author: LAVINE, J.

text:
    AFSCME, COUNCIL 4, LOCAL 1565 v. DEPARTMENT OF CORRECTION ET AL.
    (AC 28320)
    Harper, Lavine and Beach, Js.
    Argued January 15
    officially released April 29, 2008

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellees (defendants).
   Opinion

LAVINE, J.

The plaintiff, AFSCME, Council 4, Local 1565, appeals from the judgment of the trial court denying its application to vacate an arbitration award upholding the discharge of Eunice Smith from her employment with the defendant department of correction. On appeal, the plaintiff claims that the court’s denial of its application to vacate was improper because the arbitration award (1) exceeded the arbitrator’s authority in violation of General Statutes § 52-418 (a) (4) and (2) violated the clear public policy underlying General Statutes § 54-56e, the statute for the pretrial program for accelerated rehabilitation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claim. On January 17, 2003, as the result of a police investigation into a complaint that Smith, a correction officer, had threatened to shoot a coworker for refusing to answer questions about a union related posting, Smith was arrested and charged with making threats, breach of the peace and inciting injury to a person. On January 19, 2003, the police conducted a search of Smith’s residence in order to confiscate a weapon registered to her. Due to the officers’ discovery of a partially smoked marijuana cigarette and a pill bottle under Smith’s bed, Smith was charged with possession of marijuana and drug paraphernalia.

On May 19, 2003, Smith told the captain conducting the defendant’s investigation that she had accepted accelerated rehabilitation for the charges against her. On August 27 and September 17, 2003, the defendant held predisciplinary hearings on the matter. Through its investigation, the defendant found that Smith had been arrested and charged with threatening, inciting injury to persons, breach of the peace and possession of marijuana and drug paraphernalia. On November 6, 2003, Smith was dismissed from state service for on and off duty misconduct which violated administrative directive 2.17 of the parties’ collective bargaining agreement.

The plaintiff timely filed a grievance on behalf of Smith. After its grievance was denied, the plaintiff proceeded to arbitration. The plaintiff and the defendant were, at all relevant times, parties to a written collective bargaining agreement that provided for final and binding arbitration of disputes arising under the agreement. Attorney Susan E. Halperin of the state board of mediation and arbitration was appointed as the arbitrator. At the arbitration hearings, which were held on October 28, 2004, and January 28, 2005, the plaintiff submitted that Smith’s dismissal was unjustified because the defendant had failed to substantiate the violence related claims of the complaining officer. The parties stipulated to the following unrestricted submission: “Was the dismissal of [Smith] for just cause? If not, what shall the remedy be, consistent with the NP-4 contract?” Following the hearings, the arbitrator issued an award stating: “The grievance is denied. The dismissal of [Smith] was for just cause.” The arbitrator’s award included the following:

“[T]he evidence is clear that something occurred between the two officers over the issue of the distribution of the union material concerning [Smith], The fact remains that the telephone contact by [Smith] with the other officer resulted in a series of events that led to [Smith]’s subsequent arrest and dismissal. . . . [Smith] was aware of the consequences related to her conduct and had full notice of the [defendant’s] rules regarding such conduct. There is no question that the rules are related to the efficient operation of the department, especially in light of its mandates and mission. Although [Smith] claims that she accepted [accelerated rehabilitation] on [the] advice of her attorney, the fact that she asked the court for and was granted accelerated rehabilitation indicates that she accepted responsibility for the charges and assumes culpability. I find that fact to be substantial evidence of her violations before this arbitration. Based on the foregoing, I find that [Smith] was terminated for just cause, and the [defendant] met its burden of proof.”

On November 9,2005, the plaintiff filed an application to vacate the arbitration award. In its application to vacate, the plaintiff offered the following reasons for vacatur: “The [arbitrator] exceeded [her] powers or so imperfectly executed them that a mutual, final and definitive award upon the subject matter was not made. . . . The arbitrator [is] guilty of misconduct by which the rights of the [union] have been prejudiced [and] [t]he award is against public policy.” Following a hearing on November 21, 2006, the court denied the plaintiffs application to vacate. In its memorandum of decision, the court stated: “This court cannot find that it was an egregious misperformance of duty in violation of General Statutes § 52-418 (a) (3) or (4). The court cannot correct errors of fact or law, substituting its judgment for the arbitrator’s where the submission was unrestricted.” This appeal followed.

We initially set forth the applicable standard of review. The standard of review relative to arbitration awards depends on the nature of the challenge. With a voluntary, unrestricted submission to an arbitrator, as is the case before us, the court may examine the submission and the award to determine only whether the award conforms to the submission. See Cheverie v. Ashcraft & Gerel, 65 Conn. App. 425, 430, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001). “In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator’s legal and factual determinations. ” Id. “When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.” (Internal quotation marks omitted.) Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 304, 680 A.2d 1274 (1996).

“Certain conditions do exist, however, under which we conduct a more searching review of arbitral awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), our Supreme Court reiterated that there are three grounds for vacating an award when the submission is unrestricted. These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy or (3) contravenes one or more of the statutory proscriptions of General Statutes § 52-418.” (Internal quotation marks omitted.) Cheverie v. Ashcraft & Gerel, supra, 65 Conn. App. 430-31. “[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has exceeded [Ms] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. We emphasize, however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.” (Emphasis added; internal quotation marks omitted.) Id., 438.

I

The plaintiff first claims that the court’s denial of its application to vacate was improper because the arbitrator exceeded her authority and imperfectly executed the award in violation of § 52-418 (a) (4). Specifically, the plaintiff argues that in rendering the arbitration award, the arbitrator relied on no findings of fact other than that Smith had accepted accelerated rehabilitation. According to the plaintiff, the arbitrator’s impermissible reliance on Smith’s acceptance of accelerated rehabilitation precluded her from making a mutual, final and definite award. We do not agree.

“In Garrity, [our Supreme Court] adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418 (a) (4). . . . The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the [arbitrator] manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the [arbitrator] appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.” (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614, 887 A.2d 872 (2006).

Upon application of these principles to the case before us, we conclude that the court properly denied the application to vacate the award. The plaintiff has failed to demonstrate the first Garrity element, which is that the arbitrator’s alleged error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. First, contrary to the plaintiffs assertions, it is not clearly an error for an arbitrator to acknowledge and to consider that a grievant has accepted accelerated rehabilitation. Our careful review of § 54-56e, the accelerated rehabilitation statute, and of the relevant case law leads us to conclude that an arbitrator, in rendering an arbitration award, is not prohibited from taking a grievant’s acceptance of accelerated rehabilitation into account.

The plaintiff argues that because a plea of nolo contendere* ** must not be attributed any evidentiary value, neither should a party’s acceptance of accelerated rehabilitation be given any meaning for purposes of an arbitration award. We find that contention to be unpersuasive in light of our Supreme Court’s holding that a plea of nolo contendere may be considered as evidence in an arbitration proceeding. In Groton v. United Steelworkers of America, 254 Conn. 35, 52, 757 A.2d 501 (2000), our Supreme Court stated: “[Although our jurisprudence traditionally has imposed limitations on the collateral effects to be given, in the civil and administrative litigation contexts, to a conviction based on a nolo plea, the private nature of voluntary arbitration strongly counsels against extending those limitations to the employment sphere governed by a voluntary arbitration clause. ... In that realm, a conviction based on a plea of nolo contendere does not, in our view, necessarily carry the same set of limitations with it.” In light of the foregoing, we conclude that the arbitrator’s statement about Smith’s accelerated rehabilitation would not be instantly and readily perceived as an error by the average person qualified to serve as an arbitrator.

Moreover, contrary to the plaintiffs claim, the arbitrator clearly relied on findings other than Smith’s acceptance of accelerated rehabilitation. The arbitrator explicitly referred to the fact that Smith’s telephone contact with another officer led to her dismissal and that Smith “was aware of the consequences related to her conduct and had full notice of the [defendant]’s rules regarding such conduct.” The arbitrator further stated: “The fact remains that the telephone contact by [Smith] with the other officer resulted in a series of events that led to [Smith’s] subsequent arrest and dismissal.”

Because the plaintiff has failed to demonstrate, pursuant to § 52-418 (a) (4), that the award in question manifests an egregious or patently irrational application of the law, we conclude that the arbitrator did not exceed her powers or so imperfectly execute them that a mutual, final and definite award on the subject matter submitted was not made. Accordingly, our role is confined to reviewing the court’s comparison of the submission with the award. “Arbitrators are only required to render an award in conformity to the submission and an award need contain no more than the actual decision of the arbitrators. An explanation of the means by which they reached the award, unless required by the submission, is needless and superfluous.” Malecki v. Burnham, 181 Conn. 211, 213, 435 A.2d 13 (1980). “As long as the arbitrator rules within the parameters of the submission and provides the parties with a fair hearing, the award will not be set aside on judicial review.” Bennett v. Meader, 208 Conn. 352, 363, 545 A.2d 553 (1988).

When the parties submitted the grievance to arbitration, they delegated to the arbitrator, by the submission agreement, the power to answer and award on the issue. By agreeing to an unlimited submission, the parties authorized the arbitrator to exercise her judgment and discretion in rendering the award. “[A] party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187, 530 A.2d 171 (1987). In this case, the award properly answered the submission. We therefore conclude that the court properly denied the plaintiffs application to vacate.

II

The plaintiff also claims that the court’s denial of its application to vacate was improper because the arbitration award violated the public policy embodied by § 54-56e. Specifically, the plaintiff contends that permitting an arbitrator to draw an inference that acceptance into the pretrial program for accelerated rehabilitation constitutes guilt would have a chilling effect on the program and on the criminal justice system. We do not agree.

Review of an arbitration award on the basis of a public policy violation “require[s] a two-step analysis . . . .” State v. AFSCME, Council 4, Local 2663, AFLCIO, 59 Conn. App. 793, 797, 758 A.2d 387, cert. denied, 255 Conn. 905, 762 A.2d 910 (2000). “First, we must determine whether a clear public policy can be identified. Second, if a clear public policy can be identified, we must then address the ultimate question of whether the award itself conforms with that policy.” Id. Accordingly, we look to whether each of the defendant’s public policy claims satisfies this two step analysis.

In this case, the plaintiff claims that the award violates the public policy underlying § 54-56e, the pretrial accelerated rehabilitation statute, which provides, in relevant part: “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 ... (3) who has not been adjudged a youthful offender within the preceding five years ... (4) who states under oath . . . that the defendant has never had such program invoked in the defendant’s behalf . . . .” General Statutes § 54-56e (b). In support of its argument, the plaintiff asserts that the language of § 54-56e mandates that acceptance of accelerated rehabilitation may not be equated with an admission of guilt. We must first ask whether the plaintiff has identified a clear public policy.

The plaintiff insists that § 54-56e “appears to imply that the individual [who applies for accelerated rehabilitation] may not be responsible for the charges and [may] not [be] guilty of the offense.” We cannot endorse this inteipretation. Our Supreme Court has described one who chooses accelerated rehabilitation as “a person who may be guilty of the offense charged but whom the legislature has declared a worthy candidate for a second chance.” State v. Parker, 194 Conn. 650, 658, 485 A.2d 139 (1984). Furthermore, our review of the relevant case law produces no clear public policy prohibiting arbitrators from considering a party’s acceptance of accelerated rehabilitation.

In State v. Fanning, 98 Conn. App. 111, 908 A.2d 573 (2006), cert. denied, 281 Conn. 904, 916 A.2d 46 (2007), this court defined accelerated rehabilitation as “a statutory alternative to the traditional course of prosecution available for some defendants and totally dependent upon the trial court’s discretion.” (Internal quotation marks omitted.) Id., 116. Additionally, “a dismissal pursuant to the Connecticut accelerated pretrial rehabilitation program is not a termination in favor of the accused for puiposes of a civil rights suit.” Roesch v. Otarola, 980 F.2d 850, 853 (2d Cir. 1992). In sum, “[t]he only right that the defendant may earn under the accelerated rehabilitation statute is the right to a dismissal of the charges against him, a right that is expressly conditioned on satisfactory completion of the period of probation.” State v. Parker, supra, 194 Conn. 658.

We conclude that the arbitrator’s drawing an inference from Smith’s acceptance of accelerated rehabilitation did not violate any clear public policy. Moreover, as noted, the arbitrator set forth an independent basis for her ruling. Consequently, we uphold the court’s denial of the plaintiffs application to vacate the arbitration award.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer to the department of correction as the defendant. The other defendants in this action are the office of the attorney general and the board of mediation and arbitration of the department of labor.

       Administrative directive 2.17 provides in pertinent part: “The following behavior shall be strictly prohibited: 1. Any act that jeopardizes the security of the unit, health, safety, or welfare of the public, staff or inmates. . . . 3. Unauthorized possession of non-department issued firearms or other weapons while on duty or state property. ... 11. Engaging] in unprofessional or illegal behavior, both on and off duty, that could in any manner reflect negatively on the Department of Correction.”

       In this case, the plaintiff does not dispute that the submission was unrestricted.

       Recognizing that arbitration awards are reviewed narrowly in other jurisdictions, our Supreme Court has noted that “[a] mistake which will vitiate or invalidate an award must be gross and manifest to the point of showing bad faith or failure to exercise honest judgment . . . .” (Citation omitted; internal quotation marks omitted.) Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992), quoting Baltimore v. Allied Contractors, Inc., 236 Md. 534, 546, 204 A.2d 546 (1964).

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects: (1) if the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause . . . or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” (Emphasis added.)

       General Statutes § 54-56e (b) provides in relevant part: “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 ... (3) who has not been adjudged a youthful offender within the preceding five years ... (4) who states under oath . . . that the defendant has never had such program invoked in the defendant’s behalf . . . .”

       A plea of nolo contendere is a declaration by the accused that he will not contest the charge. Its inconclusive and ambiguous nature dictates that it should be given no currency beyond the particular case in which it was entered. Lawrence v. Kozlowski, 171 Conn. 705, 712 n.4, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977).

       Likewise, we do not conclude that the arbitrator “appreciated the existence of a clearly governing principle but decided to ignore it,” which is the second prong of the Garrity test, or that the governing law alleged to have been ignored is “well defined, explicit, and clearly applicable,” which is the third prong. Saturn Construction Co. v. Premier Roofing Co., supra, 238 Conn. 305. As discussed in part II, although the accelerated rehabilitation statute serves the salutary purpose of permitting persons accused of crimes to avoid convictions, there is no clear legal principle preventing arbitrators from drawing adverse inferences from the fact that someone has utilized accelerated rehabilitation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARCIA LACROIX v. GLENS FALLS INSURANCE COMPANY
    (AC 28447)
    Flynn, C. J., and McLachlan and West, Js.
    Argued February 7
    officially released April 29, 2008

      Anthony D. Sutton, with whom, on the brief, was Howard A. Jacobs, for the appellant (plaintiff).

      Jane G. Beddall, with whom, on the brief, was Terence A. Zemetis, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Marcia LaCroix, appeals from the judgment of the trial court rendered in favor of the defendant, Glens Falls Insurance Company, after a hearing in damages. The plaintiff also challenges the trial court’s denial of her motion for a new trial. On appeal, the plaintiff claims that, under the circumstances of this case, the court acted improperly in denying her motion for a new trial. We affirm the judgment of the trial court.

This is an underinsured motorists case. The plaintiffs vehicle was struck from behind in a motor vehicle accident, leaving little visible damage to her vehicle but causing physical injury to the plaintiff. The plaintiff recovered the full amount of the other motorist’s insurance policy of $100,000. She then brought this action against this defendant, her insurer, seeking to recover underinsured motorists benefits on her own policy. After summary judgment was entered against the defendant on liability only, a hearing in damages was tried to the court. At the hearing in damages, the plaintiff did not call treating physicians or examining physicians to testify but, instead, introduced their written medical reports into evidence. The court awarded $108,111.20 in economic damages and an additional $50,000 in non-economic damages, for atotal of $158,111.20. The court further found: “Inasmuch as the plaintiffs counsel stipulated during trial, on the record, that the defendant is entitled to a collateral source deduction of $70,805.90, the net award is $87,305.30 (award of $158,111.20 minus collateral source credit of $70,805.90). The plaintiffs counsel also stipulated on the record that the defendant is entitled to a farther credit of the $100,000 paid to the plaintiff on behalf of the tortfeasor, David Caron, by Caron’s liability insurance carrier. Since the net award of $87,305.30 is less than the $100,000 credit, this is not a case of underinsurance.” The court then rendered judgment in favor of the defendant.

Thereafter, the plaintiff moved for a new trial on two grounds. The first ground alleged that the judgment was not supported by the evidence at trial. The second ground alleged that evidence was discovered after the court rendered judgment, consisting of statements from Thomas Arkins, a physician who saw the plaintiff for an independent medical examination, asserting that he possessed certain records regarding the plaintiffs prior medical condition at the time of his examination of the plaintiff. On appeal, the plaintiff has briefed only the issue of whether the court improperly denied her motion for a new trial, and we, therefore, deem all other claims abandoned.

Our standard of review of such a claim on appeal is the abuse of discretion standard. Fitzpatrick v. Hall-Brooke Foundation, Inc., 72 Conn. App. 692, 697, 807 A.2d 480, cert. denied, 262 Conn. 914, 811 A.2d 1291 (2002). “The function of a court at a hearing for a new trial is to determine whether the evidence presented at the hearing considered with the evidence presented at the original trial warrants the granting of a new trial. That determination is within the sound discretion of the court. ... A petition for a new trial is addressed to the discretion of the trial court and will never be granted except upon substantial grounds. As the discretion which the court is called upon to exercise is not an absolute but a legal one, we will upon appeal set aside its action when it appears that there was a misconception on its part as to the limits of its power, that there was error in the proceedings preliminary to the exercise of its discretion, or that there was a clear abuse in its exercise of its discretion.” (Citations omitted; internal quotation marks omitted.) Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983).

As set forth by our Supreme Court in Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), “a court is justified in granting a petition for a new trial when it is satisfied that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial.” Shabazz v. State, 259 Conn. 811, 820-21, 792 A.2d 797 (2002); see also Ginsburg v. Cadle Co., 61 Conn. App. 388, 392, 764 A.2d 210, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). “To entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.” White v. Avery, 81 Conn. 325, 328, 70 A. 1065 (1908).

The following additional facts are pertinent to our review of the plaintiffs claim. After the motor vehicle accident, the plaintiff sought medical treatment from several physicians. Arkins, a physician selected by the defendant, conducted an examination of the plaintiff. He found a 7.5 percent permanent disability of both the plaintiffs back and neck. The defendant’s evidence at the hearing in damages revealed, however, that the plaintiff had experienced prior injuries to both her neck and back unrelated to this case.

Following the hearing in damages, the court rendered its decision via a memorandum in which it found that the plaintiff had suffered a prior back injury in 1997, for which she consulted an orthopedic surgeon, Robert Geist, and, subsequently, a neurologist, Bruce Haak, whose report referenced a 1982 injury that had resulted in a permanent disability. Haak had assigned the plaintiff a 5 percent permanent partial disability of the neck in 1997. The court also found that the plaintiff had complained to another physician, Catherine Arnold, of low back pain, cracking, neck pain and migraines three months before the collision giving rise to this underinsured motorists claim.

The court further found that after the August 18, 2001 collision, which gave rise to this case, the plaintiff saw many physicians, including Arthur Seigel, a neurologist. The court found that the plaintiff had “told Dr. Seigel that she had no preexisting condition with regard to the neck, in spite of the fact the she was given a 5 percent permanent disability of the neck by Dr. Haak in 1997, and in spite of the fact she had complained of neck pain to Dr. Arnold on May 21, 2001.” The court also found that the plaintiff treated with Moshe Hasbani, another neurologist, beginning in December, 2001. The plaintiff told Hasbani that “her neck pain was not present prior to the accident.” Hasbani rated the plaintiff as having a 7.5 percent permanent partial disability of her neck and lumbar spine. The court found that there was no indication in Hasbani’s report that he knew at the time he gave the plaintiff a 7.5 percent permanency rating of the neck that Haak had assigned her a 5 percent permanency rating of that same part of the body in 1997.

Additionally, the court found that “the plaintiff was seen by [Judith] Gorelick, a neurosurgeon, who said the plaintiff presented with a two year history of progressive neck and low back pain, saying her symptoms began following a car accident .... In Dr. Gorelick’s report . . . there is no mention by the plaintiff of prior neck or back pain or injuries.” The court also made reference to a portion of Gorelick’s report in which she had stated that although the plaintiff “had a prior isolated episode of transient back and leg pain, those symptoms had resolved years prior to the recurrence of these symptoms.”

On appeal, the plaintiff takes issue with the following additional findings contained in the court’s memorandum of decision: “On April 18,2006, Dr. Thomas Arkins, with whom Dr. Gorelick is now associated in the practice of neurosurgery, examined the plaintiff at the request of the defendant. His conclusion was that the plaintiff has a 7.5 percent permanent disability of her cervical spine and 7.5 percent of her lumbar spine. He stated that she is capable of light housework at home. There is no indication in Dr. Arkins’ report that he was made aware of the plaintiffs preaccident back and neck complaints of May 21, 2001, to Dr. Arnold, or of Dr. Haak’s 1997 opinion that the plaintiff had a 5 percent permanent partial disability of her neck. Therefore, his conclusions, like Dr. Gorelick’s, concerning the plaintiffs permanent disability caused by the August 18,2001 accident, are called into question. Relevant and material facts were withheld from many doctors in this case, including every doctor who gave the plaintiff a permanency rating of her back and neck. The plaintiffs credibility has been seriously weakened.”

The plaintiff claims on appeal that the court improperly denied the motion for a new trial on grounds outside the record and without evidence and that the issue, as to whether Arkins had the previous medical reports before making his permanency rating was not relevant until the court made, what the plaintiff calls, a sua sponte finding that Arkins did not have that pertinent information. Therefore, the plaintiff argues, she should have been granted a new trial to offer the evidence that Arkins, in fact, did have those reports. We do not agree.

It is axiomatic that a court cannot find facts without direct evidence or circumstantial evidence arising from inferences drawn from that evidence. As the trier of fact, the court can draw all reasonable and logical inferences based on the facts proven. See State v. Englehart, 158 Conn. 117, 121, 256 A.2d 231 (1969). These inferences, however, must be based on reasonable probabilities. See Hennessey v. Hennessey, 145 Conn. 211, 214-15, 140 A.2d 473 (1958). In the present case, the court reasonably could have inferred from the lack of any reference in the many medical reports to the prior neck and back injuries of the plaintiff that, in fact, the plaintiff had not advised these physicians of her prior treatment and her prior disability ratings.

In its ruling on the motion for a new trial, the court specifically found that the claimed newly discovered evidence relating to Arkins could not meet the first prong of the Asherman test, namely, that the evidence could not have been discovered earlier by due diligence. The plaintiff chose not to have any physician testify at the hearing in damages, and she did not offer written supplements to the medical reports that were entered into evidence, which might have explained what each physician had relied on as to the plaintiffs prior medical history and whether they had known of her past injuries and disability ratings. Although the plaintiff argued in her motion for a new trial that Arkins did have the reports of Haak and Arnold when making his assessment of the plaintiffs condition, the court rejected that argument, stating that the plaintiff had had the opportunity to put on her case and that she could have called Arkins to testify.

In ruling on the plaintiffs motion for a new trial, the court explained that the medical report that had been submitted “lacked persuasive evidence that Dr. Arkins knew about either report [from Arnold or Haak], and it lacked persuasive evidence that the plaintiff told Dr. Arkins about the 1997 permanency rating from Dr. Haak or the May, 2001 back and neck complaints. In fact . . . Dr. Arkins’ report strongly suggests the plaintiff didn’t mention them to him. . . . Without ... a full disclosure of the history, the doctor’s report is open to question, a lot of question.”

The court also explained in its ruling: “Dr. Arkins did specify three other doctors whose reports he examined. Yet, he didn’t mention Dr. Haak and Dr. Arnold. Certainly, a reasonable interpretation ... of the fact that he went out of his way to specify three doctors whose reports he had examined, and he didn’t even mention Dr. Haak or Dr. Arnold, a fair interpretation ... is that he wasn’t aware of it.”

Although the plaintiff now argues that she did not know that this information would be an issue in the damages case, we conclude that once the defendant entered into evidence the plaintiffs prior medical records, showing her earlier disability ratings for the same body parts for which she claimed injuiy from the collision in this case, the plaintiff should have known that this would be an issue in her case. The court found that the plaintiff had the opportunity to prove her damages but that she failed to prove her case; the “new” evidence that she sought to introduce in a new trial had been available at the time of the hearing in damages, but she failed to offer it by calling the physicians as witnesses or by offering supplements to the medical records. On the basis of the record before us, we conclude that the court properly found that the plaintiff had not sustained her burden to show that there existed the necessary substantial grounds to warrant a new trial. Accordingly, we further conclude that the plaintiff has not sustained her burden on appeal to show that the court abused its discretion in denying the motion for a new trial.

The judgment is affirmed.

       The court also found that the plaintiff failed to demonstrate that the outcome of a new trial likely would be different. The court reasoned that, even if it were shown that Arkins knew of the plaintiffs prior medical history, there were so many other physicians who were not aware of it that the alleged “new” evidence likely would have made no difference to the outcome of a new trial. We agree with this reasoning and conclude that the plaintiff failed to satisfy her burden of demonstrating that the proffered evidence would have been likely to produce a different result at a new hearing in damages.


author: McLACHLAN, J.

text:
    COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL. v. BROOKSTONE COURT, LLC, ET AL.
    (AC 28221)
    McLachlan, Gruendel and Pellegrino, Js.
    Argued January 16
    officially released April 29, 2008

      Robert J. Kor, for the appellant (plaintiff Kathy Sanchez).

      Elizabeth LaCombe, certified intern, with whom was Jennifer S. Allison, for the appellees (defendants).

      Charles Krich, principal attorney, for the appellee (named plaintiff).
   Opinion

McLACHLAN, J.

This case stems from an underlying civil rights case brought by the commission on human rights and opportunities (commission) on the behalf of the plaintiffs Kathy Sanchez and Rebekah Westphal against the defendants, which include Brookstone Court, LLC. On appeal, the plaintiff challenges the trial court’s calculation of her award for attorney’s fees. Specifically, the plaintiff claims that the court improperly calculated the amount of her award of attorney’s fees (1) when it reduced the lodestar amount of $52,699 to a fee award of $21,700, (2) when it reduced the lodestar amount of $52,699 by more than 50 percent without finding that any of the hours spent on the case were unjustified, (3) because the court had awarded her only $10,000 in damages when she sought more than $175,000 in damages, (4) because she had a contingent fee agreement with her attorney, and (5) because the court established the lodestar amount at $52,699 on the basis of 162 hours and not $55,025.75 on the basis of 169.31 hours. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs appeal. In June, 1999, the plaintiff and Westphal read an advertisement for Brookstone Court Apartments. Interested in renting an apartment, Westphal, with the plaintiff in close proximity, called the apartment management to see if any apartments were available. After speaking with a representative of the apartment complex, the plaintiff and Westphal learned that even though there were apartments available, it would not be possible for the plaintiff to live there because she required a wheelchair for mobility.

Subsequently, in December, 2000, the plaintiff and Westphal initiated a civil rights claim against the defendants before the commission. The commission investigated the claim and held a hearing in which attorney Robert J. Kor presented the plaintiffs and Westphal’s cases. On the basis of this investigation and hearing, the commission found reasonable cause that a discriminatory practice had occurred. On December 11, 2000, the defendants elected to have the commission bring a civil action in Superior Court, pursuant to General Statutes §§ 46a-83 (d) and 46a-84. The commission, in its complaint against the defendants, alleged that the plaintiff and Westphal were discriminated against when the defendants “refus[ed] to rent, negotiate to rent, and [failed] to provide reasonable accommodations, because of the [plaintiffs] physical disabilities . . . .” (Citations omitted.) On February 15, 2006, in its memorandum of decision in the civil rights action, the court found in favor of the plaintiff. Thereafter, in its memorandum of decision on the plaintiffs motion for attorney’s fees, the court iterated its findings by stating that the “defendants violated General Statutes § 46a-64c (a) (6) (A)* **6 and (C), and the federal Fair Housing Act, § 42 U.S.C. § 3604 (f) (1) and (3) (A) and (B).” Thereafter, the court awarded the plaintiff $10,000, imposed a civil penalty in favor of the state of $1000 and rendered judgment against Westphal. After reargument, on March 23, 2006, the court corrected its decision and found in favor of Westphal, awarding her $1 in damages.

On March 3, 2006, Kor moved for attorney’s fees for his work in the underlying case. The court examined General Statutes § 46a-104* ****** and 42 U.S.C. § 3613 (c) (2) of the Fair Housing Act to determine the amount of attorney’s fees to be awarded. The court adopted the “reasonable” attorney’s fee standard and calculated the lodestar figure. The court found that Kor’s hourly rate was $325 and that the amount of time he spent on the case was 162 hours, which resulted in the lodestar figure of $52,699. The court considered factors such as success of the claims, the novelty and difficulty of the question, the skill requisite to perform the legal services properly, the experience, reputation and ability of the attorney and whether the fees were fixed or contingent. The court found that “[tjaking into account all of the circumstances of this case, and all of the factors stated [previously],” the reasonable attorney’s fees for Kor’s work was $25,000. The court, however, reduced this figure to $21,700 because Kor had a contingent fee arrangement with the plaintiff.

Subsequently, on October 5, 2006, the plaintiff moved to reargue the court’s award of attorney’s fees. On October 26, 2006, the court denied the plaintiffs motion to reargue. In its memorandum of decision denying the plaintiffs motion to reargue, the court stated that it “considered all the factors relating to the award of counsel fees in th[e] case and properly exercised its discretion to allow the plaintiffs attorney a reasonable fee.”

On November 13, 2007, the plaintiff filed an appeal with this court. In the interim, on March 1, 2007, the plaintiff moved for an articulation, requesting that the court clarify the factual and legal bases on which the court relied when it reduced the award by the $3300 contingent fee amount and on which it relied to calculate the lodestar amount using 162 hours, as opposed to the 169.31 hours claimed by the plaintiff. The court denied the plaintiffs motion for articulation on March 13, 2007. This appeal followed.

On appeal, the plaintiff asserts five separate claims, previously recited, that essentially allege the same issue, namely,' whether the court improperly determined the plaintiffs award for attorney’s fees. These claims will be addressed together.

Our standard of review for a challenge to the award of attorney’s fees is well settled: “[W]e review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded. . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard for review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252-53, 828 A.2d 64 (2003).

I

As a threshold matter, the plaintiff and the commission contend that the court improperly applied the governing law on the issue of attorney’s fees. Specifically, the plaintiff objects to the court’s consideration of federal precedent for its award of attorney’s fees. In opposition, the defendants contend that the court correctly applied the governing law because the court found that the defendants had violated both state and federal law, and it was appropriate for the court to turn to federal precedent in the present case. Moreover, the commission, in its brief, maintains that although the commission’s petition did mention federal law, it was only to the extent that the federal law was enforced through state law.

In the present case, the court found that the defendants violated § 46a-64c (a) (6) (A) and (C) and the federal Fair Housing Act, 42 U.S.C. § 3604 (f) (1) and (3) (A) and (B). Our Supreme Court has stated: “[I]n addressing claims brought under both federal and state housing laws, we are guided by the cases interpreting federal fair housing laws; 42 U.S.C. §§ 3601 through 3631; despite differences between the state and federal statutes.” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 591, 775 A.2d 284 (2001). Thus, the court correctly considered federal precedent in the present case.

II

The plaintiff claims that the court improperly reduced her award of attorney’s fees from the lodestar amount of $52,699 to $25,000. The plaintiff maintains that the court improperly reduced this award (1) without finding that any of the 162 hours spent on the case were unjustified, (2) because the plaintiff was awarded only $10,000 rather than the $175,000 she sought in her posttrial brief and (3) when it calculated the lodestar amount on the basis of 162 hours rather than 169.31 hours worked on the case. Essentially, these claims boil down to one issue: whether the court improperly determined the plaintiffs attorney’s fee award.

The plaintiff and the commission assert that the court improperly calculated her attorney’s fees award when it imprudently relied on Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). In Farrar, the United States Supreme Court suggested that a plaintiff who seeks compensatory damages but receives no more than nominal damages is often a prevailing party who should receive no attorney’s fees. Id., 115 (“[i]n a civil rights suit for damages . . . the awarding of nominal damages . . . highlights the plaintiffs failure to prove actual, compensable injury”). The plaintiff first argues that the court should not have considered the Farrar decision in determining its award of attorney’s fees. According to the plaintiff, Farrar should not be considered in light of our recent Supreme Court case, Simms v. Chaisson, 277 Conn. 319, 890 A.2d 548 (2006), which holds that Farrar is not binding on a Connecticut court exercising its discretion to award attorney’s fees pursuant to a state statute. Although this general statement of the case holds true, the plaintiff misconstrues the Simms court’s discussion of Farrar.

The plaintiff maintains that the trial court substantially relied on Farrar when it reduced her award of attorney’s fees. The court, in its memorandum of decision on the plaintiffs motion for attorney’s fees, stated that Farrar permits a court to take into account other factors, such as the degree of successful recovery obtained. The court then engaged in an analysis of the other factors that are considered to determine a reasonable fee. In the court’s memorandum of decision on the plaintiffs motion to reargue, the court did not mention to what extent it relied on Farrar, if at all. Rather, it simply distinguished Farrar from Simms Nonetheless, the plaintiff argues that these references to Farrar indicate that the court relied on Farrar to reduce the award. Yet, it is unclear to what extent the corut actually reduced the amount of the fee award from $52,699 to $25,000 on the basis of Farrar because the court stated that it considered all the relevant factors for the consideration of attorney’s fees. Furthermore, in Farrar, the court did not award the plaintiff any attorney’s fees because the plaintiff achieved only a de minimis victory in relation to each of “the relevant indicia of success— the extent of relief, the significance of the legal issue on which the plaintiff prevailed, and the public purpose served . . . .” Farrar v. Hobby, supra, 506 U.S. 122. Here, even though the plaintiffs award was substantially less than the amount sought, the court appropriately exercised its discretion and awarded fees in the amount of $25,000, and further reduced that figure by the contingent fee amount to $21,700.

Additionally, a thorough reading of Simms belies the plaintiffs contention that Farrar does not apply in the present case. In Simms, our Supreme Court was faced with the question of “whether the trial court abused its discretion in awarding substantial attorney’s fees under General Statutes § 52-571c (b) to plaintiffs who recovered only nominal damages.” Simms v. Chaisson, supra, 277 Conn. 320. There, the trial court awarded the plaintiffs a substantial amount of attorney’s fees over the defendant’s objection and in light of the Farrar precedent. Id., 323. Although our Supreme Court held that Farrar was not controlling, it also explained that Farrar “does not establish a firm rule that the only appropriate fee is no fee when the prevailing party recovers nominal damages and [does] not create a per se bar against awarding attorney’s fees to a prevailing party who recovers only nominal damages.” Id., 328. The court further explained that “the [United States] Supreme Court noted that the primary consideration in awarding fees under 42 U.S.C § 1988 was a comparison of the amount of damages awarded with the amount sought. . . . Thus, the court’s conclusion would allow for a substantial award of fees where the damages sought and the recovery were roughly corresponding in amount, including where both were minimal in size.” Simms v. Chaisson, supra, 328. Accordingly, the court concluded that although Farrar “does not prohibit the award of attorney’s fees to a plaintiff recovering only nominal damages, it does [however] narrow a court’s discretion to award a substantial fee under § 1988.” Id., 329.

On the basis of our Supreme Court’s discussion of Farrar in the Simms case, which is distinguishable from this case, and because the court in the present case was faced with both state law and federal law, Farrar is applicable to the present case. Simms is distinguishable from the present case because the court in Simms relied on § 52-571c (b), which is based on intimidation and bigotry, which are characterized as invidious discrimination. In the present case, the court relied on a different statute. Therefore, the plaintiff’s argument that the court improperly relied on Farrar in light of Simms, fails. Additionally, from the record before us, it is unclear to what extent the court relied on Farrar when it determined the plaintiffs attorney’s fees award.

Furthermore, the plaintiff argues that the court improperly reduced the lodestar figure by 50 percent and that it should have calculated the lodestar figure on the basis of 169.31 hours rather than the 162 hours it applied in its calculations. The plaintiff argues that “[i]n the absence of the trial court identifying any specific time spent in the litigation by [the] plaintiff[’s] counsel as being unreasonable, the sweeping reduction of the ‘lodestar’ amount suggests that the trial court believed that only eighty hours of counsel’s time was reasonable and that the 169 hours actually spent was somehow excessive for six years of litigation at both the commission and at the Superior Court.”

There are two deficiencies with the plaintiffs argument. In the first instance, the plaintiff argues that the lodestar figure should be the beginning and the end of the inquiry. This is simply not true. “[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. . . . The courts may then adjust this lodestar calculation by other factors.” (Citation omitted; emphasis added; internal quotation marks omitted.) Laudano v. New Haven, 58 Conn. App. 819, 822-23, 755 A.2d 907 (2000); see Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). Here, the court properly listed the factors to be considered in awarding attorney’s fees. Second, to the extent that the plaintiff argues that the court did not sufficiently explain the weight it gave to particular factors, we know of no law, nor has the plaintiff cited any, that requires the court to ascribe to any of the factors a particular weight. Furthermore, to the extent that the record is unclear, the plaintiff is responsible for providing the court with an adequate record.

“It is axiomatic that the appellant must provide this court with an adequate record for review. See Practice Book § 61-10.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). “[W]here a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal of the rectification memorandum to this court via the motion for review.” (Internal quotation marks omitted.) High-gate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 21, 553 A.2d 1126 (1989).

Upon receiving the response to her motion for articulation, which the plaintiff considered inadequate, she could have filed a motion for review with this court, requesting that the trial court provide an explanation of its reasons for the fee award. See Practice Book §§ 66-5 and 66-7. The plaintiff is responsible for providing this court with an adequate record for review and has failed to do so. On the basis of the court’s recitation of the factors it considered and the inadequate record, we must defer to the substantial discretion of the trial court. Because we cannot say that the court abused its discretion or improperly applied the law, we affirm the judgment of the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       Westphal is not a party to the present appeal. Therefore, for the purposes of this appeal, we refer to Sanchez as the plaintiff. In their original complaint to the commission, the plaintiff and Westphal named only Brookstone Court, LLC. On October 12, 2000, however, the parties amended their complaint to include Harvest Investments, LLC, the managing company; Roger Beit, principal member of Brookstone Court, LLC; Laura Ross, property manager; and Laura Hull, leasing agent.

       The “lodestar” component of an attorney’s fee is the product of “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).

       Brookstone Court Apartments, owned by the defendant Brookstone Court, LLC, is located at 147 Hillcrest Avenue, West Hartford.

       As an alternative to bringing an action in the Superior Court, the defendants could have elected to have the commission conduct an administrative hearing on the matter.
      General Statutes § 46a-83 (d) (2) provides in relevant part: “If the investigator makes a determination that there is reasonable cause to believe that a violation of section 46a-64c has occurred, the complainant and the respondent shall have twenty days from receipt of notice of the reasonable cause finding to elect a civil action in lieu of an administrative hearing pursuant to section 46a-84. If either the complainant or the respondent requests a civil action, the commission, through the Attorney General or a commission legal counsel, shall commence an action pursuant, to subsection (b) of section 46a-89 within ninety days of receipt of the complainant’s or the respondent’s notice of election of a civil action. . . .”

       General Statutes § 46a-64c (a) (6) (A) provides in relevant part that it is a discriminatory practice: “To discriminate in the sale or rental, or to otherwise malee unavailable or deny, a dwelling to any buyer or renter because of a learning disability or physical or mental disability of: (i) Such buyer or renter; (ii) a person residing in or intending to reside in such dwelling alter it is so sold, rented, or made available; or (iii) any person associated with such buyer or renter.”

       General Statutes § 46a-64c (a) (6) (C) provides in relevant part: “For purposes of this subdivision, discrimination includes: (i) A refusal to permit, at the expense of a person with a physical or mental disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises . . . .”

       Section 3604 (f) of title 42 of the United States Code provides in relevant part that it is unlawful: “(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—
      “(A) that buyer or renter,
      “(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
      “(C) any person associated with that buyer or renter. . . .
      “(3) For purposes of this subsection, discrimination includes—
      “(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

        “(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or
      “(C) in connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is 30 months after [the date of enactment of the Fair Housing Amendments Act of 1988, enacted September 13, 1988], a failure to design and construct those dwellings in such a manner that—
      “(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
      “(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
      “(in) all premises within such dwellings contain the following features of adaptive design:
      “(I) an accessible route into and through the dwelling . . .

       General Statutes § 46a-104 provides: “The court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs.”
      General Statutes § 46a-100 provides in relevant part: “Any person who has timely filed a complaint with the [c]ommission ... in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford.”
      In this case, the plaintiff did not obtain a release from the commission; thus, § 46a-104 does not apply. Rather, General Statutes § 46a-86 (c) applies, which provides in relevant part: “In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58, 46a-59, 46a-64, 46a-64c, 46a-81b, 46a-81d or 46a-81e, the presiding officer shall determine the damage suffered by the complainant, which damage shall include, but not be limited to, the expense incurred by the complainant for obtaining alternate housing or space, storage of goods and effects, moving costs and other costs actually incurred by him as a result of such discriminatory practice and shall allow reasonable attorney’s fees and costs.” (Emphasis added.)
      Even though the court relied on § 46a-104, when it should have relied on § 46a-86 (c), the result of this case does not change. The plaintiff, in her motion for attorney’s fees, requested relief pursuant to General Statutes §§ 46a-86 (c) and 46a-104, and 42 U.S.C. § 3613 (c) (2). The court then referenced § 46a-104 in its analysis for the award of attorney’s fees. Furthermore, the commission, in its brief, asserted that the court analyzed the attorney’s fee request under the incorrect statute. The commission claimed that the main difference between these two statutes is that § 46a-86 (c) mandates the court to award reasonable attorney’s fees. We need not address the differences in the construction of these statutes because we find that the court did calculate an award and, thus, whether it “shall” or “may” have done so is irrelevant. Thus, even though the court evaluated the claim under the wrong statute, we find that no harm resulted. See generally Myers v. Hartford, 84 Conn. App. 395, 400, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).

       Section 3613 (c) (2) of title 42 of the United States Code provides in relevant part: “In a civil action under subsection (a) of this section, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be hable for such fees and costs to the same extent as a private person.”

       On October 5, 2006, in her motion to reargue, the plaintiff claimed that Kor earned attorney’s fees in the amount of $55,025.75 on the basis of 169.31 hours of work.

       The court calculated that on the basis of the plaintiffs recovery on the underlying claim, Kor was entitled to $3300 under the parties’ contingent fee agreement.

       Although the court denied the plaintiffs motion for articulation, it did state the following: “(1) The fee arrangement of attorney Kor with his client entitled him to one third of the $10,000 recovery; whether or not he got paid, it is irrelevant,” and, “(2) [wjhether attorney Kor claimed $52,699 or $55,025.75 would not have changed the court’s decision.”

       Originally, the plaintiff moved for attorney’s fees in the amount of $48,282. Then she filed a supplemental motion for attorney’s fees, claiming $52,699.50 in fees, and filed a second supplemental motion for attorney’s fees, claiming $55,025.75 in fees. The court determined the lodestar amount to be $52,669, apparently awarding the value of $325 an hour for 162 hours. On the basis of this lodestar figure, the court awarded $25,000 and further reduced it by $3300, the amount to which counsel was entitled from the contingent fee award. Thus, except when we refer to the reduction on the basis of the contingent fee setoff, we use the amount found by the court: $25,000.

       The plaintiff also argues that the court improperly reduced her award of attorney’s fees because of her contingent fee agreement. The plaintiff does not offer any legal authority to support this contention. Furthermore, the plaintiff offers legal authority that discusses only whether a court can enhance the attorney’s fees award when there is a contingent fee agreement. Therefore, the plaintiff has not demonstrated that the court abused its discretion in reducing the award by the contingent fee amount.

       In Farrar, the United States Supreme Court held that the plaintiff was not entitled to any attorney’s fees when she was awarded nominal damages of $1. The court stated: “[W]hen a plaintiffs victory is purely technical or de minimis, a district court need not go through the usual complexities involved in calculating attorney’s fees.” Farrar v. Hobby, supra, 506 U.S. 117.
      In addition to her legal arguments, the plaintiff also asserts a public policy argument, claiming that the court’s decision will ipjure future civil rights plaintiffs by discouraging counsel to represent such clients. Although we recognize the importance of this argument, it does not comport with the fact that the attorney was awarded more than $21,000 for his work.

       In its memorandum of decision on the plaintiffs motion to reargue, the court rebuffed the plaintiffs introduction of the Simms case for the first time in her motion to reargue. The court relies on Opoku v. Grant, 63 Conn. App. 686, 778 A.2d 981 (2001), for the proposition that a party cannot introduce new cases in a motion to reargue just to have a second bite of the apple. The court in Opoku stated: “[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.” Id., 692. Thus, Simms was properly introduced before the court through the plaintiffs motion to reargue. It, however, is distinguishable from the present case and therefore has no impact on the resolution of the plaintiffs claims.

       General Statutes § 52-571c (b) provides: “In any civil action brought under this section in which the plaintiff prevails, the court shall award treble damages and may, in its discretion, award equitable relief and a reasonable attorney’s fee.”

       The plaintiff is not challenging the use of the lodestar figure; rather, she is challenging how the court calculated the figure and the reasons for the reduction applied to that figure.

       The plaintiff is aware of the inadequate record when she writes in her brief that “[t]he trial court failed to explain why it appears to have given no consideration to the plaintiffs supplemental motion for attorney’s fees, dated April 23, 2006, which sought an additional [seven and one-quarter] hours for a total of 169.31 hours.”

        The plaintiff argues that the court “must state the reasons for excluding those hours ‘as specifically as possible.’ ” The plaintiff reads the court’s decision as if it did not focus on the hours spent on the case but, instead, focused solely on the amount of the award obtained. The court did state, however, that it considered all of the relevant factors.
      A reading of the court’s memorandum of decision on the plaintiffs motion for attorney’s fees, the court’s memorandum of decision on the plaintiffs motion to reargue and the court’s holographic notes written on the plaintiffs motion for articulation do not disclose or clarify the court’s reasons for reducing the lodestar amount by half or why the court used 162 hours to calculate the lodestar amount rather than 169.31 hours. It is the responsibility of the plaintiff, however, to ensure that the record is adequate for review. Practice Book § 61-10.


text:
    JOSEPH KONEFAL v. MARTIN KONEFAL
    (AC 28253)
    DiPentima, McLacMan and Stoughton, Js.
    Argued January 11
    officially released April 29, 2008

      Kim Coleman, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).

      Robbie T. Gerrick, with whom, on the brief, was Jeffrey L. Ment, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

This disheartening case stems from an altercation between two elderly brothers. The defendant, Martin Konefal, appeals from the judgment of the trial court denying his motion to open a judgment from a prior case and for dismissing his counterclaim asserted against the plaintiff, Joseph Konefal. We conclude that the defendant has failed to provide us with an adequate record to review his first claim and has briefed his second claim inadequately. Accordingly, we affirm the judgment of the trial court.

The following facts are relevant to the resolution of this case on appeal. The plaintiff and the defendant are octogenarian brothers who live in Rockfall, a section of Middlefield located in Middlesex County, in homes adjacent to each other. A dispute arose between the plaintiff and the defendant when the defendant perceived that the plaintiff had acquired property that he believed should have been devised to him, rather than to the plaintiff. On August 16, 2000, tensions between the brothers resulted in an incident in which, the plaintiff alleged, the defendant physically assaulted and injured him. In December, 2000, the plaintiff commenced a civil action against the defendant. On June 8, 2001, the defendant was defaulted for failure to appear in the civil action.

The August 16, 2000 incident also resulted in criminal charges being filed against the defendant. In the criminal case, the defendant was ordered to submit to a competency evaluation and, on September 21, 2001, was found to be incompetent with respect to the criminal case only.

On November 21, 2001, the plaintiff obtained a civil judgment against the defendant for $25,810, after a hearing in damages. On February 25,2002, the court ordered a payment schedule of $35 per week. Although the plaintiff failed to give the defendant notice of the judgment after the default for failure to appear as required by Practice Book § 17-22, the plaintiff did serve the defendant with the weekly payment order.

On December 4, 2002, in the 2001 civil action, the plaintiff filed a judgment lien against real property owned by the defendant in Connecticut. On January 14, 2003, the plaintiff commenced this action to foreclose his judgment lien. The defendant was defaulted for failure to appear in this action. On April 14, 2003, however, the defendant filed an answer, which operated to open the default pursuant to Practice Book §§ 17-31 and 17-32 (b). Along with his answer, the defendant filed a special defense of incapacity and incompetency. Additionally, the defendant filed a counterclaim, alleging battery, trespass and abuse of process. These allegations were in regard to the August 16, 2000 altercation between the plaintiff and the defendant, which was the subject of the 2001 civil action.

In its memorandum of decision issued on February 15, 2006, the court made the following findings: “The case was claimed for a jury trial, and the parties selected a jury, and at a pretrial hearing on December 12, 2005, the court, sua sponte, questioned the appropriateness of a jury trial for a foreclosure action in view of the untimeliness of the defendant’s counterclaim. On December 13, 2005, the court dismissed the jury and dismissed the defendant’s counterclaim as untimely. The court advised the parties that it would hear the foreclosure action and would consider the defendant’s competency as an equitable defense.

“The defendant, on December 13, 2005, [in this action] filed for the first time a motion to open the judgment entered on November 21,2001, in the underlying [2001] civil matter ... in which the defendant was defaulted for failure to appear.

“The plaintiff at the [foreclosure] trial introduced evidence of the value of the defendant’s property. The property is owned by the defendant and his wife, Mary P. Konefal. The court [found that] based on the appraisal evidence that the property has a fair market value of $247,000. The court [found that] the updated debt due the plaintiff [was] in the amount of $40,262.75. The plaintiff [was] awarded an appraisal fee of $350, title search fee of $150 and attorney fees in the amount of $5000. The plaintiff [sought] attorney fees in the amount of $18,127, but the court decline[d] to award fees in that amount.

“The court at the date of [the foreclosure] trial in December, 2005, denied the motion to open [the 2001 judgment] without prejudice. Upon reconsideration, the court affirms its decision to deny the motion to open.” The court also considered the defendant’s incompetency in regard to his motion to open but concluded that “[i]n view of the fact that the defendant and his current counsel knew of the default [in the 2001 action] but failed to move to open until the date of [the foreclosure] trial, the court is without jurisdiction to open the default judgment.” The court found that in this case, the defendant was still incompetent to stand trial and stated that “[i]n considering whether to grant foreclosure, the court finds that the equitable considerations of the defendant’s incompetency, age and joint ownership of the property with his elderly wife require the court to withhold the equitable remedy of foreclosure. . . . However, the plaintiff may hen the property for his debt, fees and costs awarded in this action. He will continue to have the security of the property for the ultimate collection of the debt.”

On May 5, 2006, the defendant filed a motion for rectification or clarification, requesting that the court allow him to file his motion to open in the “correct action” and to clarify its decision in regard to the disposition of the defendant’s counterclaim. On August 15, 2006, the court granted the motion in part and wrote: “The counterclaims were dismissed with prejudice, as they were untimely.” On October 12, 2006, the defendant moved for an articulation, requesting that the court “articulate its reasons for dismissal with prejudice” of the counterclaim. The court granted the articulation on October 26, 2006, and wrote: “The defendant in this foreclosure case seeks to relitigate the incident which led to the original judgment from which the lien arises. The court, after a hearing, denied the motion to reopen its decision. . . . The issues involve the August 16, 2000 incident [which] were resolved by the judgment in [the 2001 civil action]. The defendant’s counterclaims are dismissed with prejudice.” This appeal followed.

On appeal, the defendant asserts that the court (1) abused its discretion when it denied his motion to open the judgment in the 2001 civil action because the court determined that he was incompetent at the time of the action and (2) erroneously dismissed with prejudice his counterclaim. In opposition, the plaintiff argues that the defendant has failed to provide this court with an adequate record for review of the first claim and that the second claim is briefed inadequately. Therefore, the plaintiff asserts that the defendant’s claims should not be reviewed by this court. We agree.

The defendant first claims that the court should have granted his motion to open the 2001 civil action because a fraud was perpetrated on the court.* *** Essentially, the defendant claims that the plaintiffs counsel knew that the defendant was incompetent as of the date of the 2001 trial, yet failed to inform the court about the defendant’s condition. The defendant argues that if the plaintiffs counsel had informed the court in 2001 of the defendant’s condition, “it is unlikely that any court would have proceeded.” Additionally, the defendant states that “there is no record of the court’s knowledge of these issues, and the court did proceed in the hearing in damages. Clearly, a fraud was committed on the court . . . .”

Although the defendant refers to the 2001 civil action in his argument, on the basis of the record before us, in the 2003 action, we can only speculate as to what information was before the court in 2003 with respect to the 2001 action. Thus, the record is inadequate for review of this claim.

Pursuant to Practice Book § 60-5, it is the responsibility of the appellant to provide an adequate record for review. See also Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) New Haven Savings Bank v. Mongillo, 67 Conn. App. 799, 802, 789 A.2d 547 (2002). “[Speculation and conjecture . . . have no place in appellate review.” (Citation omitted; internal quotation marks omitted.) Wells Fargo Bank of Minnesota, N.A., Trustee v. Morgan, 105 Conn. App. 856, 860, 941 A.2d 943 (2008). Because the defendant failed to provide us with an adequate record for review, we cannot review the merits of his claim.

The defendant next claims that the court erroneously dismissed his counterclaim. To support this argument, the defendant argues that he filed a counterclaim “against the [plaintiff] on April 15,2003, alleging battery and trespass for incidents that occurred on August 16, 2000, and for abuse of process for the incident that occurred on November 21, 2001. Pursuant to General Statutes § 52-577, an action may be brought within three years of the date of the act or omission. Practice Book § 10-54 allows a defendant, in law or equity or in both, to file a counterclaim. This is what the [defendant] did, and his [counterclaim] should be allowed to go to trial.”

In opposition, the plaintiff submits that the defendant’s claim should fail because the claim is briefed inadequately and therefore abandoned. Additionally, the plaintiff argues that even if we decided to review the defendant’s claim despite the inadequate brief before us, the claim still fails because it is time barred by the statute of limitations pursuant to General Statutes § 52-584. Although it is unclear from the record what the court relied on in reaching its determination that the counterclaim was untimely, this court need not address this issue because the defendant’s claim is briefed inadequately. The defendant, as the appellant, is required to brief his arguments to this court fully and adequately. See, e.g., Legnos v. Legnos, 70 Conn. App. 349, 350 n.1, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002). “[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 failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citation omitted; internal quotation marks omitted.) Shore v. Haverson Architecture & Design, P.C., 92 Conn. App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006). In the present case, the defendant submitted less than one page of argument on this issue, which lacked law and analysis in support thereof. Accordingly, we do not review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was ordered to submit to two additional competency evaluations, both in 2002. The first evaluation found the defendant to be incompetent, and the case was continued. At the last competency hearing held on September 5, 2002, the defendant was found to be incompetent and “incapable of being restored to competency.”

       Practice Book § 17-22 provides in relevant part: “A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party against whom it is directed and a copy of such notice shall be sent to the clerk’s office. . . .”

       Practice Book § 17-31 provides in relevant part: “Where either party is in default by reason of failure to comply with Sections 10-8, 10-35 [or] 13-6 . . . the adverse party may file a written motion for nonsuit or default or, where applicable, an order pursuant to Section 13-14. Except as otherwise provided in Sections 17-30 and 17-32, any such motion . . . shall be filed with the clerk of the court in which the action is pending . . . .”
      Practice Book § 17-32 (b) provides in relevant part: “If any party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. . . .”

       We note that the appeal was filed in docket number CV-03-0100465-S. Initially, the plaintiff filed a cross appeal challenging the court’s decision in the 2003 foreclosure action but subsequently withdrew his cross appeal.

       Although generally a motion to open must be filed within four months of entry of the judgment; General Statutes § 52-212 (a); a motion to open on the basis of fraud is not subject to this limitation but should be presented promptly after the discovery of the alleged fraud. See Varley v. Varley, 180 Conn. 1, 3, 428 A.2d 317 (1980).

       Attorney William Grady, who represented the defendant in the criminal matter, testified, in the 2003 foreclosure action, that he spoke with a woman who represented herself to be the plaintiffs counsel on the day of the plaintiffs hearing in damages. He testified that he told the attorney that the defendant had been declared incompetent for purposes of the criminal matter and that the defendant was in Florida Moreover, when asked, “[d]id you tell the attorney to inform the judge that [the defendant] was ... in Florida and was not going to appear at the hearing?” Grady replied, “I did not, nor do I think it was necessary.” It is unclear from his testimony, however, whether the plaintiffs counsel wilfully withheld this information about the defendant.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”


text:
    GLEN BAILEY v. COMMISSIONER OF CORRECTION
    (AC 28288)
    McLachlan, Harper and Peters, Js.
    Argued February 19
    officially released April 29, 2008

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      Sarah Hanna, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Glen Bailey, appeals following the denial of certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying certification to appeal and improperly rejected his claim that his appellate counsel had provided ineffective assistance. We dismiss the appeal.

The following facts and procedural history are not in dispute. The petitioner was convicted, following a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 and four counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21. The trial court imposed a total effective sentence of forty years incarceration. The petitioner, challenging the judgment on two grounds, brought a direct appeal before this court, which affirmed the judgment of the trial court. State v. Bailey, 56 Conn. App. 760, 746 A.2d 194 (2000), cert. denied, 264 Conn. 901, 823 A.2d 1219 (2003). At the time he brought his direct appeal, the defendant was represented by two special public defenders, Megan McLoughlin and Alexander H. Schwartz. Later, the petitioner, appearing pro se, petitioned our Supreme Court for certification to appeal from this court’s judgment. Our Supreme Court denied the petition on May 21, 2003. State v. Bailey, 264 Conn. 901, 823 A.2d 1219 (2003).

On May 17, 2006, the petitioner brought an amended petition for a writ of habeas corpus in which he claimed that his appellate counsel provided deficient representation in that they failed to file a petition for certification to appeal from this court’s judgment to our Supreme Court and failed to raise several claims in his direct appeal. The petitioner asserted that “[ajppellate counsel’s affirmative acts and omissions fell below the standard of reasonable competence in criminal law” and that, but for those acts and omissions, “it is reasonably probable that the result of the appeal would have been different.” Thus, the petitioner claimed that his incarceration was unlawful because it followed from the deprivation of his right to the effective assistance of counsel afforded by the federal and state constitutions. The respondent, the commissioner of correction, denied the allegations of deficient and prejudicial representation. The habeas court held an evidentiary hearing related to the petition. The petitioner submitted transcripts of proceedings from his criminal trial, published decisions related to his case and materials that were filed in connection with his direct appeal. The petitioner testified in support of the petition but did not present any other testimony.

In its October 19, 2006 memorandum of decision, the court denied the petition. The court summarily rejected the claim related to counsel’s failure to file a petition for certification to appeal to our Supreme Court, stating that “there can be no prejudice because such a petition was actually filed, and the Supreme Court declined to entertain the [appeal].”

The habeas court also rejected the claims related to the failure of counsel to raise several additional claims in the petitioner’s direct appeal. The court stated: “[T]here axe a plethora of allegations involving the failure of the petitioner’s appellate counsel to raise issues on appeal; however, there was a paucity of proof supporting these allegations adduced at the habeas trial. To be sure, the petitioner did introduce the transcript of his criminal trial, thereby allowing the habeas court to ascertain what took place at the criminal trial; however, there is no way that this court can conclude that the petitioner has met his burden of proof that he was the ‘victim’ of ineffective assistance of counsel. A habeas court does not sit as an examiner to grade the performance of counsel. To simply submit a transcript and essentially ask the court to engage in a plenary critique of counsel’s efforts and, thereafter, attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner.”

The court further stated: “There was no expert opinion testimony offered by another appellate counsel as to the viability of any of the issues that might have been raised [in the direct appeal]. The attorneys who represented the petitioner on appeal were not even called to testify. In essence, the petitioner now simply asserts, without any real support, that there were better issues that should have been raised and were not.” The court summarized its assessment of the evidence, noting that the petitioner argued effectively that additional claims might have been raised in his direct appeal, but did not present any evidence that these claims “should” have been raised such that the failure to raise such claims constituted deficient representation. (Emphasis in original.) Accordingly, the court concluded that the petitioner failed to satisfy his burden of demonstrating that his appellate counsel were ineffective as alleged. The court subsequently denied the petition for certification to appeal to this court, and this appeal followed.

“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. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. 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).

“Our Supreme Court has adopted [Strickland's] two part analysis in reviewing claims of ineffective assistance of appellate counsel. . . . The first part of the Strickland analysis requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . The right to counsel is not the right to perfect representation. . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of buiying good arguments ... in a verbal mound made up of strong and weak contentions. . . . Indeed, [experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . . Most cases present only one, two, or three significant questions. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones. . . . Our Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation. . . .

“The seminal case of Bunkley v. Commissioner of Correction, [222 Conn. 444, 610 A.2d 598 (1992)], considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel. Rejecting the petitioner’s contention that the proper analytical focus is the probable result of the appeal, the Bunkley court explained that the proper focus instead is the result of the trial. ... 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. ” (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn. App. 560, 562-64, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005).

We carefully have reviewed the petition for a writ of habeas corpus as well as the evidence, both documentary and testimonial in nature, presented in support of the petition. Nothing in the record contradicts the habeas court’s unequivocal assessment of the evidence. Having established what occurred during his criminal trial and what claims were raised in his direct appeal, the petitioner did nothing more than argue before the habeas court that his appellate counsel might have handled the appeal differently. The court was left without any evidentiary basis on which to assess why the petitioner’s appellate counsel acted as they did or to find that reasonably competent counsel would have acted differently. Absent any evidentiary showing that his counsel’s representation fell below an objective standard of reasonableness, and that such deficient performance undermines confidence in the verdict that resulted in his appeal, he cannot demonstrate any entitlement to relief. On this record, the petitioner has not demonstrated before this court that the issues raised in his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues differently or that the questions raised deserve encouragement to proceed further. We conclude, therefore, that the habeas court’s denial of the petition for certification to appeal reflected a sound exercise of its discretion.

The appeal is dismissed.