author: BEACH, J.

text:
    SHAWN ROBINSON v. COMMISSIONER OF CORRECTION
    (AC 31197)
    Harper, Beach and SchaUer, Js.
    Argued February 22
    officially released June 28, 2011

      Tennyson S. Anthony, special public defender, for the appellant (petitioner).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Brenda L. Hans, assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Shawn Robinson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court (1) abused its discretion in denying certification to appeal, (2) erred in rejecting his claim that his trial counsel had provided ineffective assistance and (3) erred in concluding that he was not entitled to certain impeachment information at his criminal trial. We dismiss the appeal.

Following a jury trial, the petitioner was convicted of assault in the second degree in violation of General Statutes § 53a-60 (a) (5), rioting at a correctional institution in violation of General Statutes § 53a-179b and possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a. He also was convicted of being a persistent serious felony offender pursuant to General Statutes § 53a-40 (b). He was sentenced to a total effective term of forty-five years incarceration. The petitioner directly appealed from the judgment of conviction to the Supreme Court pursuant to General Statutes § 51-199 (b) (3). The Supreme Court affirmed his conviction. State v. Robinson, 227 Conn. 711, 631 A.2d 288 (1993).

In its opinion, the Supreme Court set forth the following facts. “On April 19,1990, at approximately 8:30 p.m., the [petitioner] attended a gathering of seventy-five to one hundred inmates in the east mess hall of the Connecticut Correctional Institution at Somers in honor of the Islamic religious feast, Ramadan. The gathering turned into a riot when an inmate verbally confronted and then placed his hands on the Imam, a religious leader. Inmates began to shout, climb on tables, fight, and throw trays. Thirty-five correction officers responded in an attempt to restore order. During the incident, the [petitioner], while situated at the center of the group of rioting inmates, slashed correction officer David Serkosky on the right side of his neck with a sharp metal instrument. The [petitioner] then put the instrument into a paper bag, and walked away from the crowd and toward the east wall of the mess hall. . . .

“ [Correction] [o]fficer Ronnie King testified that from a distance of approximately five feet he had seen the [petitioner] walk around Serkosky and with his right hand cut Serkosky in the neck. He then saw the [petitioner] put a shiny metal object into a paper bag and then step against a wall. King testified that the incident had occurred quickly. Serkosky testified that he had been cut while standing in the center of the group of inmates who had been involved in the disturbance. Serkosky did not see who slashed him, nor did he see the [petitioner] at any time during the incident.” Id., 715.

After his unsuccessful appeal, the petitioner brought this petition for a writ of habeas corpus, claiming, inter alia, that (1) his trial counsel, Brian Karpe, was deficient for failing to call certain witnesses to testify at trial and (2) that his conviction was unreliable because the trial court refused to release the personnel record of a correction officer who testified against him at his criminal trial. In its memorandum of decision, the court rejected his claims and denied his petition. The petitioner filed a petition for certification to appeal from the judgment of the habeas court, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.

We first set forth the applicable standard of review. “When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion. ... A petitioner satisfies that substantial burden by demonstrating that the issues 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. ... If the petitioner can show that the habeas court abused its discretion in denying the petition for certification to appeal, then the petitioner must demonstrate that the judgment of the habeas court should be reversed on its merits. ... To determine whether the court abused its discretion, we must consider the merits of the petitioner’s underlying claims.” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 123 Conn. App. 121, 126-27, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010).

I

We first address the petitioner’s claim that the court erred in concluding that Karpe was not ineffective for failing to call as exculpatory witnesses at trial William Outlaw and Vaughn Outlaw, prisoners who allegedly were present during the incident. We disagree.

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland, the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for defense counsel’s deficient representation, the result of the proceeding would have been different.” (Internal quotation marks omitted.) DuPerry v. Kirk, 90 Conn. App. 493, 503, 877 A.2d 928 (2005), cert. denied, 277 Conn. 921, 895 A.2d 795 (2006).

“The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citations omitted; internal quotation marks omitted.) Conde v. Commissioner of Correction, 112 Conn. App. 451, 457-58, 963 A.2d 1007 (2009).

We agree with the court that the petitioner has not met his burden of demonstrating that Karpe’s performance was deficient. The court credited Karpe’s testimony and specifically highlighted the following. Karpe testified that he hired a private investigator, who had interviewed a number of witnesses, including William Outlaw and Vaughn Outlaw. Karpe testified that he called witnesses who he thought would provide credible and relevant testimony. Karpe reasoned that he had not called William Outlaw as a witness at trial because Karpe thought his criminal record could be used to impeach him; he might invoke his fifth amendment privilege against self-incrimination; his statement might conflict with the petitioner’s own testimony; he did not actually see the stabbing; and calling him as a witness would “potentially cast a bad light [on the petitioner] in front of the jury.”

Karpe testified that he did not call Vaughn Outlaw as a witness at trial because he might invoke his fifth amendment privilege against self-incrimination as a result of the fact that he might be charged with rioting if he admitted that he was present during the riot; his statement was in “direct conflict” with that of the petitioner; and Vaughn Outlaw’s criminal record might be used to impeach him.

We conclude that the petitioner’s claim fails under the first prong of Strickland. The habeas court reasonably could have found that the petitioner failed to demonstrate that Karpe’s decision not to call William Outlaw and Vaughn Outlaw as witnesses in his criminal trial was anything other than sound trial strategy.

II

The petitioner next claims that the court erred in concluding that he was not entitled to impeachment information from the personnel file of King, a correctional officer who was the state’s only witness to the stabbing. The respondent, the commissioner of correction, argues that the petitioner’s claim is barred by the doctrine of res judicata. We agree with the commissioner.

“The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings. . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding.” (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 63-64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).

Prior to the start of his criminal trial, the petitioner subpoenaed the personnel records of certain correction officers, including King. The petitioner specifically sought, with respect to King, any references to past complaints made by King against the petitioner that were recorded in King’s personnel file. The court stated that it would conduct an in camera review of the file and disclose any references therein to the petitioner or to the incident. After conducting an in camera review of King’s personnel file, the court concluded that the file contained no reference to the petitioner and contained nothing that reasonably could be used by the petitioner to impeach King. The court stated that the entire personnel file would remain sealed and that “there is nothing in here that would be of help to you.”

On direct appeal to the Supreme Court, the petitioner argued that the trial court improperly refused to disclose the contents of the personnel records of, inter alios, King, and that without access to King’s personnel file, he was denied his constitutional right to information with which to confront the witnesses against him. The Supreme Court rejected the claim, reasoning that the claim “is conditioned ... on this court reviewing the records that were the subject of the trial court’s in camera examination and discovering information that the trial court should have given to him at trial. . . . Our review of the personnel files in question reveals that the trial court did not abuse its discretion in withholding any information in those files.” State v. Robinson, supra, 227 Conn. 745.

In his habeas petition, the petitioner argued, inter alia, that his conviction was unreliable and that the jury was denied crucial information because the court, after conducting an in camera review of King’s personnel file, kept King’s personnel file sealed, stating that it did not discover any materials that were exculpatory or of impeachment value to the petitioner. The petitioner argued, however, that a performance appraisal of King, dated May 24, 1985, contained information that would have impacted King’s credibility. In its memorandum of decision, the court implicitly ruled that the petitioner’s claim was barred by res judicata. On appeal to this court following the denial of his petition for certification to appeal, the petitioner claims that the habeas court erred when it determined that he was not entitled to relevant impeachment information from King’s personnel file. He argues that “the court should have disclosed the requested documents because they were material and relevant to the reliability of . . . King’s testimony as the only witness to identify the petitioner as the one who stabbed . . . Serkosky.”

The doctrine of res judicata bars the petitioner from obtaining habeas review of this claim because the claim had been raised, litigated and decided on direct appeal. Before the habeas court, and on appeal before us, the petitioner argues that King’s personnel file contained information that was relevant at his criminal trial for impeachment purposes and that the trial court improperly denied him access to the file. The Supreme Court on direct appeal, however, already had determined that the trial court did not abuse its discretion by withholding any information in the files requested by the petitioner, which included King’s personnel file. State v. Robinson, supra, 227 Conn. 745. The habeas court properly declined to relitigate this claim.

In light of the foregoing and upon our examination of the record and the court’s resolution of the issues presented in the amended habeas petition, we are not persuaded that the court abused its discretion by denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues differently, or that the questions presented warrant encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

In this opinion the other judges concurred.

       Two other correction officers testified. State v. Robinson, supra, 227 Conn. 715-16. One testified that from approximately forty feet away he saw the petitioner hold a dark object in his hand; the other testified as to the events which occurred directly after the incident. Id., 716.

       The court stated that it need not address the prejudice prong where the petitioner had not met his burden of proving deficient performance.

       Following an in camera review of the material at issue, “[t]he trial court must make available to the defendant only that material that it concludes is clearly material and relevant to the issue involved.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 337, 618 A.2d 32 (1992).

       The issue was before the court in that the commissioner pleaded res judicata as an affirmative defense in its amended return. Although the court did not specifically use the term “res judicata,” it employed reasoning associated with the use of the doctrine and stated that the issue raised in the habeas petition had been decided previously by the Supreme Court on direct appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HSBC BANK USA, N.A. v. JEFFREY NAVIN ET AL.
    (AC 32124)
    Lavine, Beach and Robinson, Js.

      Argued March 21
    officially released June 28, 2011

      Kenneth R. Davis, for the appellant (named defendant).

      Aileen Reilly Wilson, with whom, on the brief, was Marc S. Edrich, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Jeffrey Navin appeals from the judgment of strict foreclosure rendered by the trial court following the granting of a motion for summary judgment in favor of the plaintiff, HSBC Bank USA, N.A. On appeal, the defendant claims that the court erred by granting summary judgment because (1) the plaintiff was not the owner of the promissory note and mortgage at the time that it commenced the foreclosure action and thus lacked standing, (2) a genuine issue of material fact existed as to whether the plaintiff possessed the assignment of the promissory note and mortgage at the time that it commenced the foreclosure action and (3) the plaintiff was not the holder or owner of the promissory note and mortgage at the time it commenced the action. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On October 5, 2005, the defendant executed a promissory note in the principal amount of $1,313,000 to American Brokers Conduit. As security for the note, the defendant conveyed by way of mortgage deed his interest in real property located at 7 Hart Landing in Guilford to Mortgage Electronic Registration Systems, Inc. The defendant’s mortgage was assigned to the plaintiff on October 5, 2005, and the assignment was recorded in the Guilford land records on June 14, 2007. The plaintiff became the holder of the note prior to the commencement of the present foreclosure action.

The defendant failed to make his mortgage payments and thus the balance then due on his promissory note was accelerated. The plaintiff commenced the present foreclosure action by service of the summons and complaint on June 13,2007. On August 25,2009, the plaintiff filed a motion for summary judgment seeking judgment as to liability. The defendant filed an objection to the plaintiffs motion for summary judgment, claiming that the plaintiff lacked standing to institute the foreclosure action because it was not the owner of the promissory note and mortgage at the time the action was commenced. The court granted the motion for summary judgment on November 13, 2009, and judgment of strict foreclosure was rendered on February 22, 2010. This appeal followed.

We first address the defendant’s claim that the plaintiff lacked standing to commence this foreclosure action because the claim presents a question as to the trial court’s subject matter jurisdiction. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009) (“[t]he issue of standing implicates the trial court’s subject matter jurisdiction and therefore presents a threshold issue for our determination”). The defendant specifically argues that the plaintiff did not have standing to bring this foreclosure action because it did not rightfully own the promissory note and mortgage until after it commenced the action. We conclude that the plaintiff did have standing to initiate this suit.

“It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . Our review of the question of [a] plaintiffs standing is plenary.” (Citations omitted; internal quotation marks omitted.) Megin v. New Milford, 125 Conn. App. 35, 37, 6 A.3d 1176 (2010).

The defendant’s standing argument is controlled by this court’s decision in Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010). In Chase Home Finance, LLC, this court stated: “General Statutes § 49-17 permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him. . . . The statute codifies the common-law principle of long standing that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage. . . . Our legislature, by adopting § 49-17, has provide[d] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him.” (Citations omitted; internal quotation marks omitted.) Id., 576-77.

The plaintiff submitted a sworn affidavit in support of its motion for summary judgment in which it alleged that “[t]he [n]ote was endorsed in blank and was delivered to the [p]laintiff prior to the commencement of this foreclosure action.” The defendant offered no evidence to counter the plaintiffs sworn statement that it was in possession of the note at the time it commenced the present action. The only piece of evidence the defendant did offer was a sworn affidavit that baldly asserted that the plaintiff was not in possession of the note at the time it served the November 6, 2006 complaint, which, as noted previously, occurred prior to the commencement of the present action. See footnote 3 of this opinion. Accordingly, because the defendant offered no evidence to contest the plaintiffs assertion that it possessed the note at the time that it commenced the present action, we conclude that the plaintiff had standing to commence this foreclosure action.

Having determined that the plaintiff had standing to bring the foreclosure action, we now address the defendant’s remaining claims. The defendant essentially argues that the court erred by granting summary judgment because there existed a genuine issue of material fact as to whether the plaintiff was in possession of the promissory note or the mortgage at the time it commenced the foreclosure action. We are not persuaded.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 721, 1 A.3d 21 (2010).

For the reasons stated previously, we conclude that the court did not err by granting the plaintiffs motion for summary judgment. The plaintiff offered a sworn affidavit stating that it was the holder of the promissory note at the time it commenced this action. The only evidence that the defendant offered to counter that assertion was an affidavit baldly asserting, with no indication of personal knowledge, that the plaintiff was not the holder of the note at the time it filed the November 6, 2006 complaint. As previously stated, the November 6, 2006 action was withdrawn and the present action was initiated by service on the defendant on June 13, 2007. See footnote 3 of this opinion. The plaintiff need not prove that it held the mortgage at that time. See Chase Home Finance, LLC v. Fequiere, supra, 119 Conn. App. 576-77. Therefore, having failed to present any evidence contesting that the plaintiff was the holder of the note at the time it commenced the foreclosure action, the defendant has failed to satisfy his burden of “[providing] an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009). Accordingly, we conclude that the court did not abuse its discretion by granting the plaintiffs motion for summary judgment.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

       The other defendant in this action, Mortgage Electronic Registration Systems, Inc., did not participate in this appeal.

       The written document of assignment specifically referenced the defendant’s mortgage by its date, and by the volume number and page number in the land records where it was recorded, and also referenced any notes described within the mortgage.

       In his memorandum of law in opposition to the plaintiffs motion for summary judgment, the defendant claimed that the operative complaint was a prior complaint, involving the same parties as in the present case, which was served on November 6, 2006. The plaintiff acknowledged that it did serve the November 6, 2006 complaint, but argues that it withdrew that complaint on April 17, 2007. A new action was commenced by service on the defendant on June 13, 2007. Thus, the plaintiff maintains, and we agree, that the operative complaint underlying the motion for summary judgment was its June 13, 2007 complaint. See Brewster Park, LLC v. Berger, 126 Conn. App. 630, 635, 14 A.3d 334 (2011) (“[bjecause the interpretation of pleadings is an issue of law, our review is plenary”).

         The defendant grounded his argument on the incorrect premise that the November 6, 2006 complaint was the operative complaint. See footnote 3 of this opinion.

       We note that we make no determination as to the validity of the assignment of the mortgage to the plaintiff. We rely on Chase Home Finance, LLC, only to establish that the plaintiff, as the holder of the note, had standing to bring the present foreclosure action.

       The defendant also makes a very brief argument that the court erred by granting summary judgment because there was a discrepancy between the note and the document of assignment regarding the amount of debt the defendant owed. We conclude that any discrepancy was not fatal in that the assignment referred to the mortgage by date, and by the volume number and page number in the land records where it was recorded.


author: BISHOP, J.

text:
    HOLLY BLINKOFF v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 31777)
    Bishop, Espinosa and Borden, Js.

      Argued April 18
    officially released June 28, 2011

      Holly Blinkoff, pro se, the appellant (plaintiff).

      Charles Krich, principal attorney, with whom, on the brief, was Caroline B. Park, law student intern, for the appellee (named defendant).

      Nicole D. Dorman, for the appellees (defendant city of Torrington et al.).
   Opinion

BISHOP, J.

The plaintiff, Holly Blinkoff, appeals from the judgment of the trial court dismissing her administrative appeal from a decision of the defendant, the state commission on human rights and opportunities (commission). The commission determined that the defendants, the city of Torrington (city) and city planner Dana McGuinness, had retaliated against the plaintiff but that she failed to prove that she had incurred compensable damages as a result. On appeal, the plaintiff claims that the trial court improperly (1) failed to consider certain statements and documents in its review and (2) concluded that the commission’s presiding human rights referee did not err in determining that the plaintiff did not prove that she suffered compensable damages. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of the plaintiffs claims. The plaintiff owned and operated a quarry from which she sold stone, sand and gravel products. On July 13, 1994, the city, through its planning and zoning commission, approved the renewal of the plaintiffs special exception permit and imposed conditions regulating the operation of the quarry, including hours of operation. In October, 1994, McGuinness received a complaint that the plaintiff was operating the quarry outside of the permitted hours, and he issued a cease and desist order in November, 1994. On January 20,1995, the plaintiff filed an administrative complaint with the commission, alleging that the city and McGuinness had discriminated against her on the basis of her gender and religion.

Thereafter, McGuinness received additional complaints and issued another cease and desist order on July 21, 1995, after personally observing the quarry being operated after hours. On the following day, he observed the same. On August 2,1995, the city initiated a lawsuit against the plaintiff, seeking a show cause hearing and temporary and permanent injunctions to compel her to comply with the conditions of her permit. While the lawsuit was pending, the city received new complaints regarding the operation of the quarry in August, 1995, and January, April and May, 1996. In July, 1996, the plaintiffs 1994 special exception permit expired. The city advised the plaintiff that it would not purchase any more stone and gravel from her until she had obtained a permit. She continued to operate the quarry without a permit, and the city issued a cease and desist order in August, 1996. The city withdrew its lawsuit in September, 1996.

The plaintiff subsequently applied for renewal of her special exception permit on November 21, 1996. The city planning and zoning commission held a public hearing on January 8, 1997, and the permit was approved the following month, at which time the city reinstated her as an eligible vendor for city projects. Following the 1997 renewal of her permit, the plaintiff never bid to supply the city with any product, despite twice being invited to submit bids in August, 1997. She sold the quarry in 2000 and ceased doing business.

The following procedural background is also relevant. After the plaintiff filed her administrative complaint with the commission on January 20, 1995, proceedings were stayed pending the resolution of an action she filed in the United States District Court for the District of Connecticut relating to the same allegations. The District Court, Underhill, J., dismissed the state law claims without prejudice, and the balance of her claims proceeded to a jury trial. Following a jury verdict against the plaintiff on her federal law claims and the subsequent dismissal of her appeal to the United States Court of Appeals for the Second Circuit, the commission’s presiding human rights referee (referee) granted the city’s motion to dismiss the plaintiffs administrative complaint on the grounds of res judicata and collateral estoppel. Thereafter, the Superior Court, Berger, J., dismissed the commission’s appeal from the decision of its referee, but this court reversed the judgment and remanded the case to the commission for further proceedings. See Commission on Human Rights & Opportunities v. Torrington, 96 Conn. App. 313, 901 A.2d 46 (2006).

When administrative proceedings recommenced, the commission filed notice that, at the public hearing, it would pursue only the issue of whether the city and McGuinness had violated General Statutes § 46a-60 (a) (4) by retaliating against the plaintiff for filing her original complaint with the commission. Following a public hearing, the referee issued a memorandum of decision on August 25, 2008, in which he concluded that the city and McGuinness had retaliated against the plaintiff by initiating the 1995 lawsuit and by delaying their consideration of her special exception permit application from December, 1996, to January, 1997; however, the referee found that she failed to prove that she had incurred damages as a result of the two retaliatory acts. The referee also found that the plaintiff failed to prove that the city had engaged in a retaliatory boycott of her business. Accordingly, the referee ordered the city and McGuinness to cease and desist from any retaliatory action against the parties or any other complainants and to post public notices to its employees concerning discriminatory practices, but the referee made no award of damages. Following the plaintiffs motion for reconsideration, the referee affirmed his decision. The plaintiffs appeal from that decision was dismissed by the Superior Court, Cohn, J., and the plaintiffs subsequent motion for reargument was denied. This appeal followed.

As a preliminary matter, we note that the commission, on behalf of the plaintiff, requests plain error review of two new claims that were not raised in the trial court. We recognize that, pursuant to General Statutes § 46a-94a (a) and in accord with the rules provided in General Statutes § 4-183, the commission has the statutory right to appeal from the final decision of its own hearing officer. See, e.g., Commission on Human Rights & Opportunities v. Torrington, supra, 96 Conn. App. 314 n.1 (commission properly was named both appellant and appellee). Mindful of this right of appeal, the commission contends that it may raise claims of administrative error before this court after “sitting out” the plaintiffs appeal to the trial court. We do not agree.

“The commission clearly is empowered by statute to prosecute complaints on issues of public interest but it must strictly comply with the governing statutes and the regulations it has caused to be issued.” Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 100, 362 A.2d 1359 (1975). Section 4-183 (a) provides that an administrative appeal from an agency decision may be taken to the Superior Court, not this court. Furthermore, pursuant to General Statutes § 4-184, an administrative appeal from a decision of the Superior Court is governed by General Statutes § 51-197b, which provides in subsection (a) that appeals from an agency decision “shall be taken to the Superior Court” and in subsection (d) that “there shall be a right to further review to the Appellate Court . . . (Emphasis added.) See also Garcia v. Hartford, 292 Conn. 334, 336 n.2, 972 A.2d 706 (2009) (declining to address claim not raised before trial court). In plain terms, no party may obtain review of claims of administrative error in this court without first having sought review in the Superior Court. Consequently, because the commission did not first seek review of these claims in the trial court, we will not consider them now.

We turn next to our standard of review of the plaintiffs claims. “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. ... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide [s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Citation omitted; internal quotation marks omitted.) Spitz v. Board of Examiners of Psychologists, 127 Conn. App. 108, 115— 16, 12 A.3d 1080 (2011). “[A]s to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) Id., 116.

I

The plaintiff first claims that the court improperly failed to consider certain statements and documents in its review and, therefore, abused its discretion in concluding that there was substantial evidence to support the referee’s finding that the city did not engage in a retaliatory boycott of the plaintiffs business. We are not persuaded.

The following additional procedural background is relevant to our resolution of this claim. At the agency hearing, in opposition to the plaintiffs allegation that the city had boycotted her business in retaliation for filing her complaint with the commission, the city asserted that it temporarily ceased doing business with the plaintiff because she had failed to renew her special exception permit once it expired in July, 1996. The plaintiff, in rebuttal, alleged that the city’s proffered explanation was pretextual given that the city had bought product from similarly situated businesses in the absence of a permit. Following the referee’s determination that no retaliatory boycott had occurred, the plaintiff filed a motion for reconsideration claiming, inter alia, that the referee had failed to consider Iffland Lumber Company (Iffland) as a comparator. She attached exhibits to her motion regarding the nature of Iffland’s business as proof of her claim that Iffland was similarly situated. In its decision on reconsideration, the referee declined to consider the attachments because they had not been offered into evidence at the hearing. Then, on the basis of its reconsideration of the record, the referee articulated that “there was conflicting and inconclusive testimony by the witnesses as to the nature of Iffland’s business, whether it needed a special exception permit and whether the city had ever issued Iffland a cease and desist order for operating without a permit.” The referee concluded that the plaintiff had failed to prove that Iffland was a similarly situated business.

On her appeal to the trial court, the plaintiff filed several “motion[s] to take judicial notice of public documents.” She again attached exhibits that were not in evidence at the agency hearing. The court denied the motions in its subsequent memorandum of decision, noting that its review of the agency decision was limited to the record developed before the referee. The court also stated that even if it had the authority to consider the newly offered statements and documents, they would not result in reversal of the referee’s decision because, taking the record as a whole, there was substantial evidence to support the referee’s determinations.

The plaintiff presently contends that the court should have considered these statements and documents under the doctrines of judicial admissions and judicial estoppel. We take this, essentially, to be a claim that the record should be expanded to include information that was not submitted for the consideration of the referee. In so arguing, the plaintiff misapprehends the scope of review of an administrative appeal, which is confined to the record. See General Statutes § 4-183 (i). “[A]though we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law. . . . For justice to be done . . . any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Citation omitted; internal quotation marks omitted.) Corriveau v. Corriveau, 126 Conn. App. 231, 238, 11 A.3d 176, cert. denied, 300 Conn. 940, 17 A.3d 476 (2011). Consequently, we conclude that the trial court properly did not consider the newly offered statements and documents.

Additionally, insofar as the plaintiff also claims that the referee and the court disregarded or misinterpreted portions of the record, we agree with the trial court that there is substantial evidence in the record to support the referee’s conclusion that the city did not engage in a retaliatory boycott of her business. The plaintiff submitted evidence that the city continued to do business with vendors who had incurred zoning violations, but the referee reasonably concluded that such businesses are not similarly situated to a business that lacks a permit to operate. Although the plaintiff did submit evidence suggesting that the city bought gravel from a vendor whose permit had lapsed, the referee reasonably distinguished this vendor from the plaintiff on the ground that the vendor’s application was pending at the time and had only lapsed for a week, whereas the plaintiff had waited five months after the expiration of her permit to file an application for renewal. Additionally, the record reflects that, following the renewal of her permit, the plaintiff was either unable or unwilling to bid on the city’s requests for product. The court, therefore, did not err in concluding that the referee reasonably determined on the basis of substantial evidence that the city did not engage in a retaliatory boycott.

II

The plaintiffs second claim is that the court improperly concluded that the referee did not err in determining that the plaintiff did not prove that she suffered compensable damages as a result of the retaliatory acts. We are not persuaded.

At the public hearing, the plaintiff contended that her business suffered and she had to hire attorneys as a result of retaliation by the city. In his decision, however, the referee found that the plaintiff failed to offer persuasive evidence that her business operations suffered as a result of the city’s two acts of retaliation, namely, initiating the 1995 lawsuit and delaying her permit renewal hearing. The referee also concluded that fees paid to attorney Michael Rybak at the time of her permit renewal would have been incurred regardless of the delay and that the city, therefore, was not responsible for that cost. Finally, the referee found that the plaintiff failed to substantiate the fees she paid to attorney Doug Evans to defend against the city’s lawsuit, given that she adduced only an invoice indicating a carryover balance of $8380 with no billing detail and she failed to procure the attendance of the billing attorney to explain the charges upon the city’s request. In light of his finding that the evidence regarding fees was inadequate, the referee did not award any monetary damages.

On appeal, the plaintiff renews her claims for damages from lost sales and fees paid to Rybak and Evans. We address each in turn. First, because we conclude that there was substantial evidence supporting the referee’s finding that no retaliatory boycott occurred, her claim of lost sales caused by the alleged boycott logically must fail. Second, the plaintiff incorrectly asserts that the referee declined to consider the Rybak invoice because of the manner in which she marked the exhibit. As he articulated in the decision on reconsideration, the referee did not reject the exhibit but, rather, he concluded that it was irrelevant because the Rybak fees would have been incurred regardless of the retaliatory delay of her permit hearing. Consequently, because the referee reasonably determined that these fees were not incurred as the result of the city’s action, this claim also must fail.

Third, the plaintiffs claim for the costs of defending against the city’s 1995 lawsuit must fail because she failed to provide a reasonable basis for calculating them. “It is axiomatic that the burden of proving damages is on the party claiming them. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Internal quotation marks omitted.) Rossman v. Morasco, 115 Conn. App. 234, 249, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009). Furthermore, in regard to bills for attorney’s fees, “[i]t would be inconsistent with the placement of the burden on the requesting party ... to allow the requesting party to present an affidavit by the billing attorney in support of the reasonableness of the requested fees, without allowing the opposing party to test that evidence by questioning the affiant under oath.” Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 239, 939 A.2d 541 (2008). Here, the plaintiff merely submitted an invoice that indicated a carryover balance and was devoid of detail. She also failed to produce the billing attorney to explain the charges upon the city’s request. We conclude, therefore, that the referee correctly applied the law to the facts in finding that the plaintiff failed to provide a sufficient basis for awarding these damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has . . . filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . .

       The plaintiffs original administrative complaint, filed on January 20, 1995, alleged violations of General Statutes §§ 46a-64 (a) (1) and 46a-58 (a). Subsequently, she amended the complaint on November 19, 1996, to add an allegation that the city had discriminated against her in retaliation for filing the original complaint in violation of § 46a-60 (a) (4).

       The commission claims that the referee improperly (1) failed to award nominal damages and (2) placed the burden of proving damages on the plaintiff.

       General Statutes § 46a-94a (a) provides in relevant part: “The Commission on Human Rights and Opportunities, any respondent or any complainant aggrieved by a final order of a presiding officer . . . may appeal therefrom in accordance with section 4-183. The court on appeal shall also have jurisdiction to grant to the commission, respondent or complainant such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree enforcing or modifying and enforcing as so modified or setting aside, in whole or in part, the order sought to be reviewed.”

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § 4-184 provides: “An aggrieved party may obtain a review of any final judgment of the Superior Court under this chapter. The appeal shall be taken in accordance with section 51-197b.”

       General Statutes § 51-197b provides in relevant part: “(a) Except as provided in section 31-30lb, all appeals that may be taken from administrative decisions of officers, boards, commissions or agencies of the state or any political subdivision thereof shall be taken to the Superior Court. . . . (d) Except as provided in sections 8-8, 8-9 and 22a-43, there shall be a right to further review to the Appellate Court under such rules as the judges of the Appellate Court shall adopt. . . .”

       Specifically, the plaintiff included the following documents which had not been admitted into evidence at the hearing: a special exception peimit for an unnamed business; testimony from the plaintiffs civil trial in the federal District Court; an assessment of Iffland’s unused processing plant printed on the day before the court’s memorandum of decision was filed; a 2004 letter from the Mine Safety Health Administration stating that Iffland was on file as an abandoned construction sand and gravel mining facility; minutes from a 1999 city planning and zoning commission meeting; and argument by opposing counsel in her federal trial.

       General Statutes § 4-183 (i) provides: “The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.”

       The plaintiff also claims that, by offering an invoice from attorney Doug Evans into evidence, she laid a sufficient foundation to establish that she incurred damages in defending against the city’s 1995 lawsuit and that, pursuant to Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 828 A.2d 64 (2003), the referee should have shifted the burden of persuasion to the city to disprove that the invoice was reasonable. Because this claim was not raised before the court, we decline to address it here. See Garcia v. Hartford, supra, 292 Conn. 336 n.2.

       We note that even if the plaintiff had provided adequate evidence relating these claimed fees to the conduct of the city, it is an open question whether the referee would have been empowered under the statutory scheme to award monetary damages. Following a finding of discriminatory conduct, the human rights referee must fashion a remedy pursuant to General Statutes § 46a-86. Our Supreme Court, however, ruled in an employment discrimination case that § 46a-86 does not empower the referee to award compensatory damages or attorney’s fees to remedy a violation of § 46a-60, which was the sole statutory basis of the plaintiffs claim in the case at hand. See Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 97, 653 A.2d 782 (1995). The question of whether Bridgeport Hospital controls in a nonemployment context such as in this case is left for another day.


author: LAVINE, J. BISHOP, J.,

text:
    IN RE EMONI W. ET AL.

    (AC 32453)
    (AC 32454)
    Bishop, Lavine and Beach, Js.

    Argued January 19
    officially released June 28, 2011

      Michael F. Miller, for the appellants (minor children in AC 32453).

      Don M. Hodgdon, for the appellant (respondent father in AC 32454).

      Tammy Nguyen-ODowd, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Richard Blumenthal, former attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner in both cases).

      Sarah Healy Eagan filed a brief for the Center for Children’s Advocacy, Inc., et ai. as amici curiae.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in these appeals are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       This case originally was argued before a panel of this court consisting of Judges Harper, Lavine and Beach on January 19,2011. After oral argument, Judge Bishop replaced Judge Harper on the panel. All parties agreed that oral argument before the revised panel was not needed.

   Opinion

LAVINE, J.

The respondent father (respondent) and his minor children (children), Emoni W. and Marlon W., appeal from the judgments of the trial court finding that the requirements of the Interstate Compact on the Placement of Children (compact), General Statutes § 17a-175, apply to the placement of a child with an out-of-state, noncustodial parent. On appeal, the respondent and the children argue that the court erred in finding that, pursuant to § 17a-175, it could not place the children with the respondent without an approved compact study from the commonwealth of Pennsylvania, the permanent residence of the respondent. Because we conclude that the respondent’s and children’s claims are moot and do not fall under any exceptions to the mootness doctrine, we lack subject matter jurisdiction to address their claims on appeal.

The following facts and procedural history are relevant to these appeals. The petitioner, the commissioner of children and families, became involved with the children because on April 28 and May 19,2010, their mother failed to provide adequate supervision of them. On July 9, 2010, the mother was arrested and charged with four counts of risk of injury to a child, possession of crack cocaine with intent to sell, possession of marijuana with intent to sell, possession of a hallucinogenic with intent to sell and operating a drug factory. Also on July 9, 2010, the children were removed from the mother’s home under a ninety-six hour hold pursuant to General Statutes § 17a-101g.

On July 12, 2010, the court granted the petitioner’s ex parte motions for orders of temporary custody as to the children. On this date, the petitioner, for the first time, became aware of the respondent. The petitioner learned that the respondent was living in Pennsylvania and that he previously had been responsible for the children’s care for extended periods of time during school holidays. The petitioner also became aware that the respondent wanted to have the children live with him after their mother had been arrested.

On July 16, 2010, a preliminary hearing was held concerning the petitioner’s orders for temporary custody. At this hearing, the respondent argued that § 17a-175 did not apply to him as a noncustodial parent and requested that the court allow him to take custody of the children. The court did not rule in response to the respondent’s request but, instead, scheduled oral argument on the issue of whether § 17a-175 applied to an out-of-state, noncustodial parent. On July 23, 2010, the court concluded that § 17a-175 does apply to the placement of children with out-of-state, noncustodial parents. The children and the respondent filed separate appeals from this decision on July 30 and August 5, 2010, respectively.

At a hearing on September 16, 2010, the court reported that it received the results of the compact study, authorizing placement of the children with the respondent in Pennsylvania on the condition that the court order six months of protective supervision. On this same date, the court adjudicated the children neglected and granted joint legal custody of the children to the respondent and the mother with physical custody in the respondent. The court also ordered protective supervision for a period of six months with the respondent. At the time of oral argument in this court, the children were living with the respondent.

Before we may address the respondent’s and children’s claims that § 17a-175 does not apply to out-of-state, noncustodial parents, we must first address whether we are precluded from reviewing their claims because they are moot. The issue of mootness was not addressed by the parties in their initial briefs or at oral argument. We ordered, sua sponte, the parties to submit supplemental briefs addressing whether the claims were moot and, if so, whether review was still permissible under the “capable of repetition, yet evading review” exception to the mootness doctrine.

The parties all agree that the claims are moot; however, they also all contend that the claims ought to be reviewed because they are capable of repetition, yet evading review. See Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995). Notwithstanding the parties’ common position, we must conduct our own independent analysis. “[A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.” (Internal quotation marks omitted.) D’Auria v. Solomine, 107 Conn. App. 711, 714-15, 947 A.2d 345 (2008).

“Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Id., 714.

We agree with the parties that the respondent’s and children’s claims are moot because the compact study, recommending placement of the children with the respondent, was completed and the court granted the respondent legal and physical custody of the minor children during the pendency of these appeals. Furthermore, as noted, the period of protective supervision ordered by the court as a result of the compact study expired on March 18,2011. There is, therefore, no practical relief that we can provide to the respondent or the children. We recognize, however, that review of the claims is still possible if they meet the requirements of an exception to the mootness doctrine. The respondent and the children argue that their claims can be reviewed under the “capable of repetition, yet evading review” exception. We disagree.

“Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, supra, 233 Conn. 382-83.

“[A] party typically satisfies [the first] prong if there exists a ‘functionally insurmountable time [constraint]’ Dutkiewicz v. Dutkiewicz. 289 Conn. 362, 367, 957 A.2d 821 (2008); or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 233 Conn. 383. In other words, “[t]his requirement is satisfied when there is a strong likelihood that the inherently limited duration of the action will cause a substantial majority of cases raising the same issue to become moot prior to final appellate resolution.” Burbank v. Board of Education, 299 Conn. 833, 840, 11 A.3d 658 (2011).

We conclude that the first prong of Loisel is not satisfied because the challenged action here, the application of § 17a-175 to out-of-state, noncustodial parents, is not inherently limited in duration and will not cause a substantial majority of cases raising the same issue to become moot prior to final appellate resolution. An order requiring that a compact study must be completed before a child can be placed with an out-of-state, noncustodial parent has an indefinite lifespan every time the receiving state disapproves of the transfer. Compare In re Fabian A., 106 Conn. App. 151, 155-56, 941 A.2d 411 (2008) (order extending delinquency commitment inherently limited because, by statute, extension can last no more than eighteen months).

The respondent and the children argue that the first prong of Loisel is satisfied because orders of temporary custody are, by their very nature, limited in duration. The respondent and the children mischaracterize the challenged action that we must review under the first prong of Loisel. Although the court granted the petitioner’s ex parte motions for orders of temporary custody as to the children on July 12, 2010, that is not the challenged action before this court. We are being asked to address whether the court’s conclusion that § 17a-175 applies to the placement of children with out-of-state, noncustodial parents was proper. As noted, we conclude that this order does not have an inherently limited lifespan.

Furthermore, the petitioner claims that there is a strong likelihood that a substantial number of cases involving the application of § 17a-175 to the placement of a child with an out-of-state, noncustodial parent will evade review. In support of this conclusion, the petitioner relies on statistics compiled by the department of children and families’ interstate compacts office. These statistics, however, do not support the petitioner’s claim that the challenged action here satisfies the first prong of Loisel. As noted, the standard is that there must be a “strong likelihood that the inherently limited duration of the action will cause a substantial majority of cases raising the same issue to become moot prior to final appellate resolution.” (Emphasis added.) Burbank v. Board of Education, supra, 299 Conn. 840. According to the statistics cited by the petitioner, the receiving state disapproves of the placement of a child with the noncustodial parent almost half of the time that a compact study is requested. In these situations where placement is denied, any order by the court applying § 17a-175 to out-of-state, noncustodial parents will not become moot. It is in these situations that an actual controversy will still exist and our appellate courts will be in the position to provide actual relief.

We acknowledge the importance of this issue to out-of-state, noncustodial parents and understand the desire of the parties to obtain a judicial ruling. We also understand that compact studies can delay the placement of a child with a biological parent. See V. Sankaran, “Out of State and Out of Luck: The Treatment of Non-Custodiai Parents Under the Interstate Compact on the Placement of Children,” 25 Yale L. & Policy Rev. 63, 74 n.53 (2006) (“State Compact administrators report waiting an average of three to four months for the entire home study to be completed. . . . Others have observed that the [compact] approval process can take ‘between six months and one year and at times has exceeded one year’.” [Citation omitted.]). We are, however, constrained not to reach out and decide a case when we have concluded we lack subject matter jurisdiction. To do so would be to issue an advisory opinion, which we cannot do.

The respondent’s and children’s claims do not satisfy the first prong of Loisel; they are not entitled to consideration of their appeals under the “capable of repetition, yet evading review” exception. The appeals, therefore, must be dismissed for lack of subject matter jurisdiction.

The appeals are dismissed.

In this opinion BEACH, J., concurred.

BISHOP, J.,

dissenting. Although I agree with the majority that this case is moot, I disagree with the majority’s conclusion that the issues on appeal are not capable of repetition, yet evading review. Accordingly, I would reach the merits of these appeals and, for the reasons set forth herein, reverse the judgments of the trial court.

I

As the majority notes, “to qualify for review under the ‘capable of repetition, yet evading review’ exception, [the challenged action] must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995). I do not believe that the majority disagrees that these appeals meet the second two requirements. We diverge, however, on the first factor.

At our request, the parties have briefed the issue of mootness, all agreeing not only that the issue in these appeals is moot, but also that it is capable of repetition, yet evading review. The Center for Children’s Advocacy, Inc., the National Association of Counsel for Children and the Connecticut commission on child protection also filed a joint amicus brief in which they agree that the issues in these appeals are moot but capable of repetition, yet evading review. Although I agree that the parties’ shared desire for a resolution of the issue on appeal cannot create jurisdiction where it does not otherwise exist, I find their reasoning cogent and persuasive. Consequently, like the parties, I believe that this case meets all three requirements for review under the capable of repetition, yet evading review exception.

The majority concludes to the contrary on the basis of its reasoning that an order requiring a compact study pursuant to General Statutes § 17a-175 has an indefinite lifespan. Consequently, the majority believes that these appeals do not satisfy the Loisel requirement that the order is of inherently limited duration and, therefore, likely to escape review. Respectfully, I disagree. As acknowledged by the majority, the petitioner, the commissioner of children and families, has provided statistics in a supplemental brief demonstrating that approximately 73 percent of interstate compact requests are completed prior to oral argument on appeal. This is persuasive evidence that there exists a strong likelihood that a substantial majority of cases regarding interstate compact studies will become moot prior to appellate resolution.

Because the issue raised on appeal affects biological parents, a reasonably identifiable group for whom the appellant herein, the respondent father, can be said to act as a surrogate, and the issue regarding the right of a parent to the care of his minor children is of unquestionable public importance, I believe that this case meets the remaining prongs of Loisel. Accordingly, I believe that, although moot, the claim presented in these appeals is capable of repetition, yet evading review.

II

The respondent and his minor children claim on appeal that § 17a-175 does not apply to out-of-state, noncustodial parents. Specifically, they argue that article in of § 17a-175 is unambiguous and by its plain language excludes out-of-state, noncustodial parents from its reach. I agree and, accordingly, would reverse the judgments of the trial court.

“Our standard of review for issues of statutory interpretation is well settled. Issues of statutory construction raise questions of law, over which we exercise plenary review.” (Internal quotation marks omitted.) Goodspeed Airport, LLC v. East Haddam, 115 Conn. App. 438, 442-43, 973 A.2d 678, cert. granted on other grounds, 294 Conn. 907, 982 A.2d 1082 (2009).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. ... In seeking to determine [the] meaning [of a statute], General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Dechio v. Raymark Industries, Inc., 299 Conn. 376, 389-90, 10 A.3d 20 (2010).

The compact initially was codified by General Statutes § 17-81a in 1967; Public Acts 1967, No. 67-178, § 1; and by 1990, every state, the District of Columbia and the Virgin Islands had passed legislation enacting the compact into law. See V. Sankaran, “Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children,” 25 Yale L. & Policy Rev. 63, 68 (2006). Today, § 17a-175 includes ten articles that encompass the compact and provide detailed guidelines for placing minor children out-of-state.

According to article I of § 17a-175, the purpose of the compact is to promote cooperation among the states “in the interstate placement of children to the end that: (a) Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care, (b) The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child, (c) The proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made, (d) Appropriate jurisdictional arrangements for the care of children will be promoted.”

Article III of the statute provides: “No sending state shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.” Article VIII provides in relevant part: “This compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by his parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state.”

I conclude that § 17a-175 is both plain and unambiguous and that it does not apply to an out-of-state, noncustodial parent. Specifically, article III provides that no sending state shall send any child for placement in foster care or as a preliminary to a possible adoption. Although the statute does not define “foster care” or “adoption,” I conclude that pursuant to their plain meaning, these terms do not include a noncustodial parent. These terms are not susceptible to more than one reasonable interpretation; and equating persons to whom the compact applies with noncustodial parents expands the reach of the statute beyond the breaking point. Consistent with the dictates of § l-2z, therefore, I will not consider any extratextual evidence of the meaning of the statute. I conclude that the compact does not require a state that is placing children with an out-of-state, noncustodial parent to comply with its provisions.

The petitioner argues that by interpreting article III to exclude out-of-state, noncustodial parents, we would render article VIII meaningless. Moreover, the petitioner claims that article VIII defines the only situations in which the compact does not apply. I do not believe, however, that article VIII provides an exhaustive list of situations in which the compact does not apply. While article VIII specifically lists certain situations pursuant to which the compact does not apply, as noted, article HI clearly establishes, as a precondition, that the placement of children in foster care, or as a preliminary to a possible adoption, is contemplated.

My interpretation of § 17a-175 is not at odds with article VIII. Both articles III and VIII of the compact “[evince] the intent of the drafters to respect the integrity of the family and to allow parents to plan for the care of their own children unless the children were being placed in foster care or were being adopted.” V. Sankaran, supra, 25 Yale L. & Policy Rev. 70-71. My conclusion is consistent with this intent. Here, the respondent is seeking to care for his own children, in his home state, and is not seeking to adopt them or place them in foster care. I do not believe that the drafters intended to burden parents with the same requirements as those individuals or agencies who are seeking to adopt children or provide foster care to children to whom they are not related.

The petitioner further argues that our construction of § 17a-175 contradicts the compact’s regulations. By way of background, the Association of Administrators of the Interstate Compact on the Placement of Children drafted model regulations for states to adopt as a supplement to the compact. Id., 71-72. Specifically, Regulation No. 3 (6) (b) provides: “The Compact does not apply whenever a court transfers the child to a noncustodial parent with respect to whom the court does not have evidence before it that such parent is unfit, does not seek such evidence, and does not retain jurisdiction over the child after the court transfers the child.” Subsection (5) of this regulation also provides: “The term ‘foster care’ as used in Article III . . . means care of a child on a 24-hour a day basis away from the home of the child’s parent(s). Such care may be by a relative of the child . . . .” Finally, subsection (1) provides: “ ‘Placement’ as defined in Article II (d) includes the arrangement for the care of a child in the home of his parent . . .

The petitioner argues that pursuant to these regulations, § 17a-175 must apply to out-of-state, noncustodial parents. I conclude that the petitioner’s interpretation of Regulation No. 3 is in direct conflict with § 17a-175 and, as such, the statute must control. Specifically, the petitioner’s reading of the regulation expands article III to include situations that were not originally included when the compact was adopted by our legislature. This is the judicial equivalent of permitting the tail to wag the dog. “A regulation cannot be upheld if it is contrary to the statute under which it was promulgated.” (Internal quotation marks omitted.) McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991). The regulation provides no basis upon which to elongate the language of § 17a-175 to apply to parents in the respondent’s situation.

The petitioner argues that our decision will place children at risk of harm because the compact provides the most thorough investigation possible of the proposed placement by the receiving state. I understand, and share, the petitioner’s desire to assure the highest level of safety for children who are placed with an out-of-state, noncustodial parent. Expanding the meaning of § 17a-175, however, to include situations clearly not within the reach of the statute, to the detriment of noncustodial parents, is not the proper way, or the only way, to protect children who are being placed out of state. Our role as an appellate court, moreover, is not to provide alternatives to a compact study. Our role in this case simply is to determine whether the compact applies to out-of-state, noncustodial parents. I have concluded that it does not. I have confidence that the responsible authorities will be able to devise alternative approaches that safeguard children placed with noncustodial parents in other states.

In reaching this decision, I join at least five other state courts, and the only federal court to address the issue of whether the compact applies to out-of-state, noncustodial parents. In McComb v. Wambaugh, supra, 934 F.2d 474, the United States Court of Appeals for the Third Circuit concluded that, in determining whether the compact applied to an out-of-state, noncustodial parent, “[t]he most significant and, to our minds, determinative language is found in Article III (a) . . . .” Id., 480. The court concluded that, “[t]he scope of the Compact is carefully limited to foster care or dispositions preliminary to an adoption. Article III thus precisely reflects the articulated intention of the Council of State Governments.” (Emphasis added.) Id.

In addressing article VIII, the McComb court concluded that it “excludes from the scope of the Compact the sending of a child into a receiving state by certain relatives (including a parent) or his guardian and leaving the child with any such relative [including a parent]. The word guardian is not defined in the statute. Presumably if an agency has been appointed guardian, it can place a child in another state with a parent or other relative designated in the Compact without being affected by its terms.

“The detailed draftsman’s notes, supplied by the Council of State Governments, reinforce the notion that the Compact does not apply to parental placements. The notes state that Article VIII exempts certain close relatives. This was done in order to protect the social and legal rights of the family and because it is recognized that regulation is desirable only in the absence of adequate family control or in order to forestall conditions which might produce an absence of such control.” (Internal quotation marks omitted.) Id., 480-81.

Finally, the Court of Appeals noted that “[w]e are persuaded that read as a whole the Compact was intended only to govern placing children in substitute arrangements for parental care. Thus, the Compact does not apply when a child is returned by the sending state to a natural parent residing in another state. The language of Article III is unambiguous . . . .” Id., 482. I agree with the court’s interpretation of article III and join those jurisdictions that have held that the compact applies to children being placed in substitute arrangements for parental care, and does not apply to out-of-state, noncustodial parents.

On the basis of the foregoing, I would reverse the judgments of the trial court and remand the case with direction to render judgments for the respondent and the children. Accordingly, I respectfully dissent.

       Children are parties to juvenile cases involving abdications of neglect and the termination of parental rights. See Practice Book § 32a-l et seq. Children also have independent standing to bring a direct appeal of a judgment terminating parental rights. See In re Melody L., 290 Conn. 131, 156-57, 962 A.2d 81 (2009).

       General Statutes § 17a-175 provides in relevant part: “Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care. ... No sending state shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein. . . . Prior to sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. . . .” (Emphasis added.)

       The respondent further claims that § 17a-175 violates abiological parent’s procedural and substantive due process rights under the federal and Connecticut constitutions. We do not reach the constitutional claims in light of our conclusion that subject matter jurisdiction is lacking.

       The mother of the minor children has not appealed. We therefore refer in this opinion to the respondent father as the respondent.

       Practice Book § 61-6 (c) provides: “To the extent provided by law, the defendant or the state may appeal from a ruling that is not a final judgment or from an interlocutory ruling deemed to be a final judgment.” This judgment is akin to an order for temporary custody, which our Supreme Court previously has concluded is immediately appealable as a final judgment. See Madigan v. Madigan, 224 Conn. 749, 757, 620 A.2d 1276 (1993). In Madigan, the court was persuaded by the plaintiffs argument that “[a] lost opportunity to spend significant time with one’s child cannot be replaced by a subsequent order of custody as part of an ultimate dissolution judgment,” and “[t]o deny immediate relief to an aggrieved parent interferes with the parent’s custodial right over a significant period in a manner that cannot be redressed by a later appeal.” Id., 756. The court, therefore, concluded that “temporary custody orders are immediately appealable because an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected.” Id., 757. The court’s decision concerning the applicability of the compact raises similar concerns and is, therefore, immediately appealable as a final judgment.

       This protective order has not been appealed.

       In the supplemental brief submitted by the respondent, we were informed that the period of protective supervision ended on March 18, 2011.

       Although an appeal from the court’s orders of temporary custody is not the issue in this case, we note that in In re Forrest B., 109 Conn. App. 772, 953 A.2d 887 (2008), the respondent mother appealed from the judgments of the trial court sustaining orders of temporary custody as to her two minor children. Id., 773. Although she conceded that this issue was moot, the respondent argued that her claims could be reviewed under the “capable of repetition, yet evading review” exception to the mootness doctrine. Id., 775. The respondent, however, did not produce any evidence that orders of temporary custody are, by their very nature, of such a limited duration that there is a strong likelihood that they will become moot before appellate litigation can be concluded. This court concluded that “[i]n failing to establish that the substantial majority of temporary custody orders evades review, the respondent has foundered on the first required criterion of the exception,” and, therefore rejected the respondent’s claim that the capable of repetition, yet evading review exception applies to her appeal. Id., 776.

       In 2010, for example, there were 109 compact study requests and placement was denied in fifty-one of the cases.

       The petitioner argues that the statistics demonstrate that the minimum amount of time that passes before an appeal is ready for oral argument exceeds the time before a decision can be made for placement in over 70 percent of all study requests. We do not quarrel with this assessment, but it is only when these studies result in the receiving state approving of placement that the claim becomes moot before appellate review.

       Specifically, the attorney general explained that: “In the 2005 reporting period, there were 50 home study requests by an out-of-state parent; 31 of them being completed before [the amount of time it would take for an average appeal to be ready for oral argument], or 62 [percent]. [In 2006, it was 14 out of 34 home study requests, or 41 percent]. In 2007, the number was 69 out of 88, or 78 [percent]. In 2008, the number was 75 from a total of 95 home study requests, or 79 [percent]. In 2009, [it was] 67 out of 91 home study requests ... or 74 percent. In 2010 ... [it was 83 out of 109 home study requests, or 76 percent]. Combining all six years from 2005 to 2010, 339 home study requests out of 467, or [73] percent, would have received a placement decision prior to any appeal being heard for oral argument.”

       I recognize, as the majority has noted, that this court, in In re Forrest B., 109 Conn. App. 772, 953 A.2d 887 (2008), concluded that the respondent mother failed to offer any evidence showing that “most cases challenging a temporary custody order are, by their very nature, of such a limited duration that there is a strong likelihood that they will become moot before appellate litigation can be concluded.” Id., 776. In the case at hand, however, the petitioner has provided statistical evidence regarding interstate compact cases leading me to believe that a substantial majority of these cases are, in fact, likely to evade review.

       Because I agree that § 17a-175 by its own very terms does not apply to out-of-state, noncustodial parents, I would not address the respondent’s claim that § 17a-175 violates aparent’s federal and state constitutional rights.

       Article II (d) of General Statutes § 17a-175 provides: “ ‘Placement’ means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.”

       In an article, “Out of State and Out of Luck: The Treatment of Noncustodial Parents Under the Interstate Compact on the Placement of Children,” Vivek Sankaran discusses the use of custody hearings as a substitute for the compact when out-of-state, noncustodial parents are seeking custody of their children. The author stated that “[c]hild welfare agencies routinely contract with licensed private foster care groups ... to assess potential placements, license foster parents, and monitor children in homes. Courts and states could make greater use of such arrangements to help ensure that home studies of biological parents are completed in a more timely manner. The result of this home study could be admitted into evidence at the custody hearing at which a judge, not a caseworker, would have the final authority to approve or deny the placement. . . . Courts could [also] maintain the current [compact] framework but modify its application when the interests of biological parents are implicated. For example, if an out-of-state parent requests placement of his child, the receiving state could continue to bear responsibility for conducting the home study and making an initial recommendation about the parent’s suitability. But under this modified approach, the home study would have to be conducted on an expedited basis, and the court, either in the sending or receiving state, would possess the exclusive authority to make the ultimate placement decision after a hearing at which the parent could be heard.” V. Sankaran, supra, 25 Yale L. & Policy Rev. 88-89. Again, while I will not opine as to the appropriate replacement for the compact, I believe alternative approaches exist, and can be devised, to assure the safety of children placed with out-of-state, noncustodial parents.

       Other state cases that have found that the compact does not apply to out-of-state, noncustodial parents include Arkansas Dept. of Human Services v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002); Tara S. v. Superior Court, 13 Cal. App. 4th 1834, 17 Cal. Rptr. 2d 315 (1993); In re Alexis O., 157 N.H. 781, 959 A.2d 176 (2008); In re Mary L., 108 N.M. 702, 778 P.2d 449 (App.), cert. denied, 108 N.M. 713, 778 P.2d 911 (1989); In re Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).

       Unconstrained by § l-2z, or any analogous federal statute, the court also examined extratextual evidence in arriving at its conclusion.