author: BEACH, J.

text:
    ROZ-LYNN BECKENSTEIN ET AL. v. REID AND RIEGE, P.C., ET AL.
    (AC 28313)
    Harper, Beach and Robinson, Js.

      Argued October 24, 2008
    officially released March 31, 2009

      Daniel J. Klau, with whom, on the brief, were Michael P. Berman and Suzanne LaPlante, for the appellants (plaintiffs).

      Paul E. Pollock, for the appellees (named defendant et al.).
   Opinion

BEACH, J.

This case involves a trust created by Robert Beckenstein and the sale of commercial real estate for an amount of approximately $100 million. In contemplation of his death, Robert Beckenstein executed a trust, which created a business advisory committee (committee) to facilitate the sale of his business interests following his death or permanent disability. Following his death, an action was brought by the plaintiffs, Roz-Lynn Beckenstein, individually, as executrix of the estate of her husband, Robert Beckenstein, and as successor cotrustee of the trust; Julie Beckenstein, Robert Beckenstein’s daughter; and Kathleen Bornh-orst, successor cotrustee of the trust. The fundamental claim was that the defendants Andrew J. Howat, a member of the committee, and Reid & Riege, P.C. (Reid & Riege), of which Howat was apartner, breached various obligations under the trust in essentially failing to maximize the value received for the properties. The plaintiffs appeal from the judgment of the trial court, rendered after a jury trial, in favor of the defendants. On appeal, the plaintiffs claim that the court (1) abused its discretion in denying, in part, a request to amend the revised complaint, (2) improperly instructed the jury with respect to count one of the operative complaint, which alleged gross negligence and wilful misconduct on the part of Howat, and (3) improperly directed a verdict against them on count two of the operative complaint. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of the plaintiffs’ appeal. Robert Beckenstein, who controlled substantial real estate interests, was diagnosed with pancreatic cancer in early 1999. On March 11, 1999, he executed a trust. According to the terms of the trust, Robert Beckenstein was the trustee. The trust provided for a successor trustee in the event of his death or inability to serve as trustee. It further provided that successor trustees shall have all the powers of the original trustee. The commercial real estate at issue ultimately was transferred into the trust. The trust created, inter alia, the committee, which included as members Howat, Seymour L. Piaster, a longtime financial advisor and confidante of the Beckenstein family, and Arthur G. Beckenstein, Robert Beck-enstein’s brother. Robert Beckenstein specified in § 10 (c) (1) of his trust that “[m]y primary recommendation is for my [bjusiness [interests to be sold or liquidated following my death or [permanent [disability in a reasonable manner and within a reasonable period of time so as to maximize the value realized.” The trust also provided generally that members of the committee shall not be liable for any loss or depreciation unless the loss or depreciation results directly from gross negligence or wilful misconduct.

Shortly after being diagnosed with cancer, Robert Beckenstein, in addition to executing the trust, devised apian to liquidate his business interests over the course of two years. At that time, Robert Beckenstein advised Ron Gross, chief financial officer, and Dennis Smith, vice president of Beckenstein Enterprises, of this plan. In connection with this liquidation plan, Robert Beck-enstein and Arthur Beckenstein entered into employment contracts with several key employees, including Smith, Gross, Aaron Shakun, head of property management, and Robert Piazza, head of construction. These contracts provided that Robert Beckenstein intended to liquidate his real estate holdings and to dissolve his business entities over the next two years and further provided that Smith, Gross, Shakun and Piazza would maintain in confidence this intention due to the probable negative impact exposure could have on the economic success of the liquidation. Robert Beckenstein perceived that knowledge of his illness and desire to liquidate his holdings might deflate the market value of his properties.

At various meetings, Robert Beckenstein, Gross and Master discussed the value of properties to be sold. Two groups of properties were to be sold: the Lichtenstein properties, which included four shopping centers, and the Keller properties, which included office buildings and industrial properties. Robert Beckenstein signed resolutions giving Smith authority to negotiate and to sign real estate contracts on his behalf. Smith entered into contracts on May 23, 2000, to sell the Lichtenstein properties for $40.2 million and on May 25, 2000, to sell the Keller properties for $58 million. On May 26, 2000, the properties were transferred into the trust. Robert Beckenstein approved the sale prices for both properties. After Robert Beckenstein’s death on June 6, 2000, the committee advised the successor trustee to close the sales, with at least one adjustment. Such advice apparently was binding on the trustee, and the sales were completed. Prior to his death or disability, Robert Beckenstein, with Smith as his agent, made the decisions regarding his interests. Subsequent to his death or disability, the committee was, in effect, to make the decisions.

This action was commenced in April, 2003. On December 10, 2003, Roz-Lynn Beckenstein and Julie Beckenstein filed a revised complaint. On June 21,2006, Roz-Lynn Beckenstein and Julie Beckenstein filed a request for leave to file an amended revised complaint. The defendants filed a partial objection, which the court sustained. In October, 2006, during trial, Roz-Lynn Beckenstein, Julie Beckenstein and Bomhorst filed a substitute amended revised complaint. A focus of the operative complaint was the claim that Howat breached his fiduciary duties as a member of the committee by, in essence, failing to ensure that Robert Beckenstein’s business interests were sold so as to maximize the value received and that Reid & Riege, as legal counsel to the committee, committed legal malpractice by failing to provide legal counsel to the committee that met the standard of care. Following trial, the jury returned a verdict in favor of the defendants. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first claim that the court abused its discretion in denying, in part, the request to amend the revised complaint. We disagree.

On December 10, 2003, Roz-Lynn Beckenstein and Julie Beckenstein filed a revised complaint. Count one of the revised complaint alleged that Howat, by his gross negligence and wilful misconduct, violated his fiduciary duties, responsibilities and obligations as a member of the committee, and that his failure to perform such duties, responsibilities and obligations as a member of the committee caused loss and depreciation of Robert Beckenstein’s business interests. It listed numerous ways in which Howat, as a member of the committee, acted with gross negligence or wilful misconduct. On June 21, 2006, Roz-Lynn Beckenstein and Julie Beckenstein filed a request for leave to file an amended revised complaint, which sought, in part, to amend count one to include an allegation of a duty to monitor Robert Beckenstein’s condition. In this proposed amendment, it was alleged that the committee knew or should have known that it had a duty to monitor the physical or mental condition of Robert Beckenstein to determine his ability or disability under the trust and had a duty to obtain from his physician a written declaration that on or about May 11,2000, Robert Beck-enstein was unable to serve as trustee under the trust. Had Howat properly executed his duty to monitor, a certificate of disability would have been obtained earner, and the committee’s full responsibility regarding the sale of the real estate would have commenced by May 11, 2000, before Smith signed the relevant contracts.

The defendants thereafter filed a partial objection in which they, inter alia, contested the duty to monitor amendment. The court sustained the defendants’ objection. It stated: “The proposed amendments are not seasonable because they are not in accordance with the court’s scheduling order, they would prejudice the defendants, and they would cause a delay in the trial. . . . The scheduling order requires that pleadings be closed by September 20, 2004. The proposed amended complaint was not filed until June 21, 2006. The defendants would be prejudiced by the proposed amendments, as the scheduled trial date of September 19, 2006, would not allow the defendants to file and have hear[d] any pleadings addressing the legal sufficiency of the proposed amendments. The defendants also are entitled to conduct discovery regarding the new factual claims. The scheduled trial date does not allow adequate time to conduct such discovery. Consequently, granting the amendment request would delay the trial.”

Our standard of review of the plaintiffs’ claim is well defined. “A trial court’s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiffs’] burden ... to demonstrate that the trial court clearly abused its discretion. . . . Atrial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof. . . . Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.” (Internal quotation marks omitted.) Billy & Leo, LLC v. Michaelidis, 87 Conn. App. 710, 714, 867 A.2d 119 (2005).

The plaintiffs contend that the court gave undue importance to the scheduling order deadline of September 20, 2004, on which date pleadings were closed, in denying the request to amend the revised complaint. The plaintiffs' argue that the fact that the request to amend was filed after the pleadings had been closed does not by itself mean that the request to amend the pleading was unseasonable.

In this case, the court, however, did not base its decision solely on the fact that the request to amend was filed after the pleadings had been closed. In addition to noting that the request to amend was filed almost two years after the pleadings had been closed, it noted that granting the proposed amendment would prejudice the defendants and would cause a delay in trial, given that trial was to begin September 19, 2006, approximately three months after the request to amend was filed. “The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial.” (Internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 364, 659 A.2d 172 (1995). Though not conclusive, provisions of a scheduling order may be considered by the court.

The plaintiffs next argue that the court abused its discretion when it concluded that granting leave to amend the revised complaint would prejudice the defendants because they would not have sufficient time to challenge the legal sufficiency of the new allegations. The plaintiffs contend that the court’s reasoning is unsound because the proposed amendment did not constitute a new cause of action, and, as such, no basis existed for challenging their legal sufficiency through a motion to strike. See Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000) (motion to strike challenges legal sufficiency of pleading).

Here, although both the revised complaint and the proposed amended complaint alleged gross negligence or wilful misconduct on the part of the committee relating to the sale of Robert Beckenstein’s business interests, the allegations at issue in the proposed amended complaint arguably concerned a somewhat different set of specific facts. Compare Billy & Leo, LLC v. Michaelidis, supra, 87 Conn. App. 714 (“where an entirely new and different factual situation is presented, a new and different cause of action is stated” [internal quotation marks omitted]). Count one of the revised complaint alleged that Howat acted with gross negligence or wilful misconduct in numerous ways, some of which concerned the committee’s failure to discover several alleged improprieties committed by Smith during the sale of the business interests. None of the allegations of gross negligence or wilful misconduct, however, specifically related to a duty to monitor Robert Beckenstein’s health condition or a failure to obtain a written declaration of such disability. As such, challenges to the proposed duty to monitor amendment may not have been frivolous. The court did not abuse its discretion in holding that allowing the proposed amended complaint would prejudice the defendants on the ground that it would not allow them sufficient time to file and to have heard any pleadings addressing the legal sufficiency of, or other issues regarding, the proposed amendments.

The plaintiffs next contend that the court abused its discretion when it concluded that granting them leave to amend their complaint would prejudice the defendants because it would not allow them sufficient time to conduct adequate discovery. The plaintiffs argue that the proposed amendment would not have entailed any significant discovery beyond what already had been completed or what the parties had agreed to complete within the months remaining before trial. The defendants argued in their memorandum of law in support of their partial objection to the request to amend that they would need to depose again the plaintiffs’ malpractice liability expert concerning the proposed claim that the committee had a duty to declare Robert Beckenstein to be disabled and to take control of his business interests. The court reasonably could have concluded that additional discovery would have been necessary or useful to adjudicate the duty to monitor claim raised in the proposed amendment and that undue delay would have been caused thereby. See AirKaman, Inc. v. Groppo, 221 Conn. 751, 767, 607 A.2d 410 (1992) (trial court did not abuse discretion by denying request to amend complaint where pleadings had been closed, opposing party had submitted trial brief and claim would require additional discovery), superseded by statute on other grounds as stated in Renaissance Management Co. v. Commissioner of Revenue Services, 48 Conn. Sup. 221, 838 A.2d 260 (2002), aff'd, 267 Conn. 188, 836 A.2d 1180 (2003); S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 631 A.2d 340 (trial court did not abuse discretion in sustaining defendant’s objection to plaintiffs’ motion to amend complaint where motion filed after discovery completed and after motions for summary judgment filed), cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). The trial court is in a better position than we are to evaluate the claims regarding discovery, and we will not upset the trial court’s decision absent an abuse of discretion.

In light of the foregoing, we conclude that the court reasonably could have concluded that granting the plaintiffs’ request to file an amended complaint would have delayed the trial and prejudiced the defendants. See Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 257, 905 A.2d 1165 (2006). Accordingly, the court did not abuse its discretion in denying the request to amend the revised complaint.

II

The plaintiffs next claim that the court improperly instructed the jury with respect to count one of the operative complaint, which alleged gross negligence and wilful misconduct on the part of Howat. We disagree.

The standard of review concerning claims of error in jury instructions is well settled. “[J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 589-90, 783 A.2d 1001 (2001). “Our standard of review on this claim is whether it is reasonably probable that the jury was misled.” (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn. App. 306, 311, 819 A.2d 844 (2003).

The first count of the operative complaint alleged that Howat, through his acts or failure to act as a member of the committee, violated or breached his obligations under the trust and that such action or inaction amounted to gross negligence or wilful misconduct that directly resulted in loss or depreciation of Robert Beck-enstein’s business interests. The court began its instructions to the jury on this count with the following: “The [committee] was established under the trust at issue in this case. The plaintiffs claim that as a member of the [committee] . . . Howat was fiduciary to the trust and was required to carry out his fiduciary obligations in good faith. The plaintiffs claim that as a member of the [committee] . . . Howat breached these fiduciary duties because the [committee] failed to obtain current appraisals of the property being sold under the Keller and Lichtenstein contracts, failed to verify the accuracy and reliability of the sale prices, the deductions taken under the sale contracts and proceeded to sell the properties under the Keller and Lichtenstein sale contracts at prices that were below the fair market value of the properties.”

The court explained that “under the terms of the trust, the members of the committee, including . . . Howat cannot be held financially liable for any actions taken by them unless their conduct constituted gross negligence or wilful misconduct. More specifically . . . [pjaragraph 10 (b) of the trust . . . states the following: ‘[t]he members of the [committee] shall not be liable for any loss or depreciation unless the loss or depreciation results directly from . . . gross negligence or wilful misconduct.' ” (Emphasis added.) The court proceeded to define both gross negligence and wilful misconduct and then stated: “As I previously indicated . . . Howat cannot be held hable for his conduct as a member of the [committee] unless he committed acts in violation of his fiduciary duties that constitute gross negligence or wilful misconduct as I have just described or defined for you. In order for the plaintiffs to recover from . . . Howat for his conduct as a member of the [committee], the plaintiffs must show that his conduct was more than just careless or negligent. The plaintiffs must prove by a preponderance of the evidence that Howat violated his fiduciary duties as the plaintiffs have alleged and that these violations constituted gross negligence or wilful misconduct as I have just described these terms to you.” (Emphasis added.)

The court then turned to § 10 (c) of the trust. It stated that the trust provided “that upon Robert Beckenstein’s death or permanent disability, the [committee] shall be guided by a recommendation that his business interests be sold or liquidated in a reasonable manner and within a reasonable period of time so as to maximize the value realized.” It referred the jury to a particular portion of § 10 (c) that provided that “the [t]rustee and [b]usiness [a]dvisory [c]ommittee shall not be liable for actions taken or omitted in accordance with subparagraph (c).” With respect to this particular provision of § 10 (c), the court instructed that “this broad language suggesting that the members of the [committee] cannot be held personally liable for any actions taken to liquidate the trust property should be disregarded by you because that language is too broad and thus is unenforceable. Even under this provision . . . Howat as a member of the [committee] may be held hable for actions that are wilful or intentional.” (Emphasis added.)

The plaintiffs direct our attention to one sentence of the court’s instruction regarding the exculpatory clause of § 10 (c). They claim that the court improperly instructed the jury that Howat could be held hable under the exculpatory provisions for only wilful or intentional misconduct. The plaintiffs argue that this instruction given by the court was improper because the court improperly failed to instruct the juiy that proof of Howat’s gross neghgence, and not just wilful or intentional conduct, was sufficient to overcome the exculpatory provision in § 10 (c) the trust. The plaintiffs contend that the court’s failure to instruct the jury that § 10 (c) permitted liability on the basis of gross negh-gence left the jury with the impression that a finding of gross neghgence by Howat would not suffice to establish liability and thereby raised the threshold of culpability that the plaintiffs were required to prove to prevail on count one.

In instructing the jury as to the effect of § 10 (c), the court stated that the exculpatory clause was unenforceable. Technically, the court did not state that Howat could be held liable only for wilful or intentional misconduct but stated that even under the exculpatory clause, Howat could be held liable for actions that are wilful or intentional. The reading urged by the plaintiffs, however, is reasonable, but nonetheless, even if, as they claim, this instruction was improper, we do not agree that this single comment misled the jury when we review the jury charge in its entirety. “Jury instructions . . . cannot be read in a vacuum.” DeMarkey v. Fratturo, 80 Conn. App. 650, 659, 836 A.2d 1257 (2003). We will not “critically [dissect the charge] in a microscopic search for possible error.” (Internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn. App. 449, 456, 612 A.2d 114 (1992). “In assessing a claim of instructional error ... we examine each jury instruction in the context of the charge as a whole, rather than by the instruction’s individual, component parts.” Rubel v. Wainwright, 86 Conn. App. 728, 737, 862 A.2d 863, cert. denied, 273 Conn. 919, 871 A.2d 1028 (2005).

When read as a whole, the charge properly instructed the jury as to Howat’s liability with respect to count one. The plaintiffs in count one alleged gross negligence and wilful misconduct on the part of Howat. Paragraph 10 (b) of the trust provided that members of the committee shall not be liable for any loss or depreciation unless the loss or depreciation results directly from gross negligence or wilful misconduct. As stated previously, the court began its instructions on this subject matter by detailing the ways in which Howat allegedly breached his fiduciary duties in liquidating the properties and explained that he could be held háble if his actions constituted gross negligence or wilful misconduct. The court repeatedly instructed the jury that Howat would be hable if his actions constituted gross neghgence or wilful misconduct. The court also instructed the jury “not [to] single out any particular instruction or give it more or less emphasis than any other.” Given these instructions, it was not reasonably probable that the jury was misled. See, e.g., DeMarkey v. Fratturo, supra, 80 Conn. App. 659 (despite inaccurate statement in instruction, when instruction read as whole, jury not reasonably misled); Sullivan v. Norwalk, supra, 28 Conn. App. 457 (despite isolated inaccuracies, court’s instructions adequately instructed jury on proximate cause).

Ill

The plaintiffs next claim that the court improperly declined to submit count two to the jury because, as pleaded and in view of the evidence, it was duplicative of count one. We disagree.

The following additional facts and procedural history are relevant to the plaintiffs’ claim. The first count of the operative complaint alleged that Howat, by his gross negligence and wilful misconduct, violated his fiduciary duties, responsibilities and obligations as a member of the committee, and that his failure to perform such duties, responsibilities and obligations as a member of the committee caused loss and depreciation of the Robert Beckenstein business interests. It listed numerous ways in which Howat, as a member of the committee, acted with gross negligence or wilful misconduct.

The second count incorporated the first count in its entirety. The second count contained additional language that the wrongful acts of Howat, as a member of the committee, constituted breaches and violations of the fiduciary duties, responsibilities and obligations owed by Howat as a member of the committee to the fiduciaries, beneficiaries and distributees of the trust. As a result, the business interests of Robert Beckenstein suffered loss and depreciation.

On November 2, 2006, the defendants moved for a directed verdict as to, inter alia, count two. At the conclusion of the later charging conference, the court stated that it granted the defendants’ motion as to count two. The court reasoned that the plaintiffs failed to assert a cause of action in the second count that was separate and distinct from the first cause of action. The court determined that counts one and two therefore should not be charged separately to the jury.

Although the parties argue the plaintiffs’ claim in terms of the court’s directing a verdict, the court, in substance, did not direct a verdict but, rather, declined to submit count two to the jury. The substance of the plaintiffs’ claim is that the court improperly construed the pleadings in determining that count two was duplicative of count one. “Construction of the effect of pleadings is a question of law and, as such, our review is plenary.” (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 476, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008).

On appeal, the plaintiffs argue that the second count was not duplicative of the first and that, therefore, the court improperly concluded that count two was duplica-tive of count one. The plaintiffs contend that despite the exculpatory clause in § 10 (c) of the trust, General Statutes § 45a-541i (b) imposes a statutory duty of reasonable care on trust agents, such as Howat. The plaintiffs contend that, unlike the first count, the second count alleged a cause of action for a breach of this duty of reasonable care, in accordance with § 45a-541i (b). We disagree.

The second count did not allege a theory of recovery distinct from that alleged in the first count. The second count explicitly referred neither to § 45a-541i (b) nor to any mental element other than gross negligence or wilful misconduct, which elements were incorporated by reference from the first count. See Pettit v. Hampton & Beech, Inc., 101 Conn. App. 502, 511, 922 A.2d 300 (2007). Additionally, the second count did not allege a breach of a duty of reasonable care. With respect to count two, the plaintiffs made no reference in their request to charge or in the memorandum of law in support of their request to charge to a duty of reasonable care or to § 45a-541i. The second count of the complaint simply incorporated the allegations in the first count — that Howat, by gross negligence or wilful misconduct, breached his duties under the trust. Both counts alleged the same violations of those duties. The additional language in count two did not add anything of significance. Accordingly, the court did not improperly remove count two from the consideration of the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The revised complaint named Reid & Riege, P.C., Andrew J. Howat, Arthur G. Beckenstein and Seymour L. Plaster as defendants. The claims against Arthur Beckenstein and Plaster were withdrawn prior to trial. Accordingly, we refer to Reid & Riege, P.C., and Howat as the defendants.

       A clause of § 10 (c) of the trust document provides that the members of the committee shall not be liable for actions taken or omitted in accordance with § 10 (c).

       The motion to amend sought to amend the revised complaint in several respects. It sought to remove five counts of the complaint, all of which were directed at the then defendant Arthur Beckenstein. There was no objection to this portion of the request. It also sought to add Bomhorst as a plaintiff, to which there was no objection. It sought to add allegations to count one that (1) the committee had a duty to monitor Robert Beckenstein’s condition and (2) the trust, by assignment, was the owner and holder of all interest in the Beckenstein business entities. The defendants objected to the addition of these allegations, and the court sustained the objections. On appeal, the plaintiffs contest the denial of their motion to amend with respect to the duty to monitor but not with respect to the assignment.

       The substitute amended revised complaint did not contain any of the proposed amendments that the court previously had not allowed.

       As noted previously, count one originally named Howat, Arthur Beckenstein and Plaster as defendants. The claims against Beckenstein and Plaster were resolved prior to trial.

       Nothing in the trust document explicitly establishes a duty to monitor.

       The plaintiffs argue that if the proposed amendments should be deemed to constitute an entirely new cause of action, then the defendants’ argument in their partial objection that the “duty to monitor” claim was legally insufficient is improper because such a claim properly is considered by means of a motion to strike. The plaintiffs argue that this argument of the defendants cannot serve as a legitimate ground for denying the proposed amendment. We agree that requests to amend ought not be denied because of the claimed insufficiency of the proposed amended complaint. See Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256, 905 A.2d 1165 (2006) (“The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike, rather than an objection to a motion to amend. See Practice Book § 10-39.”).
      There is no indication, however, that the court denied the request to amend because of the sufficiency of the proposed amendments. The court stated that “the defendants would be prejudiced by the proposed amendments as the scheduled trial date of September 19, 2006, would not allow the defendants to file and [to] have heard any pleadings addressing the legal sufficiency of the proposed amendments.” The court reasonably could have concluded that granting the motion to amend would have delayed the trial and prejudiced the defendants not because the proposed amendment necessarily was insufficient but because time was needed to contest the issue.
      The plaintiffs further note that on June 1, 2006, the court permitted the late disclosure of their expert witness, Robert Siegel. The plaintiffs focus on the court’s statement in support of its ruling that the three and one-half months left before jury selection was to begin on September 19, 2006 “is a significant period of time as litigation goes.” They contend that the court should have applied a similar analysis when ruling on the request to amend and properly should have concluded that there was sufficient time for the defendants to challenge the legal sufficiency of the new allegations in the proposed amendments.
      In permitting the late disclosure of the plaintiffs’ expert, the court expressed concern as to whether the remaining three and one-half months before the commencement of trial constituted sufficient time. The court noted that it would permit the late disclosure provided that Siegel would be made available for deposition in the following two weeks and stated that it might need to reconsider allowing him to testily if the defendants met insurmountable obstacles in deposing him or procuring their own expert.
      In ruling on both motions, the court expressed concern about the relatively short length of time before trial was set to commence. Dealing with a party’s late disclosure of an expert witness may, in the trial court’s discretion, consume less time than dealing with an amended pleading that may include both legal wrangling and discovery procedures.
      Additionally, the court’s ruling regarding Siegel’s disclosure was made on June 1, 2006. Although the request to amend was filed on June 21, 2006, the court ruled on it on July 31, 2006. On July 7, 2006, the court issued a trial preparation order that required the parties to submit a written list of witnesses and exhibits by August 31, 2006, and required them to submit proposed requests to charge and objections to exhibits by September 8, 2006. In the exercise of its discretion, the court was free to determine that the late disclosure of Siegel would not prejudice the defendants, but that permitting the plaintiffs to amend their complaint would not provide the defendants with enough time to address, among other things, the legal sufficiency of the proposed amendments.

       The court’s ruling was not inconsistent with the language of Cook v. Lawlor, 139 Conn. 68, 90 A.2d 164 (1952), to the effect that proper amendments are to be allowed unless, in the court’s discretion, a sound reason exists for disallowing them.

       We need not decide whether General Statutes § 45a-541i (b) is applicable to the present case or whether the exoneration clause is otherwise unenforceable.

       This is especially so in light of the court’s repeated instructions that Howat would be liable for his conduct as a member of the committee if his actions in violation of his fiduciary duties constituted gross negligence or wilful misconduct. Whatever activity Howat performed with respect to § 10 (c) was performed in his capacity as a committee member, and the court charged that Howat could be found liable as a committee member for actions that constituted gross negligence or wilful misconduct.
      Although it is far from persuasive in itself, the court gave no instructions specifically stating that Howat could not be liable for gross negligence in the performance of his duties under § 10 (c). A thrust of the portion of the court’s instruction narrowly at issue was to stress to the jury that the exoneration clause was unenforceable. As elsewhere instructed at length, the general standard included gross negligence.

       Count two incorporated all of count one and added three additional paragraphs. These paragraphs referred to Howat’s breaches of fiduciary duties without referring to a mental element. The forty-six paragraphs that comprised count one and which were incorporated into count two referred to the “gross negligence and wilful misconduct” of Howat as a member of the committee, which allegedly caused the business interests of Robert Beckenstein to suffer loss and depreciation.

       General Statutes § 45a-541i (b) provides: “In performing a delegated function, an agent owes a duty to the trustee and to the trust to exercise reasonable care to comply with the scope and terms of the delegation and to exercise the delegated function with reasonable care, skill and caution. An attempted exoneration of the agent from liability for failure to meet such a duty is contrary to public policy and void.”

       The plaintiffs did not claim in their operative complaint a statutory cause of action on the basis of General Statutes § 45a-541i.

       At trial, the plaintiffs seemed to suggest a distinction between the counts in that count one concerned Howat’s activity under the trust as a member of the committee and count two concerned conduct “outside the trust.” This rationale was not presented on appeal. The position advanced on appeal, which was that a fiduciary duty is governed solely by the reasonable care provisions of General Statutes § 45a-541i and independently of the trust document, was not clearly presented at trial.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    JOHN SEQUENZIA ET AL. v. GUERRIERI MASONRY, INC., ET AL.
    (AC 29308)
    Flynn, C. J., and DiPentima and Dupont, Js.
    Argued October 22, 2008
    officially released March 31, 2009

      William J. Melley III, for the appellant (named defendant).

      Gregory M. Cantwell, for the appellee (named plaintiff).
   Opinion

FLYNN, C. J.

The defendant Guerrieri Masonry, Inc., appeals from the judgment of the trial court, following a jury verdict, in favor of the plaintiff John Sequenzia. Although the defendant’s brief primarily focuses on the findings of the court as set forth in the court’s postver-dict memorandum of decision on the defendant’s post-trial motions, rather than focusing on the merits of the defendant’s motion for judgment notwithstanding the verdict and the defendant’s motion for a new trial, and is inadequate in that regard, we do agree with its claim that it was entitled to a new trial after the court charged the jury on a specification of common-law negligence for which there had been no evidence. Accordingly, we reverse the judgment of the trial court.

The following facts reasonably could have been found by the jury. The town of Glastonbury contracted with Hodess Building Company (Hodess) to construct an addition to an assisted living building. Hodess, which acted as the general contractor for the job, entered into a subcontract with the defendant to perform masonry work on the site. On the morning of November 14, 2003, the plaintiff arrived on site to deliver a truckload of bricks. It was a windy day. A Hodess employee pointed to the area where the plaintiff should deliver the bricks, and the plaintiff moved his truck to that area. Shortly thereafter, Corrado Guerrieri, the owner of the defendant, arrived on site and, seeing that there were power lines nearby, suggested that the plaintiff move his truck because it was too close to the power lines. Despite knowing that there was a sign posted on his truck that stated “look up keep boom 15 feet from power lines,” the plaintiff responded that he could make the delivery from that location. Using a boom attached to the truck, which was operated through a control box, the plaintiff began to remove the pallets of bricks from the truck, but, during the process, the boom came into contact with the power lines, shocking him and causing very serious injuries. Guemeri immediately grabbed the control box and pulled it from the plaintiffs hand. There was evidence that the plaintiffs injuries were painful, disfiguring and disabling.

The plaintiff brought this action against Hodess and the defendant. Prior to trial, Hodess and the plaintiff reached a settlement, and the plaintiff withdrew its claims against Hodess. The case between the plaintiff and the defendant proceeded to be tried on a single count of common-law negligence. The court charged the jury on two specifications of negligence, as alleged in the complaint, one of which was a failure to warn. The jury returned a verdict in favor of the plaintiff, finding the defendant to be 30 percent negligent, Hodess 25 percent negligent and the plaintiff 45 percent negligent. Following the jury’s verdict, the defendant renewed its earlier motion for a directed verdict and filed motions for judgment notwithstanding the verdict and for a new trial, arguing, in part, that the court improperly had charged the jury on the failure to warn specification of common-law negligence and that there was no evidence to support such a charge. The motions were denied. After reviewing the record and the briefs in this case, we have determined, in light of what has been raised before us on appeal, that the dispositive issue is whether the defendant was entitled to a new trial after the court conceded that it improperly had charged the jury on a specification of negligence for which there was no evidence. Agreeing with the court that there was no evidence to support the charge, we conclude that the defendant is entitled to a new trial.

“[0]ur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. ... As a reviewing court considering the trial court’s decision granting or denying a motion for a new trial, we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she . . . personally [has] presided.” (Citation omitted; internal quotation marks omitted.) Munson v. United Technologies Corp., 28 Conn. App. 184, 194-95, 609 A.2d 1066 (1992).

In the defendant’s motion for a new trial, it claimed, among other things, that the court improperly had charged the jury on the failure to warn specification of negligence. The defendant argued in relevant part: “The plaintiff testified at length regarding his knowledge of the existence of the power lines near the site where he was to work. The plaintiff knew that striking the power lines with his truck would cause severe injury. ... It is abundantly clear that the plaintiff knew and appreciated the danger. Where the plaintiffs own testimony established his awareness of the precise danger that caused his injuries and his testimony was uncontroverted, the court erred in submitting to the jury the issue of whether the defendant had a duty to warn the plaintiff.” In its postverdict memorandum of decision, the court explained: “Regarding the failure of the court to exclude from its charge to the jury the issue of the duty to warn . . . the court did err in charging the jury regarding this issue because there was no evidence to support such a claim. However, since this was not the sole basis of the plaintiffs claim, and the court charged on alternative grounds on which the defendant could be held hable, this does not warrant a new trial.” We conclude that the court improperly denied the defendant’s motion for a new trial on this ground.

The plaintiffs complaint sounded in one cause of action, common-law negligence. Although there were submitted to the jury two different specifications of negligent conduct, both of these were in support of that single cause of action. See Green v. H.N.S. Management Co., 91 Conn. App. 751, 764, 881 A.2d 1072 (2005) (where more than one specification of negligence pleaded, defendant still entitled to new trial where court charged on specification not supported by evidence), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006).

In his complaint, the plaintiff had alleged, in part, that the defendant “had control and knowledge of the area of the site where the [pjlaintiff was injured yet failed to warn the [p]laintiff of the danger of using a boom under the conditions then and there existing at the site . . . .” Although the plaintiffs memory of the day of his accident was impaired, there were certain things that he did remember. The plaintiff testified at trial that on the day of the accident, he waited outside of the gate for someone to let him onto the site and that it was a windy day. He also remembered that after getting onto the site, he waited for Guerrieri to arrive. The plaintiff testified that he was aware of the sticker on his vehicle, which stated that the boom must be kept fifteen feet from power lines, but that he routinely made deliveries within fifteen feet of power lines because the wires “are right there” at the work sites. He stated that it was his responsibility to park the truck and to offload the product and that he had nearly twenty years of experience, making as many as twelve deliveries in one day. He averaged approximately three to five deliveries on a normal day, however, which meant that he made 1000 or more deliveries each year for almost twenty years using this same vehicle or a vehicle very similar to it. He further testified that he had a great deal of experience with the vehicle that he operated on the day of the accident, and, when asked by defense counsel: “So when it came time to operate — not only the vehicle on the roadway, but the vehicle in terms of what it was designed to do, that is unload bricks at construction sites, is it fair to say that you had a great deal of knowledge, experience and expertise,” he responded, “one hundred percent.” The plaintiff testified that he worked in all types of weather conditions, that he took those conditions into consideration when he made his deliveries and that he would not expect others to tell him about the weather conditions or what effect they might have on his ability to do his job. He testified that he knew the power lines were “adjacent to the public road,” running right along this construction site and that he could see them while he was unloading the bricks. He unloaded between five and twelve pallets of bricks without incident before the accident occurred. He also testified that it was common sense that if he were holding onto something metal and it came into contact with power lines, he would get hurt and that that is what happened here. He stated that he was the one holding the box, operating the boom and in control of the “whole operation.”

“The law is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover. . . . Morin v. Bell Court Condominium Assn., 223 Conn. 323, 327, 612 A.2d 1197 (1992). The duty to warn, however, does not arise if an invitee already has actual knowledge of the dangerous condition. Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308 (1994).” (Internal quotation marks omitted.) Gargano v. Azpiri, 110 Conn. App. 502, 508, 955 A.2d 593 (2008).

In Gargano, the plaintiff, who had been injured falling through a hole in a floor and was pursuing a negligence claim that included the specification of failure to warn, had testified during her deposition that she was aware of the large opening in the floor and that she had been told that the opening was for a spiral staircase. Id. She also had testified that she could see the opening in the floor because of a generator in use upstairs, which produced sufficient light. Id. In short, there was no question that the plaintiff had testified that she knew the hole was there. On the basis of these facts, this court agreed with the trial court’s conclusion that, as a matter of law, the defendant did not owe to the plaintiff a legal duty to warn because the condition was obvious and the plaintiff clearly had knowledge of its existence. Id., 509.

In Green v. H.N.S. Management Co., supra, 91 Conn. App. 757, this court considered whether it was reversible error for the trial court to have charged the jury on the duty to warn specification of negligence when there had been no evidence that a bus driver had notice of an alleged dangerous condition caused by snow and ice on the aisle of the bus, which would have given rise to a duty to warn the plaintiff. Although the plaintiff asserted that the court’s improper inclusion of the duty to warn specification of negligence was not reversible error because other pleaded specifications of negligence could have been found by the jury, we concluded that the defendant was entitled to a new trial because the jury could have based its verdict on the unsupported specification of negligence, i.e., the duty to warn, which was not supported by the evidence. Id., 764.

A review of the record in the present case along with our relevant case law leads us to the conclusion that the court improperly denied the defendant’s motion for a new trial after charging on an unsupported specification of negligence, the duty to warn. The testimony of the plaintiff clearly demonstrated that he had knowledge of the dangerous condition and that the danger was open and obvious, thus eliminating any alleged duty to warn on the part of the defendant. Absent such a duty to warn, it was improper for the court to submit to the jury that specification of negligence. “[T]he trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. . . . Accordingly, the right to a jury instruction is limited to those theories for which there is any foundation in the evidence.” (Internal quotation marks omitted.) Bostic v. Soucy, 82 Conn. App. 356, 359, 844 A.2d 878, cert. denied, 269 Conn. 912, 852 A.2d 738 (2004). “It is error to submit a specification of negligence to the jury in respect to which no evidence has been offered.” Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977). Because it is possible that the jury could have based its verdict on a specification of negligence that was not supported by the evidence, we agree with the defendant’s claim that it is entitled to a new trial.

The judgment is reversed and the case is remanded for a new trial or such other further proceedings as may be warranted not inconsistent with this opinion.

In this opinion the other judges concurred.

       Initially, John Sequenzia brought this action against Guerrieri Masonry, Inc., and Hodess Building Company (Hodess). Hodess filed a cross complaint against Guerrieri Masonry, Inc. Prior to trial, Hodess and John Sequenzia reached a settlement, and John Sequenzia withdrew his claim against Hodess. Hodess also withdrew its cross complaint against Guerrieri Masonry, Inc. Diane M. Sequenzia also had brought claims for loss of consortium against Guerrieri Masonry, Inc., and Hodess; a nonsuit, however, was entered on those claims. Wethersfield Building Supply, the employer of John Sequenzia, intervened in the case but did not participate in the trial because it had reached an agreement with John Sequenzia. Accordingly, the only parties remaining in the case are John Sequenzia and Guerrieri Masonry, Inc., to whom we refer in this opinion as the plaintiff and the defendant, respectively.

       The complaint originally alleged four specifications of negligence. By agreement, two of those specifications were charged out. This left two specifications intact: the failure to warn and an allegation that the defendant directed the plaintiff to operate his truck in an area that did not provide adequate clearance or protection.

       Although Hodess was a released or settled parly, the court charged the jury as to the claims against Hodess, explaining that it was doing so in accordance with General Statutes § 52-572h. The propriety of this is not before us on appeal.

       The defendant also filed a motion to reduce the verdict, which the court granted. That motion is not relevant to the issues on appeal.

       In addition to the plaintiffs testimony, Guemeri testified that he specifically asked the plaintiff to move his truck farther away from the power lines to ensure his safety, but that the plaintiff refused. The court credited this testimony in its postverdict memorandum of decision.


author: DiPENTIMA, J.

text:
    JEFFREY RIDDICK v. COMMISSIONER OF CORRECTION
    (AC 27975)
    DiPentima, Robinson and Sehaller, Js.

      Argued December 8, 2008
    officially released March 31, 2009

      Deborah G. Stevenson, special public defender, for the appellant (petitioner).

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

DiPENTIMA, J.

The petitioner, Jeffrey Riddick, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by denying his petition for certification to appeal from the dismissal of his habeas petition, (2) improperly granted habeas counsel's motion to withdraw, (3) improperly dismissed the habeas petition without an evidentiary hearing and (4) violated the petitioner’s right to due process by waiting two years before ruling on the petition for certification to appeal from the dismissal of the habeas petition. We conclude that the court did not abuse its discretion in denying the petition for certification and, accordingly, dismiss the petitioner’s appeal.

The petitioner was convicted of murder in violation of General Statutes § 53a-54a and risk of injury to a child in violation of General Statutes § 53-21 (1). The trial court sentenced the petitioner to a term of incarceration of sixty-three years. This court upheld the petitioner’s conviction in State v. Riddick, 61 Com. App. 275, 763 A.2d 1062, cert. denied, 255 Com. 946, 769 A.2d 61 (2001).

The petitioner, acting pro se, commenced the present action, setting forth a claim of ineffective assistance of trial counsel, attorney Jayne Remedy. In August, 2001, attorney Margaret P. Levy entered an appearance on behalf of the petitioner. On October 15, 2003, the petitioner filed an amended petition for a writ of habeas corpus, alleging a denial of due process and ineffective assistance of counsel.

On December 10, 2003, pursuant to Practice Book § 23-41, Levy filed a notice of motion for leave to withdraw, a motion for leave to withdraw and a memorandum of law in support of the motion for leave to withdraw. In her motion, Levy concluded that the petitioner’s claims were “factually and legally wholly frivolous” and therefore requested to withdraw her appearance. By way of a letter dated December 12, 2003, the clerk of the Superior Court informed the petitioner of Levy’s motion and indicated that any objection was required in writing by January 12, 2004. On January 9, 2004, the petitioner filed his written objection to Levy’s motion.

The habeas court issued a memorandum of decision on February 24, 2004, granting Levy’s motion to withdraw her appearance. The court found that both the due process claim and the ineffective assistance of trial counsel claim were frivolous. The court also dismissed the petition for a writ of habeas corpus pursuant to Practice Book § 23-42. On March 11,2004, the petitioner filed a petition for certification to appeal, which the court denied on August 4, 2006. This appeal followed.

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

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Coleman v. Commissioner of Correction, 108 Conn. App. 836, 838, 949 A.2d 536, cert. denied, 289 Conn. 913, 957 A.2d 876 (2008); Holmes v. Commissioner of Correction, 107 Conn. App. 662, 664-65, 946 A.2d 291, cert. denied, 288 Conn. 905, 953 A.2d 649 (2008).

I

The petitioner first claims that the court abused its discretion in denying his petition for certification to appeal as to his claim that the court improperly granted Levy’s motion for permission to withdraw. Specifically, he argues that (1) the court failed to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), (2) Levy failed to comply with the requirements of Anders and (3) the court improperly granted the motion to withdraw when there were nonfrivolous issues before the court. We are not persuaded and conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The following additional facts are necessary for our discussion. In the amended petition for a writ of habeas corpus, the petitioner alleged that he was denied due process as a result of (1) the failure to accommodate his hearing impairment pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (2) his conviction being based on unreliable evidence and (3) actual innocence. Additionally, he claimed that he had received ineffective assistance of counsel as a result of Kennedy’s failure (1) to conduct a full and adequate investigation of the state’s case and his innocence, (2) to arrange for independent forensic testing of certain physical evidence, (3) to preserve the request that the trial court instruct the jury that it could consider the circumstances under which his statement to the police was taken and (4) to ensure that the petitioner be convicted only under the reasonable doubt standard.

In the memorandum of law in support of her motion to withdraw, Levy stated that she conducted a “conscientious investigation and examination” with respect to the claims set forth in the habeas petition. She spoke with two audiologists, who each stated that the assistive device provided to the petitioner at the criminal trial was appropriate. One of the audiologists indicated that the petitioner’s reading level may have caused his difficulty with the device used at the trial. After investigation, Levy learned that the petitioner’s department of correction file did not contain any educational records and that his high school records were two decades old as of the time of trial. Thus, these records would not provide accurate information pertaining to the petitioner’s reading ability at the trial. She also observed that this court had concluded, on direct appeal, that the petitioner’s claim that he was entitled to additional accommodations pursuant to 42 U.S.C. § 12101 et seq. was without merit. See State v. Riddick, supra, 61 Conn. App. 282-84.

Levy consulted with “a number of experienced criminal attorneys in Connecticut, including several with extensive experience in habeas corpus matters.” All of these attorneys agreed that the petitioner’s claims were wholly frivolous. Levy also spoke with Kennedy, who stated that the petitioner never provided her with an alibi or witness who could testify as to his whereabouts during the period from December 23 through 25, 1996. Additionally, the petitioner failed to provide Levy with any evidence in support of his claim of actual innocence.

Levy also spoke with Kennedy as to why no independent forensic testing had been done. Kennedy informed Levy that none of the test results connected the petitioner to the evidence, and, therefore, further testing would not have been helpful and could have been extremely harmful if damaging evidence linking the petitioner to the crimes had been uncovered.

In the petitioner’s objection to the motion to withdraw, he stated, inter alia, that certain inconsistencies as to when the victim died were relevant to his claim of actual innocence. He further stated that he learned that his department of education records were available and that a certain witness was “ready and willing to testify” that the victim was alive on the morning of December 25, 1996. The petitioner, however, failed to provide a copy of his educational records or the promised affidavit from his witness.

On February 24, 2004, the habeas court issued its memorandum of decision. It stated that it had reviewed the file, including both Levy’s memorandum of law and the petitioner’s objection. The court stated: “[Levy’s] memorandum of law contains numerous [citations] to the trial transcript that reveal that trial counsel did raise issues that the petitioner claims were not raised. It is also apparent from the file that the petitioner has never proffered an alibi, witness or any other evidence of actual innocence to any of his counsel. The petitioner complained in his amended petition that trial counsel was ineffective since she did not perform an independent investigation into certain evidence presented by the state. There was, however, no prejudice to the petitioner because the evidence in question did not connect the petitioner to the crime.” The court also concluded that the due process claim relating to his hearing impairment previously had been litigated and, therefore, was barred by the doctrine of res judicata.

Following the petitioner’s appeal, the respondent, the commissioner of correction, filed a motion requesting that the court articulate what comprised the file that it had reviewed in deciding the motion to withdraw. On March 27, 2008, the court issued its articulation, stating that although it had no independent recollection of the present case, its “normal procedure ... is to review all documents submitted by [the] petitioner’s counsel and [the] petitioner.” The court further noted that because there were transcription citations in Levy’s memorandum of law, the court ordinarily would obtain the transcript for review. The court also observed that it was “common practice to require counsel to submit specific transcripts, even when they are not referenced in the Anders brief.”

Before addressing the petitioner’s specific arguments, it will be helpful to set forth the legal principles regarding an Anders brief. In State v. Pascucci, 161 Conn. 382, 385-86, 288 A.2d 408 (1971), our Supreme Court stated: “[T]he United States Supreme Court in Anders v. California, [supra, 386 U.S. 738], outlined the procedure which it held was constitutionally required in such circumstances to assure to indigent defendants substantial equality and fair process on appeal. ... In the Anders case, the court said (pp. 744, 745): ‘The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. ... Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise thé court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel— then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned .... This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the Court to pursue all the more vigorously its own review because of the ready references not only to the record but also to the legal authorities as furnished it by counsel.’ ”

A

The petitioner first argues that the court failed to comply with the requirements of Anders v. California, supra, 386 U.S. 738. Specifically, he contends that the court failed to read the trial transcript. We conclude, however, that the record does not support the petitioner’s contention.

The court stated in its memorandum of decision that it had reviewed the file and noted the specific reference to the transcript citations contained in Levy’s memorandum of law. In its articulation, the court stated, several times, that its common practice in considering Anders motions was to review the transcript of the underlying criminal trial and request transcripts if counsel had failed to provide them. The petitioner takes the position that we should presume that the court did not read the transcripts. We note that generally “[a] judge is presumed to have performed his duty properly unless the contrary appears.” (Internal quotation marks omitted.) State v. Hoskie, 74 Conn. App. 663, 669, 813 A.2d 136, cert. denied, 263 Conn. 904, 819 A.2d 837 (2003). Additionally, the petitioner, as the plaintiff, bore the heavy burden of proof as to his entitlement to a writ of habeas corpus. See Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989). Simply put, we cannot conclude, on the basis of the record before us, that the court did not review the transcripts of the underlying criminal trial. Accordingly, the petitioner has failed to establish that the court abused its discretion in denying the petition for certification to appeal as to this argument.

B

The petitioner next argues that Levy failed to comply with the requirements of Anders v. California, supra, 386 U.S. 738, and that the court improperly granted the motion to withdraw when there were nonfrivolous issues before the court. We are not persuaded.

We have reviewed thoroughly the entire record before us. Levy’s memorandum of law in support of her motion to withdraw set forth a variety of potential claims of Kennedy’s ineffectiveness. Levy, however, demonstrated why the potential claims were frivolous in light of the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Contrary to the petitioner’s claim, Levy served as an active and conscientious advocate to the full extent of her professional responsibilities and obligations. See State v. Pascucci, supra, 161 Conn. 386.

After a careful review of the entire record and briefs, we conclude that the petitioner has not demonstrated that the issues he has raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further.

H

The petitioner next claims that the court abused its discretion in denying his petition for certification to appeal as to his claim that the court improperly dismissed the petition for a writ of habeas corpus without holding an evidentiary hearing. We are not persuaded by this claim.

After concluding that there were no nonfrivolous issues to be tried and granting the motion to withdraw, the court stated that it “dismissed the petition, pursuant to Practice Book § 23-42.” We note that Practice Book § 23-42 (a) provides in relevant part: “If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se. ...” (Emphasis added.) This subsection, therefore, provides an explicit exception to the general rule requiring an evidentiary hearing before a habeas petition may be dismissed. See Mercer v. Commissioner of Correction, 230 Conn. 88, 93, 644 A.2d 340 (1994).

In Freeney v. Commissioner of Correction, 51 Conn. App. 378, 380, 721 A.2d 571 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999), the habeas court granted the motion to withdraw and “sua sponte dismissed the habeas petition as frivolous.” With reference to Practice Book § 23-42, we rejected the petitioner’s claim that the court acted improperly. Id., 381-82; see also Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 693, 931 A.2d 348 (habeas court sua sponte dismissed habeas petition pursuant to Practice Book § 23-42), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); cf. Coleman v. Commissioner of Correction, 99 Conn. App. 310, 312-13, 913 A.2d 477 (habeas court permitted petitioner to proceed pro se rather than dismiss petition), cert. denied, 281 Conn. 924, 918 A.2d 275 (2007).

The court, pursuant to Practice Book § 23-42, properly dismissed the petition for a writ of habeas corpus without holding an evidentiary hearing. Accordingly, we conclude that the petitioner has not demonstrated that this issue is debatable among jurists of reason, that a court could resolve this issue differently or that the question raised deserves encouragement to proceed further. In short, the petitioner failed to demonstrate that the court abused its discretion by denying his petition for certification to appeal with respect to this issue.

Ill

The petitioner next claims that the court abused its discretion in denying his petition for certification to appeal as to his claim that his right to due process was violated as a result of the two year delay before the court ruled on the petition for certification to appeal from the dismissal of the habeas petition. Specifically, he argues that this delay denied him procedural and substantive due process rights pursuant to the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We decline to review this claim due to an inadequate brief.

The petitioner’s brief sets forth the basic facts regarding his claim, that the petition for certification was filed on March 11, 2004, and that the court did not deny it until August 4, 2006. He further states that the court offered no explanation for either the denial or the reasons for its denial. His argument consists of the following sentence: “The fact that the habeas court waited two years to act at all on the petitioner’s petition constitutes a violation of the petitioner’s procedural and substantive due process rights and requires reversal.”

“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . The petitioner has provided us with nothing more than conclusory assertions.” (Internal quotation marks omitted.) Ziemba v. Commissioner of Correction, 90 Conn. App. 70, 71, 875 A.2d 597, cert. denied, 276 Conn. 905, 884 A.2d 1029 (2005); see also Williams v. Commissioner of Correction, 90 Conn. App. 431, 438 n.2, 876 A.2d 1281 (2005). As the petitioner has provided only a conclusory assertion of a due process violation, we decline to consider this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

       As a result, we conclude that the petitioner’s claim that the court improperly failed to act on his request for new appointed counsel is moot. After the court determined that there were no nonfrivolous issues and granted the motion for counsel to withdraw, there would be no basis for the appointment of counsel.

       Prior to the commencement of the trial, the court provided the petitioner with two options for listening devices. State v. Riddick, supra, 61 Conn. App. 279-80. He selected the CART system. Id., 280. “CART is a computer assisted simultaneous transcription system. The [petitioner] was provided with a monitor on which he could read the transcription of everything that was said during the trial. The text of the transcription scrolled up the screen as the trial progressed.” Id.
      The petitioner had filed a request for additional equipment known as the Brauser system to work in conjunction with the CART system. Id. “A Brauser system would have allowed the [petitioner] to stop the scrolling text on his monitor at any time so that he could read more slowly. It also would have allowed him to back up and read text that already had scrolled past.” Id. The trial court carefully evaluated the efficacy of the CART system before it rejected the request for the Brauser system. Id., 280 n.4. The court also stated that it would make an effort to “keep the tempo of the testimony slow paced to be of maximum assistance to the [petitioner].” (Internal quotation marks omitted.) Id., 281 n.4. Finally, the court arranged for a signal that would prompt it to pause the proceedings and allow communications between the petitioner and Kennedy and would allow the petitioner to have any testimony read back to him. Id.

       The petitioner visited the victim on December 23,1996. State v. Riddick, supra, 61 Conn. App. 278. The police determined that he was the last person to see the victim alive and questioned him on December 25, 1996. Id. The officers obtained a confession from the petitioner at approximately 9:30 p.m. and placed him under arrest shortly before midnight. Id., 278-79. The petitioner has claimed that certain discrepancies existed as to the time of death of the victim.

         The petitioner refers to Practice Book § 43-36, which provides: “The presiding judge shall fully examine the briefs of counsel and of the defendant, and shall review the transcript of the trial. If, after such examination, the presiding judge concludes that the defendant’s appeal is wholly frivolous, such judge may grant counsel’s motion to withdraw and refuse to appoint new counsel. Before refusing to appoint new counsel, the presiding judge shall make a finding that the appeal is wholly frivolous and shall file a memorandum, setting forth the basis for this finding.” (Emphasis added.) We note, however, that chapter 43 is found in the “Procedure in Criminal Matters” portion of the Practice Book.
      Practice Book § 23-42 (a) provides: “If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se. If the petition is not dismissed, the judge ruling on the motion to withdraw as counsel shall not preside at any subsequent hearing on the merits of the case.” The express language requiring the court to review the transcript of the trial found in Practice Book § 43-36 is absent from Practice Book § 23-42. Chapter 23 is found in the “Procedure in Civil Matters” portion of the Practice Book. Furthermore, Practice Book §§ 23-21 through 23-42 address procedures specific to writs of habeas corpus.

       The facts of the present case distinguish it from Paulsen v. Manson, 193 Conn. 333, 476 A.2d 1057 (1984). In Paulsen, the attorney appointed to represent the petitioner on direct appeal failed to review the transcript of the plea proceeding or to submit it to the court. Id., 335, 338-39. A second attorney, appointed to review the brief of the first, also did not consider the transcript of the plea. Id., 336, 338-39. After observing that neither the attorneys nor the court had reviewed the plea transcript, our Supreme Court concluded that these omissions resulted in a failure to comply with the constitutionally mandated requirements as set forth in Anders v. California, supra, 386 U.S. 738. Contrary to the facts of Paulsen, in which it was undisputed that both the appointed attorneys and the court had failed to review the relevant transcript, in the present case it would appear that the court did in fact consider the transcript of the underlying criminal proceeding.

       “Under [the Strickland] test, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both deficient performance and actual prejudice. 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.” (Internal quotation marks omitted.) Romero v. Commissioner of Correction, 112 Conn. App. 305, 308-309 n.l, 962 A.2d 894, cert. denied, 290 Conn. 921, 966 A.2d 236 (2009).

       We note that there is nothing in the record to explain why the court did not act on the petition for certification to appeal for more than two years.


author: PER CURIAM.

text:
    TRACY A. MARLOW v. SARAH STARKWEATHER
    (AC 29065)
    DiPentima, Robinson and Schaller, Js.
    Argued December 8, 2008
    officially released March 31, 2009

      Tracy A. Marlow, pro se, the appellant (plaintiff).

      Ronald E. Kowalski II, with whom, on the brief, was Keenan M. McMahon, for the appellee (defendant).

      Jocelyn B. Hurwitz, for the minor children.
   Opinion

PER CURIAM.

The plaintiff, Tracy A. Marlow, appeals from the judgment rendered in favor of the defendant, Sarah Starkweather, on her postjudgment motion preventing the plaintiff from displaying certain photographs in any residence in which the parties’ children reside or visit. On appeal, the plaintiff raises five issues relating to this judgment. We affirm the judgment of the trial court.

The parties married on April 18,1982, and have three children bom of the marriage. On November 17, 2004, the court, Abery-Wetstone, J., dissolved the marriage and issued various financial orders. The court found that the custody and visitation agreement of the parties was in the best interests of the minor children and incorporated it by reference. On December 15, 2004, the defendant filed a motion to prohibit the plaintiff from storing or keeping guns in his home. At the time of this motion, the plaintiff had physical custody of the oldest child, and the two other children would visit. The motion further sought an order prohibiting the plaintiff from hanging photographs of nude women on the walls of any home in which the children resided or visited with him.

The court, Black, J., granted the motion with respect to the issue of having guns in the home and stated that it needed a “picture of [the] paintings to determine appropriateness.” On April 25,2005, the parties reached an agreement that was entered as an order of the court on the same date. This agreement provided in relevant part: “The parties agree that neither party will permit or display any photographs, pictures or art of naked [women] on the walls or furnishings of any residence in which the children reside or visit with either parent.”

On August 21, 2006, the plaintiff moved to vacate, nunc pro tunc, the order with respect to the issue of the display of photographs, pictures or art of naked women on the ground that it violated his first amendment rights, as well as “other laws.” The court, Tierney, J., granted this motion on June 6, 2007.

On April 30, 2007, the defendant filed a motion for an order that the plaintiff “not display, in any residence in which the children reside or visit with him, four photographs . . . one [of which] is the defendant in the nude . . . [and] the remaining three photographs are of the plaintiffs first ex-wife and former girlfriends.” After conducting an evidentiary hearing, the court, Tier-ney, J., granted the defendant’s motion on July 17,2007. This appeal followed.

The plaintiff has set forth a variety of claims with respect to the court’s July 17, 2007 order. He has failed, however, to set forth the applicable standard of review for any of these claims. See Practice Book § 67-4 (d). Furthermore, he has failed to cite any case law, statute or treatise for four of his claims. For the remaining claim alleging that the court’s order constitutes a prior restraint, he merely has set forth the definition of that term and certain general legal principles. He failed to apply these general principles to the facts of the present case. In short, he has failed to brief any of his claims adequately.

Our Supreme Court has stated that appellate courts “are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004); see also Wilson v. Jefferson, 98 Conn. App. 147, 166, 908 A.2d 13 (2006). Moreover, we have explained: “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Elia v. Elia, 99 Conn. App. 829, 838, 916 A.2d 845 (2007); see also Jackson v. Water Pollution Control Authority, 278 Conn. 692, 711, 900 A.2d 498 (2006); Verderame v. Trinity Estates Development Corp., 92 Conn. App. 230, 232, 883 A.2d 1255 (2005). The plaintiffs brief is devoid of any legal analysis with respect to his arguably innovative constitutional claims; accordingly, we cannot reach the merits of his claims and deem them abandoned.

We are mindful of the plaintiffs pro se status, both before the trial court and on appeal. “This court has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party. . . . Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. . . . For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn. App. 293, 296, 933 A.2d 728 (2007); Wasilewski v. Machuga, 92 Conn. App. 341, 342, 885 A.2d 216 (2005); Emerick v. Kuhn, 52 Conn. App. 724, 756 n.22, 737 A.2d 456 (“[e]ven pro se litigants, however, must provide this court with citations to rules of law that support their arguments. See Cersosimo v. Cersosimo, 188 Conn. 385, 394, 449 A.2d 1026 [1982]; Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 520, 370 A.2d 1306 [1976]; Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 [1929]”), cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999).

The judgment is affirmed.

       The statement of issues, as set forth in the plaintiffs brief, provides: “(1) Should the Superior Court provide injunctive relief to parties that are in agreement? (2) Should the Court use its injunctive powers to control a former spouse on behalf of the other former spouse? (3) Should the Superior Court issue an Order effectively terminating a parental visitation without the participation of the Children and/or the Children’s attorney? (4) Should the Superior Court issue an order that restrains the Free Speech Rights of a citizen prior to the citizen exercising those Free Speech Rights? (5) If the Appellate Court decides to vacate the Order, should the Order be vacated Nunc Pro Tunc?”

       See footnote 1.

       We note, however, that the trial court found that the plaintiff had received his law degree and had practiced law for several years. The plaintiff “testified [that] he gave up his Connecticut law license sometime between November, 2002, and June, 2003, to avoid paying the $450 yearly occupational tax and client security fund fee.”


text:
    MARIO SAUNDERS v. COMMISSIONER OF CORRECTION
    (AC 29313)
    Bishop, DiPentima and Peters, Js.
    Argued February 9
    officially released March 31, 2009

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

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, John J. Davenport, senior assistant state’s attorney, and Robin Pavia, former assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Mario Saunders, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, he argues that the court improperly concluded that he was not denied the effective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner pleaded guilty, pursuant to the Alford doctrine, to three counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1), three counts of sexual assault in the first degree in violation of § 53a-70 (a) (1), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-49. The trial court sentenced the petitioner to forty years incarceration, suspended after nineteen years, and twenty years of probation.

On April 21, 2006, the petitioner filed an amended petition for a writ of habeas corpus, alleging the ineffective assistance of his trial counsel, attorney Jayne Kennedy. The petition set forth various claims with respect to the alleged ineffectiveness of Kennedy. On October 1, 2007, the court issued a memorandum of decision denying the habeas petition. The court granted the petition for certification to appeal, and this appeal followed.

On appeal, the petitioner’s sole claim is that Kennedy’s performance with respect to DNA evidence was deficient and caused him prejudice. Specifically, he argues that Kennedy failed to investigate sufficiently or to challenge the collection of DNA evidence, and therefore he was unable to present a defense of misiden-tification. The respondent, the commissioner of correction, argues that our Supreme Court’s recent decision in Johnson v. Commissioner of Correction, 285 Conn. 556, 941 A.2d 248 (2008), controls our resolution of the present case. We agree with the respondent.

“[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] 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 requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. ... In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Faraday v. Commissioner of Correction, 107 Conn. App. 769, 773, 946 A.2d 891 (2008); see also Dawson v. Commissioner of Correction, 106 Conn. App. 614, 623-24, 942 A.2d 519, cert. denied, 287 Conn. 909, 950 A.2d 1285 (2008).

In Johnson v. Commissioner of Correction, supra, 285 Conn. 581, the petitioner claimed that his trial counsel had failed to substantiate the DNA test results or to request a second test of the DNA samples by his own expert and instead improperly accepted the state’s conclusions. At the outset of its analysis, our Supreme Court observed: “We are mindful of the principle that, although it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility. ... In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities. . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.” (Internal quotation marks omitted.) Id., 583-84. It further reasoned that “the petitioner failed to present evidence that takes his claim out of the realm of speculation and makes it a demonstrable reality. The claim that his trial counsel should have verified the DNA test results and the testimonial statements taken by the state is not based on evidence that the DNA testing was flawed, that the testimonial statements lacked credibility or that the state overlooked evidence that would have exonerated the petitioner but appears to be grounded in speculation that, if the petitioner’s counsel had conducted an additional and possibly redundant investigation, he might have discovered exonerating evidence.” (Emphasis in original.) Id., 584.

In the present case, the petitioner failed to present any evidence before the court that the DNA evidence was flawed in its collection, testing or analysis. Furthermore, he did not establish that had Kennedy conducted an investigation into the state’s DNA evidence, he would have not pleaded guilty. The petitioner’s argument on appeal appears to be based on conjecture and speculation. Guided by our Supreme Court’s reasoning in Johnson v. Commissioner, supra, 285 Conn. 556, we conclude that the petitioner has failed to sustain his burden with respect to his petition for a writ of habeas corpus.

The judgment is affirmed.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 111 Conn. App. 405, 406-407 n.1, 959 A.2d 646 (2008).

       These charges arose from five separate files. The state nolled the charges contained in a sixth file after the DNA evidence excluded the petitioner as the perpetrator in that case.

       The court rendered its judgment on September 26, 2007, and stated that it subsequently would issue a memorandum of decision.