author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. CLAUDE ALEGRAND
    (AC 31200)
    DiPentima, C. J., and Bear and Flynn, Js.

      Argued October 13, 2010
    officially released August 9, 2011

      Diane Polan, with whom were Michael J. Wishnie and Ana Munoz, law student intern, and, on the brief, Daniel Habib, law student intern, for the appellant (defendant).

      Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Claude Alegrand, appeals from the judgment of the trial court dismissing his motion for relief from judgment and sentence. On appeal, the defendant claims that the court erred in determining that it lacked subject matter jurisdiction to hear his motion for relief from judgment and sentence, a motion presented as an independent action in equity, or, in the alternative, as a petition for a writ of audita querela. As a third alternative, the defendant contends that even if we find that the court’s jurisdictional holding was correct, we should nonetheless, despite that lack of jurisdiction, exercise our supervisory powers, pursuant to Practice Book § 60-2, to consider the merits of the defendant’s constitutional claims. We conclude that the court properly determined that it lacked jurisdiction over the defendant’s case and, therefore, dismissed his motion. We also deem it inappropriate to exercise our supervisory powers and, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On August 14, 2003, the defendant pleaded nolo contendere to robbery in the third degree in violation of General Statutes § 53U-136. After the court, Clifford, J., accepted the plea, the defendant was found guilty, and the court sentenced him to serve five years imprisonment, execution suspended after two years, followed by a conditional discharge for two years. More than five years later, on November 25, 2008, after learning that he might be deported to Haiti as a result of this felony conviction, the defendant filed “a motion for relief from judgment and sentence.” The motion sought to have the court, Handy, J., grant his motion for relief from judgment and sentence, vacate his plea of nolo contendere and render judgment of acquittal, and dismiss with prejudice the criminal charges against him, or, alternatively, vacate the plea of nolo contendere and grant him an opportunity for a new trial. The defendant did not explain how the court would have authority or jurisdiction to dismiss the charges against him or render a judgment of acquittal. In support of his motion, the defendant asserted the following factual claims: (1) actual innocence by virtue of being at the wrong place at the wrong time when a drug dealer was robbed; (2) ineffectiveness of trial counsel who (a) advised him to enter a plea of nolo contendere when she knew witnesses for the state could not be located, (b) refused to try his case unless he paid her more money, (c) failed to advise him that he could move to withdraw his plea; (3) impairment of his faculties from prior drug use during his plea canvass; and (4) failure of the court, Clifford, J., to establish that his plea was knowing, intelligent and voluntary after getting no response to a question during the plea canvass as to whether the defendant was then under the influence of alcohol or drugs.

Before the trial court, Handy, J., the defendant premised jurisdiction on two common-law vehicles: an independent action in equity and a writ of audita querela. On April 13, 2009, the court heard argument on the defendant’s motion, and relying on our Supreme Court’s decision in State v. Lawrence, 281 Conn. 147, 153, 913 A.2d 428 (2007), then determined that it lacked subject matter jurisdiction to hear the motion.

After deciding it had no jurisdiction as to the claim for general independent equitable relief, the court then, nonetheless, recognized that the Superior Court is a court of general jurisdiction and a court of equity but declined to exercise its equitable powers under the totality of the circumstances. The court did not find “[the defendant’s] position to be different than other defendants that have appeared before [the] court who are not citizens of the United States of America” and, therefore, the circumstances did not rise to the level of its exercise as a court of equity.

As to the specific claim for relief under the writ of audita querela, the court reasoned that there is no criminal case, or constitutional or statutory provision in Connecticut, that establishes that the writ of audita querela is a procedure that could be utilized for the court to exercise its jurisdiction to set aside the judgment of conviction, open the judgment of conviction or vacate the defendant’s nolo contendere plea. The court determined that it lacked jurisdiction to revisit a criminal conviction via these procedural mechanisms, and it dismissed the motion. This appeal followed.

We begin by setting forth our standard of review. Questions regarding subject matter jurisdiction purely are legal in nature and are subject to plenary review. State v. Das, 291 Conn. 356, 361, 968 A.2d 367 (2009). Every presumption favoring subject matter jurisdiction should be indulged. Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).

I

The defendant first claims that the court erred in determining that it lacked jurisdiction to entertain an independent action in equity. The defendant argues that Connecticut courts have long heard independent actions brought as a means of obtaining relief from unfair judgments. In response, the state argues that the court properly determined that it lacked jurisdiction to vacate the defendant’s conviction because there is no legislative or constitutional grant of continuing jurisdiction that would allow it. We agree with the state.

In this case, the court rendered an oral decision. In addressing the defendant’s counsel, the court stated: “I’m not here to take evidence, counsel. I’m here to hear argument on whether or not this court feels that it has jurisdiction, and if I find it has jurisdiction, we may proceed to some other matters, but we need to get through the threshold issue.”

The court went on to say that “the threshold issue with which this court is faced is one of jurisdiction, and it is this court’s opinion, that without getting by the jurisdictional issue, we cannot get to the substantive issues that have been cited in the brief in [the defendant’s] behalf.” Quoting State v. Lawrence, supra, 281 Conn. 153, the corut further stated: “It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence.” (Internal quotation marks omitted.)

The defendant argues that the court erred in determining that it lacked jurisdiction to entertain an independent action in equity. On appeal, the defendant acknowledges that no Connecticut case addresses the propriety of collaterally challenging a criminal conviction via an independent action in equity. In support of his claim, the defendant relies only on holdings in Connecticut civil cases addressed to civil judgments and federal cases.

Citing federal cases, Justice Joseph Story and several cases from our Supreme Court, the defendant claims that our laws should permit such independent equitable actions “[i]n all cases, where by accident, mistake, fraud or otherwise, a party has an unfair advantage in proceedings in a court of law, which must necessarily make that court an instrument of injustice, and it is, therefore, against conscience that he should use that advantage, a court of equity will interfere, and restrain him from using the advantage . . . .” (Internal quotation marks omitted.) Folwell v. Howell, 117 Conn. 565, 568-69, 169 A. 199 (1933); see 2 J. Story, Commentaries on Equity Jurisprudence (10th Ed. 1870) § 885.

Essentially, the defendant’s claim is that his conviction is “unconscionable” and, therefore, an independent equitable action should lie to vacate his plea and set aside his conviction. The state disagrees on several grounds. First, it argues that there is no authority in Connecticut for an independent equitable action. Second, it cites State v. Lawrence, supra, 281 Conn. 154, for the proposition that “[wjithout a legislative or constitutional grant of continuing jurisdiction ... the trial court lacks jurisdiction to modify its judgment.” Third, it argues, citing State v. Mollo, 63 Conn. App. 487, 492, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001), that the state has an interest in finality of judgments. We agree with the state.

In Lawrence, our Supreme Court summarized well established principles of law concerning jurisdiction. “Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created. . . . Article fifth, § 1 of the Connecticut constitution proclaims that [tjhe powers and jurisdiction of the courts shall be defined by law, and General Statutes § 51-164s provides that [tjhe superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. . . . The Superior Court is a constitutional court of general jurisdiction. ... In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. . . . It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. . . . This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence.” (Citations omitted; internal quotation marks omitted.) State v. Lawrence, supra, 281 Conn. 153.

General Statutes § 52-1 provides in relevant part: “The Superior Court may administer legal and equitable rights and apply legal and equitable remedies in favor of either party in one and the same civil action so that legal and equitable rights of the parties may be enforced and protected in one action. . . .” By its terms, § 52-1 relates only to civil actions, not criminal cases. The Connecticut cases cited by the defendant to justify use of the court’s equitable powers to vacate or stay enforcement of a judgment all relate to the staying of civil judgments.

We next address the applicability of the holding in State v. Lawrence, supra, 281 Conn. 147. In Lawrence, our Supreme Court decided the scope of Practice Book § 43-22. In doing so, it was reviewing a case in which the defendant had filed in the trial court a motion to correct an illegal sentence pursuant to Practice Book § 43-22. In the motion, the defendant claimed that his conviction of manslaughter in the first degree with a firearm was improper. Id., 151. The defendant in Lawrence asserted that “because the jury had acquitted him of murder on the basis of the affirmative defense of extreme emotional disturbance, the proper conviction should have been of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2). The maximum sentence for manslaughter in the first degree is twenty years incarceration; see General Statutes § 53a-35a (5); and, therefore, the defendant, in his motion, requested that the court refer the matter to the sentencing judge. The court, after considering the defendant’s claims and the relief requested, dismissed the defendant’s motion for lack of jurisdiction.” (Internal quotation marks omitted.) State v. Lawrence, supra, 151.

“In his appeal to the Appellate Court from the judgment of dismissal, the [Lawrence] defendant claimed that he improperly had been convicted of manslaughter in the first degree with a firearm, and that, had he properly been convicted of manslaughter in the first degree, his sentence of imprisonment could not have exceeded twenty years,” rather than the thirty-five years which had been imposed. Id., 151-52.

We agree with the defendant that Practice Book § 43-22 was not invoked in his motion in the case before us as it was in Lawrence. However, we think Lawrence has importance for our Supreme Court’s holdings in that “[without a legislative or constitutional grant of continuing jurisdiction, however, the trial court lacks jurisdiction to modify its judgment” and that “jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and that a court may not take action affecting a defendant’s sentence unless it expressly has been authorized to act.” (Internal quotation marks omitted.) Id., 154.

The defendant also argues that he should be able to make a challenge to his conviction by invoking the court’s general equity powers, distinct from the powers embodied in Practice Book § 43-22 to correct illegal sentences which were the subject of the Lawrence appeal. The defendant cites no constitutional or statutory authority, however, that grants authority to vacate a criminal plea, or set aside a judgment or conviction, or open the judgment, or order a new trial, or enter a judgment of acquittal, under those general equitable powers in a criminal case. The defendant argues that the holding in Lawrence does not address any of the exceptions to the rule of finality besides Practice Book § 43-22. He further argues that the appropriate jurisdictional analysis, however, depends on the exception to the rule of finality the defendant asserts, which in turn is a reflection of the remedial vehicle the defendant chooses.

The defendant further argues that the recent case of State v. Das, supra, 291 Conn. 356, supports his position that the appropriate jurisdictional analysis depends on the remedial vehicle a defendant chooses to attack and vacate a plea and conviction. In Das, the defendant sought to vacate a judgment of conviction and withdraw his plea of nolo contendere pursuant to (1) Practice Book § 39-26, (2) a writ of error coram nobis and, finally, (3) a motion to modify the conditions of his probation. Id., 358. The Das court concluded that the trial court was without jurisdiction to act on the motion to withdraw the nolo contendere plea. It concluded that to the extent that prior Supreme Court and Appellate Court cases suggest that there exists in our jurisprudence a constitutional violation exception to the trial court’s lack of jurisdiction over a defendant’s motion to withdraw his plea after the sentence has been executed, those cases were overruled. Id., 368.

The Das court also decided that “to the extent that the defendant grounds his claim on the allegation that the conditions imposed were not in accord with his understanding of his plea, it is precluded by the same jurisdictional bar . . . .” Id., 372. The Das court then turned to the prayer for relief for a writ of coram nobis. The defendant points out that relief was denied by the Das court, not for lack of jurisdiction, but because “coram nobis lies only in the unusual situation [where] no adequate remedy is provided by law. . . . Moreover, when habeas corpus affords a proper and complete remedy the writ of error coram nobis will not lie.” (Internal quotation marks omitted.) Id., 371. Because the Das court found that the defendant had not yet availed himself of the petition for a writ of habeas corpus, the court decided that the writ of error coram nobis properly had been denied. Id., 372.

We disagree that Das opened the door to exercise of the court’s equitable powers where the defendant’s sentence has been served. As the state and the defendant on appeal agree, there is no Connecticut authority authorizing an equitable remedy of the scope the defendant seeks. Second, there is no statutory authority authorizing the equitable remedy the defendant seeks where the right of appeal was not exercised, no timely motion to withdraw or to vacate the plea was filed, and no petition for a new trial had been timely made, nor had any pardon been sought.

Finally, in its third reason for opposing the defendant’s attempt to use an independent action in equity to open his judgment of conviction, the state points out the public interest in finality of judgments. The state notes that the defendant failed to avail himself of existing remedies to challenge his conviction. Prior to his sentencing, the defendant never indicated a desire to vacate his plea. The defendant admitted that he failed to file a direct appeal. There is no evidence in the record that he filed a petition for a new trial pursuant to Practice Book § 42-55 and General Statutes § 52-270; or that he applied for a pardon pursuant to General Statutes § 54-130a; or that he petitioned for a writ of habeas corpus pursuant to General Statutes § 52-466 or that he timely filed a writ of error coram nobis. We note that he did not act within three years after his plea to vacate it pursuant to General Statutes § 54-lj (c) because he claimed that the court did not advise him properly of one of the enumerated immigration consequences.

We too “must recognize society’s interest in the finality of [criminal] judgments . . . and [accept] the concept of inspiring confidence in the integrity of our procedures.” (Citation omitted.) State v. Motto, supra, 63 Conn. App. 492. In reviewing attacks on judgments, our Supreme Court has looked not only “to the petitioner’s claim, but also with regard to the effect of the issuance of the writ on the strong interest in the finality of judgments . . . and the other interests embodied in the statute of limitations.” (Citation omitted.) Summerville v. Warden, 229 Conn. 397, 428, 641 A.2d 1356 (1994).

The General Assembly, in enacting § 54-lj (a) and (c), provided protection for immigrants to the United States who plead guilty or nolo contendere to criminal charges, but that statutory protection incorporated true limits. Subsection (a) of § 54-lj provides that “[t]he court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States, or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant’s attorney, the court shall permit the defendant to do so prior to accepting the defendant’s plea.” However, recognizing the need to have some finality to criminal judgments, the legislature further provided that a defendant may withdraw his plea not later than three years after making it. Specifically, subsection (c) of § 54-lj provides as to these same immigration consequences that “[i]f the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant’s plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant’s plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”

There is a public interest in maintaining some finality to judgments. Prosecutions cannot easily be recommenced when arresting officers no longer are available, witnesses are dead or cannot be found and physical evidence of crime has been destroyed. Public trust and confidence in the judiciary is sapped when cases are allowed to linger endlessly for years or decades in trial or appellate tribunals.

We conclude that the absence of explicit Connecticut precedent, or constitutional or statutory provision authorizing an independent equitable action as a vehicle for challenging a criminal conviction after the sentence has been completed, and the passage of five years since the plea was accepted, provided a sufficient basis for the court to conclude that it lacked jurisdiction.

II

The defendant next claims that the court erred in determining that it lacked subject matter jurisdiction to entertain a writ of audita querela as a vehicle to vacate his conviction. We disagree.

The history of the writ of audita querela in Connecticut reveals its limited applicability to civil judgments. “The writ of audita querela provides relief from a judgment at law because of events occurring subsequently which should cause discharge of a judgment debtor.” (Internal quotation marks omitted.) Ames v. Sears, Roebuck & Co., 206 Conn. 16, 21, 536 A.2d 563 (1988). “The ancient writ of audita querela has been defined as a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense (e.g., a release) arising, or at least raisable for the first time, after judgment. . . . Because the writ impairs the finality of judgments, the common law precluded its use in cases in which the judgment debtor sought to rely on a defense such as payment or a release that he had the opportunity to raise before the entry of judgment against him. ... No authority has been cited to suggest that the writ of audita querela was ever available to present issues which were presented before the entry of the judgment attacked by the writ. . . . The writ of audita querela provides relief from a judgment at law because of events occurring subsequently which should cause discharge of a judgment debtor.” (Emphasis added; internal quotation marks omitted.) Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, 50 Conn. App. 289, 294, 717 A.2d 294 (1998).

The defendant also claims that the court’s decision must be revisited in light of the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). We disagree.

Padilla was decided by the United States Supreme Court on March 31, 2010, and held that the sixth amendment right to competent counsel was implicated where a noncitizen defendant was not advised by his counsel prior to making his guilty plea that deportation virtually was mandatory. The trial court, when rendering its oral decision that it lacked jurisdiction to hear the defendant’s claim on April 13, 2009, had no knowledge of Padilla because it had not yet been decided. On appeal, the defendant argues, however, that Padilla is relevant to this appeal.

In Padilla, the defendant had pleaded guilty to a drug offense after his attorney erroneously told him that he could not be removed from the United States as a result of his plea because of the length of time that he had been a lawful permanent resident. Id., 359. The defense counsel in Padilla advised that because the defendant had been in the country so long, he “did not have to worry about immigration status . . . .” (Internal quotation marks omitted.) Id. The Supreme Court of Kentucky rejected the defendant’s claim of ineffective assistance of counsel on the ground that immigration consequences of criminal convictions are merely “ ‘collateral’,” and, therefore, he had no right to adequate advice about such consequences. Id., 359-60. The issue before the United States Supreme Court was “whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.” Id., 360. The court answered this question in the affirmative, holding that the sixth amendment to the United States constitution requires that “counsel must inform [his or] her client whether [the client’s] plea carries a risk of deportation.” Id., 374.

Nothing in the holding of Padilla confers jurisdiction on a state trial court to entertain late motions to open judgments postsentencing or to entertain late motions for relief from judgment. The court merely defined the scope of a substantive constitutional right—the right to effective assistance of counsel.

Padilla is the progeny of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which established the test for review of claims of ineffective assistance of counsel. A claim of ineffective assistance of counsel does not provide a statutory or constitutional basis for the court’s jurisdiction to vacate a plea or a conviction. However, it does provide grounds for a habeas corpus petition pursuant to Practice Book § 23-21 et. seq.

We conclude that the court properly determined that it lacked jurisdiction. Audita querela is a specific equitable remedy that enables a court of equity to supervise its judgments and to control the issuance of executions. Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 50 Conn. App. 295. It is in the nature of an equitable injunction addressed to a

judgment. There is dicta from our Supreme Court labeling audita querela as a legal remedy, but when we consult with Joseph Story’s Commentaries on Equity Jurisprudence, it is clear that an audita querela is a bill quia timet and, as such, its use is on an execution before any civil judgment, as a party “seeks the aid of a Court of Equity because he fears (quia timet) some future probable injury to his rights or interests, and not because an injury has already occurred which requires any compensation or other relief.” 2 J. Story, Commentaries on Equity Jurisprudence (10th Ed. 1870) § 826. “[The writ is] ordinarily applied to prevent wrongs or anticipated mischiefs, and not merely to redress them when done.” Id. There is no Connecticut precedent to authorize the civil writ of audita querela in the criminal context, and we decline to authorize it for the first time here. The defendant seeks an almost limitless means of collateral attack that would cause undue burden on the prosecutorial process. The state’s concern about opening wide a burdensome door is not an unreasonable one. If audita querela is made available to noncitizens with respect to criminal judgments, it ought to be equally as available to citizens who suffer some consequence as a result of a prior felony conviction. Such consequences might include denial of an opportunity to serve in the military, denial of security clearances, denial of an opportunity to serve on the state police force, denial of promotions, denial of regular nongovernmental employment, denial of voting rights and potential enhanced penalty by virtue of commission of a later crime. A convicted felon also is subject to impeachment through the use of his felony conviction in other trial testimony. Whether used in such situations by a noncitizen or a citizen, there would be little finality to any criminal conviction.

We recognize that there is a split of authority in the federal courts as to how audita querela might be used; however, we must look to the source of our own jurisdiction as a court system established under the Connecticut constitution and Connecticut statutes. The writ of audita querela remains nothing more than a more specific form of equitable relief and remains a remedy for civil judgments. If the defendant were actually in custody, he might have had the right to apply for habeas relief under § 52-466. The defendant, however, was still free to consult with his attorneys within the three year period to seek relief via coram nobis, but he failed to do so. See, e.g., State v. Das, supra, 291 Conn. 370. An unlimited encroachment on the finality of judgments without regard to time of conviction would not properly serve the public interest in finality of judgments.

For the same reasons that we concluded that there was no jurisdiction for the defendant’s invocation of general equitable powers after the sentence was completed and five years had passed since the plea was accepted, we conclude that there was no jurisdiction to hear this specific writ, which is an equitable remedy.

Ill

The defendant also asks this court to exercise its supervisory powers to consider the merits of his constitutional claims. Citing State v. Reid, 277 Conn. 764, 778, 894 A.2d 963 (2006) (holding that Supreme Court retains jurisdiction to review convictions through its supervisory powers even when trial court’s jurisdiction terminates), he claims that our Supreme Court has held that, even if the lower trial court lacked jurisdiction, “an appellate court always has the power to correct unconstitutional errors in an underlying judgment.” Citing Practice Book § 60-2, the defendant cites as further authority, provisions of that rule that provide that an appellate court “may, on its own motion or the motion of any party, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal.” (Internal quotation marks omitted.) However, we conclude that the judiciary cannot by adopting its own rule create its own jurisdiction. The defendant further claims that his case mirrors the “ ‘rare circumstances’ ” our Supreme Court used to justify its review in Reid, a case that also involved immigration consequences. See State v. Reid, supra, 778.

In the present case, it is worth noting, as the state’s brief points out, that the trial judge gave warning that there may be immigration consequences.

On the record before us, we conclude that the trial court had no jurisdiction to hear the defendant’s claims. Although using supervisory powers, our Supreme Court in Reid chose to treat a motion to vacate as a motion to extend the time for appeal on an eleven year old conviction and then found no jurisdiction and affirmed the judgment of conviction, the defendant has not convinced us that this is that rare case that warrants appellate review under our supervisory powers. Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-136 provides: “(a) A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.
      “(b) Robbery in the third degree is a class D felony.”

       Although the court then seemed to discuss whether to exercise jurisdiction and stated that it has looked at the “totality of the circumstances” and found the defendant’s position to be no different than that of other defendants, it is clear that both the state and the defendant understood, and have briefed the case on appeal, under the theory that the court found that it had no jurisdiction.

        McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 697, 553 A.2d 596 (1989) (noting independent equitable actions properly brought before Superior Court because it is general court of equity jurisdiction); Hoey v. Investors’ Mortgage & Guaranty Co., 118 Conn. 226, 230, 171 A. 438 (1934) (equitable relief from civil judgment available when enforcing judgment is against conscience, there is no adequate remedy available at law and appellant had no opportunity to make a defense or was prevented from doing so by accident); Folwell v. Howell, 117 Conn. 565, 567, 169 A. 199 (1933) (permitting opening of judgment obtained through fraud or imposition of undue influence on testator); Allis v. Hall, 76 Conn. 322, 330, 56 A. 637 (1904) (listing fraud, mistake, surprise, and ignorance of defense as commonly recognized grounds for equitable interference); see also United States v. Bonilla, 637 F.3d 980, 985-86 (9th Cir. 2011) (finding that District Court committed abuse of discretion in denying defendant’s motion to withdraw guilty plea when defendant’s counsel failed to inform him of possible immigration consequences of his plea); United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (holding that writ of audita querela only lies when absence of any avenue of collateral attack would raise serious constitutional questions about laws limiting those avenues).

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

       “A writ of error coram nobis is an ancient common-law remedy which authorized the trial judge, within three years, to vacate the judgment of the same court if the party aggrieved by the judgment could present facts, not' appearing in the record, which, if true, would show that such judgment was void or voidable. . . . The facts must be unknown at the time of the trial without fault of the party seeking relief. ” (Citation omitted; internal quotation marks omitted.) State v. Das, supra, 291 Conn. 370.

       The defendant also argues that the court should have taken evidence on the equities before making a decision that it would not exercise its equitable powers. We disagree. Once the court determined it had no jurisdiction, it should have gone no further. “If the [defendant’s] claim is not within one of these categories [of claims that, under the common law, the court has jurisdiction to review], then the court must dismiss the claim for a lack of jurisdiction and not consider its merits.” (Internal quotation marks omitted.) State v. Casiano, 122 Conn. App. 61, 67, 998 A.2d 792, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

       “An audita querela, is where a defendant against whom judgment is recovered, and who is therefore in danger of execution, or is perhaps in execution, may be relieved upon good matter of discharge, which has happened since the judgment-, as if the plaintiff has given him a general release, or if the defendant has paid the debt to the plaintiff, without procuring satisfaction to be entered of record, or to be endorsed on the execution: in these and like cases, when the defendant has good matter to plead, and has had no opportunity, an audita querela lies in the nature of a bill of equity, to be relieved against the oppression of the plaintiff.” (Emphasis added.) 1 Swift, Digest of the Laws of the State of Connecticut (1822) p. 789.
      “Audita querela is a remedy granted in favor of one against whom execution has issued on a judgment, the enforcement of which would be contrary to justice because of (1) matters arising subsequent to its rendition, or (2) prior existing defenses that were not available to the judgment debtor in the original action, or (3) the judgment creditor’s fraudulent conduct or circumstances over which the judgment debtor had no control. Ballentine’s Law Dictionary (3d Ed. 1969).” Oakland Heights Mobile Park, Inc. v. Simon, 40 Conn. App. 30, 32, 668 A.2d 737 (1995).

       In Lashgari v. Lashgari, 197 Conn. 189, 201 n.7, 496 A.2d 491 (1985), our Supreme Court stated that “[t]he ancient writ of [audita querela] is, as the plaintiff states, one of legal rather than equitable origin.” In so saying, however, the Supreme Court cites to Russell Lumber Co. v. J. E. Smith & Co., 82 Conn. 517, 74 A. 949 (1909), which does not appear to take such a position.

       See General Statutes § 53a-40 (b) (persistent dangerous sexual offender); § 53a-40 (c) (persistent serious felony offender); § 53a-40 (d) (persistent serious sexual offender); § 53a-40 (e) (persistent larceny offender); § 53a-40 (f) (persistent felony offender).

       General Statutes § 52-145 (a) provides in relevant part: “A person shall not be disqualified as a witness in any action because of . . . (3) his conviction of crime.” See State v. Askew, 245 Conn. 351, 716 A.2d 36 (1998) (state allowed to impeach credibility of defendant with prior felony conviction).

       See United States v. Gamboa, 608 F.3d 492 (9th Cir.) (denying petition for writ of audita querela when requested relief can be obtained under motion pursuant to 28 U.S.C. § 2255), cert. denied, 562 U.S. 1096, 131 S. Ct. 809, 178 L. Ed. 2d 540 (2010); United States v. Holt, 417 F.3d 1172, 1173 (11th Cir. 2005) (same); United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (same); United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993) (same); United States v. Reyes, 945 F.2d 862, 866 (5th Cir. 1991) (finding that audita querela not available to vacate conviction on general equitable grounds); United States v. Ayala, 894 F.2d 425, 426 (D.C. Cir. 1990) (permitting writ of audita querela as basis for vacating criminal conviction only when defendant able to raise legal objection not cognizable under existing scheme of federal postconviction remedies); United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir.) (denying availability of audita querela when defendant fails to file § 2255 motion properly), cert. denied, 456 U.S. 964, 102 S. Ct. 2044, 72 L. Ed. 2d 489 (1982).

       General Statutes § 51-14 (a) authorizes the judges of the Superior Court to promulgate rules regulating pleading, practice and procedure in judicial proceedings and states that “[s]uch rules shall not abridge, enlarge or modify any substantive right or the jurisdiction of any of the courts. . . .” It is well established that “the judiciary cannot confer jurisdiction on itself through its own rule-making power . . . .” (Internal quotation marks omitted.) State v. Casiano, 122 Conn. App. 61, 67, 998 A.2d 792, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).


source: Caselaw Access Project

author: ALVORD, J. MCDONALD, J.,

license: Public Domain

text:
    PETRAQ BODE v. CONNECTICUT MASON CONTRACTORS, THE LEARNING CORRIDOR ET AL.
    (AC 32086)
    Lavine, Alvord and McDonald, Js.

      Argued March 17
    officially released August 16, 2011

      Petraq Bode, pro se, the appellant (plaintiff).

      Angelo Cicchiello and Jonathan A. Cantor filed a brief for the appellant (plaintiff).

      Heather Porto, with whom, on the brief, was James L. Pomeranz, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Petraq Bode, appeals from the decision of the workers’ compensation review board (board) affirming the determination by the workers’ compensation commissioner for the fifth district (commissioner) that he was not entitled to benefits pursuant to General Statutes § 31-307. On appeal, the plaintiff maintains, inter alia, that the board improperly affirmed the commissioner’s decision (1) that the plaintiff was not temporarily totally disabled on or after April 26, 2005, (2) that the plaintiff demonstrated an unwillingness to submit to right shoulder replacement surgery and (3) that the plaintiffs psychiatric claim was not compensable. We reverse the decision of the board as to its affirmation of the commissioner’s finding that the plaintiff was not temporarily totally disabled and conclude that the commissioner improperly considered the plaintiffs “unwillingness to submit to right shoulder replacement surgery” under § 31-307. We affirm the board’s decision affirming the commissioner’s finding that the plaintiffs psychiatric claim was not compensable.

The following facts and procedural history are relevant to this appeal. The plaintiff was bom in Albania in 1947. He has only a limited understanding of the English language. He moved to the United States in 1999, and thereafter the defendant employer, Connecticut Mason Contractors, The Learning Corridor, hired him as a laborer. On October 29, 2002, the plaintiff fell approximately thirty feet from scaffolding and suffered injuries. He was hospitalized for four days for treatment of fractures of the cervical spine, lumbar spine and right shoulder and for a right inguinal hernia, before being transferred to an acute rehabilitation center, where he remained for an additional two weeks.

The commissioner took administrative notice of a voluntary agreement approved on June 1, 2004. The commissioner made the following findings of fact: “As a . . . result of the compensable injuries, the parties agreed that the [plaintiff] sustained a ten percent (10%) Permanent Partial Disability to his lumbar spine, a fifteen percent (15%) Permanent Partial Disability to his cervical spine, and a seventeen percent (17%) Permanent Partial Disability to his right master arm. . . . The parties further agreed that the [plaintiff] reached Maximum Medical Improvement on July 29, 2003. . . . [The adjuster for the claim stated that] in January of 2004, there was a without prejudice agreement to pay permanency as of July 29, 2003, for 10% of the lumbar spine, 15% of the cervical spine, and 17% of the right upper extremity. That had totaled 90.31 weeks. After those benefits had expired, [the plaintiff was] paid without prejudice temporary partial . . . benefits . . . for periods of time. . . . [A]s of July 17, 2006, [the plaintiff was paid] temporary total benefits without prejudice.” (Internal quotation marks omitted.) The commissioner concluded: “The [defendants] have paid the [plaintiff] all Permanent Partial Disability Benefits due to him thus far. ... All payments made subsequent to the Permanent Partial Disability Benefits were made without prejudice by the [defendants].”

The plaintiff requested temporary total disability benefits, accruing after April 26, 2005. On December 18, 2007, February 8, June 3 and July 31, 2008, the commissioner held formal hearings on the plaintiffs claim for temporary total disability benefits. At these hearings, the plaintiff testified and provided medical records, vocational evaluations and “Record of Employment Contacts” forms in which he had recorded his unsuccessful efforts to find employment between May, 2003, and December, 2006. The defendants produced three deposition transcripts and an independent vocational evaluation.

The board summarized the transcript of the plaintiffs testimony during the hearings as follows: The plaintiff “testified at length regarding his physical condition, contending that he has been totally disabled since the accident and currently suffers from tremors and shoulder pain that did not exist prior to the accident. He testified that he can only stand for ten to fifteen minutes at a time and that he could ‘never’ remain sitting at a desk for two horns continuously. . . . The [plaintiff] also indicated that he does not attend social events and ‘cannot work because he is in too much pain.’ . . . The [plaintiff] testified he could not complete a job application in English and does not read English newspapers. The [plaintiff] denied being able to work in the capacity of a parking lot attendant, coat room attendant, small parts inspector, or janitor. [He] also testified that because of his constant pain, he began to experience symptoms of depression. Finally, [the plaintiff] ‘stated that he has been walking with the aid of a cane since 2003 because, without it, he would start feeling dizzy and fall.’ ”

Additionally, the plaintiff produced a number of medical records at the hearing. These records reflected that throughout 2003, several doctors opined that the plaintiff was able to perform “light-duty” work. The remaining records produced, showing medical treatment between 2003 and 2008, memorialized the plaintiffs repeated complaints to medical professionals related to his injuries. None of the physicians opined that the plaintiff was totally disabled or unable to work on or after April 26, 2005. The plaintiff also provided three records showing psychiatric care.

On July 7, 2005, Nicola A. DeAngelis, an orthopedic surgeon, told the plaintiff that he had four treatment options for his right shoulder. These included (1) a conservative course of physical therapy and anti-inflammatories, (2) an intra-articular injection, (3) arthroscopic surgery or (4) a total shoulder replacement. He underwent arthroscopic surgery on that shoulder on September 16, 2005. Despite initial improvement, noted in two reports of follow-up visits on September 28 and November 3, 2005, the plaintiffs symptoms returned, at which point DeAngelis opined at an April 27, 2006 office visit that the plaintiffs “best option” was a total shoulder replacement. Over the next year, the plaintiff continued to consult physicians and the medical records reflect that he alternately expressed an interest in the joint replacement surgery, stated he was not interested, or requested time to think about it.

Reports of four vocational evaluations were entered into evidence. The first evaluation was performed by Ronald Freedman, a certified vocational rehabilitation specialist, in October, 2003. His November, 2003 report, based on this evaluation (November, 2003 vocational report), concluded that the plaintiff “now can do a limited range of light to sedentary work.” The second evaluation, performed during January, 2004, with results set forth in a February, 2004 report (February, 2004 vocational report), also concluded that the plaintiff was “presently employable.” An August, 2004 report (August, 2004 vocational report) stated that the plaintiff did “not present as able to meet the demands and expectations of competitive employment.” The plaintiffs records were reevaluated during July, 2008, again by Freedman (July, 2008 vocational report), who concluded that due to his worsening condition the plaintiff was completely unemployable.

At the hearing, the defendants produced a deposition transcript from Peter R. Barnett, an orthopedic surgeon, in which Barnett opined that as of an office visit on September 19, 2006, the plaintiff had the capacity to work, despite the “bad right shoulder.” On January 21, 2009, the commissioner issued a written opinion, identified three issues, made a number of findings of fact and, inter alia, dismissed the claim for temporary total disability benefits and the claim for compensable psychiatric treatment.

In its decision dated March 3,2010, the board affirmed the decision of the commissioner. Specifically, the board concluded that, inter alia, the plaintiff failed to meet his burden of proving eligibility for temporary total disability benefits because (1) he “did not introduce one medical report in which a physician opined that [he] was totally disabled,” (2) “the trier was presented with conflicting vocational expert testimony” and (3) it was “well within the power of the [plaintiff] to have procured a report clarifying the period(s) of total disability following the surgery of September 16, 2005 . . . .” The board also upheld the commissioner’s conclusion that the plaintiff “demonstrated an unwillingness” to proceed with the shoulder surgery because this finding was supported by the record, and concluded that “[i]t may be reasonably inferred that it appeared to the commissioner that the [plaintiff] had failed to avail himself of ‘reasonable medical assistance . . . .’” Finally, the board stated that “because this board is not empowered to overturn a trier’s evidentiary determinations unless they lack foundation in the record . . . the trial commissioner’s decision to dismiss the [plaintiffs] psychiatric claim must stand.” (Citations omitted.) This appeal followed. Additional facts will be set forth as necessary.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny.” (Internal quotation marks omitted.) Deschenes v. Transco, Inc., 288 Conn. 303, 311, 953 A.2d 13 (2008). “The commissioner has the power and duty, as the trier of fact, to determine the facts.” (Internal quotation marks omitted.) Cervero v. Mory’s Assn., Inc., 122 Conn. App. 82, 90, 996 A.2d 1247, cert. denied, 298 Conn. 908, 3 A.3d 68 (2010).

I

The plaintiff claims that the board improperly affirmed the commissioner’s decision that the plaintiff was not temporarily totally disabled because the commissioner (1) arbitrarily disregarded evidence that he underwent right shoulder surgery on September 16, 2005, and the uncontroverted vocational expert opinions and (2) improperly found that the plaintiff demonstrated an unwillingness to submit to right shoulder replacement surgery. We reverse the decision of the board affirming the commissioner’s finding that the plaintiff was not temporarily totally disabled and conclude that the commissioner improperly considered the plaintiffs “unwillingness to submit to right shoulder replacement surgery” in his application of § 31-307.

Under the Workers’ Compensation Act, General Statutes § 31-275 et seq., “[a] worker is entitled to total disability payments pursuant to ... § 31-307 only when his injury results in a total incapacity to work, which [our Supreme Court has] defined as the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow.” (Internal quotation marks omitted.) Krevis v. Bridgeport, 63 Conn. App. 328, 336, 777 A.2d 196 (2001). Our Supreme Court stated in Osterlund v. State, 135 Conn. 498, 66 A.2d 363 (1949), that “[a] finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Id., 506-507. “If, because of the employee’s injury, his labor becomes unmarketable, in spite of his diligent efforts to find work, his earning power is gone and he is totally incapacitated.” Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456-57, 78 A.2d 339 (1951).

This court previously has stated that “[i]n order to receive total incapacity benefits under § 31-307, a plaintiff bears the burden to demonstrate a diminished earning capacity by showing either that she has made adequate attempts to secure gainful employment or that she truly is unemployable. . . . Whether the plaintiff makes this showing of unemployability by demonstrating that she actively sought employment but could not secure any, or by demonstrating through a nonphysician vocational rehabilitation expert or medical testimony that she is unemployable ... as long as there is sufficient evidence before the commissioner that the plaintiff is unemployable, the plaintiff has met her burden.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 684-85, 939 A.2d 591 (2008), rev’d in part on other grounds, 294 Conn. 564, 986 A.2d 1023 (2010).

“Whether a claimant is realistically employable requires an analysis of the effects of the compensable injury upon the claimant, in combination with his preexisting talents, deficiencies, education and intelligence levels, vocational background, age, and any other factors which might prove relevant. This is of course the analysis that commissioners regularly undertake in total disability claims .... A commissioner always must examine the impact of the compensable injury upon the particular claimant before him.” R. Carter et al., 19 Connecticut Practice Series: Workers’ Compensation Law (2008 Ed.) § 8:40, p. 301.

The import of Osterlund v. State, supra, 135 Conn. 498, is that the commissioner must evaluate not only the physical incapacity of the plaintiff, but the effect that the physical injury has on the plaintiffs employability. In the present case, we acknowledge that, as the board noted, “the [plaintiff] did not introduce one medical report in which a physician opined that the [plaintiff] was totally disabled.” Further, the commissioner had before him deposition testimony from the defendants’ independent medical examiner, Barnett, stating that the plaintiff had the “capacity” to work, although limited to certain physical functions. The medical evidence undisputedly indicates that the plaintiff had some work capacity, however limited. The commissioner’s inquiry, however, as to whether the plaintiff was realistically employable should not have ended with his review of the physicians’ assessments of the plaintiffs physical capabilities. Under the facts of this case, the commissioner’s decision necessarily involved his consideration of the plaintiffs testimony and his review of the record of employment contacts forms and the four vocational reports.

The plaintiff claimed total temporary disability arising on April 26, 2005. Several vocational reports were introduced into evidence, including the November, 2003 vocational report and the February, 2004 vocational report. None of the vocational experts testified at the hearing. The February, 2004 vocational report, which was produced at the defendants’ request, was the only one that, without equivocation, concluded that the plaintiff was “presently employable.” (Emphasis added.) It was silent as to the plaintiffs employability in the future. Both the November, 2003 and February, 2004 vocational reports indicated a single day on which the plaintiff was evaluated. Thus, the February, 2004 vocational report stands alone as unequivocal evidence before the commissioner that the plaintiff was employable.

The pla.irit.iff produced two reports that stated he was unemployable, both completed after the November, 2003 and February, 2004 vocational reports. One such report, the August, 2004 vocational report, was completed over the course of seven days. The evaluator noted that the plaintiff was “unable to communicate in English. . . . The [plaintiffs] physical discomfort was apparent and manifested by his inability to maintain a seated position. . . . The [plaintiff] attempted to complete testing in a combination of sitting and a standing position .... This accommodation was never sufficient in that he continued to require time to completely recline on the raised mat and invariably ended the day after approximately two hours.” The evaluation for the August, 2004 vocational report was scheduled to occur over a ten day period, but the vocational expert ended his evaluation after seven days upon noting that “the [plaintiff] presented as extremely fatigued and attempting to cope with heightened discomfort. He reported dizziness, appeared ashen .... The [plaintiff] was tearful . . . .” The report indicates that the expert spoke with the plaintiffs “Workers’ Compensation Coordinator” who was “agreeable to ending the evaluation, with the knowledge that the client is clearly unable to work at this time.” The August, 2004 vocational report concluded that “[t]he client does not present as able to meet the demands and expectations of competitive employment. It is recommended that the client investigate his eligibility for Social Security benefits.”

During July, 2008, while the formal hearings were being held on the April, 2005 claim, Freedman, the vocational expert who produced the November, 2003 vocational report, reviewed the plaintiffs updated medical records and provided a revised opinion that “when I add to [my observations of the plaintiffs medical issues] the facts that [the plaintiff] still is not fluent in English and is now over 60 years old, the prospects for any type of employment I feel are nil. ... I feel that this man is totally unemployable.” In his decision, the commissioner only made two findings with regard to the vocational reports. He noted that the February, 2004 vocational report concluded that the plaintiff was employable, while the July, 2008 vocational report concluded he was unemployable. The commissioner did not make any finding as to the reliability of the vocational evidence, and further, in his decision ignored completely the August, 2004 vocational report.

The board suggested that the trier of fact was presented with conflicting vocational expert testimony and, thus, it was his responsibility to accept or reject the testimony. In workers’ compensation cases, “the opinions of experts [are] to be received and considered as in other cases generally . . . .” (Internal quotation marks omitted.) Keenan v. Union Camp Corp., 49 Conn. App. 280, 284, 714 A.2d 60 (1998). Although it is true that, ordinarily, a commissioner is not required to accept as true the opinion of any medical expert; Daly v. DelPonte, 225 Conn. 499, 517, 624 A.2d 876 (1993); in this case there was no basis reflected in the record for the commissioner to discount the August, 2004 vocational report or the July, 2008 vocational report, both of which were the results of evaluations that were more appropriately scheduled in conjunction with the April, 2005 date on which the plaintiff claimed benefits and were closer in time to the 2008 and 2009 hearing dates. See Loring v. Planning & Zoning Commission, 287 Conn. 746, 759, 950 A.2d 494 (2008) (“must be some basis in the record to support the [trier of fact’s] conclusion that the evidence of the [expert witness] is unworthy of behef ’ [internal quotation marks omitted]); Pietraroia v. Northeast Utilities, 254 Conn. 60, 756 A.2d 845 (2000) (commissioner abused his discretion in dismissing in part workers’ compensation claim, because there was no basis on record to disregard written medical opinions indicating that plaintiff was unavailable). Compare Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42-43, 668 A.2d 1346 (1996) (commissioner specifically rejected testimony when no evidence supported expert’s conclusion).

Furthermore, our Supreme Court previously has declined to afford deference to the commissioner’s credibility determinations when such determinations were based solely on documentary evidence, noting that “no testimony regarding any of the underlying assertions was taken. All of the facts . . . were reflected in the medical reports from the physicians .... Thus, the deference we normally would give to the commissioner on issues of credibility is not warranted in the present case, because we are as able as he was to gauge the reliability of those documents.” Pietraroia v. Northeast Utilities, supra, 254 Conn. 75.

This court may review the vocational documents, job search forms and medical records to determine, as a matter of law, whether the plaintiff was employable. See Lash v. Freedom of Information Commission, 300 Conn. 511, 520, 14 A.3d 998 (2011) (reviewing contents of documents and concluding that commission’s determination was incorrect “as a matter of law”); Jacob v. Seaboard, Inc., 28 Conn. App. 270, 274, 610 A.2d 189 (question of law arises as to legal inferences to be drawn from documents where record before this court is identical to record before trial court and when trial court had no occasion to evaluate credibility of witnesses), cert. denied, 223 Conn. 923, 614 A.2d 822 (1992). The record reflects that there was no evidence that the plaintiff was employable, at any time, after February 5, 2004. There were two vocational reports dated August, 2004, and July, 2008, both of which stated the plaintiff was not employable. The commissioner also had before him the job search forms showing the plaintiffs failed attempts to secure employment. Despite this evidence, he (1) made no conclusions as to the reliability of the vocational reports or regarding the plaintiffs employ-ability, (2) ignored the August, 2004 vocational report and the job search forms and (3) concluded that the plaintiff was not entitled to total temporary disability benefits.

Additionally, the commissioner had before him evidence that the plaintiff had shoulder surgery during the time that he claimed temporary total disability. As the board stated, it was “eminently reasonable to infer that [the plaintiff] probably did experience a period of total disability associated with the surgery performed on his right shoulder on September 16, 2005 . . . .” In refusing to award such disability benefits, the board pointed to the absence of “appropriate documentation” and ignored the fact that, although there were only three records directly concerning the arthroscopic surgery, the plaintiff did produce a medical report from DeAngelis, an orthopedic surgeon, in which she opined that it would take “six or eight weeks to do most of the recovery from the surgery and up to four to six months to recover completely.” While we agree with the board that the commissioner is not compelled to award temporary total disability benefits based solely on speculation as to the plaintiffs condition after the surgery, the medical records alone show that, at the very least, the plaintiff was disabled on the day the surgery was performed.

Although the commissioner could have attached great weight to the medical reports and physician’s deposition testimony in reaching his conclusion not to extend benefits, this evidence illustrates only the plaintiffs physical capacity. In the present case, there was also the plaintiffs testimony, proof that he attempted to secure employment and two timely vocational reports in which the experts opined he was completely unemployable. The record reflects no reason for the commissioner to have summarily disregarded this evidence. Under the Osterlund standard, and given the specific facts of this case, the commissioner had to consider the vocational evidence in his finding that the plaintiff failed to meet his burden. On the basis of our review of the documents, we determine that the only reasonable conclusion that the commissioner could have arrived at is that the plaintiff was unemployable, at least for portions of the time when he claimed benefits. The commissioner’s determination that the plaintiff was not temporarily totally disabled resulted from an incorrect application of the law to the subordinate facts and from inferences unreasonably drawn from those facts.

Our analysis does not end with the assessment of the plaintiffs employability. A significant number of the commissioner’s conclusions concern the plaintiffs “unwillingness to submit to right shoulder replacement surgery.” The commissioner’s findings include: “[t]he [plaintiff] has demonstrated an unwillingness to submit to right shoulder replacement surgery,” “the [commission has] authorized the . . . replacement surgery and continue[s] to hold out that option,” “[t]here is competent and persuasive medical evidence to indicate that the [plaintiff] is limiting his recovery by not opting for right shoulder replacement surgery,” and “[t]here is competent and persuasive medical evidence to indicate that the [plaintiffs] right shoulder condition may worsen as a result of his refusal to have right shoulder replacement surgery.” The commissioner did not cite a statute under which he considered the refusal of treatment. We conclude that the commissioner improperly considered the plaintiffs alleged refusal of surgery and the reasonableness of the treatment in his finding that the plaintiff was not temporarily totally disabled under § 31-307.

Both the board and the plaintiff cite General Statutes § 31-294e (b) in setting out the standard for the rejection of reasonable medical care, but fail to address directly the commissioner’s misapplication of the statutory section to an altogether separate inquiry as to the plaintiffs employability under § 31-307. Section 31-294e, by its terms, governs the suspension of compensation that would otherwise be warranted and provides that “[i]f it appears to the commissioner that an injured employee has refused to accept and failed to obtain reasonable medical and surgical aid or hospital and nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure.” General Statutes § 31-294e (b). According to Black’s Law Dictionary (9th Ed. 2009), the term “suspension” means “[t]he act of temporarily delaying, interrupting or terminating something.” See also R. Carter et al., 19A Connecticut Practice Series: Workers’ Compensation Law (2008 Ed.) § 25:9, pp. 58-59, titled “Penalty for Refusing Medical Care” (“[T]he Draconian measure of suspension of benefits is rarely applied, given that some autonomy over one’s corpus is tacitly presumed, especially where unwanted surgery is at issue. . . . [T]he commissioner has discretion to decide whether the treatment is reasonable and whether refusal deserves punishment.”). Thus, considering the plaintiffs refusal to undergo shoulder replacement surgery when concluding whether the plaintiff may receive benefits under § 31-307 is a misapplication of the law.

The Workers’ Compensation Act “is remedial and must be interpreted liberally to achieve its humanitarian purposes.” Gil v. Courthouse One, 239 Conn. 676, 682, 687 A.2d 146 (1997). We conclude, under the particular facts of the present case, that the commissioner improperly disregarded the weight of the evidence that the plaintiff was temporarily totally disabled under Osterlund because, as a matter of law, he was unemployable for at least a portion of the time he claimed. We also conclude that the commissioner misapplied the law by considering the plaintiffs “unwillingness” to submit to right shoulder replacement surgery in his evaluation of the plaintiffs temporary total disability claim. Accordingly, we conclude that the board improperly affirmed the commissioner’s finding that the plaintiff was not entitled to temporary total disability benefits. On the specific facts of this case, we reverse the decision of the board affirming the commissioner’s finding that the plaintiff is not entitled to temporary total disability benefits.

II

The plaintiff also claims that the commissioner and the board committed reversible error in finding that the plaintiffs psychiatric claim was not compensable. We disagree, and affirm the decision of the board.

As noted previously, we are limited to determining whether the board’s conclusions on the basis of the facts “result! ed] from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... In other words, [t]hese conclusions must stand unless they could not reasonably or logically be reached on the subordinate facts.” (Internal quotation marks omitted.) Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 19-20, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003). “[I]n Connecticut traditional concepts of proximate cause constitute the rule for determining . . . causation [in a workers’ compensation case]. ... An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm. . . . The finding of actual cause is thus a requisite for any finding of proximate cause.” (Citation omitted; internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 591, 986 A.2d 1023 (2010).

The plaintiff has the burden of proving the causal relationship between the physical injury suffered and the claimed psychiatric symptoms. See General Statutes § 31-275 (16) (B) (ii). Apart from the plaintiffs testimony at trial, the record contains only three medical records pertaining to the plaintiffs mental health, none of which included a definitive medical opinion that the symptoms were related to the compensable injury. In light of our deference to the authority of the commissioner to evaluate the evidence, and the absence of evidence of a causal relationship between the plaintiffs physical injury and his depression, we agree with the board that the trial commissioner’s decision to dismiss the plaintiffs psychiatric claim must stand.

The decision of the workers’ compensation review board is reversed only as to the denial of temporary total disability benefits and the consideration of the plaintiffs “unwillingness to submit to right shoulder replacement surgery” under § 31-307, and the case is remanded to the board with direction to reverse the commissioner’s decision on those two issues and to remand the case to the commissioner for further proceedings according to law. The decision is affirmed in all other respects.

In this opinion LAVINE, J., concurred.

MCDONALD, J.,

concurring. I agree with the majority opinion. I only wish to add that I believe the workers’ compensation review board, while misapplying General Statutes § 31-307, also incorrectly upheld the withholding of all temporary disability benefits after April 26, 2005.

Following the shoulder surgery performed on the plaintiff, Petraq Bode, by Nicola A. DeAngelis, an orthopedic surgeon, on September 16, 2005, DeAngelis reported on April 27,2006, that there was some improvement but that the plaintiffs symptoms returned and his best option was a total shoulder replacement. It is the plaintiffs “demonstrated . . . unwillingness to submit to right shoulder replacement surgery, ” which the board found unreasonable, triggering the suspension of all such benefits. I note that the commissioner and the board did not set a date when delaying the further and drastic surgery became unreasonable. In these circumstances, where there has been one failed surgery and the patient sought other medical advice or second opinions regarding the risks and benefits of the proposed surgery, a recognized course of patient conduct,1 would conclude that the failure to immediately undergo total shoulder replacement was not unreasonable. I believe the board should not have upheld the withholding of all temporary disability benefits from April 26, 2005, forward.

       General Statutes § 31-307 (a) provides in relevant part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the injured employee’s average weekly earnings as of the date of the ipjuiy . . . .”

       Hartford Insurance Group is also a defendant in the present case.

       OnAugust 15,2007, CarlE. Fulwiler, a psychiatrist, performed apsychiatric clinic evaluation on the plaintiff. The record also contains notes for two subsequent visits to Fulwiler, on August 29 and September 24, 2007.

       The plaintiff was permitted to file a brief as a self-represented parly in addition to the brief filed by counsel for the plaintiff. At oral argument, the court granted the motion to withdraw filed by the plaintiffs counsel, and the plaintiff argued as a self-represented party.

       The plaintiff claims that “[c]ommon sense mandates that if a person is undergoing [shoulder surgery] he cannot work [on] that day. The operative report should suffice for such a common sense conclusion.”

        See Howard v. CVS Pharmacy, Inc., No. 5063 CRB-2-06-3 (April 4, 2007) (while evidence of job searches is “not an absolute requirement” to establish entitlement to § 31-307 (a) total disability benefits, “[i]t . . . does provide clear evidence as to whether the claimant has met the standard for total disability”).

       Expert vocational testimony is not required to establish or to refute a claim of total incapacity; see 19 R. Carter et al., supra, § 8:43, p. 307; but in this case the plaintiff provided such evidence and the record shows no reason to discount it summarily.

       See Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 668 A.2d 1346 (1996) (“[t]otal incapacity becomes a matter of continuing proof for the period claimed”; [internal quotation marks omitted] id., 39; and “the burden of proof was on the plaintiff to establish his continuing total incapacity from [the date of the claim], forward”; id., 42).

       That report provided that the plaintiffs “work history shows that to be successful at finding work, he had to be dependent on being able to do jobs at the upper ranges of the strength capacities .... [H]is reduction to the light to sedentary ranges now requires him to work inside, at work sites where his lack of language facility may become more problematic .... This factor will also impact the job searches he can be successful at. In summary, [the plaintiff] is an older gentleman, who can now do a limited range of light to sedentary work. ... A supported employment situation can determine if this individual can reach competitive productivity norms.”

       The board previously has affirmed the commissioner’s finding that an individual is disabled where he “lacks the tenets of employability,” and where factors rendered that individual’s labor unmarketable when combined with the physical restrictions resulting from the compensable iiyuries. See, e.g., Hidvegi v. Nidec Corp., No. 3607 CRB-05-97-05 (June 15, 1998) (although claimant had light duty capacity, she was temporarily totally disabled because she was not capable of any degree of work and not employable on basis of physical restrictions, age, limited education and lack of transferable skills); Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 251 (1995) (although claimant had light duty work capacity, he was temporarily totally disabled due to his age, deafness, inability to speak English, and limited education).

       The commissioner did not include the August, 2004 report in his decision, but the board reviewed that report in its assessment of the vocational evidence.

       General Statutes § 31-275 provides in relevant part: “As used in this chapter, unless the context otherwise provides: (1) ‘Arising out of and in the course of his employment’ means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer, provided . . .
      “(16) • . . (B) ‘Personal injury’ or ‘injury’ shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises (I) from a physical injury or occupational disease . . . .”

       In the discussion of the partial disability, the commissioner and the board found that the plaintiffs symptoms returned after the September 16, 2005 shoulder surgery and that he sought these second opinions. Over the next three months, the plaintiff continued to consult physicians and the medical records reflect that on May 15,2006, the plaintiff consulted Michael A. Brown, an orthopedic surgeon, for an outpatient consultation to discuss the risks and benefits of shoulder replacement surgery; on July 20, 2006, the plaintiff consulted Theodore Shoemaker, a medical doctor, to discuss possible shoulder surgery; and on July 31, 2006, the plaintiff consulted Tara Rizvi, a rheumatologist, to discuss possible shoulder surgery.

       “The single most important way you can stay healthy is to be an active member of your own health care team. ... No surgery is risk free. It is important to learn about the possible benefits and risks involved in the surgical procedure .... Research has shown that patients who are informed about their procedure can better work with their doctors to make the right decisions. Getting a second opinion is important.” Beth Israel Deaconess Medical Center in partnership with the United States Department of Health & Human Services, “Questions to Ask Your Doctor Before Having Surgery,” available at http://www.bidmc.org/YourHealth/HealthNotes/Surgeiy/QuestionstoAskYourDoctorBeforeHavingSurgery.aspx (last visited July 27, 2011).
      “Second opinions offer a different perspective on a condition that has previously been assessed. By asking a different physician to look at [a] case, [one] may learn new ways to treat [a] condition or simply obtain reassurance that [a] current treatment plan is the most appropriate.” Massachusetts General Hospital, Vascular Center, “Second Opinions,” available at http:// www.massgeneral.org/vasculaxcenter/appointments/secondopinions.aspx (last visited July 27, 2011).


author: PETERS, J.

text:
    WATER POLLUTION CONTROL AUTHORITY OF THE CITY OF BRIDGEPORT v. RONALD JOHNSON ET AL.
    (AC 32621)
    Gruendel, Beach and Peters, Js.

      Argued June 2
    officially released August 16, 2011

      David W. Colwick, with whom, on the brief, was Carmine Perri, for the appellant (defendant JMP & Sons Property Management, LLC).

      Juda J. Epstein, with whom, on the brief, was John J. Ribas, for the appellee (plaintiff).
   Opinion

PETERS, J.

Pursuant to General Statutes § 49-30, the rights of a purchaser acquiring title at a foreclosure sale are governed by the rule of caveat emptor. Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 235, 896 A.2d 797 (2006). In this case, in accordance with § 49-30, the property that a purchaser bought at a foreclosure sale previously had been held to be subject to a mortgage hen that had been omitted in the documentation of the foreclosure proceedings. The only issue in this appeal is whether the trial court abused its discretion in denying the purchaser’s consequent motion to vacate the foreclosure judgment. We affirm the judgment of the court.

On July 2, 2007, the plaintiff, the Water Pollution Control Authority of the city of Bridgeport, filed a complaint for the foreclosure of a sewer use lien on property located at 230 Trumbull Avenue that was owned by the defendant Ronald Johnson (Johnson). The complaint identified the defendant Fremont Investment & Loan (Fremont) as holding one of two encumbrances that were subsequent to the plaintiffs interest. On September 10,2007, the court entered a judgment of foreclosure by sale. At an auction conducted on January 5, 2008, the property was sold to the defendant JMP & Sons Property Management, LLC (JMP), for $99,100. After court approval of the committee deed, the property was conveyed to JMP on February 29, 2008.

On May 14, 2008, Fremont moved to open the judgment of foreclosure and to dismiss the plaintiffs complaint. It alleged that, on February 8, 2006, Fremont had lent Johnson $192,000 secured by a mortgage on his Trumbull Avenue property, and that while Fremont was the payee on the note, it had never been the mortgagee of record. The mortgage securing the note was held by Mortgage Electronic Registrations Systems, Inc. (MERS), and the plaintiffs foreclosure complaint improperly had failed to reference MERS as a mortgagee of record. Relying on General Statutes § 49-26, JMP objected to the motion on the ground that its title in the foreclosed property had become absolute. The court, Pinkus, J., denied Fremont’s motion because, without a legal or equitable interest in the property, Fremont lacked standing to pursue its claim.

On May 2, 2008, MERS had, however, assigned its interest in the mortgage to LaSalle Bank, N.A., Trustee (LaSalle). On May 27, 2008, relying on § 49-30, LaSalle brought a separate action to foreclose its mortgage interest in Johnson’s property. LaSalle Bank, N.A., Trustee v. Johnson, Superior Court, judicial district of Fairfield, Docket No. CV-08-5016113-S. It alleged that, because the MERS mortgage improperly had been omitted from the plaintiff’s foreclosure action, LaSalle was not bound by the foreclosure judgment. Over JMP’s objection, the court, Doherty, J., upheld LaSalle’s right to pursue its foreclosure action with respect to the property that JMP had bought at the plaintiffs foreclosure sale.

On August 28, 2009, JMP filed a motion in the present action to open and vacate the foreclosure judgment and all supplemental judgments. Because foreclosure of LaSalle’s lien would deprive it of its rights as a purchaser at the foreclosure sale, JMP moved that the judgment of sale be opened and vacated on equitable grounds and that the proceeds of the sale be returned to JMP together with its costs. Ruling in accordance with the plaintiffs objection, the court denied JMP’s motion to open and its subsequent motion to reargue. This appeal followed.

JMP’s appeal is governed by a well established standard of review. “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.” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 275, 696 A.2d 315 (1997). JMP acknowledges that it can prevail only if it can establish that the court’s judgment was an abuse of its discretion. AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 417, 853 A.2d 497 (2004).

JMP argues that the court improperly (1) relied on § 49-30 and the rule of caveat emptor as governing title disputes in foreclosure actions, (2) found that the plaintiff had provided adequate warnings to bidders at the foreclosure sale that the purchaser would be assuming the risk of an undisclosed encumbrance on the property and (3) attached significance to JMP’s earlier objection to Fremont’s motion to set aside the foreclosure sale on the same ground that JMP raised in its motion to open. We disagree with each of these claims of impropriety.

I

JMP’s criticism of the court’s reliance on § 49-30 demonstrates a misunderstanding of the central role of this statute in establishing the ground rules that govern priority disputes in foreclosure sales. The statute unequivocally provides that the failure of a foreclosure sale to account for the interest of an undisclosed lienholder such as MERS is not a ground for invalidating the sale, which continues to be binding on the purchaser “as fully as if no such omission or defect had occurred . . . .” General Statutes § 49-30. Instead of invalidating the sale, the statute authorizes the undisclosed lien-holder to pursue its rights “by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title, or his successor in title, and the party or parties thus not foreclosed, or their respective successors in title.” General Statutes § 49-30. Thus, § 49-30 categorically and unconditionally imposes the risk of undisclosed liens on the purchasers of property at foreclosure sales, such as JMP.

Accordingly, in the companion case brought by LaSalle against JMP, the court, Doherty, J., properly relied on § 49-30 in holding that LaSalle has an enforceable mortgage claim against the property that JMP bought at the foreclosure sale. LaSalle Bank, N.A., Trustee v. Johnson, supra, Superior Court, Docket No. CV-08-5016113-S (August 10, 2009). This holding in the LaSalle case led JMP to file the motion to open and vacate the judgment of foreclosure in the present case.

II

The categorical mandate of § 49-30 diminishes the probative force of JMP’s claim that the plaintiff provided inadequate warnings to prospective purchasers of the risk of an undisclosed hen on Johnson’s property. The text of § 49-30 does not impose such a duty on the foreclosing lienholder. JMP has not cited any other statute that imposes such a duty.

We recognize that, in light of the equitable nature of foreclosure proceedings; Ridgefield Bank v. Stones Trail, LLC, 95 Conn. App. 279, 282-83, 898 A.2d 816, cert. denied, 279 Conn. 910, 902 A.2d 1069 (2006); the plaintiff nonetheless was required to take reasonable steps to alert prospective purchasers to the inquiries that they should make for their own protection. Yet § 49-30 has a role to play in the assessment of the adequacy of the plaintiffs cautionary instructions to prospective purchasers. Disclaimers of warranty in a contract for the sale of goods are read strictly because they limit the rights that article 2 of the Uniform Commercial Code otherwise would provide to a disappointed purchaser of goods. See General Statutes §§ 42a-2-312 through 42a-2-316. Strict construction is not the proper rule for cautionary instructions that alert prospective purchasers to the risks of loss assigned to them by § 49-30.

In this case, the court, after determining that it had discretion to decide whether to grant JMP’s motion to open the judgment of foreclosure, concluded that the documentary record demonstrated that the plaintiff had fulfilled its ethical obligations to JMP. Among the many facts on which the court relied was that, in advertising the sale, the plaintiff had warned potential purchasers that “[t]he property will be sold as a whole, ‘as is,’ without representations of any kind, free and clear of interests of the parties bound by said judgment but subject to taxes and such other hens not foreclosed by said judgment . . . .” (Emphasis altered.) The “fact sheet—notice to bidders” likewise warned that “[t]he property is being sold ‘as is,’ subject to no contingencies whatsoever. The Committee makes no warranties, either express or implied, concerning the property’s condition, and no adjustments will be made for any defects that may be discovered after this date.” Consistent with these warnings, the real estate contract provided in relevant part: “Said premises are to be sold further subject to . . . any and all provisions of any public or private law, easements and encumbrances of record.” (Emphasis altered.)

JMP argues, however, that the committee deed of sale was fatally misleading in its description of the property that JMP was purchasing. The deed stated that the premises were being conveyed “free and clear of the mortgage/lien being foreclosed, and of all claims subsequent in right thereto, the holders of which are bound by this action. Said premises are conveyed subject to (a) all prior hens and encumbrances which are prior in right to the mortgage/lien foreclosed; (b) all taxes, sewer assessments and sewer use charges (if any) . . . .” It is undisputed that the MERS hen that was the basis for LaSalle’s foreclosure action was a subsequent hen.

JMP focuses on the language “free and clear ... of aU claims subsequent in right” as dispositive of its claim against the plaintiff. The plaintiff reminds us, however, that this language is followed by the limiting phrase “the holders of which are bound by this action.” JMP has not addressed the significance of this limiting phrase. Undisputedly, under § 49-30, MERS held a hen that, although undisclosed, was not bound by the plaintiffs foreclosure action. The deed of sale was, therefore, not misleading.

On this record, we conclude that the court did not abuse its discretion in declining to set aside the foreclosure sale for lack of notice to JMP of the risk that an undisclosed lienor might have superior property rights in the foreclosed property. The court carefully assessed the record in its entirety and properly gave weight to the extensive warnings that the plaintiff gave to potential purchasers of the foreclosed property. The court’s holding, although disappointing to JMP, necessarily reflects the policy adopted by our legislature in enacting § 49-30.

Ill

Finally, JMP maintains that the court abused its discretion in taking account of JMP’s role in the prior litigation about the MERS hen. “[B]ecause a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done." (Emphasis in original; internal quotation marks omitted.) Morgera v. Chiappardi, 74 Conn. App. 442, 457, 813 A.2d 89 (2003).

The court noted that JMP actively had opposed Fremont’s motion to open the judgment that had sought to remedy the same omitted mortgage interest that JMP presently was using as the basis for its claim for equitable relief. The court observed that JMP had “changed its position . . . only after discovering that the omitted subsequent interest holder could foreclose on the property in its own right regardless of the judicial sale to JMP.”

In this appeal, JMP maintains that the court’s analysis improperly overlooked the distinction between the procedural ground for its earlier objection to Fremont’s motion and the substantive ground for its present contention that the foreclosure sale should be set aside. It argues that, at the earlier hearing, it was entitled to rely on the apparent propriety of the foreclosure process in which it acquired the Johnson property, whereas in the present proceeding it is entitled to challenge the validity of the underlying propriety of the foreclosure sale.

We agree, however, with the plaintiffs observation that JMP’s argument ignores the significance of the fact that, however denominated, Fremont’s motion gave JMP actual notice, in 2008, that MERS was a mortgagee of record that had been omitted from the underlying foreclosure action brought by the plaintiff against Johnson. JMP then waited fifteen months to file its motion to open the judgment of foreclosure.

On this record, we agree with the court that it was reasonable to find that it was only the holding in favor of MERS’ assignee, LaSalle, that prompted JMP to pursue the very same claim that Fremont’s motion earlier had put on the table. We are persuaded, therefore, that the court properly concluded that “[ejquity does not require that JMP be allowed to rescind a transaction it now finds unfavorable . . . .”

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-30 provides: “When a mortgage or lien on real estate has been foreclosed and one or more parties owning any interest in or holding an encumbrance on such real estate subsequent or subordinate to such mortgage or lien has been omitted ... all other parties foreclosed by the foreclosure judgment shall be bound thereby as fully as if no such omission or defect had occurred and shall not retain any equity or right to redeem such foreclosed real estate. Such omission or failure to properly foreclose such party or parties may be completely cured and cleared by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title, or his successor in title, and the party or parties thus not foreclosed, or their respective successors in title.”

       The record reveals that Johnson was indebted to the plaintiff in the amount of $7570.99 and that the fair market value of his property was $240,000.

       The complaint also alleged that the sales price was inadequate.

       General Statutes § 49-26 provides: “When a sale has been made pursuant to ajudgment therefor and ratified by the court, aconveyance of the property sold shall be executed by the person appointed to make the sale, which conveyance shall vest in the purchaser the same estate that would have vested in the mortgagee or lienholder if the mortgage or lien had been foreclosed by strict foreclosure, and to this extent such conveyance shall be valid against all parties to the cause and their privies, but against no other persons. The court, at the time of or after ratification of the sale, may order possession of the property sold to be delivered to the purchaser and may issue an execution of ejectment after the time for appeal of the ratification of the sale has expired.”

       Although we have not been able to find any relevant legislative history, it is plausible to assume that the legislature’s allocation of the risk of nondisclosure to purchasers at foreclosure sales reflects the perception that foreclosure sales often are forced sales at which properties are purchased and sold at less than fair market value. See, e.g., First National Bank of Chicago v. Maynard, Superior Court, judicial district of New London, Docket No. CV-01-0558807 (December 18, 2001) (31 Conn. L. Rptr. 142), aff'd, 75 Conn. App. 355, 815 A.2d 1244, cert. denied, 263 Conn. 914, 821 A.2d 768 (2003); PHH Mortgage Service v. Pike, Superior Court, judicial district of Windham, Docket No. CV-98-0057613-S (August 21, 1998) (22 Conn. L. Rptr. 691); Stamford v. Three Dees Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-93-0128951-S (August 1, 1994).

       In JMP’s memorandum of law in support of its opposition to Freemont’s motion to open the judgment, JMP argued that the court was precluded from opening the judgment because absolute title had passed to JMP as the purchaser at the foreclosure sale and that opening the judgment would result in extreme prejudice and would “unfairly infringe” on JMP’s newly acquired interest in the property.