author: ESPINOSA, J.

text:
    GENERAL ELECTRIC CAPITAL CORPORATION v. METZ FAMILY ENTERPRISES, LLC, ET AL.
    (AC 34196)
    Gruendel, Espinosa and Sehaller, Js.

      Argued September 27, 2012
    officially released March 19, 2013

      James M. Nugent, with whom, on the brief, was James R. Winkel, for the appellants (defendants).

      David A. Reif, with whom, on the brief, were Charles D. Ray and Matthew A. Weiner, for the appellee (plaintiff).

       The fisting of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ESPINOSA, J.

The defendants, Metz Family Enterprises, LLC (Metz Family), Alicia Metz and Lauren H. Simons, appeal from the judgment of the trial court granting an application for a prejudgment remedy made by the plaintiff, General Electric Capital Corporation, in the underlying breach of contract action. The defendants claim that the trial court (1) lacked personal jurisdiction over Metz Family, (2) violated the prejudgment remedy statute, General Statutes § 52-278C, by granting a prejudgment remedy when the forum selection clause in a promissory note between the plaintiff and Metz Family prohibited the underlying complaint to which the prejudgment remedy application was attached from being filed in Connecticut, and (3) granted an excessively large prejudgment remedy. We reverse the judgment of the trial court with respect to the prejudgment remedy imposed against Metz Family and affirm the judgment with respect to Metz and Simons.

The following facts as found by the court are relevant to our resolution of this appeal. The plaintiff is a Delaware corporation with its principal place of business in Connecticut. Metz Family is a limited liability corporation organized under the laws of New York and has its chief executive offices in Connecticut. The individual defendants, Metz and Simons, reside in Connecticut. Metz Family owns real property and/or has transacted business in Connecticut.

The court found that “[t]hrough a promissory note dated July 27, 2006, Metz Family, as maker, promised to pay the plaintiff the principal sum of $1.6 million with interest on the unpaid balance. On January 21, 2009, Metz Family and the plaintiff executed a modification agreement for the sole purpose of modifying the payment schedule set forth in the promissory note. The plaintiff allege [d] that Metz Family breached its obligations under the promissory note by failing to pay installment payments due in March and April, 2011. The plaintiff issued notice to Metz Family that it was in default and demanded past due payments. Thereafter, the plaintiff exercised its right under the promissory note and modification agreement to accelerate the obligations of Metz Family. Metz Family failed to pay its accelerated obligations. [On May 17, 2011, the plaintiff filed a three count complaint against the defendants.] Count one of the complaint alleges breach of contract against Metz Family.

“Counts two and three of the complaint allege breach of guaranty against [Metz and Simons], respectively. The complaint alleges that Metz and Simons signed individual guaranty agreements as a necessary condition for the plaintiff to enter into the promissory note with Metz Family. Upon the default by Metz Family, the plaintiff informed Metz and Simons that Metz Family had failed to make the installment payments) due and demanded that Metz and/or Simons satisfy the past due payment(s). Neither Metz nor Simons made payment on the amount due to the plaintiff. Thereafter, the plaintiff informed Metz and Simons that it was exercising its right to accelerate Metz Family’s obligations and demanded that Metz and/or Simons, as guarantors, make payment in full. Neither Metz nor Simons satisfied the obligation under the respective individual guaranty agreements to pay the accelerated obligations of Metz Family.” The complaint alleged that $1,078,211.96 plus interest, default interest and late charges, in excess of $87,182.05 was due and owing at the time the complaint was filed.

On June 17, 2011, the defendants filed a motion to dismiss the plaintiffs complaint, claiming that Connecticut was an improper venue for the action. The defendants claimed that the forum selection clause in the note designated New York as the exclusive jurisdiction in which Metz Family and the plaintiff agreed to resolve any legal claims arising out of the agreement. In a memorandum of decision filed July 13, 2011, the court denied the defendants’ motion to dismiss. In a September 8, 2011 articulation of its memorandum of decision, the court further explained the rationale for its denial of the motion to dismiss, as set forth in part II of this opinion.

On May 31, 2011, fourteen days after filing its complaint, the plaintiff filed an application for prejudgment remedy against the defendants, seeking attachment of the defendants’ real and personal property in the amount of $1.5 million. Beginning in August, 2011, a hearing on the plaintiffs motion for a prejudgment remedy took place over several days. The hearing focused on jurisdiction, choice of law and the value of a West-wind aircraft in the plaintiffs possession at that time.

In its December 29, 2011 memorandum of decision on the plaintiffs application for a prejudgment remedy, the court found “[t]he defendants [to be] jointly hable on a promissory note which is now in default and on which there [was] a balance of $1,165,394.01 as of the time of acceleration on April 13, 2011. There [was] additional interest of $168,966 between [April 13, 2011] and February 1, 2012, the estimated time for sale of the collateral securing the loan at an estimated sale price of $330,000. The balance due after sale of the plane will, therefore, be approximately $1,004,360.17. Interest due on this balance from February 1, 2012, until an estimated trial date of June 1, 2012, [was] $59,436.10.” The court also concluded that there was probable cause that the plaintiff would recover attorney’s fees of approximately $200,000. Based on these findings, the court concluded that there was probable cause to find that the plaintiff would secure a judgment against the defendants. The court concluded that a prejudgment remedy of $1.5 million was a reasonable amount and granted the plaintiff permission to attach the assets of the defendants valued at that same amount. The defendants now appeal from the judgment granting the plaintiffs application for a prejudgment remedy. Additional facts will be set forth as necessary.

I

Metz Family claims that the court lacked personal jurisdiction over it because Metz Family did not have sufficient contacts with Connecticut necessary for the court to exercise personal jurisdiction over it. Because Metz Family failed to argue a lack of personal jurisdiction to the court, we conclude that Metz Family waived its right to claim a lack of personal jurisdiction.

The following additional undisputed facts are relevant to our resolution of this claim. In their motion to dismiss, the defendants stated that the court lacked jurisdiction over them and that “there is also a tenuous relationship to the state of Connecticut, separate and apart from the parties’ specific choice of New York as jurisdiction for any disputes.” Referring to this statement, in its September 8, 2011 articulation, the corut found that the defendants failed to brief adequately any implicit argument that they lacked sufficient minimum contacts with Connecticut to satisfy the due process requirements needed to establish personal jurisdiction. The court stated that it “considers the defendants’ jurisdictional argument to be based solely on the existence of a forum selection clause.” On October 7, 2011, Metz Family filed an answer and special defenses to the plaintiffs complaint.

We first set forth our standard of review and the relevant legal principles governing the defendants’ claim. “Because a challenge to the personal jurisdiction of the trial court is a question of law, our review is plenary.” Myrtle Mews Assn., Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010). “[A] party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance. . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court’s personal jurisdiction over the defendant is lost. ... As noted by our Supreme Court, under our rules of practice, the filing of a responsive pleading operates as a waiver of a future challenge of the court’s personal jurisdiction over a party.” (Internal quotation marks omitted.) Schaghticoke Indian Tribe v. Rost, 138 Conn. App. 204, 211, 50 A.3d 411 (2012); see also Practice Book § 10-32.

Because we agree with the court’s conclusion that the defendants’ jurisdictional argument in their motion to dismiss was based solely on the existence of a forum selection clause, and, thus was based on their claim of improper venue, we conclude that Metz Family failed to timely move to dismiss the action for lack of personal jurisdiction. Accordingly, having filed an answer and special defenses to the plaintiffs complaint without timely moving to dismiss the action for lack of personal jurisdiction, Metz Family waived its right later to attack the court’s judgment on personal jurisdiction grounds. Schaghticoke Indian Tribe v. Rost, supra, 138 Conn. App. 211-12.

II

The defendants next claim that the court erred by granting the plaintiffs prejudgment remedy application because it was invalid under § 52-278c. The defendants argue that the forum selection clause in the note between the plaintiff and Metz Family designates New York as the exclusive forum for the resolution of a dispute arising out of the note in which only legal relief is sought. The defendants argue that the forum selection clause would make it unreasonable for a Connecticut court to exercise its jurisdiction over Metz Family in a legal action like the one presented in the underlying complaint to which the plaintiffs prejudgment remedy application was attached. Without a viable complaint over which the court could exercise its jurisdiction, the defendants essentially argue that the court could not have made the requisite probable cause determination required to grant a prejudgment remedy. We agree with respect to Metz Family.

The following additional facts as found by the trial court are relevant to our resolution of this claim. In its September 8, 2011 articulation of its memorandum of decision denying the defendants’ motion to dismiss the plaintiffs complaint, the court evaluated the forum selection clause contained in the note. The court found that the clause was reasonably communicated to Metz Family and the plaintiff and that both parties are subject to the clause. The court found that “the promissory note does contain exclusive jurisdiction language which would appear to create a mandatory forum selection clause requiring that an action on the promissory note be brought in New York. That exclusive language, however, is later qualified by the exception that permits both parties to ‘apply to a court of competent jurisdiction in the United States of America or abroad for equitable relief as is necessary to preserve, protect and enforce its respective rights under this [n]ote . . . .’ Accordingly, under certain circumstances the forum selection clause is permissive, jurisdiction not being exclusive to New York” and “does not confer exclusive New York jurisdiction over actions wherein one of the parties seeks equitable relief, including orders of attachment.” The court agreed with the plaintiffs argument that “[w]hen read in its entirety, the clear purpose of the forum selection provision is to permit [the plaintiff] to ‘follow the money’ in the event of default by Metz Family and attach assets to answer to the breach wherever these assets may be located.”

The court found that “[t]he terms of the promissory note permit the plaintiff to seek an order of attachment in Connecticut to maintain the status quo pending litigation. In Connecticut, an application for prejudgment remedy must be based on an action that the plaintiff will bring in Connecticut to be adjudicated by Connecticut courts. In other words, an application for a prejudgment remedy cannot be brought where there is no independent cause of action to be litigated in Connecticut. The procedure for a prejudgment remedy, therefore, includes litigation of the merits of the case to judgment. The forum selection clause carves out an exception from New York jurisdiction for actions intended to attach property, as is the case here.” The court concluded that, as to Metz Family “the plaintiff is entitled to bring an action for prejudgment remedy in Connecticut.”

A

We first address the defendants’ claim that, under the terms of the forum selection clause, it would be unreasonable for a Connecticut court to exercise its jurisdiction over Metz Family because the clause designates New York as the exclusive venue for any action between the plaintiff and Metz Family in which only legal relief is sought. The plaintiff argues that its prejudgment remedy application was permissible in Connecticut because the forum selection clause contains an exception that permits the parties to seek equitable relief, such as its application for a prejudgment remedy, outside of New York. The defendants argue that the plaintiffs complaint sought only legal relief for Metz Family’s alleged breach of contract, not equitable relief. Therefore, the defendants argue, the plaintiffs action did not fall under the limited exception in the promissory note that applies only when a party seeks equitable relief. We agree with the defendants.

We begin by setting forth our standard of review and relevant legal principles governing the first part of the defendants’ second claim. “The [defendants’] claim implicates the . . . court’s construction of the pleadings. [T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn. App. 776, 796, 64 A.3d 232 (2012).

“[P]arties to a contract may agree in advance to submit to the jurisdiction of a given court .... Absent a showing of fraud or overreaching, such forum clauses will be enforced by the courts.” (Citation omitted; internal quotation marks omitted.) United States Trust Co. v. Bohart, 197 Conn. 34, 42, 495 A.2d 1034 (1985). “The existence of [a forum selection] clause does not deprive the trial court of personal jurisdiction over the parties, but presents the question [of] whether it is reasonable for the court to exercise its jurisdiction in the particular circumstances of the case.” Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 103, 897 A.2d 58 (2006).

Our Supreme Court has concluded that “a prejudgment remedy is not a civil action under Connecticut law.” Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 559, 944 A.2d 329 (2008). “The process of obtaining a prejudgment remedy is different from the process of commencing a civil action. Individuals seeking a prejudgment remedy must attach an unsigned writ, summons and complaint to the following documents: (1) a prejudgment remedy application; (2) an affidavit stating facts sufficient to show that probable cause exists that a judgment will be rendered in the action in favor of the plaintiff; (3) a form of order that a hearing be held; and (4) a form of summons for the prejudgment remedy hearing. See General Statutes § 52-278c (a).” (Emphasis in original.) Id., 558. “[U]nder the clear language and structure of § 52-278c, a plaintiffs application for a prejudgment remedy is not a stand alone pleading; rather, it is entirely dependent on the ‘action’ set forth in the attached writ, summons and complaint. . . . [T]he ‘action’ referred to in § 52-278c (a) (1) must be an action . . . upon which a Connecticut court will render judgment.” (Citation omitted.) Cahaly v. Benistar Property Exchange Trust Co., 268 Conn. 264, 273-74, 842 A.2d 1113 (2004).

In its original memorandum of decision denying the defendants’ motion to dismiss and in its articulation of that decision, the court specifically acknowledged that the action initiated by the plaintiffs complaint was a breach of contract action alleging that Metz Family breached the promissory note in which it agreed to pay $1.6 million with interest. In its articulation, the court also referred to the complaint as a separate and distinct action on which the plaintiffs May 31, 2011 application for a prejudgment remedy was dependent. In interpreting the terms of the forum selection clause contained in the promissory note, however, the court described the plaintiffs action as one that is “intended to attach property . . . .” Although the court was correct in stating that “[t]he forum selection clause carves out an exception from New York jurisdiction for actions intended to attach property,” it erroneously concluded that the plaintiffs complaint is such an action.

In ruling on the defendants’ motion to dismiss, had the court properly evaluated the cause of action presented in the plaintiffs complaint independently from its prejudgment remedy application, the court could not reasonably have concluded that the forum selection clause in the note permitted the plaintiff to bring its breach of contract action against Metz Family outside of New York because the action was not a claim for equitable relief. On its face, the plaintiffs complaint set forth an action for breach of a promissory note in which Metz Family agreed to pay $1.6 million with interest. The complaint contains three counts — breach of contract by Metz Family, breach of guaranty by Metz and breach of guaranty by Simons — for which the plaintiff sought legal relief in the form of money damages. There is nothing in the complaint to suggest that the plaintiffs claim was equitable in nature or that it sought any form of equitable relief. The relief requested in the plaintiffs subsequent application for a prejudgment remedy is the only apparent form of equitable relief sought in this case. Therefore, in determining that the plaintiffs action was “intended to attach property,” the court appears to have conflated the plaintiffs original breach of contract complaint with its prejudgment remedy application, despite the court’s recognition that an application for a prejudgment remedy is distinct from the “independent cause of action” to which it must be attached. (Emphasis added.) The court’s error is further evinced by its conclusion that “the plaintiff is entitled to bring an action for prejudgment remedy in Connecticut,” referring to the plaintiffs action as one for prejudgment remedy rather than breach of contract. (Emphasis added.) See Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 559 (“a prejudgment remedy is not a civil action under Connecticut law”).

Under the plain language of the forum selection clause, the parties agreed to submit to “the exclusive jurisdiction of the state and federal courts located in the state of New York to hear and determine any suit, action or proceeding and to settle any disputes, which may arise out of or in connection herewith and with the [note].” The contract contains one exception to this exclusive jurisdictional agreement, which permits the parties to “apply to a court of competent jurisdiction in the United States of America or abroad for equitable relief as is necessary to preserve, protect and enforce [their] respective rights under [the note] . . . including, but not limited to orders of attachment or injunction necessary to maintain the status quo pending litigation or to enforce judgments against [Metz Family] . . . Because count one of the plaintiffs complaint did not seek equitable relief and, instead, proceeded on a general breach of contract theory for which it sought legal relief, it did not fall under the limited exception of the forum selection clause. Accordingly, with respect to the plaintiffs claims against Metz Family, it would be unreasonable for a Connecticut court to exercise its jurisdiction over the parties in the particular circumstances of this case. Cf. Reiner, Reiner & Bendett, P.C. v. Cadle Co., supra, 278 Conn. 103.

B

Having concluded that the forum selection clause would make it unreasonable for a Connecticut court to exercise its jurisdiction over Metz Family in an action by the plaintiff seeking only legal relief, we now consider whether the court erred in granting the plaintiffs application for a prejudgment remedy with respect to Metz Family. We first set forth the law and the well established standard of review governing prejudgment remedies. “A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff. . . . General Statutes § 52-278d (a) (1). . . . Under this standard, the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . .

“As for [the] standard of review [on appeal], [our Supreme Court has instructed that a reviewing] court’s role on review of the granting [or denial] of a prejudgment remedy is very circumscribed. ... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. ... In the absence of clear error, [a reviewing] court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . [On appeal], therefore, we need only decide whether the trial court’s conclusions were reasonable under the clear error standard.” (Internal quotation marks omitted.) Vincent Metro, LLC v. Ginsberg, 139 Conn. App. 632, 637-38, 57 A.3d 781 (2012), cert. denied, 308 Conn. 907, 61 A.3d 1097 (2013). “[T]his court will overrule the trial court’s determination on a prejudgment remedy only if we are left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 138 n.6, 943 A.2d 406 (2008).

We conclude that, without a viable complaint on which to base its evaluation of the plaintiffs prejudgment remedy application, the court could not, as a matter of law, have determined that there was probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits of the allegation in its complaint. As explained in part IIA of this opinion, the forum selection clause would make it unreasonable for a Connecticut court to exercise its jurisdiction over Metz Family in an action like the one presented by the plaintiff’s complaint because the complaint sought only legal relief for Metz Family’s alleged breach of contract, not equitable relief. Because the plaintiffs application for a prejudgment remedy was not a stand-alone pleading, but rather was entirely dependent on the action set forth in the plaintiffs complaint; Cahaly v. Benistar Property Exchange Trust Co., supra, 268 Conn. 273-74; without the underlying complaint, the court could not have made the requisite probable cause determination required to grant a prejudgment remedy as it pertained to Metz Family. As such, without the ability to properly find probable cause that a judgment would be rendered in the plaintiffs favor, it was clear error for the court to grant the plaintiffs application for a prejudgment remedy, as it pertained to Metz Family.

Ill

Finally, the defendants claim that the court erred by granting an excessively large prejudgment remedy. Specifically, the defendants claim that the amount of the prejudgment remedy was excessively large because the court failed to take into account certain credits and offsets and improperly included attorney’s fees in its calculation of the amount of the remedy. We disagree based on the limited record before us.

The resolution of the defendants’ third claim requires us to evaluate the basis for the court’s finding of probable cause to support the amount of the prejudgment remedy awarded to the plaintiff. We are unable to review the merits of the defendants’ claim because they have deemed transcripts unnecessary for this appeal and, thus, have not provided any transcripts from the prejudgment remedy hearing in which the court heard testimony on, among other things, the value of the aircraft serving as collateral for the promissory note. Without these transcripts, we cannot determine what occurred at this proceeding, nor can we review the entirety of the evidentiary record that was before the court. “[W]e do not decide issues of law in a vacuum. . . . The absence of such a record is an insurmountable obstacle to review of the claims of error in the circumstances of this case. . . . The [defendants], who, as the appellants], [have] the burden to provide this court with an adequate record, [have] failed to do so. See Practice Book § 61-10 . . . .” (Internal quotation marks omitted.) Manzi v. Manzi, 134 Conn. App. 333, 336, 38 A.3d 1247 (2012). Based on the limited record before us, no error is reflected in the court’s calculation of the amount of the prejudgment remedy granted to the plaintiff.

The judgment is reversed only with respect to Metz Family and the case is remanded with direction to deny the plaintiffs application for a prejudgment remedy as to Metz Family. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 52-278c (a) provides in relevant part: “[A]ny person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents: (1) An application, directed to the Superior Court to which the action is made returnable, for the prejudgment remedy requested; (2) An affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that a judgment in the amount of the prejudgment remedy sought . . . will be rendered in the matter in favor of the plaintiff ... (4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing . . .

       The forum selection clause in the note states in relevant part: “[Metz Family] irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the state of New York to hear and determine any suit, action or proceeding and to settle any disputes, which may arise out of or in connection herewith and with the debt documents (coEectively, the ‘proceedings’), and [Metz FamEy] further irrevocably waives any right it may have to remove any such proceedings from any such court (even if removal is sought to another of the above-named courts). [Metz FamEy] irrevocably waives any objection which it might now or hereafter have to the above-named courts being nominated as the exclusive forum to hear and determine any such proceedings and agrees not to claim that it is not personaEy subject to the jurisdiction of the above-named courts for any reason whatsoever, that it or its property is immune from legal process for any reason whatsoever, that any such court is not a convenient or appropriate forum in each case whether on the grounds of venue or forum non-conveni-ens or otherwise. [Metz FamEy] acknowledges that bringing any such suit, action or proceeding in any court other than the courts set forth above wEl cause irreparable harm to [the plaintiff] which could not adequately be compensated by monetary damages, and, as such, [Metz FamEy] agrees that, in addition to any of the remedies to which [the plaintiff] may be entitled at law or in equity, [the plaintiff] wEl be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to enjoin the prosecution of any such proceedings in any other court. Notwithstanding the foregoing, each of [Metz FamEy] and [the plaintiff] shaH have the right to apply to a court of competent jurisdiction in the United States of America or abroad for equitable rehef as is necessary to preserve, protect and enforce its respective rights under this [n]ote and any other [d]ebt [d]ocument, including, but not limited to orders of attachment or injunction necessary to maintain the status quo pending Etigation or to enforce judgments against [Metz FamEy], any [o]bHgor or the coEateral pledged to [the plaintiff] pursuant to any [d] ebt [djocument or to gain possession of such collateral.”

       In their motion to dismiss, the defendants also argued that, although the individual guaranty agreements between the individual defendants, Metz and Simons, and the plaintiff did not contain a forum selection clause Eke the one in the promissory note, the plaintiffs complaint should be dismissed as to the individual defendants to promote judicial economy because the individual guaranty agreements flowed from the promissory note and specified that they were governed by New York law. The defendants do not maintain this argument on appeal.

       On appeal, the individual defendants, Metz and Simons, do not challenge the court’s personal jurisdiction over them. As such, our analysis and conclusions regarding the personal jurisdiction issue apply only to Metz Family.

       In their second claim, the defendants argue that the forum selection clause would make it unreasonable for a Connecticut court to exercise its jurisdiction over Metz Family only. They analyze only the note between Metz Family and the plaintiff, which contains the clause at issue in this appeal. In this claim, the defendants do not appear to make any argument regarding the individual defendants or their separate guaranty agreements with the plaintiff. Further, the individual guaranty agreements between the individual defendants and the plaintiff do not contain a forum selection clause like the clause contained in the note between Metz Family and the plaintiff. Accordingly, our analysis and conclusions regarding the defendants’ second claim apply only to Metz Family.

       In its prayer for relief, the plaintiff demanded (1) money damages; (2) “[i]nterest including, but not limited to, prejudgment interest”; (3) “[ajttor-neys’ fees”; (4) “[c]osts of litigation”; and (5) “[s]uch other and further relief as the [cjourt deems just and equitable.”

       Neither Metz Family nor the plaintiff appear to challenge the court’s conclusion that they are subject to the forum selection clause in the promissory note. Instead, the dispositive issue in this part of the defendants’ second claim is whether, in light of the plaintiffs complaint in this case, the clause would make it unreasonable for a Connecticut court to exercise its jurisdiction over Metz Family.

       The parties do not appear to dispute that the defendants’ motion to dismiss was directed at the plaintiffs complaint and not the application for prejudgment remedy.

       We note that, in its prayer for relief, the plaintiff also demanded “[s]uch other and further relief as the [cjourt deems just and equitable.” This court has held that a demand for “ ‘[sjuch other and further relief as the [cjourt deems just and proper,’ is not a specific demand for equitable relief, but rather merely permits the court to fashion a remedy as is just and equitable if no remedy at law is available.” Florian v. Lenge, 91 Conn. App. 268, 282, 880 A.2d 985 (2006). Accordingly, this general demand by the plaintiff was not a specific demand for equitable relief and did not transform the plaintiffs action into one that seeks equitable relief.

       The plaintiff also argues that, because § 52-278c requires prejudgment remedy applications to be linked to an independent action that will be litigated to the merits in Connecticut, the plaintiff must have been permitted to bring a breach of contract action in Connecticut in order to give meaning to the exception contained in the forum selection clause. There is no support for such an interpretation of the contract provision. The plaintiff cannot use the requirements of Connecticut prejudgment remedy law as a way to circumvent the valid forum selection clause in the note. Accordingly, we reject the plaintiffs argument.

       Because, based on our analysis of the defendants’ second claim, we reverse the court’s order with respect to Metz Family, we do not reach the claim that the prejudgment remedy was excessively large insofar as it relates to Metz Family. Accordingly, our analysis and conclusions regarding the defendants’ third claim apply only to the individual defendants, Metz and Simons.


source: Caselaw Access Project

author: GRUENDEL. J.

license: Public Domain

text:
    MICHAEL A. EDWARDS v. COMMISSIONER OF CORRECTION
    (AC 33641)
    Graendel, Robinson and West, Js.

      Argued December 5, 2012
    officially released March 19, 2013

      Gennaro Bizzarro, assigned counsel, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, was Gail P. Hardy, state’s attorney, and Michael E. O’Hare and Angela R. Macchi-arulo, senior assistant state’s attorneys, for the appel-lee (respondent).
   Opinion

GRUENDEL. J.

The petitioner, Michael A. Edwards, following a grant of certification to appeal by the habeas court, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly denied his petition after erroneously finding that his prior habeas counsel had not rendered ineffective assistance. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the resolution of the petitioner’s claim. “During the evening of February 18, 1995, the [petitioner], after closing the family grocery store in which he had been working, approached the victim, [George Wright], on Albany Avenue in Hartford. The two men, who were not friendly, exchanged angry words, and the [petitioner] grabbed the victim’s clothing and held a gun to his head. The [petitioner] then shoved the victim backwards along the sidewalk in front of the store. The victim did not resist, but said ‘no, no, no.’ The [petitioner] then pushed the victim’s head down and shot him in the head. The victim fell to the sidewalk. The bullet entered the left side of the back of the victim’s head, behind the left ear, traveled through the base and right side of the brain and lodged near his right eye. The victim died the following day of injuries sustained as a result of the gunshot wound.” State v. Edwards, 247 Conn. 318, 320-21, 721 A.2d 519 (1998).

After the shooting, the petitioner went to a nearby bar, the Main and Tower Cafe, where he had a conversation with a bouncer named Scott Courtney Davis. The police, approximately one week after the shooting, took a signed written statement from Davis, who provided it under the alias, “Isaiah Manuel,” which reads in relevant part: “I followed [the petitioner] into the men’s room .... [The petitioner] went to the sink grabbed a towel and began wetting the towel and wiping down the front of his jacket as he said that he had blood on him because he had just‘popped’ . . . a dude. . . . [The petitioner] looking strange stated that he had popped this dude and wanted to know if I wanted to buy some guns but that one of the guns had a body on it ... . [The petitioner] then stated that if I needed a gun the guns was at [Angela Ford’s] house right now . ...” At a bond reduction hearing, on January 3, 1996, the petitioner’s counsel informed the court and the state’s attorney that Davis had signed the statement under an alias.

At trial, the petitioner testified on his own behalf, stating that he did not hold the gun by the trigger, but only by the barrel, and that while attempting to disarm the victim, the gun went off accidentally. He also testified that he went to the Main and Tower Cafe following the shooting, where he saw Davis, and that he gave the gun used in the shooting to Ford. The state’s attorney, Kevin J. Murphy, cross-examined the petitioner, using the contents of Davis’ statement, to impeach his credibility.

The habeas court set forth the other relevant testimony dining the petitioner’s criminal trial: “Several eyewitnesses testified that they saw the petitioner shoot [the victim] in the back of his head. Although most of the witnesses were either related to [the victim] or friends with [the victim], even the petitioner admitted, during his testimony . . . that [the victim’s] friends and family were in the area when the shooting occurred. Several witnesses also testified that [the victim] would not go into the store where the petitioner worked because he had a ‘beef with the petitioner, which the petitioner also corroborated during his testimony. The petitioner testified that he told the [victim] not to come into the store anymore. . . . [T]here was little to no evidence to substantiate the petitioner’s testimony regarding how the shooting occurred. The petitioner and [the victim] were comparable in size. While some of the eyewitnesses saw the petitioner and [the victim] struggle a bit, no one saw the petitioner hook [the victim’s] right arm toward his left side and pull the gun down, as the petitioner testified. . . . [T]he medical examiner testified that [the victim] did not have any abrasions or bruises on his body, apart from a small scrape on his forehead .... Additionally . . . the medical examiner opined, during the state’s rebuttal, that the gunshot wound that he observed in [the victim’s] head could not have been caused by the victim having the gun in his right hand and pointing it to the left side of his head.”

“A jury convicted the [petitioner] ... of murder in violation of General Statutes § 53a-54a, and acquitted him of criminal possession of a firearm in violation of General Statutes § 53a-217 and criminal possession of a pistol in violation of General Statutes § 53a-217c.” State v. Edwards, supra, 247 Conn. 319-20. The trial court sentenced the petitioner to a term of fifty years imprisonment. The petitioner appealed and our Supreme Court affirmed his conviction. Id., 320. Thereafter the petitioner filed a petition for a writ of habeas corpus, claiming, inter alia, that his trial counsel, Donald Cardwell, had provided ineffective assistance in violation of the sixth amendment to the United States constitution by failing to advise him about whether to accept aplea agreement, failing to conduct an adequate pretrial investigation and failing to “object to a certain line of questioning” by the prosecutor. Edwards v. Commissioner of Correction, 87 Conn. App. 517, 518 and n.1, 865 A.2d 1231 (2005). The habeas court denied his petition, which judgment this court affirmed. Id., 518.

The petitioner then brought a second petition for a writ of habeas corpus alleging that his counsel in his first habeas proceeding, Elizabeth Brooks, had rendered ineffective assistance. He argued, inter alia, that his habeas counsel was ineffective because she failed to raise in the petitioner’s first habeas petition that his trial counsel rendered ineffective assistance by failing to object, on the basis of prosecutorial impropriety, to Murphy’s cross-examination of the petitioner. The petitioner argued that, at his criminal trial, Murphy asked questions of him without a good faith basis, which constituted prosecutorial impropriety. Specifically, the petitioner contended that because Davis’ statement was given under an alias, it was inherently unreliable, thereby negating any good faith basis Murphy may have had for asking questions arising from the contents of the statement.

The second habeas court found that Murphy did not engage in prosecutorial impropriety because he did, in fact, have a good faith basis for asking questions based on the contents of Davis’ statement. The court reasoned that Murphy had a good faith basis for asking the questions related to Davis’ statement not only because Murphy testified that he would not have asked the questions without a good faith basis, but because there was evidence to corroborate the facts contained in the statement, Davis testified that he had no animosity toward the petitioner and Davis’ making the statement under an alias did not necessarily lead to the conclusion that the statement was completely false. Accordingly, the court determined that the petitioner’s prior habeas counsel did not perform deficiently by failing to raise this claim, as it was meritless.

Further, the second habeas court found that the petitioner was not prejudiced by his prior habeas counsel’s failure to raise this claim because the other elements of the state’s case were strong. As the court explained, even if “the trial court struck the line of questioning or prohibited it, there is no reasonable probability that the outcome of the petitioner’s trial would have been different. Thus, this claim would likewise not have succeeded in the prior habeas [matter].” The second habeas court denied the petition for a writ of habeas corpus, but granted certification to appeal, and the petitioner appealed to this court.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . [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.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 61 A.3d 948 (2012).

“[W]e begin our analysis by setting forth the familiar two part test enunciated by the United States Supreme Court in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . .

“[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that . . . the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial .... Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. . . .

“Furthermore, for any ineffective assistance claim, we also are cognizant that the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s performance must be highly deferential. . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn. App. 378, 393-95, 966 A.2d 780 (2009).

As the petitioner’s ineffective assistance of counsel claim ultimately rests on his trial counsel’s failure to object on the basis of prosecutorial impropriety to Murphy’s cross-examination of the petitioner using Davis’ statement to impeach his credibility, we also set forth the legal standards for the review of a claim of prosecu-torial impropriety. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. ... We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. . . . [T]he touchstone of due process analysis in cases of allegedly] [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. ... In determining whether the defendant was denied a fair trial . . . we must view the prosecutor’s [actions] in the context of the entire trial.” (Internal quotation marks omitted.) State v. Souza, 125 Conn. App. 529, 534, 8 A.3d 1131 (2010).

We now turn to the question at the root of the petitioner’s entire claim: whether the petitioner has shown that Murphy committed prosecutorial impropriety by asking questions to impeach the petitioner’s credibility based on Davis’ statement. We agree with the habeas court in concluding that the petitioner has failed to make such a showing.

“It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination. ... A defendant cannot both take the stand and be immune from impeachment. . . . An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses. . . . [T]he [United States] Supreme Court has noted [in Perry v. Leeke, 488 U.S. 272, 282, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989)] that when a defendant assumes the role of a witness, the rules that generally apply to other witnesses — rules that serve the truth-seeking function of the trial — are generally applicable to him as well.” (Citations omitted; internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 297-98, 755 A.2d 868 (2000).

“It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court . . . which contradict those made upon direct examination. . . . This is based on the notion that talking one way on the stand, and another way previously, raises a doubt as to the truthfulness of [those] statements. . . . The purpose of impeachment is to undermine the credibility of a witness so that the trier will disbelieve him and disregard his testimony.” (Citation omitted; internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 411, 692 A.3d 727 (1997). Yet, “[a] good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required.” (Internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995).

As the second habeas court explained, the mere fact that Davis’ statement was given to the police under an alias did not necessarily make its contents false, nor did it automatically negate Murphy’s good faith basis for asking impeaching questions. Moreover, there were several ways in which other evidence corroborated the details of Davis’ statement, which supports the habeas court’s conclusion that Murphy did not lack a good faith basis to use Davis’ statement to impeach the petitioner’s credibility. The petitioner admitted that, following the shooting, he went to the Main and Tower Cafe, where Davis was working as a bouncer. This tends to corroborate the description of the time and location in which Davis asserted his conversation with the petitioner occurred. The petitioner also admitted that Davis came into the men’s restroom while the petitioner was washing his face and hands after the shooting. These facts, as the court found, are consistent with Davis’ account that the petitioner made the statements about the gun and the shooting while in the men’s restroom washing his face and hands at the Main and Tower Cafe. Davis’ statement also indicated that the petitioner stated that he had given the gun used in the shooting to Ford, a fact which the petitioner admitted. Davis’ knowledge of the identity of Ford as the person to whom the petitioner had given the gun similarly corroborates the contents of his statement to the police. Given that the contents of Davis’ statement were corroborated by other evidence, the habeas court did not err in finding that Murphy had a good faith basis for asking questions to impeach the petitioner’s credibility based on the statement, despite the fact that Davis provided the statement under an alias. Accordingly, Murphy’s questioning did not constitute prosecutorial impropriety.

Because the petitioner’s claim of prosecutorial impropriety is unavailing, his trial counsel did not render ineffective assistance by failing to object on this basis. It follows then that his prior habeas counsel did not render ineffective assistance by declining to raise a claim that his trial counsel’s assistance was ineffective in failing to object to Murphy’s questioning on the basis of prosecutorial impropriety. Given that the petitioner has not demonstrated that either his trial or prior habeas counsel provided assistance that fell below an objective standard of reasonableness, his claim of ineffective assistance of counsel fails. See Strickland v. Washington, supra, 466 U.S. 668.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent, the commissioner of correction, contends that the petitioner’s claims are barred by the doctrines of res judicata and collateral estoppel. As we have disposed of the petitioner’s claim on other grounds, we need not address this argument.

       The transcript of the relevant portions of Murphy’s cross-examination of the petitioner provides as follows:
      “Q. And do you recall when you were at the Main and Tower Cafe, running into a guy named Isaiah Manuel, or Manual?
      “A. I don’t know an Isaiah Manual.
      “Q. Do you remember running into the bouncer in the bathroom, while you were washing your hands and your coat?
      “A. Yes.
      “Q. Now, do you remember at the Main and Tower, when you went into the bathroom, and you bumped into the bouncer in the bathroom? Do you remember that?
      “A. No. I didn’t bump into him in the bathroom. I went to the bathroom, and I was trying to get — I was looking in the mirror, trying to get — clean my face off, and he came into the — I guess they wanted the money, because I didn’t pay to get in. I just walked in and went straight to the bathroom.

        “Q. So, you bumped into him while you were washing your face and washing your hands?
      “A. He came in — he came in when I was in the bathroom.
      “Q. And you were washing your jacket too, weren’t you?
      “A. No, I didn’t wash my jacket. If I washed my jacket, there wouldn’t be no blood stains on it, or any stains on it.
      “Q. Well, were there stains on it?
      “A. Yeah, there were stains on it.
      “Q. So, you admit, though, at some point, you’re in the bathroom and so was the bouncer? Is that right?
      “A. Yes, he came into the bathroom, yes.
      “Q. And you told him you needed to speak with him?
      “A. No, I never said — no. Me and Courtney — Courtney’s real name is Courtney Davis, and Courtney Davis, me and him don’t get along. We don’t really talk.
      “Q. You’re saying the bouncer’s name is Courtney Davis?
      “A. Yes. He’s using a false name, because he’s wanted. And he’s walking around the police department, wanted.
      “Q. Do you remember the bouncer helping you clean yourself and got you a towel?
      “A. No. That never happened. I was in Main and Tower for less than two minutes. And most of that, I was drinking.
      * * *
      “Q. Do you remember indicating to the bouncer that you’d just popped a dude and asked him if he wanted to buy a gun?
      “A. No. That never happened.
      “Q. Do you remember telling him that one of the guns had a body on it?
      “A. No. That never happened.
      “Q. Do you remember telling him that the gun was at [Ford’s] at the time?
      “A. No. I never told him that.”

       Cardwell has since passed away.

       The petitioner withdrew the claim related to the prosecutor’s questioning. Edwards v. Commissioner of Correction, 87 Conn. App., 517, 518 n.1, 865 A.2d 1231 (2005).

       During the second habeas trial, Davis, a felon, testified that he did not tell the police that the petitioner had told him that he had “popped a dude” and that he never told the police that the petitioner had tried to sell him a gun with a “body on it.” The habeas court, however, did not credit this testimony.
      During oral argument before this court, the petitioner’s counsel asserted, for the first time, the claim that this factual finding is clearly erroneous. As this claim was not briefed, we deem it abandoned. See Roby v. Connecticut

        General Life Ins. Co., 166 Conn. 396, 398 n.1, 349 A.2d 838 (1974) (claims not briefed deemed abandoned).

       As we have not concluded that Murphy’s questioning constituted prosecu-torial impropriety, we need not reach the question of whether his questioning deprived the petitioner of his due process right to a fair trial.


author: ROBINSON, J.

text:
    F.E. CRANDALL DISPOSAL, INC. v. TOWN OF LEDYARD ET AL.
    (AC 34030)
    Lavine, Robinson and Peters, Js.

      Argued December 3, 2012
    officially released March 19, 2013

      Simon I. Allentuch, for the appellant (plaintiff).

      Meredith G. Diette, with whom, on the brief, was Melanie E. Dunn, for the appellees (named defendant et. a!).

      JohnR. FitzGerald, for the appellee (defendant Sterling Superior Services, Inc.).
   Opinion

ROBINSON, J.

In this action alleging fraud, corruption and favoritism in the awarding of a municipal trash and recycling collection contract, the plaintiff, F.E. Crandall Disposal, Inc., appeals from the judgment of dismissal rendered by the trial court pursuant to Practice Book § 15-8 in favor of the defendants, Sterling Superior Services, Inc. (Sterling), the town of Ledyard (town) and Fred B. Allyn, Jr., in his official capacity as the town’s mayor. The plaintiff claims on appeal that the court improperly excluded relevant evidence related to the town’s prior trash and recycling collection contract and erroneously determined that the plaintiff had failed to make out a prima facie case of fraud, corruption or favoritism affecting the bidding process. We agree with the plaintiff on its evidentiary claim and, accordingly, reverse the court’s judgment of dismissal and remand the matter for a new trial.

The following procedural history and facts, as contained in the record before us and viewed in a light most favorable to the plaintiff, are relevant to our consideration of the claims on appeal. See Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000); Hurlburt v. DeRosa, 137 Conn. App. 463, 465, 49 A.3d 249 (2012). The plaintiff is in the business of collecting and disposing of trash and recyclables for municipalities and other governmental and business entities. With the exception of a single two year period, the plaintiff collected garbage and, later, recyclables for the town from 1990 until 2007. The plaintiff performed in accordance with the terms of its contracts with the town with few complaints. Frank Crandall, the plaintiffs president, was a political opponent of Allyn’s, having campaigned against him as a potential mayoral candidate in 2007. Crandall also had had negative interactions in the past with the town’s engineer and public works director, Steven Masalin.

The town’s established practice with regard to the curbside collection of trash and recyclables has been to award a two year contract with an option for a two year extension. Generally, the town has exercised that option, effectively resulting in a four year contract for the company successful in the public bidding process. In 2007, Sterling, a business competitor of the plaintiff, successfully secured the trash and recycling collection contract put to bid by the town for the years 2007 through 2011 (2007 contract). The plaintiff also had submitted a bid for that contract, but Sterling’s bid was the lowest.

In February, 2011, the town issued a request for bids for the trash and recycling collection contract for 2011 through 2015 (2011 contract). According to the invitation to bid, the town would award the contract “to the lowest responsible bidder, provided that the bid [was] reasonable, and provided that it [was] in the best interest of the [town] to accept such bid, and subject to any choice by the [town] as to any alternate specifications as may be agreed upon.” The bidding instructions similarly provided that the town would award the contract “to the lowest responsible, qualified bidder, provided that funds are available.” Both the plaintiff and Sterling submitted bid packages. The plaintiffs total bid for the four year contract was the lowest at $1,892,200, which was more than $200,000, or approximately 10 percent, lower than Sterling’s bid of $2,100,703.87, the second lowest bid. The contract nevertheless was awarded to Sterling.

The town’s “point person” with regard to putting the trash and recycling collection contract out for bid was Masalin. Masalin also provided “historical information” to the ad hoc review committee tasked with selecting the appropriate contractor (committee). Masalin was a member of the committee, as was Allyn, and participated in the committee’s deliberations. Masalin issued a memo to the committee that implied that, despite the plaintiffs low bid, the town could realize a savings of as much as $350,000 in incinerator fees over the course of the upcoming four year contract period if it retained Sterling as its garbage collector instead of awarding the contract to the plaintiff. Masalin rendered that opinion on the basis of a comparison of the amount of garbage delivered to the incinerator during the last years that the plaintiff held the town’s contract with the amount delivered to the incinerator by Sterling under the 2007 contract. According to Masalin’s analysis, even taking into consideration an overall reduction in the amount of trash produced because of the recent economic downturn, there remained about a 12 percent decrease that he attributed to “other contract performance factors.” Masalin did not include in his analysis, however, that the 2007 contract awarded to Sterling had adopted a new provision requiring, for the first time, the use of single stream recycling containers or that, as Allyn had reported to the town council, the resulting improvements in recycling efforts likely also were a major factor in the incinerator fee reductions realized by Sterling. The committee recommended to the town council that it select Sterling largely on the basis of those anticipated savings, and the contract thereafter was awarded to Sterling.

The plaintiff, believing that it had been the lowest qualified bidder and, thus, was entitled to the 2011 contract, filed this action against the defendants. The complaint contained two counts. The first count sought a temporary and a permanent injunction requiring the town to halt all performance by Sterling under the 2011 contract and to award the 2011 contract to the plaintiff as the lowest qualified bidder. Count two sought a declaratory judgment rendering null and void the 2011 contract awarded to Sterling. In support of its action, the plaintiff alleged that the town had exhibited a history of favoritism toward Sterling. The plaintiff included several specific allegations related to the 2007 contract between the town and Sterling that, according to the plaintiff, evinced a pattern of favoritism that allegedly continued into the awarding of the 2011 contract.

The plaintiff further alleged that in executing the two year option to extend the 2007 contract, Allyn chose to pay Sterling more than what Sterling originally had bid for the extension. According to the plaintiff, that extension was illegal because if the town wanted to pay Sterling more for the two year .extension, it was required to put the option out for public bid or to obtain the consent of the town council, neither of which had been done.

Finally, the plaintiff alleged that the town had ignored Sterling’s repeated violations related to the bonding provisions in the 2007 contract, which allegedly favored Sterling while putting taxpayers at risk. In sum, the plaintiff alleged that its low bid for the 2011 contract was rejected, “not in good faith and for the legitimate interests of the [t]own, but rather was the product of favoritism, fraud and/or corruption and/or was otherwise for a purpose that contravened the object and integrity of the competitive bidding statutes and/or process applicable to the bids for the 2011 [b]id [rjequest.”

A court trial was conducted beginning on November 2, 2011, and concluding the next day. At trial, the court heard testimony from five witnesses: Crandall, Ralph Fargo, Jr., Sterling’s president, Masalin, Allyn and Marcia Hancock, the town’s director of finance and member of the committee. When the plaintiff attempted to elicit from Crandall, his first witness, testimony concerning the 2007 contract with Sterling, the town’s attorney objected, arguing that any line of questioning regarding the 2007 contract was not relevant because the contract at issue was the 2011 contract. The court sustained the objection, limiting questions to the 2011 contract and the associated bidding process. Later during Crandall’s direct examination, the plaintiff attempted to explain to the court that it was proceeding on the theory that if it could show that Sterling had been afforded special treatment by the town throughout Sterling’s performance of the 2007 contract, the court reasonably could infer that the same favoritism continued into and likely corrupted the 2011 bidding process. When the court asked the plaintiff whether it had any legal support for the proposition that it was entitled to show a pattern of favoritism, the plaintiff responded that “there’s no case that’s saying you can’t do it that way.”

During his examination of Fargo, the plaintiff attempted to enter into evidence as a full exhibit the bid specifications for the 2007 contract, which again elicited objections by the defendants on the ground of relevancy. The plaintiff claimed that it was attempting to prove that Sterling was not a qualified bidder for the 2011 contract based on its material violations of the 2007 contract, and argued that “when you consider the fact that the town chose a bidder who bid 10 percent more, it’s certainly circumstantial evidence of fraud, favoritism and corruption, especially if that bidder is not qualified.” The defendants argued that the 2007 contract had expired and that whatever happened with regard to the 2007 contract had no materiality to the plaintiffs attempt to set aside the 2011 contract. The court again sustained the defendant’s objection. It likewise later sustained the defendants’ objections to questions directed to Fargo pertaining to the allegations in the complaint that Sterling had violated the bonding provisions in the 2007 contract Similarly, when the plaintiff later attempted to question Allyn with respect to Sterling’s alleged noncompliance with the bonding provisions of the 2007 contract and about the allegations that the town, at Allyn’s direction, had paid Sterling more than it had bid for the extension of the 2007 contract, the court continued to sustain the defendants’ objections to all questions related to the 2007 contract on relevance grounds.

After the plaintiff rested its case, the defendants moved for dismissal pursuant to Practice Book § 15-8, arguing that the plaintiff had failed to establish a prima facie case of fraud, corruption or favoritism. After hearing argument by all parties, the court issued a brief oral ruling granting a judgment of dismissal. The court stated that it could find “no evidence, direct or circumstantial, of fraud, corruption, or favoritism or evidence that would affect the integrity of the bidding process. At best it seems that the plaintiff has a disagreement as to the appropriateness of the decision which was made by the [town council], and that is not the basis upon which relief could be granted in this case.”

The court continued: “Consideration has been given carefully to the citations provided. There doesn’t seem to be a disagreement as to what the law is. The law is pretty clear and has been annunciated over and over. The burden is on the plaintiff to present evidence of fraud, corruption or favoritism or a course of conduct which would adversely affect the integrity of the bidding process. And as I said before, I found no such evidence in this case.” This appeal followed.

On appeal, the plaintiff claims that the court committed reversible error when it excluded relevant evidence related to the 2007 contract. We agree. Because we ultimately remand the matter for a new trial, we need not reach the plaintiffs other claim, namely, whether on the basis of the evidence the plaintiff was permitted to present, the court erroneously determined that the plaintiff failed to make out a prima facie case of fraud, corruption or favoritism affecting the bidding process.

We begin by setting forth the legal principles governing our review. To avoid a dismissal pursuant to Practice Book § 15-8, the plaintiff has the evidentiary burden and therefore must “put forth sufficient evidence that, if believed, would establish a prima facie case . . . .” (Emphasis omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 846, 863 A.2d 735 (2005). “It is well established that a trial court has broad discretion in ruling on the admissibility [and relevance] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Every reasonable presumption should be made in favor of the correctness of the co urt’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Spiegelmann, 81 Conn. App. 441, 448, 840 A.2d 69, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). Additionally, “[bjefore a party is entitled to a new trial because of an erroneous eviden-tiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result.” (Internal quotation marks omitted.) Dockter v. Slowik, 91 Conn. App. 448, 467-68, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).

Although there is no precise test for relevancy, “[relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worth or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not [unfairly] prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 200-201, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); see also Conn. Code Evid. § 4-1.

“In the context of competitive bidding, it is well established that an unsuccessful bidder on a state or municipal contract has no contractual right under the common law that would afford standing to challenge the award of a contract. ... An unsuccessful bidder, therefore, has no legal or equitable right in the contract. Not unlike any other person whose offer has been rejected, the disappointed bidder has no right to judicial intervention. . . . [S]tate and local competitive bidding laws have not been enacted in order to protect bidders. These laws serve to guard against abuses in the award of contracts such as favoritism, fraud or corruption and are enacted solely for the benefit of the public and in no sense create any rights in those who submit bids.” (Citation omitted; internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 412, 35 A.3d 188 (2012). Nevertheless, to protect the public’s interest in the proper implementation of competitive bidding processes, our Supreme Court has carved out a limited exception whereby “unsuccessful bidders have standing to challenge the award of a public contract where fraud, corruption or acts undermining the objective and integrity of the bidding process existed .... [S]uch a suit is brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a private attorney general.” (Internal quotation marks omitted.) Id., 412-13. Thus, to successfully challenge a town’s award of a municipal contract, an unsuccessful bidder must present evidence from which a trier of fact reasonably could conclude that it was more likely than not that the integrity of the competitive bidding process had been compromised.

In the present case, the theory advanced by the plaintiff was that actions by certain town officials and Sterling relative to the 2007 contract amounted to circumstantial evidence that the town impermissibly favored Sterling, and that it was more likely than not that such favoritism infected the integrity of the 2011 bidding process, particularly in light of the fact that the plaintiff, and not Sterling, had submitted the lowest bid for the 2011 contract. “[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” (Internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 857, 37 A.3d 700 (2012). The court, however, would not permit the plaintiff to present or to elicit through testimony any evidence to substantiate many of the factual allegations made in its complaint. For example, the plaintiff was not allowed to present evidence that the town had ignored Sterling’s violation of certain contractual provisions that had benefited Sterling financially, possibly to the detriment of other future bidders, or that Sterling was paid in excess of the contract price for its extension of the 2007 contract without approval by the town council.

Although not conclusive, the evidence the plaintiff sought to admit, if true, tended to support a finding that Sterling received favorable treatment from the town and thus was relevant to the case before the trial court as it could support a reasonable inference of favoritism affecting the bidding process. Even though the court understandably sought to limit the scope of the plaintiffs inquiry into contracts other than the one directly at issue in this case, we nevertheless conclude that it was a clear abuse of discretion for the court to have foreclosed as it did all documentary and testimonial evidence relative to the 2007 contract.

We further are convinced that the plaintiff has demonstrated harm sufficient to warrant a new trial. As previously stated, the gravamen of the plaintiff’s complaint was that there was evidence of a pattern of favoritism, proof of which required examination of the prior dealings between the town and Sterling. The court’s erroneous evidentiary rulings sharply curtailed the plaintiffs ability to put on its case-in-chief as pleaded and, at a minimum, likely prevented the plaintiff from putting on sufficient evidence to survive a Practice Book § 15-8 motion to dismiss.

We cannot and will not speculate about what additional relevant evidence might have come to light and, thus, might have been before the court when it considered the motion to dismiss had the court permitted some inquiry into the 2007 contract. Nevertheless, because the court effectively precluded the plaintiff on relevancy grounds from presenting any evidence related to the 2007 contract between the town and Sterling, we conclude that the erroneous evidentiary rulings likely would have affected the court’s decision on the motion to dismiss, and, therefore, the error was harmful.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       The contract year starts on the first of July and runs through the end of the following June; thus, a four year contract covers parts of five different calendar years.

       The only other bid considered by the town was for $2,107,000 by M. J. Sawchuck, Inc.

       The “historical information” provided by Masalin included the time frames that different contractors had held the town’s trash and recycling contract, the costs associated with those contracts, the amount of garbage delivered to the regional incinerator for which the town incurred a per ton fee, other information related to matters of contract performance, bulky waste issues and data on back-charging violations at the incinerator.

       For example, the plaintiff alleged that although the terms of the 2007 contract had required that Sterling deliver bottles and cans to a recycling facility in Groton, Sterling violated that contractual provision by instead taking those recyclables to its own facility, resulting in savings for Sterling that were not passed on to the town. The town allegedly ignored the contractual violation. The town allegedly also discussed the change in the recycling requirements with Sterling, thus allowing Sterling to factor in those savings in formulating its bid.

       The following colloquy occurred at trial:
      “[The Plaintiff]: You know, it’s highly relevant, Your Honor. The issue in this case is whether [the plaintiff]’s historical actions, and you can see this from the [town]’s papers, disqualified them or meant that they were not an appropriate bidder, even though they were the low bidder. So I think you’re going to hear from both sides a lot of history. In addition, I think I’m entitled to present some background information to the [c]ourt.
      “The Court: “Well, I’m going to sustain objection at this point. The town hasn’t done anything. They are just sitting over there. You may in rebuttal have an opportunity, if those issues are raised by the town, to raise the 2007 situation, if that seems to be relevant to any of the defenses raised by the town. But right now they haven’t raised any defenses, so at this point I’m going to sustain that objection.”
      “[The Town]: Thank you, Your Honor.
      “The Court: Let’s move on to the 2011 problem.
      “[The Plaintiff]: Okay, Your Honor. I will say most of our case is going to end up in rebuttal. Just so I’m clear, Your Honor, is your ruling that anything regarding the 2007 contract should be saved for rebuttal? Because I’m happy to do that. I just—
      “The Court: My ruling is that what evidence is presented by the plaintiff in [his case in] chief has to [be related to] the claims made in the complaint which have to do with the 2011 contract.”

        “[The Plaintiff]: Your Honor, respectfully, I would refer you to — on the complaint to — I mean most of the complaint or a good part of the complaint is about the events that occurred before this contract. I can cite — I mean just look at page two, starting the 2007 curbside collection contract there’s a whole section. Most of the complaint — as I said, most of the facts in dispute are historical but for the — what led up to this contract. Again, I’m happy to put it in our case in rebuttal, but it’s almost all the events that led up to the bidding.
      “The Court: It seems to me that in order to be relevant to the case, it has to be either responsive to the defenses which are being interposed by the defendants or related to the claim that’s made about the 2011 bid process. The 2011 bid process is the issue before the court. And the request that’s been made in the end of your complaint, the claims for relief, relate to the 2011 contract process. That’s what the issue is. The other matters may or may not become relevant, depending upon what the defenses are interposed by the town as to why they didn’t give the low bidder the contract.
      “[The Plaintiff]: Your Honor, I would just note for the record that the plaintiff’s contention is that there’s a history of fraud, favoritism — fraud or favoritism, and we will save that testimony for rebuttal and then move very quicldy through our case.
      “The Court: Thank you.”

       The inquiry is not whether the trier of fact believes the evidence presented; rather, “[i]n testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.” (Citation omitted; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., supra, 86 Conn. App. 846.


author: DiPENTIMA, C. J.

text:
    JUAN MALDONADO v. COMMISSIONER OF CORRECTION
    (AC 33853)
    DiPentima, C. J., and Bear and Espinosa, Js.

      Argued December 7, 2012
    officially released March 19, 2013

      Gwendolyn S. Bishop, assigned counsel, for the appellant (petitioner).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were GailP. Hardy, state’s attorney, Erika L. Brookman, assistant state’s attorney, for the appel-lee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DiPENTIMA, C. J.

The petitioner, Juan Maldonado, appeals from the judgment of the habeas court denying his petition for certification to appeal the denial of his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying the petition for certification and erred in concluding that neither his trial counsel nor his previous habeas counsel provided him ineffective assistance as to trial counsel’s failure to move for a competency hearing. We conclude that the habeas court did not abuse its discretion in denying the petition for certification and therefore dismiss the appeal.

The following facts were found by the three judge panel in the petitioner’s criminal trial. On July 29,1994, the petitioner had an argument with his girlfriend, Marisol Santiago, with whom he shared an apartment in Hartford. The petitioner suspected that Santiago was having an affair with Armando Rivero, who owned a grocery store located on the ground floor of the petitioner’s apartment building, and the two argued about his suspicions. The petitioner told Santiago that a Ouija board had revealed to him that he should kill Rivero; the petitioner then attacked Santiago, punching her in the face and threatening her with a kitchen knife. The petitioner and Santiago struggled, and Santiago was able to grab the knife away from the petitioner. During the struggle, Santiago gripped the blade in defense, causing severe injury to her hand, which required stitches. The petitioner left the apartment and retrieved a sawed-off shotgun that he had concealed in a building near his apartment. The petitioner brought the shotgun into the grocery store; Rivero saw the petitioner and attempted to flee, but the petitioner pursued him. The petitioner shot Rivero once, then reloaded and shot him twice more in the head. The petitioner told Rivero that he fatally shot him so that Rivero could no longer “screw around with women.” After shooting Rivero, the petitioner arranged to leave Connecticut to five in New Jersey.

The petitioner was arrested in January, 1995. He was charged with murder in violation of General Statutes § 53a-54a, possession of a sawed-off shotgun in violation of General Statutes § 53a-211 and assault in the second degree in violation of General Statutes § 53a-60. State v. Maldonado, 51 Conn. App. 702, 703, 725 A.2d 962, cert. denied, 249 Conn. 904, 733 A.2d 224 (1999).

At trial, the petitioner presented evidence of his affirmative defense of lack of capacity due to mental disease or defect pursuant to General Statutes § 53a-13 (a). Trial counsel introduced medical reports by Donald R. Grayson and Peter M. Zeman, both of whom are psychiatrists. Both doctors conducted psychiatric evaluations of the petitioner and both concluded that the petitioner was a “paranoid schizophrenic [and] in a psychotic state at the time of his actions . . . .” In both evaluations, the petitioner claimed to have auditory and visual hallucinations, in which he saw a “shadow man” named “Ramon” and a dog named “Pelucci.” Further, in both interviews, he expressed his belief that Rivero was “Ramon” and, in his interview with Zeman, he stated that he killed Rivero because “Ramon was the shadow man. He said he wanted to take my life, to take my spirit, and put his spirit in my body.” In his statement to the police on the day of his arrest, the petitioner stated that he knew his girlfriend was “going out” with Rivero and that, after arguing with his girlfriend and punching her in the head, the petitioner went to the grocery store and shot Rivero because he thought Riv-ero was going to shoot him. A medical report from Hartford Hospital was introduced into evidence, which concluded that the petitioner’s actions on the night of the shooting were attributable to the consumption of alcohol and drugs. Both Grayson and Zeman testified that the petitioner’s description of “Ramon” was “self-serving” and both psychiatrists agreed that hallucinations and paranoia such as that described by the petitioner could have occurred as a result of cocaine abuse. The petitioner was convicted of all charges and received a total effective sentence of fifty-five years imprisonment.

The petitioner appealed his conviction, claiming that the trial court abused its discretion in denying his motion for a presentence psychiatric examination under General Statutes § 17a-566. The judgment was affirmed. See State v. Maldonado, supra, 51 Conn. App. 702. In 1999, the petitioner filed his first habeas petition, in which he alleged that his trial counsel rendered ineffective assistance by failing to raise a defense of extreme emotional distress and by failing to move to suppress his confession. Maldonado v. Warden, Superior Court, judicial district of New Haven, Docket No. 0429143 (December 30, 2002). The petition was denied, and that denial was affirmed by this court. See Maldonado v. Commissioner of Correction, 80 Conn. App. 908, 838 A.2d 258 (2003).

In the present petition, the second habeas petition as amended in January, 2011, the petitioner again alleged ineffective assistance by trial counsel and added ineffective assistance claims against both his appellate counsel in his direct appeal and against his first habeas counsel (habeas counsel). By memorandum of decision dated August 5, 2011, the habeas court denied the amended petition.

In its memorandum, the court dismissed the petitioner’s claim of ineffective assistance of trial counsel and denied the petitioner’s claim of ineffective assistance of habeas counsel. As to the first claim, the court noted that the petitioner had raised ineffective assistance of trial counsel in his first habeas petition and concluded that the claim in the present petition was not based on facts or evidence “not reasonably available at the time of the prior [habeas] petition.” (Internal quotation marks omitted.) As to the second claim, the habeas court determined that the facts of the case did not support the petitioner’s claim of ineffective assistance of habeas counsel. The habeas court denied the petition for certification to appeal. This appeal followed.

In this appeal, the petitioner claims that the habeas court erred in denying his petition for certification to appeal because his right to effective assistance of counsel was violated when (1) trial counsel failed to move for a competency hearing and (2) habeas counsel failed to raise the issue of ineffective assistance of trial counsel in his first habeas proceeding. The respondent argues that the petitioner failed to show that the habeas court abused its discretion because the petitioner’s claim of ineffective assistance as to trial counsel is barred and there is no evidence to support the petitioner’s claim as to habeas counsel. We agree with the respondent.

“[A]s a prerequisite to plenary appellate review of the merits of the dismissal of a habeas corpus petition, a petitioner who is denied a timely request for certification to appeal must demonstrate that the denial of certification was an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 615, 646 A.2d 126 (1994); see also Policier v. Commissioner of Correction, 80 Conn. App. 66, 68, 832 A.2d 1207 (2003) (“[A] petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying [a] two-pronged test .... First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.” [Citation omitted; internal quotation marks omitted.]). “In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.” (Internal quotation marks omitted.) Castonguay v. Commissioner of Correction, 300 Conn. 649, 658, 16 A.3d 676 (2011). “[T]he mere allegation of a violation of a constitutional right is insufficient to meet the initial hurdle of proving an abuse of discretion when the habeas corpus court has denied certification to appeal.” Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77-78, 712 A.2d 992 (1998). A petitioner claiming abuse of discretion must “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different maimer]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Castonguay v. Commissioner of Correction, supra, 657.

I

The petitioner first argues that the court improperly rejected his claim of ineffective assistance of trial counsel because the claim was not raised in his first habeas petition. We disagree.

Citing McClendon v. Commissioner of Correction, 93 Conn. App. 228, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006), the court dismissed this count, noting that “the adding of new specifications of ineffective assistance is insufficient to state a new legal ground different from that raised by the previous habeas petition which was unsuccessful.” Practice Book § 23-29 states in relevant part that “ [t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .” “[T]he fact that both petitions [are] based on the legal ground that the petitioner was denied the effective assistance of counsel in his criminal trial alone is not fatal to the petitioner’s second petition. . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” (Citation omitted.) McClendon v. Commissioner of Correction, supra, 231.

Here, the petitioner’s claim of ineffective assistance of trial counsel is supported by facts that were reasonably available at the time of his first habeas petition. Further, his current petition seeks the same relief as did his first petition. In his first petition, the petitioner claimed ineffective assistance of trial counsel because trial counsel failed to pursue an extreme emotional disturbance defense. In the present petition, the petitioner claimed ineffective assistance of trial counsel because trial counsel failed to move for a competency evaluation. It is clear that the issue of the petitioner’s mental health has been present at every stage of the petitioner’s criminal trial and two habeas actions. The petitioner has not argued that there is new information in the present habeas petition that was not available at the time of his first habeas petition or at his criminal trial. To the contrary, the petitioner has emphasized that trial counsel had knowledge of the petitioner’s mental state and that the petitioner’s psychoses were “continuing and ongoing” at the time of his first habeas petition.

The petitioner further argues that, because he claimed in the present petition that habeas counsel was ineffective for failing to raise the question of trial counsel’s ineffectiveness, this court must reach the issue of whether trial counsel was ineffective. That is not the case. “To succeed in [a] 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.) Harris v. Commissioner of Correction, 126 Conn. App. 453, 457, 11 A.3d 730, cert. denied, 300 Conn. 392, 17 A.3d 69 (2011). This standard holds a petitioner to a higher standard when claiming ineffective assistance of habeas counsel; it does not require this court to hear improperly raised issues. Because both trial counsel and habeas counsel referenced the petitioner’s mental state at the time of the original proceedings, the court did not err in concluding that information regarding the petitioner’s mental state was “readily available” to the habeas counsel and that, therefore, his claim in the present petition is not based on new facts. Accordingly, this claim fails.

II

We next turn to the petitioner’s claim of ineffective assistance of habeas counsel. The petitioner argues that habeas counsel was ineffective because he did not raise the issue of trial counsel’s failure to request a competency hearing. The habeas court concluded that the evidence did not support the petitioner’s claim that habeas counsel was ineffective. We agree with the habeas court.

There was significant evidence supporting the habeas court’s conclusion that habeas counsel was not ineffective in this regard. The petitioner’s trial, appellate and habeas counsel all testified that they believed the petitioner to be capable of understanding the nature of the criminal proceedings against him and of assisting his attorneys in his defense. See General Statutes § 54-56d. Trial counsel testified at the habeas proceeding: “[T]here was nothing about my interactions or the interactions of [the petitioner] with anybody on my staff or any of the people he interacted with that would lead me to conclude, number one, that he was unable to assist me and — during trial and before trial — and there was nothing about our interactions that led me to believe that he didn’t understand what the charges were and what the court procedures would be . . . .” Habeas counsel testified: “When I met [the petitioner], he was doing very well. . . . He’s a very bright man— very helpful. So from my standpoint, he was very competent while I was dealing with him. ... I assume that [trial counsel] did what he believed was necessary, so I did not question the competence [of the petitioner] at trial. . . . [T]o my understanding, there was no indication that [the petitioner] was incompetent to appear at trial.”

The habeas corut concluded that “there is simply no evidence to support” the petitioner’s claim of ineffective assistance of habeas counsel, and it was entirely within the habeas court’s purview so to conclude. “The 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.” (Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 717, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses . . . .” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 96 Conn. App. 854, 857, 902 A.2d 701, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

We conclude that the habeas court properly dismissed the petitioner’s claim of ineffective assistance of trial counsel and properly determined that there was no evidentiary support for the petitioner’s claim of ineffective assistance of habeas counsel. The petitioner has failed to establish that the issues he raised are debatable among jurists of reason, that a court could have resolved the issues in a different manner or that the questions he raised are adequate to deserve encouragement to proceed further. See Castonguay v. Commissioner of Correction, supra, 300 Conn. 666. Consequently, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner also alleged that his appellate counsel in his direct appeal rendered ineffective assistance. The court concluded that appellate counsel exercised sound professional judgment in deciding not to raise a claim of insufficiency of the evidence in that appeal. The efficacy of appellate counsel’s performance is not at issue in the present appeal.

       The petitioner argued that he had a lengthy mental health history and continued to have mental health issues throughout the pendency of his criminal trial.

       Both petitions requested that the petitioner’s conviction be vacated and that his case be returned to the trial court for further proceedings.