author: DiPENTIMA, J.

text:
    JOHN EDMOND III v. DAWN FOISEY ET AL.
    (AC 29077)
    DiPentima, McLachlan and Lavine, Js.
    Argued September 24
    officially released December 23, 2008

      Andrew Brand, with whom was Bryan P. Fiengo, for the appellant (named defendant).

      Beth A. Steele, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant Dawn Foisey appeals from the judgment of contempt rendered in favor of the plaintiff, John Edmond III. Specifically, the defendant claims that the trial court (1) violated her right to due process when it failed to afford her a full hearing on the issues raised in the plaintiffs motions for contempt, (2) imposed a punitive sanction in violation of Practice Book § 1-21A, (3) improperly found her in contempt and (4) improperly enforced the parties’ stipulated judgment by a sanction for contempt. We agree with the defendant’s first and second claims and, accordingly, reverse the judgment of the trial court.* **

A discussion of the unfortunate and extensive factual and procedural history is necessary. The plaintiff is an owner of property located in Griswold known as 15 Jumper Lane. In April, 2004, the plaintiff transferred an interest in this property to the defendant. Specifically, he and the defendant held the property as joint tenants with rights of survivorship, each holding an undivided half interest therein. At some point subsequent to this transfer, the relationship between the parties broke down.

On March 17, 2006, the plaintiff commenced the present action, seeking a judicial determination of the respective rights and interests of the parties with respect to the property. In his amended complaint, dated November 8, 2006, the plaintiff sought a partition of the property and set forth claims of conversion, property damage and unjust enrichment. On December 18, 2006, the court granted the defendant’s motion to bifurcate the partition action from the remaining claims.

On December 20, 2006, prior to trial, the parties executed an agreement with respect to the partition action. First, the plaintiff agreed to sell his title and interest in the property to the defendant for $200,000. With those proceeds, the plaintiff would pay off the approximately $140,000 mortgage. The sale was to take place within ninety days, which would be March 20, 2007. Second, the December, 2006 mortgage payment, which had not been made, was to be made by the defendant after receiving funds for one half of the payment from the plaintiff. Third, the defendant was required to “pay in full all mortgage payments due for the property up until the day of closing and hold the plaintiff harmless for the same.” Fourth, the defendant retained exclusive possession of the property until the closing. Fifth, the plaintiff was awarded access to the premises on January 6, 2007, to retrieve certain personal items. The court, Hon. Robert C. Leuba, judge trial referee, incorporated the agreement into its judgment.

On January 8, 2007, the plaintiff filed a motion for contempt, alleging that the defendant had failed to comply with the terms of the agreement. Specifically, he claimed that the defendant had neglected to make the December, 2006 mortgage payment and refused to allow him access to retrieve his belongings. On January 19, 2007, the defendant filed an objection, averring that she had tendered the required payment and that the plaintiff had retrieved his items from the property.

On February 13, 2007, the court, Hon. D. Michael Hurley, judge trial referee, held a hearing on the plaintiffs contempt motion. At the hearing, counsel for the plaintiff acknowledged that both the December, 2006 and January, 2007 mortgage payments had been made by the defendant. The plaintiffs counsel argued, however, that the payments were untimely and therefore negatively affected the plaintiffs credit. In response, counsel stated that the defendant “didn’t know the date that she had to pay.” The court expressly rejected the defendant’s assertion that she was unaware of the date that the mortgage payments were due and found the defendant in contempt. The parties then agreed to stay the proceedings for contempt with respect to the issue of the plaintiffs belongings at the property. The court continued the plaintiffs request for attorney’s fees and ordered the defendant to pay the February, 2007 mortgage payment, including any late fees, by February 20, 2007. Counsel for the plaintiff stated for the record that the monthly mortgage payments were due on the first day of the month with a grace period in which payment must be received by the fifteenth of the month.

On March 21, 2007, the plaintiff filed a second motion for contempt, alleging that the defendant had failed to pay the February and March, 2007 mortgage payments in a timely manner, failed to permit him access to retrieve his items from the property and failed to take the steps necessary to finalize the sale of the property.

On April 30, 2007, the court held a hearing on the plaintiffs second contempt motion. The plaintiff testified that timely mortgage payments had not been made in December, 2006 and January, February and March, 2007. Additionally, there was evidence that the April mortgage payment had not been made at all. The plaintiff then stated that if the defendant could not obtain financing to purchase the property, he preferred that it be sold on the real estate market. The plaintiffs counsel then called Keith Wilcox, a mortgage lender, as a witness. Wilcox testified that the defendant first applied for a mortgage loan on March 12, 2007. This was only eight days before the closing was to occur on March 20, 2007. Wilcox testified that the defendant’s application had been denied. He also indicated that there was a 50 percent chance that the defendant would be able to obtain a mortgage loan.

The defendant then testified that she did not make the April, 2007 mortgage payment because that was not part of the agreement. She also stated that she had believed that the payments were due by the twentieth of each month and that she was aware of her obligation to make the monthly payments until a closing had occurred.

At the conclusion of the testimony, the plaintiffs counsel requested various court orders. During further discussion, counsel for the parties acknowledged that an appraisal had been completed in December, 2006, and that the value of the property was $230,000. The court ordered that if an offer to purchase the property was $225,000 or greater, the parties were required to accept it. The court then stated that the defendant did not explain why the February, 2007 mortgage payment had not been made on February 20, as the defendant previously had agreed. The court found the defendant in contempt and stated: “I am also going to order, just so it’s clear, that she make the April, [2007] payment immediately and that she is responsible for any subsequent payments until the house is paid for. And they must be made in a timely manner, that is, on the first of the month, otherwise [the plaintiffs] credit is affected and that’s not fair. As to the agreement, I’m going to—or rather, the order of the court, I’m going to go along with what counsel suggested, that the sale be arranged for by [a Realtor], that the defendant is ordered to sign the listing agreement within three days of when it’s presented. . . . She must allow access to the property [and] that the minimum payment or minimum sale price will be $225,000.” The court also awarded the plaintiff attorney’s fees in the amount for $500.

On May 7, 2007, the plaintiff filed his third motion for contempt. He alleged that the defendant had failed to make the April and May, 2007 mortgage payments and that she had failed to sign the listing agreement or to return the calls of the Realtor. On May 10, 2007, the defendant filed an objection to the motion for contempt and a request to modify the court’s orders with respect to the second contempt order. The plaintiff filed a fourth motion for contempt, dated May 15, 2007, claiming that the defendant refused to list the property, to allow a “for. sale” sign to be placed on the property and to permit the property to be shown to potential buyers. Finally, a fifth contempt motion was filed by the plaintiff, alleging that the defendant failed to make the June, 2007 mortgage payment.

On July 30, 2007, the court held a hearing on all three pending motions. The plaintiffs counsel requested another finding of contempt and that the defendant be incarcerated. As an alternative to incarceration, counsel asked that the defendant be ordered to vacate the property and to execute a deed to the property in favor of the plaintiff. The defendant’s counsel argued that his client was entitled to half of the proceeds from the sale and that an evidentiary hearing was required before the property could be transferred solely to the plaintiff. The plaintiffs counsel responded that the defendant was not entitled to anything from the property because she had enjoyed its use for the past three and one-half years.

After hearing further argument and without conducting an evidentiary hearing, the court ordered the defendant to vacate the property and to convey the property in its entirety to the plaintiff. The court also stated that the defendant could file an action if she wanted to recover her financial interest from the sale of the property. Furthermore, the court again found the defendant to be in contempt. Title to the property ultimately was conveyed by judicial order to the plaintiff, and the defendant was given approximately two weeks to vacate the property. This appeal followed. Additional facts will be set forth as necessary.

At the outset, we stress the importance of compliance with court orders and note that we in no way endorse the defendant’s continual disregard for the court’s orders. “The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction [over] persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril. United States v. United Mine Workers, 330 U.S. 258, 303, 67 S. Ct. 677, 91 L. Ed. 2d 884 (1947). [A]n order issued by a court with jurisdiction . . . must be obeyed by the parties . . . .” (Emphasis added; internal quotation marks omitted.) Rocque v. Design Land Developers of Milford, Inc., 82 Conn. App. 361, 366, 844 A.2d 882 (2004).

Before discussing the specifics of the defendant’s claims, we identify the scope of our review. In Papa v. New Haven Federation of Teachers, 186 Conn. 725, 444 A.2d 196 (1982), our Supreme Court stated: “[B]ecause this is an appeal from a judgment of civil contempt, our review is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.” (Internal quotation marks omitted.) Id., 731. Our Supreme Court subsequently has explained the rationale behind the limited scope of appellate review of contempt findings. “This limitation originates because by its very nature, the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order.” (Emphasis added; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007); Carasso v. Carasso, 80 Conn. App. 299, 307, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004). We now turn to the specific claims raised by the defendant in her appeal.

I

The defendant first claims that the court improperly violated her right to due process when it did not afford her a full hearing on the issues raised in the motions for contempt. Specifically she argues that she was “entitled to a hearing on the issue of her alleged noncompliance with the court’s order and should have been afforded an opportunity to explain the facts and circumstances surrounding the plaintiffs motion for contempt.” We agree.

We begin by setting forth some preliminary information regarding contempt. “Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.” (Internal quotation marks omitted.) In re Jeffrey C., 261 Conn. 189, 196, 802 A.2d 772 (2002). We next identify the type of contempt found in the present case. “Contempts of court may also be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court.” (Internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985). The plaintiff alleged in his motion that the contemptuous behavior was the failure of the defendant to comply with the court’s orders. As this occurred outside of the court’s presence, it is properly classified as indirect contempt. See, e.g., Duve v. Duve, 25 Conn. App. 262, 269, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992).

We now consider whether the court found the defendant to be in criminal or civil contempt. Criminal contempt is conduct directed against the authority and dignity of the court, while civil contempt is conduct directed against the rights of the opposing party. Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). “A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. . . . Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained.” Id.; see also DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278, 471 A.2d 638 (1984). As the purpose of the sanctions in the present case was to compensate the plaintiff, we conclude that the contempt in the present case is properly classified as civil, rather than criminal. See, e.g., Ullmann v. State, 230 Conn. 698, 709, 647 A.2d 324 (1994) (“it is the nature of the relief itself that is instructive in determining whether a contempt is civil or criminal”).

In his third motion for contempt, the plaintiff alleged that the defendant had failed to make the April and May, 2007 mortgage payments as previously ordered by the court. The plaintiff further claimed that the defendant had failed to sign the listing agreement and failed to cooperate with the real estate agent. In response, the defendant filed an objection. She stated that she had executed the listing agreement and attached a copy to her objection. She further claimed that she had tendered the April, 2007 payment. Finally, she indicated that she was unable financially to pay the May, 2007 mortgage payment or to pay the attorney’s fees that had been awarded in favor of the plaintiff. In support of this objection, the defendant submitted a financial affidavit.

The plaintiffs fourth motion for contempt alleged that the Realtor had indicated that the defendant had refused to allow (1) the property to be listed on the MLS service, (2) a sign to be placed on the property and (3) access to the property for showing to potential buyers. The defendant did not file a response to this motion. Finally, the plaintiffs fifth contempt motion alleged that the defendant had failed to make the June, 2007 mortgage payment. The defendant objected to this motion, again claiming that she financially was unable to make the mortgage payments.

At the July 30, 2007 hearing, the plaintiff requested a finding of contempt and either incarceration of the defendant or an order requiring her to vacate the property immediately. The defendant’s counsel stated: “[W]e’re entitled to a hearing on what she’s entitled to in this real estate, period. There has got to be a hearing, an evidentiary proceeding.” Counsel then argued that the defendant did not “have the money [to pay the mortgage]. Look in the file; there is a financial affidavit. She can’t afford it; she’s moving out. . . . [S]he thought she could get a mortgage.” After declaring its intention to order ownership of the property transferred solely to the plaintiff and to have the defendant vacate the property, the court then found the defendant in contempt.

“A finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony. ... A trial-like hearing should be held if issues of fact are disputed. . . . Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. . . . Because the inability of [a party] to obey an order of the court, without fault on his part, is a good defense to a charge of contempt . . . the [party] had the right to demonstrate that his failure to comply with the order of the court was excusable.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 59, 732 A.2d 808 (1999); see also Gattoni v. Zaccaro, 52 Conn. App. 274, 284-85, 727 A.2d 706 (1999).

Before the July 30, 2007 hearing, the defendant twice had been found in contempt by the court. Neither of those rulings, however, had been appealed. In response to the subsequent motions for contempt, the defendant claimed, for the first time, that she was unable financially to make the payments. In other words, she presented a defense to the charge of contempt and therefore had the right to demonstrate that her noncompliance was excusable. Kelly v. Kelly, supra, 54 Conn. App. 59; Gattoni v. Zaccaro, supra, 52 Conn. App. 284-85; see also Shapiro v. Shapiro, 80 Conn. App. 565, 569, 835 A.2d 1049 (2003). Specifically, she claimed her financial inability to make mortgage payments starting in May, 2007. As noted previously, “[t]he inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. . . . The contemnor must establish that he cannot comply, or was unable to do so.” (Internal quotation marks omitted.) Keeney v. Buccino, 92 Conn. App. 496, 513-14, 885 A.2d 1239 (2005); National Loan Investors, L.P. v. World Properties, LLC, 79 Conn. App. 725, 738 n.13, 830 A.2d 1178 (2003), cert. denied, 267 Conn. 910, 840 A.2d 1173 (2004); Berglass v. Berglass, 71 Conn. App. 771, 777, 804 A.2d 889 (2002).

The defendant was denied her right to present evidence regarding her inability to comply with the court’s order regarding payment of the mortgage. No sworn testimony was presented to the court, and the defendant’s financial affidavit, which had been attached to her motion, was not admitted into evidence. The sole basis for the finding of contempt appears to have been the representations of the plaintiffs counsel. “A judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper proceeding. ” (Internal quotation marks omitted.) Kelly v. Kelly, supra, 54 Conn. App. 60; Gattoni v. Zaccaro, supra, 52 Conn. App. 284; see also Cologne v. Westfarms Associates, supra, 197 Conn. 153; People’s Bank v. Perkins, 22 Conn. App. 260, 263-64, 576 A.2d 1313 (in absence of sworn testimony, presentation of argument by counsel constitutes improper basis for determining factual issue), cert. denied, 216 Conn. 813, 580 A.2d 58 (1990); Nelson v. Nelson, 13 Conn. App. 355, 366-67, 536 A.2d 985 (1988). In the present case, the third finding of contempt was not based on evidence, but on the representations of counsel during the July 30, 2007 hearing. We conclude that this finding of contempt, therefore, was improper. Accordingly, we reverse the judgment of July 30, 2007, granting the plaintiffs motions for contempt and remand the matter to the trial court with instruction to hold a hearing with respect to the plaintiffs motions.

II

The defendant also claims that the court imposed a punitive sanction in violation of Practice Book § 1-21 A. Specifically, she argues that the court improperly awarded the plaintiff sole ownership of the property. We agree with the defendant.

We begin by identifying the legal principles germane to the defendant’s claim that the court improperly imposed a sanction following the findings of contempt. Our Supreme Court has explained that “[s]anctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court’s orders and compensating the complainant for losses sustained. . . . In civil contempt the [punishment] must be conditional and coercive and may not be absolute.” (Citations omitted; internal quotation marks omitted.) Connolly v. Connolly, 191 Conn. 468, 482, 464 A.2d 837 (1983). When a fine is compensatory, the contemnor need not be offered the opportunity to purge herself of the contemptuous behavior. See In re Jeffrey C., supra, 261 Conn. 198; Rocque v. Design Land Developers of Milford, Inc., supra, 82 Conn. App. 367-68.

Before discussing the specifics of the defendant’s claim, we identify the applicable standard of review. As we previously stated, our Supreme Court set forth the general standard of review with respect to civil contempt. See Papa v. New Haven Federation of Teachers, supra, 186 Conn. 731. In Papa, the court reviewed the claim that the penalties imposed by the trial court were improper and an abuse of discretion. Id., 738. “These claims are reviewable in an appeal from the contempt judgment, because the contemnor must have some remedy for unauthorized or excessive penalties.” (Emphasis added.) Id., 737; see also National Loan Investors, L.P. v. World Properties, LLC, supra, 79 Conn. App. 739-40 (court abused discretion by awarding fine on basis of irrelevant information); Lord v. Mansfield, 50 Conn. App. 21, 34, 717 A.2d 267 (“[b]ecause a compensatory fine may be imposed as part of a civil contempt, our sole remaining inquiry is whether the trial court abused its discretion”), cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). Accordingly, we review this claim pursuant to the abuse of discretion standard.

“Our law regarding judicial discretion is equally well settled. Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity. . . . The action of the trial court is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . The trial court’s discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.” (Citation omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534-35, 710 A.2d 757 (1998). Guided by these principles and that standard of review, we now turn to the defendant’s claim.

The court’s order of sanctions following the third finding of contempt awarded the plaintiff all of the defendant’s interest in the property and required her to vacate the property within two weeks. The terms of the parties’ agreement were that the defendant would pay the plaintiff $200,000 and that he would take that money and pay off the existing mortgage of approximately $140,000. At one point, the parties appeared to agree that the property had been appraised at $230,000. There was, therefore, approximately $90,000 of equity in the property held by the parties. The end result of this agreement would be that the plaintiff would net approximately $60,000 and that the defendant would own the property with approximately $30,000 in equity and subject to a mortgage of $200,000. The court’s contempt sanctions, however, deprived the defendant of her entire interest of the property while the plaintiff solely owned the property and would obtain the equity of approximately $90,000.

In the present case, we conclude that a contempt sanction that deprived the defendant of her entire interest in the property constituted an abuse of discretion. Punitive sanctions are not permissible for civil contempt. There was no evidence before the court that the plaintiff sustained such significant losses to warrant such a draconian remedy. Although the court understandably was frustrated by the defendant’s noncompliant behavior, its remedy was punitive and absolute. Furthermore, it was not designed to be coercive in nature. The court’s sanction effectively obliterated the judgment underlying the contempt proceedings, namely, the partition of the property. This sanction deprived the defendant of her one-half ownership interest in the property.

The judgment of contempt and resulting sanctions from the July 30, 2007 proceeding are reversed. The case is remanded for a hearing on the plaintiffs May 7, May 15, and June 18, 2007 contempt motions.

In this opinion the other judges concurred.

       The plaintiff also named Wells Fargo Bank, N.A., and William W. Backus Hospital in Norwich as defendants. In the judgment file, the court stated that the rights of these defendants were not affected by the court’s ruling. As neither of these entities is a party to this appeal, we refer solely to Foisey as the defendant.

       Practice Book § 1-21A provides in relevant part: “The violation of any court order qualifies for criminal contempt sanctions. Where, however, the dispute is between private litigants and the purpose for judicial intervention is remedial, then the contempt is civil, and any sanction imposed by the judicial authority shall be coercive and nonpunitive, including fines, to ensure compliance and compensate the complainant for losses. . . .”

       The defendant also claims that the stipulated judgment of the parties was voidable as a result of the plaintiffs misrepresentation regarding payment of the taxes on the property. She further argues that the contempt arising therefrom is negated by this misrepresentation. This claim was not raised by the defendant before the trial court,. Accordingly, we decline to consider it on appeal. Solano v. Calegari, 108 Conn. App. 731, 742, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008); Korsgren v. Jones, 108 Conn. App. 521, 523 n.1, 948 A.2d 358 (2008); see also Practice Book § 60-5.

       We therefore do not address the other issues raised by the defendant on appeal.

       The defendant did not appeal from this finding of contempt.

       Specifically, the court stated: “So in other words, if there’s any further problem, I may well order that counsel fees be paid. But if she pays [the] February and probably [the] March payments and everything goes through as far as the sale of the house, then I’ll not order counsel fees. If she fails to do that, I may well order the $750 counsel fees.”

       The defendant attempted to explain why she had not made the payment as promised. The court denied this request, stating: “No. I’m sorry. No reason was given when she was on this witness stand. You didn’t ask her and she didn’t volunteer. So I can’t find it was not done wilfully. If it wasn’t done wilfully, she should have said why not. I didn’t get my paycheck; my pay was late; I got sick; I had to pay a medical bill. No excuse was given whatsoever.”

       The defendant did not appeal from this second finding of contempt.

       Counsel for the defendant offered to “stipulate right now to a judgment of partition and let the property get sold [by] the court-appointed committee, let the money get deposited in court and then we fight.” The court noted that judgment was in place but that the defendant had not abided by its terms.

       The plaintiffs counsel later explained his position: “[E]ven if her interest was some minimal amount, her living there for all of this time without contributing toward this mortgage, I think, nullifies any interest that she has.”

       At one point, the court stated that incarceration remained an option if the defendant failed to sign the deed over to the plaintiff. Although the defendant never signed the deed, the court did not incarcerate her.

       Although the record does not contain a memorandum of decision or a signed transcript; see Practice Book § 64-1; we conclude that the transcript adequately reveals the basis of the court’s decision. Accordingly we will review the claims raised by the defendant.

       We note that there is nothing in the record to suggest that the court reviewed or examined the defendant’s financial affidavit.

       As the plaintiff sought the remedy of a court order awarding him the defendant’s interest in the property, it follows that this issue may arise upon remand. We therefore will address this claim. See, e.g., McTigue v. New London Education Assn., 164 Conn. 348, 356, 321 A.2d 462 (1973).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    WENDELL MINNIFIELD v. COMMISSIONER OF CORRECTION
    (AC 28370)
    Flynn, C. J., and Lavine and Dupont, Js.

      Argued September 25
    officially released December 30, 2008

      Mark M. Rembish, special public defender, for the appellant (petitioner).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly and Gail P. Hardy, state’s attorneys, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Wendell Minnifield, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner’s sole claim is that the court improperly found that the petitioner had not been denied effective assistance of counsel in his prior habeas petition. We affirm the judgment of the habeas court.

The record reveals the following facts and procedural history. On June 25, 1996, the petitioner, represented by attorney Jayne Kennedy, pleaded guilty under the Alford doctrine to one count of murder in violation of General Statutes § 53a-54a. Subsequent to the plea hearing, the petitioner dismissed Kennedy as his counsel, and attorney Sheridan Moore was appointed to represent him. At the petitioner’s sentencing hearing on August 30, 1996, Moore made an oral motion to withdraw the petitioner’s guilty plea and requested a continuance. Moore represented to the court that she sought further time to investigate the petitioner’s claims that his plea canvass was defective and that his plea was involuntary. Following a review of the plea hearing transcript, the court denied Moore’s request for a continuance and denied the motion to withdraw the petitioner’s guilty plea. The court sentenced the petitioner to a term of forty years incarceration.

On February 11,1999, the petitioner filed an amended petition for a writ of habeas corpus, alleging that Kennedy provided him ineffective assistance. Attorney Katherine Goodbody represented the petitioner in this first habeas petition. The amended petition alleged that Kennedy was ineffective in not sufficiently investigating the case prior to the petitioner’s guilty plea, failing to file a motion to suppress the petitioner’s confession and misinforming the petitioner as to his sentence. The court denied the petition, and this court affirmed the court’s judgment. See Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001).

The petitioner filed the present amended petition for a writ of habeas corpus on April 20, 2006, alleging ineffective assistance of counsel against Goodbody. Specifically, the petitioner alleged that Goodbody was ineffective in failing to allege that Moore had provided ineffective assistance in failing to preserve and pursue the petitioner’s appellate rights following his sentencing. The second habeas court denied the petition and granted certification to appeal. This appeal followed.

We first set forth the appropriate standard of review. “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [wjhether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court; unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 762, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

“Our Supreme Court set the standard of review to be afforded an appeal from the dismissal of a habeas corpus petition alleging ineffective assistance of habeas counsel in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.” (Internal quotation marks omitted.) Denby v. Commissioner of Correction, 66 Conn. App. 809, 812, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002). “The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.” Lozada v. Warden, supra, 843.

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment [to the United States constitution]. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

At the second habeas trial, Goodbody testified that in preparation for the petitioner’s first habeas petition, she thoroughly discussed with the petitioner the issue of whether his guilty plea was involuntary. Further, Goodbody stated that her review included the plea and sentencing hearing transcripts and revealed nothing that would form the basis of an appeal. The petitioner testified that in his discussions with Goodbody, he did not mention bringing an ineffective assistance of counsel claim against Moore.

The petitioner testified that following his sentencing hearing, he had a brief discussion with Moore in which she informed him that he could appeal from the court’s denial of his motion to withdraw his guilty plea. The petitioner testified that Moore told him to file the appeal himself and that he attempted to do so but never “hearfd] anything back from it.” On cross-examination, the petitioner admitted that during his discussion with Moore he never communicated a desire to appeal, nor did he attempt to follow up on the appeal he claimed to have filed. The petitioner further stated that he had no copy or any record of the appellate papers he would have submitted.

Moore testified that prior to the sentencing hearing, she reviewed the transcript of the plea canvass and spoke with Kennedy concerning her representation of the petitioner. Moore further stated that she moved for a continuance to research issues surrounding the petitioner’s stated desire to withdraw his guilty plea. Although she admitted that she did not recall specifically discussing a possible appeal with the petitioner following sentencing, Moore stated that her usual practice was to do so. Moore also testified that she did not apprehend any appealable issues following the sentencing court’s denial of her motion for a continuance.

The petitioner argues on appeal that the second habeas court improperly held that both Goodbody and Moore provided him effective assistance of counsel. As to Goodbody, the petitioner maintains that a reasonable attorney in her position would have alleged that Moore was ineffective in failing to preserve his right to appeal from the court’s denial of the motion to withdraw the guilty plea. Regarding Moore, the petitioner contends that her failure to preserve his appellate rights constituted ineffective assistance of counsel. The second habeas court concluded that the petitioner failed to demonstrate that Moore’s assistance was ineffective, and, therefore, under the rule expressed by the court in Losada, requiring proof of ineffectiveness of both trial and habeas counsel, he could not prevail on his claim of ineffective assistance against Goodbody. We agree with the reasoning of the second habeas court.

In Ghant v. Commissioner of Correction, 255 Conn. 1, 6-10, 761 A.2d 740 (2000), our Supreme Court adopted the analysis of Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), applying the Strickland test for ineffective assistance of counsel to a claim that an attorney failed to apprise a defendant of the right to appeal. In such cases, the performance prong of the Strickland test requires the reviewing court to determine whether counsel consulted with the defendant regarding an appeal. Ghant v. Commissioner of Correction, supra, 8-9. To “consult” in this context means to “[advise] the defendant about the advantages and disadvantages of taking an appeal, and [to make] a reasonable effort to discover the defendant’s wishes.” (Internal quotation marks omitted.) Id., 9. “If counsel has consulted with the defendant . . . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal. ... If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel’s failure to consult with the defendant itself constitutes deficient performance. . . .

“[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” (Internal quotation marks omitted.) Id.

To satisfy the second part of the Strickland test, a petitioner must show prejudice resulting from counsel's deficient performance. “[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed. . . . [Wjhether a given defendant has made the requisite showing will turn on the facts of a particular case. . . . [E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination.” (Citation omitted; internal quotation marks omitted.) Id., 10.

The petitioner has not provided us with a record showing inadequacy in Moore’s representation. As to the performance prong of Strickland as applied in Ghant, and whether Moore consulted with the petitioner regarding a possible appeal, the petitioner admitted that he discussed such an appeal with Moore but provided few other details of the conversation, which occurred years earlier in August, 1996. Moore could not recollect the substance of the discussion. The petitioner also admitted that he never expressed to Moore a desire to appeal or directed her to file an appeal on his behalf. On the basis of the record before us, therefore, we are unable to conclude that Moore failed to consult with the petitioner concerning a potential appeal.

Furthermore, the petitioner has not demonstrated that he was prejudiced by Moore’s alleged failure to consult with him. The petitioner’s burden to prove that he was prejudiced by counsel’s actions under Strickland requires demonstration that he would have timely appealed absent counsel’s failure to consult with him. The record contains the testimony of the petitioner to the effect that he not only would have appealed, but did appeal from the sentencing court’s denial of his motion to withdraw his guilty plea. However, outside of the petitioner’s own word, which the second habeas court did not find credible, there is no evidence to support his claim. The petitioner did not provide the second habeas court with a copy of the appeal papers he claims to have filed. Further, the record contains no additional evidence that such an appeal was ever filed. The petitioner, therefore, has failed to demonstrate that he would have timely appealed.

Because the petitioner has not demonstrated that Moore’s representation was inadequate or that he was prejudiced by Moore’s representation, his claim of ineffective assistance of counsel fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


author: GRUENDEL, J.

text:
    ALYSSA PETERSON v. HANNAH WOLDEYOHANNES
    (AC 28650)
    Bishop, Gruendel and Foti, Js.
    Argued September 15
    officially released December 30, 2008

      Alyssa Peterson, pro se, the appellant (plaintiff).
   Opinion

GRUENDEL, J.

The plaintiff, Alyssa Peterson, appeals from the judgment of the trial court, which, despite having entered a default against the defendant Hannah Woldeyohannes, found in the defendant’s favor following the hearing in damages. On appeal, the plaintiff claims that the court improperly permitted the defendant to defend the action and improperly rendered judgment in favor of the defendant. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the plaintiffs appeal. The plaintiffs complaint alleged that in February, 2004, she and the defendant, social acquaintances, entered into an oral agreement to form a partnership for the purpose of purchasing six condominium units in Hartford. The alleged partnership engaged the services of an attorney to negotiate the purchase and to draw up a purchase agreement for the units. Before the partnership had the opportunity to enter into an agreement with the sellers, however, the units were conveyed to A to Zee, LLC. The defendant is the sole owner of A to Zee, LLC. The plaintiff thereafter filed a ten count complaint alleging the creation of an oral partnership between herself and the defendant, and seeking recovery based on a number of theories. In particular, the complaint alleged that the defendant breached the partnership agreement and breached her fiduciary duty to the plaintiff and the partnership by usurping the opportunity to purchase the units.

The remaining procedural history illustrates the long and tortured history of this case. On August 18, 2004, the plaintiff served requests for production, seeking the defendant’s telephone records from two telephones for the previous year. The plaintiff asserts that these telephone records might have provided the bases for additional investigation during discovery and might have established contact between herself and the defendant, and between the defendant and various parties and attorneys involved in the sale of the condominium units.

Having received no response to her requests for production, on September 28, 2004, the plaintiff filed a motion requesting that the court order sanctions for the defendant’s failure to respond to the requests, which the court denied in light of a motion for extension of time that the defendant filed on October 4, 2004. In the latter motion, the defendant requested a thirty day extension of time for responding to the requests for production and represented that she had “been proceeding diligently in an effort to comply” with the requests. The plaintiff objected to the defendant’s motion for extension of time on the ground that it was filed outside of the thirty day period required by Practice Book §§ 13-7 (a) and 13-10 (a). Thereafter, the defendant filed notice of objections to the requests for the telephone records.

The plaintiff then filed a motion to compel the defendant to comply with the requests for production on February 16, 2005, and the defendant objected to that motion on April 1, 2005. At a hearing on April 25, 2005, the court ordered the defendant to produce the telephone records requested, noting that the records were relevant to the case. Having never received any further response to the requests for telephone records, the plaintiff filed a motion to compel and for contempt on June 23,2005, less than one month before the scheduled start of trial. On July 11, 2005, the court entered an order requiring that the defendant “comply fully with [the court’s] order dated April 25, 2005, by no later than 5 p.m. on Wednesday, July 13, 2005. If the defendant fails to comply, a default shall enter. The plaintiffs request for other relief, including a finding of contempt, costs, and other relief pursuant to Practice Book § 13-14 is denied without prejudice and may be renewed if the above order is not fully complied with.”

The defendant did not comply with the court’s July 11, 2005 order, and on July 14, 2005, six days before the scheduled start of trial, the plaintiff filed a renewed motion for contempt. At the hearing on the plaintiffs renewed motion for contempt on September 14, 2005, the trial having been postponed, the court engaged the defendant’s counsel in a discussion regarding the noncompliance. The court asked: “Would you define for me . . . the ways in which that order has not been complied with?” Counsel replied: “[T]he documents requested were not in my possession. I have attempted, through a subpoena, to gamer those documents from the parties that possess them. . . . [Y]our order did not give me sufficient time to get them. I have again subpoenaed . . . those records. And . . . they have not shown up . . . from the telephone company.”

The court then asked the defendant’s counsel why the court had not heard about the inability to comply until almost one month later, to which counsel replied: “I believe that I wasn’t sure that it may have made a difference. ... I wasn’t able to comply. The fact of the matter was that I was not able to comply . . . with part of the order.” The court then inquired as to whether anyone had attempted to access the telephone records online, why the defendant did not maintain her own records and why the defense had not made an attempt to obtain the records earlier. The defendant’s responses to these questions were unsatisfactory to the court, and it entered a default for failure to comply with the court’s orders of April 25 and July 11, 2005.

The case then proceeded to a hearing in damages on September 21, 2005, pursuant to Practice Book § 17-34. At the opening of that hearing, the plaintiffs counsel indicated that she had received some of the telephone records at 4 p.m. the previous evening. The remaining majority of the records, however, had been destroyed by the telephone company in accordance with its policy of only retaining records for one year.

Also at the beginning of the hearing in damages, the court heard the defendant’s motion to open the default. The court denied the motion, noting that “[apparently [two other judges] both felt, despite what you’ve said . . . that the records were relevant ... to the issues of the case; that they were not irrelevant. That it is not just a question of . . . showing how many phone calls . . . but if she had the dates and with whom . . . the phone calls were made, then she could have asked questions from those parties as to what was said on key dates and so forth. And she . . . didn’t have the opportunity to do so. . . . I’ve had two judges now, by your own admission, consider the relevance of those records and found that they were relevant. And that, for whatever reason, your efforts to either obtain them were not made with sufficient energy or sufficient compliance and that the plaintiff was disadvantaged thereby.”

On the second day of the hearing in damages, September 22, 2005, the court permitted the defendant, over the plaintiffs objection, to file a notice pursuant to Practice Book § 17-34 (a) that she intended to offer evidence that would contradict the statements made in the plaintiffs complaint. The court ordered that the notice be filed by the afternoon of Monday, September 26, 2005, but the plaintiff did not receive the notice until Tuesday, September 27, 2005.

The defendant was apparently out of the country for the first two days of the hearing in damages, and the court, therefore, continued the hearing to October 27, 2005, to give the defendant the opportunity to testily. In the interim, the court permitted the defendant to amend the notice of defenses. In doing so, it noted, “I’m extending myself to the limit of my ability by letting you file a notice late [and] by letting you file an amended notice without even considering whether the notice has met the requirements that it be specific enough so that [the plaintiff] knows [the bases for your defenses].”

After the conclusion of the hearing in damages, the court issued a memorandum of decision. Despite the entry of default against the defendant, the court found that “no oral partnership was formed between the plaintiff and the defendant to purchase the six units . . . and the defendant has sustained her burden in proving such a partnership did not exist.” The court then rendered judgment in favor of the defendant.

On appeal, the pro se plaintiff raises seven separate claims of error. These claims may be condensed to the following two: that the court (1) improperly rendered judgment in favor of the defendant and (2) improperly permitted the defendant to deny liability on the merits of the action and, consequently, improperly denied any damages award to the plaintiff. We agree with the plaintiff on both points.

This case involves the interpretation and application of our rules of practice, which “presents a question of law over which this court’s review is plenary.” State v. One or More Persons over Whom the Court’s Jurisdiction Has Not Yet Been Invoked, 107 Conn. App. 760, 764, 946 A.2d 896, cert. denied, 289 Conn. 912, 957 A.2d 880 (2008). We begin our analysis by setting forth the appropriate procedure following the entry of default. “The entry of a default constitutes an admission by the defendant of the facts alleged in the complaint.” DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). All that remains following such an entry is for the plaintiff to prove the amount of damages to which it is entitled. Id., 401.

“The entry of default, however, does not preclude the defendant from raising a defense at the hearing in damages. If timely written notice is furnished to the plaintiff, the defendant may offer evidence contradicting any allegation of the complaint. The defendant may also challenge the right of the plaintiff to maintain the action or prove any matter of defense. . . .

“If the defendant appears in the action and furnishes the required notice, the subsequent hearing in damages takes on the nature of a supplemental trial involving the determination of questions of law and fact, and the determination of the damages to be assessed after such trial. . . .

“At such a proceeding the burden of proof is on the defendant to disprove those allegations of the complaint which he contests. ... If the defendant simply claims that he is not liable, he assumes the burden of proving that fact. ... If the defendant sustains his burden, the plaintiff is entitled to nominal damages only.” (Citations omitted; internal quotation marks omitted.) Id., 401-402.

The court’s memorandum of decision and the judgment form signed by the clerk indicate that the court rendered judgment “for the defendant.” This was improper under the doctrine enunciated in DeBlasio v. Aetna Life & Casualty Co., supra, 186 Conn. 398. As discussed previously, the entry of default against the defendant commands the rendering of judgment in favor of the plaintiff. See id., 400-402. Even where the defendant has properly filed notice of defenses pursuant to Practice Book § 17-34, the plaintiff is still entitled to nominal damages. Id., 402; see also Cardona v. Valentin, 160 Conn. 18, 26, 273 A.2d 697 (1970). As such, the plaintiff was entitled to a judgment in her favor.

The plaintiff also maintains that due to the failure of the defendant to produce the requested telephone records in a timely manner, her case was severely prejudiced. She further argues that the defendant directly benefited by her dilatoiy tactics. This argument is well founded and is not disputed by the defendant. The plaintiff argues, therefore, that because she never received much of the requested discovery, the court should have prevented the defendant from filing a notice of defenses pursuant to Practice Book § 17-34 (a) and from actually presenting defenses to the underlying claims of liability. This is a novel argument that has not before been considered by an appellate court in Connecticut. Essentially, the plaintiff asserts that when a disciplinary default has been entered against a defendant for failure to comply with a discovery order, it should not be permitted to avail itself of Practice Book § 17-34 (a) until it has demonstrated compliance with the underlying court order. We agree.

The interests of justice and fundamental fairness persuade us that such a result is necessary, for the alternative would work to permit a party to disregard a court order blatantly without any detriment. Such a result could not have been envisioned by the drafters of Practice Book § 17-34 (a), and we must “give effect to the apparent intent of the drafters.” State v. Gonzalez, 69 Conn. App. 649, 664, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002). “An order of the court must be obeyed until it has been modified or successfully challenged, and the consequences for noncompliance may be severe indeed.” Fox v. First Bank, 198 Conn. 34, 40 n.3, 501 A.2d 747 (1985); see also Practice Book § 13-14.

The record reveals that the defendant’s dilatory tactics, for which a disciplinary default was entered, directly resulted in the unavailability of evidence required by the plaintiff and found to be relevant by three judges. In such a circumstance, it would be wholly unjust, after entering a disciplinary default, for the court to permit the defendant to deny liability on the underlying claims, while the plaintiff remains without the requested discovery. In this case, the defendant’s noncompliance may have caused the plaintiffs inability to rebut the defendant’s defenses. We conclude, therefore, that when a defendant has failed to cure the underlying cause of the disciplinary default, it will not be permitted to take advantage of its behavior and of the opportunity to defend on the merits provided by Practice Book § 17-34 (a) during the hearing in damages. Considering the unique factual and procedural history presented by this case, we hold that the court improperly permitted the defendant to file notice of defenses and to maintain those defenses at the hearing in damages.

The judgment is reversed and the case remanded for a new hearing in damages.

In this opinion the other judges concurred.

       A to Zee, LLC, was also a defendant in this action, but the plaintiff withdrew her claim regarding A to Zee, LLC, on September 21, 2005. We therefore refer in this opinion to Woldeyohannes as the defendant.

       The defendant also objected to other requests for production that are not relevant to this appeal.

       We note that the initial request for production was filed on August 18, 2004, requesting records from the period of August, 2003 to August, 2004. It is clear, therefore, that if the records had been subpoenaed when the request was served, the telephone records would have been available.

       Practice Book § 17-34 (a) provides: “In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiffs complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense.” This rule derives from General Statutes § 52-221 (a), the relevant portion of which mirrors, almost verbatim, the text of the rule.

       The plaintiffs objection took the form of a motion in limine to prevent the defendant from contesting liability.

       Because we conclude that it is necessary to reverse the judgment on other grounds, we do not address whether it was appropriate for the court to permit the defendant to file notice of defenses after the hearing in damages had already begun.

       We point out that the defendant failed to appear at oral argument and has not filed any papers with this court.


author: BORDEN, J.

text:
    WILLIAM R. SOLONICK v. ELECTRIC BOAT CORPORATION
    (AC 29575)
    Bishop, Beach and Borden, Js.

      Argued October 21
    officially released December 30, 2008

      Howard B. Schiller, with whom was Stephen D. Button, for the appellant (plaintiff).

      Robert S. Bystrowski, with whom, on the brief, was Cristin E. Sheehan, for the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff, William R. Solonick, appeals from the decision of the workers’ compensation review board (board) affirming the trial commissioner’s denial of his workers’ compensation claim against the defendant, Electric Boat Corporation. The plaintiff claims that the board improperly concluded that the commissioner’s factual findings were based on a correct legal standard and were supported by the evidence. We affirm the decision of the board.

The plaintiff filed his workers’ compensation claim on the ground that a heart attack he had suffered and his coronary artery disease arose out of the stress associated with his employment. After a full evidentiary hearing, the commissioner denied the claim, finding that the heart attack and coronary condition did not arise out of the employment. After the plaintiff filed a motion to correct the commissioner’s finding, which the commissioner granted in part, the plaintiff appealed to the board, which affirmed the commissioner’s decision. This appeal followed.

The board summarized the facts as found by the commissioner as follows. The plaintiff began work for the defendant in 1968, concentrating in the design and development of nuclear containment vessels. He was promoted a number of times, brought work home regularly and was barred from discussing his job outside of work because of security restrictions. In 1985, he was promoted to chief of engineering, expanding his responsibilities. On October 28, 1986, at 8 a.m., the plaintiff suffered chest pains in the defendant’s parking lot. Believing it was just indigestion, he was not examined at the defendant’s medical facility until 11 a.m., when he was transferred to Pequot Treatment center, where he went into cardiac arrest. He was transported to Lawrence and Memorial Hospital in New London, where he was treated by Brian Ehrlich, a cardiologist.

The plaintiffs job duties on the day of his cardiac arrest were unremarkable. Prior thereto he had been treated in 1979 by Gregory Kundrat, a physician, for hypertension. Kundrat’s records reflected only one entry related to work, a headache, and no complaints about job related stress prior to the 1986 incident. The plaintiff had not complained to his wife or family about job related stress. He missed three months of work after the 1986 incident and, after one month of part-time work, returned to work full-time.

By 1991, the plaintiff had been promoted to senior engineer, which divested him of day-to-day management of an engineering group. Although the Seawolf submarine program was winding down, further reducing his volume of work, the plaintiff still had deadlines and budget pressures. The next year, the plaintiff worked on a redesign of the Trident submarine.

In 1998, the plaintiff again experienced chest pains and consulted with Ehrlich. Ehrlich’s April 20, 1998 report did not mention work stress but noted other risk factors for coronary artery disease, such as obesity, hyperlipidity, family history and long-standing hypertension. On July 6,1999, Ehrlich diagnosed the plaintiff with functional class III angina, and recommended a cardiac catheterization and that the plaintiff stay out of work until it was performed. On July 10, 1999, the plaintiff underwent a coronary triple bypass operation.

Following the bypass surgery, the plaintiffs superiors at work were eager to have him return to work, and he was called at home to update them on ongoing projects. Ehrlich cleared the plaintiff to return to work on September 2, 1999, beginning with two weeks of four hour days, followed by full-time work. At the plaintiffs request, Kundrat wrote to the plaintiffs supervisor, Peter Landry, to suggest that the plaintiff needed to minimize stress in his life and restrict his work schedule.

The defendant accommodated a flexible schedule for the plaintiff, but he found it difficult to accomplish his responsibilities on a part-time basis. On November 2, 2003, the plaintiff retired on the advice of his treating physician.

The board recounted the evidence supporting the plaintiffs claim as follows. Landry testified that severe time constraints and stress were part of the work environment for engineers at the defendant’s shipyard, although he also believed that there were more pressured jobs there and that the plaintiffs level of stress would wax and wane. Kundrat, the plaintiffs treating physician, testified that the plaintiffs coronary arteriosclerosis was multifactorial, on the basis of his family history—specifically his father, who had hypertension and had died of a massive stroke—hypertension, stress, sedentary lifestyle, being overweight and mild hypertriglyceridemia. There was evidence that the plaintiff had been denied admission to the military in the 1970s due to hypertension, that he had had mildly elevated cholesterol before 1986 and had been diagnosed with diabetes in 1991.

More specifically, Kundrat testified that but for the plaintiffs job stress, he would not have had his 1986 heart attack and that his job stress was a substantial factor causing that event and a substantial factor in the progress of his atheroscloteric artery disease and hypertension. Ehrlich, the plaintiffs other treating physician, testified that the plaintiffs family history, obesity, long-standing hypertension and job related stress were all substantial factors in causing the 1986 heart attack and cardiac condition. Both Ehrlich and Kundrat testified that the plaintiff cannot work.

The defendant’s expert witness, Abd U. Alkeylani, a cardiologist, reviewed the plaintiffs medical records. He testified that the substantial factors causing the 1986 heart attack were undiagnosed subacute diabetes, hypertension, hyperlipidemia, obesity and family history. He testified further that very unusual stress can cause plaque to rupture and precipitate a heart attack, but that there was no unusual stress in the period prior to the attack. He concluded that the plaintiffs stress at work was not a substantial factor causing his heart attack or the progression of his coronary artery disease.

The board also noted that the commissioner had found that the plaintiff and Landry were credible witnesses and that the plaintiff was an exemplary, dedicated employee of the defendant. The commissioner further found that although the plaintiffs job subjected him to the usual stress associated with his occupation as an engineer at the defendant’s shipyard, he did not complain about the stress on the job and that the events immediately prior to October 28,1986, were not unusually stressful for him. The commissioner also specifically found Alkeylani’s opinion the more credible opinion regarding the plaintiffs heart attack and coronary artery disease. Alkeylani had testified that the plaintiffs stress at work was not a substantial factor in his heart attack or progression of his coronary artery disease. Moreover, the commissioner found that the plaintiffs ordinary, everyday work stress was not a substantial factor causing the heart attack, was not a substantial factor aggravating the underlying cardiac condition, and that, accordingly, the heart attack and coronary condition did not arise out of employment with the defendant.

I

The plaintiff first claims that the board improperly determined that to prove that his stress was work-related, he was required to “establish that work conditions were sudden, unusual or unexpected.” We disagree.

Neither the board nor the commissioner imposed such a requirement of causation on the plaintiff, and both recognized, either explicitly or implicitly, that there is no such requirement. It is true that in McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117, 527 A.2d 664 (1987), our Supreme Court referred, in dictum, to “the long-standing rule [in stress related heart claims] that the claimant must prove that a sudden, unusual, and unexpected employment factor was a substantial factor in causing the claimant’s condition.” It is also true that the commissioner found that “[t]he events preceding the claimant’s October 28, 1986 heart attack were routine and do not constitute a sudden unusual and unexpected employment factor.” A fair reading of both the board’s and the commissioner’s decisions, however, does not support the plaintiffs claim.

We do not read McDonough as imposing such a requirement in stress related heart claims. After the somewhat loose language quoted previously, the court made clear that in stress related heart claims, there is no requirement that the claimant prove such unusual employment factors, although the proof of such factors could support a recovery. Id., 112-14. Instead, the court emphasized that “the trier must determine that there is a direct causal connection between the injury, whether it be the result of accident or disease, and the employment. The question he must answer is, was the employment a proximate cause of the disablement, or was the injured condition merely contemporaneous or coincident with the employment?” (Internal quotation marks omitted.) Id., 117. “[I]n Connecticut traditional concepts of proximate cause constitute the rule for determining . . . causation” of employment based disability. Id., 118. “[T]he test for determining whether particular conduct is the proximate cause of an injury [is] whether it was a substantial factor in producing the result.” (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 678, 939 A.2d 591, cert. granted on other grounds, 286 Conn. 916, 917, 945 A.2d 977 (2008).

The board read McDonough in precisely that fashion and applied the appropriate standard in the case, and the commissioner did the same. Put another way, the commissioner simply found that the plaintiff had not proven that work-related stress was a substantial factor in causing his heart attack and coronary disease; the board read the commissioner’s decision in that way, and both were consistent with a proper reading of McDonough.

II

The plaintiff next claims that the commissioner improperly “relied upon medical opinion which had no proper factual underpinnings and was therefore incompetent expert opinion.” We reject this claim.

The commissioner specifically found that Alkeylani’s testimony regarding the causes of the plaintiffs heart attack and coronary condition was more credible than the opinions of the plaintiffs experts and that the plaintiffs ordinary, everyday stress in his work was not a substantial factor in aggravating his underlying cardiac condition. Under familiar principles governing the scope of review of a trial commissioner’s findings by the board and by this court; see, e.g., Marandino v. Prometheus Pharmacy, supra, 105 Conn. App. 677, 679; these findings were based on competent evidence and cannot be disturbed. The fact that Alkeylani testified only after reviewing the plaintiffs medical records and was neither a treating nor examining physician does not, as the plaintiff suggests, render his medical opinion incompetent evidence. See Greenberg v. Electric Boat Co., 142 Conn. 404, 409-10, 114 A.2d 850 (1955).

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

In this opinion the other judges concurred.

       Functional class III angina is defined as heart disease resulting in a marked limitation in physical activity with symptoms at less than ordinary physical activity, comfortable at rest The Criteria Committee for the New York Heart Association, Nomenclature and Criteriafor Diagnosis of Diseases of the Heart and Great Vessels (Little Brown & Co. 9th Ed. 1994) pp. 253-55.