beyond a reasonable doubt that the defendant had the specific intent to cause serious physical injury to [another].”

With respect to the intent element of assault in the first degree under § 53a-59 (a) (4), as charged in counts two, five, seven and eight, the court again instructed the jury that it needed to find that the defendant had the “intent to cause serious physical injury to another person” to have the requisite intent required by the statute. In summarizing the elements of assault under § 53a-59 (a) (4), the court stated that “the state must prove beyond a reasonable doubt that the defendant had the specific intent to cause serious physical injury to [another].”

Finally, with respect to the intent element of assault in the first degree under § 53a-59 (a) (5), as charged in counts three and ten, the court informed the jury that a person is guilty of this offense “when, with the intent to cause physical injury to another person, he causes such injury ... by means of the discharge of a firearm.” Again, when summarizing the elements of assault under § 53a-59 (a) (5), the court stated that “the state must prove beyond a reasonable doubt that the defendant had the specific intent to cause physical injury to [another].” After the jury was instructed, the defendant said he had no objections to the instructions except for his reasonable doubt charge that the court declined to give.

The defendant did not properly preserve this claim and seeks review pursuant to State v. Golding, 213 Conn. 233,239-40,567 A.2d 823 (1989). The defendant’s claim satisfies the first two prongs of Golding because the record is adequate for review, and “[a]n improper instruction on an element of an offense ... is of constitutional dimension.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998). The defendant’s claim, however, fails under the third prong of Golding because there was no clear constitutional violation, and the court’s instructions did not deprive him of a fair trial.

We begin our consideration of the defendant’s claim by setting forth the standard of review. “[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360-61, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

Our Supreme Court has decided a number of cases that have comparable factual circumstances and address the defendant’s claim. In State v. Montanez, 277 Conn. 735, 742, 894 A.2d 928 (2006), State v. DeJesus, 260 Conn. 466, 471-72, 797 A.2d 1101 (2002), and State v. Austin, supra, 244 Conn. 232, the trial courts mentioned in their instructions both specific intent and general intent, although the crimes with which the defendants were charged warranted only an instruction regarding specific intent. In each case, our Supreme Court held that the trial court’s repeated instruction that specific intent was an element of the crime charged eliminated any possibility that the jurors reasonably could have mistakenly believed that the defendant could properly have been found guilty based on a finding of only general intent. State v. Montanez, supra, 745 (“trial court . . . unmistakably described the defendant’s specific intent as an element of the crimes with which he was charged”); State v. DeJesus, supra, 476-77 (“[t]his repeated instruction [on specific intent] eliminated any possibility of juror confusion with respect to the element of intent”); State v. Austin, supra, 236 (“any possible risk of jury confusion over the element of intent was eliminated by the . . . court’s numerous proper instructions on the elements of [the crimes charged]”).

In the present case, when instructing the jury on the intent element of assault, the court repeatedly stated that the defendant must have “intended to cause serious physical injury to another person.” The court repeated this phrase to the jury approximately twenty times throughout its instructions. Additionally, the court instructed the jury that “the state must prove beyond a reasonable doubt that the defendant had the specific intent to cause serious physical injury . . . .” The court used the term “specific intent” seven times throughout its jury instructions. The court unmistakably conveyed to the jury that specific intent was an element of the assault charges against the defendant. “It strains reason to believe that the jury could have heard the challenged instruction as not requiring that the state prove beyond a reasonable doubt that the defendant intended” to cause serious physical injury. (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274,322, 664 A.2d 743 (1995).

The defendant attempts to overcome these precedents by analogizing his case to State v. DeBarros, 58 Conn. App. 673, 682-84, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000), in which this court held that the trial court erred by instructing the jury regarding general intent and specific intent although the defendant was charged only with specific intent crimes. We distinguished DeBarros from Austin and Prioleau on two grounds. First, we concluded that the trial court’s ten references to general intent “were too numerous to be rectified by the court’s proper instructions.” Id., 683. Second, the courts in Austin and Prioleau read the improper instruction only as part of a general definition of intent whereas in DeBarros, “the court read the instruction as a specific definition of the intent required for the crimes charged.” Id.

The defendant’s reliance on DeBarros, however, is flawed. First, as we stated previously, the court repeatedly instructed the jury that specific intent was an element of the defendant’s assault charges and merely mentioned general intent only as part of its general introductory definition of intent. Second, as our Supreme Court stated in Montanez, “a challenged jury charge is to be read as a whole . . . and judged by its total effect rather than by its individual component parts.” (Internal quotation marks omitted.) State v. Montanez, supra, 277 Conn. 746. The fact that the trial court read the full statutory definition of both general and specific intent once in its initial charge and referred back to it only three times did not mislead the jury, especially since the court repeatedly instructed the jury regarding specific intent in the context of explaining the elements of each specific crime. Indeed, the initial reference to both general and specific intent may have highlighted the differences between them, such that the jury was more likely to understand the meaning of specific intent. Accordingly, we reject the defendant’s claim.

The defendant also seeks reversal under the plain error doctrine. “The plain error doctrine is based on Practice Book § 60-5, which provides in relevant part: 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. . . . The plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under [the] plain error [doctrine] unless [he] has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 617, 929 A.2d 312 (2007). As we stated previously, the trial court repeatedly instructed the jury as to the correct intent required under § 53a-59 (a). Accordingly, there is no manifest injustice that warrants reversal pursuant to the plain error doctrine.

The defendant also asks this court to exercise its supervisory powers and to review this issue in the interest of judicial economy. “[0]ur supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 814-15, 709 A.2d 522 (1998). This case by no means presents the type of extraordinary circumstances for which our supervisory powers are reserved. Accordingly, we decline to exercise our supervisory powers.

II

The defendant’s second and final claim is that the trial court erred when it convicted him of two counts of conspiracy arising out of a single agreement. The defendant argues that his rights under the double jeopardy clause were violated because he was convicted of two counts of conspiracy that arose from the same set of facts and was sentenced separately for each. The state agrees that the defendant’s double jeopardy rights were violated. We also agree.

In this case, the defendant was convicted of two counts of conspiracy. The defendant received a sentence of ten years imprisonment for his conviction of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (1), which was to be served consecutively to the nineteen year sentence imposed for his conviction of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (1). The defendant also received a sentence of eighteen years imprisonment for his conviction of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (4), which was to be served concurrently with the nineteen year sentence imposed for his conviction of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (1).

“The standard of review to determine whether the defendant’s constitutional right against double jeopardy was violated is de novo because it is a question of law. . . . The factual findings of the court that determines that issue, however, will stand unless they are clearly erroneous.” (Citation omitted.) State v. Ellison, 79 Conn. App. 591, 598, 830 A.2d 812, cert. denied, 267 Conn. 901, 838 A.2d 211 (2003).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . The traditional test for determining whether two offenses are the same offense for double jeopardy puiposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Internal quotation marks omitted.) State v. Nelson, 118 Conn. App. 831, 853, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).

“A conspiracy to commit multiple offenses is, itself, a single offense. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute .... For such a violation, only the single penalty prescribed by the statute can be imposed. . . . [When] the facts point to only one agreement, the defendant cannot be subject to sentencing for two conspiracies. . . . Multiple, albeit concurrent, sentences are not proper and cannot stand . . . .” (Citations omitted; internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 808, 781 A.2d 285 (2001).

Here, the defendant’s conviction and sentences for conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (1) and conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (4) are supported by evidence of only one agreement. The single agreement was to ambush the victims and to inflict serious physical injury on them by means of a deadly or dangerous instrument and while aided by three or more persons actually present at the basketball court. Accordingly, the defendant’s conviction and sentences for both conspiracy charges violated his right to be free from double jeopardy. Therefore, we direct the trial court on remand to merge the conviction on the two conspiracy counts and to vacate the sentence for one of them. See id.

The judgment is reversed only as to the conviction on the two conspiracy counts and the case is remanded with direction to merge the conviction on those counts and to vacate the sentence on one of them. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also was charged with but found not guilty of one count of assault in the first degree in violation of § 53a-59 (a) (1).

       The basketball court was surrounded by a chain-link fence with only one opening for ingress and egress.

       The examining doctor was unable to ascertain whether the penetrating injury was a gunshot or stab wound.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or dangerous instrument ... or (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person; or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.” See State v. Torrice, 20 Conn. App. 75, 95, 564 A.2d 330 (stating that “assault . . . require[s] specific intent to cause injury”), cert. denied, 213 Conn. 809, 568 A.2d 794 (1989).

       Count one charged the defendant with conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (1), counts four and six charged the defendant with assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (1), and count nine charged the defendant with assault in the first degree in violation of § 53a-59 (a) (1).

       Count two charged the defendant with conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (4), and counts five, seven and eight charged the defendant with assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (4).

       Count three charged the defendant with assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (5), and count ten charged the defendant with assault in the first degree in violation of § 53a-59 (a) (5).

       Pursuant to Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The state contends that the defendant’s claim fails under the third prong of Golding because he waived his claim on appeal by expressing to the court that he was content with the jury instructions. The law regarding waiver of jury instruction challenges is less than clear. In State v. Cox, 293 Conn. 234, 977 A.2d 614 (2009), our Supreme Court stated that “[wjaiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Id., 245. In State v. Ebron, 292 Conn. 656, 681-82, 975 A.2d 17 (2009), however, it stated that “although the defendant acquiesced in the charge that the trial court ultimately gave to the jury . . . there is no indication that the defendant actively induced the trial court to give the retreat instruction that he now challenges on appeal, which renders this claim reviewable under Golding.”

      The Supreme Court currently has several certified appeals before it in which it may address the issue of waiver of instructional errors. See State v. Paige, 294 Conn. 911, 983 A.2d 275 (2009); State v. Baptiste, 294 Conn. 910, 983 A.2d 274 (2009); State v. Mungroo, 291 Conn. 907, 969 A.2d 172 (2009); State v. Akande, 290 Conn. 918,966 A.2d 237 (2009). In these circumstances, we decline to address the state’s waiver claim. In any event there was no constitutional violation.


author: BISHOP, J.

text:
    ROBERT TAYLOR v. KEVIN PERVIS ET AL.
    (AC 30655)
    Bishop, Lavine and Peters, Js.
    Argued October 14
    officially released November 30, 2010

      Max F. Brunswick, for the appellant (defendant American Car & Truck Rental, Inc.).

      Marc J. Ubaldi, with whom was Robert L. Schwab, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this action arising out of a motor vehicle accident, the defendant American Car & Truck Rental, Inc., appeals from the trial court’s judgment rendered against it, following a hearing in damages, in the amount of $325,000 plus taxable costs. On appeal, the defendant claims that the court improperly denied its motion to open the judgment. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On August 22, 2007, the plaintiff brought this action pursuant to General Statutes §§ 14-154a and 52-592 against the defendant on one count of vicarious liability for injuries he sustained in a motor vehicle accident in 2002. Counsel for the defendant, attorney Max F. Brunswick, filed an appearance in the case on September 11, 2007, but filed no responsive pleadings on behalf of the defendant. On November 8, 2007, the plaintiff filed a motion for default for failure to plead, which was granted on November 19, 2007. At the subsequent hearing in damages on April 22, 2008, neither the defendant nor Brunswick was in attendance. After noting that the plaintiffs witness was present, that Brunswick had not contacted the court and that Brunswick “can file an appropriate motion to reopen if he wants to spend the money to do it,” the court, Hon. Anthony V. DeMayo, judge trial referee, proceeded with the hearing and rendered judgment against the defendant in the amount of $325,000 plus taxable costs.

The defendant subsequently filed a motion to open the judgment on May 5,2008, pursuant to Practice Book § 17-43. The motion asserted that, at the time of the April 22, 2008 hearing, Brunswick was trying a case before a jury in the same courthouse, with evidence to begin that morning. According to the motion, on the previous day Brunswick informed the plaintiffs counsel of the scheduling conflict by voice mail, and counsel confirmed to Brunswick in the lobby of the courthouse on the morning of April 22 that he had received the voice mail message. Then, believing that the matter would be marked over, Brunswick went to the trial in a different courtroom in the same courthouse. Also contained in the motion are two defenses to the original complaint. Judge DeMayo denied the motion on June 10, 2008. The defendant filed a motion for reconsideration on July 7, 2008, which was likewise denied on July 16, 2008. This appeal followed.

The defendant claims that the court improperly denied its motion to open the judgment. We agree.

We begin by setting forth the standard of review and legal principles that govern this appeal. “We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Flater v. Grace, 291 Conn. 410,419, 969 A.2d 157 (2009). “Except in cases in which a judgment has been obtained by fraud, duress or mutual mistake or, under certain circumstances, where newly discovered evidence exists to challenge the judgment, the power of a court to open a judgment after a default has entered is controlled by statute.” Id., 418-19. “Pursuant to General Statutes § 52-212 (a), a trial court may set aside a default judgment within four months of the date it was rendered provided that the aggrieved party shows reasonable cause or that a good cause of action or defense existed at the time the judgment was entered.” Priest v. Edmonds, 295 Conn. 132, 137, 989 A.2d 588 (2010). Additionally, the court’s denial of the defendant’s motion to open cannot be held to be an abuse of discretion if it appears that the defendant has not been prevented from defending the claim by mistake, accident or other reasonable cause. See Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 294, 966 A.2d 318 (2009).

Here, in compliance with Practice Book § 17-43 (a), the defendant’s motion asserted that the action was barred by the applicable statute of limitations in General Statutes § 52-577 and that the defendant jvas not vicariously liable because it had not authorized Kevin Pervis to drive its vehicle. In its articulation of its decision to deny the motion, however, the court, correctly stated that “[o]n April 22, [2008], the defendant would not have been permitted to question liability in the face of default.” Indeed, Practice Book § 17-34 (a) provides: “In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiffs complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense.” Such notice must be filed within ten days after notice from the clerk to the defendant that a default has entered. See Practice Book § 17-35 (b). Accordingly, because the defenses in the present case did not relate to the amount of damages, the defendant was required to give notice of these defenses to the plaintiff within ten days after notice of the default issued on November 19, 2007. See Practice Book § 17-34 (a). The record reveals that the defendant provided no such notice. Therefore, the alleged defenses could not have been raised at the hearing and were not appropriate grounds for opening the judgment.

Practice Book § 17-43 (a), however, provides an alternative ground that allows the court to open the judgment upon a showing of “reasonable cause.” Here, the defendant’s motion asserted that Brunswick was prevented from attending the hearing in damages because he was trying a case before a jury in a different courtroom in the same courthouse. According to the defendant, that scheduling conflict was unforeseen because the trial in Brunswick’s other case had not finished on the previous day as expected, at which time Brunswick left a voice mail message with the plaintiffs counsel to inform him of the conflict. Additionally, the defendant asserts that, after speaking with the plaintiffs counsel in the courthouse lobby on the morning in question, Brunswick believed that the hearing would be marked over to another day. Ordinarily, a showing that a party’s absence was reasonable is included in a motion to open under Practice Book § 17-43 as a subsidiary requirement to showing a good defense, not as an independent ground for opening the judgment. Under the extraordinary circumstances in this case, however, Brunswick’s predicament provided reasonable cause to open the judgment, and the failure of the court to acknowledge that Brunswick could not reasonably be in two courtrooms at the same time constituted an abuse of discretion. Accordingly, we conclude that the court abused its discretion when it denied the motion to open the judgment.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to open and set aside the judgment and for further proceedings according to law.

In this opinion the other judges concurred.

       The named defendant, Kevin Pervis, is not a party to this appeal. In the interest of simplicity, we refer to American Car & Truck Rental, Inc., as the defendant throughout this opinion.

       The defendant also claims that the court improperly marked off its motion to dismiss as moot because the prior motion to open had been denied. Because we agree with its claim regarding the denial of the motion to open, we need not reach this issue.

       The record reveals the following colloquy from the hearing in damages:
      “[The Plaintiffs Counsel]: Your Honor, there is somewhat of a — a situation here. This morning — I guess there’s an appearance in the file by Max Brunswick ... on September 17 [2007]. There was an original motion for default for failure to plead, excuse me, to appear that had been filed. Max — attorney Brunswick had filed his appearance in September, and then he failed to file an answer in the case after numerous—
      “The Court: It’s not an unusual situation.
      “[The Plaintiffs Counsel]: So, I defaulted him for failure — failure to plead. So, the case is down, it’s default for failure to plead and down for a hearing in damages today. Evidently, Mr. Brunswick called my office last night after 5 o’clock, left a message on our voice answering machine, indicating or asking that this case be marked over because he was starting trial today here in this courthouse, and I didn’t get that message until this morning, and when I was in the lobby of the courthouse this morning waiting for my clients, around 9 a.m., Mr. Brunswick walked in, and I approached Mr. Brunswick, identified myself, and he asked me whether or not I had received his message, and I indicated that I just received it this morning.
      “The Court: What was his reason for having it go over?
      “[The Plaintiffs Counsel]: Because he said he was starting trial here today.
      “The Court: But he’s been defaulted here?
      “[The Plaintiffs Counsel]: Yes. And I asked him what the situation was with respect to the answer — the pending answer and whether or not there was any insurance. He did file an appearance. I said: What — what is the situation? And he didn’t really respond. I don’t think he really was familiar with the file in any way, but he asked me to represent to the court that he has made a motion here to mark it over. My client is here; he’s ready; he’s anxious to go forward. So, I’m kind of in a situation.
      “The Court: I don’t know why we should accommodate him. He has not contacted the court. Your people are here. He’s been defaulted. He hasn’t filed any appropriate motion, and he hasn’t indicated to you that he’s got a defense. Is that right?
      “[The Plaintiffs Counsel]: That’s correct, Your Honor.
      “The Court: Well, let’s proceed.
      “[The Plaintiffs Counsel]: Okay. Thank you, Your Honor. I just call—
      “The Court: He can file an appropriate motion to reopen if he wants to spend the money to do it.”

       Practice Book § 17-43 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default . . . may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”

       As part of this claim, the defendant also asserts that Judge DeMayo should have recused himself from the hearing and from deciding the defendant’s motion because of his acrimonious history with Brunswick. In 2002, in an unrelated matter, Judge DeMayo sanctioned Brunswick and referred him to the statewide grievance committee for making frivolous allegations in a motion to vacate an arbitration decision. See Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 603-604, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007). In that matter, Judge DeMayo stated: “ [I]t’s hard for me to recall when I have been so outraged by something as I’ve heard you and your client expose the arbitration panel to in this proceeding.” When Brunswick asked Judge DeMayo whether, in light of the grievance, he would recuse himself from any of Brunswick’s future cases, the judge replied: “[TJhat gratuitous request is hardly necessary, but I’m not sure that I would be interested in hearing any more cases involving you.” Because we reverse the judgment on another basis, we need not reach the issue of whether Judge DeMayo should have recused himself in the matter at hand on the basis of this history.

       Practice Book § 17-43 (a) essentially tracks the language of General Statutes § 52-212 (a), and they are applied interchangeably on appeal. See, e.g., Priest v. Edmonds, supra, 295 Conn. 137; Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 294, 966 A.2d 318 (2009).

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The liming of Brunswick’s jury trial is not clear from the record. The defendant’s motion to open asserts that the jury was picked and that evidence was to begin on the morning of April 22, while its brief states that the trial was expected to finish on April 21 but carried over into a second day. Resolving this factual ambiguity, however, is not necessary to our determination of the defendant’s claim, as it appears that, in any case, Brunswick was occupied on the jury matter in a different courtroom of the same courthouse at the same time Judge DeMayo proceeded with the hearing in damages in counsel’s absence.

       We acknowledge that it would have been better practice for Brunswick to have requested a continuance, or a delay, personally from Judge DeMayo.