author: SHELDON, J.

text:
    JAMES THOMAS v. COMMISSIONER OF CORRECTION
    (AC 32462)
    DiPentima, C. X, and Bear and Sheldon, Js.

      Argued November 29, 2012
    officially released March 19, 2013

      Melissa Toddy, assistant public defender, for the appellant (petitioner).

      Adam E. Mattei, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SHELDON, J.

In this certified appeal from the habeas court’s denial in part of his amended petition for a writ of habeas corpus, in which he challenged his incarceration pursuant to a judgment of conviction on the charge of murder in violation of General Statutes § 53a-54a (a), the petitioner claims that the court erred in rejecting his claim that his counsel in his murder trial rendered ineffective assistance by failing to call a certain witness to testify in that trial. We affirm the judgment of the habeas court.

In examining the petitioner’s claims on the direct appeal of his conviction, this court set forth the following facts, which were adopted by the habeas court. “Teresa Alers knew both the [petitioner] and Henry Goforth, with whom she sold narcotics. She saw the two men together on the evening of October 7, 1999. A dispute ensued that night over money Goforth allegedly owed the [petitioner]. When the [petitioner] demanded payment, Goforth indicated that he had no money. At approximately 6 a.m. on the morning of October 8,1999, Goforth’s body was found under a stairwell outside building fifteen of the P.T. Bamum apartment complex (complex) in Bridgeport. Detective Tijuana Webbe of the Bridgeport police department arrived shortly thereafter and observed wounds to the face, head, neck and chest of the body.

“That afternoon, Alers, [Mabel] Persons and two other females were seated in a vehicle across from a mini mart in the complex. They observed the [petitioner] toss a bag into a dumpster adjacent to the mini-mart. After the [petitioner] left, all four headed to the dumpster. Alers testified that they thought that the bag contained narcotics. When they opened the dumpster, they saw the bag on top of a pile of cardboard. Persons opened the bag, looked inside and screamed, ‘He ain’t going to get away with this.’ Persons took the bag to a police officer nearby, who forwarded it to Webbe. Among the items Webbe discovered in the bag were a handle with a broken blade and a broken knife that had ‘Goforth’ written on it.

“Medical examiner Arkady Katsnelson performed an autopsy, which revealed multiple stab wounds to Goforth’s body. Notably, Katsnelson found the blade of a knife, which had penetrated Goforth’s left lung, lodged completely inside the body. Karen Lamy, a criminalist with the state forensic science laboratory, testified that the blade recovered from Goforth’s body and the handle recovered from the bag found in the dumpster were parts of the same knife. The [petitioner] subsequently was arrested and charged with murder in violation of § 53a-54a (a).” State v. Thomas, 98 Conn. App. 384, 385-86, 909 A.2d 67 (2006), cert. denied, 281 Conn. 906, 916 A.2d 47 (2007). The jury found the petitioner guilty of murder, on which the court sentenced him to a term of sixty years incarceration. Id., 386. This court thereafter affirmed the petitioner’s conviction. Id., 389.

On October 6, 2004, the petitioner filed a petition for a writ of habeas corpus. By way of an amended petition filed on May 13, 2009, the petitioner alleged, inter alia, that his trial counsel, attorney H. Jeffrey Beck, was ineffective in failing to call Luis Sostre to testify at the petitioner’s criminal trial. The petitioner claims that if Sostre, who allegedly had seen three other persons commit the murder, had testified at his trial, he probably would not have been convicted of that offense.

After a multiday trial on the petitioner’s habeas petition, the habeas court issued a memorandum of decision denying the petition in part on March 5, 2010. In its memorandum of decision, the court explained its ruling as follows: “The petitioner, in his trial on the habeas petition, did not present the testimony of . . . Sostre that he now says would have been the key to an acquittal. It is true that . . . Sostre gave an initial statement to the police that he had seen three men, other than the petitioner, murder the victim . . . Goforth. This statement formed the basis of the [third] party culpability defense that the petitioner and his trial defense counsel had initially intended to use. Notwithstanding . . . Sostre recanted this statement and indicated that he had lied to the police when he said that he had witnessed the murder. Needless to say, this recantation, on the eve of trial, ‘took the wand out of the sails’ of the [third] party culpability defense. [The] [petitioner now asserts that his trial defense counsel was ineffective for not calling . . . Sostre to the witness stand anyway.

“[Attorney] Beck testified that he felt that . . . Sos-tre had no credibility and the jury would have believed that he had lied to the police. As a result, he saw no advantage to be gained by putting this witness on the stand. [Attorney John B.] Watson, testifying as an expert witness, opined that calling Sostre could not have hurt the petitioner in his criminal trial and that it was something that any competent defense counsel would have done. Moreover . . . Watson offered that the prior inconsistent statement to the police should have been used as a Whelan statement. This is precisely the type of hindsight that Strickland [v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] warns against. In 2010, as this decision is being written, we know that the petitioner has been convicted and sentenced to the maximum sentence. It is hard to see how the result could have been any worse. The argument that trying something because it could not hurt is an insufficient basis to grant habeas relief. The burden of proof rests with the petitioner to show that the action that he claims should have been taken would result in a reasonable probability that the outcome would have been different, i.e., an acquittal.” The habeas court concluded: “[T]his court must find the strategic decisions of counsel to be within the acceptable range of performance. There is, therefore, neither deficient performance nor prejudice.” The habeas court, accordingly, denied in part the petitioner’s petition for a writ of habeas corpus, but thereafter granted the petitioner’s petition for certification to appeal.

We begin with the applicable standard of review and the law governing ineffective assistance of counsel claims. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . .

“[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [supra, 466 U.S. 686]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, supra, 687, this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... 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.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677-78, 51 A.3d 948 (2012). A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong, whichever is easier. Washington v. Commissioner of Correction, 287 Conn. 792, 832-33, 950 A.2d 1220 (2008).

On appeal, the petitioner claims that the habeas court improperly determined that Beck’s failure to call Sostre as a witness was not deficient and that he was not deprived of a fair trial by reason of that deficiency. We disagree.

“[T]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 64, 951 A.2d 520 (2008). Here, the petitioner did not present any evidence at the habeas trial that would prove that there was any likelihood that the outcome of his criminal trial would have been different if Beck had called Sostre to testify. As the habeas court noted, the petitioner did not call Sostre as a witness at the habeas trial, and it is thus not possible to find that his testimony at the criminal trial would have aided the petitioner. More fundamentally, without Sostre’s testimony at the habeas trial, it is not discernible whether he would have testified in accordance with his initial, exculpatory statement to the police or if he would have admitted that he had fabricated that statement as he did on the eve of trial. Without his testimony, the habeas court could not evaluate him as a witness, nor could it assess the likely impact of his testimony. Accordingly, the habeas court properly found that the petitioner had not established prejudice. See Townsend v. Commissioner of Correction, 116 Conn. App. 663, 668, 975 A.2d 1282 (insufficient showing of prejudice where petitioner offered sole testimony regarding exculpatory witness because court had no opportunity to evaluate testimony or credibility of claimed witness), cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); Andrews v. Commissioner of Correction, 45 Conn. App. 242, 247-48, 695 A.2d 20 (prejudice cannot be demonstrated with regard to trial counsel’s alleged failure to interview potential witnesses where petitioner fails to call those witnesses to testify at habeas trial or to offer any other proof that their testimony would have been favorable to him at criminal trial), cert. denied, 242 Conn. 910, 697 A.2d 364 (1997); see also Nieves v. Commissioner of Correction, 51 Conn. App. 615, 622-24, 724 A.2d 508 (petitioner’s failure to present evidence showing what witnesses who were not called by petitioner would have said if called to testify was fatal to his claim), cert. denied, 248 Conn. 905, 731 A.2d 309 (1999); Taft v. Commissioner of Correction, 47 Conn. App. 499, 504-505, 703 A.2d 1184 (1998) (insufficient showing of prejudice where petitioner failed to present evidence showing that witness’ testimony would have been consistent with prior statement and changed outcome of trial).

Even if Sostre had testified in accordance with his initial statement to the police that three other individuals committed the murder, or if that statement had been admitted as a Whelan statement, the petitioner presented no evidence at the habeas trial that he could have corroborated that assertion. In fact, evidence was presented that one of the individuals implicated by Sos-tre’s initial statement was incarcerated at the time of the murder at issue in this case. In fight of that undisputed evidence, which seriously undermines the credibility of Sostre’s initial statement, it strains the bounds of reason to suggest that Beck’s failure to call him as a witness prejudiced the petitioner’s defense at the criminal trial. We thus conclude that the habeas court did not err in denying in part the petitioner’s amended petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its memorandum of decision, the habeas court noted: “There are other issues raised by the petitioner in his petition, however, the trial in the habeas court revolved around [the petitioner’s] statement [that he would not have been convicted of murder if his trial counsel had called Luis Sostre to testify]. In general, the petitioner alleges prosecutorial impropriety and Brady violations for not disclosing exculpatory information, ineffective representation on appeal by [his trial counsel], ineffective cross-examination of the witnesses, etc. None of these allegations are found to have any merit and lack any evidence to support them. To the contrary, however, the petitioner and the respondent [the commissioner of correction] did agree that the petitioner’s right to file for sentence review should [be] and [thus] was restored.” The petitioner challenges the habeas court’s ruling as to some of these other issues, which were summarily rejected by the court. Because the record does not reveal the factual or legal bases for those rulings, we cannot conclude that the court erred in that regard.
      The petitioner also challenges various evidentiary rulings made by the habeas court on the ground that the evidence that he sought to admit was necessary for the court’s consideration of his ineffective assistance of counsel claim. Because we conclude that the petitioner has failed to show that his trial counsel’s failure to call Sostre as a witness likely did not affect the outcome of his criminal trial, and thus that the petitioner’s purported third party liability defense was not a viable option, his related claims of evidentiary error also must fail.

       The court granted the petition as to count five pertaining to sentence review.

       In State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), our Supreme Court adopted a rule permitting “the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.”

       Although the petitioner frames his claim on appeal as encompassing Beck’s failure to investigate adequately and the resulting erroneous decision to abandon the third party culpability defense, the habeas court did not discuss the adequacy of Beck’s investigation. Because the third party culpability defense would have been predicated on Sostre’s testimony, which had been fabricated, Beck’s investigation or lack thereof bears no moment on the ineffective assistance of counsel claim.

       See footnote 3 of this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE ISAIAH J. ET AL.

    (AC 34070)
    Lavine, Robinson and Pellegrino, Js.
    Argued November 13, 2012
    officially released March 4, 2013

      Kathryn Steadman, for the appellant (intervening respondent maternal grandmother).

      Susan T. Pearlman, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (petitioner).

      Michael F. Miller, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       March 4,2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The intervening respondent is the maternal grandmother (grandmother) of four minor children, I, A, K and T (children), who are in the custody of the petitioner, the commissioner of children and families (commissioner). The grandmother appeals from the judgment of the trial court, rendered in favor of the commissioner, denying the grandmother’s motion to transfer to her guardianship of the children pursuant to General Statutes § 46b-129 (j). The grandmother claims that the court improperly found that she was not a suitable and worthy guardian for the children. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In October, 2008, the children’s mother (mother), who is the grandmother’s daughter, applied to New London Regional Probate Court to have the grandmother appointed temporary guardian of the children, which was granted. Shortly thereafter, the department of children and families removed the children and filed neglect petitions. On June 1, 2009, the children were adjudicated neglected and placed in the protective custody of the commissioner. On February 9, 2010, the grandmother filed a motion to transfer guardianship of the children to herself pursuant to § 46b-129 Q). On November 10, 2011, the court denied the grandmother’s motion for transfer of guardianship, finding that she was not a suitable and worthy guardian.

“Questions of custodial placement generally are resolved by a factbound determination of what is in the best interest of the child ... as shown by a fan-preponderance of the evidence. ... To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court .... Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.

. . . [GJreat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence.” (Citation omitted; internal quotation marks omitted.) In re Valerie G., 132 Conn. App. 652, 662-63, 34 A.3d 398 (2011), cert. denied, 303 Conn. 937, 36 A.3d 696 (2012).

Our examination of the record, briefs and arguments of the parties persuades us that the judgment of the trial court should be affirmed. The court’s memorandum of decision is thorough and well reasoned, and we adopt it as a proper statement of the facts and the applicable law on the issues raised. See In re Isaiah J., 52 Conn. Sup. 485, 72 A.3d 446 (2011). No useful purpose would be served by repeating the discussion contained therein. See Gianetti v. Gerardi, 133 Conn. App. 858, 860, 38 A.3d 1211 (2012).

The judgment is affirmed.

       We note that on December 20,2011, the court terminated the grandmother’s intervenor status in the case, and on January 3, 2012, Hon. Michael A. Mack, judge trial referee, denied the grandmother’s subsequent motion to be added as an intervenor. On May 11, 2012, Judge Mack granted petitions to terminate the mother’s parental rights.


text:
    IN RE PAUL O.

    (AC 35082)
    Beach, Alvord and Pellegrino, Js.

      Argued February 5
    officially released March 8, 2013

      Michael D. Day, for the appellant (respondent father).

      Frank H. LaMonaca, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (jpetitioner).

      Nhi Tran, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       March 8,2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent father appeals from the judgment of the trial court terminating his parental rights as to his minor child, Paul O. On appeal, the respondent challenges as clearly erroneous the court’s findings that (1) the department of children and families (department) made reasonable efforts to reunite the child with him and (2) the respondent was unwilling or unable to benefit from the department’s services to facilitate his reunification with the child. We affirm the judgment of the trial court.

Certain facts and the procedural history are not in dispute. Paul was bom in February, 2009. On November 5, 2009, the petitioner, the commissioner of children and families (commissioner), removed Paul from the mother’s home on a ninety-six hour administrative hold because the living conditions in the mother’s apartment posed a health and safety risk to him and were injurious to his well-being. On November 9, 2009, the commissioner filed a neglect petition and sought an order of temporary custody of Paul. The court issued an ex parte order vesting custody of Paul in the department. On December 11, 2009, the court held a consolidated hearing to consider the order of temporary custody and the commissioner’s neglect petition. The court sustained the order of temporary custody and adjudicated Paul neglected.

On May 24, 2011, following a contested disposition hearing, the court issued a memorandum of decision committing Paul to the department. Also on that date, the court approved a permanency plan for the termination of parental rights and adoption as to both parents with a concurrent plan of reunification with the respondent. On July 21,2011, the commissioner filed a termination of parental rights petition as to both parents. The commissioner subsequently moved to amend the petition; the court granted the motion on November 2,2011. The commissioner also submitted a permanency plan of termination and adoption which the court approved on April 3, 2012.

The court conducted a trial on the petition for termination of parental rights on February 7, February 9, and May 16, 2012. On September 11, 2012, the court issued a memorandum of decision terminating the rights of both parents with respect to Paul. This appeal followed. Additional facts will be set forth as necessary.

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [Gjreat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Jah’za G., 141 Conn. App. 16, 30, 60 A.3d 392 (2013).

I

The respondent first challenges the court’s finding that the department made reasonable efforts to reunite him with Paul. We are not persuaded.

The following additional facts and procedural history are relevant to our analysis of this issue. The court ordered preliminary specific steps for the respondent, which required, inter alia, that he “participate in parenting classes and individual counseling to make progress towards the identified goal of his need to gain an understanding of the impact of mental health issues and domestic violence on children, not engage in substance abuse and cooperate with recommended service providers for parenting skills, mental health and substance abuse treatment.” The respondent did not sign or acknowledge the specific steps.

In concluding that the department made reasonable efforts to reunify the respondent with Paul, the court found that the department provided the respondent with “numerous services and specific and repeated referrals” to facilitate his reunification with Paul. Specifically, the department provided the respondent with weekly supervised visitation with Paul at the department and additional visits in the community, and also referred him to numerous providers for parenting classes, mental health services and alcohol abuse treatment. The department provided the respondent with bus passes to attend visits and services.

“In order to terminate parental rights under [General Statutes] § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... [Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child . . . with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Internal quotation marks omitted.) In re Jah’za G., supra, 141 Conn. App. 30-31.

The respondent contends that the court’s reasonable efforts determination was clearly erroneous because the services provided by the department were not reasonable in light of his mental health issues. We do not agree.

Initially, the respondent contends that the court improperly failed to consider evidence that his mental health condition purportedly improved once he started taking injectable Risperdal and Zoloft. According to the respondent, the evidence showed that this combination of medications made him “less anxious, less confused, more focused [and] a little bit more hopeful,” and that the department’s parental educational services were not being provided to him when his mental health condition improved. The commissioner contends, inter alia, that the court could not consider this evidence in its reasonable efforts determination because the relevant facts arose after the amendment of the petition for the termination of parental rights on November 2, 2011. We agree with the commissioner.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights . . . exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Shaiesha O., 93 Conn. App. 42, 47, 887 A.2d 415 (2006). When making its reasonable efforts determination during the adjudicatory phase, the court is limited to considering only those facts preceding the filing of the termination petition or the most recent amendment to the petition — here, November 2, 2011. See Practice Book § 35a-7 (a) (“[i]n the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights”); In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009) (reasonable efforts finding is distinct from analysis of whether there exist grounds for termination of parental rights); In re Shaiesha O., supra, 48-49 and 49 n.5 (“in determining whether the department has made reasonable efforts to reunify a parent and a child . . . the court is required in the adjudicatory phase to make its assessment on the basis of events preceding the date on which the termination petition was filed”). Accordingly, the court’s reasonable efforts analysis correctly focused only on facts occurring prior to the relevant adjudicatory date of November 2, 2011.

Moreover, and in any event, the record does not support a claim that the services provided to the respondent prior to the adjudicatory date failed to take into account his mental health issues. Specifically, the respondent asserted at oral argument before this court that the trial testimony of Paulette Marcus, a parent educator who had worked with the respondent, suggested that the respondent’s schizophrenia diagnosis did not impact her approach to the services and training she provided to him. In fact, however, Marcus testified that she was aware of the respondent’s schizophrenia diagnosis and created an individualized program for him and, indeed, modified her training methods to account for his particular mental health status.

In short, after our careful review of the record, we cannot conclude that the court’s reasonable efforts finding here was clearly erroneous. To the contrary, the record contains ample evidence supporting the court’s conclusion that the department made reasonable efforts to provide the respondent with services and opportunities to facilitate his reunification with Paul, and accordingly, we reject the respondent’s claim.

II

The respondent next contends that the court erred in finding that he was unwilling or unable to benefit from the department’s services to facilitate his reunification with Paul. The commissioner counters, inter alia, that we need not review this claim because upholding the court’s finding as to reasonable efforts is sufficient to affirm the judgment. We agree with the commissioner.

Section 17a-112 (j) provides in relevant part: “The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” (Emphasis added.) Interpreting this language, our Supreme Court has stated: “Because the two clauses [of § 17a-112 (j) (1)] are separated by the word ‘unless,’ this statute plainly is written in the conjunctive. Accordingly, the department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a-112 (j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element.” (Emphasis in original.) In re Jorden R., 293 Conn. 539, 552-53, 979 A.2d 469 (2009). Because we have concluded that the court properly found, on the basis of clear and convincing evidence, that the department had made reasonable efforts to reunify the respondent and Paul, we do not reach the respondent’s claim that the court improperly concluded that he was unable or unwilling to benefit from reunification efforts. See, e.g., In re Anvahnay S., 128 Conn. App. 186, 191, 16 A.3d 1244 (2011).

The judgment is affirmed.

       The court also terminated the parental rights of the respondent mother in the same proceeding. Because the mother has not appealed the judgment, we refer to the father as the respondent in this opinion. We also note that the attorney for the minor child filed a statement adopting the brief of the petitioner in this appeal.

       At the time of the department’s intervention, the respondent was living with his brother, and the mother had physical custody of Paul.

       The respondent indicated that he was diagnosed with schizophrenia when he was nineteen years old. He was hospitalized for two weeks in 2006 in a psychiatric unit. He was hospitalized for eight days in August, 2011, for depression and readmitted for depression for eleven days in October, 2011.

       The respondent reported that his relationship with Paul’s mother was “very bad,” that they argued all the time, and that she spit on him and he pushed her, shook her and kicked her once.

       As the court found, the respondent “has had problems in the past and continues to have a problem with alcohol abuse.” The department referred him for outpatient substance abuse treatment in April, 2010. The respondent completed the treatment program in October, 2010, however, upon his release from his hospitalization in October, 2011, hospital staff recommended that he attend outpatient treatment for alcohol abuse. He attended counseling but left the program after the first day because he “didn’t like it.” During a psychological evaluation on November 22,2011, the respondent indicated that he had been admitted to a transitional housing program, which requires him to take a daily Breathalyzer test in order to have a place to sleep.

       Risperdal is a medication used in the treatment of schizophrenia. See Physician’s Desk Reference PDR.net: Risperdal Consta, available at http:// www.pdr.net/drugpages/concisemonograph.aspx?concise=2662 (last visited March 8,2013). The respondent began taking injectable Risperdal in October, 2011, and Zoloft in January, 2012.

       To the extent the respondent asserts that the court assigned improper weight to certain testimony regarding his mental health issues and/or the purported progress he made after commencing his new medications, we decline to retry the facts or reweigh the evidence before the trial court, as that is not the function of this court on appeal. See, e.g., In re Kamari CL., 122 Conn. App. 815, 826 and n.12, 2 A.3d 13 (2010).


author: SCHALLER, J.

text:
    SOJITZ AMERICA CAPITAL CORPORATION v. TODD A. KAUFMAN ET AL.
    (AC 33735)
    Beach, Alvord and Schaller, Js.

      Argued September 6, 2012
    officially released March 26, 2013

      Mark S. Gregory, for the appellant (plaintiff).

      Lawrence G. Rosenthal, with whom were Benjamin Engel and, on the brief, Fletcher C. Thomson, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Sojitz America Capital Corporation, appeals from the judgment of the trial court dismissing its shareholder derivative complaint against the named defendant, Todd A. Kaufman, on behalf of the nominal defendant, Keystone Equipment Finance Corporation (Keystone). On appeal, the plaintiff claims that the trial court erred when it granted the defendants’ motion to dismiss pursuant to General Statutes § 33-724. Specifically, the plaintiff claims that the court erred in concluding that a majority of qualified directors determined in good faith, after conducting a reasonable inquiry, that the maintenance of the plaintiffs action was not in the best interests of the corporation. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. It is undisputed that the plaintiff entered into a stock purchase agreement with Keystone, wherein the plaintiff became a minority shareholder of Keystone, and that Keystone is engaged in the business of providing commercial equipment financing to its clients.

On January 14, 2011, the plaintiff commenced the shareholder derivative action. In its complaint, the plaintiff alleged the following facts. During the relevant times, Keystone’s board of directors consisted of the defendant, the defendant’s father, Alan Kaufman, Paula J. Amazeen and William Hammock. In the course of business, the defendant provided certifications to various financial lending institutions on which Keystone depended to meet its financing needs. The plaintiff argued that these certifications falsely attested that the Keystone board of directors met, adopted resolutions and empowered Keystone’s officers to enter into lending agreements on behalf of Keystone. The plaintiff specifically alleged that by submitting these false certifications, the defendant exposed Keystone to potential liability in the form of bank fraud, common-law fraud and rescission of existing credit lines; that the defendant’s actions constituted a breach of the fiduciary duties he owed to Keystone; and that Keystone had sustained damages as a result of this breach. The plaintiff finally asserted that the defendant, Alan Kaufman and Amazeen either knew or acted in reckless disregard of the defendant’s actions and, therefore, were not in a position to determine objectively whether the shareholder derivative litigation was in the best interests of the corporation.

The plaintiff argues that in response to the defendant’s breaches, it sent a demand letter to the Keystone board of directors. In its letter, the plaintiff demanded that Keystone take appropriate action against the defendant for his breaches of the fiduciary duties of loyalty and care he owed to the corporation, including terminating his employment for cause, removing him from Keystone’s board of directors and filing a civil action against him. The plaintiff farther demanded that the board appoint an independent committee to investigate these issues and to determine the extent of the defendant’s breaches. In subsequent correspondence to the plaintiff, the board of directors rejected the plaintiffs demand, concluding that pursuing litigation against the defendant was not in the best interests of the corporation.

On April 6, 2011, the defendants filed a motion to dismiss the action pursuant to § 33-724. The defendants argued that because the statutory elements had been satisfied, the court must dismiss this action. Specifically, the defendants asserted that a quorum of qualified directors determined, after a thorough inquiry, that maintaining a derivative action was not in the best interests of the corporation. The defendants further argued that the plaintiff failed to meet its burden of proof because it failed to allege particularized and well pleaded facts to establish that the directors did not comply with the statute and also failed to allege any specific damages suffered by Keystone.

In support of the motion to dismiss, the defendant submitted his affidavit and several appendices referenced therein. The documents appended included Keystone’s certificate of incorporation, Keystone’s bylaws and the board of directors’ meeting minutes from March 15, 2011. According to the defendants, the foregoing documents demonstrated that Keystone’s directors were qualified, and that they concluded in good faith after a reasonable inquiry that pursuing the shareholder derivative action was not in the corporation’s best interests, thereby satisfying § 33-724.

The plaintiff opposed the defendants’ motion to dismiss, arguing that the directors making the determination were neither independent nor disinterested and, therefore, were not qualified as required by the statute. The plaintiff further argued that the directors failed to conduct a reasonable investigation, and instead relied on and adopted the findings and determination prepared by the defendant’s own attorney. The court granted the defendants’ motion to dismiss. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that the court improperly granted the defendants’ motion to dismiss pursuant to § 33-724. Specifically, the plaintiff argues that the court erred in concluding that a majority of qualified directors determined in good faith, after conducting a reasonable inquiry, that maintaining the plaintiffs derivative proceeding was not in the best interests of the corporation. We are not persuaded.

I

We note at the outset that our appellate courts have not previously applied § 33-724 and, therefore, resolving the question raised on appeal presents an issue of first impression. Section 33-724 provides for a statutory dismissal derived from, and substantially similar to, § 7.44 of the Model Business Corporation Act (model act). Model Business Corporation Act, § 7.44, p. 7-72. We look to our legislative history, not to interpret the meaning of our statute, but for guidance in determining the appropriate standard of review that should govern the substantive challenges to its application. See Stone v. R.E.A.L. Health, P.C., Superior Court, judicial district of New Haven, Docket No. CV-98-414972 (November 16, 2000) (29 Conn. L. Rptr. 219) (due to undeveloped case law, Superior Court turned to legislative history for guidance regarding application of statutory provisions within Connecticut Business Corporation Act, General Statutes §§ 33-600 through 33-998).

The recorded legislative history sheds light on the motivations for deriving our statute from the model act. In addition to achieving uniformity with other jurisdictions, the legislative history indicates that our jurisdiction’s case law on corporate law is sparse, suggesting that courts, attorneys and corporations would benefit from the guidance provided by the model act’s official comments as well as the case law of jurisdictions that have similarly codified the model act. Accordingly, in resolving these issues, we will also consider the statutory language, the model act’s official comments and the case law of jurisdictions with similar statutes.

As a preliminary matter, we set forth the appropriate standard of review that our appellate courts should apply when reviewing the trial court’s judgment dismissing a shareholder derivative action pursuant to § 33-724. The plaintiff argues that our standard of review is plenary while the defendant asserts that this issue constitutes a purely factual determination and, thus, our review must comport with the clearly erroneous standard. We conclude that the issue of whether the trial court erred in dismissing the action presents a mixed question of fact and law.

In so holding, we depart from the well settled standard of review typically applied to motions to dismiss. Generally, in reviewing a motion to dismiss “a court must take the facts to be those alleged in the complaint . . . construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 506, 516, 923 A.2d 638 (2007). The court may supplement the complaint with undisputed facts, but “[w]hen issues of fact are necessary to the determination of a court’s jurisdiction . . . due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence . . . .” (Internal quotation marks omitted.) Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004). This standard, however, is not attuned to the unique circumstances presented when considering the dismissal of a shareholder derivative action pursuant to § 33-724.

Section 33-724 is distinguishable from other motions to dismiss, as it sets forth a unique, heightened pleading standard and elements that must be either proven or disproven. General Statutes § 33-724. In light of these substantive requirements, other jurisdictions have similarly concluded that dismissals pursuant to § 7.44 of the model act are unique. See, e.g., Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (“[t]he procedure contemplated by section 7.44 . . . does not easily fit within the constraints of Rule 12 [b] [6]” of the Federal Rules of Civil Procedure); Frank v. LoVetere, 363 F. Sup. 2d 327,332-33 (D. Conn. 2006) (setting forth different standards of review for defendants’ motions to dismiss pursuant to Fed. R. Civ. P. 12 [b] and § 33-724, respectively); Zapata Corp. v. Maldonado, 430 A.2d 779, 787 (Del. 1981) (classifying these motions as “a hybrid summary judgment motion for dismissal”); Thompson v. Scientific Atlanta, Inc., 275 Ga. App. 680, 683, 621 S.E.2d 796 (2005) (such motions do not technically fit within category of rule 12 [b] motion). Accordingly, to facilitate inquiries into the presence or absence of the statutory elements set forth in these dismissal statutes, these jurisdictions have concluded that trial courts, in their discretion, may issue discovery orders. See, e.g., Halebian v. Berv, supra, 133 (discovery within court’s discretion); Kaplan v. Wyatt, 499 A.2d 1184, 1192 (Del. 1985) (discovery may be ordered, in discretion of trial court, to facilitate inquiries into independence, good faith and reasonableness of investigation). In rendering judgments on these motions to dismiss, trial courts and appellate courts have thus reviewed the entire record, consisting of the complaint and documents submitted in support of and opposition to the motion to dismiss— in some instances the courts have even considered and resolved disputed factual issues. See, e.g., Frank v. LoVetere, supra, 330 and n.1 (federal court set forth facts as stated in complaint, exhibits, depositions and correspondence); Blake v. Friendly Ice Cream Corp., Superior Court of Massachusetts, Hampden County, Docket No. 030003, 2006 WL 1679696 (Mass. Super. Ct. May 24, 2006) (21 Mass. L. Rptr. 131) (trial court rendered judgment based on complaint and record and also resolved factual disputes). For these reasons, we conclude that a departure from the usual standard of review governing motions to dismiss is warranted, and further conclude that a dismissal pursuant to § 33-724 should be reviewed as a mixed question of fact and law.

In reaching this conclusion, we find persuasive the standards of review set forth by other jurisdictions, which have also codified § 7.44 of the model act. See footnote 8 of this opinion. Two such states, Wisconsin and Florida, have clearly established that a trial court’s dismissal of a derivative action will be reviewed by an appellate court as a mixed question of fact and law. In Einhorn v. Culea, 224 Wis. 2d 856, 870, 691 N.W.2d 908 (App. 1999) rev’d on other grounds, 236 Wis. 2d 646, 612 N.W.2d 78 (2000), the Wisconsin Court of Appeals held that “[w]hether the trial court properly found that the [committee] was independent within the meaning of [the statute] presents a mixed question of fact and law.” The Florida Court of Appeals similarly concluded that a mixed standard of review is appropriate. Batur v. Signature Properties of Northwest Fla., Inc., 903 So. 2d 986, 994-95 (Fla. App. 2005).

It is well settled that mixed questions of fact and law are subject to plenary review by this court. “[S]o-ca!led mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense .... [Such questions require] plenary review by this court unfettered by the clearly erroneous standard. . . . When legal conclusions of the trial court are challenged on appeal, we must decide whether [those] . . . conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) D’Appollonio v. Griffo-Brandao, 138 Conn. App. 304, 323-24, 63 A.3d 1013 (2012).

Having determined the appropriate standard of review, we now turn to the merits of the plaintiffs claim that the trial court erred by granting the defendants’ motion to dismiss. In resolving the plaintiffs claim, the first issue is whether the court erred in determining that a majority of the board consisted of qualified directors.

Subsection (a) of § 33-724 requires courts to dismiss a derivative proceeding if a majority vote of qualified directors constituting a quorum, or a committee appointed by qualified directors, determined in good faith, after conducting a reasonable inquiry upon which its conclusions are based, that the maintenance of a derivative proceeding is not in the best interests of the corporation. A qualified director is defined in General Statutes § 33-606 (a) (l) as one who “does not have (A) a material interest in the outcome of the proceeding, or (B) a material relationship with a person who has such an interest . . . .” Regarding actions taken under § 33-724, § 33-605 (c) (3) also provides that a director’s “status as a named defendant, as a director against whom action is demanded or as a director who approved the conduct being challenged,” shall not by itself prevent that director from being qualified. A director has a material relationship if “a familial, financial, professional or employment relationship . . . would reasonably be expected to impair the objectivity of the director’s judgment when participating in the action to be taken . . . General Statutes § 33-605 (b) (1). A director has a material interest if he or she has “an actual or potential benefit or detriment, other than one which would devolve on the corporation or shareholders generally, that would reasonably be expected to impair the objectivity of the director’s judgment when participating in the action to be taken.” General Statutes § 33-605 (b) (2).

Additionally, § 33-724 (c) imposes a heightened pleading standard on all plaintiffs filing a shareholder derivative action after the board of directors has rejected their demands, thus requiring the plaintiffs to allege, with particularity, facts showing either (1) that the directors were not qualified or (2) that the factors of subsection (a) were not met. The official comment to

§ 7.44 of the model act further explains that “[sjubsection (c) . . . assigns to the plaintiff the threshold burden of alleging facts establishing that the majority of the directors on the board are not qualified.” (Emphasis added.) Model Business Corporation Act, supra, § 7.44, official comment, p. 7-75. Accordingly, the plaintiff in this case must not only plead that the directors are not qualified due to a material interest or material relationship, but must also plead these allegations with factual particularity. General Statutes §§ 33-605 and 33-724 (c). This is a standard more demanding than mere notice pleading.

The court’s determination of whether the directors are qualified then triggers the application of subsection (d) of § 33-724, which allocates the burden of proving or disproving the elements of subsection (a) to either the plaintiff or the corporation based on that determination. As a result, if the court were to determine that a majority of the board consisted of qualified directors, then the plaintiff would have the burden of proving the absence of good faith and a reasonable inquiry. Conversely, if the court were to determine that the majority of the board did not consist of qualified directors, then the corporation would bear the burden of proving the existence of good faith and a reasonable inquiry. General Statutes § 33-724 (d). The court’s determination as to whether the directors are qualified is, therefore, the threshold issue, and its resolution is essential to analyzing every other aspect of the statute.

Applying the aforementioned standards, the court concluded that the defendant, Alan Kaufman and Ama-zeen were qualified directors who satisfied the quorum requirement. The court reasoned that the plaintiff failed to make particularized allegations necessary to overcome the heightened pleading standard set forth in § 33-724 (c). We agree. The following additional facts are necessary to our resolution of this issue.

The plaintiff alleged in its complaint that the directors were not disinterested in the transaction. Specifically, the plaintiff alleged that “[directors [Alan] Kaufman and Amazeen, who together with [the defendant], control the Keystone Board of Directors, had full knowledge, or acted in reckless disregard of the actions taken by [the defendant] addressed in this Complaint, and are not in a position to dispassionately determine whether the instant litigation is in the best interests of Keystone.” We hold that this conclusory allegation is insufficient to meet the particularity standard required of the plaintiff. General Statutes § 33-724 (c); see also Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000).

In its memorandum of decision, the court held that although the plaintiff alleged that the defendant’s actions exposed Keystone to considerable risks, “[the plaintiff ultimately failed to] establish that the defendant ha[d] a material interest in the litigation because these allegations [were] not supported by 'particularized and well-pleaded facts that, if true, would likely give rise to a significant adverse outcome against the defendant.” (Emphasis added.) The court observed that the complaint was bare of any “indication or discussion of [damages the corporation suffered or] whether any of the third party lenders have [actually] sued the defendant for his actions. Moreover, a director cannot be disqualified merely because of his status as a named defendant.”

The court also determined that both Amazeen and Alan Kaufman were qualified directors, reasoning that they were not named defendants in the present action, and that neither had a material interest in the outcome of the proceeding or a material relationship with a person who has such an interest. Accordingly, the court found that “the quorum requirement was met because three of the four directors were qualified directors for purposes of § 33-724.”

The plaintiff challenges this determination on appeal, contending that the defendant was not qualified because he had a material interest. Specifically, by rejecting the plaintiffs demands, the defendant stood to escape civil liability and gain continued employment as a corporate officer. The plaintiff also asserts that Alan Kaufman’s familial relationship with the defendant is a material relationship, while Amazeen’s reliance on Alan Kaufman and the defendant for her continued employment as a director impairs her objectivity. The plaintiff finally claims that both Alan Kaufman and Ama-zeen demonstrated a lack of objectivity by rejecting the plaintiffs demands even though they were aware of the defendant’s transgressions. We are not persuaded.

These specific allegations did not appear on the face of the plaintiffs complaint. Instead the plaintiff alleged only that the directors knew or disregarded the defendant’s misdeeds and therefore were not “in a position to dispassionately determine whether the instant litigation is in the best interests of Keystone.” For the reasons discussed previously, we conclude that the allegations in the plaintiffs complaint were insufficient to meet the pleading requirements of § 33-724 (c). Accordingly, the court properly found that the directors were qualified within the meaning of § 33-605.

II

Because we conclude that a majority of directors constituting a quorum were qualified, we next address whether the trial court erred in holding that the plaintiff failed to meet its burden of proving that the board did not satisfy the elements set forth in § 33-724 (a). Specifically, we must determine whether the plaintiff met its burden of proving that the board did not reach its decision in good faith after conducting a reasonable inquiry upon which its conclusions were based.

The following additional facts are necessary to our resolution of this issue. The board’s report described the inquiry upon which its determination was made. The report provides that the board first reviewed the facts and circumstances related to the lawsuit. The board then determined the scope of its inquiry and whether it had sufficient knowledge and information to make a determination. In reviewing the complaint, the board concluded that the relevant issues were the propriety of the certifications executed by the defendant, the risk of liability for false certification, and whether the defendant’s actions constituted a breach of his fiduciary duties of loyalty and care. The board found that the facts relevant to these issues, involving corporate management and lending relationships, were within the purview, knowledge and experience of the board. Accordingly, the board determined that it could render a decision on the issues with the assistance of counsel.

The board further concluded in its report that maintaining the derivative action was not in Keystone’s best interests for the following reasons. First, the board considered the lawsuit to have a small likelihood of success because the corporation had sustained no damages, and any defects in the certifications were cured when the stockholders ratified the actions of the officers. Second, the board observed that continuing the lawsuit would likely involve expenses for the corporation such as legal fees or indemnification expenses. Third, the board considered that a change in leadership resulting from the defendant’s dismissal could jeopardize the corporation’s healthy financial status. Additionally, the board concluded that a lawsuit may have a negative impact on its lending relationships with financial institutions that received the certifications by calling attention to the defendant’s alleged fraudulent behavior. Finally, the board determined that the plaintiff had a greater material interest in the outcome of the lawsuit than the corporation, as the sole preferred shareholder, and, therefore, it would be inappropriate to expend corporate resources to serve interests other than Keystone’s.

The defendant submitted his affidavit and the affidavits of Amazeen and Alan Kaufman in support of the motion to dismiss. Each of the directors averred that they “[Reviewed, participated in or otherwise had personal knowledge of the facts and circumstances related to the Sojitz lawsuit, including [those set forth in] the [findings and [determination . . . The defendant and Amazeen stated in their respective affidavits that the board has met forty-three times since Keystone’s incorporation in 2000 and at almost half of these meetings the board had reviewed the credit facilities and considered the corporation’s needs for financing and amendment of interest rates. The defendant and Ama-zeen further stated that Hammock received the same information and opportunity to participate as the other board members.

The plaintiff submitted Hammock’s affidavit in support of its opposition to the defendants’ motion to dismiss. In his affidavit, Hammock averred that the defendant stated that without Keystone’s bank lines the company cannot do business. Hammock also stated that one bank decreased Keystone’s credit line, but that the reduction did not create any corresponding savings for Keystone. According to Hammock, inspection of corporate documents revealed that the defendant had executed and delivered false certifications to various financial institutions, and that the board did not meet on the dates specified in the certifications to adopt the necessary resolutions.

The court, in its memorandum of decision, concluded that the plaintiff failed to meet its burden of proving that the board did not reach its conclusion in good faith pursuant to a reasonable inquiry. Specifically, the court found that the board and its counsel examined the relevant facts and circumstances pertaining to the plaintiffs lawsuit, analyzed the board’s findings and determined that the maintenance of the action was not in Keystone’s best interests. The court found, for example, that “it was logical for the board to conclude that prosecution of the lawsuit would likely involve expense . . . where the lawsuit had already cost the company $69,000.” The court held that it “must defer to the board’s determination because there is some support for it.” (Internal quotation marks omitted.)

The plaintiff claims that the court erred by giving judicial deference to the board’s decision. Specifically, the plaintiff contends that the function of the trial court was to undertake a vigorous analysis of the process that led to the board’s determination. We are not persuaded and conclude that § 33-724 operates as a statutory embodiment of the business judgment rule, which restricts our review of a corporate manager’s decision. This conclusion is supported by the United States District Court for the District of Connecticut, which held in construing § 33-724, that “[t]he policy reason for this limited review is that a corporation should be free to determine in its own business judgment whether litigation is in its best interest, free from unnecessary interference.” Frank v. LoVetere, supra, 363 F. Sup. 2d 335.

Bearing that in mind, the next issue we must address is whether the trial court properly found that the plaintiff did not meet its burden of proving that the board failed to conduct a good faith, reasonable inquiry. Section 33-724 (a) requires the specified group to render a determination made in good faith after conducting a reasonable inquiry. What constitutes a reasonable inquiry will vary with the circumstances in each case. The official comment to § 7.44 explains that the word inquiry has been used, rather than investigation, to “make it clear that the scope of the inquiry will depend upon the issues raised and the knowledge of the group making the determination with respect to those issues. In some cases, the issues may be so simple or the knowledge of the group so extensive that little additional inquiry is required. In other cases, the group may need to engage counsel and possibly other professionals to make an investigation and assist the group in its evaluation of the issues.” Model Business Corporation Act, supra, § 7.44, official comment, p. 7-74.

The plaintiff first asserts that the board’s inquiry was unreasonable because the board failed to conduct any inquiry at all and instead delegated the task entirely to the defendant’s personal attorney. The record belies this assertion. Because the inquiry varies according to the board’s knowledge and the issues raised, the board must determine the scope of its inquiry. In this case, the record indicates that the board engaged counsel for assistance in evaluating the nature of the plaintiffs lawsuit after concluding that the issues raised by the plaintiffs allegations involved corporate management and lending relationships and were thus within the purview, knowledge and experience of the board. Each of the board members received a draft of the attorney’s report prior to its adoption at the March 15, 2011 meeting. Furthermore, the board members who voted to adopt the report averred in their affidavits that they were aware of the facts and circumstances pertaining to the plaintiffs demands when they rendered their decision. Indeed, the report provides a list of the relevant documents and considerations that the board reviewed before reaching its conclusion.

The plaintiff also argues that the inquiry was unreasonable, as neither the board nor the attorney conducted any interviews, examined any of the relevant bank documents or certifications, or considered the impact of the defendant’s alleged misconduct. These assertions are unavailing for two reasons. First, the board in this case need not interview witnesses and review the relevant bank documents to determine the consequences of the defendant’s alleged transgressions because the board accepted these allegations as true when it conducted its inquiry and reached its conclusion. Operating under this presumption, the board concluded that maintaining the litigation was not in Keystone’s best interests because of the lack of damages, the litigation expense, the risk to lending relationships, and the fact that further loss of corporate management outweighed the consequences flowing from the defendant’s presumed breaches of fiduciary duty and fraudulent acts.

Second, the board need not take any specific measures in the course of its inquiry, but instead must engage only in a reasonable inquiry, which varies according to the board’s knowledge and the issues at hand. In the present case, the board concluded that it had sufficient knowledge and information and rendered its determination after reviewing the relevant facts and circumstances, including the complaint, meeting minutes, certifications of corporate resolutions delivered to lenders, various correspondence with the plaintiffs counsel, financial statements, and the likelihood of the lawsuit’s success. On the basis of the foregoing, we conclude that the plaintiff has not met its burden of proving that the board’s inquiry was unreasonable.

The plaintiff finally asserts that the board’s conclusions were based on improper considerations. We disagree. Section 33-724 (a) provides that the board’s conclusions must be based on its inquiry. The official comment to § 7.44 of the model act, from which our statute was derived, further explains that “[the statute] requires that the inquiry and the conclusions follow logically. This standard authorizes the court to examine the determination to ensure that it has some support in the findings of the inquiry.” (Emphasis added.) Model Business Corporation Act, supra, § 7.44, official comment, p. 7-74. Good faith and reasonableness “[create] a floor below which the board’s actions and procedures cannot fall to be considered reasonably acceptable under the business judgment rule. Thus [the plaintiffs] burden here is not just to show that the . . . inquiry and report were flawed, or that someone else might have reached a different conclusion, but that the . . . inquiry and conclusions [do not] follow logically.” (Internal quotation marks omitted.) Frank v. LoVetere, supra, 363 F. Sup. 2d 335. Accordingly, the court may conduct a limited review into the board’s conclusions to determine that they follow logically from the inquiry, but may not scrutinize the reasonableness of its determination.

Although the plaintiff invites us to examine the propriety of the board’s considerations, we decline to do so. The factors that the board takes into consideration as part of its inquiry are properly left within the board’s discretion, subject only to the good faith and reasonableness requirements. In the present case, the board determined that the lawsuit would have a low likelihood of success, that the corporation had not yet suffered any damages, that such litigation may cause further damage by alerting lenders to the deficiencies in the certifications and that current legal expenses were $69,000 with a likelihood of more in the future. Such considerations are relevant to the inquiry of whether to continue with the litigation, and we agree with the trial court that the board’s conclusion not to maintain the plaintiffs lawsuit follows logically from the aforementioned findings. Because the plaintiff has failed to meet its burden of proving that the board’s inquiry and conclusions do not follow logically, we conclude that the court did not err in granting the defendants’ motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       Hereafter, we refer to Kaufman as the defendant, to Keystone by name, and to both defendants collectively as the defendants.

       In conducting our analysis, we reviewed the record before the trial court, consisting of the plaintiffs complaint, the defendants’ motion to dismiss, the plaintiffs opposition to the defendants’ motion and the parties’ respective memoranda of law in support thereof as well as exhibits, which included affidavits, correspondence and corporate documents. See part I of this opinion.

       General Statutes § 33-724 provides in relevant part: “(a) A derivative proceeding shall be dismissed by the court on motion by the corporation if one of the groups specified in subsection (b) or (e) of this section has determined in good faith, after conducting a reasonable inquiry upon which its conclusions are based, that the maintenance of the derivative proceeding is not in the best interests of the corporation.
      “(b) Unless a panel is appointed pursuant to subsection (e) of this section, the determination in subsection (a) of this section shall be made by: (1) A majority vote of qualified directors present at a meeting of the board of directors if the qualified directors constitute a quorum ....
      “(c) If a derivative proceeding is commenced after a determination has been made rejecting a demand by a shareholder, the complaint shall allege with particularity facts establishing either (1) that a majority of the board of directors did not consist of qualified directors at the time the determination was made, or (2) that the requirements of subsection (a) of this section have not been met.
      “(d) If a majority of the board of directors consisted of qualified directors at the time the determination was made, the plaintiff shall have the burden of proving that the requirements of subsection (a) of this section have not been met. If a majority of the board of directors did not consist of qualified directors at the time the determination was made, the corporation shall have the burden of proving that the requirements of subsection (a) of this section have been met. . . .”

       Section 7.44 of the model act authorizes courts to conduct a limited inquiry into the process of the board’s decision, but not to review the reasonableness of the board’s determination to reject a demand or seek dismissal of a derivative action. Model Business Corporation Act, supra, § 7.44, official comment, pp. 7-74 and 7-75. The limited judicial review set forth in § 7.44 parallels the approach taken in Auerbach v. Bennett, 47 N.Y.2d 619, 393 N.E.2d 994, 419 N.Y.S.2d 920 (1979). See Model Business Corporation Act, supra, § 7.44, official comment, p. 7-76. In Auerbach, the court concluded that “[t]he business judgment rule does not foreclose inquiry by the courts into the disinterested independence of those members of the board .... Indeed the rule shields the deliberations and conclusions ... of the board only if they possess a disinterested independence . . . .” Auerbach v. Bennett, supra, 631. By contrast, other jurisdictions permit courts to apply their own independent business judgment, thereby scrutinizing the reasonableness of the board’s conclusions. See, e.g., Zapata Corp. v. Maldonado, 430 A.2d 779, 789 (Del. 1981); Model Business Corporation Act, supra, § 7.44, official comment, p. 7-76.

       Because we are not looking to the legislative history to construe the statute but instead for guidance in its application, we conclude that finding an ambiguity in the statutory language is not necessary.

       “The legislative history of the law in Connecticut demonstrates a desire to consider the Model Business Corporation Act and its commentary as expressive of the intent of the legislature in passage of the act. In proceedings on the floor of the state House discussing the passage of the Connecticut version of the Model Business Corporation Act . . . Representative Richard D. Tulisano stated: T also wanted to put on the record that there are in fact commentaries that have been established which help one interpret this act, both at the Connecticut commentary and there is commentary to the model act that people should look to for reference and understanding of the intent of the drafters of the legislation. I also ought to be very honest that I have not read all of those, nor do I necessarily agree with all of those commentaries and for whatever that means for legislative purposes, certainly the proponents of the bill would like that to be looked at. It is probably the normal way of interpreting the legislation. In the future, it’s the way the [Uniform Commercial Code] was done and it’s probably the way it should be done here.’ 37 H.R. Proc., Pt. 18, 1994 Sess., p. 6446.” Stone v. R.E.A.L. Health, P.C., supra, 29 Conn. L. Rptr. 223.

       See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 17, 2009 Sess., p. 5282; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 16, 2009 Sess., p. 5236; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 2006 Sess., pp. 2047-48; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1994 Sess., pp. 1801-1802; 37 H.R. Proc., Pt. 18, 1994 Sess., p. 6437.
      These advantages were proffered as part and parcel of the greater goal of promoting uniformity and predictability in our corporate law to increase corporate formation in our state. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 17, 2009 Sess., p. 5281.

       Several jurisdictions that have also enacted § 7.44 of the model act with little substantive change include Arizona, Georgia, Hawaii, Idaho, Iowa, Maine, Massachusetts, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, Rhode Island, South Dakota and Wisconsin. 2 Model Business Corporation Act Annotated (4th Ed. 2011) § 7.43, annotation, p. 7-336.

       Section 7.44 of the model act, from which § 33-724 was derived, “sets forth both substantive standards for adjudicating the effectiveness of a board’s rejection of a demand and instructions regarding the procedure by which that rejection must be communicated to — and its validity established before — a court.” (Emphasis in original.) Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011).

       General Statutes § 33-605 is derived from § 1.43 of the model act. Model Business Corporation Act, supra, § 1.43, pp. 1-39 through 1-44.

       The official comment to § 1.43 of the model act further develops the definition of material interest, explaining that “[w]hether a director has a material interest in the outcome of a proceeding . . . lie[s] along a spectrum. At one end of the spectrum, if a claim against a director is clearly frivolous or is not supported by particularized and well-pleaded facts, the director should not be deemed to have a material interest in the outcome of the proceeding . . . even though the director is named as a defendant. At the other end of the spectrum, a director normally should be deemed to have a material interest ... if a claim against the director is supported by particularized and well-pleaded facts which, if true, would be likely to give rise to a significant adverse outcome against the director.” (Emphasis added; internal quotation marks omitted.) Model Business Corporation Act, supra, § 1.43, official comment, pp. 1-41 through 1-42.

         Because the plaintiff in the present case filed a complaint after the board rejected its demand, the heightened pleading standard in § 33-724 (c) applies. In its memorandum of decision, the court applied this standard when it concluded that the plaintiff failed to allege the requisite particularized facts to prove that the directors were not qualified. This conclusion raises the ancillary issue of whether the reference to subsection (a) contained in subsection (c) requires a plaintiff to allege particularized facts regarding all three elements (i.e., qualified, good faith and reasonable inquiry) set forth therein.
      If subsection (c) is read to require the plaintiff to plead with particularity each of the three elements set forth in subsection (a) — namely, (1) qualified decision makers, (2) good faith and (3) a reasonable inquiry — then the alternative phrasing in subsection (c) becomes confusing. Indeed, if subsec-tiou (c) requires the plaintiff to allege with particularity that the directors are not qualified in both instances, the “or” is rendered superfluous. We think that this cannot be the intended result. “See General Statutes § 1-1 (a) (‘[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly’).” Bhatia v. Debek, 287 Conn. 397, 416, 948 A.2d 1009 (2008).
      We therefore conclude that subsection (c) should be construed to provide that the plaintiff must particularly plead either (1) that the directors are not qualified or (2) that only the lack of good faith and reasonable inquiry components of subsection (a) are not satisfied, and not whether the directors are qualified. This interpretation comports with the official comment to § 7.44 of the model act, which indicates that in order to state a cause of action after the board rejects a shareholder’s demand, subsection (c) requires the plaintiff to allege with particularity facts showing either that the directors are not qualified or, alternatively, that the determination made by qualified directors does not meet the standards of good faith and reasonable inquiry set forth in subsection (a). Accordingly, the model act presumes in the latter instance that the directors are qualified and, thus, subsection (a) refers solely to the good faith and reasonable inquiry components. Model Business Corporation Act, supra, § 7.44, official comment, pp. 7-74 through 7-75.

       The pleading requirements set forth in § 7.44 (c) of the model act are analogous to those established by Delaware law. Model Business Corporation Act, supra, § 7.44, official comment, p. 7-75. In Brehm v. Eisner, 746 A.2d 244 (Del. 2000), the Delaware Supreme Court, discussing shareholders who sought to circumvent the demand requirement, set forth the requirements of the particularity standard. The court concluded that the “pleadings must comply with stringent requirements oifactualparticularity [and therefore] differ substantially from [other] permissive notice pleadings .... [T]he pleader must set forth . . . particularized factual statements that are essential to the claim. ... A prolix complaint larded with conclusory language . . . does not comply with these fundamental pleading mandates.” (Emphasis added.) Id., 254. Because subsection (c) of our statute is identical to § 7.44 (c) of the model act, we find the fundamental principles set forth in Brehm illustrative for our purposes.

       In so concluding, we find it persuasive that the United States Court of Appeals for the Second Circuit reached this same outcome when interpreting a Massachusetts statute with language substantially similar to § 33-724. In Halebianv. Bern, supra, 644 F.3d 122, the court concluded that “the existence of a good-faith, reasonable inquiry into the corporation’s best interests . . . is subject to the burden-shifting provisions .... However, that such burden-shifting turns on the independence of the decision maker unambiguously demonstrates that the corut’s evaluation of independence is a prerequisite to the operation of the dismissal statute in toto." (Citation omitted; emphasis altered.) Id., 128. Although our statute characterizes a director’s disinterestedness in the transaction as “qualified” rather than “independent,” this terminological distinction has no bearing on our analysis and conclusion for these purposes.

       The court noted that it need not reach the issue of whether Hammock was a qualified director because the quorum requirement had already been met. Nevertheless, the court concluded that Hammock was not qualified because he had a material relationship with the plaintiff as its designated director. Because we affirm the judgment of the trial court concluding that the defendant, Alan Kaufman and Amazeen were qualified, we need not reach this issue.

       We need not address whether the plaintiffs complaint alleged with the requisite factual particularity that the board did not reach its decision in good faith after conducting a reasonable inquiry. That issue was never raised before — or decided by — the trial court, and the parties have not briefed it on appeal. This court cannot decide the case before it on a basis that the parties did not raise or brief. See Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686 (2007). Rather, we will decide this issue on the grounds relied upon by the trial court and briefed by the parties, and accordingly we will look beyond the factual allegations of the complaint in determining whether the plaintiff met its burden as to its claim that there was no good faith determination that the derivative proceeding was not in the best interests of the corporation.

       The report indicates that the board reviewed the plaintiffs summons and complaint; relevant board and stockholder meeting minutes; relevant certifications of corporate resolutions delivered to third party lenders; correspondence from the plaintiffs counsel dated August 6, September 10, and November 12 and 22, 2010; various discussions with the plaintiff regarding its desire to be paid dividends or have its stock redeemed by Keystone; financial statements for the year ending December 31, 2010; and the likelihood of the lawsuit’s success compared to its costs and other consequences.

       During the March 15, 2011 board meeting, the defendant noted that the lawsuit had already cost Keystone “$69,000 with the reality of more [expenses] in the future.”

       In his affidavit, Hammock averred that he is employed by the plaintiff as its vice president and serves as the plaintiff’s representative on Keystone’s board of directors.

       In a July 6, 2010 letter to the plaintiff, the defendant stated that “Keystone’s bank lines are our life line; without bank lines, we cannot do business.” The letter further alleged that the plaintiff endeavored to cause hardship to Keystone by refusing to approve meeting minutes and the 2010 budget as well as refusing to increase staff bonuses and salaries. The letter concluded by withdrawing Keystone’s offer to repurchase the plaintiffs stock, stating that Keystone will reserve its cash whenever possible and accrue dividends on the plaintiffs preferred stock instead of paying them.

       We agree in part with the plaintiffs assertion that dismissal is available only if the statutory predicates exist. A dismissal is warranted when the elements set forth in subsection (a) of § 33-724 are present. These elements are, however, subject to the burden shifting provisions in subsection (d). The plaintiff, in the case at bar, bears the burden of proving the nonexistence of these elements. When the plaintiff bears the burden of proof, a presumption arises that the statutory elements have been satisfied by the group rendering the determination. Accordingly, dismissal is proper in the present case unless the plaintiff meets its burden of proving that the board failed to make a good faith determination after conducting a reasonable inquiry. General Statutes § 33-724 (d).

       Our Supreme Court has previously interpreted the breadth of the business judgment rule in Rosenfield v. Metals Selling Corp., 229 Conn. 771, 643 A.2d 1253 (1994). “[T]he business judgment doctrine [is] a rule of law that insulates business decisions from most forms of review. Courts recognize that managers have both better information and better incentives than they. . . . The business judgment rule expresses a sensible policy of judicial noninterference with business decisions .... Shareholders challenging the wisdom of a business decision taken by management must overcome the business judgment rule.” (Citations omitted; internal quotation marks omitted.) Id., 786-87.

       We find it persuasive that other jurisdictions have reached the same conclusion. See, e.g., Madvig v. Gaither, 461 P. Sup. 2d 398, 408-409 (W.D.N.C. 2006); Halebian v. Berv, 457 Mass. 620, 627 n.11, 931 N.E.2d 986 (2010).

       Moreover, the plaintiff has not provided us with any contrary authority to support the imposition of additional requirements. Instead, we find more persuasive the court’s conclusion in Frank v. LoVetere, supra, 363 F. Sup. 2d 336. In that case, the plaintiff also argued that the committee’s inquiry was unreasonable because the committee failed to review documents and to conduct an independent financial analysis. The court, however, concluded that no such independent analysis was required, noting that the plaintiff provided “no authority or policy reason why it would be unreasonable as a matter of law for the [committee] to rely on [the knowledge of a corporate official].” Id., 337.

       The plaintiff also claims that the law firm preparing the findings and determination report represented the defendant in his personal capacity. This dual representation, according to the plaintiff, presented a conflict sufficient to taint the board’s entire inquiry such that it was neither reasonable nor in good faith. We are not persuaded. We agree with the trial court that this presents a question as to the attorney’s conflicts for purposes of his withdrawal and conclude that it is not relevant to our analysis regarding the reasonableness of the board’s inquiry in the case at bar.

       See footnote 4 of this opinion.