author: GRUENDEL, J.

text:
    GARY BROWN v. KAREN BROWN
    (AC 31801)
    Gmendel, Lavine and Bear, Js.

      Argued May 26
    officially released August 2, 2011

      Michael S. Taylor, with whom was Kenneth J. Bartschi, for the appellant (plaintiff).

      David R. Schaefer, with whom was Sean M. Fisher, for the appellee (defendant).
   Opinion

GRUENDEL, J.

In this marital dissolution action, the plaintiff, Gary Brown, appeals from the judgment of the trial court with respect to the court’s financial orders. On appeal, the plaintiff claims that the court abused its discretion by (1) awarding the defendant, Karen Brown, $20,000 in monthly alimony payments without sufficient evidence of his income and (2) excluding evidence regarding the state of his financial condition at the time of trial. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties married on November 28,1982, in Woodbridge. On November 5,2009, the court rendered judgment dissolving the parties’ marriage and entered related financial orders. By the time of the parties’ divorce, the plaintiff had enjoyed a successful career as a prodigious and highly competent entrepreneur, particularly within the real estate development market. As documented by his financial affidavit, the total value of the plaintiffs assets equaled approximately $3.1 million as of May, 2009, and it was undisputed that for the four year period immediately preceding their divorce, the parties lived on between $600,000 and $1 million of annual, tax free cash withdrawals from the plaintiffs businesses and investments, which the court, in its memorandum of decision, explicitly deemed as “income.” The plaintiff also testified that from September, 2007, through December, 2008, he provided the defendant with at least $40,000 per month for her personal expenses.

During the underlying dissolution trial before the court in May and June, 2009, the plaintiff claimed that he had limited income and that his business ventures left him little in terms of overall asset value. Specifically, the plaintiff argued that, beginning in September, 2008, his extensive business investments, which previously had been of substantial value, now had limited worth and he was considering bankruptcy. Thus, the plaintiff maintained that he had no ability to provide the defendant with financial support in the form of alimony or otherwise. Nonetheless, in its November 5, 2009 memorandum of decision, the court explicitly determined that “much of the plaintiffs testimony as to the current status of his businesses as well as the future status of same can be considered self-serving.” As the court described, not only was the plaintiffs business debt “grossly exaggerated,” but, “[s]ince the [parties’] separation [in early 2008, the plaintiff] has had an incomparable lifestyle, [including] expensive and extensive travel and lavish living expenses.” Accordingly, having “considered . . . the criteria set forth in [General Statutes §§] 46b-81 and 46b-82 ... as well as ... the parties’ gross and net income [s] [and] their assets and liabilities,” the court ordered, inter alia, that the plaintiff pay the defendant $20,000 in monthly, tax free alimony. Further, the court ordered that the plaintiffs alimony obligation was to be nonmodifiable until he paid the defendant $2 million toward the amount due her for her beneficial ownership interest in the plaintiffs real estate properties. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly awarded the defendant $20,000 in monthly alimony payments without sufficient evidence of his income. Specifically, the plaintiff claims that in the absence of any evidence as to either his earned income or earning capacity at the time of the dissolution judgment and, in light of the court’s failure to articulate any amount of income attributable to him, there was no evidentiary basis to justify the court’s alimony award. We are not persuaded.

“Because the plaintiffs first claim on appeal challenges the factual bases of the financial orders rendered by the court at the time it dissolved the marriage, we review that claim under the abuse of discretion standard. In fashioning its financial orders, the court has broad discretion, and [j]udicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Wallbeoff v. Wallbeoff, 113 Conn. App. 107, 110, 965 A.2d 571 (2009).

“In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in ... § 46b-81 (division of marital property), ... § 46b-82 (alimony) and [General Statutes] § 46b-84 (child support). All three statutory provisions require consideration of the parties’ amount and sources of income in determining the appropriate division of property and size of any child support or alimony award. . . .” (Internal quotation marks omitted.) Picton v. Picton, 111 Conn. App. 143, 157-58, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009). With respect to the present claim concerning alimony, General Statutes § 46b-82 (a) provides in relevant part: “In determining whether alimony should be awarded, and the duration and amount of the award, the court shall hear witnesses, if any, of each party . . . shall consider the length of the marriage . . . the age . . . station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .” “The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. . . . We note also that [t]he trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case. . . . There is no additional requirement that the court specifically state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor.” (Citation omitted; internal quotation marks omitted.) Kaczynski v. Kaczynski, 124 Conn. App. 204, 211, 3 A.3d 1034 (2010).

Finally, “[o]ur Supreme Court has emphasized the importance of using an expansive definition of income when formulating financial orders during the course of marriage dissolution proceedings. . . . Adopting a flexible definition of income, the court has explained, ensures that each spouse fulfills his or her continuing duty to support one another and each receives his or her equitable share of the marital assets.” (Internal quotation marks omitted.) Picton v. Picton, supra, 111 Conn. App. 158. In this regard, “[l]ifestyle and personal expenses may serve as the basis for imputing income where conventional methods for determining income are inadequate.” (Internal quotation marks omitted.) Carasso v. Carasso, 80 Conn. App. 299, 304, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004). Moreover, [w]here a party through his own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award.” (Internal quotation marks omitted.) Palazzo v. Palazzo, 9 Conn. App. 486, 488-89, 519 A.2d 1230 (1987).

Here, the plaintiff maintains that the court’s alimony award was improper because there was no evidence of his “past or present income . . . and no finding of any amount of income” attributable to him at the time of the parties’ divorce. The record reveals unequivocally, however, that in the four years immediately preceding the divorce, the parties lived on between $600,000 and $1 million of annual, tax free “income” and, from September, 2007, to December, 2008, the plaintiff paid the defendant a minimum of $40,000 per month for her personal expenses. In contrast to the plaintiffs claim, his pretrial claims for relief, dated December 12, 2008, explicitly represent that he has “typically drawn approximately $500,000 [to] $600,000 per year” from his various assets. As the court noted, the parties’ lifestyle, as documented by their expenditures, was “incomparable” in that “nothing was spared.” Although the plaintiffs financial affidavit discloses “$0.00” in net monthly income, such disclosure is consistent with the plaintiffs utilization of capital withdrawals from his numerous business assets to avoid receipt of taxable income. Additionally, we decline to accept the plaintiffs principal argument, raised both at trial and before this court, that, as of September, 2008, the deterioration in the value of his business investments deprived him of the ability to provide the defendant with financial support in the form of alimony or otherwise. The plaintiffs argument in this regard is belied both by evidence of the total value of his assets, and the court’s specific determination that much of the plaintiffs testimony in support of his argument was “self-serving,” particularly given the fact that “he takes money as he needs it from the companies he runs.” Our review of the court’s memorandum of decision indicates that, even assuming the veracity of the plaintiffs argument that there has been a “decrease of income and assets, ” the plaintiff has continued to live “an incomparable lifestyle, [including] expensive and extensive travel and lavish living expenses.” Indeed, in light of this apparent plethora of evidence regarding the plaintiffs lifestyle and personal expenses, we fail to see any justification for the plaintiffs contention that the court’s alimony award lacked sufficient evidentiary support. See Carasso v. Carasso, supra, 80 Conn. App. 304. To the contrary, the record is clear that the court’s alimony award was premised both on a thorough consideration of the parties’ unique life circumstances at the time of dissolution and the criteria set forth by § 46b-82. See McKenna v. Delente, 123 Conn. App. 146, 162, 2 A.3d 38 (2010) (“[because every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances”). Therefore, we conclude that the court’s alimony award did not constitute an abuse of discretion, and, accordingly, the plaintiffs claim fails.

II

The plaintiff next claims that the court improperly excluded evidence regarding the state of his financial condition at the time of trial. Specifically, the plaintiff argues that the corut incorrectly precluded him from testifying as to the deterioration of the value of his real estate properties after January 23, 2009. We disagree.

The following additional facts are relevant to our disposition of the plaintiffs claim. During trial, both parties presented expert testimony as to the total value of the plaintiffs real estate properties. Because of the pervasive volatility present in the real estate market prior to and during trial, the parties stipulated that the expert testimony would be based on a valuation of the real estate properties as of January 23, 2009, and that there would be no further testimony “about events after that or updates after that” by either party. On June 3, 2009, the court heard testimony from the plaintiff regarding the economic condition of his business investments, at which point the following colloquy ensued:

“[The Plaintiffs Counsel]: Okay. You’ve heard the testimony ... of two different experts, and they’ve testified as of January 23, 2009. Correct?

“[The Plaintiff]: Correct.

“[The Plaintiffs Counsel]: What has been your experience in the rental markets since January 23, 2009?

“[The Defendant’s Counsel]: Objection. Your Honor, we stipulated that we’re not going to have evidence—

“The Court: Sustained, if there’s an objection.

“[The Plaintiffs Counsel]: Oh, well, I’ll make an offer of proof.

“The Court: Of course.

“[The Plaintiffs Counsel]: We stipulated that the experts weren’t going to update their reports beyond January 23, 2009. This gentleman is certainly entitled to testify what his experience has been currently, certainly since January 23, 2009.

“The Court: How does that help the court?

“[The Plaintiffs Counsel]: It helps the court because the court is supposed to use current value when it makes its determinations.

“The Court: I’m going to sustain the objection. Okay.

“[The Plaintiff’s Counsel]: Okay. If the witness were allowed—

“The Corut: And I note your objection.

“[The Plaintiffs Counsel]: And I’m going to make an offer of proof because if the witness were allowed to testify he would testify that—

“The Court: Okay.

“[The Plaintiffs Counsel]:—the rents were significantly lower.”

Thereafter, the plaintiff was precluded from testifying further as to the value of his real estate properties subsequent to January 23,2009. The plaintiff now claims that the court improperly precluded his testimony and thereby improperly excluded evidence regarding the value of his real estate properties at the time of trial.

Before addressing the merits of the plaintiffs claim, we begin by setting forth the applicable standard of review and legal principles governing our analysis. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. ... In addition, [b]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its [exclusion] is harmless.” (Citation omitted; internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 382-83, 999 A.2d 721 (2010).

“A formal stipulation of facts by the parties to an action constitutes a mutual judicial admission and under ordinary circumstances should be adopted by the court in deciding the case.” (Internal quotation marks omitted.) Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 745, 873 A.2d 898 (2005). “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. ... A judicial admission is, in truth, a substitute for evidence, in that it does away with the need for evidence. ... A party is bound by a judicial admission unless the court, in the exercise of its discretion, permits the admission to be withdrawn, explained or modified.” (Citation omitted; internal quotation marks omitted.) Levine v. Levine, 88 Conn. App. 795, 804, 871 A.2d 1034 (2005).

Here, it is undisputed that the parties stipulated that any expert testimony regarding the value of the plaintiffs real estate properties would be based on their value as of January 23, 2009, and that no further evidence in this regard would be offered by either party. Nonetheless, the plaintiff claims that the court improperly excluded evidence during the trial by precluding him from testifying as to the fact that “rents were significantly lower” for his real estate properties after January 23,2009. At no time, however, has the plaintiff described how his testimony would have altered the court’s financial orders other than by claiming that, without his testimony, the court could not have entered financial orders based on the present total value of his assets. Not only does this argument contradict the parties’ binding stipulation, but also, from our review of the record, it is clear that the plaintiffs argument is nothing more than a reiteration of his more general contention that at the time of the parties’ divorce, “he ha[d] limited assets and income and . . . his extensive business investments . . . now have limited worth.” Notwithstanding the plaintiffs proffered testimony, the court was well aware of his argument that he lacked the financial ability to support the defendant; an argument that in many respects the court deemed “self-serving.” Therefore, assuming arguendo that the court erroneously excluded the plaintiffs testimony, we fail to see how the excluded evidence would have affected the court’s financial orders and, as such, any error was harmless. See Misthopoulos v. Misthopoulos, supra, 297 Conn. 383. Accordingly, the plaintiffs claim is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

       There were no minor children issue of the marriage at the time of the dissolution. Also, by way of stipulation, the court did not consider evidence of fault with respect to the cause of the marital breakdown, nor did the court consider evidence as to the health of the parties.

       In addition to owning two profitable businesses, the plaintiff held ownership interests in more than fifteen New York City real estate properties (real estate properties).

       The plaintiff testified that, instead of drawing an annual salary from his businesses, he would regularly make tax free capital withdrawals whenever “he needed funds for personal expenses ... for whatever purpose.” In this way, the plaintiff avoided paying income taxes and listed on his financial affidavit “$0.00” in net monthly income. Notably, however, in the plaintiffs pretrial claims for relief, dated December 12, 2008, he represented that he has “typically drawn approximately $500,000 [to] $600,000 per year,” presumably by way of tax free capital withdrawals.

       Although the defendant’s financial affidavit, dated May 28,2009, discloses approximately $2.6 million in total assets, it is undisputed that the gross income from her sole source of employment totals $24,000 annually.

       For example, in its memorandum of decision, the court remarked on the complexities of the plaintiffs asset manipulation and derivative cash flow by noting that the “[pjlaintiff candidly admits it would take a [certified public accountant] a month to figure out his cash flow and how much money goes to him” by way of capital withdrawals.

       The court reasoned that, “[w]hile the order for tax free [alimony] is unusual, it is equitable since [the] plaintiffs real estate and other investments generate tax losses which result in his paying little or no tax [and the] defendant should have the advantage of this tax saving.” The plaintiff has not challenged this aspect of the court’s alimony award on appeal.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    TROY S. THOMAS v. STATE OF CONNECTICUT
    (AC 31313)
    Lavine, Bear and West, Js.

      Argued April 18
    officially released August 2, 2011

      John W. Watson, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Terri L. Sonnemann, assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Troy S. Thomas, appeals from the judgment of the trial court denying his petition for a new trial. On appeal, the petitioner claims that the trial court improperly (1) granted the motion to strike filed by the respondent, the state of Connecticut, and (2) denied his petition for a new trial. We affirm the judgment of the trial court.

The following procedural history and facts provide an overview of the events that give rise to this appeal. On July 23, 2003, the petitioner was arrested in the vicinity of 57 Belden Street in Hartford. Evidence was presented to a jury, which, on September 22,2004, found the petitioner guilty of “possession of narcotics with the intent to sell in violation of General Statutes § 21a-278 (b), possession of a controlled substance with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d).” State v. Thomas, 96 Conn. App. 578, 579, 901 A.2d 76, cert. denied, 280 Conn. 912, 908 A.2d 542 (2006). The petitioner’s conviction was upheld on appeal to this court. Id., 589.

During the course of the trial on the July, 2003 charges, held in September, 2004, two Hartford police detectives, Alfred Henderson and Nathaniel Ortiz (detectives), testified about the petitioner’s prior uncharged misconduct concerning his involvement with illegal drugs to prove knowledge and intent. Id., 581-82. In October, 2004, after the jury found the petitioner guilty, but before he was sentenced, the petitioner’s trial counsel, Jeremy N. Weingast, learned that Ortiz was under investigation for falsifying information in search warrant affidavits. Weingast filed a motion for a new trial, which the court, Keller, J., denied, indicating that General Statutes § 52-270 was the appropriate means by which to seek a new trial. Judge Keller sentenced the petitioner to eleven years imprisonment. Id., 579.

In October, 2003, the petitioner again was arrested and charged with various drug offenses. Jury selection on those charges commenced in April, 2005, but the panel was never sworn in. The state filed a motion to introduce uncharged misconduct evidence to prove the petitioner’s intent to possess and sell drugs. The petitioner filed a motion to suppress, which Judge Keller denied. The petitioner elected to enter a plea of nolo contendere on April 26, 2005, in order to appeal from the denial of his motion to suppress. The court, D’Addabbo, J., sentenced the petitioner to a term of imprisonment concurrent with the sentence he was serving for his conviction of the crimes he committed in July, 2003.

With regard to the detectives who testified as to the petitioner’s prior uncharged misconduct in the September, 2004 trial, police department investigations revealed that they were involved in criminal activity themselves. Ortiz had falsified information in a search warrant affidavit and was indicted before the petitioner was sentenced for the July, 2003 crimes. On April 8, 2008, Ortiz pleaded guilty under the Alford doctrine to a charge of making a false statement in the second degree. In January, 2006, Henderson also was arrested and charged in a ten count information with larceny in the first degree, forgery in the second degree, fabricating physical evidence and tampering with a witness. On October 26, 2007, he entered a written plea of nolo contendere to one of court of forgery in the second degree and was sentenced on February 4, 2008.

In 2007, the petitioner filed a pro se petition for a new trial. Appointed counsel subsequently filed an amended petition on January 22,2009. In count one, the petitioner sought a new trial pursuant to his conviction after a jury trial on the July, 2003 crimes, and, in count two, a new trial pursuant to his having entered a plea of nolo contendere to one of the October, 2003 crimes with which he had been charged. The respondent filed a motion to strike count two of the petition. The court, Hon. John F. Mulcahy, Jr., judge trial referee, granted the motion to strike. Thereafter, the parties tried the first count of the petition to Judge Mulcahy, who denied the petition for a new trial in a lengthy and thorough memorandum of decision. See Thomas v. State, 52 Conn. Sup. 69, 24 A.3d 630 (2009). The court granted the petitioner’s request for certification to appeal filed pursuant to General Statutes § 54-95 (a). This appeal followed. Additional facts will be set forth as needed.

I

The petitioner first claims that the court improperly (1) granted the respondent’s motion to strike count two of his petition for a new trial and (2) denied his motion to reconsider and replead. We disagree.

A

The resolution of the petitioner’s claim that the court improperly granted the motion to strike count two of his petition turns largely on the distinction between a trial and the presentation of evidence. With regard to the petitioner’s conviction of one of the crimes with which he had been charged in the October, 2003 incident, the petitioner pleaded nolo contendere; no evidence was presented regarding those crimes. Consequently, there was no evidentiary record available for the court to compare with what the petitioner claims is newly discovered evidence regarding the criminal conduct of the detectives who testified at the September, 2004 trial. See Shabazz v. State, 259 Conn. 811, 822, 792 A.2d 797 (2002). The petitioner’s claim therefore fails.

Count two of the petitioner’s amended petition alleges, in relevant part, that trial on the October, 2003 charges commenced on April 25, 2005. After the petitioner’s motion to suppress was denied, he “entered a plea of [njolo [c]ontendere so that he could take an appeal on the suppression issue.” He also alleged that during that trial, Ortiz was under investigation for fabricating evidence in an unrelated case involving drug charges. Ortiz was arrested and pleaded guilty to fabricating evidence in May, 2008.

In January, 2006, the Hartford police department arrested Henderson for criminal activity dating to 2000, in which he took money intended to compensate confidential informants. Henderson pleaded guilty to criminal charges in February, 2008. The petitioner also alleged that at the time the detectives testified in September, 2004, he was aware that the testimony given by Ortiz and Henderson was false, but that he was unable to impeach their testimony because he did not know of their criminal wrongdoing. The petitioner claimed that, if the jury had not found him guilty of the July, 2003 charges, he would have been in a superior position to bargain and decide whether to go to trial on the October, 2003 charges. The petitioner alleged that the jury’s verdict was unjust, but as a result of the guilty verdict, he entered a plea on the October, 2003 charges. He further alleged that he discovered the detectives’ criminal activities subsequent to the jury’s verdict and that he could not have discovered the criminal activities sooner.

The petitioner alleged that there was evidence that Henderson was falsifying information for a substantial period of time both prior to and subsequent to the petitioner’s convictions. He alleged that he would not have pleaded nolo contendere to one of the October, 2003 charges but for his conviction on the July, 2003 charges that were the result of tainted testimony given by Ortiz and Henderson. But see footnote 9 of this opinion. On the basis of newly discovered evidence regarding the detectives’ criminal conduct, the petitioner sought a new trial.

The respondent filed a motion to strike count two of the amended petition, claiming that the allegations it contained were legally insufficient and failed to state a claim on which relief could be granted. The respondent also claimed that the prayer for relief as to count two is legally insufficient, and finally, that the petition improperly joins two causes of action that cannot properly be united. The petitioner objected to the motion to strike.

The court granted the respondent’s motion to strike count two of the petition in a memorandum of decision issued March 17,2009. The court found that the petition failed to allege any newly discovered evidence pertaining to the petitioner’s plea conviction, as required by § 52-270. The allegations of count two refer to the police department investigations, arrests and convictions of Ortiz and Henderson, which pertain to the petitioner’s jury conviction on the July, 2003 charges. The petition does not allege that either Ortiz or Henderson had a role in the investigation that led to the petitioner’s arrest in October, 2003, or testified in relation to the charge brought in connection with that incident. Moreover, count two does not allege that Ortiz or Henderson would have testified at trial had there been a trial on those charges. The court concluded that the newly discovered evidence concerning the detectives’ criminal conduct could not have been used to impeach their testimony on the October, 2003 charges. The petition does not allege that either Ortiz or Henderson was in any way involved in the October, 2003 charges or the petitioner’s plea of nolo contendere.

The court found that the petitioner sought to create a nexus between the jury trial conviction and the plea conviction on the basis of the concurrent sentences. The court concluded, however, that the circumstance of concurrent sentences did not render count two legally sufficient. Count two addresses a separate and distinct matter from count one and each case was resolved in a different manner. The court noted that to decide the issues raised in the petition, it had to consider the new evidence concerning Ortiz and Henderson in the context of the evidence presented at a trial on the October, 2003 charges and determine whether the new evidence probably would have yielded a different result. See Shabazz v. State, supra, 259 Conn. 827. In the prosecution of those charges, however, there was no trial. Moreover, no evidence was presented. The petitioner entered a nolo contendere plea. The court also concluded that the amended petition lacked any specific factual allegations that Ortiz or Henderson were involved, or would have been involved, in the October, 2003 charges. The court ultimately concluded that because the petitioner failed to plead any allegations concerning newly discovered evidence directly related to count two, he failed to state a claim on which relief can be granted.

The court also concluded that the petitioner’s prayer for relief is legally insufficient. In its motion to strike, the respondent asserted that the petitioner did not have a trial at which evidence was presented on the charges related to the October, 2003 charges and the petitioner is not entitled to a new trial under § 52-270. Practice Book § 10-39 “allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.” Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). At oral argument on the motion to strike, the petitioner conceded that to obtain a trial on the charges related to count two, the court first would have to vacate his plea on the basis of its not having been knowingly made. The petitioner also conceded that count two of the petition does not fall under § 52-270 because there was no trial on the October, 2003 charges.

The court noted that when ruling on a petition for a new trial, the court “must always consider the newly discovered evidence in the context of the evidence presented in the original trial.” Shabazz v. State, supra, 259 Conn. 827. The petition does not allege that there was a trial on the October, 2003 charges. The only proceeding in which evidence was presented concerned the petitioner’s motion to suppress and the petition does not allege that Ortiz or Henderson testified at the suppression hearing. In view of the fact that there was no trial, and, thus, no evidence was presented, the court concluded that it was unable to make the evidentiary comparison required by Shabazz. For this reason, the court concluded the petitioner’s prayer for a new trial is legally insufficient.

“The standard of review in an appeal from the granting of a motion to strike is well established. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review ... is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. ... [A] motion to strike is essentially a procedural motion that focuses solely on the pleadings. ... It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion.” (Citation omitted; internal quotation marks omitted.) Dlugokecki v. Vieira, 98 Conn. App. 252, 256, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006). “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. ... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Citation omitted; internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn. App. 512, 516, 2 A.3d 942 (2010).

Section 52-270 (a) provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed . . . .” (Emphasis added.) The statute applies to criminal as well as civil actions. See Hamlin v. State, 48 Conn. 92, 93-94 (1880) (newly discovered evidence).

On appeal here, the petitioner has argued that “the court focused on allegations about Ortiz and Henderson’s direct involvement in a hypothetical trial of the plea case which it deemed should have been made but were lacking.” He contends that the court accepted the respondent’s position that Ortiz and Henderson had nothing to do with his conviction pursuant to his nolo contendere plea to one of the October, 2003 charges. The petitioner also argues that the court erroneously concluded that there had to be a trial in order for a new trial to be granted. In support of his position, the petitioner notes that § 52-270 does not provide that a petition for a new trial may be granted only where there has been a prior trial. He relies on the language of the statute that permits a court to grant a new trial for mispleading, want of actual notice of the action, want of a reasonable opportunity to appear and defend when a just defense existed. The respondent rebuts the petitioner’s argument by pointing out that the petition for a new trial is grounded only in a claim for newly discovered evidence. We agree with the respondent and will address only the ground of newly discovered evidence to resolve the petitioner’s claim.

In this instance, the court properly found that there was no prior trial and thus there was no evidence to compare with the newly discovered evidence and thus, no way to gauge the probable effect it would have on the outcome of a new trial. Nonetheless, the petitioner contends that, if he were granted a new trial, the outcome would be different because he would not have pleaded nolo contendere had he known of the detectives’ criminal conduct, which he would have used to impeach their credibility at trial. But see footnote 9 of this opinion. Although the petitioner acknowledges that a plea may not be withdrawn following sentencing; see Practice Book § 39-26; he relies on a habeas corpus case alleging ineffective assistance of trial counsel for the proposition that a plea may be set aside after sentencing pursuant to Practice Book § 39-27 (4) (ineffective assistance of counsel). See Johnson v. Commissioner of Correction, 285 Conn. 556, 571-72, 941 A.2d 248 (2008). Although the petitioner is correct that a plea may be set aside when a criminal defendant has been denied the effective assistance of counsel, the test applied in such a petition for a writ of habeas corpus is that established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (counsel's performance fell below acceptable standards and petitioner prejudiced by deficient performance). To be granted a new trial on the basis of newly discovered evidence, the petitioner must meet, not the Strickland test, but the Asherman test. See Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).

We conclude that because the petitioner pleaded nolo contendere to one of the charges arising from his arrest in October, 2003, there was no evidentiary record with which the court could have compared the petitioner’s alleged newly discovered evidence, as there was no trial. The court, therefore, properly granted the respondent’s motion to strike count two of the petition.

B

The petitioner also claims that the court improperly denied his motion to reconsider, depriving him of a meaningful opportunity to replead. We do not agree.

The following facts are relevant to the petitioner’s claim. The respondent filed a motion to strike count two of the amended petition on December 12, 2008, and the petitioner filed an objection thereto on February 23, 2009. The court heard oral argument on the motion to strike on February 25, 2009, and issued a memorandum of decision on March 17, 2009. On March 18, 2009, the petitioner filed a supplemental memorandum of law in support of his objection to the motion to strike, which did not reach the court prior to its issuing its memorandum of decision. The petitioner then filed a motion for reconsideration, contending that the court mistakenly concluded that count two contained no allegation that either Ortiz or Henderson “had any role in the investigation that led to the petitioner’s arrest and prosecution in that case.” The court granted the motion for reargument. At the time of reargument, the petitioner placed into evidence a copy of the respondent’s motion to introduce uncharged misconduct evidence at a trial on the October, 2003 charges, which indicated that Henderson may testify about the petitioner’s prior uncharged misconduct. The petitioner’s counsel offered an oral motion that count two of the amended petition be amended to allege that “Officer Henderson was involved” in both cases. Following reargument, the court affirmed its decision to strike count two of the amended petition, stating that, although Henderson was a proposed witness, that fact did not change the fact that there was no trial and that Henderson was not a proposed witness with regard to the respondent’s casein-chief on the October, 2003 charges.

II

As to the court’s denying his petition for a new trial on the July, 2003 charges, the petitioner claims that the court (1) applied the wrong standard when deciding the fourth prong of the Asherman test and (2) if this court disagrees with his first claim, the court abused its discretion under the fourth prong of Asherman. We conclude that the court did not apply the wrong standard and did not abuse its discretion when applying the fourth prong of Asherman. The petitioner’s claims therefore fail.

Count one of the petitioner’s amended petition for a new trial concerns the conviction after a jury trial on the July, 2003 charges. The facts reasonably found by a jury were set out in the petitioner’s direct appeal to this court. “On July 23,2003, at approximately 7:30 p.m., after receiving numerous calls concerning illegal drug activity outside 57 Belden Street in Harford, members of the Hartford police department’s vice and narcotics unit engaged in a surveillance of that location. The building at 57 Belden Street is within 1500 feet of Thomas J. Quirk Middle School, a public secondary school at which the [petitioner] was not a student. Among those conducting surveillance were Officer Anthony Martinez and Detective Deborah Scates, who watched the front of the 57 Belden Street building from a parked, unmarked car approximately 100 yards away. Martinez and Scates observed three men, later identified as Craig Counsel, Julian Bemie and the [petitioner] standing outside that location. Counsel, Bemie and the [petitioner] were all approached, approximately ten times during the course of the surveillance, by what appeared to be drug-dependent individuals. Each individual who approached the three men would engage in a brief conversation with them outside the building and then would be escorted into the building by one of the three men, while the other two men remained outside acting as lookouts. Counsel, Bemie and the [petitioner] would take turns taking the individuals into the building or acting as lookouts. The [petitioner] entered the building twice with suspected drug-dependent individuals.

“On the basis of their training and experience, Martinez and Scates believed that the three men were using the hallway of 57 Belden Street to conduct narcotic sales and, therefore, sent a radio transmission to the other unit members to move in. Upon approaching the [petitioner], Martinez saw him throw a plastic bag containing a white rock like substance underneath a motor vehicle. A chemist with the state toxicology laboratory later determined the substance thrown to be 25.1 grams of cocaine.

“At the time of arrest, the [petitioner] had $25 on his person, Counsel had $170 on his person and Bemie had $352 on his person. Additionally, Bemie dropped bags of narcotics when he stood up. Martinez and Scates testified that some drug dealers have one person hold the drugs and another hold the cash to minimize profit loss if they are stopped by police.” (Internal quotation marks omitted.) State v. Thomas, supra, 96 Conn. App. 579-81.

Prior to trial, the state filed a motion to introduce evidence of the petitioner’s prior uncharged misconduct. After a hearing on the motion, Judge Keller granted the state’s motion. Id., 581. Henderson and Ortiz testified as to the uncharged misconduct during the September, 2004 trial.

Henderson, who was with the major crimes division of the Hartford police department, testified about a February, 1999 incident. “[0]n February 19, 1999, at approximately 6:30 p.m., while he was checking the hallways of 57 Belden Street for illegal drug activity, he observed the [petitioner] standing in the hallway staring at the palm of his hand. In his hand, the [petitioner] was holding a plastic bag containing a white rock like substance, which Henderson immediately identified as crack cocaine and which later tested positive for cocaine. Henderson asked the [petitioner] to give him the plastic bag, and the [petitioner] complied. The [petitioner] also had $45 on his person. The [petitioner] and Henderson engaged in a conversation and the [petitioner] responded that ‘he was selling to stay alive.’ The [petitioner] told Henderson that the crack cocaine was worth approximately $200, and Henderson testified that the amount of crack cocaine in the plastic bag was more than an amount typically carried for personal use. . . .

“Ortiz, with the Hartford police department’s vice and narcotics division, testified concerning an incident that occurred on December 17, 2003. In response to numerous complaints from the property owner and residents, Ortiz and fellow officers executed a search and seizure warrant for 59 Belden Street, identifying Counsel as one of the targets and the [petitioner] as one of the associates. After announcing their presence and receiving no answer, the police forced entry into two apartments simultaneously. The [petitioner] and Counsel, who were in one of the subject apartments, left that apartment via the fire escape and attempted to enter the other apartment, but were detained by the police. The [petitioner] had a couple of ‘8-balls,’ which were one-eighth ounce chunks of crack cocaine, and $197 on his person. Ortiz testified that an 8-ball is not for personal use and that street level drug dealers usually will carry at least one 8-ball and break off chunks to sell individually.” Id., 581-82.

As previously stated, Henderson and Ortiz later were arrested, entered pleas and were sentenced to prison. In count one of his amended petition, the petitioner alleged that the “testimony of . . . Ortiz and Henderson was critical to the State’s case against [the] petitioner on drug charges and related to drug evidence. Both of the [witness/officers’] criminal involvement involved drug evidence fabrication and manipulating confidential informant funds as well as manipulating confidential informants in drug related cases.”

Following a hearing, Judge Mulcahy applied the Asherman test to the evidence presented. The test for determining whether a new trial should be granted for newly discovered evidence was set forth in Asherman v. State, supra, 202 Conn. 434. “The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Id. “[A] court’s decision on the petition should be guided by the more general principle that a new trial will be warranted on the basis of newly discovered evidence only where an injustice was done and whether it is probable that on a new trial a different result would be reached. . . . [I]t is solely within the discretion of the trial court to determine, upon examination of both the newly discovered evidence and that previously produced at trial, whether the petitioner has established substantial grounds for a new trial.” (Citations omitted; internal quotation marks omitted.) Shabazz v. State, supra, 259 Conn. 821-22. “The [petitioner] must persuade the court that the new evidence he submits will probably, not merely possibly, result in a different verdict at a new trial .... It is not sufficient for him to bring in new evidence from which a jury could find him not guilty—-it must be evidence which persuades the judge that a jury would find him not guilty.” (Emphasis in original; internal quotation marks omitted.) Id., 823.

“New trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result. . . . The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. In deciding this question, the court has the exercise of sound legal discretion, and its action cannot be disturbed unless this discretion has been abused.” (Citations omitted.) Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959). “One reason why new trials will not be granted for newly-discovered evidence affecting character, is that the jury may believe the witness notwithstanding the impeachment; while an independent fact tending to discredit a witness might have much more weight with the jury.” Husted v. Mead, 58 Conn. 55, 63, 19 A. 233 (1889). Judge Mulcahy concluded that the first three prongs of the Asherman test had been satisfied, but the fourth had not.

A

The petitioner claims that the court applied the wrong standard to the fourth prong of the Asherman test, i.e., “it is likely to produce a different result in a new trial.” Asherman v. State, supra, 202 Conn. 434. We disagree.

Ordinarily, appellate courts “review a trial court’s decision with respect to a petition for a new trial for an abuse of discretion.” Shabazz v. State, supra, 259 Conn. 820. When, however, the claim questions whether the court applied the appropriate standard, a question of law is raised to which the plenary standard applies. Adams v. State, 259 Conn. 831, 839, 792 A.2d 809 (2002).

The petitioner bases his claim on the following words used by the court. “It is my view that the aforesaid evidence, in its entirety, if accepted by a new jury, along with the reasonable inferences that could be drawn therefrom, would permit such jury, under the required standard of proof (beyond a reasonable doubt), to find intent to sell, knowing possession, and noncoincidentai presence, without any additional proof of ‘other crimes.’ ” The petitioner claims those words represent the court’s ultimate conclusion and demonstrate that the court applied an analysis akin to a claim of sufficiency of the evidence. We disagree with the petitioner’s claim as the language at issue is taken out of context and does not represent the court’s ultimate conclusion. When ruling on appellate claims, we read a trial court’s memorandum of decision in its entirety. See, e.g., Moasser v. Becker, 121 Conn. App. 593, 595, 996 A.2d 1200 (2010); In re G.S., 117 Conn. App. 710, 719, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009).

On the basis of our plenary review of the court’s memorandum of decision, we conclude that, not only was the court fully aware of the standard to be applied pursuant to the fourth prong of the Asherman test, but also, that it properly applied the standard in this case. The court set out the standard as follows: “Shabazz v. State, supra, [259 Conn. 827-28] and Adams v. State, supra, [259 Conn. 838] . . . indicate that likely to produce a different result rises to the higher level of probably would [not could] yield a different result. ... A petitioner must persuade the court that the new trial evidence . . . will probably, not merely possibly, result in a different verdict at a new trial .... It is not sufficient... to bring in new evidence from which a jury could find him not guilty ... it must be evidence which persuades the judge that a jury would find him not guilty.” (Citations omitted; emphasis in original; internal quotation marks omitted.) “It is axiomatic that the corut, in reaching its determination on a petition for a new trial, must always consider the newly discovered evidence in the context of the evidence presented at the original trial. Adams v. State, supra, [838]; Shabazz v. State, supra, [827] . . . .” (Citation omitted.)

After reviewing the evidence presented at the September, 2004 trial on the July, 2003 charges and considering the position of both parties, the court found that the newly discovered evidence concerning Ortiz and Henderson met the first three prongs of the Asherman test. The court, however, agreed with the state that on the basis of the testimony and exhibits presented at the September, 2004 trial, notwithstanding the absence of testimony from Ortiz and Henderson, the jury would find the petitioner guilty. The court then stated, including the language to which the petitioner takes exception: “It is my view that the aforesaid evidence, in its entirety, if accepted by a new jury, along with the reasonable inferences that could be drawn therefrom, would permit such jury, under the required standard of proof (beyond a reasonable doubt), to find intent to sell, knowing possession, and noncoincidental presence, without any additional proof of ‘other crimes.’ Additionally, while acknowledging that the [s]tate’s witnesses were thoroughly cross-examined, and accepting the defense testimony for present purposes, I am unable to conclude that the evidence presented by the [s]tate at the trial was controverted to such a degree (if, at all) that on a new trial, without ‘other crimes’ evidence, it is probable the result would be different.

“Additionally, considering the newly discovered evidence in the context of an unlikely scenario in which Ortiz and Henderson would testify at a new trial, it remains my view that although the result possibly could be different, the new impeachment evidence does not warrant a finding, established by a fair preponderance, that the result probably would be different. On a retrial, Ortiz and Henderson, in the unlikely event they were called, would testify, presumably in the same manner, as to the petitioner’s other crimes; the newly discovered evidence would be used by the defense to impeach the credibility of their testimony. If, despite the impeachment, the jury believed all or part of the ‘other crimes’ testimony (seemingly an unlikely eventuality), the other crimes evidence could be weighed by the jury, affording to it whatever weight, if any, the jury saw fit, with respect to intent, knowledge, and noncoincidental presence.” (Emphasis in original.)

The totality of the court’s analysis and reasoning demonstrates to us that it did not apply the wrong standard to the fourth prong of the Asherman test. The petitioner’s claim therefore fails.

B

The petitioner’s second claim is that the court abused its discretion by denying his petition for a new trial on the July, 2003 charges. We disagree.

We have reviewed thoroughly the memorandum of decision in which the court concluded that the petition should not be granted. Our examination of the record on appeal, and the briefs and arguments of the parties, persuades us that the court did not abuse its discretion in denying count one of the petition for a new trial. The court’s memorandum of decision fully addresses the arguments raised in the present appeal, and we therefore adopt the well reasoned decision as a statement of the facts and the applicable law on those issues. See Thomas v. State, supra, 52 Conn. Sup. 69. Repeating the discussion in the memorandum of decision would serve no useful purpose. See Morrissey v. Yale University, 268 Conn. 426, 428-29, 844 A.2d 853 (2004); Stebbins v. Doncasters, Inc., 263 Conn. 231, 234-35, 819 A.2d 287 (2003).

Although we share the petitioner’s concern regarding the integrity of the judicial system given the testimony of detectives whose own reprehensible conduct resulted in subsequent criminal convictions, we cannot conclude that the trial manifests an injustice that would cause the public to lose faith in our system of justice. At the time the petitioner was sentenced by Judge Keller, he addressed the court, stating: “I admit that I sold drugs, I did. And I admit that day that they raided— when they came to Belden Street, the drugs were mine .... I let a friend of mine go to jail for some drugs that he didn’t have nothing to do with . . . Bemie, that day we got arrested in July, that was all my drugs . ...” In light of the full record in this case, for all of the reasons stated, we conclude that no injustice has occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

       See General Statutes § 52-270 (a) (“Superior Court may grant a new trial of any action . . . for . . . the discovery of new evidence”).

       On appeal, the petitioner claimed “that [Judge Keller] improperly admitted (1) evidence of uncharged misconduct and (2) certain expert testimony.” State v. Thomas, supra, 96 Conn. App. 579.

       The court, Keller, J., gave an appropriate limiting instruction after each of the detectives had testified and included a limiting instruction in its charge to the jury. State v. Thomas, supra, 96 Conn. App. 582-83.

       Our review of the state’s motion to introduce uncharged misconduct evidence reveals that a number of police officers were identified with regard to several instances of uncharged misconduct. Henderson’s name is mentioned, but not Ortiz’.

       The petitioner appealed from the denial of his motion to suppress. This court affirmed the denial of the motion to suppress. See State v. Thomas, 98 Conn. App. 542, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007). On appeal, the petitioner claimed that the “police violated his constitutional protection against unreasonable search and seizure and that the police lacked probable cause to arrest him without a warrant.” Id., 544.

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

       The question the court certified is “[w]hether in a criminal prosecution where ‘other crimes’ evidence is used to prove intent and where the entire evidence of ‘other crimes’ is testified to by witnesses who were later convicted of crimes which would have eliminated their credibility or eliminated their use as witnesses requires a finding that a result would probably be different under part [four] of the Ashennan test for the granting of [a] petition for [a] new trial where the other three parts have been found met by the trial court.” See Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).

       The terms “trial” and “evidence” have distinct meanings. In a criminal case, a trial begins “when a jury is empanelled and sworn”; Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975); and ends with the rendering of a final judgment, which is sentencing. See State v. Curcio, 191 Conn, 27, 34, 463 A.2d 566 (1983). Evidence is the maimer “in which facts in dispute are found . . . .” Conn. Code Evid. § 1-1 (b).

       This allegation contradicts the petitioner's prior allegation that he pleaded nolo contendere in order to take an appeal from the denial of his motion to suppress.

       Although the court struck count two, it concluded that had count two been legally sufficient and relief granted as to count two, the two counts of the petition could have been tried together in the interest of judicial economy, i.e., there was no misjoinder. See Craft Refrigerating Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 560, 29 A. 76 (1893).

       At the hearing on the motion to strike, the parties stipulated that the petitioner entered his plea of nolo contendere after the jury was selected but before it was sworn and that there was no presentation of evidence.

       “To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 443, 988 A.2d 351 (2010).

       In his reply brief, the petitioner contends that in ruling on the motion to strike, the court did not focus on the proper question. The petitioner contends that the question the court should have considered is, “if he had not been convicted [by the jury] based at least in part on tainted evidence from corrupt police officers, [the] petitioner would have declined to enter a plea and accept the sentence he did.” Again, that question does not change the fact that the petitioner pleaded nolo contendere to one of the October, 2003 charges and that there was no trial. Consequently, there was no evidentiary record to which the court could apply the test in Asherman v. State, supra, 202 Conn. 434. Moreover, the petitioner alleged that he pleaded nolo contendere to appeal from the denial of his motion to suppress evidence. See footnotes 5 and 9 of this opinion.

       The court never specifically ruled on the petitioner’s oral motion to amend count two of his amended petition. On the basis of the fact that there was no trial on the October, 2003 charges, by affirming its ruling on the motion to strike count two, the court necessarily denied the petitioner’s motion to amend count two. The court did not abuse its discretion by denying the motion to amend. Although our rules of practice permit repleading after the granting of a motion to strike; see Practice Book § 10-44; amending count two to allege that “Henderson may have testified” would not change the fact that there was no trial on the October, 2003 charges.

       See Thomas v. State, supra, 52 Conn. Sup. 105.

       The court's ultimate conclusion states: “Applying the strict Asherman standard in conformity with existing case law, and considering the newly discovered evidence in the context of the evidence presented at the original trial, it is my best judgment that the petitioner has not established, by a preponderance of the evidence, that the newly discovered evidence (impeachment of ‘other crimes’ witnesses) is likely to produce (i.e., probably would produce) a different result in a new trial. Accordingly, the petition is denied.”

       The petitioner and the respondent agreed that at a new trial neither Ortiz nor Henderson would testily about prior uncharged misconduct given their impeachability.

       See Thomas v. State, supra, 52 Conn. Sup. 116.

       The petitioner asks this court to exercise its supervisory powers to reverse his convictions. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [T]he integrity of the juridical system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 290 n.11, 750 A.2d 1059 (2000).


author: ROBINSON, J. BEACH, J.,

text:
    TOWN OF MARLBOROUGH v. AFSCME, COUNCIL 4, LOCAL 818-052
    (AC 31468)
    Gruendel, Beach and Robinson, Js.

      Argued January 7
    officially released August 9, 2011

      Prolog K. Das, with whom was Andrew L. Houlding, for the appellant (plaintiff).

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, town of Marlborough, appeals from the judgment of the trial court denying its application to vacate an arbitration award (application) in which an arbitration panel found in favor of the defendant, AFSCME, Council 4, Local 818-052, and concluded that the plaintiff had violated a collective bargaining agreement when it terminated the grievant, Emily Chaponis, from the position of assessor without just cause. On appeal, the plaintiff claims that the court improperly denied its application because the award (1) violates the clearly defined public policy that “elected executive leaders have the responsibility and the right to appoint public officers” and (2) constitutes a manifest disregard of the law. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The charter for the plaintiff (charter) provides that the board of selectmen (board) shall appoint various officers, including an assessor, “to serve at the direction of the [selectmen . . . and whose powers and duties shall be as prescribed by [ordinance or in the [General Statutes].” Pursuant to the charter, the board appointed the grievant to the office of assessor, effective January 7, 2002. In November, 2003, the term of the board that had appointed the grievant ended. The incoming board elected to accept the appointments made by the previous board, and the grievant continued to occupy the office of assessor.

During the grievant’s tenure as assessor, the plaintiff and the defendant entered into a collective bargaining agreement (agreement) that became effective on July 1,2007. The agreement provided that the defendant was the exclusive representative for a bargaining unit that included the office of assessor. The agreement further provided that “[a]ny disciplinary action shall be applied for just cause” and that “[a]ll disciplinary action may be appealed through the . . . grievance procedure” set forth in the agreement.

In November, 2007, a newly elected board met to make the appointments provided for by the charter. The first selectman asked for a motion to reappoint the grievant to the office of assessor but no motion was made, and the grievant was not reappointed. On November 14, 2007, because of the board’s failure to reappoint the grievant, the plaintiff discharged her.

The grievant filed a grievance through the defendant, alleging that the plaintiff had violated the agreement because her discharge was not based on just cause. After the grievance advanced without resolution through the grievance procedure set forth in the agreement, the dispute was referred to the state board of mediation and arbitration. The issue submitted to the arbitration panel was as follows: “Did the [plaintiff] violate the collective bargaining agreement when it discharged the grievant on November 14,2007 without just cause? If so, what shall the remedy be?”

At the arbitration hearing, the plaintiff first argued that discharging an appointed officer because the board did not reappoint her after the expiration of her term in office did not constitute a disciplinary action. Therefore, because such a discharge was not a disciplinary action, the plaintiff claimed that it did not have to comply with the just cause provision of the agreement.

The plaintiff also argued that interpreting the agreement in a manner that would require it to demonstrate just cause before it could discharge an appointed officer after the expiration of her term in office would result in a conflict between the agreement and General Statutes § 9-187 (a). Without citing to any supporting legal authority, the plaintiff further argued that when such a conflict results, “the statute trumps the conflicting provisions of the . . . agreement.” On the basis of these arguments, the plaintiff claimed that it could discharge the grievant “as a result of her non-reappointment, notwithstanding any ‘just cause’ provisions . . . .”

The defendant countered by arguing that, prior to the agreement, a term of office may have existed and reappointment by the board may have been necessary in order for the grievant to serve in the office of assessor. The defendant further argued that subsequent to the agreement, however, a term of office for the office of assessor “no longer exists because it directly contradicts specific terms of the [agreement].” Thus, the defendant claimed that the mere failure of the board to reappoint the grievant to the office of assessor did not constitute just cause for summary discharge.

A hearing was held before the arbitration panel on March 6, 2008. On August 6, 2008, the arbitration panel issued a fourteen page decision in which it found in favor of the defendant. In its discussion, the arbitration panel rejected the plaintiffs argument that it had a statutory right to discharge the grievant because “the grievant is not an ‘elected official’ and the statute is silent as to the definition of a [t]own [o]fficial.” Having rejected the plaintiffs statutory argument, the arbitration panel concluded that the agreement applied to the office of assessor and that the plaintiff was required to “abide by all the conditions it agreed to accept” by entering into the agreement. The arbitration panel found that these conditions included a requirement that “ ‘just cause’ must be enumerated specifically when there is the involuntary loss of employment.” Because “there was no just cause reason cited as mandated by the . . . agreement,” the arbitration panel concluded that the plaintiff had violated the agreement when it discharged the grievant. The arbitration panel directed the plaintiff to reinstate the grievant to the position of assessor and to make her whole for any lost wages and benefits during the period of discharge, less any outside earning she may have received.

On September 4, 2008, the plaintiff filed its application in the trial court. See General Statutes § 52-418. In its application, the plaintiff claimed that the arbitration panel had exceeded its authority in issuing the award because “[t]he award violate[d] explicit, well-defined and dominant public policy . . . .” In its memorandum of law in support of the application, the plaintiff specifically claimed that “[t]he arbitration award . . . violate [d] the strong public policy [of] protecting parties’ freedom of contract.” The plaintiff also claimed in its application that the arbitration panel had exceeded its authority because “[t]he award manifest[ed] an egregious or patently irrational application of the law.”

The court conducted a hearing on the application on August 11, 2009. On August 25, 2009, the court issued a memorandum of decision denying the application. The court concluded that “[n]o well defined policy has been cited which would be violated by retaining an assessor in her position, whose job performance brooked no criticism. No irrational application of the law by the [p]anel has been proven.” This appeal followed. Additional facts will be set forth as necessary.

Before addressing the plaintiffs claims, we first set forth the legal principles that guide our review of an arbitration award based on an unrestricted submission. “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“The long-standing principles governing consensual arbitration are, however, subject to certain exceptions. Although we have traditionally afforded considerable deference to the decisions of arbitrators, we have also conducted a more searching review of arbitral awards in certain circumstances. In Garrity v. McCaskey, [223 Conn. 1, 6, 612 A.2d 742 (1992)], [our Supreme Court] listed three recognized grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418 (a). . . . The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbitral conclusions, despite the traditional high level of deference afforded to arbitrators’ decisions when made in accordance with their authority pursuant to an unrestricted submission.” (Citation omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 834-35, 6 A.3d 1142 (2010). With these legal principles in mind, we address the plaintiffs claims, as well as the applicable standard of review that governs each claim.

I

The plaintiff first claims that the court improperly denied its application because the award violates the clearly defined public policy that “elected executive leaders have the responsibility and the right to appoint public officers.” In support of its claim, the plaintiff relies on § 9-187 (a). Because the plaintiff did not present this theory in support of its application to the trial court, we decline to consider it on appeal.

“The theory upon which a case is tried in the trial court cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on review. Moreover, an appellate court should not consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at trial.” Ritcher v. Childers, 2 Conn. App. 315, 318, 478 A.2d 613 (1984). After reviewing the record, we conclude that the plaintiff did not present to the trial court the public policy theory it now raises on appeal. Nowhere in the application, its memorandum of law or the trial transcript does the plaintiff claim or suggest that the award should be vacated because it violated the claimed public policy that “elected executive leaders have the responsibility and the right to appoint public officers.” The plaintiff, instead, based its public policy claim for vacatur solely on the theory that the award violated the well defined public policy of freedom of contract. Although the plaintiff did mention § 9-187 in support of its manifest disregard of the law claim, it did not indicate that it was relying on this statute to any extent in support of its public policy claim. Therefore, because the plaintiff raises this theory for the first time on appeal, it is unreviewable. See Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 290 n.15, 968 A.2d 345 (2009); Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 425, 944 A.2d 925 (2008); Reichenbach v. Kraska Enterprises, LLC, 105 Conn. App. 461, 473, 938 A.2d 1238 (2008).

II

The plaintiff next claims that the court improperly denied its application because the award constitutes a manifest disregard of the law. Specifically, the plaintiff argues that the arbitration panel improperly disregarded the applicability of § 9-187 (a) in issuing the arbitration award. We are not persuaded.

We begin our analysis by setting forth the standard of review applicable to claims of manifest disregard of the law. “Our courts have held that claims of manifest disregard of the law fall within the statutory proscription of § 52-418 (a) (4). [A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the [arbitration panel] has exceeded [its] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. . . . [T]he manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of [a panel’s] extraordinary lack of fidelity to established legal principles.” (Internal quotation marks omitted.) Zelvin v. JEM Builders, Inc., 106 Conn. App. 401, 413, 942 A.2d 455 (2008).

“So delimited, the principle of vacating an award because of a manifest disregard of the law is an important safeguard of the integrity of alternate dispute resolution mechanisms. Judicial approval of arbitration decisions that so egregiously depart from established law that they border on the irrational would undermine society’s confidence in the legitimacy of the arbitration process. . . . Furthermore, although the discretion conferred on the arbitrator by the contracting parties is exceedingly broad, modem contract principles of good faith and fair dealing recognize that even contractual discretion must be exercised for purposes reasonably within the contemplation of the contracting parties.” (Citations omitted.) Garrity v. McCaskey, supra, 223 Conn. 10-11.

“Under this highly deferential standard, the defendant has the burden of proving three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.” (Emphasis added; internal quotation marks omitted.) Zelvin v. JEM Builders, Inc., supra, 106 Conn. App. 413; see Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 305, 680 A.2d 1274 (1996).

After applying these principles to the present case, we conclude that the arbitration panel’s decision does not constitute a manifest disregard of the law. Section 9-187 (a) provides in relevant part that “[w]hen not otherwise prescribed by law, the terms of those town officers appointed by the board of selectmen shall expire on the termination date of the term of the board of selectmen appointing such officers.” (Emphasis added.) Even if we were to assume, without deciding, that the plaintiff is correct that the statute is applicable, we cannot conclude that it is well defined and explicit. First, by its terms, the relevant provision of § 9-187 (a) does not apply to assessors explicitly; instead, it applies to “town officers.” The statute, however, does not set forth a definition of town officers or otherwise indicate who constitutes such an officer for purposes of the statute. Second, the parameters of this statute never have been addressed by this court or our Supreme Court. Therefore, there never has been a judicial determination as to who qualifies as a “town officer,” or, conversely, whether an assessor is a “town officer” for purposes of this statute. See Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 311, 901 A.2d 1198 (2006) (“[t]he law allegedly ignored by the arbitration panel cannot be considered well defined, explicit, and clearly applicable ... [if] the parameters of the . . . [applicable statute] have never been addressed by this court or the Appellate Court” [internal quotation marks omitted]).

Furthermore, even if we were to conclude that the relevant provision of § 9-187 (a) is well-defined, explicit and clearly applicable, we cannot conclude that the panel appreciated the existence of a clearly governing legal principle but decided to ignore it. A review of the panel’s decision does not reveal that it “knew that [its] award was contrary to the law”; Lathuras v. Shoreline Dental Care, LLC, 65 Conn. App. 509, 515, 783 A.2d 83, cert. denied, 258 Conn. 936, 785 A.2d 231 (2001); or that it “understood and correctly stated the law but proceeded to ignore it.” (Internal quotation marks omitted.) Id., 514. Instead, our review of the decision indicates that the panel gave due consideration to the applicability of § 9-187 (a) but decided to reject its applicability because it could not reasonably conclude that it applied under the facts of the case. Therefore, at best for the plaintiff, the panel misapplied or misconstrued the statutory requirements, neither of which is sufficient to support a manifest disregard of the law claim. See State v. Connecticut State Employees Assn., SEIU Local 2001, 287 Conn. 258, 281-82, 947 A.2d 928 (2008) (“[w]e note that, even if the arbitrator’s decision constitutes a misapplication of the relevant law, we are not at liberty to set aside an [arbitrator’s] award because of an arguable difference regarding the meaning or applicability of laws . . . and such a misconstruction of the law does not demonstrate the arbitrator’s egregious or patently irrational rejection of clearly controlling legal principles” [citation omitted; emphasis in original; internal quotation marks omitted]). Accordingly, we conclude that the court properly denied the plaintiffs application.

The judgment is affirmed.

In this opinion GRUENDEL, J., concurred.

BEACH, J.,

dissenting. I respectfully dissent. In my opinion, the proposition that the terms of the collective bargaining agreement may trump well defined statutory provisions regarding the appointment of public officials is startling and unsettling. Accordingly, I believe that the arbitration panel acted with manifest disregard of the law.

The position of the plaintiff, the town of Marlborough, was adequately, though perhaps not optimally, presented to the arbitration panel. The panel specifically recognized in its award the town’s reliance on General Statutes § 9-187 (a) and the argument that the statute provided for terms of office correlative to those of the selectmen. Specifically, the panel acknowledged the town’s argument that where “a conflict, between a collective bargaining agreement and a statute exists, the statute trumps the conflicting provisions of the collective bargaining agreement. In this case, this means that the [t]own would have been permitted to terminate the [assessor as a result of her non-reappointment, notwithstanding any ‘just cause’ provisions of Article 24 [of the collective bargaining agreement].” The panel, nonetheless, rejected the town’s position, expressly because the grievant was not an elected official and “the statute is silent as to the definition of a [t]own [ojfficial.

The town adhered to its position in the trial court; it urged that the award should be vacated by virtue of General Statutes § 52-418 (a) (4). It argued that the arbitrators had exceeded their powers, in manifest disregard of the law, by not recognizing that § 9-187 (a) patently described the term of town officers and that assessors were included in the term “town officers” by virtue of General Statutes (Rev. to 2007) § 9-185 and § 5.2 of the town charter. The trial court, after recognizing the position of the town, stated that “[n]o authority has been cited, that in the situation of this case, a state statute or charter provision would override the specific language of a collective bargaining agreement. Moreover, no specific language in the state statute or charter appears to be so overriding.”

I believe that the statutory scheme is clear. Section 9-187 (a) provides in relevant part that “[w]hen not otherwise prescribed by law, the terms of those town officers appointed by the board of selectmen shall expire on the termination date of the term of the board of selectmen appointing the officers.” General Statutes (Rev. to 2007) § 9-185 at all relevant times referred to assessors as town officers who were to be elected unless “otherwise provided by special act or charter . . . .” The town charter included § 5.2, which stated that “the [selectmen shall appoint qualified persons to the following offices to serve at the direction of the [selectmen .... 5.2.1 Assessor.”

Case law to the effect that specific statutory provisions may indeed override terms of a collective bargaining agreement similarly is clear. For example, Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 196-98, 425 A.2d 1247 (1979), held that the state statutory scheme prescribing sick leave provisions could not be overridden legally by the terms of a collective bargaining agreement. State officials entering into a collective bargaining agreement did not have the authority to waive or otherwise to nullify the policy expressed by the legislature. Id., 196-98. The argument of the defendant, AFSCME, Council 4, Local 818-052, that the terms of a collective bargaining agreement override charter provisions is similarly misplaced: although there is authority that such an agreement may trump civil service rules-, see General Statutes § 7-474 (f); it may not prevail over a contrary statutory scheme, and, in any event, it prevails only “on matters appropriate to collective bargaining . . . .” General Statutes § 7-474 (f). Cases such as Broadnax v. New Haven, 284 Conn. 237, 244-50, 932 A.2d 1063 (2007), rationally limit the extent to which bargaining provisions lawfully may modify statutory schemes.

The means by which citizens select their public officers is a matter of policy as determined by law. Even if the town, intentionally or not, submitted the issue to arbitration, the arbitration panel acted in manifest disregard of the law in reaching its conclusion. Accordingly, I would remand the case to the trial court with direction to vacate the award.

I respectfully dissent.

       The charter does not explicitly set forth the duration of the appointment for the assessor position.

       Section 2.1 of the agreement provides in relevant part: “The [plaintiff] hereby recognizes the [defendant] as the sole and exclusive representative for collective bargaining with respect to wages, hours, and other conditions of employment for all employees in the bargaining unit, working twenty-five (25) hours or more, in the following job classifications: Assessor . . . .”

       The agreement sets forth a three step procedure for resolution of a grievance. In step one, the grievant or the union submits a grievance in ■writing to the grievant’s supervisor or the individual designated by the plaintiff, and then a meeting is held to discuss the grievance. Afterwards, the supervisor or the individual designated by the plaintiff responds in writing to the grievance.
      If the grievant or the defendant is not satisfied with the disposition of the grievance in step one, step two provides that the grievance may be appealed to the first selectman. The first selectman then meets with the grievant and a representative of the defendant regarding the grievance. Afterwards, the first selectman issues a response in writing to the grievance.
      If the defendant is not satisfied with the response provided by the first selectman, step three provides that it “may submit the grievance to arbitration . . . .”

         General Statutes § 9-187 (a) provides: “The terms of office of elective municipal officers, when not otherwise prescribed by law, shall be for two years from the date on which such terms begin as set forth in section 9-187a and until their successors are elected and have qualified. When not otherwise prescribed by law, the terms of those town officers appointed by the board of selectmen shall expire on the termination date of the term of the board of selectmen appointing such officers.”

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       In its application, the plaintiff also claimed as a ground for vacating the award that the panel lacked the authority to consider the matter or to issue an award because there was no agreement between the plaintiff and the defendant to arbitrate the issue presented to the panel. The trial court did not address this claim, and the plaintiff has not raised it before this court on appeal.

       The court determined that the submission to the arbitration panel was unrestricted, and neither party has challenged this determination on appeal.

       The plaintiff also requested plain error review of its public policy claim but did not provide any analysis or cite any relevant legal authority in support of its claim. Therefore, we decline to undertake plain error review of the plaintiffs alleged claim of error. See, e.g., State v. Bourguignon, 82 Conn. App. 798, 801, 847 A.2d 1031 (2004) (“[w]e will not engage in . . . plain error review on the basis of ... an inadequate brief’ [internal quotation marks omitted]).

       General Statutes § 9-187 (a) does not refer to town “officials” in any event but, rather, to town “officers.”

       General Statutes § 9-185 was amended in 2010 to delete reference to assessors. Public Acts 2010, No. 10-84, § 3.

       See footnote 2 of this dissenting opinion.

       In reaching this conclusion, I, of course, express no opinion on the policy question of whether an assessor should be a political appointee or should be protected by civil service provisions. The General Assembly has amended § 9-185, such that an assessor apparently is no longer by state law a town officer and subject to the terms of office set forth in § 9-187 (a). See footnote 2 of this dissenting opinion. For that reason, the argument that clear public policy prevents judicial enforcement of the award, assessed de novo, has lost its appeal. Nonetheless, I believe that the law clearly provided at the time of the award that an assessor was, by state law, clearly a town officer subject to the terms provided in § 9-187 (a).