author: GRUENDEL, J.

text:
    WIACEK FARMS, LLC v. CITY OF SHELTON ET AL.
    (AC 32260)
    Gruendel, Beach and Alvord, Js.
    Argued September 7
    officially released November 15, 2011

      Dana B. Lee, with whom, on the brief, were Jon Berk and Katherine L. Matthews, for the appellant (defendant Mark A. Lauretti).

      Thomas E. Minogue, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant Mark A. Lauretti appeals from the judgment of the trial court denying his motion for summary judgment, which asserted that the doctrine of collateral estoppel barred the action brought by the plaintiff, Wiacek Farms, LLC. We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff; see Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); reveals the following facts. In 1993, the city of Shelton (city), acting through its board of aldermen, adopted an open space plan with the purposes of identifying conservation areas and high priority open space areas and pursuing a greenway corridor program.

In October, 2003, the plaintiff submitted a twenty-four lot residential subdivision plan to the Shelton planning and zoning commission (commission) concerning a parcel of land of approximately forty-one acres adjacent to Shelton High School. The commission approved the plaintiffs subdivision proposal in March, 2004. In July, 2004, the plaintiff posted the subdivision bonds required by the city and thereafter obtained a bank mortgage in the amount of $2 million for the purpose of developing the subdivision in accordance with the approved subdivision plan.

In December, 2003, the defendant, who at all relevant times was the mayor of the city, acquired title to a parcel of land in the city in the name of his limited liability company and with the intent of developing the property as a six lot subdivision. The complaint alleges that this property, if subdivided, would be in competition with the plaintiffs subdivision.

On August 6, 2004, John Anglace, president of the board of aldermen of the city, stated in the Connecticut Post that the board of aldermen recently had authorized the defendant, as mayor, to attempt to purchase the plaintiffs property on behalf of the city, and failing that, to commence condemnation proceedings. The defendant, in his capacity as mayor, subsequently met with representatives of the plaintiff to discuss the possible purchase of the property to achieve the goals of the city’s open space plan. On August 31,2004, the plaintiffs representatives informed the city that it was unwilling to sell its property to the city according to the defendant’s proposed terms.

On September 13, 2004, the plaintiff submitted to city engineer Robert Kulacz a written application for an excavation permit to install utilities and new roads as set forth in the approved and recorded subdivision plan. On December 13, 2004, Kulacz informed the plaintiffs representatives that excavation permit applications must be approved by the mayor’s office, allegedly at the behest of the defendant. Kulacz told the plaintiffs representatives that the defendant had ordered him not to issue any permits to the plaintiff and to direct any inquiries regarding the property to the mayor’s office. Thereafter, “stop work order” placards were placed on the plaintiffs property, stating that building code, zoning or wetland violations existed at the site.

On September 30, 2004, the city, acting through its board of aldermen, voted to condemn the property. On January 7, 2005, the city instituted a condemnation action by filing a statement of compensation in the Superior Court. In response, the plaintiff instituted an action seeking an injunction to preclude the city from condemning the property through eminent domain proceedings. Wiacek Farms, LLC v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-05-4002169-S (March 30,2005). The city was the only named defendant. The plaintiff claimed that the city failed to engage in any reasonable negotiations for the purchase of the property and therefore failed to satisfy a condition necessary for the institution of condemnation proceedings. The plaintiff also claimed that the city acted in bad faith, in part because the defendant owned land that also had been identified as a potential area for the city to purchase as part of its open space plan. Following a hearing, the court rejected both claims and rendered judgment in favor of the city. The city proceeded to acquire the parcel of land on April 4,2005.

On October 20, 2006, the plaintiff commenced the present action against the city, as well as the defendant, Kulacz, Anglace, and city zoning enforcement officer Thomas Dingle, in both their individual and official capacities. In its third amended complaint, the plaintiff claimed interference with business and contractual expectations and violations of the applicable Connecticut antitrust statutes.

On October 1, 2009, the defendant filed a motion for summary judgment asserting that the present action is barred by the doctrine of collateral estoppel because the plaintiff seeks to relitigate issues already determined in the earlier action. After hearing argument on the motion on March 1,2010, the court subsequently denied the defendant’s motion for summary judgment. In its memorandum of decision, the court concluded that collateral estoppel should not bar the plaintiffs action because in the prior proceeding (1) the conduct of the board of aldermen was at issue, not that of the defendant; (2) the court made no findings regarding certain allegations in this case, namely, the issue of the excavation permit; (3) the defendant’s ownership of competing property played “at best a tangential role” and (4) neither the judge nor the parties had the benefit of extensive discovery. The defendant’s appeal followed.

As a preliminary matter, we set forth the applicable standard of review. Whether the trial court properly declined to invoke the doctrine of collateral estoppel is a question of law over which our review is plenary. Corcoran v. Dept. of Social Services, 271 Conn. 679, 688, 859 A.2d 533 (2004).

“Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.” (Citation omitted; internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 132, 907 A.2d 1220 (2006). “An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.” (Emphasis in original; internal quotation marks omitted.) Sellers v. Work Force One, Inc., 92 Conn. App. 683, 686, 886 A.2d 850 (2005). Therefore, a party may assert the doctrine of collateral estoppel successfully when three requirements are met: “[1] [t]he issue must have been fully and fairly litigated in the first action, [2] it must have been actually decided, and [3] the decision must have been necessary to the judgment.” Busconi v. Dighello, 39 Conn. App. 753, 767-68, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996).

“Before collateral estoppel applies there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” Crochiere v. Board of Education, 227 Conn. 333, 345, 630 A.2d 1027 (1993). “[T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding.” (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414 (1991). “Simply put, collateral estoppel has no application in the absence of an identical issue.” (Internal citation omitted.) Corcoran v. Dept. of Social Services, supra, 271 Conn. 690. Further, “[t]he [party seeking estoppel] has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 377, 727 A.2d 1245 (1999).

The defendant claims that the court improperly denied his motion for summary judgment because it failed to accord collateral estoppel effect to the court’s finding in the injunction proceeding that the city had not acted in bad faith. Specifically, the defendant argues that in the injunction proceeding the court necessarily determined two issues that are dispositive in the present action: “(1) the city did not act in ‘bad faith’ in conjunction with the alleged ‘bad acts’ of [the defendant] to halt competition; and (2) the taking of the property was a lawful exercise of the power of eminent domain.” The defendant therefore asserts that the plaintiff had a full and fair opportunity to litigate these issues. We disagree with the defendant and conclude that the court properly denied the defendant’s motion for summary judgment because there is insufficient identity of the issues involved in the actions.

We begin with a review of the issues presented to each court. In the injunction action, the plaintiff claimed that the city (1) failed to meet the requirement that it “exhaust all reasonable efforts to obtain the land it desires by agreement”; (internal quotation marks omitted) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 601, 790 A.2d 1178 (2002); and (2) acted in bad faith. The plaintiff raised several bases for its bad faith claim, including the fact that the city offered the plaintiff $2.3 million for the property but later indicated a willingness to pay $2.5 million, that the city’s reasons for acquiring the property were varied, and finally that the defendant “owns land in the city that has also been identified as a potential area for the city to purchase as part of its open space plan.” Wiacek Farms, LLC v. Shelton, supra, Superior Court, Docket No. CV-05-4002169-S.

In the present case, the plaintiff claimed that the defendant improperly interfered with its business expectancy to earn profit from the sale of homes that the plaintiff intended to construct on the parcel of land condemned by the city, and that the defendant violated the Connecticut Antitrust Act; General Statutes § 35-24 et seq.; by seeking to prevent competition. Specifically, the plaintiff’s alleged that the defendant tortiously interfered by wrongfully injecting himself into the excavation permit process, advocating at a commission meeting that the plaintiff’s subdivision application be denied, causing a stop work order to stall construction work on the subdivision, using his office of mayor to forestall enforcement actions on his own allegedly illegal subdivision, and using his office of mayor to improperly cause the city to take the property by eminent domain.

The issue of whether the defendant caused the plaintiff monetary damages by improperly interfering with its business expectations is sufficiently different than the issue presented for determination in the injunction proceeding. In the injunction proceeding, the issue was whether the city acted in bad faith in the taking of the property, in part because the defendant had an ulterior motive as a property owner of an allegedly competing potential subdivision. In the present action, the issue is the defendant’s behavior, especially in connection to the plaintiff’s application for an excavation permit, and whether that conduct “constitutes improper, illegal, wrongful, bad faith [or] dishonest acts of interference with [the plaintiff’s] contracts and business expectancies.” The plaintiffs claims in the present action do not require a showing that the taking of the property by the city was unlawful.

There is some overlap in the facts relevant to the issues. The fact that the defendant owns property in the city that was also identified as a potential area for the city to purchase as part of its open space plan is pertinent to the determination of both issues. Our Supreme Court has held, however, that an overlap in issues does not necessitate a finding of identity of issues for the purposes of collateral estoppel. “We acknowledge that there was some area of overlap in the issues presented in the two proceedings. . . . [H]owever, the linchpin of collateral estoppel is the identity of the issues decided by both tribunals, and, in the present case, we are not persuaded that the issues are identical. . . . Because we have recognized that applying the doctrine of collateral estoppel has harsh consequences, namely, cutting off a party’s right to future litigation on a given issue, we have been reluctant to uphold the invocation of the doctrine unless the issues are completely identical.” Corcoran v. Dept. of Social Services, supra, 271 Conn. 691-94. On the facts in the present case, foreclosing the plaintiffs claim is inappropriate because the issues are not identical.

The issue presented in this case and the issue presented in the injunction proceeding are not sufficiently identical. Accordingly, the court properly concluded that the plaintiffs action is not barred under the doctrine of collateral estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The city of Shelton, John Anglace, Thomas Dingle and Robert Kulacz also are defendants in this case. They did not join the motion for summary judgment and are not parties to this appeal. We refer to Lauretti as the defendant in this opinion.

       The third amended complaint was the operative complaint at the time of the motion for summary judgment.

       Because the parties to the injunction action and the parties to the present action are not precisely identical, we review the applicable principles governing who may invoke the doctrine of collateral estoppel to preclude an opposing party from relitigating a claim or issue. The defensive use of the doctrine of collateral estoppel by one who was not a party to the initial proceeding was approved in Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 596 A.2d 414 (1991). “[T]he ‘crowning consideration’ in collateral estoppel cases and the basic requirement of privity [is] that the interest of the party to be precluded, must have been sufficiently represented in the prior action so that the application of collateral estoppel is not inequitable.” (Emphasis added.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 818, 695 A.2d 1010 (1997). Here, collateral estoppel is being invoked against a party to the prior proceeding, and, therefore, the privity requirement is not an issue.

       “Under Connecticut law, ‘[t]he denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, not a final judgment for purposes of appeal.’ Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 785, 865 A.2d 1163 (2005). Nevertheless, in Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 544 A.2d 604 (1988), our Supreme Court held that the denial of a claim for collateral estoppel was ‘ripe for immediate appellate review.’ Id., 194. The court explained that ‘to postpone appellate review and to require further exhaustion of administrative remedies would defeat the very purpose that collateral estoppel is intended to serve. [T]he basic proposition . . . has always been essentially the same: A party should not be allowed to relitigate a matter that it already had opportunity to litigate. . . . [T]he defense of collateral estoppel is a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant’s colorable double jeopardy claim, where immediate appealability is well established ... [a] judgment denying [a] claim of collateral estoppel is a final judgment.” Singhaviroj v. Board of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010). Accordingly, this appeal is procedurally proper.

       We note that it is well established that collateral estoppel is an affirmative defense that may be waived if not properly pleaded. See, e.g., Wilcox v. Webster Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053 (2009) (“[collateral estoppel is an affirmative defense that may be waived if not properly pleaded”); Sydoriak v. Zoning Board of Appeals, 90 Conn. App. 649, 657, 879 A.2d 494 (2005) (collateral estoppel claim deemed waived due to failure to plead it as special defense); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992) (“[cjollateral estoppel, like res judicata, must be specifically pleaded by a defendant as an affirmative defense”); cf. Practice Book § 10-50 (“res judicata must be specially pleaded” as defense). There is, however, an exception to the general rule that collateral estoppel must be pleaded as an affirmative defense. “The defendants’ failure to file a special defense may be treated as waived where the plaintiff fails to make appropriate objection to the evidence and argument offered in support of that defense.” Carnese v. Middleton, supra, 537. In Singhaviroj v. Board of Education, 124 Conn. App. 228, 234, 4 A.3d 851 (2010), we concluded that the defendant’s failure to file a special defense was waived because “the plaintiff at no time objected on the ground of the defendants’ failure to properly plead their res judicata and collateral estoppel defenses. To the contrary, the plaintiff argued the merits of those defenses in his opposition to the motions for summary judgment and at oral argument thereon.” Thus, in the present case, despite the defendant’s failure to specially plead the defense of collateral estoppel, the courtproperly could consider it in deciding the motion for summary judgment.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARTYN D. BRUNO
    (AC 32737)
    Gruendel, Beach and West, Js.

      Argued October 11
    officially released November 15, 2011

      Brian J. Woolf for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, was David Shepack, state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Martyn D. Bruno, appeals from the judgment of the trial court denying his motion for a new trial filed pursuant to Practice Book §§ 42-53 and 42-54. He claims that the court improperly concluded that it lacked jurisdiction to consider the merits of that motion. We affirm the judgment of the trial court.

The facts underlying the defendant’s criminal conviction are set forth at length in State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996). As the sentence review division stated in a subsequent proceeding, “[t]he crime was clearly one of the most vicious, cruel and senseless crimes that one could imagine. The victim was the [defendant’s] friend. The victim begged the [defendant] for his life before the [defendant] brutally bludgeoned the victim to death. If that was not enough disrespect for human life, the [defendant] then burned the victim’s remains to conceal the crime.” State v. Bruno, Superior Court, judicial district of Litchfield, Docket No. CR-91-73668 (June 22, 2004) (Iannotti, Clifford and Holden, Js.f

Following the defendant’s arrest, he was tried before a three judge panel. The court found the defendant guilty of murder in violation of General Statutes §§ 53a-8 and 53a-54a and of three counts of tampering with physical evidence in violation of § 53a-8 and General Statutes § 53a-155 (a) (l), and sentenced the defendant to a term of sixty years incarceration. Our Supreme Court thereafter affirmed that judgment of conviction. State v. Bruno, supra, 236 Conn. 516-17 and 517 n.2.

On July 10, 1996, the defendant filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel. He later amended that petition to allege a violation of his right to a jury trial. On June 11, 2001, the defendant filed a third amended petition, which alleged, inter alia, (1) ineffective assistance of trial counsel in that counsel waived his right to a jury trial without his consent; (2) ineffective assistance of his appellate counsel, in that the counsel failed to raise the issue on appeal of whether he had waived his right to a jury trial; and (3) that the trial court violated his right to due process by failing to canvass him as to his jury waiver. Following a trial, the habeas court dismissed the defendant’s petition. In so doing, the court found that the defendant lacked credibility and that he was fully apprised of his right to a jury trial. The court further found that the defendant had “failed to demonstrate that [his waiver of a jury trial] was not knowingly, voluntarily and intelligently entered.” Bruno v. Warden, Superior Court, judicial district of New Haven, Docket No. CV-98-416581-S (March 1, 2002). This court subsequently affirmed that judgment; Bruno v. Commissioner of Correction, 74 Conn. App. 910, 815 A.2d 297 (2003); and our Supreme Court denied the defendant’s petition for certification to appeal therefrom. Bruno v. Commissioner of Correction, 271 Conn. 920, 859 A.2d 577 (2004).

On January 21, 2004, the defendant commenced a federal habeas corpus action. In denying that petition, the United States District Court for the District of Connecticut concluded, inter alia, that the defendant had failed to demonstrate that his waiver was not knowing and voluntary and that he lacked cause under Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991), to overcome the procedural default of his due process claim that the trial court failed to canvass him concerning his jury waiver. Bruno v. Connecticut Commissioner of Correction, United States District Court, Docket No. 3:04cvl01 (RNC), 2006 WL 2839232, *5-6 (D. Conn. September 29,2006). On March 13, 2007, the United States Court of Appeals for the Second Circuit denied the defendant’s petition for review of that judgment. The defendant then filed petitions for certiorari with the United States Supreme Court, which were denied on October 1, 2007. Bruno v. Lantz, 552 U.S. 822, 128 S. Ct. 155, 169 L. Ed. 2d 31 (2007).

The defendant’s next legal challenge forms the basis for the present appeal. Sixteen years after the trial court sentenced the defendant, the defendant on August 14, 2009, filed a motion for a new trial pursuant to Practice Book §§ 42-53 and 42-54 predicated on his claim that “nothing in the record affirmatively indicates that [he] knowingly, vohmtarily and intelligently waived his right to a jury trial.” The court heard argument on the matter on July 15, 2010, and thereafter denied the motion for a new trial, concluding that it lacked jurisdiction to entertain the merits thereof. From that judgment, the defendant appeals.

Although the defendant raises multiple claims in this appeal, the dispositive one is whether the court properly concluded that it lacked jurisdiction over the defendant’s motion. A determination regarding a trial court’s subject matter jurisdiction is a question of law over which our review is plenary. State v. DeVivo, 106 Conn. App. 641, 644, 942 A.2d 1066 (2008). Under Connecticut law, “the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, and, therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act.” Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001). The defendant claims that Practice Book §§ 42-53 and 42-54 expressly authorized the court to act on his motion for a new trial at any time in the interests of justice. We disagree.

It is well established that provisions of the Practice Book cannot confer subject matter jurisdiction on our courts. Simms v. Warden, 229 Conn. 178, 184, 640 A.2d 601 (1994). “The judiciary simply cannot confer jurisdiction on itself through its own rule-making power.” State v. Morrison, 39 Conn. App. 632, 635, 665 A.2d 1372, cert. denied, 235 Conn. 939, 668 A.2d 376 (1995). As our Supreme Court has explained, “General Statutes § 51-14 (a) authorizes the judges of the Superior Court to promulgate rules regulating pleading, practice and procedure in judicial proceedings .... Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts.” (Emphasis added; internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 155, 913 A.2d 428 (2007).

Read in light of that precedent, we agree with the state’s position that, mindful of the court’s jurisdictional limitations, Practice Book § 42-54 authorizes the trial court in a criminal case to entertain a motion for a new trial filed pursuant to Practice Book § 42-53 only prior to the termination of its jurisdiction upon sentencing. As our Supreme Court reasoned in resolving a related claim concerning motions to withdraw guilty pleas, “Practice Book § 39-26 merely recognizes the general or common-law grant of jurisdiction, regulates the procedure by which that jurisdiction may be invoked, and acknowledges that, absent a legislative grant, jurisdiction does not continue indefinitely, once invoked, but, rather, terminates with the conclusion of the proceeding at which the sentence is imposed.” State v. Reid, 277 Conn. 764, 776 n.14, 894 A.2d 963 (2006); see also State v. Luzietti, 230 Conn. 427, 432, 646 A.2d 85 (1994) (trial court lacks jurisdiction to grant motion for judgment of acquittal “when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence”). The same logic applies in the present case, as the Supreme Court, in explaining the distinction between the petition for a new trial pursuant to General Statutes § 52-270 and the motion for a new trial brought pursuant to the rules of practice, has emphasized that “a motion for a new trial is filed in a case then in progress or pending and is merely a gradation in that case leading to a final judgment.” State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980); see also Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 575, 87 A.2d 137 (1952) (observing that motion for new trial “contemplates that action on the motion shall be taken while the court has power to modify its judgment”). We therefore conclude that the court properly determined that it lacked jurisdiction to entertain the defendant’s motion for a new trial filed pursuant to Practice Book §§ 42-53 and 42-54 and brought sixteen years after the imposition of his sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court acquitted the defendant of the charge of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a.

       The defendant subsequently sought review of his sentence by the sentence review division of the Superior Court. See General Statutes §51-195. That body affirmed the sentence imposed, finding it to be “neither inappropriate or disproportionate.” State v. Bruno, supra, Superior Court, Docket No. CR-91-73668.

       Although the defendant initially brought that motion pursuant to General Statutes § 52-270 as well, he expressly and unconditionally withdrew the motion with respect to § 52-270 before the court on July 15, 2010. The analysis presented in the defendant’s appellate brief nevertheless comingles § 52-270 and Practice Book §§ 42-53 and 42-54. As this court explained in State v. Servello, 14 Conn. App. 88, 101, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988), “[t]he differences between a motion for a new trial and a petition for a new trial [pursuant to § 52-270] are matters of substance, not simply matters of form.” To the extent that the defendant now relies on § 52-270 as a basis for his claims on appeal, such reliance is improper in light of his waiver before the trial court. See, e.g., State v. Holly, 106 Conn. App. 227, 233, 941 A.2d 372, cert. denied, 287 Conn. 903, 947 A.2d 344 (2008).
      We note that the defendant’s decision to abandon any claim arising under § 52-270 at trial was justified for two distinct reasons. First, a petition for a new trial pursuant to § 52-270 “properly is instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding.” (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn. App. 238, 260-61, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). The defendant in the present case did not commence such a distinct proceeding, but rather filed his motion under the same criminal docket number as his underlying case, thereby depriving the court of authority to entertain a petition under § 52-270. State v. Rogelstad, 73 Conn. App. 17, 37, 806 A.2d 1089 (2002) (court lacked authority to consider petition for new trial under § 52-270 when “defendant neglected to serve a writ of summons and complaint in accordance with § 52-270, but merely filed the motion in the criminal case, pursuant to Practice Book §§ 42-53 and 42-55 and General Statutes § 52-270”); State v. Servello, supra, 14 Conn. App. 101-102 (same).

        Second, petitions for a new trial must be brought within the statute of limitations contained in General Statutes § 52-582, which provides in relevant part that “[n]o petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of . . . .” That limitation period commenced on August 6, 1993, the date on which the defendant was sentenced and committed to the custody of the commissioner of correction. See State v. Coleman, 202 Conn. 86,89,519 A.2d 1201 (1987) (final judgment in criminal case is imposition of sentence). The defendant’s August 14, 2009 motion for a new trial was filed thirteen years after the expiration of the limitations period set forth in § 52-582. Accordingly, the defendant was barred from pursuing a petition for a new trial pursuant to § 52-270 in the present proceeding.


author: ESPINOSA, J.

text:
    IN RE KAMORA W.

    (AC 33108)
    DiPentima, C. J., and Lavine and Espinosa, Js.

      Argued September 6
    officially released November 15, 2011

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

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

       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 this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

ESPINOSA, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Kamora, for failure to achieve a sufficient degree of personal rehabilitation under General Statutes § 17a-112 (j) (3) (B) (ii). The respondent claims that the court improperly terminated his parental rights on the basis of evidence that was insufficient as a matter of law to establish a failure to rehabilitate. We affirm the judgment of the trial court.

The following facts found by the court during the termination of parental rights trial are relevant to this appeal. Kamora was bom prematurely at twenty-five weeks and five days gestation. Afterbirth, Kamora spent five months in the hospital’s neonatal intensive care unit. Physicians classified Kamora as “medically complex, ” as she was bom with a number of medical complications that left her susceptible to illness and in need of a nebulizer.

Kamora’s mother tested positive for cocaine at the time of delivery. The petitioner, the commissioner of children and families, filed an order for temporary custody and an accompanying neglect petition on May 2, 2008, which the court granted and later sustained. On July 29, 2008, the court committed Kamora to the petitioner’s care. Upon her discharge from the hospital, the petitioner placed Kamora in a foster home for medically complex children, where she remained until the petitioner moved her to a two parent legal risk foster home. Kamora, now three years old, has never lived with the respondent.

In its order committing Kamora to the care of the petitioner, the court provided for supervised visitation twice a week between the respondent and Kamora. The court also delineated a number of specific steps for the respondent to follow in order to regain custody of Kamora. The specific steps included, among other things, directions to refrain from engaging in further substance abuse, to attend parenting training provided by the department of children and families (department), to cooperate with the department to avoid further domestic violence and to notify the department immediately of any changes in the composition of the respondent’s household in order to ensure the health and safety of Kamora. On March 17, 2009, the court approved a permanency plan of reunification with the respondent.

Initially, the petitioner acknowledged that the respondent made progress toward reunification — the social workers present at the visits noted that the respondent was interacting well with Kamora and that he seemed genuinely interested in learning how to take care of her special needs. As time went on, however, the respondent interacted with Kamora less during visits, and Kamora no longer displayed excitement upon seeing the respondent. The respondent also began to miss visitation appointments regularly — since October 30, 2009, the respondent cancelled 29 of 117 possible visits with his daughter, approximately 25 percent. The petitioner noted in January, 2011, that Kamora seemed to have grown distant from the respondent, responding unhappily when she was taken to visitation appointments and appearing disinterested during visits. By contrast, Kamora has bonded with her foster family and refers to her foster parents as “momm[y] and dadd[y].”

The respondent has had an ongoing relationship with Kamora’s mother for the past eleven to thirteen years, although they were never married and he claims that the two are no longer involved romantically. The mother has struggled with mental health issues and substance abuse for most of her adult life and has a long history of arrests. The respondent alleges that it was her continuing abuse of substances and instances of her physical abuse of him that led him to end their romantic relationship.

The court found, however, that Kamora’s mother was still spending time at the respondent’s apartment and that they appeared still to have a relationship. In March, 2009, a social worker with the department, who was returning from picking up another child for a supervised visit, happened to observe Kamora’s mother entering the respondent’s apartment using a key. On September 30, 2010, upon the release of Kamora’s mother from prison, the respondent allowed Kamora’s mother to give her parole officer the respondent’s address as her place of residence. The respondent did not notify the petitioner of this fact; rather, the petitioner learned of this through the parole officer. The respondent is aware of the unstable nature of Kamora’s mother — as recently as October 12, 2010, the respondent has admitted that she should still be in rehabilitation and that he has urged her to participate in another rehabilitation program.

The respondent also demonstrated signs of drug and alcohol abuse. A sample of the respondent’s hair tested positive for the presence of cocaine in February, 2009. The respondent claimed that he had not used illegal drugs for two years, but another hair test in February, 2010, also tested positive for cocaine. The petitioner alleged that, on April 11, 2009, the respondent arrived at a drug rehabilitation clinic for an evaluation for a treatment program while under the influence of alcohol. The petitioner also alleged that the respondent smelled of alcohol when he attended a case review at the petitioner’s office on October 30, 2009, and when a social worker with the department conducted an unannounced home visit on January 20, 2010. The respondent admitted on September 17, 2009, that he had faced “setbacks.” Although he submitted a clean hair sample in September, 2010, he has not participated in any drug treatment programs since completing an early intervention program in December, 2009. The respondent has refused any further substance abuse treatment, denying that his alcohol use negatively impacts his ability to raise Kamora.

In its decision, the court expressed concern about the availability of a rehable family support system. As the court found, at different times during the rehabilitative process, the respondent offered the names of several family members who would be willing to help him raise Kamora. The court noted, however, that none of those individuals had come forward as willing to provide parental type care for Kamora when the respondent was not able to do so. Likewise, although the respondent suggested on different occasions that he might be able to obtain day care services for Kamora, the court found that, in the roughly three years since Kamora’s birth, nothing certain had been put forward in this regard.

On January 27, 2010, the petitioner filed its petition seeking termination of parental rights. Following a trial to the court, which commenced on January 10, 2011, the court determined that the respondent had failed to achieve a sufficient degree of personal rehabilitation and ordered the parental rights of both the respondent and Kamora’s mother terminated. The court based its determination that the respondent failed to rehabilitate on its findings that the respondent (1) displayed reluctance toward ending his relationship with Kamora’s mother, (2) appeared disinterested in dealing meaningfully with his substance abuse problems and (3) lacked a rehable family support system to help him raise Kamora. The respondent filed this appeal on March 4, 2011. Additional facts will be set forth as necessary.

The respondent claims that the judgment of the court was improper because the evidence was insufficient as a matter of law to terminate parental rights on the basis of failure to achieve a sufficient degree of personal rehabilitation. Responding to the three concerns of the court, the respondent asserts that there was not clear and convincing evidence that he (1) had an ongoing relationship with Kamora’s mother, (2) suffered from a substance abuse problem or (3) lacked a rehable family support system to provide day care assistance for Kamora when he could not do so. We disagree.

“The standard of review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Jennifer W., 75 Conn. App. 485, 492-93, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003). “The probative force of conflicting evidence is for the trier to determine. . . . We defer to the trier of fact’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony, and may accept part, all or none of the testimony.” (Citation omitted.) In re Ashley E., 62 Conn. App. 307, 316, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001). “A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 627-28, 847 A.2d 883 (2004).

Section 17a-112 (j) provides in relevant part that a court may terminate parental rights if it finds by clear and convincing evidence that (1) the department has made reasonable reunification efforts, (2) termination is in the best interests of the child and (3) the child “is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

The question of rehabilitation turns on whether the parent is able to meet the needs of the child, not whether the parent is able to manage his or her own life. “[Personal rehabilitation as used in [§ 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Internal quotation marks omitted.) In re Chevol G., 125 Conn. App. 618, 622, 9 A.3d 413 (2010). In other words, a parent who has taken successful steps to improve his or her own life may nonetheless be found to have failed to rehabilitate if a court finds by clear and convincing evidence that the parent has not reached a level of rehabilitation that encourages the belief that the parent will be able to be a responsible presence for the child in a reasonable amount of time. See, e.g., In re Eden F., 250 Conn. 674, 699-708, 741 A.2d 873 (1999); In re Alejandro L., 91 Conn. App. 248, 260-61, 881 A.2d 450 (2005); In re Sheila J., 62 Conn. App. 470, 479-82, 771 A.2d 244 (2001).

I

The respondent first claims that there was not clear and convincing evidence to support the court’s finding that he had an ongoing relationship with Kamora’s mother. Emphasizing that there was no instance of domestic violence during the pendency of this case, the respondent maintains that the petitioner never told him that he could not have contact with Kamora’s mother. Therefore, according to the respondent, he did not have fair warning that continued association with Kamora’s mother would jeopardize his chances at reunification with Kamora. We are not persuaded.

The following additional facts are relevant to this claim. The petitioner presented evidence that on October 9, 2008, Kamora’s mother went to the respondent’s apartment for the stated purpose of collecting some of her belongings. Kamora’s mother then asked for transportation to a program, but the respondent refused, citing his need to get to work. Kamora’s mother became confrontational and aggressive at this response, but the situation did not lead to physical violence. When the respondent reported the incident to the department later that day, the department advised the respondent to obtain a restraining order against Kamora’s mother. The department also discussed the impact that a relationship marked by domestic violence could have on the respondent’s chances of reunification with Kamora. The respondent later attempted to obtain a restraining order, but the marshal could not locate Kamora’s mother to serve her.

The respondent had fair notice that continued association with Kamora’s mother could have an impact on his chances of reunification with Kamora. As noted previously, as recently as October, 2010, the respondent urged Kamora’s mother to participate in a rehabilitation program. He was aware of her unstable nature, as evidenced by his attempt to obtain a restraining order against her. Furthermore, the respondent had been ordered in the specific steps approved by the court to coordinate with the department to avoid further incidents of domestic violence. The department told the respondent that a relationship marked by domestic violence could have an impact on his chances of reunification with Kamora. With this warning and the specific steps approved by the court, the respondent was put on notice that continued association with Kamora’s mother could jeopardize reunification.

There was evidence before the court that the respondent had an ongoing relationship with Kamora’s mother. A social worker with the department saw her entering the respondent’s apartment with a key in March, 2009. Furthermore, after her release from prison in September, 2010, the respondent allowed her to use his address for parole purposes. Even though the specific steps ordered the respondent to notify the petitioner of any changes in household composition in order to ensure Kamora’s safety, the respondent did not notify the petitioner of this fact. According to the department, the two admitted that they were living together at this time.

Given this evidence, the court reasonably decided that “[i]t does not appear from the evidence that [the respondent] is exercising any control over ending this relationship.” The court properly took this into consideration in determining whether the respondent had failed to achieve a sufficient degree of personal rehabilitation. See In re Alejandro L., supra, 91 Conn. App. 261 (“[t]he respondent also maintained a relationship with L despite the fact that her drug counselors advised her to sever her relationship with him”). We conclude that there was sufficient evidence to support the court’s finding that the two had a continuing relationship and, given the history of domestic violence between the two, that this relationship interfered with the respondent’s ability to be a constructive and effective parent.

II

The respondent next claims that there was not clear and convincing evidence to support the court’s finding that he suffered from a substance abuse problem. He stresses that he completed a drug rehabilitation program in December, 2009, and that a hair test from September, 2010, showed no sign of cocaine use in the prior ninety days. At oral argument before this court, counsel for the respondent asserted that although the respondent tested positive for cocaine on two separate occasions, there was not enough evidence to establish that his substance abuse was any detriment to his ability to raise Kamora. This argument is without merit.

The record reveals that the respondent has used cocaine in the recent past and that he has struggled with alcohol abuse. The respondent’s recent use of cocaine in particular is an obvious problem, despite his counsel’s assertions to the contrary. The court reasonably could have inferred that the respondent’s use of illegal drugs had a negative impact on his ability to raise a child with special medical needs. Although it is true that the respondent had a recent hair test that was negative for cocaine, he has also refused any further treatment. Furthermore, he has refused to acknowledge that he suffers from a drug or alcohol problem at all. The court understandably was disturbed by the respondent’s “failure to recognize the detrimental effect his substance abuse will have on Kamora . . . .” We conclude that there was sufficient evidence for the court to find that the respondent had an inadequately addressed substance abuse problem that would interfere with his ability to raise Kamora.

Ill

Finally, the respondent claims that there was not clear and convincing evidence to support the court’s finding that he lacked a reliable family support system to provide child care assistance for Kamora when he could not provide such assistance. The respondent asserts that he has put forward names of several family members who could assist him with raising Kamora. For this reason, the respondent maintains that the court’s finding that he lacked a child care support system for Kamora was not substantiated by evidence. We are not persuaded.

On appeal, the respondent offered the names of several relatives who might be able to assist him in taking care of Kamora. The court, however, found that the respondent had not offered any individuals who could be relied on to provide parental type care for Kamora. Additionally, a maternal aunt, who originally had been allowed to intervene, stated to the petitioner that “no family members are stable enough to care for Kamora.”

Kamora, although not as fragile as she was in the first few months of her life, is still a child who requires close monitoring. Although it is laudable that the respondent works fifty hours a week on average, self-rehabilitation is not controlling. The importance of having a stable support system for Kamora cannot be overstated. There is a significant difference between having a few individuals interested in helping take care of a child and having family members who can be relied on to watch Kamora, possibly all day. This was a fact that the court recognized: “[T]here is a lack of a support system to care for this child when [the respondent] is unable to do so. Several names of family members, friends and others have been mentioned at different times, but none of these people have come forward and can be reasonably relied upon to provide parental type care for Kamora . . . when [the respondent] is unavailable.” Additionally, Kamora is doing well in foster care and has bonded with her foster family.

The respondent, in lieu of identifying a family member who could provide the level of attention that Kamora will require, noted at trial that he would qualify for “Care 4 Kids,” a child care financial support program that could be used to place Kamora in day care. The court also directly addressed this point in its memorandum of decision: “[W]hile day care was mentioned on a number of occasions, nothing certain has been put forward. If anything were possible over the last three years it should be, at the very least, in the planning stages. It is not anticipated that this service could be put in place within a reasonable period of time.” We conclude that there was sufficient evidence to support the court’s finding, and we will not disturb it on appeal.

We conclude that none of the respondent’s claims concerning the court’s findings at trial are persuasive. The court’s finding, by clear and convincing evidence, that the respondent failed to achieve a sufficient degree of personal rehabilitation under § 17a-112 (j) (3) (B) (ii) is supported by the evidence in the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       Kamora’s mother, whose parental rights were also terminated by the trial court, is not a party to this appeal. We therefore refer to the respondent father as the respondent. The guardian ad litem for Kamora filed a statement of position adopting the brief of the respondent.

       The respondent also makes a more general attack on the judgment of the court, claiming that the court’s on the record comments show that the evidence presented was insufficient as a matter of law to terminate parental rights. Specifically, the respondent points to the fact that following closing arguments, the court noted that “I think that [the department] has merely scratched the surface on [the respondent] and his rehabilitation or his ability to be rehabilitated. ... If you are to make your case, you’ve got to tell me more than you’ve told me.” The respondent argues that this statement shows that the court did not have enough evidence to terminate his parental rights. This argument is without merit. The court made these comments before carefully evaluating all of the evidence in context. After making these remarks, the court ordered supplemental briefs from both parties to explain more fully why the respondent was or was not prepared to take care of Kamora on his own. This shows only that, before making its ruling, the court pressed the parties to provide the court with enough information on which to base its decision. This does not warrant a conclusion that the court’s finding of failure to achieve a sufficient degree of personal rehabilitation was not supported by clear and convincing evidence. Any such determination in this case will have to be based on the court’s memorandum of decision, not on these instructions to the parties.

       The respondent asserts that the court took this statement out of context, and that in context it clearly refers to Kamora’s maternal relatives only. The relevant portion of the trial exhibit in which this remark is recorded states: “[0]n 01/28/10, [the maternal aunt] came in to the [department] office and informed the worker that she made a decision not to pursue this placement, citing the fact that she has been put through a lot of pressure and harassment by her family, who she reported [was] unstable. [The maternal aunt] also stated that in the months that she has been in the [city] area with family members she has learned a great deal about both parents. It is her hope that the [department will find a pre-adoptive home for Kamora outside the family, stating there are no family members stable enough to care for Kamora.” Read in context, the allegations of pressure and harassment clearly only relate to the maternal relatives. The remainder of the excerpt, however, deals with a separate issue of being in the area “with family members.” Although there is some ambiguity, it was not clearly erroneous for the court to interpret this latter part of the excerpt as referring to the family generally, as opposed to only the maternal family.


author: DiPENTIMA, C. J.

text:
    INVESTMENT ASSOCIATES v. SUMMIT ASSOCIATES, INC., ET AL.
    (AC 32227)
    DiPentima, C. J., and Lavine and Schaller, Js.

      Argued May 18
    officially released November 22, 2011

      Prolog K. Das, with whom was Bernard F. Gaffney, for the appellant (defendant Joseph D. Lancia).

      Pasquale Young, with whom was David Pegnataro, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

This appeal arises from the application of 2009 legislation creating a new procedure enabling the enforcement of Connecticut judgments in foreign jurisdictions. The defendant Joseph D. Lancia appeals from the order of the trial court granting the motion to revive a judgment filed by the plaintiff, Investment Associates, pursuant to General Statutes § 52-598 (c). On appeal, the defendant argues that the trial court (1) lacked subject matter jurisdiction to consider the motion to revive because the plaintiff, a joint venture, had no standing, (2) lacked personal jurisdiction over him and (3) failed to provide him with an opportunity to contest the motion. We are not persuaded by the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following pertinent facts and procedural history, which are not in dispute. On January 10, 1991, the plaintiff filed suit in the Superior Court seeking to recover on a promissory note assigned to it by the defendants, Summit Associates, Inc., Ned B. Wilson and Lancia. The summons named “Investment Associates” as the only plaintiff, and the first paragraph of the first count of the plaintiffs complaint alleged: “At all times herein, the plaintiff Investment Associates was a joint venture equally owned by R. S. S. McKosky and Alton W. Seavey, Jr. . . .” The defendant appeared through counsel on January 28, 1991. On May 17, 1994, the court rendered judgment in favor of the plaintiff in the amount of $272,530. The file indicates that the defendant’s counsel was present at the time judgment was rendered in favor of the plaintiff. The defendant, however, has not resided in Connecticut since 1992.

More than thirteen years later, in 2007, the plaintiff commenced an action seeking to enforce the judgment. That action was dismissed for lack of personal jurisdiction over the defendant. See Investment Associates v. Lancia, Superior Court, judicial district of New Haven, Docket No. CV-07-4028746S (May 5, 2008) (45 Conn. L. Rptr. 437). Thereafter, on October 6, 2009, pursuant to § 52-598 (c), the plaintiff filed a motion to revive the judgment in the original action alleging that the judgment remained unpaid. In response, the defendant filed a motion to dismiss. The court issued its memorandum of decision granting the plaintiffs motion to revive and denying the defendant’s motion to dismiss. After the defendant’s motion to reargue was denied, the defendant filed this appeal.

I

On appeal and for the first time, the defendant raises a challenge to the trial court’s subject matter jurisdiction. Specifically, the defendant notes that in the plaintiffs original complaint, the plaintiff alleged that it was a joint venture. According to the defendant, a joint venture is not a legal entity, and therefore the plaintiff lacked standing to file its motion to revive the judgment, and, therefore, the court lacked subject matter jurisdiction. In response, the plaintiff admits that it is a joint venture but argues that it does have legal capacity because our legislature has given joint ventures substantive legal rights through many statutes. Alternatively, the plaintiff argues that even if a joint venture lacks legal capacity, such status does not deprive a court of subject matter jurisdiction.

After oral argument, we requested and the parties filed supplemental briefs on whether the defendant’s challenge to the court’s subject matter jurisdiction was timely. Specifically, we instructed: “Counsel are sua sponte ordered to file simultaneous supplemental briefs of no more than ten pages on or before August 4, 2011, addressing and explaining how the following language from Urban Redevelopment Commission v. Katsetos, 86 Conn. App. 236, 241, 860 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005), relates to the [defendant’s] challenge to the trial court’s subject matter jurisdiction: ‘Our Supreme Court, however, has stated that there are boundaries to challenges concerning the issue of subject matter jurisdiction. As we have only recently observed . . . [t]he modem law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695-97; Restatement (Second), Judgments 15 (Tent. Draft No. 5 1978). . . . Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. James & Hazard, op. cit. 695; Restatement (Second), Judgments, supra.’ [Emphasis in original.].”

An examination of Urban Redevelopment Commissions. Katsetos, supra, 86 Conn. App. 236, is instructive in the resolution of this case. After adopting an urban renewal plan, the city of Stamford acquired certain properties. Id., 237. The trial court rendered a judgment pursuant to a stipulation of the parties where the defendant received a total of $720,000 in exchange for transferring his property to the city and agreeing to waive any and all claims. Id., 238. Three years later, the defendant filed a motion to open the judgment, claiming that the court had lacked jurisdiction over the parties and the judgment was void ab initio. Id. The defendant stated that in Aposporos v. Urban Redevelopment Commission, 259 Conn. 563, 790 A.2d 1167 (2002), our Supreme Court concluded that “the condemnation proceedings were invalid as a result of the commission’s failure to follow the relevant statutory requirements. Id., 579-80.” Urban Redevelopment Commission v. Katsetos, supra, 238. The trial court denied the defendant’s motion to open on the ground that it was filed more than four months after the judgment had been rendered. Id., 239. We affirmed the judgment of the trial court on a different basis, namely, the principle of finality of judgments. Id., 239-44.

After stating the general rule that a challenge to subject matter jurisdiction may be raised at any time, we noted that the modem law of civil procedure indicates that finality of judgment may limit challenges to subject matter jurisdiction. Id., 240-41. We then identified various factors, including whether the parties had had an opportunity to challenge the jurisdiction of the court, whether it was a direct or a collateral attack on the judgment, whether the parties had consented to the jurisdiction, the prevention of a miscarriage of justice, whether the subject matter was so far beyond the jurisdiction of the court as to constitute an abuse of authority, the desirability of the finality of judgment and whether there are strong policy reasons for allowing a second opportunity to raise the issue of subject matter jurisdiction. Id., 241-43.

Applying the Katsetos factors, we concluded that because the defendant had accepted the financial benefit of the stipulation rather than the uncertainty of a direct appeal, his motion to open the judgment was a collateral attack on that judgment and he had failed to raise any objection to the jurisdiction of the court at the time of the sale, the motion to open properly was denied. Id., 243-44. We further noted that there was no miscarriage of justice or strong policy reason that would warrant a reversal of the trial court’s judgment. Id., 244.

In the present case, the defendant argues in his supplemental brief that the issue before this court is whether the plaintiff had standing to file the 2009 motion to revive and that we need not consider the standing issue with respect to the 1994 judgment. He distinguishes this case from Katsetos because it involves a direct challenge to the 2009 motion to revive, while the Katsetos defendant’s challenge was to the original judgment of the trial court. Additionally, the defendant contends that he has used the standing issue as a defense to a motion to revive, while in Katsetos the jurisdictional issue was the basis of the defendant’s motion to open.

The plaintiff commenced the underlying action in January, 1991, and judgment was rendered in its favor on May 17, 1994. The plaintiffs motion to revive, filed on October 6, 2009, nearly nineteen years after the commencement of the lawsuit and approximately fifteen and one-half years after the original judgment had been rendered, was not the beginning of a new suit against the defendant. It was a “continuation” of the original suit, “another step taken in the original action to aid in the recovery of a debt evidenced by the original judgment, in order to obtain enforcement of the original judgment . . . .” 46 Am. Jur. 2d 700, Judgments § 394 (2006). Put another way, the plaintiff did not commence a new civil action when the plaintiff filed the motion to revive. See General Statutes § 52-598 (c). Notably, the plaintiff did not use the procedures set forth in General Statutes § 52-45a in filing the 2009 motion. See, e.g., Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554-59, 944 A.2d 329 (2008) (both § 52-45a and Practice Book § 8-1 [a] require a signed writ to commence civil action). If the plaintiff had commenced a new action in 2009, the defendant would have been able to raise subject matter jurisdiction, even for the first time, in this appeal. This case, however, requires us to consider the standing issue in light of the original action, filed in 1991, and to determine whether the defendant may raise his jurisdictional claim in his appeal from a 2010 order. Our preliminary decision, then, is whether the passage of time, from 1991 until 2009, bars review of the defendant’s challenge to the plaintiffs standing. We conclude that it does.

We are presented with a conflict between the principles of finality of judgments and validity of judgments. 1 Restatement (Second), Judgments, Contesting Subject Matter Jurisdiction, § 12, comment (a) (1982). “The modem rule on conclusiveness of determinations of subject matter jurisdiction gives finality substantially greater weight than validity . . . .’’Id. This rule applies even if the issue of subject matter jurisdiction has not been raised and determined expressly. Id., § 12, comment (d).

Applying the factors of Katsetos and the policies set forth in the Restatement (Second) of Judgments, we conclude that, under the specific facts and circumstances of this case, the doctrine of finality of judgments precludes the defendant from raising his subject matter jurisdiction claim at this time. At the outset, we note that all proceedings in this case occurred in the Superior Court, a tribunal of general jurisdiction. See New Haven v. God’s Corner Church, Inc., 108 Conn. App. 134, 137, 948 A.2d 1035 (2008) (“The Superior Court is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all other matters cognizable by any law court of which the exclusive jurisdiction is not given to some other court.” [Internal quotation marks omitted.]). Therefore, there are no concerns regarding a tribunal of limited jurisdiction in the present case. See generally 1 Restatement (Second), supra, § 12, comment (a). There is no claim by the defendant that he was denied the opportunity to raise a claim of lack of standing by the plaintiff from 1991 until the time that the plaintiff filed the motion to revive in 2009. See Urban Redevelopment Commissions. Katsetos, supra, 86 Conn. App. 241. The defendant failed to raise an express challenge to the subject matter jurisdiction of the court. Similarly, we are not persuaded that any strong policy reason exists to afford the defendant an opportunity to raise his standing claim at this late juncture. Id. Nor do we conclude that a miscarriage of justice exists. Id., 244. We also are mindful that the plaintiff has been the holder of a valid judgment against the defendant since 1994. Additionally, although the defendant has directly attacked the plaintiffs standing regarding the motion to revive, the practical effect of such a challenge is a collateral attack on the 1994 judgment. Such tactics are not favored. Id. For all these reasons, we conclude that the defendant is precluded from raising his subject matter jurisdiction claim.

II

The defendant next claims that the court lacked personal jurisdiction. Specifically, he argues that the court improperly denied his motion to dismiss and improperly granted the plaintiffs motion to revive because it erroneously concluded that it had continuing jurisdiction over the defendant. The defendant begins with the assertion that § 52-598 (c) embodies a new substantive right. He then argues that, consequently, a motion to revive filed pursuant to § 52-598 (c) (1) cannot be applied retroactively and (2) is a new action for which a court must obtain jurisdiction over the parties independent of any personal jurisdiction it may have had at the time of a judgment. We conclude that § 52-598 (c) is a procedural statute that confers continuing jurisdiction on the court.

As a preliminary matter, we set forth our standard of review and the legal principles that guide our analysis. “Whether a statute applies retroactively raises a question of statutory construction over which our review is plenary.” Walsh v. Jodoin, 283 Conn. 187, 195, 925 A.2d 1086 (2007). In addition, a challenge to the personal jurisdiction of the trial court is a question of law, and, therefore, our review is plenary. Myrtle Mews Assn., Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010).

“It is axiomatic that, [w]hether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. ... In seeking to discern that intent, [a court’s] point of departure is . . . [General Statutes] § 55-3, which . . . [our Supreme Court has] uniformly inteipreted ... as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. ... As a corollary to this principle, [our Supreme Court also has] presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary. . . . While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” (Internal quotation marks omitted.) Samuels v. Commissioner of Correction, 117 Conn. App. 740, 744, 980 A.2d 945 (2009). “Procedural law is that which prescribes [the] method of enforcing rights or obtaining redress for their invasion; it is the machinery for carrying on procedural aspects of [a] civil or criminal action. ... As a general rule, laws . . . which merely prescribe the manner in which [substantive] rights and responsibilities may be exercised and enforced in court are procedural laws.” (Internal quotation marks omitted.) State v. Diaz, 226 Conn. 514, 557, 628 A.2d 567 (1993) (Berdon, J., dissenting).

We conclude that § 52-598 (c) is a procedural law. The statute does not create, define or regulate a right; rather, it enables a party with a valid Connecticut judgment to revive that judgment as a preliminary step to its enforcement. That is, § 52-598 (c) provides a party with a mechanism to enforce a right that he or she already possesses. “Procedural statutes have been traditionally viewed as affecting remedies . . . .” Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986). Consequently, absent clear indication of a contrary intent by the legislature, we presume that § 52-598 (c) may properly be applied retroactively. See Samuels v. Commissioner of Correction, supra, 117 Conn. App. 744. We can discern no such clear and contrary intent; accordingly, we conclude that the court did not improperly apply § 52-598 (c) in the present case.

We further conclude that a motion filed pursuant to § 52-598 (c) is not a new action requiring the court to obtain personal jurisdiction over the parties independent of jurisdiction present at judgment. As just discussed, § 52-598 (c) enables a party to file a postjudgment motion to revive a valid judgment and is a preliminary, procedural step necessary to enforcement of that judgment in a foreign jurisdiction. General Statutes § 52-350d (a) provides in relevant part: “For the purposes of postjudgment procedures, the Superior Court shall have jurisdiction over all parties of record in an action until satisfaction of the judgment or, if sooner, until the statute limiting execution has run . . . .” We acknowledge that a motion to revive is not one of the enumerated “postjudgment procedures” set forth in General Statutes § 52-350a (15); however, the introductory language to that section clearly indicates that the list is not meant to be exhaustive. See General Statutes § 52-350a (“For the purposes of this chapter . . . unless the context otherwise requires . . . (15) ‘Postjudgment procedure’ means . . . .” [emphasis added]). As noted by the trial court in its memorandum of decision, § 52-598 (c) and its attendant legislative history supplies such context. We conclude, therefore, that the court did not improperly determine that it could exercise continuing jurisdiction over the defendant in granting the plaintiffs motion to revive the judgment.

Ill

The defendant’s final claim is that the court improperly granted the plaintiffs motion to revive without first affording him an opportunity to contest it. Specifically, he argues that he was unable to challenge the merits of the plaintiffs motion without waiving his personal jurisdictional claim. We are not persuaded.

On October 6, 2009, the plaintiff filed its motion to revive, and on November 5, 2009, the defendant filed a motion to dismiss challenging the court’s ability to exercise personal jurisdiction over him. Thereafter, on November 23, 2009, the court held a hearing. At the start of this hearing, the court stated: “I have the motion to revive the judgment filed by the plaintiff last month and a motion to dismiss filed by the defendant.” The court then addressed the parties and stated: “So, why don’t we start with [the plaintiffs] motion to revive?” Both parties then argued their respective positions on the issue of personal jurisdiction. Thereafter, on March 4, 2010, the court rendered its decision denying the defendant’s motion to dismiss and granting the plaintiffs motion to revive. On March 23,2010, the defendant filed a motion to reargue, claiming that the issue of personal jurisdiction that he had raised in his motion to dismiss prevented him from presenting his defenses to the plaintiffs motion to revive the judgment. The court denied the defendant’s motion to reargue.

On appeal, the defendant claims that the court improperly granted the plaintiffs motion to revive without first giving him an opportunity to contest its merits. Specifically, the defendant contends that he could not have addressed the merits of the plaintiffs motion to revive the judgment at the hearing before the court on November 23, 2009, because he would have waived the personal jurisdiction claim raised in his motion to dismiss. He argues that his right to due process of law, as conferred by the fourteenth amendment to the United States constitution, was violated when the court granted the plaintiffs motion to revive the judgment without first affording him a hearing to contest it. We are not persuaded.

As a general matter, “a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance. . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion. . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court’s personal jurisdiction over the defendant is lost.” (Internal quotation marks omitted.) St. Paul’s Flax Hill Co-operative v. Johnson, 124 Conn. App. 728, 739-40, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906,12 A.3d 1002 (2011). As noted by our Supreme Court, under our rules of practice, the filing of a responsive pleading operates as a waiver of a future challenge of the court’s personal jurisdiction over a party. See American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009); see also Practice Book §§ 10-6 and 10-7.

The defendant’s argument, however, ignores the procedural posture of this case. We are not presented with the usual situation where a party waives a jurisdictional claim by filing a pleading. In this case, there was a postjudgment motion to revive. The defendant cites Connecticut Student Loan Foundation v. Saul, 39 Conn. Sup. 481, 466 A.2d 350 (1983), in support of his claim. In that case, after the plaintiff initiated the suit, the defendant filed an answer in 1977 and a motion to dismiss on the basis of inadequate service of process in 1981. Id., 482-83. The court concluded: “By filing his answer and special defense, the defendant thereby waived his right to contest the court’s jurisdiction over him through a motion to erase the complaint (now a motion to dismiss).” Id., 483. The present case is distinguishable from Connecticut Student Loan Foundation.

The defendant merely has asserted, without legal analysis, that he was prevented from challenging the merits of the motion to revive. Specifically, the defendant suggests that he was denied his right to due process because he was prevented from challenging the merits of the motion to revive until after the court had ruled on the motion to dismiss. Due to the posture of this case, however, it is not clear that the defendant was required to wait for a ruling on the motion to dismiss prior to challenging the merits of the motion to revive. Significantly, the defendant has failed to provide any analysis as to why the general rule regarding a motion to dismiss and waiver applies. It is well settled that “[w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 603-604, 10 A.3d 59 (2010); see also Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn. App. 63, 69 n.6, 918 A.2d 889 (2007) (“[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones” [internal quotation marks omitted]), aff'd, 286 Conn. 548, 944 A.2d 329 (2008). We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-598 (c) provides: “With respect to a judgment for money damages rendered in any court of this state, including, but not limited to, a small claims session, a motion to revive such judgment may be filed with the Superior Court prior to the expiration of any applicable period of time to enforce such judgment as set forth in this section. The court may grant the motion to revive the judgment if the court finds that the applicable time period to enforce the judgment under this section has not expired. No order to revive a judgment may extend the time period to enforce a judgment beyond the applicable time period set forth in this section.”

       Wilson and Summit Associates, Inc., are not parties to this appeal. We therefore refer to Lancia as the defendant.

       On July 8, 2009, Public Acts 2009, No. 09-215, “An Act Concerning the Time Limit for Enforcing a State Court Judgment in a Foreign Jurisdiction,” became law and thereafter took effect October 1, 2009. This act added subsection (c) to § 52-598. See footnote 1 of this opinion.

       In its memorandum of decision, the court noted that the legislative history to § 52-598 (c) reveals that Michael R. Caporale, Jr., the lawyer who originally represented the plaintiff in the 1991 action, was one of the supporters of House Bill 6248, “An Act Concerning the Time Limit for Enforcing a State Court Judgment in a Foreign Jurisdiction.” Citing to the judiciary committee’s joint favorable report, the court observed that Caporale had explained the need for such legislation by stating: “I obtained a judgment in New Haven Superior Court for $272,731 but did not seek enforcement of the judgment at that time because the defendants lacked assets. Defendants then moved outside Connecticut. Some months later one defendant filed for bankruptcy while the other defendant’s location in South Carolina was not ascertained until [eleven] years after the judgment. I was advised by the attorney from South Carolina I obtained to represent my clients that according to South Carolina law the time limit enforcing a judgment was ten years. Therefore, any attempt to enforce the judgment in South Carolina was doomed to fail.” Conn. Judiciary Committee Joint Favorable Report, concerning House Bill No. 6248, entitled “An Act Concerning the Time Limit for Enforcing a State Court Judgment in a Foreign Jurisdiction.”

       We note that, as a general proposition, in a proceeding for the revival of ajudgment, certain broad “defenses may be successfully advanced, including the . . . incapacity of plaintiff to maintain the proceeding . . . .”50 C.J.S., Judgments § 861 (2009); see also 46 Am. Jur. 2d, Judgments § 415 (2006) (“it is regarded as proper to urge, in defense of a proceeding for the revival of a judgment, that the judgment is void for want of jurisdiction ... of the subject matter”).

       General Statutes § 52-45a provides: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”

       We have often indicated that a party may not follow one strategy at trial and take another tack on appeal when the first strategy failed. See, e.g., State v. Castillo, 121 Conn. App. 699, 716 n.17, 998 A.2d 177, cert. denied, 297 Conn. 929, 998 A.2d 1196, cert. denied, 562 US. 1094, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010). We note that the defendant, by failing to raise his standing claim until such a late date, effectively has chosen to engage in this strategy.

       General Statutes § 52-350a (15) provides: “ ‘Postjudgment procedure’ means any procedure commenced after rendition of a money judgment, seeking or otherwise involving a discovery procedure, a placing of a lien on property, a modification or discharge of a lien, a property execution under section 52-356a, a turnover order, an installment payment order, a wage execution, a modification of a wage execution, a compliance order, a protective order or a determination of exemption rights.”

       In ruling that it had continuing jurisdiction over the defendant, the court determined: “Even if one considers the language of the text [of § 52-598 (c)] to be ambiguous, the legislative history supports the application of the statute to this case. . . . [T]he joint favorable report concerning House Bill 6248 states that the bill’s enactment ‘[ajffords residents with another tool to collect a valid judgment against a nonresident, for example if a judgment was rendered [eleven] years ago in Connecticut and the plaintiff seeks to enforce it in South Carolina, he or she cannot enforce the judgment because it is beyond the ten year period of collection allowed by South Carolina. This is despite the fact that the judgment is still enforceable in Connecticut.’ One of the bill’s supporters was Michael R. Caporale, Jr., the lawyer who originally represented the plaintiff in this action. He reported the postjudgment history in this case as a reason for supporting the bill.” See also footnote 4 of this opinion.

       We note that at the hearing on the plaintiffs motion to revive, the defendant acknowledged that the trial court had personal jurisdiction over him at the time of judgment in 1994. Moreover, in his brief to this court, the defendant concedes that “if the ‘motion to revive’ were procedural, then the trial court might retain personal jurisdiction over the parties pursuant to General Statutes § 52-350d.”

       Practice Book § 10-7 provides: “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”