author: GRUENDEL, J. FLYNN, J.,

text:
    ROBERT J. BARNABEI CONTRACTING, LLC v. GREATER HARTFORD JEWISH COMMUNITY CENTER, INC., ET AL.
    (AC 31679)
    Gruendel, Harper and Flynn, Js.

      Argued September 13, 2010
    officially released March 29, 2011

      Terence D. Mariani, with whom, on the brief, was Robert P. Hanahan, for the appellant (plaintiff).

      Paul S. Tagatac, for the appellee (defendant Aspinet Construction Company).
   Opinion

GRUENDEL, J.

The plaintiff, Robert J. Bamabei Contracting, LLC, appeals from the judgment of the trial court rendered in accordance with a report filed by an attorney fact finder (fact finder). The court rendered judgment awarding the plaintiff $292 in compensatory damages pursuant to a subcontract agreement (agreement) with the defendant Aspinet Constmction Company. On appeal, the plaintiff claims that the court improperly overmled its objection to acceptance of the fact finder’s report because the report lacks factual justification and is otherwise incomplete. The plaintiff further claims, for the first time on appeal, that the defendant failed to comply with § 7 (f) of the agreement. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. In early 2004, the Greater Hartford Jewish Community Center, Inc. (community center), retained the defendant as the general contractor for a renovation project (project) at the community center’s West Hartford location. On March 19, 2004, the plaintiff and the defendant executed the agreement, whereby the plaintiff was to perform subsurface constmction services for the project for a total price of $37,960. The dispositive provisions of the agreement are as follows:

“Section 4. ... If at any time there shall be evidence of any hen or claim for which, if established, [the defendant] or the [community center] might be or become hable and which is chargeable to [the plaintiff], [the defendant] shah have the right to retain out of any payment due or to become due by [the defendant] to [the plaintiff] an amount sufficient to indemnify [the defendant] and [the community center] against such hen or claim ....
* * *
“Section 7. The following conditions are hereby made a part of this [agreement . . .
“(d) The [plaintiff] agrees ... to comply with ah [fjederal, [s]tate, [m]unicipal and local laws, ordinances, codes and regulations governing and to pay ah costs and expenses required thereby ....
* H= *
“Section 8. (a) [The plaintiff] shah submit in writing to [the defendant] ah claims for adjustment in the [agreement] price ... for like claims by [the defendant] against [the community center — namely, through a written change order]. . . . [The defendant’s] liability to [the plaintiff] for such claims is limited to any adjustment which shah be made by [the community center] to [the defendant’s] contract on account of [the plaintiffs] claim.”

On the same day that the parties executed the agreement, the defendant approached a third party, George Toreho Engineers, P.C. (Toreho), to perform engineering services in connection with the project, as such services were beyond the plaintiffs expertise. The defendant retained Toreho to ensure that the plaintiffs work complied with apphcable specifications of the West Hartford building code (building code), including, specifically, § 1816.13. After the plaintiff commenced work on the project, the defendant submitted a written change order on May 17, 2004, by which the agreement price was increased from $37,960 to $41,275. On June 11, 2004, the plaintiff submitted an invoice to the defendant in the amount of $51,200, although it is undisputed that the plaintiff failed to submit a written change order pursuant to § 8 (a) of the agreement. Despite the plaintiffs noncompliance with § 8 (a), the defendant submitted the plaintiffs invoice to the community center for approval, which the community center eventually declined to pay due to the lack of supporting documentation. On August 3, 2004, the defendant submitted a second written change order backcharging the agreement price by $16,435.50, the cost of Torello’s services on the project, pursuant to § 7 (d), thereby reducing the plaintiffs total compensation to $24,839.50. The defendant then refused to pay the plaintiff $9925, the difference between the agreement price of $41,275 and the plaintiffs invoice of $51,200, claiming that it was not liable for this amount pursuant to § 8 (a) of the agreement. Additionally, the defendant maintained that the plaintiff was responsible for the expenses associated with Torello’s work pursuant to § 7 (d) of the agreement, as those services were required by the building code.

On July 11, 2005, the plaintiff commenced this action claiming, inter alia, breach of contract by the defendant. In support of its claim, the plaintiff alleged that the defendant was responsible for the full invoice amount of $51,200 and further that the defendant incorrectly backcharged the agreement price by the cost of Tor-ello’s services. In response, the defendant countered that the plaintiff was not entitled to the invoice amount of $51,200 because the community center never approved this adjustment to the agreement price. The defendant also argued that because the plaintiff already had been paid $24,547.50, and because the agreement price of $41,275 was properly reduced by $16,435.50, the cost of Torello’s services, the plaintiff was entitled only to $292. The matter was tried before the fact finder on June 18, 2007, and a report was submitted by the fact finder on November 13, 2007. In his report, the fact finder specifically found that the defendant was not contractually hable for the invoice amount of $51,200, as the community center had not approved this upward adjustment in the agreement price as required by § 8 (a). As to the plaintiffs claim regarding the back-charge for Torello’s services, the fact finder found that “[§] 7 (d) of the [agreement] makes [the] plaintiff hable for the costs of code compliance . . . .” Thus, the fact finder recommended that the plaintiff be awarded $292, or the amount of the agreement price ($41,275), less the cost of Torello’s services ($16,435.50) and the amount that the plaintiff had already been paid by the defendant ($24,547.50). Subsequently, the plaintiff filed an objection to acceptance of the fact finder’s report and recommendations, arguing that the report was “incomplete and omits facts essential to a just disposition of this matter.” On October 19, 2009, the court overruled the plaintiffs objection and rendered judgment in accordance with the fact finder’s report. This appeal fohowed.

The plaintiff claims that the court improperly overruled its objection to acceptance of the fact finder’s report and recommendations. Specifically, the plaintiff argues that the fact finder incorrectly concluded that the $51,200 invoice amount in effect constituted a claim for $9925 in extra compensation, rather than a legitimate adjustment to the agreement price of $41,275. Additionally, the plaintiff claims that the fact finder incorrectly found that the cost of Torello’s services was appropriately backcharged under the agreement.

Before addressing the merits of the plaintiffs claims, we begin with the applicable legal principles and standard of review governing our analysis. “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial fact finders. . . . This court has articulated that attorney trial fact finders and [fact finders] share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .

“The factual findings of a[n] [attorney trial fact finder] on any issue are reversible only if they are clearly erroneous. ... [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 692, 1 A.3d 157 (2010).

I

The record in the present case unequivocally demonstrates that the fact finder had sufficient evidence to conclude that the plaintiff was entitled to only $292 in compensatory damages pursuant to the parties’ agreement. With respect to the plaintiffs claim regarding the $51,200 invoice amount, the plaintiff argues mainly that the fact finder incorrectly found that the agreement price was $41,275. Evidence submitted by the plaintiff itself, however, shows that the defendant submitted a change order for $41,275 on May 17, 2004, pursuant to § 8 (a) of the agreement. Furthermore, the plaintiff does not dispute the fact that it failed to comply with the change order procedures specified in the agreement for seeking adjustments to the agreement price. Indeed, despite the plaintiffs noncompliance, the defendant sought, in good faith, to have the plaintiffs invoice approved by the community center. Ultimately, it was the plaintiffs failure to provide documentation in support of its invoice that led the community center to deny payment of the invoice amount. Because the community center never approved the payment of the plaintiffs invoice, pursuant to § 8 (a) of the agreement, the defendant was not liable to the plaintiff for this additional amount. As a corollary, we cannot say that the fact finder’s finding that the agreement price was $41,275 was clearly erroneous.

II

Turning to the plaintiffs claim with respect to the $16,435.50 backcharge, the record is equally supportive of the fact finder’s conclusion that this amount was appropriately deducted from the $41,275 agreement price. In support of its claim, the plaintiff argues that the defendant is “attempting to shift the burden of engineering costs” to the plaintiff. Section 7 (d) of the agreement explicitly provides, however, that “[the plaintiff agrees] ... to comply with all [f]ederal, [s]tate, [m]unicipal and local laws, ordinances, codes and regulations governing [the performance of its work on the project] and to pay all costs and expenses required thereby . . . .” Testimony during trial before the fact finder confirmed that Torello was hired by the defendant to ensure the plaintiffs compliance with applicable specifications of the building code. Indeed, if Torello had not been employed by the defendant, the plaintiff would not have been in compliance with the building code and, as such, would not have been legally able to commence and to continue work on the project. Moreover, there is no dispute that the defendant paid Torello $16,435.50 for services rendered in connection with the plaintiffs work. Because the defendant’s payment to Torello constituted an expense for which the plaintiff was liable pursuant to § 7 (d) of the agreement, we fail to see how the fact finder’s conclusion to reduce the plaintiffs compensation by the cost of such services was clearly erroneous. This determination is further supported by § 4 of the agreement that allows the defendant “to retain out of any payment due” to the plaintiff “an amount sufficient to indemnify” the defendant against an expense chargeable to the plaintiff. Here, the fact finder had ample evidence before him from which to find that the $16,435.50 was an expense chargeable to the plaintiff, and, therefore, the conclusion that the agreement price of $41,275 should be reduced by this amount was not clearly erroneous.

In sum, the plaintiff “essentially requests that we transgress our function as an appellate court and weigh conflicting evidence. . . . This, we cannot do.” (Citation omitted.) LPP Mortgage, Ltd. v. Lynch, supra, 122 Conn. App. 700-701. We conclude that the fact finder’s finding that the agreement price is $41,275 is adequately supported by the evidence in this case. We also conclude that the fact finder’s finding that this price was subject to a backcharge in the amount of $16,435.50 was not clearly erroneous. Thus, the plaintiffs net compensation under the agreement is $24,839.50 Because there is no dispute that the plaintiff has been paid $24,547.50, the fact finder appropriately recommended that the plaintiff be awarded $292 pursuant to the parties’ agreement. Accordingly, the court properly overruled the plaintiffs objection and rendered judgment in accordance with the fact finder’s report.

Ill

As a final matter, we address an unpreserved claim that we ordinarily would dismiss in a footnote. The plaintiff contends, for the first time on appeal, that the defendant failed to comply with § 7 (f) of the agreement. For multiple reasons, we reject that claim.

First and foremost, the claim is not properly before us, as there is no indication in the record that the plaintiff properly preserved it for appeal. In neither its October 29, 2007 trial brief nor its November 26, 2007 objection to acceptance of the fact finder’s report and accompanying memorandum of law did the plaintiff mention, let alone distinctly state, the question of the defendant’s alleged failure to comply with § 7 (f) of the agreement, as our law requires. See Practice Book § 5-2; see also Practice Book § 60-5; Remillard v. Remillard, 297 Conn. 345, 351, 999 A.2d 713 (2010) (raised distinctly means party must bring to attention of court precise matter on which decision is being asked); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims “neither addressed nor decided” by trial court are not properly before appellate tribunal). By contrast, the plaintiff expressly challenged the fact finder’s determinations regarding §§ 7 (d) and 8 (a) of the agreement in its November 26, 2007 memorandum of law objecting to acceptance of the fact finder’s report. Because the plaintiff never presented to the trial court the claim concerning § 7 (f) that it now pursues on appeal, we decline to afford it review. To now review that unpreserved claim would amount to an ambuscade of the trial judge. See Intercity Development, LLC v. Andrade, 286 Conn. 177, 187-88, 942 A.2d 1028 (2008) (reviewing claim articulated for first time on appeal and not before trial court results in trial by ambuscade of trial judge); Hunnicutt v. Commissioner of Correction, 83 Conn. App. 199, 203, 848 A.2d 1229 (same), cert, denied, 270 Conn. 914, 853 A.2d 527 (2004).

Apart from that infirmity, the plaintiffs claim concerning § 7 (f) is inadequately briefed, as its analysis consists of a single sentence in its principal brief. After quoting the language of § 7 (f), the plaintiff baldly asserts that the defendant “makes no claim that written notice was given and [the plaintiff] never received any such notice to which [it] had a legal right under [the] subcontract.” The plaintiff does not indicate how that claim was preserved or how the trial court ruled thereon. It further does not set forth an applicable standard of review or any substantive analysis or discussion of applicable precedent. Our appellate courts repeatedly have stated that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). As such, that claim is outside the scope of our review.

The concurring and dissenting opinion does not acknowledge that the plaintiff failed to preserve or to brief its claim adequately regarding § 7 (f) in affording review of the plaintiffs claim. In so doing, that opinion conflates the scope of our review with a standard of review, two distinct aspects of appellate practice. “Scope of review and standard of review are often— albeit erroneously — used interchangeably. The two terms carry distinct meanings and should not be substituted for one another. Scope of review refers to the confines within which an appellate court must conduct its examination. ... In other words, it refers to the matters (or what) the appellate court is permitted to examine. In contrast, standard of review refers to the manner in which (or how) the examination is conducted.” (Internal quotation marks omitted.) Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 606 n.7, 931 A.2d 319, cert, denied, 284 Conn. 929, 934 A.2d 244 (2007). That our review of definitive contractual language is plenary pertains to the applicable standard of review. It has no bearing on the issues of whether a claim properly is preserved for such review, as our rules of practice and decisional law require; see Practice Book §§ 5-2 and 60-5; see also Crest Pontiac Cadillac, Inc. v. Hadley, supra, 239 Conn. supra, 444 n.10; or whether the claim is adequately briefed. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120. Those threshold issues serve to define the contours of our scope of review in a given appeal. In the present case, they indicate that the plaintiffs claim concerning § 7 (f) is not one which we are “ ‘permitted to examine.’ ” Brunswick v. Statewide Grievance Committee, supra, 607 n.7.

The concurring and dissenting opinion also opines that review of the plaintiffs unpreserved claim is warranted under Practice Book § 60-5, which recognizes the plain error doctrine. We strongly disagree. Our Supreme Court instructs that “it is well established that [an appellate] court will not apply the plain error doctrine when it has not been requested affirmatively by a party . . . .” Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 125 n.26, 956 A.2d 1145 (2008); see also Johnson v. Commissioner of Correction, 288 Conn. 53, 60, 951 A.2d 520 (2008) (noting that “ ‘[a] party is obligated . . . affirmatively to request review’ ” under plain error doctrine and declining to consider unpreserved claim thereunder because petitioner failed to request that court undertake such review); State v. Britton, 283 Conn. 598, 617, 929 A.2d 312 (2007) (declining invitation to apply plain error doctrine because party failed to explain why claim merited such an extraordinary remedy); State v. Ramos, 261 Conn. 156, 171-72, 801 A.2d 788 (2002) (declining to review unpreserved claim under plain error doctrine because party failed affirmatively to request such review); cf. State v. Elson, 125 Conn. App. 328, 340-59, 9 A.3d 731 (2010) (en banc) (reviewing in thorough fashion requirement of affirmative request in context of review pursuant to State v. Golding, supra, 213 Conn. 239-40, and holding that such request is necessary to obtain appellate review), cert, granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011); State v. Wheatland, 93 Conn. App. 232, 243-44, 888 A.2d 1098 (“Connecticut law is clear that a party seeking review of unpreserved claims under either the plain error doctrine; Practice Book § 60-5; or State v. Golding, [supra, 239-40], must affirmatively request such review”), cert, denied, 277 Conn. 919, 895 A.2d 793 (2006). The plaintiff in the present case has not affirmatively requested review of his claim pursuant to the plain error doctrine. Accordingly, review of the plaintiffs unpreserved claim under the plain error doctrine is inappropriate.

It is elemental that this court, as an intermediate appellate body, is bound by the precedent set forth by our Supreme Court. See, e.g., Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010) (“it is manifest to our hierarchical judicial system that this court has the final say on matters of Connecticut law and that the Appellate Court . . . [is] bound by our precedent”); DePietro v. Dept. of Public Safety, 126 Conn. App. 414, 422 n.3, 11 A.3d 1149 (2011) (“as an intermediate appellate body, we are not at liberty to discard, modify, reconsider, reevaluate or overrule the precedent of our Supreme Court”); State v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546 (2002) (“[o]ur Supreme Court is the ultimate arbiter of the law in this state”). The concurring and dissenting opinion offers no explanation for its departure from that bedrock principle.

Numerous doctrines of reviewability are contained in our case law and our rules of appellate procedure. Uniform application thereof ensures that similarly situated litigants are treated in a consistent and, hence, just manner. See, e.g., Silkwood v. Kerr-McGee Corp., 667 F.2d 908, 916 (10th Cir. 1981) (“the objective of doing equal justice cannot be attained absent a consistent application of the rales”); Park City Hospital v. Commission on Hospitals & Health Care, 14 Conn. App. 413, 423, 542 A.2d 326 (1988) (Bieluch, J., dissenting) (“due process in the administration of justice requires the uniform application of the rales of practice”), affd, 210 Conn. 697, 556 A.2d 602 (1989); cf. Sutton Place Development Co. v. Abacus Mortgage Investment Co., 826 F.2d 637, 640 (7th Cir. 1987) (noting that “the federal rales [of civil procedure] are carefully-crafted instruments designed to achieve, by their uniform application, fairness ... in the conduct of federal litigation”); State v. Golding, supra, 213 Conn. 239 (articulating “guidelines designed to facilitate a . . . more uniform application of the [standard enunciated in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)]”). We are aware of no authority for the proposition espoused by the concurring and dissenting opinion that an appellate court may review an unpreserved claim whenever it perceives an “unjust” result. Certainly, neither a rale of practice nor a commentary by a treatise thereon can overrule the precedent of our Supreme Court requiring an affirmative request as a prerequisite for review under the plain error doctrine.

“Plain error is a doctrine that should be invoked sparingly.” (Internal quotation marks omitted.) State v. Bowman, 289 Conn. 809, 817, 960 A.2d 1027 (2008). It is “reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under [the] plain error [doctrine] unless [he] has demonstrated that the failure to grant relief will result in manifest injustice.” (Emphasis added; internal quotation marks omitted.) State v. Britton, supra, 283 Conn. 617. Supervisory authority does not confer on reviewing courts “a form of free-floating justice”; (internal quotation marks omitted) Richardson v. Commissioner of Correction, 298 Conn. 690, 701 n.11, 6 A.3d 52 (2010); nor does the plain error doctrine. Respectfully, we conclude that in suggesting that an appellate court may invoke, sua sponte, the plain error doctrine to review any unpreserved claim when injustice is perceived, the concurring and dissenting opinion misconstrues the proper scope of our appellate authority. Just months ago and in no uncertain terms, our Supreme Court expressly rejected the contention that “the Appellate Court has the discretion to decide a case on any basis, regardless of whether that claim was raised by the parties.” Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 822, 9 A.3d 322 (2010). The concurring and dissenting opinion disregards that admonition in invoking the plain error doctrine in the present case. In view of the novel and potentially far-reaching theory of reviewability suggested by the concurring and dissenting opinion, we take this opportunity to reaffirm our adherence to the precedent of our state’s highest court.

In addition, even if the plaintiff had requested review of its claim pursuant to the plain error doctrine, such review is unwarranted. The claim does not concern a truly extraordinary situation. Neither the plaintiff nor the concurring and dissenting opinion have established that the “existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Britton, supra, 283 Conn. 617. Counseled by principles of judicial restraint and mindful that plain error is a doctrine that should be invoked sparingly; State v. Bowman, supra, 289 Conn. 817; we decline to afford review of the plaintiffs claim regarding the defendant’s compliance with § 7 (f) of the agreement in this dispute between contractors.

The judgment is affirmed.

In this opinion HARPER, J., concurred.

FLYNN, J.,

concurring in part and dissenting in part. Two cardinal principles of law inform our review of contracts. One is that courts will not rewrite a contractual provision unwisely made by a party. Crews v. Crews, 295 Conn. 153, 173, 989 A.2d 1060 (2010). The other is that effect must be given, to the extent possible, to all provisions of an agreement. Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009); Detels v. Detels, 79 Conn. App. 467, 472, 830 A.2d 381 (2003). I agree with the majority’s opinion affirming the denial of the plaintiffs claim for $9600 in extras for the more expensive kind of piling required to be installed. I do so because the plaintiff did not comply with the contractual condition precedent to receiving such an extra payment because it failed to make a written claim for contract adjustment. Such a result, though harsh, is consistent with both cardinal principles and with § 7 (b) of the contract.

I respectfully disagree with the majority’s refusal to review the plaintiffs claim on appeal that the defendant improperly failed to comply with a contractual condition precedent when it withheld a $16,435.50 back-charge from the plaintiffs compensation. The trial court’s decision to enter judgment on that issue for the defendant is contrary to both cardinal principles of contract interpretation and to the plain language of § 7 (f) of the agreement of the parties which provided that as a condition precedent to the defendant’s undertaking any work that it claimed was the plaintiff subcontractor’s responsibility forty-eight hour prior notice had to be given to the plaintiff subcontractor. The effect of the majority opinion is to apply a condition precedent to prevent the plaintiffs recovery for extras but to ignore another unfulfilled condition precedent to permit the defendant’s backcharge. This result is unjust. Although the president of the defendant acknowledged that the plaintiff had performed satisfactorily, yet 40 percent of the contract price has been withheld from the plaintiff in a $16,435.50 backcharge. This has been withheld on the theory that the defendant was entitled to deduct this amount because it contracted with Torello for work that was the plaintiffs responsibility under its subcontract with the defendant. Yet, the record is devoid of any evidence that the defendant complied with the contractual provision requiring forty-eight hours prior notice to the plaintiff before doing so. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence.” (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn. App. 459, 467-68, 976 A.2d 23 (2009). Practice Book § 60-5, in the words of Professor Tait and Judge Prescott in their treatise Connecticut Appellate Practice and Procedure, allows “a Connecticut appellate court to consider almost any new issue on appeal.” C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 8.5, p. 299. This “ ‘exceptional circumstances’ ” exception “was developed independently of the post-1979 exception for ‘plain error’ contained in the second sentence” of the second paragraph of Practice Book § 60-5. “The independence of these two exceptions is also manifested by their language and theoretical bases, that is, ‘exceptional circumstances’ may not present ‘plain error,’ and ‘plain error’ need not coexist with ‘exceptional circumstances.’ ” Id. While not bound to consider claims of error not distinctly raised, our Supreme Court under the first sentence of the second paragraph of Practice Book § 60-5 providing that “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial” has considered such questions when in its opinion “in the interests of . . . justice between individuals, it ought to be done.” Leary v. Citizens & Manufacturers National Bank, 128 Conn. 475, 478-79, 23 A.2d 863 (1942); Persico v. Maher, 191 Conn. 384, 403, 465 A.2d 308 (1983). This is such a case of “ ‘exceptional circumstances.’ ” The question is not whether the plaintiff has a right to review of this issue but whether it is right that we review this issue in the interests of justice.

The plaintiff has briefed its claim that the actions of the defendant in withholding the $16,435.50 were “unilateral.” As pointed out in the plaintiffs brief, our review of contractual disputes arising out of definitive contract language is plenary. Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 43, 929 A.2d 729, cert, denied, 284 Conn. 931, 934 A.2d 246 (2007). Plenary review does not permit us to ignore any pertinent definitive provision of a contract. The plaintiff briefed on appeal that the fact finder had ignored § 7 (f) of the contract requiring forty-eight hours prior notice to the plaintiff before contracting to undertake a task to which the defendant claimed that the plaintiff was obligated to perform. The fact finder’s only finding regarding notice to the plaintiff was that change order two, the vehicle the court used to impose the $16,435.50 back-charge on the plaintiff, was submitted to the plaintiff on August 3, 2004, approximately five months after the defendant engaged Torello for services that it now claims were the obligation of the plaintiff. Accordingly, I would reverse and remand the case for further proceedings as to that portion of the judgment relating to the backcharge with direction to render judgment in the plaintiffs favor for an additional $16,435.50.

       The plaintiff withdrew its cause of action as to the defendant Sovereign Bank and the defendant Greater Hartford Jewish Community Center, Inc., on May 19, 2006. Because Aspinet Construction Company is the sole defendant in this appeal, we refer to it as the defendant.

       The $9925 figure represents the difference between the plaintiffs invoice amount of $51,200 and the agreement price of $41,275, as documented by the defendant’s change order, dated May 17, 2004.

       We note that the plaintiffs appellate brief also fails to comply with the requirements of Practice Book § 67-4. The statement of issues on page one does not include “[a] concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed . . . .” (Emphasis added.) Practice Book § 67-4 (a). Even more troubling is the fact that although its statement of issues includes multiple claims, the brief does not include an “argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document”; Practice Book § 67-4 (d); nor does it include “on each point ... a separate, brief statement of the standard of review the appellant believes should be applied.” Practice Book § 67-4 (d). (Emphasis added.) As in the defendants’ appellate brief in Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 407,1 A.3d 1238, cert, denied, 298 Conn. 931, 5 A.3d 491 (2010), it is difficult “to discern any coherent analysis” from much of the plaintiffs brief in the present case.

       We are perplexed by the concurring and dissenting opinion’s invocation of the “ ‘exceptional circumstances’ ” exception. That exception, as noted by the secondary authority relied on by that opinion, was set forth in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), the precursor to Golding review. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Evans, our Supreme Court held that there “exist only two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court.” State v. Evans, supra, 70. The first circumstance arises “where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal.” Id. The second circumstance arises “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id. Neither circumstance is implicated in the present case. To the extent that the concurring and dissenting opinion posits that there exists an exceptional circumstances exception to the preservation requirement beyond that set forth in the plain error doctrine and State v. Golding, supra, 239-40, by which a reviewing court may “ ‘consider almost any new issue on appeal,’ ” that novel proposition is without support in Connecticut law and is contrary to the plain language of State v. Evans, supra, 70.

       While the secondary source cited by the concurring and dissenting opinion states that the plain error doctrine allows an appellate court “to consider almost any new issue on appeal”; C. Tait&E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 8.5, p. 299; that statement must be read in the context of the precedent of our Supreme Court governing the application of that doctrine. We thus read that statement as pertaining to unpreserved claims for which the appellant affirmatively has requested review. Indeed, neither the authors of that secondary authority nor the concurring and dissenting opinion cite to any Supreme Court authority indicating otherwise.

       There could be no surprise to the trial court or the defendant by virtue of the plaintiffs failure to brief this provision at trial that § 7 (f) requiring forty-eight hours notice was pertinent. The trial court was to consider all definitive provisions of the contract as a whole, whether the plaintiff did or did not brief them at trial. Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976) (“[a] contract is to be construed as a whole and all relevant provisions will be considered together”); Zahringer v. Zahringer, 124 Conn. App. 672, 684, 6 A.3d 141 (2010) (“[i]t is axiomatic that ‘[w]hen interpreting a contract, [the reviewing court] must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result’ Furthermore, the defendant had pleaded a special defense and tried the case on the theory that both the plaintiff and the defendant were parties to the Torello contract. Had the defendant succeeded in proving this, the plaintiff would have needed no forty-eight hour notice that the defendant sought to charge him with responsibility for a contract to which he was a party. The fact finder found that only the defendant was a party to the Torello contract for which it sought to hold the plaintiff liable as a party, and, thus, the defendant failed to prove its special defense.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALEX MITCHELL
    (AC 31709)
    DiPentima, C. J., and Beach and Flynn, Js.

      Argued December 9, 2010
    officially released March 29, 2011

      Richard W. Callahan, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Alex Mitchell, appeals from the trial court’s judgment of conviction, rendered after a court trial before Sheldon, J., of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), and one count of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (3).

The defendant’s principal claim is that the court improperly denied his motion to suppress the pretrial identification made by one of the victims, Monica V. Specifically, the defendant argues that the court made erroneous findings of fact in support of its finding that the pretrial, out-of-court identification was reliable. We conclude that the court properly denied the defendant’s motion to suppress. We further conclude that the court’s determination that the identification was inherently reliable was supported by the facts it found and that the defendant has failed to show that these findings are clearly erroneous. We affirm the judgment of the trial court.

The trial court reasonably found the following facts. On August 17, 2004, at 11 p.m., the first victim, Monica V. (victim), left her job at the Walnut Convalescent Care Center in New Britain. After work, she began walking toward her apartment in New Britain and at about 11:30 p.m., while crossing the street she observed a black male in a red jersey shirt cross the street in the same westerly direction. While the victim paused in front of St. Mary’s Church and contemplated calling a friend to pick her up for the balance of her walk home, she was grabbed from behind by the defendant, whom she had seen moments earlier. The victim held out her pocketbook to the defendant and told him to take whatever he wanted. When the defendant asked if she had an ATM card, she responded that she did not, but she offered him the few dollars she had. The defendant exclaimed, “[n]o bitch, that’s not what I want,” and pushed the victim from behind into the first alcove within an adjacent alleyway and forced her down into a squatting position. He also stated that he had a knife. The victim looked at the defendant’s face, illuminated by the light in the alcove, and saw a young black man with comrows in his hair, with white beads at the tips, wearing blue jeans, a white T-shirt and a red jersey. The defendant pinned the victim in the comer of the alcove, pulled down his pants, and told her that if she screamed he would slice her neck. He then forced her to perform oral sex. After a period of time, the defendant pulled the victim up and forcefully pushed her further down the alley into the second or third alcove and ordered her to remove her shirt and bra or he would bash her head against the wall. She complied and then he pushed the victim down again, slapped her across the face, and forced her to perform oral sex again. The defendant forced her to perform oral sex for approximately forty minutes this time while touching her breasts. The assault ceased at around 12:30 a.m., when three men walked by the alleyway, the victim called out for help, and the defendant fled. The police were called, and the victim was transported to New Britain Hospital. While at the hospital, Officer Paul Uccello arrived to take a statement from the victim. She described her assailant as a black male in his early to late teens, comrows in his hair with white beads at the tips and wearing a white T-shirt, blue jeans and a red jersey. After providing this description, and while she was providing her written statement, Uccello asked her if she would be willing to go to the police station “to look at somebody.”

On August 18, 2004, at approximately 1 a.m., the second victim, Sara W. (second victim), left New Britain General Hospital and walked toward a friend’s apartment. As she approached the Truman Overpass, she noticed a black male in a white shirt and white braids walking behind her. As she continued to walk over the overpass, she glanced behind her and noticed that the male had gotten closer to her. She heard footsteps and the clacking sound of beads just as the defendant tackled her to the ground from behind. The second victim saw the defendant, whom she described as a young male in his late teens, with comrows in his hair and white plastic or wooden beads at the ends of his braids. After the defendant initially apologized, saying that he thought she was his sister’s friend, she continued to walk but then the defendant grabbed her with his arm, choked her and demanded money. When the second victim indicated she had no money, the defendant suggested she instead perform oral sex. She refused, and the defendant responded, “what if I make you do it, bitch?” as he grabbed her by the throat. The defendant released her for a moment, started to walk away and ordered her to continue in the other direction or he would kill her. She stood with her back against the wall of the overpass in fear, and responded, “f— you,” and the defendant came at her, grabbed her by the neck again, reached into his pocket and pulled out a three inch knife and slid it along her neck. A car drove by, causing the defendant to lower the knife, but then he demanded that the second victim show him her breasts “before I really decide to kill you . . . .” The defendant struck her across the face with the heel of his right hand and fled. She ran in the other direction and found people who escorted her to the police station. At the police station, she described her assailant as a young black male, with “swirly” comrows with white beads in the front, and a white T-shirt.

Between 1:45 a.m. and 2 a.m., the defendant, who fit the general description of the young black male, with comrows and white beads, was found walking on New Britain streets. The second victim was brought to the scene, where she viewed only the defendant and positively identified him as her assailant. The defendant was arrested and transported to the police station. At approximately 2:35 a.m., Uccello and the first victim arrived at the police station where she positively identified the defendant as her assailant in a one-on-one show-up.

Following the transfer of the two separate cases from the docket for juvenile matters to the regular criminal docket pursuant to General Statutes §§ 46b-122 and 46b-127, the defendant elected to be tried by the court, Sheldon, J., in the judicial district of New Britain. The two cases were consolidated at trial. The court concluded that the first victim’s one-on-one show-up was unnecessarily suggestive but that it was inherently reliable and therefore admissible. The court convicted the defendant on all charges relating to the first victim and sentenced him to a term of twenty years imprisonment, execution suspended after twelve years, followed by thirty-five years of probation. This appeal followed. Additional facts will be set forth as necessary.

“[A] claim of an unnecessarily suggestive pretrial identification procedure is a mixed question of law and fact.” State v. Marquez, 291 Conn. 122, 137, 967 A.2d 56, cert, denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009). “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry ... is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, [a] defendant has the burden of showing that the trial court’s determinations of suggestivenesss and reliability both were incorrect.

“Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Internal quotation marks omitted.) State v. Manson, 118 Conn. App. 538, 543, 984 A.2d 1099 (2009), cert, denied, 295 Conn. 902, 988 A.2d 878 (2010), quoting State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005) , cert, denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). “In determining whether identification procedures violate a defendant’s due process rights . . . [t]he defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.” (Emphasis added; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 553, 747 A.2d 487 (2000).

The defendant maintains that the court made clearly erroneous findings of fact in support of its determination that the victim’s pretrial identification was reliable based on the totality of the circumstances. See State v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005), cert, denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006) . The defendant principally challenges the corat’s factual findings regarding the first two Biggers factors. See Neil v. Biggers, 409 U.S. 188,199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). He argues that the victim (1) did not have a substantial opportunity to view the defendant and (2) had a low degree of attention at the time of the crime. We are not persuaded.

“ [Reliability is the linchpin in determining the admissibility of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness’] degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Santos, 104 Conn. App. 599, 619, 935 A.2d 212 (2007), cert, denied, 286 Conn. 901, 943 A.2d 1103, cert, denied, 555 U.S. 851, 129 S. Ct. 109, 172 L. Ed. 2d 87 (2008); see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

In support of its determination that the victim had an opportunity to view the defendant at the time of the crime, the court found the following facts. “[T]he identification was based upon the victim’s observations of her assailant, off and on during a period of at least forty-five minutes in the light from the church alcoves, which shone directly in the defendant’s face as he faced her.” During the assault, he pushed her into a squatting position, threatened her life, made her partially disrobe, and twice forced her to perform oral sex. The victim also saw the defendant in the light of the alleyway as she was pushed along on two occasions and as he ran away. Even though the attack occurred at night, on two occasions the victim had an opportunity to view the defendant’s face while illuminated by lights. In further support of the court’s determination that the victim had an opportunity to view the defendant, based on the aforementioned observations, the victim was able to provide a detailed description of the defendant. The trial court found that the victim’s description of the defendant as a black male in his early to late teens, comrows in his hair with white beads at the ends of the hair, wearing a white T-shirt, a red jersey and blue jeans was accurate.

The defendant argues that the victim did not have an opportunity to view her assailant because he grabbed her by her shoulders from behind, turned her around and pushed her into a crouch position. The defendant argues that she only saw his face for a split second, not several minutes. Our Supreme Court has said of identification that “a good hard look will pass muster even if it occurs during a fleeting glance.” (Internal quotation marks omitted.) State v. Cubano, 203 Conn. 81, 95, 523 A.2d 495 (1987). Even if the victim only saw the defendant’s face for a second, as the defendant suggests, that is still sufficient to support the court’s finding that the victim had a substantial opportunity to view the defendant. Here, however, the victim saw the defendant for more than a split second. The court found that the identification was strong, made by the victim, who had a good opportunity to observe her assailant for a lengthy period of time, in more than adequate light, and had a strong reason to observe him carefully at the time. The fact that the victim was grabbed from behind did not prevent her from viewing the defendant’s face during her forty-five minute ordeal. We conclude, therefore, that the defendant has not met his burden of showing that the court committed clear error in concluding that the victim had a substantial opportunity to view him at the time of the crime.

In support of its determination that the victim had a high degree of attention, the court found the following facts. “[The victim’s] degree of attention was obviously very high as she progressed from attempted robbery victim, to kidnapping victim, to forcible sodomy victim at the hands of her assailant. Although her glasses were knocked off her face during the second incident of compelled oral sex, she used them only for seeing at a distance, not seeing up close, and her assailant was literally on her and inside of her virtually throughout their encounter.”

The defendant argues that the victim’s degree of attention was low because she was fearful for her life and spent nearly forty minutes squatting and administering oral sex to the defendant adjacent to his jeans. We are not persuaded. The facts found by the court are adequately supported by the evidence. During the time the victim had the opportunity to view the defendant, the area was well lighted and she was in a close proximity to him. The court noted that this was not a chance encounter, but, rather, the observation of a person who was being sexually assaulted over a substantial period of time in an area with backlighting shining on the assailant’s face. Additionally, in its order and articulation, the court found the victim to be credible beyond a reasonable doubt. We conclude, therefore, that the defendant has not met his burden of showing that the court committed clear error in concluding that the victim’s identification was reliable. Thus, the court’s determination in admitting the pretrial identification was proper.

The court properly considered all of the factors relevant to determining the overall reliability of the victim’s identification. Even if some evidence in the record might have supported an opposite conclusion, the defendant has not shown that in determining that the identification was reliable, the court committed clear error in reaching the factual conclusions supporting that determination. Furthermore, because we upheld the court’s conclusion that the victim’s identification was reliable based on the totality of the circumstances, the defendant’s arguments concerning suggestiveness do not provide a basis for overturning the court’s decision to admit evidence of the victim’s pretrial identification of the defendant. “To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.” (Emphasis added; internal quotation marks omitted.) State v. Cook, 262 Conn. 825, 832, 817 A.2d 670 (2003).

We conclude that the court properly denied the defendant’s motion to suppress. We further conclude that the court’s determination that the identification was inherently reliable was supported by the facts it found and that the defendant has failed to show that these findings are clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he . . . (3) uses or threatens the use of a dangerous instrument . . . .”

       On appeal, the defendant claims only that the court erred when it found the out-of-court identification reliable despite the unnecessarily suggestive identification procedure. We, therefore, need not address the court’s finding that the out-of-court identification procedure was unnecessarily suggestive per se. We do note, however, that the court incorrectly relied on the dissent in Manson v. Brathwaite in finding that any one-on-one show-up is unnecessarily suggestive. See Manson v. Brathwaite, 432 U.S. 98, 124-29, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) (Marshall, J., dissenting). Because this issue is not raised on appeal and we agree with the court’s finding that the identification was nonetheless reliable, we need not address this finding. Although the defendant titles his statement of the issues in his brief in terms of due process, his argument concerns fact-finding and does not malee any due process argument under the factors set forth in State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), or under any pertinent federal case.

       Two cases, the subjects of which were two different victims, were consolidated for trial. The defendant appeals from his conviction on docket number CR-04-0217392, the case pertaining to the first victim. At trial, on a separate docket number, CR-04-0217393, the case pertaining to the second victim, the court found the defendant guilty of attempt to commit sexual assault in the first degree in violation of §§ 53a-70 (a) (1) and 53a-49, attempt to commit robbery in the first degree in violation of §§ 53a-134 (a) (3) and 53a-49, and unlawful restraint in the first degree in violation of General Statutes § 53a-95, and sentenced the defendant to a term of twenty years imprisonment, execution suspended after ten years, followed by thirty-five years of probation. The trial court ordered the two sentences to run consecutive to one another, resulting in a total effective term of forty years imprisonment, execution suspended after twenty-two years, followed by thirty-five years probation, with special conditions. Although both victims made pretrial, out-of-court and in-court identifications, on appeal the defendant challenges only the identifications by the first victim. The notice of appeal refers to the two docket numbers, but the judgments of conviction refer to only one sexual assault. The defendant’s brief, however, makes clear that he is only making a claim as to the first victim.

       At oral argument, the defendant conceded that in his brief he incorrectly stated that the state had the burden to prove by clear and convincing evidence that the identifications were reliable and independent from the suggestive taint of the show-up.

        InState v. Ledbetter, supra, 275 Conn. 546 n.8, our Supreme Court referred to the factors for consideration in determining whether an identification is reliable under the totality of the circumstances as the Biggers factors. “[T]he factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Internal quotation marks omitted.) Id., quoting Neil v. Biggers, supra, 409 U.S. 199-200.

       Although on appeal the defendant principally challenges the first two Biggers factors, we note that in regard to the third Biggers factor, the court found that the victim’s description of her assailant, given prior to the identification procedure, matched the defendant in all material respects, such as his height, hair, race, age, comrows and the beads in his hair. In regard to the fourth Biggers factor, the court found that the victim expressed a high degree of certainty at the time she identified the defendant as her assailant in front of the police station, particularly because she requested to have the defendant brought closer to her, consistent with a desire not to make an identification unless she was positive that the suspect was her attacker. Finally, regarding the fifth Biggers factor, the court found that the identification procedure took place less than three hours from the time of her assault.


author: BISHOP, J.

text:
    FRANCIS ANDERSON v. COMMISSIONER OF CORRECTION
    (AC 32101)
    DiPentima, C. X, and Bishop and Robinson, Js.

      Argued January 6
    officially released March 29, 2011

      MichaelE. O’Hare, supervisory assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Tamara Grosso, special deputy assistant state’s attorney, for the appellant (respondent).

      Robert J. McKay, special public defender, for the appellee (petitioner).
   Opinion

BISHOP, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting, in part, the revised amended petition for a writ of habeas corpus filed by the petitioner, Francis Anderson. The respondent claims that the court improperly determined that the petitioner was deprived of the effective assistance of trial counsel due to a conflict of interest. We agree and, accordingly, reverse the judgment of the habeas court.

The following procedural history is relevant to our resolution of the respondent’s claim. In the underlying criminal matters, the petitioner was charged with three counts of burglary in the third degree in violation of General Statutes § 53a-103, one count of larceny in the second degree in violation of General Statutes § 53a-123, two counts of larceny in the third degree in violation of General Statutes § 53a-124, two counts of credit card theft in violation of General Statutes § 53a-128c (a), one count of illegal use of a credit card in violation of General Statutes § 53a-128d, one count of receipt of money, goods or services from illegal use of a credit card in violation of General Statutes § 53a-128g, one count of assault in the third degree in violation of General Statutes § 53a-61 and violation of probation under General Statutes § 53a-32. On January 10,2008, the petitioner entered guilty pleas, pursuant to the Alford doctrine, to three counts of burglary in the third degree and one count of larceny in the second degree and admitted a violation of probation. The state entered a nolle prosequi as to the remaining charges. On March 6, 2008, the trial court sentenced the petitioner to a total effective sentence of five years imprisonment and three years of special parole. The petitioner did not file a direct appeal.

On October 8, 2009, the petitioner filed a revised amended petition for a writ of habeas corpus alleging that the trial court was not impartial. In response to this claim, the respondent raised the defense of procedural default. The petition also alleged that trial counsel, attorney Linda Babcock of the office of the public defender for the judicial district of Hartford (Hartford office), rendered ineffective assistance, depriving the petitioner of his right to the effective assistance of counsel under both the state and federal constitutions.

In the November 9, 2009 habeas hearing, Babcock testified that the petitioner had been implicated in some of the charges by a codefendant, Jason Fennely, who was represented by another public defender from the Hartford office, attorney Robert Famiglietti. She also testified that, while the criminal case was pending, she had requested Famiglietti’s permission to speak with Fennely to learn whether he planned to testify against the petitioner but that Famiglietti had denied the request. Additionally, Babcock testified that Famiglietti would not reveal Fennely’s intentions. Finally, in this regard, Babcock testified that she and Famiglietti shared no information pertaining to the case, and the fact that they worked in the same office had no effect on her representation of the petitioner.

By oral decision at the close of the hearing, the habeas court found that the petitioner’s claim as to the trial court’s impartiality was procedurally defaulted. The court also found that Babcock did not act in a constitutionally defective manner in her representation of the petitioner. Nevertheless, the court granted the petition on the basis of its finding that the petitioner’s trial counsel had an actual conflict of interest. The court reasoned that Famiglietti and Babcock, as public defenders from the same office, were members of the same law firm and were prohibited ethically from representing adverse interests. Because they represented codefendants with adverse interests, the court found that their simultaneous representation of the petitioner and Fennely was a conflict of interest prohibited by rule 1.7 of the Rules of Professional Conduct. On this basis, and without finding that Babcock’s claimed conflict adversely affected her representation of the petitioner, the court granted the petition. The court simultaneously found against the petitioner on every other claim that he had advanced in support of his petition. On November 25, 2009, the court denied the respondent’s motion for reconsideration but, subsequently, on March 5, 2010, granted the respondent’s petition for certification to appeal.

On appeal, the respondent claims that the habeas court improperly determined that Babcock was burdened by an actual conflict of interest that deprived the petitioner of his constitutional right to the effective assistance of counsel. In this regard, the respondent makes three distinct claims, namely, that the court improperly determined that (1) the representation was prohibited by the Rules of Professional Conduct, (2) a breach of the rules was sufficient to establish a constitutional violation and (3) the record supported a conclusion that Babcock was burdened by an actual conflict of interest. We agree with each claim.

We begin with the standard of review and governing legal principles. “The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel. . . . Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. . . . State v. Parrott, 262 Conn. 276, 286, 811 A.2d 705 (2003) .... The right attaches at trial as well as at all critical stages of a criminal proceeding, including a hearing in probable cause. See State v. Gaines, 257 Conn. 695, 706-707, 778 A.2d 919 (2001).” (Citations omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 87 Conn. App. 568, 582-83, 867 A.2d 70, cert, denied, 273 Conn. 930, 873 A.2d 997 (2005). In reviewing an ineffective assistance claim predicated on a conflict of interest, “[a]lthough the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of [the] case. ... As such, that question requires plenary review . . . .” (Citation omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

I

We first consider the respondent’s claim that the court improperly determined that Babcock’s representation was prohibited by the Rules of Professional Conduct. Rule 1.7 (a) of the Rules of Professional Conduct prohibits representation that involves a concurrent conflict of interest such that “(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client . . . .” Accordingly, the commentary to rule 1.7, subtitled “Conflicts in Litigation,” advises that, ordinarily, lawyers should decline to represent codefendants in criminal matters. Here, the court found that the petitioner and Fennely had adverse interests such that they should not have been represented by a single lawyer without giving their informed consent. See Rules of Professional Conduct 1.7 (b).

Although Babcock did not represent both the petitioner and Fennely, the court imputed a conflict of interest to her on the ground that she and Fennely’s counsel both worked in the Hartford office. Generally, there is support for the notion that two lawyers from the same firm may not ethically represent adverse interests. Rule 1.10 (a) of the Rules of Professional Conduct provides that one lawyer’s conflicts generally are imputed to the members of his or her firm. “ ‘Firm’ ” is defined in rule 1.0 (d), the commentary to which provides that “[w]ith respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct . . . .” Rules of Professional Conduct 1.0, commentary. Here, the court found that the two public defenders were, “for all intents and purposes, members of the same law firm.” The court found, as well, that there would be a high risk that the lawyers would have breached the attorney-client privilege if the matter had gone to trial, particularly if one had been required to cross-examine the other’s client. The court concluded that the dual representation of codefendants with adverse interests was improper as a concurrent conflict of interest prohibited by rule 1.7 of the Rules of Professional Conduct.

The respondent contends that Babcock was not subject to imputation under rule 1.10 because she was a government employee, citing rule 1.10 (d) and the commentary to rule 1.11. Rule 1.10 (d) of the Rules of Professional Conduct provides: “The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.” Rule 1.11 (d), in turn, subjects current government lawyers to rules 1.7 and 1.9, regarding personal conflicts of interest, but does not provide for the imputation of conflicts. Rather, the commentary to rule 1.11 emphasizes that “Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule” and explains that “[b]ecause of the special problems raised by imputation within a government agency, subsection (d) [of rule 1.11] does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers. . . .” (Emphasis added.) Rules of Professional Conduct 1.11, commentary. Thus, the plain language of rules 1.10 and 1.11 supports the respondent’s contention that the imputation did not accord with the Rules of Professional Conduct.

Although our decisional precedents support a contrary conclusion, they can be distinguished readily. The current revisions of rules 1.10 and 1.11, which adopted the express distinction that conflicts are not imputed between current government employees, took effect on January 1, 2007. Rules of Professional Conduct 1.10 and 1.11. These revisions mirror the 2002 amendments to the American Bar Association (ABA) Model Rules of Professional Conduct. See Annotated Model Rules of Professional Conduct (6th Ed. 2007) p. 625. To date, our appellate courts have not had occasion to interpret these revised rules. Consequently, the interpretation of the applicable rules, as amended in Connecticut to take effect January 1, 2007, is a matter of first impression for this court on review.

In presently recognizing that the Rules of Professional Conduct do not impute conflicts between associated government employees, we rely not only on the plain language of the rules but also on commentary from other sources. The annotations to model rule 1.10 published by the ABA state in relevant part: “A government law office is ordinarily considered a firm for purposes of the ethics rules. . . . However, Rule 1.10 does not apply to the imputation of conflicts in government law offices. Amendments made to Rule 1.10 in 2002 declare that . . . the imputation of one government lawyer’s disqualification to others in the same government law office is governed exclusively by Rule 1.11 (d) and not by Rule 1.10.” (Citation omitted.) Annotated Model Rules of Professional Conduct, supra, p. 174, citing American Bar Association, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005, p. 255 (2006) (before 2002 amendments, application of model rule 1.10 to current and former government lawyers was “ ‘unclear’ ”).

We also find support in other jurisdictions that have adopted the ABA model rules in this regard. Because each state adopts its own rules, we must carefully determine whether the rules under scrutiny are the same as those adopted in Connecticut. For example, Massachusetts has not adopted the 2002 amendments to the ABA model rules 1.10 and 1.11, and New York’s rules are only marginally similar to the model rules in that regard. Additionally, although Rhode Island and Vermont have adopted the amendments, their appellate courts have not yet interpreted them. American Bar Association, Center for Professional Responsibility, Charts Comparing Professional Conduct Rules, available at http:// www.abanet.org/cpr/pic/charts.html (last visited February 4, 2011).

Colorado and Nebraska, however, have adopted rules that are identical in relevant part to Connecticut’s Rules of Professional Conduct 1.10 and 1.11 and have had occasion to interpret them. In People v. Shari, 204 P.3d 453 (Colo. 2009), the Supreme Court of Colorado stated that “[t]he comments to Rule 1.11 make clear that a government attorney’s individual conflicts are not imputed to the entire government agency for which he works.” Id., 459 (declining to disqualify public defenders although associates from their office had previously represented prosecution’s main witnesses). Similarly, the Supreme Court of Nebraska rejected a per se imputed disqualification rule for prosecutors on the ground that “we recently endorsed a more flexible rule by adopting the Nebraska Rules of Professional Conduct.” State v. Kinkennon, 275 Neb. 570, 577, 747 N.W.2d 437 (2008) (declining to disqualify prosecutor although associate in his office had previously represented defendant while in private practice). Citing the commentary to Nebraska rule 1.11, the court stated that “[t]his rule recognizes the distinction between lawyers engaged in the private practice of law, who have common financial interests, and lawyers in a prosecutor’s office, who have a public duty to seek justice, not profits.” Id. Additionally, the Supreme Court of Hawaii apparently decided to put the matter beyond dispute by promulgating an extended version of rule 1.10 (d) that provides: “The disqualifications of Rules 1.7, 1.9 (a), 1.9 (b), or 1.11 (c) (1) shall not be imputed to government lawyers provided the disqualified government lawyer has been screened from participation in the matter.” (Internal quotation marks omitted.) State v. Mark, 123 Haw. 205, 215 n.16, 231 P.3d 478 (2010).

On the basis of the language of the applicable rules and the sound reasoning of sister states that have confronted this issue, we conclude that the Rules of Professional Conduct do not require the imputation of conflicts of interest among public defenders working in the same office on the basis of reasoning that they are members of the same firm. In the present case, therefore, the habeas court improperly imputed a conflict of interest between Babcock and Famiglietti.

II

Our conclusion that the habeas court incorrectly imputed a conflict of interest does not, however, end our inquiry. As the trial court stated, where lawyers in the same office represent clients with adverse interests, there is a risk that each may feel a divided loyalty between client and colleague. For this reason, the commentary to rule 1.11 advises that “ordinarily it will be prudent to screen such lawyers.” Rules of Professional Conduct 1.11, commentary. Recognizing this risk, and in accordance with decisional law; see Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); we must examine whether this potential conflict ripened into an actual conflict.

“In a case of a claimed conflict of interest ... in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Phillips v. Warden, supra, 220 Conn. 133, quoting Cuyler v. Sullivan, supra, 446 U.S. 350. “Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breachfed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” (Internal quotation marks omitted.) Phillips v. Warden, supra, 133, quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Accordingly, an ineffectiveness claim predicated on an actual conflict of interest is unlike other ineffectiveness claims in that the petitioner need not establish actual prejudice. Phillips v. Warden, supra, 132-33.

An actual conflict of interest is more than a theoretical conflict. The United States Supreme Court has cautioned that “the possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler v. Sullivan, supra, 446 U.S. 350. A conflict is merely “a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future.” (Emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn. App. 589, quoting United States v. Williams, 372 F.3d 96, 102 (2d Cir. 2004). “To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party. ... A mere theoretical division of loyalties is not enough.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 584. If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed, and the familiar Strickland prongs will apply. See id., 583 n.14.

In the present case, the habeas court granted the habeas petition solely on the basis of a misapplication of the Rules of Professional Conduct. Additionally, even assuming arguendo that the court had applied the rules properly, an ethical violation alone is not sufficient to establish a constitutional violation. Ethical considerations are relevant to, but not dispositive of, an effectiveness determination. See, e.g., Phillips v. Warden, supra, 220 Conn. 137-40 (relying on both decisional law and “ethical precepts” of rule 1.7 to find actual conflict of interest). As the United States Supreme Court has stated, “breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel. When examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct . . . .” Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). The teaching of the Supreme Court is particularly apt to the situation at hand in which the court made no finding that any real or potential conflict had any impact on Babcock’s performance. In sum, a breach of ethics, standing alone without any evidence of adverse impact, does not constitute a deprivation of counsel for sixth amendment purposes. On this record, the respondent correctly asserts that the court’s finding of an ethical violation alone does not establish that the petitioner was deprived of the effective assistance of counsel.

Ill

Aside from its determination of an ethical violation, the habeas court found no specific instances in the record that suggested that the petitioner’s interests were impaired or compromised by Babcock’s representation. To the contrary, the court expressly stated: “Based on what the court has heard, it doesn’t appear that attorney Babcock represented [the petitioner] in a constitutionally deficient manner.” The court particularly noted that the case was in the pretrial stage such that Babcock had not had time to conduct an investigation. The court concluded, therefore, that the alleged deficiencies in Babcock’s representation were the result of timing, not ineffectiveness on Babcock’s part. Furthermore, according to Babcock’s testimony, although she was aware that Fennely was likely to implicate the petitioner, there was no communication between the two public defenders regarding their respective clients, and her loyalty was not divided in any way. Both her unrebutted testimony and the fact that Babcock did not seek to withdraw from the representation strongly support our conclusion that she was not burdened by an actual conflict of interest during her representation of the petitioner. See, e.g., State v. Webb, supra, 238 Conn. 420-21 (court properly may credit both attorney’s representations that no conflict existed and attorney’s ethical decision not to seek to withdraw).

Because the court found an actual conflict solely on the basis of an improper application of the Rules of Professional Conduct and an improper finding that an ethical violation can be equated to a sixth amendment deprivation, we conclude that the petitioner has not demonstrated that an actual conflict of interest adversely affected Babcock’s performance.

The judgment is reversed and the case is remanded with direction to render judgment denying the petition for a writ of habeas corpus.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Rule 1.7 (a) of the Rules of Professional Conduct provides in relevant part: “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."

       The petitioner has not cross appealed from the court’s denial of his petition on the other grounds of his ineffectiveness claim, which alleged that Babcock’s performance was deficient. Consequently, the fate of his petition rests entirely on our resolution of the conflict of interest issue.

       The respondent also claims that the court improperly failed to determine whether the alleged conflict of interest adversely affected counsel’s performance. Because we reverse on the basis that the petitioner failed to demonstrate an actual conflict of interest, we need not reach the merits of this claim.

       Rule 1.10 (a) of the Rules of Professional Conduct provides: “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

       With regard to current government employees, rule 1.11 (d) of the Rules of Professional Conduct provides: “Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) Is subject to Rules 1.7 [duties to current client] and 1.9 [duties to former client]; and (2) Shall not: (i) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) Negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially; except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12 (b) and subject to the conditions stated in Rule 1.12 (b).”

       See, e.g., State v. Webb, 238 Conn. 389, 417-21, 680 A.2d 147 (1996) (examining whether two public defenders were members of single firm for purposes of rule 1.10), affd after remand, 252 Conn. 128, 750 A.2d 448, cert, denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); Williams v.
        Warden, 217 Conn. 419, 432 n.5, 586 A.2d 582 (1991) (undisputed that attorneys in same public defender’s office were bound by duties that other owed to his clients per rule 1.10). See also Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 92-23 (1992) (for purposes of rule 1.10, public defenders from same branch are members of firm, but those from different branches are not). These opinions predate the 2007 amendments to Connecticut rules 1.10 and 1.11.

       Prior to the 2007 amendments, rule 1.10 of the Rules of Professional Conduct made no distinction between private lawyers and government lawyers. Rules of Professional Conduct (2006) 1.10. Additionally, rule 1.11 was narrowly concerned with “Successive Government and Private Employment,” as it was titled at the time. Rules of Professional Conduct (2006) 1.11. Effective January 1, 2007, the title of rule 1.11 was changed to “Special Conflicts of Interest for Former and Current Government Employees.” Its provisions for imputation apply only toformer employees of the government, and its commentary declines to impute conflicts among current government lawyers. Rules of Professional Conduct 1.11 and commentary.

       In regard to the imputation of current conflicts among associated government lawyers, the reporter’s notes on the 2009 amendments to the Vermont Rules of Professional Conduct state: “The Commission determined that it made sense to address in Rule 1.11, not only the imputation of former-client conflicts, but also the imputation of current conflicts of interest under Rule 1.7. As with former-client conflicts, the Commission decided that these conflicts should not be imputed to lawyers associated in a government agency, even when formal screening mechanisms are not instituted.” (Emphasis added.) Vermont Supreme Court, Attachment to Promulgation Order; Amendments to Vermont Rules of Professional Conduct 2009; Reporter’s Notes (June 17, 2009), available at http://www.vermontjudiciary.org/lc/ statutes%20and%20rules/promulgated-jun1709-vrpc.pdf (last visited February 4, 2011).

       Despite our conclusion that conflicts of interest are not imputed among public defenders, where a potential conflict of interest arises, it remains the best practice to request that the trial court appoint a special public defender pursuant to Practice Book § 37-6 (a). We are aware, anecdotally, that it is the norm that when there is more than one defendant, the public defender’s office seeks to have codefendants represented by special public defenders to avoid any risk of conflicts of interest.

       As enunciated in Strickland, “[t]o prevail on a claim of ineffective assistance of counsel, apetitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.” (Internal quotation marks omitted.) Moore v. Commissioner of Correction, 119 Conn. App. 530, 534, 988 A.2d 881, cert, denied, 296 Conn. 902, 991 A.2d 1103 (2010).