author: ROBINSON, J.

text:
    CHARLES COCKERHAM ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF MONTVILLE ET AL.
    (AC 34466)
    Robinson, Alvord and Keller, Js.

      Argued April 18
    officially released October 8, 2013

      Richard S. Cody, with whom, on the brief, was Jon B. Chase, for the appellants (plaintiffs).

      Michael P. Carey, for the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiffs, Charles Cockerham and Willmeta Cockerham, appeal from the judgment of the Superior Court, dismissing their appeal from the decision of the defendant Zoning Board of Appeals (board) of the Town of Montville (town). The board’s decision upheld the town zoning enforcement officer’s approval of an application for a zoning permit filed by the defendant John Bialowans, Jr., to construct a single-family residence on his property at 4 Glen Road, which abuts property owned by the plaintiffs at 6 Glen Road. The plaintiffs claim that the court improperly (1) interpreted §§ 1.3 and 4.13.5 of the Montville Zoning Regulations, and (2) afforded too much deference to the decision of the zoning enforcement officer, effectively depriving the plaintiffs of their right to challenge that decision on appeal pursuant to General Statutes §§ 8-6 and 8-8. We disagree and affirm the judgment of the trial court.

The court’s memorandum of decision adequately sets forth the undisputed facts and procedural history underlying this appeal. “Michael Donahue and his wife purchased the property at 6 Glen Road in 1961 and constructed a house on the lot. The house was constructed 39 inches from the boundary line with 4 Glen Road. In 1966, the Donahues acquired 4 Glen Road. Zoning became effective in Montville on December 6, 1966.

“Michael Donahue acquired title to both lots from his wife. [He] died, and on November 13, 2003, his estate conveyed the property at 6 Glen Road to the plaintiffs. At the time, both properties at 6 Glen Road and 4 Glen Road were not in conformance with the existing zoning regulations. Both properties were in the R-20 zoning district. Six Glen Road had the required frontage, but lacked the required area. The house was also in violation of the side yard requirements. Four Glen Road did not have the required frontage or the minimum area required in the zone.

“The attorney who represented the plaintiffs in the purchase of the 6 Glen Road property was concerned about the zoning requirements and whether the division of the Donahue property into two small lots would be in compliance with the regulations. To protect the plaintiffs’ interest, the attorney discussed the matter with the [zoning enforcement officer]. On November 13, 2003, the attorney wrote a letter to the [zoning enforcement officer] indicating that officer’s agreement that 6 Glen Road could be purchased alone without 4 Glen Road and that this would not constitute a violation of the zoning or subdivision regulations. The [zoning enforcement officer] signified his agreement by endorsing the letter.

* * *

“In November, 2004, [Bialowans] purchased the unimproved property at 4 Glen Road from the Donahue estate. His purchase and sale agreement was contingent upon obtaining building approval from the town. On April 14, 2005, the [zoning enforcement officer] issued a zoning permit to [Bialowans] and Carol Murcho for the construction of a single-family residence on the property.

“With the intent to build the approved single-family residence, [Bialowans] caused certain surveying, landscaping and construction work to be performed on the property. The plaintiffs observed this action and, after investigation, learned that the [zoning enforcement officer] had issued the zoning permit on April 14, 2005.

“The plaintiffs appealed the action of the [zoning enforcement officer] in issuing the zoning permit to the board. The board denied the appeal and stated as its reason that the appeal had not been taken within the time allowed by ... § 8-6 [a] (1). The action of the board was appealed to [the Superior Court] (Docket Number CV-05-4004221). By memorandum of decision dated September 30, 2009, the court determined that the appeal had, in fact, been brought to the board within the time allowed by statute and remanded the matter back to the board for a hearing of the appeal as filed.

“In accordance with the remand, a public hearing on the plaintiffs’ appeal to the board was held on April 7, 2010. At the hearing, the town attorney . . . summarized the proceedings. [Attorneys representing the plaintiffs and Bialowans also addressed the board.] Exhibits, including the record of the previous proceedings, were introduced. At the request of [Bialowans’ attorney], Attorney Harry Heller spoke concerning the background of the regulations in question.

“The public hearing was continued to the meeting of May 5, 2010. After some discussion, it was voted to close the public hearing. The board members then discussed the issues. After such discussion, the board voted unanimously to deny the plaintiffs’ appeal, stating as its reasons: The [board] finds that the zoning enforcement officer did not err as alleged by the plaintiffs, but acted legally and consistently within the framework of the [town’s] [z]oning [regulations in granting a separate zoning permit for the property located at 4 Glen Road ... as shown on assessor’s map 106, lot 6A, a separate nonconforming lot.”

The plaintiffs appealed from the board’s decision to the Superior Court in accordance with § 8-8. The plaintiffs claimed, as they had before the board, that 4 Glen Road and 6 Glen Road had merged for zoning purposes either under the common law or by operation of the town’s zoning regulations. In their brief to the court, the plaintiffs claimed that the board had violated or had misinterpreted the relevant zoning regulations and that the board’s decision sustaining the action of the zoning enforcement officer was arbitrary, capricious, an abuse of discretion or a clearly unwarranted exercise of discretion. The court issued a memorandum of decision on September 9, 2011, dismissing the plaintiffs’ appeal.

In its memorandum of decision, the court determined that the town’s regulations provide that nonconforming lots as defined in § 4.13.5 of the Montville Zoning Regulations properly may be used for single-family detached residences, that § 4.13.5 defines a nonconforming lot as one that “was separately owned prior to the enactment of the [town’s] Zoning Regulations,” that the zoning enforcement officer had issued the zoning permit to Biaiowans in accordance with the zoning enforcement officer’s understanding that 4 Glen Road qualified as a nonconforming lot as defined in § 4.13.5, and that, in denying the plaintiffs’ appeal, the board agreed with that understanding. The court explained that the zoning enforcement officer and the board each had interpreted the term “separately owned” to mean lots that have separate deeds and legal descriptions, whereas the plaintiffs argued that “separately owned” referred to lots not owned by the same person or entity.

In resolving the appeal in favor of the board’s interpretation, the court relied in part on the analysis in Bank of America v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV-06-4006314-S (September 11, 2008) (46 Conn. L. Rptr. 430), in which the court considered conflicting interpretations of the term “owned separately” in construing a similar zoning regulation. Id., 432. The court in Bank of America, after considering the common and ordinary meaning of the regulatory language, determined that the arguments offered by both parties were plausible interpretations of “owned separately.” Id. Because consideration of the plain meaning of the text did not resolve the matter at hand, the court in Bank of America next considered “the purpose of the regulations as a whole so that the disputed language [could] be interpreted in a manner that [was] consistent with the intent of the drafters and the overall purpose of the regulations.” Id. Again, the parties offered differing viewpoints with regard to the purpose of the regulations. Id.

The court held that, in light of the overall purpose of the regulations, which the parties had agreed was to increase lot sizes and to control density in the Borough of Fenwick, the board’s interpretation was the more persuasive and that “the drafters of the regulations could reasonably [have] conclude [d] that in order to strike a reasonable balance between the desire to increase lot size and not deprive owners of undersized lots of the value of their property, those lots which shared a common owner would be merged, but the owner of an undersized lot who did not own the abutting property would be exempt from the merger.” Id. The court found that, although not dispositive, its conclusion was consistent with, and therefore reinforced by, the interpretation applied by both the zoning enforcement officer and the planning and zoning commission, each of which recognized a merger of an undersized lot with an adjacent parcel for zoning purposes if both parcels were owned by the same person or entity. Id., 433. It also found that the record contained documented history that the board previously had interpreted and applied the regulation consistent with that position. Id. The court, quoting Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 611, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002), further explained: “A local board ... is in the most advantageous position to interpret its own regulations and apply them to the situation before it. If a board’s time-tested interpretation of a regulation is reasonable, that interpretation should be accorded great weight by the courts.” (Internal quotation marks omitted.) Bank of America v. Zoning Board of Appeals, supra, 46 Conn. L. Rptr. 430.

The court in the present case agreed with the determination of the court in Bank of America that the term “owned separately” reasonably could have two meanings, but ultimately it reached the opposite decision in determining which of those meanings was intended by the drafters of the zoning regulations before it. The court, consistent with the approach taken in Bank of America, found persuasive and deferred to the interpretation of the regulations upheld by the board. It based that decision on its finding that evidence had been presented to the board that the drafters of the town’s zoning regulations had intended the interpretation adopted by the board and that the town’s zoning officials consistently had applied that interpretation since the time that the zoning regulations were first enacted. The court concluded: “[T]he reasons stated for the action of the board in upholding the decision of the [zoning enforcement officer] are supported by substantial evidence in the record and such reasons are pertinent to the considerations which the board was required to consider under the regulations. In reaching its conclusion, it has not been proven that the board acted arbitrarily, illegally, or in abuse of its authority.” The court denied the plaintiffs’ subsequent motion for reconsideration without comment. Following our granting of the plaintiffs’ petition for certification to appeal, this appeal followed.

We begin by setting forth the applicable standard governing our review of this matter. “ [Fallowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board. . . . [T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer. . . .

“In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision. . . . It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts. . . .
“It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing. . . . The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings. . . . Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board’s decision, not for the contentions of the applicant ... to determine whether the judgment was clearly erroneous or contrary to law.” (Citation omitted; internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn. App. 748, 757-60, 57 A.3d 810 (2012).
“Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . . These principles apply equally to regulations as well as to statutes. ... A court that is faced with two equally plausible interpretations of regulatory language, however, properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation.” (Citations omitted; emphasis added; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99, 784 A.2d 354 (2001). With those principles in mind, we turn to the claims raised in the present appeal.

I

The plaintiffs first claim that the court misinterpreted the relevant zoning regulations in concluding that the plaintiffs had failed to prove that the board acted arbitrarily, illegally, or in abuse of its authority in upholding the zoning permit. In particular, the plaintiffs argue that the court improperly relied on Bank of America v. Zoning Board of Appeals, supra, 46 Conn. L. Rptr. 430, which the plaintiffs claim is inapposite, and that the court failed to consider other decisions that had been rendered by courts in its own judicial district and that had construed nearly identical language in zoning regulations of other towns in a manner consistent with the interpretation advocated for by the plaintiffs. We do not agree with the plaintiffs’ arguments and conclude in light of our review of the record and the regulations at issue that the court’s decision was neither clearly erroneous nor contrary to law.

As previously set forth, “[b]ecause the interpretation of [zoning] regulations presents a question of law, our review is plenary.” Graff v. Zoning Board of Appeals, 277 Conn. 645, 652, 894 A.2d 285 (2006). Accordingly, we start with the text of the relevant portions of the town’s zoning regulations. Section 4.2 of the Montville Zoning Regulations provides in relevant part that “[n]o building shall be erected ... in any area of Montville without a Zoning Permit issued in conformance with these Regulations.” The town’s zoning enforcement officer is the official authorized by regulation to grant applications for zoning permits for the construction of permitted single-family dwellings “provided they meet the requirements of [the] Regulations.” Montville Zoning Regs., § 4.2.2. Section 4.13.6 provides in relevant part that, in addition to meeting criteria not relevant here, “ [1] ots for single family detached residences which meet the definition of nonconforming lot in Section 4.13.5 which have a total area or lot frontage less than the minimum required in the district may be used for single family detached residences . . . .” It is undisputed that 4 Glen Road fails to meet the area or frontage requirement for a buildable lot in the zoning district in which it is located. Accordingly, the zoning enforcement officer properly granted the zoning permit to construct a single-family detached residence on 4 Glen Road provided that the parcel met the definition of a nonconforming lot.

Section 4.13.5 of the Montville Zoning Regulations provides in relevant part: “For the purposes of these Regulations, a non-conforming lot shall be defined as a lot which was separately owned prior to the enactment of the Zoning Regulations or any amendment thereto . . . (Emphasis added.) Section 1.3, which contains definitions for terms used throughout the town’s zoning regulations, defines “lot, non-conforming” as “[a] parcel of land owned individually and separately and separated from any adjoining tract of land on the effective date of these regulations which does not meet the dimensional area, width, or design requirements for the zoning district in which it is located.” (Emphasis added.) The terms “separately owned” and “owned individually and separately and separated from any adjoining tract of land” are not defined in the regulations.

Although § 4.13.6 of the Montville Zoning Regulations expressly refers to the definition for nonconforming lot contained in § 4.13.5, it contains no restrictive language barring consideration of the definition in § 1.3. The two definitions ideally must be read, if possible, so as to give effect to each. Both definitions, however, are equally ambiguous with regard to the issue before us. We agree with the plaintiffs that “separately owned” as used in § 4.13.5, can be read as a summary restatement of the definition in § 1.3. Read together, both definitions require that a parcel have some degree of separateness from abutting property at the time the zoning regulations were adopted in order to be deemed a preexisting, nonconforming lot. What is unclear is whether the drafters of the regulations intended that degree of separateness to pertain to the identity of the owner of the properties or to whether the properties had separate legal descriptions and had been conveyed by separate deeds. Therefore, it is necessary and proper to look beyond the text of the regulations.

As discussed previously in this opinion, the board heard testimony from Heller regarding the history of the town’s efforts to adopt zoning regulations and to alleviate concerns of the town’s vested landowners as to how nonconforming lots were to be treated under the regulations. Heller testified that in deciding whether a parcel qualified as a nonconforming lot, it has always been the custom of the town’s zoning enforcement officer, both past and present, to look to whether or not the parcel in question has been described separately by deed from any adjoining parcel rather than to who owned the parcels.

It is the exclusive function of the board to weigh the evidence before it and to determine the credibility of witnesses. See Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn. App. 204, 212, 644 A.2d 401 (1994). Accordingly, the board was entitled to credit Heller’s testimony and to reasonably infer the drafter’s intent as to the regulatory language from that testimony, which was uncontested. Further, it was entitled to assign Heller’s testimonial evidence greater weight than the case law cited by the plaintiff, which evidenced only how other southeastern Connecticut towns had construed similar regulatory language. Because those decisions concerned different zoning regulations than those before the board, they were not binding authority. The board’s findings that 4 Glen Road is a separate nonconforming lot and that the zoning enforcement officer acted legally within the meaning of the town’s regulations are supported by substantial evidence in the record and are not unreasonable, arbitrary, or illegal. In the face of two equally plausible interpretations of the town’s zoning regulations and substantial evidence to support the choice made by the board, we cannot conclude that the court erred in giving deference to the board’s decision, especially when such deference has been expressly sanctioned by our Supreme Court. See Wood v. Zoning Board of Appeals, supra, 258 Conn. 698-99. Accordingly, the plaintiffs’ claim must fail.

II

The plaintiffs also claim on appeal that by affording too much deference to the decision of the zoning enforcement officer, the court effectively deprived them of their right to appeal in accordance with §§ 8-6 and 8-8. We conclude that this claim lacks merit.

First, the court was not reviewing the decision of the zoning enforcement officer, but the decision of the board. In doing so, the court did not, as suggested by the plaintiffs, merely defer to the zoning enforcement officer’s interpretation of the zoning regulations at issue. Rather, it properly engaged in de novo consideration of the regulations before it, concluding on the basis of that review that the regulations were amenable to more than one interpretation and that the board’s choice of interpretation was reasonable in light of the record. As explained in part I of this opinion, we conclude with respect to the court’s construction of the applicable zoning regulations that the court properly deferred to the board’s decision, not to the decision of the zoning enforcement officer. Although in reaching its independent decision regarding the regulatory language at issue, the board considered and credited how the town’s zoning enforcement officers, both current and past, had applied that language, the board did not simply defer to the decision of the zoning enforcement officer as suggested by the plaintiffs. Both the board and the court conducted a proper review of the plaintiffs’ claims raised on appeal, and we reject the plaintiffs’ suggestion that they were not afforded their full appellate rights under §§ 8-6 and 8-8.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .”
      General Statutes § 8-8 (b) provides in relevant part: “Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6. . . .”

       In response to the plaintiffs’ appeal, the board filed its own preliminary statement of the issues that included alternate grounds on which the judgment might be affirmed. See Practice Book § 63-4 (a) (1) (A). The plaintiffs filed a motion to strike the alternate grounds for affirmance, arguing that the board improperly sought to attack a 2009 ruling in the same zoning dispute. This court denied the plaintiffs’ motion to strike without prejudice to the parties addressing the issue of whether the board should have obtained certification to appeal the 2009 decision in order to raise issues related to that decision as alternate grounds for affirmance. Because we affirm the court’s decision, we need not address the alternate grounds for affirmance or whether they properly were raised.

       The record reveals that the Donahues acquired the property on January 13, 1966.

         As to the plaintiffs’ common-law merger claim, the board found that a merger had not occurred, and the court concluded in summary fashion that the plaintiffs had failed to establish that the board had erred as to that issue. The plaintiffs do not challenge the court’s ruling regarding common-law merger, and, therefore, we do not address the matter further in this opinion.

       In Bank of America, the plaintiff bank appealed from a decision of the defendant Zoning Board of Appeals of the Borough of Fenwick upholding the denial of the plaintiff’s application for a zoning permit to construct a single-family residence on a lot that it held in trust. Bank of America v. Zoning Board of Appeals, supra, 46 Conn. L. Rptr. 430. The plaintiffs predecessor in interest had owned the plaintiffs undeveloped lot as well as an abutting lot that was improved with a cottage. Id. The borough’s zoning enforcement officer had refused to issue the zoning permit based on his conclusion that the plaintiffs lot failed to satisfy an exception in the relevant zoning regulation that allowed for the construction of a dwelling on an otherwise undersized lot provided that on the effective date of the zoning regulations and continuously thereafter “ ‘such lot was owned separately from any adjoining lot, as evidenced in the Land Record ....’” (Emphasis in original.) Id. The plaintiff argued that “ ‘owned separately’ ” did not refer to the identity of the lots’ owners but to the title relationship of the lots; in other words, the proper inquiry was whether the lots were described in separate deeds recorded in the land records. Id. The board on the other hand argued that “ ‘owned separately’ ” required ownership by different persons. Id.

       The plaintiff argued that the intent of the regulation was to merge only those undersized lots that have been used together as a single lot, not to punish owners who had maintained the separate legal identity of an abutting, unimproved lot; the board, on the other hand, argued that the regulation was intended to merge any undersized, adjoining lots that were owned by the same person, thus resulting in larger lots that were more likely to conform with the minimum lot size in the regulations, while at the same time avoiding the effective confiscation of an undersized lot from a person or entity who owned no adjoining property that would benefit from a merger. Bank of America v. Zoning Board of Appeals, supra, 46 Conn. L. Rptr. 432.

       In particular, the court stated: “There was evidence that in [thirty] specific instances permits were granted, or other action taken, based upon the interpretation by zoning officials of the town that § 4.13.5 [of the Montville Zoning Regulations] granted nonconforming status to lots separately described and not owned by separate individuals prior to the enactment of the zoning regulations. Although the plaintiffs argue that there was no real evidence in the record of the [thirty] specific instances, it must be concluded that the zoning authorities of the town had been consistent in so interpreting the regulations in many instances over the years.”

       Specifically, the plaintiffs cite to three cases: Murphy v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV-03-563733-S (August 6, 2003); Vichi v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV-04-565653-S (August 26, 2004); and Hescock v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV-07-4105898-S (September 1, 2008).

       The plaintiffs correctly note that the court does not mention the definition in § 1.3 of the Montville Zoning Regulations in its memorandum of decision, rather the court’s analysis is limited to the “separately owned” language found in § 4.13.5. The plaintiffs raised the court’s alleged failure to consider the § 1.3 definition in its motion for reconsideration, which the court denied without comment. Neither party asked the court to articulate whether in fact it had considered the definition for a nonconforming lot found in § 1.3 in reaching its decision to dismiss the plaintiffs’ appeal.

       In construing zoning regulations, “[w]e ... are guided by the principle that the [board] is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read [regulations] together when they relate to the same subject matter . . . .” (Internal quotation marks omitted.) Paul v. Town Plan & Zoning Commission, 130 Conn. App. 847, 855, 26 A.3d 100 (2011). Further, our review of the regulations as a whole reveals that, other than § 4.13 of the Montville Zoning Regulations, no other provision in the regulations concerns nonconforming lots, and therefore the definition in § 1.3 would be rendered superfluous if it did not apply to § 4.13. Tenants of statutory construction require courts to construe zoning regulations “so that no clause is deemed superfluous, void or insignificant.” Graff v. Zoning Board of Appeals, supra, 277 Conn. 653.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JAMESON ALCENA v. COMMISSIONER OF CORRECTION
    (AC 33679)
    DiPentima, C. J., and Gruendel and Flynn, Js.
    Argued September 9
    officially released October 8, 2013

      Matthew J. Collins, assigned counsel, for the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Mary Jean Kanabis, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jameson Alcena, appeals from the judgment of the habeas court denying his petition for a writ of habeas coipus. On appeal, the petitioner claims that he was prejudiced as a result of the ineffective assistance of his criminal trial counsel. Specifically, the petitioner argues that his attorney had failed to advise him of the potential immigration consequences stemming from his guilty plea. We are not persuaded by the petitioner’s claim on appeal, and, accordingly, affirm the judgment of the habeas court.

On October 30, 2008, the petitioner pleaded guilty to two counts of violating a protective order in violation of General Statutes § 53a-223. That same day, the court sentenced him to three years incarceration, suspended after five months, and three years probation. The petitioner did not file a direct appeal. On November 30, 2009, an immigration judge found the petitioner, a native and citizen of Haiti, removable from the United States pursuant to 8 U.S.C. § 1227 (a) (2) (E) (ii) as a result of the conviction of having violated § 53a-223. The United States Board of Immigration Appeals dismissed the appeal from the order of the immigration judge.

On January 20, 2011, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of his trial counsel, Attorney Anthony R. Basilica. Specifically, the petitioner claimed that Basilica failed (1) to educate himself adequately about the immigration consequences of a guilty plea to violation of a protective order, (2) to advise the petitioner that a conviction of violation of a protective order made him subject to deportation, and (3) to discuss meaningfully the immigration consequences of the guilty plea. On May 5, 2011, the habeas court conducted a hearing and issued its oral decision. The court determined that Basilica did not provide deficient performance and that the petitioner was not prejudiced by Basilica’s performance. Accordingly, it denied the petitioner’s request for a writ of habeas corpus. The court granted the petition for certification to appeal.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland [v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“Moreover, [i]n Hill v. Lockhart, [474 U.S. 52, 57-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard. . . . [I]n order to satisfy the prejudice requirement, the defendant must show 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.” (Citations omitted; internal quotation marks omitted.) Niver v. Commissioner of Correction, 101 Conn. App. 1, 3-4, 919 A.2d 1073 (2007).

On appeal, the petitioner’s sole claim of ineffective assistance of counsel is based on the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In that case, the court concluded: “It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the mercies of incompetent counsel. ... To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demands no less.” (Citation omitted; internal quotation marks omitted.) Id., 374; see also Saksena v. Commissioner of Correction, 145 Conn. App. 152, 158, 76 A.3d 192 (2013). Thus, the petitioner argues that Basilica provided constitutionally deficient performance and that he was prejudiced as a result.

The respondent, the Commissioner of Correction, counters that the rule of Padilla, announced on March 31, 2010, cannot be applied to the petitioner’s October 30, 2008 conviction because of Chaidez v. United States, U.S. , 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), and Saksena v. Commissioner of Correction, supra, 145 Conn. App. 158-59. We agree that Padilla is not subject to a retroactive application, and therefore the petitioner’s claim on appeal must fail.

In Chaidez v. United States, supra, 133 S. Ct. 1113, the United States Supreme Court concluded: “This Court announced a new rule in Padilla. Under [Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)], defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” In Saksena v. Commissioner of Correction, supra, 145 Conn. App. 158-59, we concluded that a petitioner who pleaded guilty in 2007 was not able to benefit from the holding of Padilla. See also Gonzalez v. Commissioner of Correction, 145 Conn. App. 28, 33, 74 A.3d 509 (2013) (where petitioner’s conviction became final in 2005, Padilla did not apply). We expressly have recognized that, absent application of the rule of Padilla, the claim raised by the petitioner would fail under our state law. “[U]nder Connecticut law, [t]he impact of a plea’s immigration consequences on a defendant, while potentially great, is not of constitutional magnitude and cannot transform this collateral consequence into a direct consequence of the plea. . . . Along these lines, this court has specifically indicated that, [wjhile the [s]ixth [ajmendment [to the United States constitution] assures an accused of effective assistance of counsel in criminal prosecutions, this assurance does not extend to collateral aspects of the prosecution. . . . [I]n Connecticut, immigration consequences are collateral consequences of a guilty plea. Accordingly, the failure to advise as to that collateral consequence does not constitute deficient assistance.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Saksena v. Commissioner of Correction, supra, 157-58.

On the basis of these cases, we conclude that the rule of Padilla does not apply retroactively to the petitioner’s claims arising out of his 2008 conviction, and that under the applicable law, the challenged conduct does not constitute deficient performance. Accordingly, his claim on appeal must fail. See id.

The judgment is affirmed.


author: BEAR, J.

text:
    IN RE NYASIA H.

    (AC 35647)
    Robinson, Bear and Pellegrino, Js.

      Argued September 9
    officially released September 27, 2013

      Joshua Michtom, assistant public defender, for the appellant (respondent father).

      Benjamin Zivyon, assistant attorney general, with whom were Carolyn Signorelli, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       September 27, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BEAR, J.

The respondent father, Steven H., appeals from the judgment of the trial court terminating his parental rights as to his minor child, Nyasia H. On appeal, the respondent claims that the court erred when it denied a motion to disqualify Assistant Attorney General Carolyn Signorelli, the attorney representing the petitioner, the Commissioner of Children and Families, and that he is entitled to a new termination hearing because of this error. We conclude that the court did not abuse its discretion in denying the motion to disqualify Attorney Signorelli. Accordingly, we affirm the judgment of the trial court.

The relevant factual allegations presented to the trial court in the motion to disqualify are as follows. Attorney Signorelli was the Chief Child Protection Attorney at the time this case was initiated against the respondent in 2010, and, in that capacity, she was in charge of all attorneys awarded contracts to represent children and indigent parents in actions initiated by the Department of Children and Families. The respondent previously had sent an e-mail directed to Attorney Signorelli requesting that she investigate this case in her capacity as Chief Child Protection Attorney. On January 4, 2013, tiie mother’s attorney became aware that Attorney Signorelli, who had worked at the Office of the Attorney General prior to her appointment as Chief Child Protection Attorney, had returned to the Office of the Attorney General, and she had been assigned to the present case for the petitioner. It was not until March 2, 2013, however, that the mother’s attorney learned that the respondent had sent an e-mail directed to Attorney Signorelli while she was the Chief Child Protection Attorney. The mother’s attorney then immediately requested that the court consider disqualifying Attorney Signorelli on the basis of rulés 1.7, 1.9, 1.10 and 1.11 of the Rules of Professional Conduct.

The court heard argument on the motion on March 4, 2013, at which time the respondent verbally supported the mother’s motion to disqualify Attorney Signorelli. Although in his brief the respondent appears to fault the court for not taking evidence at this hearing, there is nothing in the record to indicate that the respondent or the mother’s attorney ever requested an eviden-tiary hearing on the matter, much less that the court denied such a request. Following the argument of counsel, the court denied the motion to disqualify. The trial proceeded, and the court rendered judgment terminating the parental rights of the respondent and the mother on March 28, 2013. The respondent then filed the present appeal.

On appeal, the respondent claims that the court erred in denying the motion to disqualify Attorney Signorelli because of the appearance of impropriety and because her representation of the petitioner was a violation of rule 1.11 of the Rules of Professional Conduct. He further argues that he is entitled to a new hearing on the termination of his parental rights due to the court’s error in denying the motion. We are not persuaded.

“The standard of review for determining whether the court properly denied a motion to disqualify counsel is an abuse of discretion standard. The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court. . . . In its execution of this duty, the Superior Court has broad discretionary power to determine whether an attorney should be disqualified for an alleged breach of confidentiality or conflict of interest. ... In determining whether the Superior Court has abused its discretion in denying a motion to disqualify, this court must accord every reasonable presumption in favor of its decision. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Smigelski v. Kosiorek, 138 Conn. App. 728, 739-40, 54 A.3d 584 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).

“Disqualification of counsel is a remedy that serves to enforce the lawyer’s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information. ... In disqualification matters, however, we must be solicitous of a client’s right freely to choose his counsel . . . mindful of the fact that a client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and may lose the benefit of its longtime counsel’s specialized knowledge of its operations. . . . The competing interests at stake in the motion to disqualify, therefore, are: (1) the [respondent’s] interest in protecting confidential information; (2) the [petitioner’s] interest in freely selecting counsel of [her] choice; and (3) the public’s interest in the scrupulous administration of justice.” (Citations omitted; internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 725, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

In the present case, after counsel argued the motion to disqualify Attorney Signorelli, the court issued its ruling from the bench. The court found that the respondent’s e-mail directed to Attorney Signorelli did not disclose any substantial and confidential matters, that all the information provided by the respondent in the e-mail was a matter of record, and that Attorney Signo-relli had not been acting in an adversarial role with the respondent, nor had she been representing him. The court also stressed that the case had been pending for 987 days, with the children having been in placement since June, 2010, and that trial was due to start that very day. On these bases, the court denied the motion.

On appeal, the respondent specifically argues that Attorney Signorelli’s representation of the petitioner in this case created the appearance of impropriety and violated the section of rule 1.11 (a) that provides: “Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government ... (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.” Assuming, without deciding, that this rule could be implicated under the facts of this case, we, nonetheless, are not persuaded by the respondent’s argument.

Pursuant to statute, Attorney Signorelli, as the Chief Child Protection Attorney, was responsible for managing a system of legal representation, where such representation was handled by not-for-profit legal services agencies and private independent contract attorneys who, themselves, provided direct legal services to clients. See General Statutes (Rev. to 2010) § 46b-123d, repealed by Public Acts 2011, No. 11-51, § 223, effective July 1, 2011. Under § 46b-123d, the role and duties of the Chief Child Protection Attorney were administrative in nature, and thus she did not personally or substantially participate in or provide any legal representation in individual cases. The rule of professional conduct that the respondent complains was violated in this case, rule 1.11 (a) (2), is addressed to public officers or employees of the government who have “participated personally and substantially” in a matter. The court found that Attorney Signorelli did not participate personally and substantially in the respondent’s case and that there was no basis on which to disqualify her. On the basis of the court’s findings, the record before us, and the clearly defined statutory scope of the Chief Child Protection Attorney’s role and duties, we are not persuaded that the court abused its discretion or that the denial of the motion to disqualify amounted to a manifest injustice. Accordingly, we cannot conclude that the respondent is entitled to a new trial on the petition to terminate his parental rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the mother of Nyasia H. (mother). She, however, is not a party to this appeal. Accordingly, we refer to Steven H. as the respondent.

       The attorney for the minor child adopted the brief of the petitioner on appeal.

       The e-mail, directed by the respondent to Attorney Signorelli, provided: “I am writing this e-mail because social services workers . . . [h]ave come to my house on June 21, 2010 looking for [the mother of Nyasia H.] My mother and I told them that she was not here. Basically they claimed that she did not go to a graduation, and we told them that whatever she does is not our concern. [T]heir next claim was that they saw a child playing upstairs so we told them that she was my niece and she was here to see her grandparents. [W]e brought the child to the door so they [would] know that she was not the child and mother they were looking for. [A]fter [that] the workers coerced a story and got me arrested claiming that [I] did not cooperate. I told them that [I] have no child in my care and [I] should not be subjected to shake downs whenever someone is not in their home. [T]he only connection I have with [the mother of Nyasia H.] [i]s a common child [N]yasia [H.] [T]hey wanted to go inside the house [but] we told them to get a warrant in order to do so. [A]fter I was unlawfully [arrested] they proceeded to force themselves into the house pushing and shoving my father. I [and] my family told them that [the mother of Nyasia H.] has her own [address] and they should go to her home. In a day or two I heard that my daughter was taken away from her mother. It was a hearsay case but they made it bigger than what it was. [AJfter all they searched my house illegally questioned a four year [old] child when they did find [the mother of Nyasia H.] they proceeded to go to her [house] and take the children. [I] know that these workers are sharing messages to third parties. My daughter has been sitting in a foster home I have not seen her in months and [I] have gone to a meeting I asked to [have a supervised] visit but I am hearing that [I] could not see her because of a protective order that is in place for when I and [the mother of Nyasia H.] had an argument.
      “She is [four] years old she has not been away from her family in two months now. [Before] all this [I] and the mother had registered her to [a] charter school but [I] am hearing from the workers that she not be [attending] that school. My daughter [deserves] an [education] I don’t see why she can’t go to the school we chose for her. First they violated my human rights, they made up stories in order to [force] their way in my family’s home now they are blocking me from seeing my daughter and now they want to deprive her of [an] education. This is hurting my daughter and in the end no one will be responsible for the effect this will have on her. I know that the mother would never put her kids in danger. [T]he reportee made up stories and there are other people involved in this. [TJhere should be a [thorough] investigation of the workers. [T]his to me a racially motivated and harassment. [These people] are targeting minorities who have not the resources to defend themselves. [M]y daughter does not belong in a foster home. I am attending groups and domestic violence programs as well as sound community to better myself and to be effective in my family’s life. I have proposed that my mother should become her custodial parent . . . [but one of the worker’s] refuses. [T]hey want my mother to become a foster parent. Instead of the child living in foster care she should be with her family. I want this complaint to be investigated and confidential.”

       On appeal, however, the respondent relies only on rule 1.11 (a) (2) of the Rules of Professional Conduct as a basis for Attorney Signorelli’s disqualification.

       The respondent father did not file a separate motion to disqualify Attorney Signorelli, nor did he join in and sign the mother’s motion. The petitioner, however, does not advance any arguments on appeal relating to these deficiencies.

       Although the motion was heard on March 4, 2013, it erroneously bears a date of March 21, 2013. The petitioner alleges in her brief that the motion was submitted to the court on Saturday, March 2, 2013; that assertion is not contested by the respondent.

       “Unlike Canon 9 under the Code of Professional Responsibility . . . the Rules of Professional Conduct do not expressly state that a lawyer should avoid the appearance of impropriety. Even when Canon 9 was applicable, we rejected the notion that an appearance of impropriety was alone a sufficient ground for disqualifying an attorney. . . . [T]he appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases. . . . Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney’s representation risks violating the Rules of Professional Conduct.” (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. 391, 399-400, 623 A.2d 489 (1993) (court improperly disqualified plaintiffs’ counsel on basis of appearance of impropriety without exploring whether representation violated Rules of Professional Conduct); see American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 726-27, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

       Nyasia H. was not the only child to whom these proceedings related. She is, however, the only child relevant to this appeal.


author: DiPENTIMA, C. J.

text:
    ABSOLUTE PLUMBING AND HEATING, LLC v. ALISON EDELMAN ET AL. JR REMODELING, LLC v. ALISON EDELMAN ET AL.
    (AC 34438)
    DiPentima, C. J., and Sheldon and Flynn, Js.

      Argued January 17
    officially released October 15, 2013

      Edward Kanowitz, for the appellants (defendants in both cases).

      Lorey Rives Leddy, with whom, on the brief, was Brendan J. ORourke, for the appellees (plaintiff in each case).
   Opinion

DiPENTIMA, C. J.

This appeal arises from consolidated actions brought by subcontractors to foreclose on mechanic’s liens placed on the defendant’s property to secure the value of their labor and services on ahorne improvement project. The defendant, Alison Edelman, individually and as executrix of the estate of her mother, Claudia Pearl, appeals from the trial court’s judgment accepting a report by the attorney trial referee (referee) awarding damages, interest, and attorney’s fees to the plaintiff subcontractors, Absolute Plumbing & Heating, LLC (Absolute Plumbing), and JR Remodeling, LLC (JR Remodeling). On appeal, the defendant claims that the trial court improperly adopted the referee’s report because (1) it failed to consider the applicability of the Home Improvement Act (act), General Statutes § 20-418 et seq., to the validity of the plaintiffs’ hens, and (2) the evidence presented did not support either the referee’s factual finding as to the contract price agreed to by the defendant and the general contractor or his finding that the construction work agreed to under the contract had been substantially completed. The defendant further claims that the trial court improperly awarded attorney’s fees to the plaintiffs. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On December 27, 2006, the defendant entered into a contract with Schott Construction, LLC (Schott), as general contractor, to make renovations on the residential property located at 61 Maple Avenue North in Westport (property). The contract stated an estimated total price of $454,341.80. Over the course of construction, the contract was modified, in accordance with its terms, by numerous “construction summaries.” These summaries reflected additions to the scope of the project and corresponding increases in the contract price, which had been discussed with and orally agreed to by the defendant. After becoming dissatisfied with the general contractor’s performance, the defendant terminated the contract with Schott on September 19, 2006. The defendant subsequently hired other general contractors, DeFelice Contracting (DeFelice) and Bella Cucina Design, LLC, to continue and expand the work on the project.

During the course of its work on the project, Schott engaged the plaintiffs as subcontractors to perform work on the premises. Absolute Plumbing was hired to perform the heating and plumbing work and JR Remodeling was hired to perform the carpentry work. The defendant was aware that this work was being performed by the plaintiffs. When the defendant unilaterally terminated the contract with Schott, she directed the plaintiffs to leave the premises. After the contract was terminated, Schott sent a letter to the defendant on October 13, 2006, demanding full payment under the terms of the contract. The amount so demanded included $16,837.20 that Schott owed to Absolute Plumbing and $9460 that it owed to JR Remodeling for work performed by them on the project. The defendant took no action in response to this demand letter. The plaintiffs subsequently filed separate certificates of mechanic’s hen for the amounts they were owed for their work on the project. In December, 2007, the plaintiffs brought separate actions to foreclose on their respective mechanic’s hens, which the defendant answered by denying ah liability. Additional facts will be set forth as necessary.

The plaintiffs’ separate actions were consohdated by a March 10, 2010 court order. The parties then elected to proceed to trial before an attorney trial referee on August 13, 2010. On the first day of trial, the defendant sought to file special defenses, alleging that they had paid Schott in excess of the contract price and that the plaintiffs had not properly presented their claims to the defendant as executrix of the estate of Pearl. Upon the plaintiffs’ objection the referee did not allow the special defenses, finding the request untimely and procedurally defective. Thereafter, the referee concluded that the plaintiffs were entitled to the foreclosure of their mechanic’s liens. The referee found that the defendant owed Absolute Plumbing a total of $30,192.49 and JR Remodeling a total of $18,635.74, which sums included amounts for their respective hens and costs, plus prejudgment interest of 10 percent per year from September 19, 2006. Finally, the referee determined that the plaintiffs were entitled to attorney’s fees, but made no findings as to the amounts of those fees.

Pursuant to Practice Book § 19-14, the defendant objected to these findings of fact and to the acceptance of the referee’s report, claiming that no lienable fund existed from which the plaintiffs could recover. The defendant also contended that the referee should have applied the act to its analysis of the plaintiffs’ actions and that the referee improperly determined that (1) the plaintiffs had made proper service of process upon her, (2) the hens were in the correct amounts, (3) Schott’s work under the contract had been substantially completed, and, therefore, the hens were enforceable, and (4) the plaintiffs were entitled to attorney’s fees. In its June 9, 2011 memorandum of decision, the trial court accepted the referee’s report with respect to all findings therein, but did not determine the issue of attorney’s fees, as the parties had agreed to reserve that issue for a later hearing. The court denied the defendant’s subsequent motion to reargue or reconsider that decision.

Following a July 6, 2011 evidentiary hearing on the issue of attorney’s fees, the trial court issued a supplemental memorandum of decision. The court awarded attorney’s fees in the amounts of $16,691.50 and $29,707.51 to JR Remodeling and Absolute Plumbing, respectively. This appeal followed.

I

The defendant first claims that the trial court improperly accepted the referee’s report because the referee failed to analyze the defendant’s claims pursuant to General Statutes § 20-429, which sets forth the contract provisions required under the act.

The standard of review in cases referred to attorney trial referees is well settled. “[B]ecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal [determinations] reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . [When] legal [determinations] are challenged, [the reviewing court] must determine whether they are legally and logically correct and whether they find support in the facts found by the . . . referee.” (Internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 796, 17 A.3d 40 (2011).

After considering the defendant’s arguments submitted in her objection to the acceptance of the referee’s report, the trial court, as the reviewing court, concluded that because the defendant had not pleaded the act as a special defense, the referee “cannot be held accountable for failing to make a recommendation to the court as to its applicability.” Thus, on our review, the threshold question we must answer is “whether a statute should have been specially pleaded as a defense. Section [10-50] of the Practice Book addresses whether a defense must be specially pleaded. . . . The purpose of § [10-50] is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way ....

“When the evidence needed to establish that no cause of action [exists] is consistent with the allegations necessary to establish a prima facie case, a special defense is required. . . . We conclude that the [defendant] should have pleaded the [act] as a special defense.” (Citations omitted; internal quotation marks omitted.) Sidney v. DeVries, 18 Conn. App. 581, 585-87, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990).

We agree with the court’s conclusion that the defendant did in the present case not properly plead the act as a special defense. Although the defendant attempted to raise the issue of the act at trial, the referee specifically concluded that “there are no special defenses submitted in this case.” As this court has recognized, “a party seeking to utilize the act as a shield to liability must plead it as a special defense. ... At the same time, a failure to allege a special defense is waived if evidence relating to that special defense is admitted without objection.” (Citation omitted; internal quotation marks omitted.) Brett Stone Painting & Maintenance, LLC v. New England Bank, 143 Conn. App. 671, 690, 72 A.3d 1121 (2013).

No such waiver is present here. To the contrary, the plaintiffs’ counsel, Brendan O’Rourke, objected to the defendant’s invocation of the act and to her counsel’s attempts to submit evidence relating to the discharge of Schott’s hen on the ground that it had violated the act. O’Rourke stated that “this defense was not [pleaded] in any way as a special defense to my clients’ claims being tried before this court. So this is another example of where I’m being presented with a legal argument that . . . should have been specially [pleaded] so I would be in a position to have been put on notice and be in a position to have addressed it.” See Brett Stone Painting & Maintenance, LLC v. New England Bank, supra, 143 Conn. App. 690-91. In fight of the foregoing, the court properly rejected the defendant’s claim.

II

The defendant next claims that the court improperly accepted the referee’s report because it contained erroneous factual findings, specifically as to the contract price at the time of termination and as to the fact that work under the contract had been substantially completed by that time. We are not persuaded.

“The trial court’s findings of fact were based entirely on the record of the proceedings before the attorney trial referee. Under these circumstances, application of the clearly erroneous test must reflect the special rules that govern judicial review of a report of an attorney referee. While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found. ... A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . . [T]he trial court may not retry the case and pass on the credibility of the witnesses . . . .” (Citations omitted; internal quotation marks omitted.) Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 345, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).

A

The defendant contends that the court improperly adopted the referee’s finding of the contract price owed to Schott at the time the contract was terminated because it was clearly erroneous. She further argues that because this finding was clear error, no lienable fund existed to sustain the plaintiffs’ liens. We are not persuaded.

The following additional facts are relevant to the resolution of this claim. The contract states: “The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the Contract. The Contract Sum shall be: $454,341.80, subject to additions and deductions as provided in the Construction Summary.” On the basis of the evidence presented at trial, the referee found that at the time the contract was terminated, the defendant and Pearl had paid $503,755.63 toward the contract price, but that the modified contract price then amounted to $605,458.83, the sum listed on the latest construction summary that had been approved by the parties. The referee determined, therefore, that the unpaid debt to Schott amounted to approximately $100,000, the difference between the amount paid and the modified contract price. The referee further found that the construction summaries reflected that Schott employed the plaintiffs, which was discussed with and approved by the defendant. Ultimately, the referee found that the defendant agreed that the plaintiffs were entitled to payment under the construction contract for their work.

The defendant maintains that the original contract price, approximately $454,342, should be used to measure damages because the modifications to the contract were deemed invalid pursuant to the act during a prior action to discharge Schott’s mechanic’s hen. In discharging Schott’s hen, the court, Tobin, J., had found that the contract modifications made by the construction summaries were invalid with respect to Schott’s claim that it was owed the modified contract price because the modifications did not comply with the requirements of the act, in that, they were not made in a writing signed by both parties. The defendant argues that because the contract modifications were deemed invalid in the prior proceeding, the plaintiffs in the present case may not rely on the modified contract price found by the referee.

Our review of the referee’s legal conclusion that the contract price modification was valid with respect to the plaintiffs’ hens is plenary. See FCM Group, Inc. v. Miller, supra, 300 Conn. 796. As we recently affirmed in ProBuild East, LLC v. Poffenberger, 136 Conn. App. 184, 45 A.3d 654 (2012), although the act applies to general contractors, it does not apply to subcontractors. “Subcontractors do not fall within the statutory definition of home improvement contractor, and they are therefore not required to register nor are they required to enter into valid home improvement contracts. Meadows v. Higgins, 249 Conn. 155, 165-68, 733 A.2d 172 (1999)." ProBuild East, LLC v. Poffenberger, supra, 194.

“Assuming without deciding that the defendant is correct in his assertion that the underlying contract does not meet the requirements of [the act], we do not agree that this is a bar to the plaintiffs right to recover against him under the mechanic’s hen statute. The defendant has provided no authority to support his proposition that when a general contractor’s hen is unenforceable for a lack of compliance with the act, the subcontractor’s hen also is unenforceable.” (Footnote omitted.) Id., 195. The parties in the present appeal agree that the plaintiffs are subcontractors. Thus, the trial court was not precluded from accepting the referee’s finding of the modified contract price on the basis that Schott’s hen had been deemed invalid during a prior proceeding.

Furthermore, the referee’s determination of the final contract price between Schott and the defendant was based on ample evidence presented at trial. In arriving at this figure, the referee considered testimony and exhibits concerning expansions to the original scope of the contract, including adding a new bathroom, new windows and exterior doors, a new roof, and a new floor for the master bedroom. The record also contains updated architectural drawings that were submitted to the town of Westport on the basis of the expanded home improvement project.

The evidence of record demonstrates that the parties had agreed that the contract was subject to revision and that there were subsequent modifications to the contract between the defendant and Schott. Joseph Schott, the principal of Schott, testified that he reviewed all such modifications with the defendant by going over “construction summaries” with her, and that he had obtained her oral consent before increasing the contract price and proceeding with the construction following each modification. Accordingly, the evidence presented at trial is sufficient to support the referee’s finding that the contract price at the time Schott was terminated was the modified price of $605,459. On the basis of this record, and because the trial court may not retry the case and make credibility determinations; see Johnson Electric Co. v. Salce Contracting Associates, Inc., supra, 72 Conn. App. 345; the referee’s finding of the modified contract price was not clear error, and, therefore, was properly accepted by the trial court.

The defendant further argues that because the referee’s determination of the contract price was clear error, no debt was owed to Schott, and, therefore, no lienable fund existed. Although “[t]he subrogation language of [General Statutes] § 49-33 (f) certainly requires the subcontractors’ liens be invalidated where there is no unpaid contract debt owed to the general contractor from the owner”; ProBuild East, LLC v. Poffenberger, supra, 136 Conn. App. 196; because we have determined that the court properly accepted the referee’s finding of the modified contract price, it follows that, at the time the contract was terminated, there was unpaid contract debt of approximately $100,000. Because the court properly determined that there was unpaid contract debt, a lienable fund exists from which the plaintiffs can satisfy their claims. While Schott is barred from collecting this debt due to its failure to comply with the act, the plaintiffs are not similarly constrained.

B

The defendant next claims that the referee’s finding that the work on the property performed pursuant to the contract was substantially completed was clearly erroneous. We disagree.

“Substantial performance contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures. . . . Whether a building contractor has met this standard is ordinarily a question of fact for the trier. . . . Our review of this claim is therefore limited to a determination of whether, based on the record, the referee’s finding of no substantial performance is clearly erroneous.” (Citations omitted.) Argentinis v. Gould, 23 Conn. App. 9, 14, 579 A.2d 1078 (1990), rev’d in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991).

“[I]n a foreclosure of a mechanic’s lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of a project. . . . [T]he substantial performance doctrine is not the only method available for ascertaining that value. The reasonable value of the materials and services can be proven by: (1) providing evidence that the contract price represents the value of a contractor’s materials and services; Dreambuilders Construction, Inc. v. Diamond, 121 Conn. App. 554, 562, 997 A.2d 553 (2010); (2) demonstrating the contractor substantially performed such that the contract is the proper valuation of its materials and services; M. J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 286-87, 99 A. 853 (1917); see also Intercity Development, LLC v. Andrade, [96 Conn. App. 608, 614, 901 A.2d 731 (2006)] ([wjithout a finding that the plaintiff substantially performed its contract, there can be no right to recover under the mechanic’s hen statute with reference to the contract price), [rev’d in part on other grounds, 286 Conn. 177, 942 A.2d 1028 (2008)]; or (3) submitting evidence of the cost to complete the work.” (Citation omitted; internal quotation marks omitted.) E & M Custom Homes, LLC v. Negron, 140 Conn. App. 92, 104-105, 59 A.3d 262, cert. granted on other grounds, 308 Conn. 912, 61 A.3d 1099 (2013).

The evidence of record in this case reveals testimony from Joseph Schott and DeFelice, in addition to the various subcontractors, concerning the amount of construction that had been completed on the project by the time Schott was terminated. For instance, Joseph Schott testified that when he was terminated from the project, it was 90 to 95 percent complete. DeFelice testified that “[m]ost of the work was done. . . . I just had to come and finish it and get [the defendant] in. . . . [Schott] did a great job, they did. Except for mechanical parts, they did a good job. The house was sound, roof structure great. I mean the walls were fine. Everything was good. Except for the minor things I found but you know, getting [the defendant] in. (Emphasis added.) DeFelice further testified that when he was hired, the entire shell of the addition to the defendant’s home and all of the rooms were complete, and he was unaware of the exact scope of the work that Schott had contracted to perform for the defendant. Moreover, the documentary evidence presented at trial contained the construction summaries that Joseph Schott had reviewed orally with the defendant, detailing the work that had been completed up to the date of each summary.

The defendant nonetheless maintains that the testimony and exhibits presented at trial instead demonstrate that the work on the project had not been substantially completed. In support of this argument, she points to the testimony of DeFelice and various subcontractors stating that when they began work on the project, it was incomplete. This testimony, however, is not inconsistent with the referee’s finding. The referee did not find that the work on the property had been fully completed, but rather concluded that, pursuant to the terms of the contract between the parties, the work had been substantially completed.

In arguing that the project was not substantially completed, the defendant also cites the alleged costs incurred to complete the project by hiring other general contractors. Further, she argues that the contents of the construction summaries reveal details that remained uncompleted after Schott’s termination, such as obtaining and installing carpentry, plumbing fixtures, bathroom countertops, electrical fixtures, a driveway, a garage door, appliances, and accessories. When making his findings, the referee considered all of the aforementioned testimony and evidence. On the basis of the evidence, he determined that “substantially all of the work required to be done by Schott under the construction contract . . . had been completed.” The referee specifically noted that in reaching his conclusion, he had relied upon the “credible” testimony of Robert Szta-chelski, the principal of JR Remodeling, and Stanley Bike, the principal of Absolute Plumbing, who stated that the plaintiffs’ respective work had been “completed in a good and workmanlike manner.”

In adopting the referee’s findings, the trial court determined that there was “testimony in the record to support the referee’s acceptance of the claim that the work had been substantially performed.” Although the record does contain some evidence suggesting that more than minor details on the project were incomplete at the time that Schott was terminated, the referee was in the best position to evaluate this evidence and to determine the credibility of the witnesses. The trial court may not retry the case and make such credibility determinations. See Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 743, 805 A.2d 76 (2002). Accordingly, the court properly accepted the factual finding of the referee that the work on the defendant’s property performed pursuant to the contract was substantially completed.

Ill

The defendant finally claims that the trial court improperly awarded attorney’s fees to the plaintiffs. The defendant does not challenge the referee’s authority to award attorney’s fees pursuant to General Statutes § 52-249 (a), but rather argues that the trial court’s awards of attorney’s fees were unreasonable because of the court’s reliance on a joint representation agreement entered into by O’Rourke, Schott, and the plaintiffs, as well as various other subcontractors that had worked on the project. Specifically, the defendant claims that (1) the agreement violates public policy and (2) the court improperly failed to include Schott’s lien in the pro rata allocation of the fees, thereby awarding a greater share of the fees to the plaintiffs. We are not persuaded by the first claim, but as to the second, we conclude that the court was mistaken in its reasoning for excluding Schott’s lien. Accordingly, we reverse the judgment of the court awarding attorney’s fees to the plaintiffs and remand the case for further proceedings.

The following additional facts are relevant to the resolution of this issue. In March, 2007, the plaintiffs, Schott, and the additional subcontractors that were parties to the underlying actions entered into a “joint representation agreement” with O’Rourke, who agreed to provide representation to all parties in connection with the defendant’s applications to discharge the mechanic’s hens held by those parties on the property. The agreement explained the potential conflict of interest in O’Rourke’s joint representation and provided that Schott would pay for the fees and costs incurred in connection with O’Rourke’s representation. The agreement further provided that if Schott failed to pay any of these fees, the subcontractors would be responsible for paying them on a pro rata basis, in amounts to be determined by comparing the amounts of their individual hens with the total sum of ah hens on the subject property.

In his memorandum of decision, the referee cited Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 418, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002), for the proposition that “General Statutes § 52-249 (a) succinctly and unambiguously provides for the allowance of attorney’s fees in actions for foreclosure of mortgages or hens.” (Internal quotation marks omitted.) On the basis of this statutory authority, the referee concluded that the plaintiffs were entitled to attorney’s fees, but did not determine the amount of those fee awards in his decision.

At the August 18, 2011 evidentiary hearing on attorney’s fees, the trial court affirmed the referee’s decision that the plaintiffs were entitled to attorney’s fees and determined the amount of each award. The court thereafter awarded attorney’s fees of $16,691.50 to JR Remodeling and $29,707.51 to Absolute Plumbing.

It is weU established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. “Whether any award is to be made and the amount thereof he within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. ... A court has few duties of a more delicate nature than that of fixing counsel fees. The issue grows even more delicate on appeal; we may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion .... Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Citation omitted; internal quotation marks omitted.) Ernst v. Deere & Co., 92 Conn. App. 572, 575-76, 886 A.2d 845 (2005).

A

The defendant first argues that the joint representation agreement violated public policy and therefore is void. Specifically, she contends that Schott has no direct interest in the outcome of her litigation with the plaintiffs, and, therefore, its payment of the plaintiffs’ attorney’s fees violates public policy because Schott “improperly benefits from the litigation that [it] finances.” We disagree.

The defendant bases her claim entirely on the rule set forth by our Supreme Court in Rice v. Farrell, 129 Conn. 362, 28 A.2d 7 (1942). As explained in Rice, “[t]he situation, however, where one having a right he desires to assert asks another to assist in the necessary litigation, differs essentially from that where a person having no interest in the subject matter of the controversy instigates legal proceedings and offers to pay the expenses in return for a benefit he is to receive if the litigation is successful. Beyond sustaining agreements falling within the principles of these cases, we have never gone.” Id., 366. As correctly interpreted by the trial court, the rule set forth in Rice is essentially that “as long as a party who is financing the litigation has any interest great or small, certain or uncertain, in the subject matter of the suit of another which was not acquired as the result of an agreement to aid in the maintenance of the suit, it is not against public policy for him to render such aid.” The resolution of the defendant’s claim, then, rests on a determination of Schott’s interest in the present litigation.

The joint representation agreement states that “[Schott] has obligations to each of the other companies for subcontracting work that was hired for the project being constructed at the [defendant’s] premises . . . .” In its memorandum of decision, the trial court reasoned that “[b]ecause Schott owed the subcontractor signatories balances for the work they performed on the premises, it had a direct, immediate financial interest in limiting his losses by entering into an agreement whereby he assumed the primary obligation to pay all of the attorney’s fees incurred in the litigation . . . .” (Internal quotation marks omitted.) We agree with the court’s conclusion.

The benefit Schott stood to receive from agreeing to finance the plaintiffs’ litigation, namely, keeping the plaintiffs from making claims against it, is clearly an interest of the sort contemplated by the court in Rice. By paying for the plaintiffs’ attorney’s fees, Schott does not receive an additional monetary benefit from the outcome of the litigation; rather his payment satisfies preexisting debts owed to the plaintiffs for work performed on the defendant’s property. Thus, the defendant’s argument that the j oint representation agreement violates public policy has no merit.

B

The defendant next claims that the court miscalculated the amount of attorney’s fees owed to the plaintiffs by modifying the joint representation agreement. We agree that the court abused its discretion in awarding attorney’s fees because its rationale for doing so constituted an erroneous application of law.

The evidence before the court included an affidavit submitted by O’Rourke, as well as his testimony explaining the pro rata calculations he had used to bill each of his clients. O’Rourke’s affidavit explained that after Schott’s hen was discharged, he no longer counted that hen toward the aggregate total, but also that he had deducted $6500 from the total attorney’s fees owed pursuant to the joint representation agreement, as those fees were allocable to the work performed solely in his representation of Schott before its hen was discharged. O’Rourke testified that he had made a similar adjustment after another subcontractor, WK Coley Construction, was no longer being represented.

The trial court concluded that because Schott’s hen was invalid at the time it was created, “the discharge of the hen by the court acted retrospectively, relating back to the date of the contract and to the hen which was based on the contract. This analysis leads necessarily to the conclusion that at the time of the [joint representation] agreement . . . Schott’s hen was invalid and void and therefore cannot be included in the pool of available pro rata fee shares contemplated by the agreement.”

We do not agree with the court’s analysis of this issue. Although Schott’s lien was deemed invalid because the contract modifications violated the act, the lien was not discharged until after the joint representation agreement was signed. O’Rourke’s representation on behalf of Schott, therefore, generated attorney’s fees allocable to Schott pursuant to the agreement. Accordingly, the discharge of Schott’s lien did not necessarily lead to the removal of that lien from the aggregate total of all the liens for puiposes of calculating attorney’s fees.

The conclusion that the Schott lien was invalid, and therefore excludable, was the sole basis for the court’s calculation of attorney’s fees. As previously noted, the court has authority to make reasonable awards of attorney’s fees pursuant to § 52-249 (a). See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 327, 63 A.3d 896 (2013). Such an award, however, must be based on findings made by the trial court. In the present case, the court made no findings, based on O’Rourke’s testimony or otherwise, regarding its calculation and allocation of the respective attorney’s fees among the plaintiffs. Accordingly, we conclude that further proceedings are needed to determine whether attorney’s fees should be awarded and, if so, the amount of those fees.

The judgment is reversed in part and the case is remanded for further proceedings on the issue of attorney’s fees in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Pearl was a defendant in the underlying actions filed by the plaintiffs to foreclose their mechanic’s liens. After the commencement of these actions, but before trial, Pearl died in 2008. Thereafter, the trial court substituted Edelman, in her capacity as executrix of Pearl’s estate, as a party defendant on March 10, 2010. For the sake of clarity, we refer in this opinion to Edelman as the defendant in both her individual and representative capacities.

       Three additional subcontractors, Greco Construction, Herb Willigan Electrical, and WK Coley Construction, filed actions against the defendant concerning the same home improvement project. These subcontractors are not parties to the present appeal.

       Schott also had filed a mechanic’s lien against the property, but the defendant’s application to discharge that lien was granted by the court, Tobin, J., on April 16, 2007, on the basis of its determination that modifications to the contract between the defendant and Schott did not comply with the act.

       See footnote 2 of this opinion.

       Before the defendant initiated the present appeal, each plaintiff filed a motion for judgment on February 13, 2012, stating that it was no longer seeking a foreclosure judgment and requesting that the trial court, in accordance with its ruling rendering judgment in accordance with the referee’s report, award the plaintiff monetary damages instead. The court granted the motions, and, in each case, awarded the plaintiff monetary damages, prejudgment and posljudgment interest, and attorney’s fees. The defendant thereafter filed the present appeal on March 23, 2012.

       General Statutes § 20-429 provides in relevant part: “(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor’s registration number, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, (8) is entered into by a registered salesman or registered contractor, and (9) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor. . . .
      “(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.”

       The defendant further contends that the referee also improperly failed to consider the cost of completion of the home improvement project in determining the value of the plaintiffs’ liens. According to this court’s analysis in Intercity Development, LLC v. Andrade, supra, 96 Conn. App. 613, “in a foreclosure of a mechanic’s lien . . . if it is found that the contractor substantially performed the contract, the court may determine the amount of the mechanic’s lien by deducting the sum representing the cost of completion from the balance due on the contract.” (Citation omitted; footnote omitted.) The defendant in the present case alleges that the cost of completing the project was approximately $282,790, which sum should have been deducted from the balance owed on the contract.
      “In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous.” (Internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 743, 805 A.2d 76 (2002). Our careful review of the record reveals that the defendant did not provide evidence sufficient to determine the cost of completing the home improvement project, as it is unclear from the record what portion of the payment made to DeFelice was provided in compensation for work that Schott had previously agreed to perform (the cost of completion) and what part of the payment was for additional renovations and changes to the property. Although the referee did not make a specific finding regarding the cost of completion, on the basis of the evidence, we cannot conclude that the referee’s damages award was clearly erroneous.

       General Statutes § 52-249 provides in relevant part: “(a) The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney’s fee, as if there had been a hearing on an issue of fact. . . .”

       In making this determination, the court relied in part on the joint representation agreement. The court found that “the agreement by its terms seems to be limited in scope to representation ... in connection with the applications to discharge mechanic’s liens that have been filed by the [defendant] .... [T]he parties [however] have treated the document as applying to every other aspect the parties dispute, including the proceeding before the [referee]. The court will likewise do so.” (Internal quotation marks omitted.) In the present appeal, neither the plaintiffs nor the defendant challenge the court’s broad treatment of the joint representation agreement.

       We note that the defendant does not challenge the reasonableness of the fees incurred by O’Rourke or the various hourly rates charged by his associates. The defendant instead contends that the plaintiffs did not actually incur any attorney’s fees, because Schott paid all such fees. The defendant cites testimony explaining that pursuant to the joint representation agreement, Schott was responsible for the attorney’s fees, but aside from the bald assertion that the fees had been paid, presents no support for this argument. Accordingly, we decline to review the defendant’s claim because it is inadequately briefed. See Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

       Each subcontractor’s joint representation agreement provided in relevant part that: “[T]he legal fees and costs that will be incurred in connection with my representation has been agreed to be paid by [Schott]. If for any reason [Schott] fails to pay my invoices, each [subcontractor] agree [s] to be responsible for such invoices on a pro rata basis determined by the amount of your subcontractor’s lien versus the aggregate of all of the liens.”