author: FLYNN, C. J.

text:
    MARY ANNE MANN v. GLADYS REGAN
    (AC 28736)
    Flynn, C. X, and Robinson and Peters, Js.

      Argued April 15
    officially released June 24, 2008

      James F. Sullivan, for the appellant (defendant).

      GeraldS. Sack, with whom, on the brief, was Eamonn Wisneski, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The plaintiff, Mary Anne Mann, brought this action to recover damages for injuries she had sustained to her face when she was bitten by a dog owned by the defendant, Gladys Regan. The defendant appeals from the judgment of the trial court rendered in favor of the plaintiff after a jury trial. On appeal, the defendant claims that (1) the court improperly admitted into evidence a statement of the defendant’s daughter and the defendant’s silence in response to that statement under the tacit admission exception to the hearsay rule, (2) the court improperly instructed the jury and (3) the evidence was insufficient to support the jury’s verdict. We reject the defendant’s claims and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incident in December, 2004, the plaintiff and the defendant had been friends for approximately thirty years. The plaintiff resided in Windsor, and the defendant lived in Florida and was the owner of a Lhasa Apso dog named Sam. The defendant’s dog was afraid and distrustful of strangers and would bark at strangers. The dog would become upset when people hovered or leaned over him. In addition, loud noises and sudden movements sometimes would upset the defendant’s dog.

On December 17, 2004, the defendant traveled to Connecticut with her dog. The plaintiff and her friend, Barbara Scanlon, met the defendant at the airport. While the defendant retrieved her luggage, Scanlon watched the dog, and, during this time, the dog growled at Scanlon when she reached her hand down toward the dog. The defendant stayed at the plaintiffs house for a few days before departing on December 20, 2004, to attend a wedding in Wisconsin. Because the parties previously had agreed that the plaintiff would care for the defendant’s dog while the defendant traveled out of state, the dog remained at the plaintiffs house.

Approximately six hours after the defendant left for Wisconsin, the plaintiff noticed that the dog was sitting on her couch in the sunroom. The plaintiff decided to place a blanket underneath the dog, and, as she leaned in toward the dog, the dog suddenly bit the plaintiffs right cheek, causing severe puncture wounds. The plaintiff immediately telephoned Scanlon, and Scanlon, after arriving a few minutes later, drove the plaintiff to a medical clinic where the plaintiff received treatment.

On December 22, 2004, the defendant and her daughter went to the plaintiffs house to retrieve the defendant’s dog. Upon arriving, the defendant observed the plaintiffs injuries, and a discussion ensued in which, inter alia, the plaintiff explained the incident. Thereafter, the defendant departed. The plaintiff continued to receive medical treatment for her injuries.

The plaintiff subsequently filed this action to recover damages from the defendant, claiming that the defendant was liable on a theory of common-law negligence. The complaint also contained a claim that the defendant was liable under General Statutes § 22-357, the “dog bite” statute, a strict liability statute for any injury caused by a dog, but the court struck this count.

A jury trial commenced on March 1, 2007. At the conclusion of the plaintiffs case-in-chief, the defendant orally made a motion for a directed verdict, arguing that the evidence was insufficient to establish that the defendant was negligent. The court stated that it would take the defendant’s motion under advisement. The defendant did not present any evidence, thereby concluding the evidentiary phase of the trial. The defendant then renewed her motion for a directed verdict, to which the court replied that it would reserve judgment on the defendant’s motion. The case was submitted to the jury, and, on March 2, 2007, the jury returned a verdict in favor of the plaintiff and awarded damages in the amount of $101,411.76. The jury also found that the plaintiff was 10 percent at fault for her injuries, and the damages award was reduced correspondingly. The court accepted the jury’s verdict, and the defendant subsequently filed a motion to set aside the verdict, which the court denied. Thereafter, the court rendered judgment in favor of the plaintiff. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly admitted into evidence the statement of her daughter, Christina Hahn, and the defendant’s silence in response to that statement under the tacit admission exception to the hearsay rule. The defendant argues that the plaintiff, as the proponent of the evidence, failed to establish one of the requirements of that exception, namely, that the circumstances surrounding Hahn’s statement naturally called for a reply from the defendant. We disagree.

The plaintiff made an offer of proof, outside of the jury’s presence, that the plaintiffs testimony would include a hearsay statement pursuant to the tacit admission exception. During the proffer, the plaintiff testified that when the defendant came to retrieve her dog, the defendant was accompanied by Hahn. The plaintiffs Mend, Scanlon, also was present at the plaintiffs house, and the four women were standing in close proximity in the plaintiffs kitchen. Upon observing the plaintiffs bandaged face, the defendant asked the plaintiff what had happened. The plaintiff informed the defendant that the defendant’s dog had bitten her. The defendant then stated, “What do you mean Sam bit you? What did you do to him?” The plaintiff told the defendant that she did not do anything to the dog and then explained the dog bite incident. Hahn stated, “Well, mom, you know he bit you.” The plaintiff further testified that the defendant, who was standing approximately five feet away, did not respond to Hahn’s statement, nor did she deny Hahn’s statement. The plaintiff testified that Hahn spoke loud enough for the defendant to hear. On the basis of the foregoing, the court concluded that the evidence qualified under the tacit admission exception to the hearsay rule and admitted it over the defendant’s objection. The plaintiff subsequently testified before the jury in a manner consistent with the testimony she gave during the offer of proof. In addition, Scanlon testified in the jury’s presence about Hahn’s statement and the defendant’s silence. The defendant claims on appeal that the court improperly admitted the evidence because one of the requirements of the tacit admission exception to the hearsay rule was lacking. We disagree.

Before addressing the defendant’s specific claim, we first identify the applicable standard of review. “To the extent a trial court’s admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, [an appellate court’s] standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no ‘judgment call’ by the trial court, and the trial court has no discretion to admit hearsay in the absence of a provision providing for its admissibility.

“We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion. ... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.” (Citations omitted.) State v. Saucier, 283 Conn. 207, 218-19, 926 A.2d 633 (2007).

In the present case, the defendant does not argue that the court improperly construed the hearsay rule, nor does she assert that the tacit admission exception to the hearsay rule was identified improperly. Rather, the defendant’s claim concerns the propriety of the court’s determination that the circumstances naturally called for a reply from the defendant so as to satisfy the relevant requirements for the tacit admission exception. Because the court’s assessment of whether the circumstances naturally called for a reply involves a “judgment call” by the court, we conclude that, under Saucier, the proper standard of review is the abuse of discretion standard.

Having identified the applicable standard of review, we now set forth the relevant legal principles that govern our resolution of the defendant’s claim. “An out-of-court statement used to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception applies.” DeMarkey v. Fratturo, 80 Conn. App. 650, 654, 836 A.2d 1257 (2003). Section 8-3 of the Connecticut Code of Evidence provides that certain statements are “not excluded by the hearsay rule, even though the declarant is available as a witness,” including a “statement that is being offered against a party and is . . . (B) a statement that the party has adopted or approved . . . .” Conn. Code. Evid. § 8-3 (1). The commentary to § 8-3 (1) (B) provides that “the common-law hearsay exception for tacit admissions, under which silence or a failure to respond to another person’s statement may constitute an admission . . . Obermeier v. Nielsen, 158 Conn. 8, 11-12, 255 A.2d 819 (1969); is carried forward in Section 8-3 (1) (B).” (Citation omitted.) Conn. Code Evid. § 8-3 (1) (B), commentary.

In Obermeier, our Supreme Court stated that “[t]he failure of one person to contradict or reply to the statement of another person made in his presence and hearing may amount to an admission by adoption of the other’s assertion, providing the person remaining silent actually heard and understood the statement and was not disabled or prevented from replying, and the statement, under the circumstances made, was such as would naturally call for an answer. Under such circumstances evidence of the making of the statement and the silence of the person in whose presence it was made is admissible under the exception to the hearsay rule raised with respect to admissions .... This is known as the doctrine of tacit admissions . . . .” (Internal quotation marks omitted.) Obermeier v. Nielsen, supra, 158 Conn. 11-12. The plaintiff, as the proponent of the tacit admission, had to establish that (1) the defendant comprehended the statement made, (2) the defendant had the opportunity to speak, (3) the circumstances naturally called for a reply from the defendant and (4) the defendant remained silent. Id., 12; see also Roberto v. Honeywell, Inc., 43 Conn. App. 161, 165, 681 A.2d 1011, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

In support of her claim that the circumstances did not naturally call for a reply, the defendant argues that Hahn’s statement was made “in a meeting among longstanding friends who gathered around the holiday season and whose first concern was not the fault of any person but the injury that the plaintiff incurred. That is why under the circumstances . . . the first natural response of the defendant . . . was to inquire about [the plaintiffs] injury, not to reply to some cryptic, vague and ambiguous utterance by [Hahn].”

We cannot conclude that it was unreasonable for the court to determine that the circumstances naturally called for a reply from the defendant. The plaintiff testified that the statement by Hahn was given in the context of a conversation about the dog bite. Also, immediately preceding the statement by Hahn, the defendant had responded to the plaintiffs assertion that the dog had bitten her by saying to the plaintiff, “What do you mean Sam bit you? What did you do to him?” The court reasonably could have concluded that this statement by the defendant indicated disbelief on the part of the defendant and that Hahn’s statement, which referred to an instance in which the dog previously had bitten the defendant, was meant to address this disbelief.

Contrary to the defendant’s argument, the fact that Hahn’s statement was made during a conversation among friends, rather than adversaries, is not dispositive of whether the circumstances naturally called for a reply. The court reasonably could have concluded that regardless of the relationship between the people present when the statement was made, an owner, after hearing a statement about how she herself had been bitten by her dog, reasonably would be expected to respond to such a statement. Furthermore, the court reasonably could have determined that under the circumstances of the present case, a dog owner, such as the defendant, either would deny that such an occurrence had occurred or, at the very least, would offer an explanation for the incident so as to distinguish it from the present situation. After reviewing the record, we cannot say that the court abused its discretion in determining that the circumstances surrounding Hahn’s statement naturally called for a reply. Accordingly, we conclude that the court did not abuse its discretion in admitting the statement and the defendant’s silence under the tacit admission exception to the hearsay rule.

II

The defendant next claims that the court’s instruction to the jury regarding “dangerous” or “potentially dangerous” propensities was improper. Specifically, the defendant argues that the court should have instructed the jury on “vicious” propensities, as the defendant had requested in her proposed charge, rather than on “dangerous” or “potentially dangerous” propensities. The defendant contends that the court’s instruction “lowered the standard of care and misled the jury.” We are not persuaded.

As a preliminary matter, we identify the applicable standard of review and set forth the legal principles that govern our resolution of the defendant’s instructional claim. “A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” Pickering v. Rankin-Carle, 103 Conn. App. 11, 14, 926 A.2d 1065 (2007). “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 572-73, 898 A.2d 178 (2006).

In its charge to the jury, the court, in adapting the law to the case in question, stated that “[u]nder our law, the owner of a dog may be held liable for harm caused by the pet if the owner knows or should have known that the dog had dangerous or potentially dangerous propensities. Liability in such situation is based upon a finding that the dog owner failed to act upon knowledge of the propensity, which would constitute a breach of the duty of care by the owner to those coming into contact with . . . her dog.” (Emphasis added.)

The defendant first argues that the court’s usage of the word “dangerous,” rather than “vicious,” to describe the propensities of the dog was improper. We conclude that the court’s charge on “dangerous” propensities conveyed the same general principle as that requested by the defendant, namely, the characteristic of a dog that demonstrates a tendency or inclination to cause harm to a person. This principle also was explicated in the court’s discussion of examples of the type of evidence that may be sufficient to establish a dangerous propensity. Specifically, the court charged that “[e]vidence that the dog has bitten or attacked others or evidence of the owner’s knowledge that the dog engaged in behaviors which would tend to indicate a propensity to bite or otherwise injure people may be sufficient to establish” that the dog had dangerous propensities.

Furthermore, we are not persuaded that there is a meaningful distinction between the words “vicious” and “dangerous” as used in the context of an action stemming from a dog bite, nor has the defendant explained what that distinction would be. A review of appellate decisions reveals that this court, as well as our Supreme Court, frequently has used words other than vicious when referring to a dog’s propensities. See Granniss v. Weber, 107 Conn. 622, 625, 141 A. 877 (1928) (“[Principal purpose and effect [of the dog bite statute] was to abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper became no longer dependent upon his knowledge of the dog’s ferocity or mischievous propensity, literally construed the statute would impose an obligation on him to pay for any and all damage the dog may do of its own volition. It ‘extends the liability of the owner of a dog beyond that existing at common law.’ ” [Emphasis added.]); see also Auster v. Norwalk United Methodist Church, 286 Conn. 152, 160 n.10, 943 A.2d 391 (2008) (same); Stokes v. Lyddy, 75 Conn. App. 252, 266, 815 A.2d 263 (2003) (same); Murphy v. Buonato, 42 Conn. App. 239, 253, 679 A.2d 411 (1996) (O’Connell, J., dissenting) (“no indication in the present case that the plaintiff had such knowledge, i.e., scienter, of the dangerous propensities of the defendant’s dog” [emphasis added]), aff'd, 241 Conn. 319, 696 A.2d 320 (1997); see generally 4 Am. Jur. 2d, Animals §§75-76 (2007); 3B C.J.S., Animals §§331-32, 334 (2003).

With respect to the defendant’s claim that the court improperly charged on “potentially dangerous” propensities, we conclude that the court’s use of the word “potentially” was not improper and was meant to distinguish between the different types of evidence that may be used to establish the vicious or dangerous propensity of the dog about which the owner was charged with having knowledge.

The court instructed the jury that for the defendant to be liable, the plaintiff had to prove, inter alia, that the defendant knew or reasonably should have known of the dog’s dangerous or potentially dangerous propensities. In discussing this element of a common-law negligence action, the court stated that it could be established by evidence that the defendant had knowledge that the dog engaged in behaviors, other than biting or causing actual injury, that tended to indicate that the dog had a propensity to bite or otherwise to injure people. The court, in instructing the jury on this element, was explaining that other conduct on the part of a dog, in addition to the propensity to bite, could indicate a propensity, which likely or potentially could cause injury. This charge also was in accord with 3B C.J.S., supra, §§ 331-32, which similarly indicates that other propensities, besides the propensity to bite, can demonstrate the potential or the likelihood of a dog to cause injury, and, thus, the owner is charged with having knowledge of the dog’s dangerous propensities. We conclude that the instructions, when read as a whole, were adapted properly to the law and provided the jury with sufficient guidance. Accordingly, the defendant’s claim fails.

Ill

The defendant last claims that there was insufficient evidence to support the jury’s verdict on the plaintiffs claim of negligence. Specifically, the defendant contends that the jury reasonably could not have concluded that the dog had vicious propensities or that the defendant was aware of those propensities. We do not agree.

We begin by setting forth the standard of review applicable to claims of insufficient evidence. Our Supreme Court has stated: “[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. ... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.” (Citations omitted; internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 692, 768 A.2d 441 (2001).

“Under the common law of this state, it has been held that liability for injuries committed by a vicious animal is grounded in negligence. See Ford v. Squatrito, 86 Conn. 710, 86 A. 579 (1913). It is the duty of the owner of such an animal, having knowledge of its vicious propensities, to give notice of the propensities or to restrain the animal, and that failure to do so is negligence that makes the owner liable for its consequences.” Stokes v. Lyddy, supra, 75 Conn. App. 265-66. “[T]he plaintiff must prove that the dog had vicious propensities and that the owner or keeper had knowledge, or the means of knowledge, of them.” Basney v. Klema, 2 Conn. Cir. Ct. 538, 544, 203 A.2d 95 (1964). A vicious propensity is any propensity on the part of a dog that is likely to cause injury under the circumstances. See 3B C.J.S. 410, supra, § 331.

To support her claim that the evidence was insufficient, the defendant contends that the evidence adduced at trial indicated only that the dog barked at strangers and was shy, skittish and nervous. The defendant further argues that the evidence was insufficient because the circumstances surrounding the prior dog bite incident were unknown. We disagree and conclude that the evidence presented at trial was sufficient to support the jury’s determination that the defendant’s dog had vicious or dangerous propensities and that the defendant was aware or reasonably should have been aware of those propensities.

Contrary to the defendant’s arguments, the evidence was not insufficient and did not establish only that the dog was shy and skittish. Rather, the evidence demonstrated that the defendant’s dog would become upset and growl when people leaned toward him. Indeed, the defendant’s testimony indicated that she knew that her dog would become upset when people hovered or leaned over him and also that her dog, who was afraid and distrustful of strangers, would bark at strangers. The defendant further testified that loud noises and sudden movements sometimes would upset her dog. Scanlon stated that the dog growled at her when she had reached down toward the dog at the airport. In addition, from the testimony of the plaintiff and Scanlon, the jury heard evidence relating to an incident in which the dog previously had bitten the defendant. Although the defendant testified at trial that her dog had never bitten her, the jury, as the trier of fact and the final judge of the credibility of witnesses, was free to disbelieve the defendant and to reject this testimony as self-serving. See Birchard v. New Britain, 103 Conn. App. 79, 89, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721 (2007). After reviewing the record before us and considering the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found as it did.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the event that the defendant prevailed on appeal, the plaintiff presented an adverse ruling of the trial court for our consideration pursuant to Practice Book § 63-4 (a) (1) (B). The plaintiff claimed that the court improperly granted the defendant’s motion to strike the second count of the complaint. Because we affirm the trial court’s judgment, we do not reach this issue. See Travelers Ins. Co. v. Namerow, 261 Conn. 784, 786 n.2, 807 A.2d 467 (2002).

       In her motion to set aside the verdict, the defendant alleged that the court improperly (1) charged the jury, (2) admitted the statement of the defendant’s daughter and (3) allowed the plaintiff to call Wes Mann, the plaintiffs husband, as a witness.

       The court’s rendering of judgment in favor of the plaintiff was an implicit denial of the defendant’s motion for a directed verdict, which was based on the claim of insufficiency of the evidence.

       This claim is preserved for our review. The defendant filed a request to charge, and, following the court’s charge, the defendant took an exception, in which she argued that the court should have referred to “vicious” propensities.

       The defendant also appears to claim that the court submitted improper interrogatories to the jury because the court failed to use the defendant’s proposed interrogatories. Because the defendant has failed to brief this claim adequately, we decline to afford it review. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Citation omitted; internal quotation marks omitted.) Turner v. American Car Rental, Inc., 92 Conn. App. 123, 130-31, 884 A.2d 7 (2005).

       “Any propensity on the part of a dog, which is likely to cause injury under the circumstances ... is a dangerous or vicious propensity, and a vicious propensity does not mean only the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings. ... In order to charge the owner or keeper of a dog with knowledge or scienter of the animal’s vicious propensity, the notice of the dog’s propensity must be such as to put a prudent person on guard, and require him as an ordinarily prudent man to anticipate the injury. The crucial issue is whether the owner knows, or had reason to know, of the animal’s dangerous propensities. . . . Although the fact that the owner or keeper knows that the dog has on a previous occasion attacked or bitten a person, or otherwise manifested its vicious propensity, may be sufficient to charge him with knowledge thereof, it is not necessary that there be a previous attack or bite in order to charge the owner or keeper with knowledge or notice of the vicious propensity, for he is bound to observe other manifestations short of actual injury, and he cannot disregard them . . . .” 3B C.J.S., supra, §§ 331-32.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    CARMEN MUNIZ v. ALLIED COMMUNITY RESOURCES, INC., ET AL.
    (AC 28252)
    Harper, Beach and Borden, Js.

      Argued February 13
    officially released June 24, 2008

      Jack Senich, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

HARPER, J.

The plaintiff, Carmen Muniz, appeals from the decision of the workers’ compensation review board (board), which reversed the decision of the workers’ compensation commissioner for the fifth district (commissioner). The commissioner ruled that the plaintiff had suffered a compensable injury and awarded her benefits under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The plaintiff claims that the board improperly concluded that she was not an employee entitled to benefits under the act. We affirm the decision of the board.

At a contested hearing before the commissioner, it was undisputed and found that between October, 2001, and November, 2002, the plaintiff was employed as a personal care assistant, in which employment she provided personal care services for Gary LaChance. It was further undisputed and found that during this period of employment, the plaintiff worked up to 25.75 hours per week in or about LaChance’s private residence. The plaintiff claimed that she sustained a work-related knee injury for which she underwent surgery and suffered a period of total disability.

General Statutes § 31-275 (9) (B) provides that an “employee” entitled to benefits under the act “shall not be construed to include . . . (iv) [a]ny person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week . . . .” The commissioner concluded that in enacting this provision, the legislature “did not intend to exclude people like this [plaintiff] from workers’ compensation coverage. The [plaintiff] clearly was not a casual employee.” The commissioner concluded that the plaintiff was injured in the course of her employment, as a result of repetitive kneeling, as alleged. The commissioner ordered LaChance to pay total disability benefits and other related compensation to the plaintiff. The commissioner noted that in the event that LaChance failed to pay the claim, the plaintiff could obtain an order against the second injury fund.

The second injury fund appealed to the board. Following a hearing, the board applied § 31-275 (9) (B) (iv) and concluded that the plaintiff, who had not worked more than 25.75 hours a week as a personal care assistant, was not an employee entitled to benefits under the act. The board vacated the commissioner’s decision, and this appeal by the plaintiff followed.

“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., 284 Conn. 479, 487, 935 A.2d 625 (2007).

“We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . Similarly, [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Citation omitted; internal quotation marks omitted.) Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319, 324, 823 A.2d 1223 (2003).

The relevant facts underlying the plaintiffs appeal are not in dispute; the claim advanced by the plaintiff, which is that she is not encompassed in the casual employee exception codified in § 31-275 (9) (B) (iv), presents an issue of statutory interpretation to which we afford plenary review. See Smith v. Yurkovsky, 265 Conn. 816, 821, 830 A.2d 743 (2003). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Groton v. Mardie Lane Homes, LLC, 286 Conn. 280, 286-87, 943 A.2d 449 (2008).

The meaning of the governing statute is plain and unambiguous and, as applied to the facts of this case, is susceptible of only one reasonable interpretation. Only employees, as defined in the act, may avail themselves of benefits under the act. The relevant statutory provision, § 31-275 (9) (B), provides that the term “ ‘[e]mployee’ shall not be construed to include . . . (iv) [a]ny person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week . . . .” On the basis of the facts before the board, we conclude that the board correctly vacated the commissioner’s ruling because the plaintiff, who was not an employee for purposes of the act, was not entitled to benefits under the act.

“Although we recognize that the [act] should be broadly construed to accomplish its humanitarian purpose ... its remedial puipose cannot transcend its statutorily defined jurisdictional boundaries. . . . The entire statutory scheme of the [act] is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act; a claimant . . . who is not an employee has no right under this statute to claim for and be awarded benefits. ... [A claimant] may invoke the remedy provided under the [act] only if [the claimant], as a matter of law, satisfies the requisite jurisdictional standard of employee as defined by the legislature . . . .” (Citations omitted; internal quotation marks omitted.) Smith v. Yurkovksy, supra, 265 Conn. 822-23.

In challenging the board’s decision, the plaintiff relies on the commissioner’s finding that LaChance had personal care assistants, other than her, provide services for him. Thus, the plaintiff asserts that LaChance received personal care services in excess of forty hours per week. The plaintiff also relies on the fact that subsequent to her employment, the regulations governing the personal care assistant waiver program were amended to cover the services of a single personal care assistant up to forty hours per week. See Regs., Conn. State Agencies § 17b-262-593 (a) (3). The plaintiff also suggests that because she was a “low wage earner” who provided “invaluable service to a physically handicapped person,” public policy considerations warrant a reversal of the board’s decision.

The plaintiffs arguments are unavailing. The fact that LaChance received care from others during the time of the plaintiffs employment or that after her employment, the regulations governing her position were amended does not alter the fact that the plaintiff was not employed during the period in question for more than twenty-six hours per week. It is this dispositive fact that, in accordance with § 31-275 (9) (B) (iv), precludes the plaintiff from invoking the remedies provided under the act.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The department of social services operates the personal care assistance waiver program, which, with federal funding, assists eligible disabled adults by paying for qualifying personal care assistance services. Under General Statutes § 17b-262, the commissioner of social services promulgated regulations governing the program. See Regs., Conn. State Agencies §§ 17b-262-587 through 17b-262-596a.

       The plaintiff brought the claim against LaChance, Allied Community Resources, Inc., and the Connecticut Health Care Workers’ Compensation Trust (trust). The commissioner determined that LaChance, who did not defend the claim, was an uninsured party. The commissioner determined that Allied Community Resources, Inc., at relevant times a contractor hired by the state to act as a fiscal intermediary between personal care assistants and eligible individuals receiving assistance, was not a liable party. Finally, the commissioner determined that the trust was not a liable party. None of these determinations is challenged in this appeal.
      The commissioner found that LaChance was the plaintiff’s employer. The second injury fund; see General Statutes § 31-355; appeared before the commissioner and asserted that the claim was not compensable and that the plaintiff was an employee of the department of social services. The department of social services appeared before the commissioner and asserted that LaChance was the plaintiffs employer and that due to LaChance’s uninsured status, the second injury fund was responsible for paying the plaintiff’s claim.
      Neither LaChance, Allied Community Resources, Inc., nor the trust participated in proceedings before the board, before which appeared, in addition to the plaintiff, representatives of the second injury fund and the department of social services. Only the plaintiff and the second injury fund have filed briefs in this appeal.


author: BEACH, J.

text:
    EDWIN C. ST. GERMAIN v. GARY LABRIE ET AL.
    (AC 28380)
    Lavine, Beach and Peters, Js.

      Argued March 13
    officially released June 24, 2008

      Edwin C. St. Germain, pro se, the appellant (plaintiff).

      Gary LaBrie, pro se, and Charles Zuch, pro se, the appellees (defendants).
   Opinion

BEACH, J.

In this action for injunctive relief, the pro se plaintiff, Edwin C. St. Germain, appeals from the judgment of the trial court dismissing the action against the defendants, Gary LaBrie, Richard Barber, Charles Zuch and Patricia Startz, for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the court improperly (1) dismissed his complaint for lack of subject matter jurisdiction, (2) denied his motion for disqualification of the judicial authority and for a mistrial, (3) failed to rule on his motion for a continuance and (4) permitted an unsworn “witness” to “testify” at oral argument on the motions to dismiss filed by LaBrie and Zuch. With respect to the first issue, we conclude that the court properly dismissed the portion of the complaint in which the plaintiff sought to control the activities of persons on his alleged premises but improperly dismissed the portion of his complaint in which he sought to enjoin the defendants from damaging or removing his personal property located at the premises. We are not persuaded by the plaintiffs other claims on appeal. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In December, 2005, the plaintiff brought a complaint against the defendants, his former roommates, in which he alleged that he had purchased a twenty room house in Norwich in 1997 and subsequently sold it to a business partner. He claimed that he continued to reside in the house and that he rented out several rooms. He further claimed that he had been involved in a physical altercation with one of the individuals rent ing a room and that, as a result, a protective order was issued against him prohibiting him from returning to the house for eight years. In his complaint, the plaintiff essentially seeks to control the activities of persons on the premises and to enjoin all of the defendants from damaging or removing his personal property located at the house.

LaBrie and Zuch filed separate motions to dismiss the plaintiffs complaint for lack of subject matter jurisdiction. On April 3, 2006, the court, Hon. D. Michael Hurley, judge trial referee, granted the motions to dismiss without a memorandum of decision. The plaintiff thereafter, on December 22, 2006, filed an appeal from the granting of the motions to dismiss.

On January 10, 2007, the trial court issued an order stating that pursuant to Practice Book § 10-33, the action was dismissed. The court also prepared a judgment file indicating that the entire action was dismissed for lack of subject matter jurisdiction. The plaintiff then filed an amended appeal on January 26, 2007, seeking to challenge the court’s January 10, 2007 “alteration of [the] judgment . . . .” Additional facts will be set forth as necessary.

I

The plaintiff claims that the court improperly dismissed his complaint for lack of subject matter jurisdiction. The plaintiff seems to divide this claim into two parts. He claims first that the court improperly granted the motions to dismiss filed by LaBrie and Zuch and, second, that the court improperly thereafter dismissed the entire action sua sponte against all defendants. We agree with both of the plaintiffs claims but only with respect to the portion of his complaint concerning his personal property and not with respect to the portion of his complaint seeking to control the activities of persons on the premises.

We first set forth our standard of review. The standard of review of a challenge to a court’s granting of a motion to dismiss is well established. “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn. App. 699, 703-704, 905 A.2d 1236 (2006).

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests. . . .

“Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific, personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. ” (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).

A

The plaintiff first claims that the court improperly granted the motions to dismiss filed by LaBrie and Zuch. We agree in part and disagree in part.

We begin our analysis by noting that the court had before it arguable short calendar motions to dismiss. There was no evidentiary hearing, and the file reveals no request for one, nor were affidavits filed by LaBrie and Zuch with their motions to dismiss. In this context, we consider only the complaint and facts necessarily implied from the complaint in deciding the motion. In the absence of any disputed issues of fact pertaining to subject matter jurisdiction, our review is plenary. See Fennelly v. Norton, 103 Conn. App. 125, 139 n.11, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).

We first address the portion of the plaintiffs complaint seeking to control the activities of persons on the premises. The plaintiff has failed to allege facts in his complaint sufficient to establish standing, and, therefore, we conclude that the court properly dismissed that portion of the plaintiffs complaint for lack of subject matter jurisdiction. Specifically, we conclude that the plaintiff has not alleged facts sufficient to meet the first prong of the test for classical aggrievement. The plaintiff alleges in his complaint that he sold the house in 1997 to a business partner, who thereafter held title to the property. Because the plaintiff, in effect, acknowledged that he was not an owner, he lacks standing with respect to these claims. Accordingly, we conclude that the court properly granted LaBrie’s and Zuch’s motions to dismiss for lack of subject matter jurisdiction with respect to the portion of the plaintiffs complaint in which he sought to control the activities of persons on the premises.

We next address the portion of the plaintiffs complaint seeking to enjoin the defendants from damaging or removing his personal property. We conclude that the court improperly dismissed that portion of the plaintiffs complaint for lack of subject matter jurisdiction. We find nothing in the record indicating that the court lacked the authority to hear this particular type of legal controversy. Specifically, we note that the plaintiff has standing with respect to that portion of his complaint. In his complaint, the plaintiff seeks to enjoin the defendants from damaging or removing his personal property, which, undisputedly, was located at the house. “[T]he actual owner of personal property is a proper plaintiff in an action for damage to or loss of such personal property . . . .” 59 Am. Jur. 2d 444, Parties § 39 (2002). When construing the complaint in the light most favorable to the pleader, we conclude that the plaintiff has met both prongs for showing classical aggiievement. In his complaint, he has alleged facts sufficient to support a finding that he has a specific, personal and legal interest in his personal property and also has alleged that his specific personal and legal interest in his property specifically and injuriously has been affected by the challenged action.

B

The plaintiff also argues that the court improperly dismissed the entire action sua sponte against all defendants on January 10, 2007, for lack of subject matter jurisdiction. Specifically, he claims that the court improperly “altered the original [April 3, 2006] judgment” by dismissing the entire action against all defendants on January 10, 2007. “[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court, sua sponte, at any time.” (Emphasis in original; internal quotation marks omitted.) Commissioner of Transportation v. Larobina, 92 Conn. App. 15, 28, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005); see also Practice Book § 23-29. We reiterate that because “[a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008). We conclude that the same reasoning that applies to LaBrie and Zuch applies with respect to the remaining defendants. Accordingly, we conclude that with respect to all of the defendants, the court properly dismissed the plaintiffs complaint as to the portion that sought to enjoin the defendants from damaging the house itself and from permitting other persons’ access to the house but improperly dismissed the complaint as to the portion seeking to enjoin the defendants from damaging or removing his personal property located at the house.

II

The plaintiff next appears to claim that the court improperly denied his motion for disqualification of the judicial authority and for a mistrial. We disagree.

Practice Book § 1-22 (a) provides in relevant part: “A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct . . . .” “[C]anon 3 of the Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 527, 911 A.2d 712 (2006).

“The standard for determining whether a judge should recuse himself or herself pursuant to canon 3 (c) is well established. The standard to be employed is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case. . . . Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. . . . The standard for appellate review of whether the facts require disqualification is whether the court’s discretion has been abused.” (Internal quotation marks omitted.) Sabalasso v. Hogan, 91 Conn. App. 808, 825-26, 882 A.2d 719, cert. denied, 276 Conn. 923, 888 A.2d 91 (2005).

Our review of the plaintiffs grounds for disqualification that he asserted in his motion, and briefed on appeal, reveal that the grounds asserted amount to nothing more than claims that the court’s rulings were improper. “[A]dverse rulings by the judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification.” State v. Bunker, 89 Conn. App. 605, 613, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). Accordingly, we conclude that the court did not abuse its discretion in denying his motion.

Ill

The plaintiff next claims that the court improperly failed to rule on his motion for a continuance. We disagree.

“When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.” (Citation omitted; internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 451-52, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

On April 3, 2006, the plaintiff made an oral motion for a continuance. The plaintiff argued that he had a separate case pending in which he sought to evict certain individuals from the house, including LaBrie and Zuch, and that a continuance should have been granted so that the eviction case could be heard first. After hearing arguments from both sides, the court determined that it would “take the papers and decide the case.”

Contrary to the plaintiff’s assertion, the court did not fail to rule on his motion for a continuance. Instead, the court implicitly denied the motion when it had the parties proceed with their arguments despite the plaintiffs request for a continuance and when it determined, at the conclusion of arguments, that it would “take the papers and decide the case.”

The plaintiff offered no evidence or explanation as to why he was unable to proceed in the present case. The court was within its discretion to deny the continuance when there was no evidence that the plaintiff would be unable to proceed in this matter because of other pending matters or for any other stated reason. See, e.g., Catalano v. Falco, 74 Conn. App. 86, 91, 812 A.2d 63 (2002) (review of denial of motion for continuance limited to abuse of discretion standard).

IV

The plaintiff last claims that the court improperly permitted a third party, Jack Ross, to speak in open court during oral argument on April 3,2006. Specifically, the plaintiff claims that the admission of this “witness’ testimony” was improper because (1) Ross was permitted to “testify” without first having been administered an oath, (2) the court, rather than the parties, posed questions to Ross and (3) the plaintiff was not permitted to cross-examine Ross. If there was any impropriety, we conclude that it constituted harmless error.

When hearing oral argument on the defendants’ motions to dismiss, the court asked: “Is the owner [of the house] here?” Ross was present at the hearing and responded to the court’s question. He stated that his wife owned the property but acknowledged that the plaintiffs personal property still was then on the premises.

“[T]he standard in a civil case for determining whether an improper ruling was harmful is whether the . . . ruling [likely] would [have] affect[ed] the result.” (Internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007). There is no indication that Ross’ being permitted to speak affected the result. The facts relevant to subject matter jurisdiction and standing, namely, that the plaintiff was not the owner of the house but owned property that was at the house, were undisputed. The plaintiff alleged these undisputed facts in his complaint. Ross did not say anything that was inconsistent with those facts. The plaintiff has not shown any harm.

Although we affirm the portion of the judgment in which the trial court dismissed the plaintiffs claims in which he sought to control the activities of others on the premises, we reverse the portion of the judgment in which the trial court dismissed the plaintiffs claims concerning his personal property and we remand the case to the trial court for further proceedings consistent with this opinion.

The judgment is reversed only with respect to the plaintiffs claim concerning his personal property and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff also alleges in his complaint that he held an agreement to repurchase the property. Under the circumstances of this case, this alleged fact does not affect our analysis.

       We note that at the time of the court’s April 3, 2006 decision, another trial court, Schimelman, J., on December 21,2005, previously had dismissed a summary process action brought by the plaintiff, concluding that the plaintiff lacked standing to evict the tenants of the property.

       The plaintiff also claims that the court failed to read his motion before ruling on it. Absent some indication in the record to the contrary, we presume that the court acted properly in the performance of its duties, including reading the plaintiffs motion, and thus reject this claim. See Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1998) (“as to judges and courts, under the law of evidence, it is presumed, unless the contrary appears, that judicial acts and duties have been duly and regularly performed, the presumption of regularity attending the acts of public officers being applicable to judges and courts and their officers” [internal quotation marks omitted]).

       In this regard, the plaintiff argues as though the oral argument on the motions to dismiss was an evidentiary hearing; it was not.


author: PELLEGRINO, J.

text:
    ABEL RODRIGUEZ v. STEVEN SAUCIER ET AL.
    (AC 29024)
    Flynn, C. J., and McLachlan and Pellegrino, Js.
    Argued March 31
    officially released June 24, 2008

      Ramiro Alcazar, for the appellant (plaintiff).

      Paula N. Anthony, office of the corporation counsel, for the appellees (defendants).
   Opinion

PELLEGRINO, J.

The plaintiff, Abel Rodriguez, appeals from the judgment of the trial court rendered following the granting of the defendants’ motion for summary judgment. The issue on appeal is whether the court properly determined that the plaintiffs action was barred by the doctrine of collateral estoppel. We affirm the judgment of the trial court.

The facts of this case are not in dispute. The underlying claims arise from an automobile accident that occurred in Waterbury on July 12, 2004. The plaintiff, while operating his motor vehicle, came into contact with an automobile owned by the city of Waterbury (city) and driven by Steven Saucier, a Waterbury police officer. On July 6, 2006, the city filed an action in the small claims session of the Superior Court against the plaintiff, seeking recovery for property damage to the police cruiser involved in the accident.

Shortly thereafter, the plaintiff instituted the action on which this appeal is based on the regular docket of the Superior Court, alleging that he had sustained personal injuries in the July 12, 2004 accident. His complaint alleged that Saucier, while acting within the scope of his employment, negligently operated the police cruiser and that the city is liable for damages pursuant to General Statutes §§ 7-465 and 52-557n.

On October 6, 2006, the plaintiff filed an answer and counterclaim for personal injuries in the city’s small claims action. His answer incorporated by reference his complaint in the civil action. On February 20, 2007, the small claims court found that the plaintiff was at fault for the accident and awarded damages to the city. The court dismissed the plaintiffs counterclaim because there was no evidence to support it.

On April 30, 2007, the defendants filed a motion for summary judgment in the plaintiff’s action. The motion claimed that, as a matter of law, the plaintiff’s claim was barred by the equitable doctrines of res judicata or collateral estoppel. The court granted the defendants’ motion on the basis of collateral estoppel. This appeal followed.

We begin by setting forth the applicable standard of review. “[T]he issue of whether principles of res judicata and collateral estoppel are applicable to a particular set of facts is a question of law over which an appellate court’s review is plenary.” Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 744-45, 826 A.2d 170 (2003). “The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 772, 770 A.2d 1 (2001).

“Because these doctrines are judicially created rules of reason that are enforced on public policy grounds . . . [our Supreme Court has] observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim. . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.” (Citation omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 601-602, 922 A.2d 1073 (2007).

The plaintiff first claims that the doctrine of collateral estoppel is inapplicable because of the unavailability of appellate review of small claims judgments. We reject this argument when, as here, the plaintiff elected to litigate in a small claims proceeding. Furthermore, beyond that fact, the small claims session of the Superior Court is a court of competent jurisdiction for purposes of collateral estoppel. See, e.g., Isaac v. Truck Service, Inc., 253 Conn. 416, 420-21, 428-29, 752 A.2d 509 (2000); Dontigney v. Roberts, 73 Conn. App. 709, 710-12, 809 A.2d 539 (2002), cert. denied, 262 Conn. 944, 815 A.2d 675 (2003); but see Isaac v. Truck Service, Inc., supra, 416 (questioning whether issue preclusion applies when review unavailable).

Moreover, we find that the plaintiffs actions in this case result in the unavailability of appellate review because he elected to bring his claims as counterclaims in the city’s small claims action. He was not required to do this, as Connecticut has no compulsory counterclaims. See Lowndes v. City National Bank, 79 Conn. 693, 696, 66 A. 514 (1907) (“[wjhile the law encourages, it does not compel, the settlement of all controversies between the same parties by a single action”). The plaintiff, therefore, voluntarily elected to utilize the small claims session to seek adjudication of his rights, rather than proceeding with his independent cause of action.

Furthermore, if the plaintiff had wanted to litigate his claims with the city in a single proceeding, he had the option to move the small claims action to the regular docket of the Superior Court. See Practice Book § 24-21. “[W]here the parties have litigated to final judgment a small claims action ... it fairly may be assumed that they have chosen to do so because the goals of inexpensive, prompt, informal and final adjudication were consistent with their goals in resolving their particular dispute.” Isaac v. Truck Service, Inc., supra, 253 Conn. 427. The plaintiff cannot now, after electing to proceed in the small claims session and forgoing his ability to appeal, assert that the absence of the ability to appeal renders the doctrine of collateral estoppel inapplicable. To permit such a result would grant the plaintiff a second bite of the apple. Accordingly, we conclude that the doctrine of collateral estoppel is applicable in this case. The plaintiff also claims that the court improperly rendered summary judgment because an exception to the doctrine of collateral estoppel is applicable in this case. Specifically, the plaintiff claims that a prior small claims judgment for property damage does not bar a subsequent action for personal injuries arising out of the same accident. See id., 416. We disagree.

In Isaac v. Truck Service, Inc., supra, 253 Conn. 416, our Supreme Court held that “where the parties litigate to judgment, on the small claims docket, a claim for property damage to a motor vehicle arising out of a motor vehicle accident, that judgment will not bar a subsequent action, on the regular docket, for personal injuries arising out of the same accident.” Id., 422. The court’s holding was based, in part, on the fact that the amount of the property damage claim in automobile accidents typically will be ascertained much sooner than the ultimate value of the personal injury claim. Id., 423. Accordingly, public policy favors the prompt resolution of the property damage claims through the small claims process. Id., 424. In light of the limited amount of money involved, the ability of the plaintiff to forgo the small claims process and the option of the defendant to transfer the action to the regular docket, the court found that “where the parties have litigated to final judgment a small claims action for property damage arising out of an automobile accident, it fairly may be assumed that they have chosen to do so because the goals of inexpensive, prompt, informal and final adjudication were consistent with their goals in resolving their particular dispute.” Id., 427. The court concluded that “the doctrine [of collateral estoppel] does not apply to a claim for personal injuries arising out of an automobile accident, filed on the regular docket of the Superior Court, where the parties have litigated the question of property damage arising out of the same accident on the small claims docket of the court.” Id., 420.

The plaintiff argues that Isaac is analogous to the present case. We do not agree. Unlike in Isaac, the plaintiff in the present case had the opportunity, during the small claims action, to litigate fully and fairly all of the issues that his current action seeks to raise. By incorporating his entire complaint from the present case into his counterclaim in the small claims action, he raised the same issues in the small claims action that he is trying to raise in this case. The current case, therefore, is not a subsequent action as contemplated by Isaac but, rather, a concurrent action that was already litigated in the small claims court. Because the small claims court dismissed the plaintiffs counterclaim after he had the opportunity fully and fairly to litigate it, he cannot relitigate the same claim on the regular docket. Accordingly, his claim is barred by the doctrine of collateral estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Steven Saucier and the city of Waterbury.

       The plaintiffs complain! alleged that Saucier “was driving and operating a vehicle, owned by [the] defendant [c]ity of Waterbury, acting as a police officer with the Waterbury [pjolice [department and acting in the performance of his duties, and within the scope of his employment.” The plaintiffs complaint did not allege that Saucier was liable in his individual capacity for wanton or reckless conduct, and, accordingly, we find that the city of Waterbury is the real party in interest in this case, as it was in the small claims action. See General Statutes § 52-557n.

       Although not raised by the plaintiff before the trial court or on appeal, a claim against Saucier in his individual capacity might not be barred by the doctrine of collateral estoppel because Saucier was not a party to the small claims action giving rise to the preclusive judgment on which our decision is based. We conclude, however, that the plaintiffs complaint only alleged that Saucier was negligent while acting within the scope of his employment and does not state a claim that he is liable in his individual capacity. See footnote 2.


text:
    STATE OF CONNECTICUT v. LOUISE CALLAHAN
    (AC 28609)
    DiPentima, Lavine and Peters, Js.

      Argued April 17
    officially released June 24, 2008

      William B. Westcott, for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Robert G. Hall, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J. General Statutes § 54-56e establishes a discretionary accelerated rehabilitation program for certain criminal cases that permits the suspension of criminal prosecution for a stated period of time subject to such conditions as the court may order. State v. Spendolini, 189 Conn. 92, 95, 454 A.2d 720 (1983); State v. Trahan, 45 Conn. App. 722, 734, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997). Compliance with the stipulated conditions for the requisite period of time permits a defendant to apply to the court for dismissal of the applicable criminal charges. State v. Parker, 194 Conn. 650, 658, 485 A.2d 139 (1984). Failure to comply may, however, result in termination of the defendant’s participation in this discretionary program. In this case, the trial court terminated the defendant’s participation because the court found that the defendant had not complied with the court’s order to send a genuine letter of apology to a person whom the defendant had accused of harassment. The defendant has appealed. We affirm the judgment of the trial court.

The defendant, Louise Callahan, applied for participation in the accelerated rehabilitation program after having been arraigned on the charge of having made a false statement in the second degree in violation of General Statutes § 53a-157b. This charge arose from a complaint made by the defendant to Officer Tyrone Boyd of the Norwalk police department on September 12, 2005, in which the defendant alleged that, earlier that day, while she was driving on a local street, another driver, identified by the defendant as Barbara Murawski, had tried to force her off the road. On the following day, the defendant filed a formal complaint including a sworn statement alleging that Murawski had harassed her family for many years. Upon further investigation, Boyd determined that there was probable cause to believe that the defendant had provided a false statement regarding the incident on the road.

The trial court held a dispositional hearing to consider whether to admit the defendant to the accelerated rehabilitation program. Pursuant to § 54-56e (b), the court afforded Murawski an opportunity to be heard. Although Murawski described a protracted pattern of unfortunate encounters between her family and that of the defendant, she agreed that the defendant should be permitted to enter the accelerated rehabilitation program.

The state also agreed that the defendant was eligible for participation in the program but suggested to the court that, as a condition of her rehabilitation, the defendant be ordered to issue an apology to Murawski. Because of pending civil litigation with Murawski, the defendant expressed her reluctance to accede to a court-ordered apology. The court decided, nonetheless, that it would not permit the defendant to participate in the program unless the defendant agreed to apologize. After consultation with counsel, the defendant acquiesced in the court’s order for an apology, for the posting of certain letters of retraction with respect to another dispute between the defendant and Murawski and for compliance with a no contact order. The court then granted the application for accelerated rehabilitation and released the defendant to the custody of the court support services division.

Three months later, the trial court heard further argument occasioned by Murawski’s expressed concern to the defendant’s probation officer that the defendant had failed to fulfill the conditions of her rehabilitation. The probation officer submitted to the court the defendant’s purported letter of apology, which stated: “Mr. & Mrs. J. Murawski: I apologize if you felt that the statements set forth on lines 28, 29, on page two of a correspondence dated October 31, 2005 from Attorney Dave Rubin to Attorney John Cohane, caused unhappiness. Louise Callahan.”

After examining this document, the trial court informed the defendant that it had “major issues” with this document as a letter of apology. The court observed: “[It is] one sentence and it says, T apologize if you felt that it caused unhappiness.’ It’s not apologizing for her actions. . . . Where’s the apology for her actions?” In response, defense counsel argued that the letter indeed had complied with the court’s order, asserting: “I don’t think that, respectfully, the court or anyone else is in a position to say that’s not an apology. It certainly is what it purports to be.” The trial court disagreed, found the letter to be an “insincere apology” that “in no way meets the conditions of her release” and terminated the defendant’s participation in the accelerated rehabilitation program.

The defendant has appealed. Although at trial she acquiesced in the order for an apology and although she now acknowledges, in her appellate brief, that the court had the authority, as a general matter, to require her to make an apology, she nonetheless maintains that, under the circumstances of this case, the termination order was an abuse of the court’s discretion. She argues that (1) the court’s order violated her constitutional right against self-incrimination due to the pendency of the underlying criminal proceedings; (2) the court’s order was inconsistent with the principle that participation in the program does not constitute an acknowledgement of guilt; (3) the court had no authority to decide whether a letter purporting to be an apology was in fact an apology; and (4) the court’s order was prejudicial to unresolved issues in pending civil litigation between the defendant and Murawski of which the court had been apprised.

As a preliminary matter, we set forth the applicable standard of review. “Our review of the trial court’s exercise of its discretion is limited to the questions of whether the court correctly applied the law and whether it could reasonably conclude as it did. See Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). It is only where an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 192, 510 A.2d 972 (1986); State v. Devanney, 12 Conn. App. 288, 292, 530 A.2d 650 (1987). Every reasonable presumption will be given in favor of the trial court’s ruling. State v. Rodriguez, 10 Conn. App. 176, 179, 522 A.2d 299 (1987).” State v. Angelo, 25 Conn. App. 235, 241, 594 A.2d 24, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991); cf. State v. Fanning, 98 Conn. App. 111, 122, 908 A.2d 573 (2006), cert. denied, 281 Conn. 904, 916 A.2d 46 (2007). “The trial court’s findings of fact are entitled to great deference and will be overturned only upon a showing that they were clearly erroneous.” State v. Bletsch, 281 Conn. 5, 19, 912 A.2d 992 (2007).

On the record in this case, the defendant’s first two arguments require little discussion. Having conceded that the court had the authority to order an apology and having acquiesced in its issuance, the defendant has waived any right against self-incrimination with respect to the apology. She properly does not suggest that the court’s order is subject to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). It similarly is too late in the day now to claim an improper inconsistency between the court’s order and an acknowledgement of guilt.

The defendant’s claim that the court had no authority to decide whether a letter purporting to be an apology was in fact an apology stands on a different footing, but it too is unpersuasive. On its face, the argument seems to be that the court was bound to find acceptable as an apology any document using any form of the word “apology,” no matter how hedged by accompanying verbiage. On that theory, even an apology accompanied by a repetition of the offensive accusation would have sufficed. That cannot be correct. A more reasonable argument is that the court’s determination was a finding of fact that, in the defendant’s view, was clearly erroneous. Even that contention, however, cannot be sustained. The letter stated: “I apologize if you felt that the statements [in designated correspondence] caused unhappiness.” At best, it communicated some acknowledgement by the defendant of the possibility that Murawski’s feelings might have been hint, but it contained no expression of regret on the part of the defendant for her own actions. We are persuaded, therefore, that the trial court’s finding that the apology was insincere was not clearly erroneous. Cf. Higgins v. Liston, 88 Conn. App. 599, 614, 870 A.2d 1137 (upholding finding of criminal contempt of court because defendant’s apology insincere), cert. denied, 276 Conn. 911, 886 A.2d 425 (2005), cert. denied, 546 U.S. 1220, 126 S. Ct. 1444, 164 L. Ed. 2d 143 (2006).

The defendant contends, however, in .her final claim on appeal, that the court’s appraisal of the sufficiency of her letter of apology was too narrowly focused on the wording of the apology because it failed to take into account the fact of ongoing civil litigation between the defendant and Murawski. The defendant informed the court of the existence of this litigation at the outset, when she urged the court not to order her to send a letter of apology. In effect, the defendant appears to argue that the existence of litigation that she herself had initiated was a special circumstance that required the court, in the exercise of its discretion, either to refrain from ordering an apology or to take this litigation into account in assessing the defendant’s compliance with the court’s order. We disagree.

As this court recently has observed: “Accelerated rehabilitation is not a right at all. It is a statutory alternative to the traditional course of prosecution available for some defendants and totally dependent upon the trial court’s discretion. ... In essence, the legislature has declared [an accused] a worthy candidate for a second chance. . . . The purpose of probation is to afford a period during which a penitent offender may be assisted in rehabilitation.” (Citations omitted; internal quotation marks omitted.) State v. Fanning, supra, 98 Conn. App. 116. The defendant has cited no authority for the proposition that the accelerated rehabilitation program gives criminal defendants the authority to frame the conditions with which they are prepared to comply in order to demonstrate their rehabilitation. To the contrary, the law is clear that the only choice that the statute gives such defendants is to accept and to abide by the conditions set by the court, or to reject the conditions and to face further criminal prosecution. General Statutes § 54-56e (d).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-56e provides in relevant part: “(a) There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime or crimes or a motor vehicle violation or violations for which a sentence to a term of imprisonment may be imposed, which crimes or violations are not of a serious nature.
      “(b) The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to a defendant (1) who, the court believes, will probably not offend in the future, (2) who has no previous record of conviction of a crime or of a violation of section 14-196, subsection (c) of section 14-216, section 14-222a, subsection (a) of section 14-224 or section 14-227a, (3) who has not been adjudged a youthful offender within the preceding five years under the provisions of sections 54-76b to 54-76n, inclusive, and (4) who states under oath, in open court or before any person designated by the clerk and duly authorized to administer oaths, under the penalties of perjury that the defendant has never had such program invoked in the defendant’s behalf, provided the defendant shall agree thereto and provided notice has been given by the defendant, on a form approved by rule of court, to the victim or victims of such crime or motor vehicle violation, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. . . .
      “(d) Except as provided in subsection (e) of this section, any defendant who enters such program shall pay to the court a participation fee of one hundred dollars. Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of the right to a speedy trial. Any such defendant shall appear in court and shall, under such conditions as the court shall order, be released to the custody of the Court Support Services Division .... If the defendant refuses to accept, or, having accepted, violates such conditions, the defendant’s case shall be brought to trial. . . .
      “(f) ... An order of the court denying a motion to dismiss the charges against a defendant who has completed such defendant’s period of probation or supervision or terminating the participation of a defendant in such program shall be a final judgment for purposes of appeal.”

       General Statutes § 53a-157b provides: “(a) A person is guilty of false statement in the second degree when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.
      “(b) False statement in the second degree is a class A misdemeanor.”

       Before ruling on the merits of the defendant’s application, the court gave the defendant the opportunity to submit a psychological evaluation. The defendant submitted a detailed psychological report, and, as an additional condition of her accelerated rehabilitation, the court ordered the defendant to continue with any recommended treatment.

       The record indicates that the litigation to which the defendant was referring was initiated by the defendant.

       There also was a disagreement between the defendant and Murawski about the sufficiency of the letters of retraction ordered by the trial court at the same time that it ordered the defendant to send a letter of apology. The court terminated the defendant’s participation in the accelerated rehabilitation program without addressing the merits of this disagreement.


author: DiPENTIMA, J.

text:
    KERMIT ELLISON v. COMMISSIONER OF CORRECTION
    (AC 28291)
    Flynn, C. J., and DiPentíma and Pellegrino, Js.

      Argued March 13
    officially released June 24, 2008

      Mary H. Trainer, special public defender, for the appellant (petitioner).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Elizabeth C. Learning, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

The petitioner, Kermit Ellison, appeals following the denial of his petition, filed pursuant to General Statutes § 52-470 (b), for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal. We dismiss the petitioner’s appeal.

The facts underlying the petitioner’s conviction are set forth in this court’s opinion following the petitioner’s direct appeal; see State v. Ellison, 79 Conn. App. 591, 594-97, 830 A.2d 812, cert. denied, 267 Conn. 901, 838 A.2d 211 (2003); and may be summarized as follows. On January 4, 1999, the petitioner and two other men brought three minor girls to a motel in Vernon where the petitioner forced two of the girls to engage in sexual intercourse with him. Id. The following morning, as the three minor girls watched, the petitioner participated in a brutal assault on the brother of one of the minor girls. Id.

On October 26, 2000, the petitioner was found guilty by the jury of two counts of conspiracy to commit risk of injury to a child in violation of General Statutes § 53a-48 and General Statutes (Rev. to 1999) § 53-21 (1), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and two counts of risk of injury to a child by impairing the morals of a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). State v. Ellison, supra, 79 Conn. App. 593-94. At the trial, the victims testified as to the details of the incidents and the identities of persons to whom they had reported the incidents. Id., 605. Following the victims’ testimony, the court admitted the testimony of four other witnesses, under the constancy of accusation doctrine, as set forth by our Supreme Court in State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc). State v. Ellison, supra, 605-10.

On direct appeal, the petitioner’s attorney, Darcy McGraw, raised, inter alia, an evidentiary claim that the constancy testimony went beyond what is permitted by the rule enunciated in Troupe. Id., 604. After filing her initial brief, McGraw attempted to supplement her evidentiary claim, by way of a motion to amend her statement of issues, with an argument that the constancy testimony had violated the petitioner’s right to confrontation under the sixth amendment to the United States constitution. This court denied McGraw’s motion and, subsequently, affirmed the judgment of the trial court.

On February 15,2006, the petitioner filed an amended petition for a writ of habeas corpus, alleging that McGraw had rendered ineffective assistance on direct appeal by failing to include in her initial brief to this court her constitutional argument that the constancy testimony had violated his sixth amendment right to confrontation. In a memorandum of decision filed October 2, 2006, the habeas court denied the petition. In its memorandum of decision, the court noted that the federal constitutional issue that McGraw had failed to raise would have been decided adversely to the petitioner on the basis of our Supreme Court’s decision in State v. Samuels, 273 Conn. 541, 871 A.2d 1005 (2005). Accordingly, the court denied the petition, concluding that the petitioner had failed to demonstrate that McGraw’s alleged ineffectiveness had prejudiced him. The court subsequently denied the petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that the court improperly relied on Samuels in addressing his claim that at his criminal trial, the victims were not subject to full and effective cross-examination, in violation of his sixth amendment right to confrontation. In essence, he claims that the trial court improperly permitted the constancy witnesses to testify as to the details of the sexual assaults in violation of the rule set forth in Troupe and, to the extent that they did, their hearsay testimony violated his right to confrontation because he was not permitted an opportunity to cross-examine the victims on those hearsay statements. We find no merit in the petitioner’s claim.

Our standard of review for the petitioner’s claim is well settled. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn. App. 738, 740-41, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008). “[The habeas] court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 70 Conn. App. 452, 456, 800 A.2d 1194, cert. denied, 261 Conn. 921, 806 A.2d 1061 (2002).

We focus our analysis on the second prong of Strickland because the habeas court denied the petitioner’s claim on the ground that the alleged deficient performance of McGraw resulted in no prejudice to him. “The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Langston v. Commissioner of Correction, 104 Conn. App. 210, 214, 931 A.2d 967, cert. denied, 284 Conn. 941, 937 A.2d 697 (2007).

“To satisfy the prejudice prong, a petitioner must, thus, establish that, as a result of appellate counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. ... In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the trial verdict would have been different.” (Citation omitted; internal quotation marks omitted.) Vivo v. Commissioner of Correction, 90 Conn. App. 167, 173, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).

The petitioner has failed to persuade this court, as he failed to persuade the habeas court, that he suffered any prejudice from McGraw’s omission of his constitutional claim on direct appeal. The petitioner does not dispute that the victims in this case testified and were subject to cross-examination. Instead, he intimates that the constancy of accusation witnesses were permitted to give improper hearsay testimony as to the details of the assaults, which exceeded the permissible scope of such testimony as delineated in Troupe and, as a result, the cross-examinations of the victims were rendered incomplete and ineffective.

To the extent that he claims that the constancy testimony exceeded the limitations of Troupe, the petitioner’s claim is nothing more than an attempt at a second bite of the apple. This court disposed of that argument on the petitioner’s direct appeal. See State v. Ellison, supra, 79 Conn. App. 610. The petitioner cannot resurrect his failed evidentiary claim by garbing it in a constitutional disguise. See Henderson v. Commissioner of Correction, 104 Conn. App. 557, 569, 935 A.2d 162 (2007) (“[t]his court strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of finality” [internal quotation marks omitted]), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008).

Given that the constancy testimony fell squarely within the parameters of Troupe, we conclude that the habeas court properly relied on Samuels as the basis for denying the petition for a writ of habeas corpus. In Samuels, our Supreme Court reiterated Troupe's holding that “[b]ecause constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination . . . concerning the crime and the identity of the person or persons to whom the victim has reported the crime,” the constancy of accusation doctrine does not violate the sixth amendment. (Internal quotation marks omitted.) State v. Samuels, supra, 273 Conn. 569. Accordingly, the habeas court properly found that McGraw’s omission of the petitioner’s sixth amendment claim on direct appeal did not prejudice the petitioner because, on the basis of the holding in Samuels, the outcome of his direct appeal would have been the same. Because no reasonable jurist could have concluded otherwise, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

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

       In Troupe, the Supreme Court held that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . [S]uch evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” State v. Troupe, supra, 237 Conn. 304-305.