author: LAVINE, J.

text:
    VILLAGES, LLC v. ENFIELD PLANNING AND ZONING COMMISSION
    (AC 35357)
    (AC 35358)
    DiPentima, C. J., and Lavine and Dupont, Js.

      Argued February 4
    officially released April 15, 2014

      Kevin M. Deneen, town attorney, with whom was Maria Elsden, senior assistant town attorney, for the appellant (defendant).

      Gwendolyn S. Bishop, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, Enfield Planning and Zoning Commission (commission), appeals from the judgments of the trial court sustaining the appeals of the plaintiff, Villages, LLC. In both appeals, the commission claims that the court improperly sustained the plaintiffs appeals on the basis of bias and an ex parte communication on the part of a member of the commission. We affirm the judgments of the trial court.

The record discloses the following facts and procedural history. On or about May 21, 2009, the plaintiff filed an application for a special use permit and an application for an open space subdivision consisting of thirty-eight residential housing lots situated on sixty-four acres of land in an R-44 residential district in Enfield. In Enfield, an open space subdivision in an R-44 district is permitted only by special use permit. The commission held a public hearing on both of the plaintiffs applications on July 9, 2009, July 23, 2009, September 3,2009, and October 1,2009. The commission closed the public hearing on October 1, 2009. On October 15, 2009, the commission met to deliberate and vote on the plaintiffs applications. The commission denied both applications.

The plaintiff appealed from the denials to the trial court. In its appeals, the plaintiff alleged, among other things, that each of its applications met all of the police, fire, health, safety, open space, and utility requirements. In addition, the plaintiff alleged that the commission illegally and arbitrarily predetermined the outcome of each of its applications prior to the public hearing and was motivated by improper notions of bias and personal animus when it denied each of the applications. The appeals were consolidated for trial, and the court issued its ruling in a single memorandum of decision.

The court found that the plaintiff was the owner of the property and that it was statutorily aggrieved by the commission’s decisions. The court also found that the plaintiffs allegations of bias and ex parte communication arose from the actions of Lori Longhi, a member of the commission. More specifically, the court found that Longhi took part in the hearing on the plaintiffs applications, played a significant role in the deliberations, and voted to deny the plaintiffs applications. Longhi had been a social friend of one of the plaintiffs owners, Jeannette Tallarita, and her husband, Patrick Tallarita, a former mayor of Enfield. There was a falling out among the friends, and the court found that Longhi was biased against Patrick Tallarita, who represented the plaintiff at the hearing before the commission. The court also found that Longhi engaged in an ex parte communication regarding the applications.

The court found two instances that gave rise to the plaintiffs claim of bias on Longhi’s part. Prior to the events at issue here, Longhi accused Tallarita of using his influence as mayor to affect the outcome of commission decisions. Longhi’s accusation led to the end of their social relationship. The plaintiff did not bring this matter to the attention of the commission prior to the public hearing, as Tallarita did not want to anger members of the commission. The court understood the plaintiffs rationale but concluded that the plaintiffs failure to bring the alleged bias to the attention of the commission precluded the court from considering it on appeal. In reaching its conclusion, the court relied on Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 967 A.2d 1199 (2009). In Moraski, our Supreme Court declined to review the plaintiffs’ claim that their rights to due process were impaired on account of bias held by the individual members of the examining board because the plaintiff failed to raise the claim prior to or during the hearing before the examining board. Id., 266. Because the plaintiff in the present case failed to raise Longhi’s bias predicated on her falling out with Tallarita prior to or during the commission’s hearing, the court found that the commission had no opportunity to rebut a claim of bias and held that the plaintiff could not raise the claim on appeal in the trial court.

The court, however, found that an incident in which Longhi stated that “she wanted [Tallarita] to suffer the same fate of denial by the commission that she had suffered” was a different matter. At trial, Anthony DiPace testified that Longhi had stated to him that the commission, when it previously considered an application that she had submitted, had “screwed her” and treated her unfairly when it denied that application. She was unhappy with Tallarita, who was then mayor, because he did not intervene on her behalf. She stated in the presence of DiPace that she wanted Tallarita to suffer the same fate, i.e., that the commission deny the plaintiffs applications. Tallarita did not become aware of Longhi’s statement regarding the fate of the plaintiffs applications until after the commission had closed the public hearing. The court found that Longhi’s comments were blatantly biased toward Tallarita and should not be tolerated. The court also found that it had not been possible for the plaintiff to bring Longhi’s comments regarding Tallarita to the attention of the commission because he learned of them after the hearing had closed and the commission had denied the plaintiffs applications.

Credibility was a deciding factor in the court’s decision regarding Longhi’s ex parte communication. Tallar-ita, DiPace, and Bryon Meade testified during the trial. The court found that each of the men was a credible witness. Longhi also testified at trial, but the court found that her testimony was filled with denials of the allegations and concluded that her “comments did not ring true.” The court found that Meade, a representative of the Hazardville Water Authority, testified with confidence that Longhi had met with him in person regarding the plaintiffs applications during the first week of October, 2009. Longhi testified, however, that Meade must have been confused because she met with him regarding another property. The court stated that Longhi’s testimony was just not credible.

In addressing the plaintiffs claim that Longhi improperly engaged in ex parte communications with Meade, the court noted that “[o]ur law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis.” (Emphasis in original.) Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 569, 602 A.2d 613 (1992). The court found that it was “clear” that Longhi had an ex parte communication with Meade. Once the plaintiff had proven that the ex parte communication had occurred, the burden shifted to the commission to demonstrate that such communication was harmless. See Daniel v. Zoning Commission, 35 Conn. App. 594, 597-98, 645 A.2d 1022 (1994). The court found that the commission had not met its burden to prove that Longhi’s ex parte communication was harmless.

In adjudicating the plaintiffs appeals, the court reviewed the transcript of the commission’s October 15,2009 meeting when it considered the plaintiffs applications. It found that the transcript was twenty-three pages long and that Longhi’s comments appeared on every page but one, and that on most pages, Longhi’s comments were the most lengthy. Her comments raised many negative questions about the plaintiffs applications. Moreover, in offering her comments, she cited her experience as an appraiser. The court found that Longhi dominated the meeting and that she intended to have a major effect on the commission’s deliberations and subsequent votes. The court found clear and egregious bias on Longhi’s part, and that her impact on the commission’s deliberations and votes alone were reason to sustain the plaintiffs appeals.

Longhi’s ex parte communication related to the issue of whether there was sufficient water pressure to furnish the fire department with enough water to extinguish a fire at the subdivision. After reviewing the transcript of the October 15, 2012 hearing, the court found that Longhi’s arguments regarding the fire flows and water pressure were “intense” and were matters that she had discussed with Meade. The court also found that she expressed her concerns in a negative manner. In addition, it found that the commission’s discussion concerning fire flow and water pressure was substantial and that those issues were the reason that the plaintiffs applications were denied.

The court noted the commission’s argument in its posttria! brief that “the sole issue of a technically complex nature was ‘fire flows.’ Because this issue was left unresolved after the close of the public hearing, it was proper for the [commission] to deny the application.” The court found that that statement overlooked the strong opinions Longhi voiced during the commission’s deliberations on October 15, 2009. The court also was not persuaded that the same information was contained in a report from the fire chief, as the commission had argued. The court found that Longhi’s negative comments on the matters related to water pressure and fire flow were an integral part of the commission’s decisions. Moreover, Longhi never disclosed to the other members of the commission that she had obtained ex parte information from Meade after the public hearing had closed. The court concluded that Longhi’s actions were improper, prejudicial, and unfair to the plaintiff.

In conclusion, the court stated that, on the basis of the bias Longhi demonstrated against the plaintiff and her ex parte communication with Meade, along with her biased, aggressive, and vociferous arguments against the applications on October 15, 2009, the commission’s action was not honest, legal, and fair. The court therefore sustained the plaintiffs appeals and remanded the matter to the commission for further public hearings, including any amendments or additional evidence that the plaintiff may wish to present.

Thereafter, the commission filed petitions for certification to appeal from the judgments of the trial court. This court granted the petitions for certification and consolidated the appeals. On appeal, the commission claims that the court improperly (1) predicated its decision, in part, on a claim of bias on the part of a member of the commission when the court had found that the plaintiff was aware of the alleged bias at the time of the public hearing, (2) found that a member of the commission engaged in ex parte communication after the close of the public hearing and that the plaintiff did not waive the issue by failing to bring it to the attention of the commission during the public hearing, and (3) found that the other commissioners were influenced by the statements of a commission member who allegedly was biased. We disagree with the commission’s claims.

Before we address the commission’s claims, we set forth the applicable standard of review. “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which . . . [conclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of witnesses and the determination of issues of fact are matters solely within the province of the [commission], . . . The question is not whether the trial court would have reached the same conclusion . . . but whether the record before the [commission] supports the decision reached.” (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868 (2008).

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) DeSena v. Waterbury, 249 Conn. 63, 72-73, 731 A.2d 733 (1999). In this case, the court drew conclusions of law on the basis of its factual findings, some of which were credibility determinations. See Rutka v. Meriden, 145 Conn. App. 202, 211-12, 75 A.3d 722 (2013) (court as trier of fact makes credibility determinations). Our review therefore is plenary.

I

The commission first claims that the court improperly predicated its decision, in part, on a claim of bias against a member of the commission when the plaintiff was aware of the bias during the public hearing. In support of its claim, the commission relies on the waiver rule articulated in Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, supra, 291 Conn. 262-63. We agree with the commission that Moraski requires a party to raise a claim of bias as soon as practicable at the risk of waiving it. We agree that, standing alone, the plaintiff waived a claim concerning Longhi’s general bias predicated on the demise of the Longhi-Tallarita friendship. We disagree, however, that the Moraski waiver rule applies to the specific bias Longhi expressed with respect to the fate of “Tallarita’s application” before the commission because the plaintiff did not learn of it until after the public hearing had been closed. The second incident of bias evidenced by Longhi’s statement to DiPace is temporally and qualitatively different from the general bias arising from the Longhi-Tallarita friendship because the plaintiff did not learn of it until after the public hearing had closed and it was specific to the plaintiffs application.

“A claim of bias must be raised in a timely manner. The failure to raise a claim of disqualification with reasonable promptness after learning of the ground for such a claim ordinarily constitutes a waiver thereof. . . . One court has noted that a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification. ... To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts. . . . Moreover, we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the [hearing].” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 262-63.

“At the core of due process is the requirement for an impartial tribunal. . . . Due process demands . . . the existence of impartiality on the part of those who function in judicial or quasi-judicial capacities. . . . The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification. . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator. . . . Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased. ... To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than the mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.” (Citations omitted; internal quotation marks omitted.) Clisham v. Board of Police Commissioners, 223 Conn. 354, 361-62, 613 A.2d 254 (1992).

Here, the court found that the plaintiff was aware of the falling out Tailarita had had with Longhi prior to the close of the public hearing on October 1, 2009. On those facts alone, the court concluded that any bias Longhi had toward the plaintiff could have been raised during the public hearing, and because the plaintiff failed to raise the claim, the claim was waived. Without having asked Longhi to disqualify herself on the basis of the falling out that she had with Tailarita, the commission was unable to discover facts related to the request for disqualification and create a record for review. Moraski instructs that a claim of bias must be raised at the first opportunity after the discovery of facts tending to prove bias and prejudice. Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, supra, 291 Conn. 262.

We agree the bias predicated on the demise of the Longhi-Tallarita friendship alone was waived by the plaintiff. The record before the trial court and this court is devoid of any fact other than that Longhi and Tallarita were no longer on friendly terms. Without more, any claim of bias on Longhi’s part, would have amounted to speculation. “[T]here is a presumption that administrative board members acting in an adjudicative capacity are not biased. ... To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.” (Citation omitted; internal quotation marks omitted.) Clisham v. Board of Police Commissioners, supra, 223 Conn. 362. The burden is on the plaintiff to prove a disqualifying interest. Id.

“In order to prove bias as a ground for disqualification, the plaintiff must show more than an adjudicator’s announced previous position about law or policy .... He must make a showing that the adjudicator has prejudged adjudicative facts that are in dispute. ... A tribunal is not impartial if it is biased with respect to the factual issues to be decided at the hearing.” (Citations omitted; internal quotation marks omitted.) Id. The plaintiff presented the court with no concrete evidence that Longhi, as a member of the commission, would not consider the plaintiffs applications in a fair and impartial manner simply because she and Tallarita were no longer on friendly terms. We cannot say the same, however, with respect to Longhi’s statement regarding the fate of the plaintiffs applications made to DiPace.

The timing and subject of the statements Longhi made to DiPace remove that incident of bias from the ambit of the Moraski waiver rule. DiPace testified that in his presence, in 2006 or 2007, Longhi stated with respect to an application before the commission that she was “being screwed over by the town.” Longhi, according to DiPace’s testimony, was angry because Tallarita was not helping her and that she hoped “someday that he would get screwed over by the town.” At trial, Tallarita testified that DiPace told him about Longhi’s statements after the commission had denied the plaintiffs applications. Once the public hearing had been denied, there was no avenue, other than on appeal, for the plaintiff to raise Longhi’s bias. More importantly, Longhi’s statements that DiPace heard were related directly to the applications being considered by the commission. Those statements demonstrated that she had prejudged the plaintiffs applications before the commission.

Even though the plaintiff did not know of Longhi’s statements regarding the fate of an application submitted to the commission by the plaintiff or Tallarita until after the public hearing had closed, the commission claims that that incident is simply another piece of evidence that Longhi was biased. The commission supports that argument by quoting a single sentence from Clisham, i.e., “We do not look at each piece of evidence in isolation and treat it as a separate and distinct claim of bias.” After reviewing Clisham, and placing that sentence in context, we conclude that the court properly considered the plaintiffs claim of bias related to Longhi’s statement to DiPace.

Clisham concerned the removal of a Naugatuck chief of police following the election of a new mayor who appointed new members to the board of police commissioners. Clisham v. Board of Police Commissioners, supra, 223 Conn. 356-57. In that case, the police chief asked certain members of the board of police commissioners to disqualify themselves from reviewing charges that had been brought against the police chief. None of the police commissioners recused himself. Id. During the course of the proceedings, the police chief discovered additional evidence of bias on the part of one of the police commissioners, Edward Mason, and brought it to the attention of the board. Id., 358. The board of commissioners, including Mason, had removed the police chief from office. Id., 359. The police chief appealed to the trial court, which found that although the police chief timely raised a claim of bias, the initial evidence was insufficient to disqualify Mason. Id., 368. The trial court declined to consider the additional evidence of Mason’s bias, and denied the police chiefs appeal. Id.

The police chief took a further appeal that was heard by our Supreme Court. Although the Clisham facts are complicated, the court analyzed the essential facts as to bias as follows. “[0]nce the [police chief] raised his claim of bias following the publication of Mason’s statement in the Waterbury Republican, a claim that the board concedes was timely, the prior evidence of bias was relevant to substantiate that claim. The [police chiefs] claim was based upon evidence of bias that was cumulative in nature. We do not look at each piece of evidence in isolation and treat it as a separate and distinct claim of bias. Rather, to determine whether there was actual bias or a probability of such bias too high to be constitutionally tolerable ... we look at the uncontroverted evidence of Mason’s role as an advi-sor and consultant to [the new mayor] both before and after the mayoral campaign, his participation in the illegal meeting of a quorum of board members, his attempt to amend the regulations to eliminate the unanimity requirement and his statement to [the reporter] of the Waterbury Republican during the pendency of the removal hearing. The plaintiff cannot, therefore be deemed to have waived his claim that Mason was imper-missibly biased.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 369.

Clisham instructs that generalized claims of bias are not sufficient to disqualify a member of an administrative commission and once specific evidence of bias is discovered, a plaintiff must raise the claim as soon as practicable. In this case, the plaintiff did not have specific evidence of Longhi’s bias to raise during the course of the public hearing. Once the plaintiff knew of Longhi’s statement DiPace heard concerning the fate of any application Tallarita submitted to the commission, it raised the claim of bias in the only procedural avenue available, that is, on appeal to the trial court. During the proceedings before the trial court, both the plaintiff and the commission were permitted to present evidence with respect to the alleged bias. The constitutional due process requirements therefore were met. Clisham also teaches that evidence of bias may be cumulative; specific evidence of bias is not examined in isolation. We therefore conclude that the court properly considered the plaintiffs evidence of bias.

II

The commission’s second claim is that the court’s findings that a member of the commission engaged in an ex parte communication with respect to the plaintiffs applications and that the plaintiff had not waived its claim by failing promptly to bring said communication to the attention of the commission are clearly erroneous. We disagree.

When reviewing a trial court’s factual findings, appellate courts apply the clearly erroneous standard of review. Petrucelli v. Travelers Property Casualty Ins. Co., 146 Conn. App. 631, 638, 79 A.3d 896 (2013), cert. denied, 311 Conn. 909, 83 A.3d 1164 (2014). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Bailey v. Lanou, 138 Conn. App. 661, 667, 64 A.3d 198 (2012). “Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed. . . . The function of the appellate court is to review, and not retry, the proceedings of the trial court.” (Internal quotation marks omitted.) Keith E. Simpson Associates, Inc. v. Ross, 126 Conn. App. 539, 543, 9 A.3d 394 (2010).

The court found that Longhi met with Meade of the Hazardville Water Company in early October, 2009. The commission claims that the court’s finding is clearly erroneous because Longhi testified that Meade must be confused because she met with him at another time with respect to another property. The court found that Meade testified with confidence about the incident and that Longhi was not a credible witness.

We have reviewed the transcript of Meade’s testimony in the trial court. On direct examination, Meade testified, in part, as follows:

“A. Yes, I was contacted by [Longhi].
“Q. And do you recall about when that occurred?
“A. Early October of 2009. Probably the first week, I don’t know the exact date.
“Q. Okay. And do you recall what she was contacting you about in relation to the subdivision?
“A. Well, the meeting—I don’t have a real clear recollection of the meeting, but I did put it in writing in an e-mail to Dave Frederick what it was about. And after reading the e-mail that I wrote it refreshed my memory that it had to do with fire flows and water pressures for the development.”

On cross-examination, Meade testified, in part, as follows:

“Q. Do you have a specific recollection of being in a conference room on that matter?
“A. I have so many meetings with so many people I don’t. The recollection is not real clear because I deal with a lot of developers and things. But what refreshed my memory was looking through my file on that project, and I did write the e-mail that I had the meeting. So you know, I wouldn’t put something in . . . .”

On the basis of our review of the record, we conclude that there was evidence in the record to support the court’s finding that Longhi spoke with Meade about the plaintiffs application in early October, 2009. Moreover, we are not left with a definite and firm conviction that the court’s finding was .clearly erroneous.

According to Meade, his meeting with Longhi took place in early October. The ex parte communication ipso facto occurred after the public hearing was closed on October 1, 2009. After the public hearing closed, the plaintiff could present no further evidence to the commission. See Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 568, 538 A.2d 1039 (1998). Moreover, Talarita learned of Longhi’s statement after the applications were denied, and there was no way for the plaintiff to bring the matter to the attention of the commission. We conclude, therefore, that the court’s finding that the plaintiff had not waived the claim of ex parte communication was not clearly erroneous.

Ill

The commission’s third claim is that the court’s findings that the bias of one member of the commission deprived the plaintiff of a fair, honest, and legal determination and that the commission had not sustained its burden to demonstrate that the ex parte communication was harmless were clearly erroneous. We do not agree.

“While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . they cannot be so conducted as to violate the fundamental rules of natural justice. . . . Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary .... Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence. ... In short, [t]he conduct of the hearing must be fundamentally fair.” (Citations omitted; internal quotation marks omitted.) Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 608-609, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).

Although “zoning boards and commissions are entitled to technical and professional assistance in matters which are beyond their expertise . . . and that such assistance may be rendered in executive session, our Supreme Court has held that [t]he use of such assistance . . . cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.” (Citations omitted; internal quotation marks omitted.) Id., 609; see also Norooz v. Inland Wetlands Agency, supra, 26 Conn. App. 569-70.

It is well settled that that “[a]n ex parte communication raises a rebuttable presumption of prejudice. Once the plaintiff has shown that an improper ex parte communication has occurred, the burden of showing that the communication was harmless shifts to the party seeking to uphold the validity of the zoning commission’s decision.” Daniel v. Zoning Commission, supra, 35 Conn. App. 597.

In this case, the plaintiff met its burden to prove that Longhi had an ex parte communication with Meade regarding its applications. See part II of this opinion. The court found that the commission failed to meet its burden to demonstrate that the ex parte communication was harmless. The court identified the relevant issue as whether there was sufficient water pressure to enable the fire department to put out a fire. The court reviewed the transcript of the October 15, 2009 meeting of the commission and found that Longhi’s participation in the substantial discussions concerning the water pressure and fire flows was intense and that her questions were negative. It also found that she had discussed those issues with Meade. Moreover, the court found that the issues of water pressure and fire flow were substantial reasons the commission denied the plaintiffs applications. The court quoted from the commission’s posttrial brief that “the sole issue of a technically complex nature was fire flow. Because this issue was left unresolved after the close of the public hearing, it was proper for the [commission] to deny the application.” The court found that this argument overlooked Longhi’s negative comments regarding the issue that were an integral part of the commission’s deliberations. Longhi never disclosed her conversation with Meade to the other members of the commission. The court concluded that Longhi’s actions were improper, prejudicial, and unfair to the plaintiff and ultimately concluded that an honest, legal, and fair action was not made by the commission.

The commission’s argument on appeal here is that the plaintiff failed to present any evidence that Longhi’s comments influenced the votes of the other members of the commission. We disagree. The court reviewed the transcript of the hearing the commission held on October 15, 2009, to consider and vote on the plaintiffs applications. It found that Longhi had actively participated in the discussion and, in fact, dominated the discussion. On the basis of our review of the record, we conclude that the court’s finding that Longhi influenced the other members of the commission was not improper. In conclusion, the plaintiff did not receive the fair hearing to which it was entitled, and we thus affirm the judgments of the trial court.

The judgments axe affirmed.

In this opinion the other judges concurred.

       The commission’s claims and arguments in each of its appeals are identical.

       Hereinafter in this opinion, references to Tallarita are to Patrick Tallar-ita alone.

       Longhi was not a member of the commission at that time.

       The court found that during the October 15, 2009 hearing, Longhi stated her expertise in planning and zoning matters because she was and had been an appraiser. The court found that Longhi’s appraisal experience alone did not make her an expert on planning and zoning.

       In remanding the case to the commission, the court ordered that Longhi should not participate in any of the further public hearings or deliberations on the plaintiffs applications. It also ordered Longhi to recuse herself and other members of the commission not to consider her prior, or future, comments made with respect to the applications.

       In this opinion, we need not address whether Longhi sua sponte should have recused herself.

       On direct examination, Tallarita testified, in part, as follows:
      “Q. So you hadn’t heard, during the first public hearing, that [Longhi] had made a specific statement about her treatment at the hands of the town?
      “A. Not that specific type of statement. [DiPace] may have approached me. Other people may have approached me . . . and you hear things and I knew that [Longhi] wasn’t pleased with me because she felt that I wasn’t trying to go far enough to try to help her in her plight with the town. But, the first time that . . . DiPace came to me was after the proceedings had started. It may have been, actually, after the decision was rendered.”

       The transcript reveals that counsel for the commission interrupted Meade before he could complete his answer.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP v. CITY OF NORWALK ET AL.
    (AC 34950)
    Alvord, Sheldon and Harper, Js.
    Argued February 4
    officially released April 15, 2014

      Carolyn M. Colangelo, assistant corporation counsel, with whom were Mario Coppola, corporation counsel, and, on the brief, Robert F. Maslan, Jr., former corporation counsel, for the appellants (defendants).

      Frank W. Murphy, with whom was Kara A. T. Murphy, for the appellee (plaintiff).
   Opinion

ALVORD, J.

In this municipal tax appeal, the defendant city of Norwalk appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Fairfield Merrittview Limited Partnership (limited partnership) and Fairfield Merrittview SPE, LLC (limited liability company), from the assessor’s valuation of property located at 383 Main Avenue in Norwalk. On appeal, the defendant claims that (1) the court improperly concluded that the plaintiffs had standing to appeal the tax valuation of the subject property to the Superior Court, and (2) the court’s calculation of the fair market value of the subject property was clearly erroneous. We agree with the defendant’s first claim and, accordingly, reverse the judgment of the trial court.

The subject property consists of an eight-story, multitenant office building constructed in 1985 on 4.3 acres of land. Fairfield Memttview Limited Partnership acquired the property from PTM Realty, Inc., by deed recorded in the Norwalk land records on October 24, 1994. Fairfield Memttview Limited Partnership subsequently conveyed the property to Fairfield Memttview SPE, LLC, by deed recorded on June 12, 2007. The defendant’s assessor thereafter determined the fair market value of the property to be $49,036,800 as of October 1, 2008 (valuation date), and assessed the property at 70 percent of that value. Fairfield Memttview Limited Partnership, claiming that the assessment was grossly excessive, appealed to the defendant’s Board of Assessment Appeals (board) seeking a reduction in the valuation. Fairfield Memttview SPE, LLC, was not a party to that appeal. The board made no changes in the assessment.

Pursuant to General Statutes § 12-117a, Fairfield Memttview Limited Partnership appealed from the board’s decision to the Superior Court. Within thirty days of the return date, it moved to amend its appeal to add Fairfield Memttview SPE, LLC, as a party plaintiff. The motion provided: “Fairfield Memttview SPE, LLC, has an interest in the real estate and the subject matter of this appeal and should be joined as an additional party plaintiff.” The amended appeal and application annexed to the motion alleged that Fairfield Memttview Limited Partnership and Fairfield Memtt-view SPE, LLC, “on October 1,2008, were the owner[s]” of the subject property. After the court, Hon. A. William Mottolese, judge trial referee, granted the motion, the defendant filed its answer, leaving the plaintiffs to their proof with respect to the ownership of the property.

A trial to the court, Hon. Arnold W. Aronson, judge trial referee, was held on December 14 and 15, 2011. At that time, the plaintiffs submitted as exhibits the 1994 and 2007 deeds of conveyance. Additionally, the plaintiffs submitted an appraisal prepared by Eric D. Michel of Cushman & Wakefield of Connecticut, Inc., that indicated that the fair market value of the property was $30,500,000 as of October 1, 2008. Michel testified as to the methodology he employed to arrive at that valuation. The defendant’s appraiser, Michael Fazio of Kerin & Fazio, LLC, testified that the fair market value of the property was $49,400,000 on the valuation date. Fazio likewise provided the basis for his valuation.

After the evidentiary portion of the trial had concluded, the court stated that it would allow the parties to submit simultaneous posttrial briefs within thirty days of their receipt of the transcript of the proceedings. The plaintiffs’ counsel inquired whether reply briefs could be filed. The court responded: “If either counsel feels that it’s important to file a reply brief, talk to each other. If you both agree, I will consent to the agreement for a reply brief. If not, file a motion. Then if there is an objection, I’ll hear the arguments and make a decision. But, hopefully, the briefs will contain all of the information [so] that it will not be necessary for a reply brief. But I won’t preclude you from doing that if you feel it necessary.”

The parties filed their posttrial briefs on April 26, 2012. In its posttrial brief, the defendant claimed that the court lacked subject matter jurisdiction over the tax appeal because the plaintiffs did not have standing to appeal from the assessor’s valuation. The defendant argued that Fairfield Merrittview Limited Partnership, the limited partnership, did not own the property on October 1, 2008, and, therefore, was not a party in interest with the right to challenge the assessment before the board. Fairfield Merrittview SPE, LLC, which was a limited liability company that owned the property on October 1, 2008, had not been a party to the appeal before the board. The defendant claimed that this defect was not cured by subsequently adding the limited Lability company as a party plaintiff after the appeal from the board’s decision was commenced in the Superior Court.

The record reflects that neither party requested the opportunity to file a reply brief. On August 6, 2012, the court issued its memorandum of decision sustaining the plaintiffs’ appeal. The court first addressed the issue of standing: “As of October 1, 2008, at least one of the two plaintiffs named in the amended [appeal] was the record owner of the subject property, which is sufficient to provide standing to maintain this appeal.” The court then analyzed the evidence and determined that the fair market value of the property was $34,069,763 as of October 1, 2008. This appeal followed.

“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 subj ect 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. . . .

“Connecticut law provides an avenue of appeal from the decision of a municipal tax agency. . . . [General Statutes §§] 12-117a and 12-119 clearly create causes of action for taxpayers who have been aggrieved by excessive and wrongful valuation of their property. Section 12-117a provides taxpayers with an opportunity to appeal to the Superior Court upon an allegation that their property tax assessment is excessive. ... At the same time, [t]he general rule is that one party has no standing to raise another’s rights.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Megin v. New Milford, 125 Conn. App. 35, 37-38, 6 A.3d 1176 (2010).

“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. . . . [A]s a general rule, a plaintiff lacks standing unless the harm alleged is direct rather than derivative or indirect.” (Citations omitted; internal quotation marks omitted.) O’Reilly v. Valletta, 139 Conn. App. 208, 213, 55 A.3d 583 (2012), cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013). “[I]f the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant’s conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them.” (Internal quotation marks omitted.) Id., 214.

Moreover, “[a] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Id., 213.

In the present case, the deeds of conveyance submitted by the plaintiffs during the trial clearly established that the limited liability company, Fairfield Merrittview SPE, LLC, acquired the subject property by deed recorded in the Norwalk land records on June 12, 2007. On the date of the valuation, October 1,2008, the limited liability company was the sole owner of the property. Nevertheless, Fairfield Merrittview Limited Partnership, the limited partnership, was the entity that challenged the assessor’s valuation before the board even though it had conveyed its interest in the property more than a year prior to the valuation date. The actual owner of the property, the limited liability company, did not participate in that appeal.

When the board’s decision was appealed on July 1, 2009, to the Superior Court pursuant to § 12-117a, the sole plaintiff was the limited partnership. In the initial appeal and application, the limited partnership alleged that Fairfield Merrittview Limited Partnership “was the owner” of the property. That allegation, as evidenced by the plaintiffs’ exhibits at trial, was incorrect. When the appeal was amended, the plaintiffs then alleged that Fairfield Merrittview Limited Partnership and Fairfield Merrittview SPE, LLC, “were the owner [s]” of the property. That allegation, too, was incorrect because no evidence was presented that indicated Fairfield Merritt-view Limited Partnership retained any interest in the property after June 12, 2007.

The plaintiffs argue that the court properly determined that standing had been established because: (1) “[t]he business structure was changed, but, Fairfield Merrittview SPE, LLC, is identical to Fairfield Merritt-view [Limited Partnership], except for the name change as a result of restructuring”; (2) the amendment and addition of Fairfield Merrittview SPE, LLC, was filed within thirty days of the return date and was an amendment as of right pursuant to Practice Book § 10-59; (3) in effect, Fairfield Merrittview SPE, LLC, was a successor legal entity with the same beneficial owners as Fairfield Merrittview Limited Partnership and “with the identical legal interest and standing to pursue the appeal”; and (4) the defendant “should not be able to profit on appeal by its delay in raising the [standing] issue until its posttrial brief,” thereby depriving the plaintiffs of the opportunity “to address the issue of subject matter jurisdiction with additional evidence of standing.” We are not persuaded.

At the trial, Jeffrey Newman, the executive vice president of Malkin Properties, which was the company that managed the subject office complex, testified that he “believed” that the limited partnership and the limited liability company experienced a change in “corporate structure” and that they “essentially” had the same beneficial owners. Michel, the plaintiffs’ appraiser, testified that he “believed” Fairfield Merrittview SPE, LLC, was “the same entity” as Fairfield Merrittview Limited Partnership, but with “just a different name.” The fact remains, however, that a limited partnership and a limited liability company are separate and distinct legal entities. They are formed under different statutory provisions. See, e.g., General Statutes §§ 34-9 et seq. and 34-100 et seq. There was no testimony or documentary evidence to establish that the limited partnership and the limited Lability company in this case were the same entity or that the limited Lability company was a successor entity of the limited partnership. For example, there was no evidence submitted that a change of name certificate had been recorded in the land records. See General Statutes § 47-12. There was no evidence that the limited partnership converted to the limited babibty company pursuant to General Statutes § 34-199. Simply put, nothing was presented to the court during the trial that could lead to the conclusion that these two separate entities had merged or were in fact one legal entity.

The plaintiffs argue that the defendant did not timely raise the issue of standing, thereby depriving them of the opportunity to present additional evidence to the court on that issue. As previously discussed, the issue of standing implicates the court’s subject matter jurisdiction and may be raised at any stage of the proceedings. See O’Reilly v. Valletta, supra, 139 Conn. App. 213. “When the issue involves either the trial court’s or this court’s jurisdiction . . . we have no alternative but to address the issue.” Ardmare Construction Co. v. Freedman, 191 Conn. 497, 498 n.4, 467 A.2d 674 (1983).

Furthermore, the plaintiffs were provided with an opportunity to respond to the defendant’s claim that they lacked standing to maintain the tax appeal. In its posttrial brief, the defendant set forth its position that the court lacked subject matter jurisdiction over the appeal because Fairfield Merrittview Limited Partnership did not own the property on October 1, 2008, and, therefore, was not a party in interest with the right to challenge the assessment before the board or to appeal to the Superior Court from the board’s decision. At that point, the plaintiffs could have requested the opportunity to file a reply brief. The trial court expressly stated that it would not preclude the parties from filing reply briefs if they believed that it was necessary to do so. The plaintiffs did not move for permission to file a reply brief nor did they move to open the evidence to present additional proof as to their aggrievement.

Accordingly, on the basis of the evidence that was presented at trial, the court should have concluded that Fairfield Merrittview Limited Partnership and Fairfield Merrittview SPE, LLC, were two separate and distinct legal entities. The appeal to the board from the assessor’s valuation and the municipal tax appeal to the Superior Court from the board’s decision both were brought by Fairfield Merrittview Limited Partnership, an entity that was not the record owner of the assessed property. “[Plaintiffs are not fungible, even if they are represented by the same attorney and have similar interests.” (Internal quotation marks omitted.) Megin v. New Milford, supra, 125 Conn. App. 40. Because the plaintiffs failed to demonstrate their requisite aggrievement under § 12-117a, the court should have dismissed the plaintiffs’ appeal.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs’ appeal for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       In addition to the city of Norwalk, the plaintiff, Fairfield Merrittview Limited Partnership, summoned the city’s Board of Assessment Appeals and the city’s tax assessor, Michael J. Stewart, to appear before the Superior Court. Throughout the proceedings, the parties and the court have referred to the city of Norwalk as the defendant. For convenience, we therefore refer to the city of Norwalk as the defendant in this opinion.

       The initial appeal was filed in the Superior Court by Fairfield Merrittview Limited Partnership, on July 1, 2009, with a return date of July 21, 2009. On August 7, 2009, Fairfield Merrittview Limited Partnership filed a motion for permission to amend its appeal and application to add Fairfield Merrittview SPE, LLC, as an additional party plaintiff. A copy of the proposed amended appeal and application was annexed to the motion. The defendant did not file an objection to the motion, and the court, Hon. A. William Mottolese, judge trial referee, granted the motion on February 16, 2010.

       Because we conclude that the plaintiffs lacked standing to appeal the tax valuation to the Superior Court, we do not address the defendant’s second claim pertaining to the court’s calculation of the fair market value of the subject property.

       General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of ... the board of assessment appeals ... in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1,1989, October 1,1990, October 1,1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .”

       “[Limited liability companies] are hybrid entities that combine desirable characteristics of corporations, limited partnerships, and general partnerships.” (Internal quotation marks omitted.) Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 729, 924 A.2d 816 (2007).

       That statute was repealed effective January 1, 2014. Mergers are now authorized by General Statutes § 34-611.

       The plaintiffs did not allege that the limited partnership and the limited liability company were the same legal entity. To the contrary, the motion to amend the appeal stated that the limited liability company needed to be added as an additional plaintiff. The amended appeal alleged that both entities owned the subject property. Further, at the time of trial, the continued existence of the limited partnership was evidenced by its financial statement for the year ending December 31, 2008, which was admitted as an exhibit.
      We also note that the property was conveyed by the limited partnership to the limited liability company by deed. If, as now argued by the plaintiffs, the limited partnership was converted into a limited liability company and remained a single entity, there would have been no need for a transfer by deed. “The term ‘conveyance’ is defined in Black’s Law Dictionary as the ‘transfer of title to land from one person, or class of persons, to another by deed.’ . . . The term ‘deed’ is defined as ‘[a] written instrument, signed, and delivered, by which one person conveys land . . . to another.’ ... It is clear from these definitions that there is no conveyance, and therefore no need for a deed, unless there are two separate and distinct entities involved in the property transfer.” (Citations omitted; emphasis in original.)
        Cavanaugh v. Newtown Bridle Lands Assn., Inc., 261 Conn. 464, 471, 803 A.2d 305 (2002).


author: GRUENDEL, J.

text:
    JUSTIN PASSALUGO v. GUIDA-SEIBERT DAIRY COMPANY ET AL.
    (AC 35262)
    DiPentima, C. X, and Gruendel and Beach, Js.

      Argued February 18—
    officially released April 15, 2014

      Jennifer B. Levine, with whom was Harvey L. Levine, for the appellant (plaintiff).

      Marian H. Yun, for the appellees (defendants).
   Opinion

GRUENDEL, J.

Following an informal hearing, the Workers’ Compensation Commissioner for the Sixth District (commissioner) issued a decision approving the filing of notice by the defendants, Guida-Seibert Dairy Company and its insurer, Liberty Insurance Corporation, to discontinue workers’ compensation payments to the plaintiff, Justin Passalugo. The plaintiff then filed a petition for review of that decision with the Workers’ Compensation Review Board (board). In ruling on that petition, the board emphasized that “no record [of the informal hearing] exists” and that “[a]bsent a record this board cannot properly consider” the plaintiffs appeal. Accordingly, the board dismissed the petition and remanded the matter to the commissioner “for a formal hearing or other appropriate action.” From that decision, the plaintiff now appeals.

In this appeal, the plaintiff challenges the propriety of the commissioner’s decision. Specifically, he claims that the commissioner (1) violated General Statutes § 31-296 by terminating his workers’ compensation benefits “without any medical evidence” at the informal hearing, and (2) violated his right to due process and fundamental fairness by terminating his benefits without an evidentiary hearing. We disagree and, therefore, affirm the decision of the board.

Our recitation of the relevant facts is hampered by the limited record before us, which consists of a handful of documents and is devoid of any transcripts or exhibits. The following facts are thus gleaned from that slim record and are undisputed by the parties. The plaintiff sustained an injury on October 30, 2011, and thereafter entered into a voluntary agreement with the defendants regarding workers’ compensation benefits. On August 30, 2012, the defendants filed with the commission a Form 36, thereby notifying the plaintiff of their intention to discontinue workers’ compensation payments. The commissioner held an informal hearing, at the conclusion of which the commissioner on October 23, 2012, approved the defendants’ Form 36 filing to discontinue compensation payments. Although the plaintiff possessed “the right to challenge the notice [of intention to discontinue compensation payments] in a subsequent formal hearing”; Anguish v. TLM, Inc., 63 Conn. App. 241, 242 n.2, 728 A.2d 1165, cert. denied, 250 Conn. 910, 734 A.2d 985 (1999); he declined to do so. He instead filed a petition for review with the board on November 5,2012. In response, the defendants filed with the board an objection to that petition, stating in relevant part that “[t]he Form 36 which forms the basis for the [plaintiffs] petition for review was granted at an informal hearing .... The matter should be remanded to the [commissioner] for a formal hearing ... on the Form 36 issue.”

The board dismissed the plaintiffs petition for review on November 27, 2012. Its remand order states in relevant part: “On November 5, 2012, [the plaintiff] filed a petition for review from the trial commissioner’s October 23, 2012 order granting [the defendants’] Form 36. The order was issued as a result of an informal hearing. No record exists. Due process requires an evidentiary hearing wherein a record can be created. Absent a record, this board cannot properly consider an appeal under [General Statutes §] 31-301 (a). The matter is therefore remanded to the trial commissioner acting for the sixth district for a formal hearing or other appropriate action.” Despite that remand order, the plaintiff did not return to the commissioner for a formal hearing. Rather, he filed an appeal of the board’s decision with this court.

As a preliminary matter, we note that “ [t]he principles that govern our standard of review in workers’ compensation appeals are well established. . . . The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review ... of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner .... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

“This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Internal quotation marks omitted.) Baron v. Genlyte Thomas Group, LLC, 132 Conn. App. 794, 799-800, 34 A.3d 423, cert. denied, 303 Conn. 939, 37 A.3d 155 (2012).

I

The plaintiff first contends that the commissioner violated § 31-296 by terminating his workers’ compensation benefits without any medical evidence at the informal hearing. That claim requires little discussion. The board specifically found, and the plaintiff does not dispute, that no record of the informal hearing exists. As a result, the record before us is inadequate for review.

It is the responsibility of the appellant to provide this court with an adequate record for review. See Practice Book § 61-10. Without an adequate record, we are left to speculation and conjecture; Gelormino v. Liberman, 36 Conn. App. 153, 154, 649 A.2d 259, cert. denied, 231 Conn. 946, 653 A.2d 826 (1994); which “have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). We therefore decline to review the plaintiffs claim.

II

The plaintiff also argues that the commissioner violated his right to due process and fundamental fairness by terminating his benefits without an evidentiary hearing. For multiple reasons, his claim is untenable.

First and foremost, the record before us contains no transcript or record whatsoever of the informal hearing. As a result, we cannot ascertain, as a threshold matter, whether or not an evidentiary hearing of any kind transpired before the commissioner. The paucity of materials in the record before us precludes any meaningful review of the plaintiffs claim.

Second, as this court previously has observed, an “emergency informal hearing ... is not an appealable decision, as it does not create a record that can be reviewed.” (Internal quotation marks omitted.) Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319, 326 n.8, 823 A.2d 1223 (2003); accord 2 A. Sevarino, Connecticut Workers’ Compensation After Reforms (Centennial Ed. 2012) § 5.16.10, p. 716 (“Any [o]rder approving or disapproving a Form 36 at the informal hearing . . . will not have a transcript of the proceedings or a record from which an appeal may be taken to the [board]. Without a transcript or exhibits, the [board] is absent a record and cannot consider the appeal pursuant to [§] 31-301 as the matter is not ripe for appellate review.” [Emphasis omitted.]). That precedent is grounded in the mandate of § 31-301 (b), which provides in relevant part that the board “shall hear the appeal on the record of the hearing before the commissioner . . . .” The board’s remand order, in which it expressly stated that “[a]bsent a record this board cannot properly consider an appeal” and then remanded the matter to the commissioner for a formal hearing, thus is entirely consistent with established Connecticut law.

Third, even if the plaintiff could overcome those significant bars to appellate review, he could not prevail, as this court recently considered—and rejected—an almost identical claim. Like the present case, Pagan v. Carey Wiping Materials Corp., 144 Conn. App. 413, 416, 73 A.3d 784, cert. denied, 310 Conn. 925, 77 A.3d 142 (2013), involved a commissioner’s approval, following an informal hearing, of the discontinuance of compensation payments. Like the present case, the plaintiff in Pagan elected to bypass her right to a formal hearing and instead filed an appeal with the board. Id., 416-17. Like the present case, the board in Pagan remanded the matter to the commissioner for a formal hearing, stating in relevant part that the commissioner’s decision was the “result of an informal hearing. No record exists. Due process requires an evidentiary hearing wherein a record can be created.” Id., 417 n.9.

On appeal to this court, the plaintiff claimed that “due process requires the commissioner to conduct an evidentiary hearing . . . prior to approving the discontinuance of compensation payments.” Id., 422. In rejecting the merits of that claim, this court detailed the contours of the informal hearing on a Form 36 filing. We stated in relevant part: “The form notice set forth in § 31-296, as amended by No. 07-80 of the 2007 Public Acts, provides that the pretermination hearing an employee can seek if he disputes a proposed discontinuance or reduction of benefits is an informal hearing. The informal hearing should be held as soon as possible after the claimant has objected to the Form 36. . . . While evidence is not taken at an informal hearing . . . the employer/insurer has the burden of proof and must submit documents ... in support of the discontinuance or reduction. Thereafter, the burden shifts to the injured worker who should be prepared to present competent medical evidence (usually by medical reports) that support the contest of the Form 36. The [commissioner] will weigh the evidence and either approve or disallow the discontinuance or reduction.” (Citation omitted; footnote omitted; internal quotation mark omitted.) Id., 420-21. We further explained that a commissioner’s “initial ruling on a Form 36 may be challenged at a subsequent formal [evidentiary] hearing, at which the previous ruling has no precedential weight. The issue is tried de novo.” (Emphasis added; internal quotation marks omitted.). Id., 421; see also Brinson v. Finlay Bros. Printing Co., supra, 77 Conn. App. 326 (plaintiff possesses “right to request a formal hearing” that is “a de novo hearing”); Anguish v. TLM, Inc., supra, 53 Conn. App. 242 n.2 (noting that “the term ‘hearing’ as used in ... § 31-296 means an emergency informal hearing to be held as soon as possible, but that the employee had the right to challenge the notice in a subsequent formal healing”).

Accordingly, our precedent instructs that the informal hearing conducted pursuant to § 31-296 is intended to serve as an expedited and preliminary determination, from which a claimant is “entitled to a reasonably prompt posttermination formal hearing at which she [is] permitted to cross examine adverse witnesses and present evidence and testimony . . . .” Pagan v. Carey Wiping Materials Corp., supra, 144 Conn. App. 428; see also 2 A. Sevarino, supra, § 5.16.11, p. 717 (“[a]ny prior decision made by the [commissioner] at the emergency informal hearing level is attune to an ‘interlocutory ruling’ at the administrative level”). Furthermore, it is undisputed that a claimant “is entitled to full retroactive relief if she ultimately prevails at the posttermination formal hearing or thereafter on appeal.” Pagan v. Carey Wiping Materials Corp., supra, 423. In light of those procedural safeguards, this court in Pagan held that “the procedures provided by § 31-296 are constitutionally sufficient” and comply with the requirements of due process under the fourteenth amendment to the United States constitution. Id., 429-30. Given the preliminary nature of an informal hearing conducted pursuant to § 31-296 and the fact that a claimant retains an absolute right to a de novo formal hearing at which the commissioner’s preliminary determinations carry no precedential weight, we conclude that the rationale set forth in Pagan applies with equal force with respect to a claimant’s right to fundamental fairness. We, therefore, disagree with the plaintiff that a commissioner is required, as a matter of constitutional due process and fundamental fairness, to conduct an evidentiary hearing prior to terminating compensation benefits at the conclusion of an informal hearing conducted pursuant to § 31-296.

The decision of the Workers’ Compensation Review Board is affirmed.

In this opinion the other judges concurred.

       “A [F]orm 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§31-296, 31-296a, 31-300.” (Internal quotation marks omitted.) Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319, 320 n.1, 823 A.2d 1223 (2003). “The content of the form is set out by § 31-296.” Id., 325 n.5.

       In their appellate brief, the defendants aver in relevant part that “[a]n informal hearing was held on September 17, 2012, in response to the [plaintiffs] objection to [the Form 36]. At that hearing, both parties presented their positions and the commissioner held his decision concerning the Form 36 in abeyance allowing the parties to further advance their respective positions at a subsequent hearing. ... At the subsequent hearing held on October 9, 2012, [the plaintiff] appeared for the hearing but his counsel failed to appear. Once again, the commissioner held the Form 36 in abeyance and scheduled another hearing thereby protecting the claimant’s rights to be heard and properly represented by counsel. At the third informal hearing held on October 23, 2012 concerning the Form 36 . . . the commissioner considered the arguments presented by both parties, including the medical reports of Dr. Sullivan and Dr. Sella, and granted the Form 36 . ...” In its appellate brief, the plaintiff does not acknowledge that the informal hearing was convened on September 17 or October 9, 2012; rather, he states that “[a] pre-termination informal hearing was held on October 23, 2012.” Because no record of that informal hearing is included in the materials before us, we note simply that an informal hearing was held by the commissioner.

       The record before us contains simply a one paragraph decision titled “Remand Order.” In that decision, the board does not reach the merits of the plaintiffs appeal, nor does it expressly grant or deny the plaintiffs petition. In similar cases, the board’s action in remanding a matter to the commissioner for a formal hearing due to the lack of a record for review has been described as a dismissal of the petition. See, e.g., Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280, 282, 22 A.3d 671 (2011). We thus interpret the board’s action in the present case as tantamount to a dismissal of the petition.

       In its appellate brief, the defendants represent that “a formal hearing notice issued on May 6, 2013, for a hearing to take place on June 13, 2013. In response to this, [the plaintiffs] counsel on May 13, 2013, filed a ‘Motion for Order Cancelling June 13, 2013 Sua Sponte Formal Hearing on Form 36.’ This motion was granted by the commissioner on May 14, 2013.” At oral argument before this court, counsel for the plaintiff conceded the veracity of that representation.

       Although the record is inadequate to substantiate their assertion, we note that the defendants in their appellate brief dispute the factual predicate to the plaintiffs claim, alleging specifically that the commissioner considered “the medical reports of Dr. Sullivan and Dr. Sella” at the informal hearing, which included a report stemming from an independent medical examination of the plaintiff. The record likewise is inadequate to evaluate the plaintiffs assertion that, contrary to the defendants’ representation, the commissioner at the informal hearing “did not seek or require the employer to present medical reports establishing the plaintiffs medical recovery. In fact, the commissioner did not require any objective evidence to be demonstrated to him and instead simply relied on the unsworn representations of defense counsel and those found in the Form 36.”

       As our appellate courts previously have observed, there exists an inherent overlap between the right to due process and the right to fundamental fairness in administrative proceedings. See Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997); Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 607 n.6, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008). “[A]dministrative hearings, including those held before workers’ compensation commissioners, are informal and governed without necessarily adhering to the rules of evidence or procedure. . . . Nonetheless, administrative hearings must be conducted in a fundamentally fair manner so as not to violate the rules of due process. ... A fundamental principle of due process is that each party has the right to receive notice of a hearing, and the opportunity to be heard at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280, 282-83, 22 A.3d 671 (2011). Notably, the common-law right to fundamental fairness “is not coextensive with constitutional due process. . . . The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections, including the right to adequate notice .... [Our Supreme Court at times has] characterized these procedural protections as due process rights. . . . Although the due process characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings.” (Citation omitted; internal quotation marks omitted.) Megin v. Zoning Board of Appeals, supra, 607 n.6.

       Indeed, one noted commentator indicates that such a result is routine protocol in Form 36 proceedings: “Should a [claimant decline to exercise the right to a formal hearing and instead] file ... an appeal [with the board] without a transcript or record [the claimant] is going to receive a remand order from the [board] dismissing the appeal and remanding the matter back to the [commissioner for a] formal hearing, which then will produce a transcript and record.” 2 A. Sevarino, supra, § 6.16.10, p. 716.

       The remand order in the present case contains that exact language.

       In his appellate brief and at oral argument before this court, the plaintiff has argued that the issue of compensation benefits termination is not tried de novo during the formal hearing, alleging the claimant bears the burden of proof “at all times” in that proceeding. That proposition is contrary to Connecticut law. See Pagan v. Carey Wiping Materials Corp., supra, 144 Conn. App. 421; Brinson v. Finlay Bros. Printing Co., supra, 77 Conn. App. 326; see also A. Sevarino, supra, § 5.16.11, p. 716-17 (employer seeking discontinuance or reduction of compensation payments bears preliminary burden at de novo formal hearing).

       The facts of the present case underscore the safeguards available to an aggrieved claimant. Prior to commencing the present appeal with this court, the plaintiff twice had the opportunity to obtain a de novo evidentiary hearing regarding the termination of his benefit payments. He first declined to exercise his right to proceed to a de novo formal hearing following the commissioner’s initial ruling. When the board subsequently remanded the matter to the commission for a de novo formal hearing, he again declined to proceed with that evidentiary hearing, instead opting to commence this appeal. Moreover, as the plaintiffs counsel acknowledged at oral argument before this court, a formal hearing on the matter was scheduled for June 13,2013, to which the plaintiff filed a written request to cancel that then was granted by the commissioner. See footnote 4 of this opinion. The plaintiffs repeated election to bypass those opportunities for de novo evidentiary hearings undermines his contention that, on the facts of this case, he was deprived of his right to procedural due process and fundamental fairness before the commissioner.

       It is undisputed that the right to cross-examine witnesses and the right to offer rebuttal evidence, two hallmarks of fundamental fairness, are retained by a claimant in a de novo formal hearing.


author: PER CURIAM.

text:
    PACHAUG MARINA AND CAMPGROUND ASSOCIATION, INC. v. PATRICIA E. PEASE ET AL.
    (AC 35157)
    DiPentima, C. J., and Lavine and Flynn, Js.
    Argued February 10
    officially released April 15, 2014

      William J. Nulsen, for the appellants (defendant Anthony Russo et al.).

      Gregory W. McCracken, with whom was Lauramarie Sirois, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendants Anthony Russo and Lucia H. Russo appeal from the judgment of the trial court denying their motion to open and correct the judgment of strict foreclosure and to extend the sale date. On appeal, the defendants claim that the court improperly denied their motion because part of the hen for unpaid assessments was extinguished by General Statutes § 47-258 (e). We conclude that the trial court did not abuse its discretion in denying the defendants’ motion. We therefore affirm the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of this appeal. The plaintiff, Pachaug Marina & Campground Association, Inc., is the unit owners’ association of a common interest community known as Pachaug Co-Operaitve Campground. On December 5, 2011, the plaintiff commenced this action against the defendants and sought to foreclose a statutory lien created by § 47-258 (a). The subject property of the plaintiffs foreclosure action is located in Gris-wold at 262 Shetucket Turnpike, Unit 44, together with the corresponding docksite (unit). The plaintiff was entitled to provide an assessment of common expenses against all units, and it claimed that the defendants had failed to make the required payment beginning in February, 2007. At the time of the complaint, the plaintiff alleged that the defendants owed $8,530.26 and that additional assessments accrued on a monthly basis. The plaintiff sought, inter alia, a foreclosure of the lien, immediate possession of the unit, attorney’s fees, costs, interest, late charges, and the appointment of a receiver.

On February 9, 2012, pursuant to Practice Book § 13-19, the plaintiff moved for a default against the defendants for failing to disclose a defense. The plaintiff also moved for a judgment of strict foreclosure. The court granted the plaintiffs motion for default on February 21, 2012. On February 22, 2012, the court rendered a judgment of foreclosure by sale, with a sale date of July 21, 2012. At that time, the court found the defendants’ debt to be $10,246.45.

On July 5, 2012, the defendants moved to open the judgment and to extend the sale date. They alleged that they had substantial equity in the unit and that they actively were marketing it for sale in the summer months. On July 16, 2012, the court granted the defendants’ motion, and set a new sale date of September 22, 2012. On August 31, 2012, the defendants filed a second, nearly identical motion to open the judgment and to extend the sale date. The court granted that motion on September 17, 2012, and set the sale date for October 20, 2012.

On September 27, 2012, the defendants filed a third motion to open, seeking to correct the judgment and to extend the sale date. For the first time, the defendants claimed that the amount of the debt was incorrect. Specifically, they argued that liens assessed in 2007, 2008 and 2009 would have expired before the action had been instituted as a result of § 47-258 (e). The court held a hearing and issued an order denying the defendants’ motion. The court declined to open the judgment to allow the defendants to raise defenses “that should have been asserted prior to the entry of judgment, and where no compelling reason [was] shown for the defendants’ failure to do so. . . . It is also well established that courts of equity will not relieve against the operation of judgments rendered through the inattention of the party claiming to be aggrieved.” (Citation omitted.) The court also stated that it previously had opened the judgment twice and the defendants had not raised § 47-258 (e); moreover, the defendants had acknowledged the debt on two separate occasions. This appeal followed.

“Whether to grant a motion to open rests in the discretion of the trial court.” Rzayeva v. 75 Oxford Street, LLC, 111 Conn. App. 77, 78, 957 A.2d 539 (2008). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 295, 966 A.2d 318 (2009).

“[General Statutes §] 52-212 requires a party moving for the opening of a judgment to make a two part showing that: (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause.” (Internal quotation marks omitted.) Tsitaridis v. Tsitaridis, 100 Conn. App. 115, 119, 916 A.2d 877 (2007); see also Berzins v. Berzins, 105 Conn. App. 648, 651-52, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008); Practice Book § 17-43. The failure to meet both prongs is fatal to the motion to open. Dziedzic v. Pine Island Marina, LLC, 143 Conn. App. 644, 652, 72 A.3d 406 (2013).

Our Supreme Court “has consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of the moving party’s negligence.” Kaplan & Jellinghaus, P.C. v. Newfield Yacht Sales, Inc., 179 Conn. 290, 293, 426 A.2d 278 (1979); see also Woodruff v. Riley, 78 Conn. App. 466, 471, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003). Additionally, we are mindful that “[b]ecause opening a judgment is a matter of discretion, the trial court [is] not required to open the judgment to consider a claim not previously raised.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94, 962 A.2d 1 (2008); JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn. App. 260, 273, 73 A.3d 767, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).

The defendants’ claim on appeal withers in light of this precedent. Moreover, they have failed to persuade us that this case presents an exceptional circumstance that would warrant a departure from well settled law. The defendants’ two passing references to Connecticut Savings Bank v. Obenauf, 59 Conn. App. 361, 355-67, 758 A.2d 363 (2000), do not persuade this court that the trial court abused its discretion in denying the defendants’ motion.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

       The plaintiff also named Patricia E. Pease and John H. Pease (Pease defendants) as defendants. On February 2, 2012, the court granted the plaintiffs motion for default as a result of the failure of the Pease defendants to file appearances. The Pease defendants are not parties to this appeal. We therefore refer in this opinion to Anthony Russo and Lucia H. Russo as the defendants.

       See General Statutes §§ 47-243 and 47-244.

       “The Common Interest Ownership Act, General Statutes § 47-200 et seq., is a comprehensive legislative scheme that governs creation, organization and management of all forms of common interest communities.” Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 262 n.2, 961 A.2d 642, cert. denied, 289 Conn. 938, 968 A.2d 1246 (2008); see also Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 312 n.1, 984 A.2d 676 (2009). Our Supreme Court has explained that “[t]he act, which is largely modeled after the Uniform Common Interest Ownership Act, was created in order to provide unit owners and their associations with consumer protection rights, as well as to afford developers, lenders and title insurers with flexibility and certainty in establishing common interest communities.” Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 584, 726 A.2d 502 (1999).

       General Statutes § 47-258 (a) provides in relevant part: “The association has a statutory lien on a unit for any assessment attributable to that unit or fines imposed against its unit owners. Unless the declaration otherwise provides, reasonable attorneys’ fees and costs, other fees, charges, late charges, fines and interest charged pursuant to subdivisions (10), (11) and (12) of subsection (a) of section 47-244 ... are enforceable in the same manner as unpaid assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment thereof becomes due.”

       The plaintiff filed an objection to this motion.

       General Statutes § 47-258 (e) provides in relevant part: “A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due . . . .” This subsection previously set forth a two year period to bring a proceeding to enforce the lien.


text:
    CARL DELVECCHIO v. COMMISSIONER OF CORRECTION
    (AC 34851)
    Alvord, Bear and Schaller, Js.

      Argued December 5, 2013
    officially released April 15, 2014

      Mary H. Trainer, assigned counsel, for the appellant (petitioner).

      David J. Smith, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Carl Delvecchio, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly determined that he was provided with effective assistance of counsel. We affirm the judgment of the habeas court.

The habeas court made the following findings of fact. In March, 2006, a string of armed robberies occurred over the course of a single evening in Norwich and Montville. Witnesses to the robberies described to the police what the assailants looked like, what they were wearing, and what vehicle they were driving. The police later stopped a vehicle occupied by two individuals matching the witnesses’ descriptions. During the stop, the police conducted a “drive-by show-up” identification procedure. After the witnesses identified the petitioner as one of the assailants, the police arrested him. The petitioner was charged in four separate informa-tions with robbery in the first degree in violation of General Statutes § 53a-134, larceny in the second degree in violation of General Statutes § 53a-123, possession of a firearm without a permit in violation of General Statutes § 29-35a, and criminal possession of a firearm in violation of General Statutes § 53a-217. In three of the four informations, he was charged with attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134. In addition, he was charged with violation of probation.

Shortly after his arrest, the petitioner’s family hired Attorney Robert Cary to represent the petitioner. Cary, who had represented the petitioner in previous matters, was in possession of the petitioner’s mental health records and was familiar with the petitioner’s mental health history. Consequently, at the petitioner’s first court appearance, Cary informed the court of the petitioner’s mental health history and prescription medications, and asked that the petitioner be placed on suicide watch. Throughout the pretrial proceedings, Cary routinely checked the state’s file in lieu of a formal discovery request.

The state initially offered the petitioner a plea agreement of nine years imprisonment followed by six years special parole. The petitioner rejected this offer and his case was placed on the trial list. At a pretrial conference, the trial court informed Cary that the petitioner should expect to receive the maximum sentence if convicted. Cary, in turn, explained the trial court’s position on sentencing to the petitioner, and the petitioner expressed concern to Cary over the possibility of a harsh sentence if convicted. Thereafter, shortly before trial, the court offered to resolve all of the petitioner’s charges in exchange for a sentence of ten years imprisonment followed by five years special parole. Cary then discussed the offer, as well as the risk of going to trial and facing a harsher sentence, with the petitioner. He explained to the petitioner that the state could establish a violation of probation, resulting in approximately four and one-half years imprisonment. In addition, he explained the state’s evidence regarding the other charges to the petitioner, which included the testimony of at least one victim who could identify the petitioner, the presence of the victim’s identification card in the petitioner’s vehicle when he was arrested, and the testimony of the petitioner’s codefendant. Cary thought the court’s offer, under the circumstances, was a good one. He urged the petitioner to accept it. The petitioner decided to accept the court’s offer.

The petitioner subsequently pleaded guilty to two counts of robbery in the first degree and admitted to a violation of probation. Cary believed that the petitioner was coherent and capable of making the decision to plead guilty. The court conducted a thorough plea canvass, informing the petitioner that if he were convicted on the robbery charges alone, he faced up to forty years imprisonment, in addition to the four and one-half years imprisonment for violation of probation. In addition, the court inquired whether the petitioner understood that by pleading guilty, he was waiving his right to a trial. The petitioner stated that he understood. After the court accepted the pleas, however, the petitioner requested to address the court. After the court granted his request, the petitioner denied committing the robberies. The court then ordered a recess, during which the petitioner consulted with Cary. Following the recess, the court explained to the petitioner that if he denied committing the crimes but believed the state had enough evidence to convict him, he could plead guilty pursuant to the Alford doctrine. The petitioner indicated that he wanted to do so. The court then ordered that the plea canvass would stand and that both pleas would be changed to Alford pleas. The court set sentencing for a later date.

Before the sentencing hearing, Cary withdrew as the petitioner’s counsel. The court appointed Attorney Gregg W. Wagman to represent the petitioner. Wagman subsequently filed a motion to vacate the petitioner’s pleas, but did not request an evidentiary hearing in connection with the motion. Thereafter, at the sentencing hearing, the court denied the motion. The court then sentenced the petitioner to ten years of imprisonment, followed by five years of special parole, and terminated the petitioner’s probation pursuant to the terms of the plea agreement. The petitioner subsequently appealed his conviction to this court. During the pendency of the appeal, the petitioner’s appellate counsel filed a motion to withdraw as counsel on the ground that the appeal was frivolous. The trial court granted appellate counsel's motion to withdraw, and this court subsequently disposed of the petitioner’s appeal on its own motion.

On August 18, 2011, the petitioner filed a second amended petition for a writ of habeas corpus alleging that Cary and Wagman rendered ineffective assistance of counsel in a variety of ways. Following a trial, the habeas court rejected the claims of ineffective assistance and denied the petition. The petitioner then filed a petition for certification to appeal to this court, which the habeas court granted. This appeal followed.

The applicable standard of review and principles of law governing claims of ineffective assistance of counsel are well settled. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

“Furthermore, it is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, supra, 687, this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 677-78.

“In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition.” (Internal quotation marks omitted.) Davis v. Commissioner of Correction, 147 Conn. App. 343, 349, 81 A.3d 1226 (2013), cert. granted on other grounds, 311 Conn. 921, 86 A.3d 467 (2014). “The prejudice inquiry in claims arising from counsel’s advice during the plea process differs from the analysis of claims following conviction after trial.” Carraway v. Commissioner of Correction, 144 Conn. App. 461, 472, 72 A.3d 426 (2013). In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court of the United States “articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea.” Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995). In order to establish prejudice in such cases, the petitioner must demonstrate “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, supra, 59.

In the present case, the habeas court concluded that even if counsels’ performance was deficient, the petitioner still would have pleaded guilty. This conclusion is premised on the court’s finding that the petitioner opted to plead guilty precisely because he was concerned that a trial would result in his conviction and a harsher sentence than the plea offer. Our review of the record indicates that the primary source of the petitioner’s concern that his trial would result in a conviction was the potential testimony of his codefendant. Contrary to the petitioner’s argument, both Cary and Wagman independently confirmed that the petitioner’s codefendant would have testified against him if the petitioner’s case went to trial. Moreover, Cary testified at the habeas trial that the petitioner repeatedly expressed that he had “huge concerns about being convicted” and that his codefendant was going to “hang” him. Before pleading guilty, the petitioner was aware of the trial court’s position on sentencing if he were convicted following a trial, he had “little doubt” that his codefendant was going to testify against him, and, in light of his codefendant’s potential testimony, he indicated to his attorney that he did not want to “roll the dice” by going to trial. In addition, during his plea canvass, the petitioner indicated to the court that he “didn’t want to take the risk of trial” precisely because he believed that the state had enough evidence to convict him.

On the basis of the foregoing, the habeas court reasonably concluded that the petitioner’s decision to plead guilty arose primarily from his understanding that the testimony of his codefendant would result in his conviction if he went to trial. When coupled with his awareness that he would face the maximum sentence if convicted, the court properly found that it was not reasonably probable that the petitioner would have insisted on going to trial. We note, however, that under the Strickland-Hill modified prejudice standard, “[t]he fundamental question ... is whether the petitioner would not have pleaded guilty.” Carraway v. Commissioner of Correction, supra, 144 Conn. App. 477. Because none of counsels’ alleged errors would have affected the reason for the petitioner’s decision to plead guilty, namely, that his codefendant would testify against him if he went to trial, we conclude that the petitioner has failed to demonstrate that, absent counsels’ alleged errors, there is a reasonable probability he would not have pleaded guilty and would have insisted on going to trial.

The judgment is affirmed.

       “A ‘show-up’ is the presentation of a single suspect to an eyewitness for possible identification.” State v. Ledbetter, 275 Conn. 534, 549 n.12, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). The “drive-by show-up” identification procedure employed in the present case involved the police transporting the witnesses to the scene of the stop to either identify the individuals as the assailants or eliminate them as suspects in the robberies.

       As a result of a previous conviction, the petitioner was on probation when he was arrested in March, 2006.

       At the time of the pretrial proceedings, the New London state attorney’s office had an “open file policy.”

       Pursuant to the plea agreement, the state dropped the remaining charges against the petitioner.

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

       The habeas court rejected the petitioner’s claim that his guilty pleas were “obtained in violation of his state and federal constitutional rights to due process of law.” Notwithstanding the rejection of this claim, both the court and the record indicate that the petitioner withdrew his due process claim at the habeas trial. Whether the claim was withdrawn or rejected, the petitioner has not raised a due process claim on appeal.

       To demonstrate prejudice following a conviction after trial, “the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Gaines v. Commissioner of Correction, supra, 306 Conn. 688-89.

       We note that in Copas v. Commissioner of Correction, supra, 234 Conn. 151, our Supreme Court determined that, to establish prejudice, a petitioner who has entered a plea of guilty must show that he or she would not have pleaded guilty and would likely have been successful at trial. By contrast, in an appeal currently pending in our Supreme Court, both the petitioner and the respondent, the Commissioner of Correction, maintain that a petitioner must show only that, but for counsel’s deficient performance, he or she would not have pleaded guilty and would have insisted on going to trial. See Brown v. Commissioner of Correction, Docket No. SC 18859.