author: LAVINE, J.

text:
    IN RE AZIZA S.-B. ET AL.

    (AC 34223)
    Lavine, Espinosa and Peters, Js.

      Argued May 29
    officially released October 1, 2012

      Elizabeth Knight Adams, for the appellant (respondent father).

      Carolyn A. Signorelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Charlene W. Spencer and Benjamin Zivyon, assistant attorneys general, for the appellee (petitioner).

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

       October 1, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

LAVINE, J.

The respondent father, Eric B., appeals from the judgments of the trial court terminating his parental rights as to three of his minor children, pursuant to General Statutes § 17a-112 (j) (3) (B) (i), for failure to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible position in his children’s lives. The respondent claims that the court violated the Code of Judicial Conduct in that an appearance of impropriety permeated the trial and the court’s decision. More specifically, the respondent claims that the court (1) abused its discretion by failing to recuse itself and (2) failed to conduct an independent analysis of the best interests of the children. The respondent also claims that the court prejudged him and, therefore, the court’s denial of his motion to transfer guardianship to his sister must be reversed. We affirm the judgments of the trial court.

The following procedural history is relevant to this appeal. In April, 2011, the petitioner, the commissioner of children and families, filed three petitions, one each for Aziza, Jazira and Kifayeh (children), to terminate the parental rights of the respondent for failure to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, he could assume a responsible position in their fives. The petitions alleged that the respondent is the father of each of the children, that the department of children and families (department) had made reasonable efforts to reunify the children with the respondent and that the respondent was unable or unwilling to benefit from reunification. Since they were found to be neglected on July 10, 2006, the children periodically have been under the protective supervision of the department. They were committed to the custody of the petitioner on October 29, 2009, and specific steps were ordered for the respondent on September 28, 2010, to facilitate the return of the children to him. On July 28, 2011, the respondent filed a motion to transfer guardianship of the children to his sister, Lisa B.-J.

Trial was held on November 4, 7 and 17, 2011. In a memorandum of decision filed on January 6, 2012, the court granted the petitions to terminate the respondent’s parental rights on the ground of failure to rehabilitate and denied the motion to transfer guardianship to Lisa B.-J.

The court found that the respondent was bom in 1962. He completed the twelfth grade and served in the Army from 1980 to 1983. He has been employed in the constmction industry and currently works in the delicatessen department of a Stop and Shop supermarket.

The respondent reported that he first had a girlfriend when he was eleven years old. When he was fourteen, he met “Peaches,” with whom he had a daughter. His relationship with Peaches lasted for eight months. At the age of fifteen, the respondent met Valerie, and they had two children during a four year relationship. When he was nineteen, the respondent began a two year relationship with Zelda, and they had one child. Although he reportedly was in a relationship with Zelda, the respondent also was seeing Takibah and her sister, Meta. The respondent and Meta had a child together. The respondent then met Linda, with whom he had a child, and Wendy, with whom he also had a child. The respondent met Lisa and married her in 1987. They had two children, but separated in 2000. In 2001, the respondent met Stacey S. when she was pregnant with the child of another man. The respondent claims that he has regular contact with all of his children and their mothers.

The respondent was arrested seven times between September 16, 1982, and July 2, 2009, including one arrest for each of the following offenses: operating a motor vehicle while his operator’s license was under suspension, sexual assault in the fourth degree, harassment in the second degree, criminal trespass, disorderly conduct, assault in the second degree and threatening, as well as violation of probation. In addition, he has two arrests for risk of injury to a child; three arrests for interfering with an officer/resisting arrest; four arrests for assault in the third degree; and five arrests for failure to appear. On June 13, 2009, the respondent was charged with assault in the third degree, breach of the peace in the second degree and risk of injury to a child arising from his assault of Stacey S., which took place in front of the children. He was incarcerated and ordered to have no contact with Stacey S. He was placed on probation on July 24, 2009, when he returned to the family home. He admits to trying marijuana when he was in high school but denies any history of substance abuse, although he tested positive for cocaine on May 13, 2011. He claims to drink beer socially.

The department has been involved with Stacey S. since December, 2001, due to issues of substance abuse, • transience, mental health problems, financial instability and, more recently, domestic violence. She was bom in 1972, graduated from the University of Hartford and, in 1996, received a master’s degree in political theory from the University of Connecticut. She has been employed as a teacher at a group home, a librarian and a paralegal. She also was employed by a mortgage company. At trial, the court found that her employment was of a more menial nature. Stacey S. has never married. She denies that she has any substance abuse issues. Prior to trial in November, 2011, she was extremely reluctant to submit to hair testing. Her Breathalyzer test on April 19, 2011, was positive for alcohol.

After college, Stacey S. was in a five year relationship and gave birth to a daughter who was adopted by a close friend. In 2001, she gave birth to a son fathered by a different man and entered into a relationship with the respondent. In 2002, the family moved to Washington, D.C., where Aziza was bom in 2003. Two years later, they moved to Las Vegas, where Jazira was bom. The family returned to Connecticut, and Kifayeh was bom in Rhode Island in October, 2006. Eric B., Jr., was bom in Connecticut in October, 2007. A nurse at the hospital informed the department that Stacey S. tested positive for cocaine and alcohol at the time Eric B., Jr., was bom. The petitioner assumed custody of Eric B., Jr., and in July, 2010, the parental rights of the respondent and Stacey S. as to Eric B., Jr., were terminated.

The court found that from time to time, the respondent and Stacey S. may have separated, but at the time of trial, they were involved in marriage counseling with a view toward marriage. The two of them continue to avoid the therapeutic programs scheduled by the department. They attend such programs sporadically, at best. The court found deep concern over their lack of attention (“no show, no call”) to substance abuse tests that were scheduled by the department. Since the respondent tested positive for cocaine on April 29,2011, he has avoided further testing and wears his hair too short to be tested.

The court made factual findings with regard to each of the children as well. Aziza was bom in Washington, D.C., in 2003. A multidisciplinary study was administered to her in November, 2009, and produced at-risk scores indicating that she has difficulty adapting to changing situations and environments. She sometimes stmggles to communicate effectively with others. Aziza attended the Abundant Family Counseling Center weekly from December, 2009, through May, 2010. Individual counseling helped her make the transition into her foster family. During therapy, Aziza reported being happy to see Stacey S. during visits, but also was scared and sad. She witnessed domestic violence in June, 2009. When Aziza was interviewed by department personnel, she reported that “Daddy doesn’t come home sometimes,” and, “sometimes Daddy is mad and angry and fights with mommy.” She has witnessed the respondent kick and scratch Stacey S. Aziza claimed that the respondent screamed at Stacey S. and the children, which scared her. She reported that the children hid “behind chairs, in our rooms, everywhere.”

Aziza lives in the same foster home with Messiah. Aziza transitioned to the foster home well. She has bonded with her foster mother, but expressed a desire to be at home with her parents. Mary M., her foster parent, has expressed a willingness to adopt Aziza if she becomes legally free for adoption. At the time of trial, Aziza was in the third grade and doing well.

Jazira was seven years old at the time of trial. She attended the Abundant Life Counseling Center from February through August, 2010, and her foster mother has reported positive changes in her behavior. Jazira has reported seeing violence in her home: “[D]addy picked up a chair and threw it at [MJommy,” which scared her. She was in the second grade and continues to make progress in all areas. She and her brother, Kifayeh, were placed together in the same foster home. She is bonded with Messiah and Aziza, whom she sees during supervised visitation, as well as on weekends.

Kifayeh was six at the time of trial and lives in the same foster home with Jazira. He, too, witnessed the domestic violence episode between his parents in June, 2009. He reported seeing Stacey S. being choked by the respondent. He is scared when his parents fight, cries because of it and hides under the kitchen table. When Kifayeh initially was placed with his foster mother, Nancy A., there were concerns because he cried for a long time before falling asleep. He received counseling to address that issue. Kifayeh was in the first grade at the time of trial and doing well. He is developmentally on target and presents no concerns. He visits with his parents, half brother and sisters weekly.

The court found by clear and convincing evidence that the department had made reasonable efforts to reunite the respondent with the children; some of the efforts were extraordinary. Time after time services and programs have been offered to the respondent, only to have him refuse to cooperate or leave the program before it was completed. He has not shown the ability to gain insight into his failings as a parent and has proven unable to rehabilitate and provide the care that his children require. The respondent’s continued incarceration and the situations in which he finds himself at particular facilities make efforts extraordinarily difficult. The respondent is unwilling or unable to benefit from efforts because he has been unable to show progress in his rehabilitation with regard to mental health, substance abuse, parenting, anger management, domestic violence, housing and employment issues. The department has been involved with this family since 2006 when Stacey S. tested positive for cocaine while she was pregnant with Kifayeh.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Rafael S., 125 Conn. App. 605, 610-11, 9 A.3d 417 (2010).

The court cited the law that requires it “to find, by clear and convincing evidence, that the level of rehabilitation [the respondent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his children’s] life.” (Internal quotation marks omitted.) In re Anvahnay S., 128 Conn. App. 186, 195, 16 A.3d 1244 (2011). “[I]n assessing rehabilitation, the critical issue is not whether the [respondent has] improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the [children] at issue.” (Internal quotation marks omitted.) In re Sarah Ann K., 57 Conn. App. 441, 448, 749 A.2d 77 (2000). The court is to consider whether the age and needs of the children would support allowance of further time for the respondent to rehabilitate. See In re Luis C., 210 Conn. 157, 167-68, 554 A.2d 722 (1989). In determining whether further allowance of a reasonable period of time would promote rehabilitation, a court may consider efforts made since the date of the filing of the petition to terminate parental rights. In re Sarah M., 19 Conn. App. 371, 377, 562 A.2d 566 (1989).

The court found that since 2001, the respondent had a history very similar to that of Stacey S.; see In re Messiah S., 138 Conn. App. 606, 53 A.3d 224 (2012); and that he would not be able to assume a responsible position in the lives of the children within a reasonable period of time. It also found that it is unclear how long the department has been involved with the respondent since his first child was bom when he was fourteen years old. The respondent fathered nine children with seven different women before becoming associated with Stacey S. in 2001. With Stacey S., he has fathered the children who are the subject of this appeal and one other child, for whom he consented to the termination of his parental rights. All of the respondent’s children who were bom prior to 2001 have been parented and supported by their respective mothers. The respondent claims that he has had and continues to have a relationship with all of his children and their families.

With regard to the respondent’s history of substance abuse, the court found that he has been extremely resistant, evasive and belligerent in his dealings with program providers and department personnel. He exhibits a secretive, untruthful character, and is distrustful of social workers. He lacks candor and at times displays a combative side. When the respondent was confronted on August 8, 2011, with the fact that he was talking to the children about returning to his home, he insisted that he could “speak anything he wanted with his children.” The department confirmed that the respondent had relayed to at least one of the children that the department was coming to take the children to the home of Lisa B.-J., who would return them to the respondent and Stacey S. The court found the respondent’s actions disconcerting and disruptive to the well-being of the children.

Throughout his involvement with the department, the respondent has tested positive for cocaine, including on April 29 and May 13, 2011, despite the programs and services offered to him. He attends such programs sporadically, if at all. The respondent refused to authorize a request for hair segmentation testing made by the department. Since May 13, 2011, the department made at least twenty attempts to schedule substance abuse testing for the respondent and Stacey S., but neither of them appeared at the scheduled time or had an excuse for not participating.

The court found that court-ordered specific steps for the respondent were issued on September 28, 2010, to facilitate reunification of the children. The respondent has been noncompliant overall. He has not permitted home visits since March 13, 2010. He has refused to attend most counseling arrangements, recently refused substance abuse testing, has not made progress toward identified goals, has been resistant to signing releases and has been involved in the criminal justice system. On June 16, 2009, the respondent was charged with assault in the third degree, breach of the peace in the second degree and risk of injury to a child when he physically assaulted Stacey S. As a result of the assault, a full protective order was issued against the respondent. When the protective order expired, the respondent was placed on two years of probation. On January 5, 2010, the respondent’s probation officer informed the department that the respondent was discharged unsuccessfully from the domestic violence counseling ordered as a condition of probation because he had attended only four out of nine sessions. The respondent later completed the twenty-six week program.

The court found that, although a witness from Community Health Services testified that the respondent had produced negative urine tests for more than two years, during that time, testing of the respondent’s hair was positive for cocaine. The respondent has evaded hair testing and has ongoing issues maintaining sobriety. The children have witnessed domestic violence at home, which causes them to run and hide. The court found that the respondent is unable to safely parent his children, who need a safe, nurturing home environment. The respondent has not successfully rehabilitated from abusing illegal substances and has been physically abusive to Stacey S. The court concluded that the children are in need of a permanent home.

The court found “interesting” that the attorneys for the children, Stacey S. and the respondent, argued that granting guardianship of the children to Lisa B.-J. was in the best interests of the children rather than reunification with the respondent and Stacey S. The court found it abundantly clear that the children “desperately” require stability, especially given their ages: eight, seven and six. The continued uncertainty of their future has a traumatic effect on them, and the respondent’s suggestion that reunification is the ultimate intention, is “devastating” to their well-being.

The court noted that a parent’s failure to appreciate the risks to children posed by the other parent’s having access to them can provide a sufficient legal basis to find that the parent has failed to rehabilitate. See In re Ellis V., 120 Conn. App. 523, 533, 992 A.2d 362 (2010). A parent who remained in an unstable and chaotic relationship has been found to have failed to rehabilitate. In re Samantha C., 268 Conn. 614, 624-25, 847 A.2d 883 (2004). The court found that, although there was some evidence that the respondent and Stacey S. had separated, there was ample evidence that they still are in an intimate relationship. The testimony was undisputed that the respondent not only minimizes his own substance abuse issues, but also Stacey S.’s. Counsel for Stacey S. acknowledged that she is a “functioning addict,” “an addict in recovery” and that “she did the best she could” in the programs offered to her.

The court found by clear and convincing evidence that the petitioner had proved the statutory ground that the respondent had failed to rehabilitate. He did not comply fully with the steps ordered by the court on September 28, 2010. During a hearing on a motion to compel, he was ordered to sign releases permitting the department to obtain information. On April 29, 2011, he tested positive for cocaine use.

The court also made the findings required by § 17a-112 (k), particularly that the respondent, Stacey S. and the children have a bond. The children see their parents on weekends, engage in special visits and participate in telephone conversations. The children also have a bond with their foster parents, who are sisters. The foster parents often visit each other’s homes to ensure that the children remain bonded. The children all attend the same school. The court found that it was in the best interests of the children to terminate the respondent’s parental rights. The court did so by applying the appropriate legal standards to the clear and convincing facts of this case.

In its memorandum of decision, the court also ruled on the respondent’s motion to transfer guardianship of the children to Lisa B.-J., his sister. During final argument, counsel for the respondent and the children urged the court to grant the motion to transfer guardianship. The court made the following findings. At some earlier time, the department assessed whether Lisa B.-J. could be a resource as the children’s guardian. At that time, she was not considered to be a suitable placement because one of her own children was involved in the criminal justice system. When Lisa B.-J.’s troubled child left her home, she obtained a foster care license. The court opined that obtaining a license to become a foster parent, however, is just the beginning and that child placement is contingent on many additional factors that Lisa B.-J. had not addressed.

On the basis of Lisa B.-J.’s testimony, the court found that she knew the children, had visited them on occasion, was employed and maintained a comfortable home. The main reason she wished to be named guardian of the children, however, was to help the respondent, when she learned that he was in trouble. She has not considered how she would parent the children, given their specific needs. Moreover, the court found that Lisa B.-J. did not know that Eric B., Jr., had been removed from his parents’ care and adopted. She also did not seem to be aware that the respondent had other children who have been in the care of their mothers since each of them was bom. She was not interested in knowing that the respondent became a father when he was fourteen years old or that he lived the better part of his forty-nine years without having to support, provide housing for or parent his other children in any meaningful way.

On more than one occasion, the children reported that Lisa B.-J. had told them that she wanted to be their guardian so that they could be returned to their parents. The respondent also led the children to believe that they would be returned to him and Stacey S. if Lisa B.J. were their guardian. The court found that the respondent had something other than permanency in mind when he admitted making those statements to the children and insisted that he would continue to tell them whatever he desired. The court found, however, that it was “abundantly clear” that Lisa B.-J. has very little knowledge with regard to the children and was interested only in helping her brother. The court concluded that Lisa B.-J.’s goal was not to provide a meaningful family situation with permanency, stability and the chance for a productive future for the children. The foster parents, however, could make those opportunities possible. The foster parents care for the children extremely well and are bonded with them. The court denied the motion to transfer guardianship to Lisa B.J. The respondent appealed.

On appeal, the respondent claims that an appearance of judicial impropriety permeated the trial and the court’s decision in violation of rule 2.2 of the Code of Judicial Conduct. The respondent claims that the court (1) abused its discretion by denying the “respondents’ ” motion for recusal, (2) violated the principles of impartiality and fairness when it copied its best interest analysis from prior unrelated cases and failed to conduct an independent analysis of the best interests of the children as required by § 17a-112 (j) (2), and (3) denied his motion to transfer guardianship of the children to Lisa B.-J. We affirm the judgments of the trial court.

Our review of the record discloses that although the court at times was impatient with all counsel, sarcastic and gruff, a judicial temperament that is inappropriate for the trial court, the court’s memorandum of decision reveals that the court’s findings and legal conclusions are supported by evidence in the record. Unlike the case of In re Nathan B., 116 Conn. App. 521, 977 A.2d 224 (2009), the record does not disclose that the court had prejudged the respondent’s credibility or the matter before it.

I

The respondent first claims that the court abused its discretion “in denying the respondents’ motion for recusal after asking questions of the [department] witness that demonstrated bias toward” the petitioner’s case. Because the respondent failed to preserve this claim at trial, we decline to afford it review.

The respondent points to several portions of the transcript as the basis of his claim. The portions identified by the respondent reveal that the court interjected questions during the cross-examination of a department supervisor by counsel for Stacey S. and criticized the manner in which counsel was questioning the witness. The transcript of the second day of trial reveals the following:

“The Court: You know, all these questions you answer yes or no. Go ahead. You’re just giving her some latitude here because the question you are asking is way beyond what a worker or what a supervisor does. It’s done up here. But go ahead. What are you looking at him for?
“[Counsel for Stacey S.]: Your Honor, I—
“The Court: No, I would like to know. I just want you to move along. How are [you] going to ask another question if you wait a minute or so to ask another question? Please move on.
“[Counsel for Stacey S.]: If I could just have a second?
“The Court: Let’s take a ten minute recess.
* * *
“The Court: The court recessed so [counsel for Stacey S.] and [the respondent’s counsel] could confer. And now they’re back.
“[Counsel for Stacey S.]: It’s with a heavy heart, Your Honor, that I must respectfully request the court to recuse itself.
“[The Petitioner’s Counsel]: Oh, come on.
“The Court: Denied. I’ve heard this four or five times, and you take an appeal. That’s what you do.
“[Counsel for Stacey S.]: If I could state the reasons, my reasons?
“The Court: State your reasons.”

Only counsel for Stacey S. asked the court to recuse itself. Counsel for the respondent did not join in the oral motion for the court to recuse itself and did not later file a written motion asking the court to recuse itself but continued trying the case to its completion without seeking to have the court recuse itself. By failing to ask the court to recuse itself, the respondent failed to preserve his own claim of judicial bias for appeal. See, e.g., Doody v. Doody, 99 Conn. App. 512, 522-23 and 522 n.8, 914 A.2d 1058 (2007); Practice Book § 1-23.

Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Emphasis in original; internal quotation marks omitted.) In re Emerald C., 108 Conn. App. 839, 852 n.9, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150 (2008). Because the respondent failed to seek the recusal of the court at trial, we will not review his claim on appeal.

II

The respondent’s second claim is that the court “violated the principles of impartiality and fairness when it copied its best interest analysis from prior unrelated cases and failed to conduct any meaningful independent analysis of the best interests of the children as required by § 17a-112 (j) (2).” Although the respondent articulated the issue as one of partiality and fairness, claiming that the court failed to conduct any meaningful analysis of the best interests of the children, the substance of the argument in his brief is that the court did not “[weigh] the children’s strong desire to return to their parents, and the significant benefit to the children of the relationship they have with their parents . . . .” We decline to address the issue as stated, and we disagree with the substance of the argument that was briefed.

The essence of the respondent’s argument is that the court did not weigh the evidence according to his wishes. Regardless of how the court stated its findings and conclusions, our review of the entire memorandum of decision demonstrates that the court was aware of the evidence presented. The court’s conclusion that termination of the respondent’s parental rights was in the best interests of the children is amply supported by the evidence presented by the petitioner. See In re Halle T., 96 Conn. App. 815, 828, 902 A.2d 670 (critical issue is not how court reported findings but whether there is sufficient evidence in record provided by petitioner), cert. denied, 280 Conn. 924, 908 A.2d 1087 (2006).

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citation omitted; internal quotation marks omitted.) In re Sheena I., 63 Conn. App. 713, 719, 778 A.2d 997 (2001). Importantly, the respondent has not challenged the court’s finding that he failed to rehabilitate or its findings made pursuant to § 17a-112 (k). In his brief, he concedes that he continues to deal with substance abuse, but claims that he has made improvements.

The respondent specifically claims that the court in its analysis failed to consider the testimony of the children’s foster parents or the attorney for the children. We disagree. “The court’s decision must be read and construed in its entirety.” Mafcote Industries, Inc. v. Gannicott Ltd., 60 Conn. App. 393, 396, 759 A.2d 153 (2000); see also In re G.S., 117 Conn. App. 710, 719, 980 A.2d 935 (review court’s decision in its entirety), cert. denied, 294 Conn. 919, 984 A.2d 67 (2009).

In its memorandum of decision, under the heading of “failure to rehabilitate,” the court stated in part: “It is extremely interesting to the court that during final argument by the attorneys for the children, and [for the respondent and Stacey S.], all felt that the granting of guardianship to . . . Lisa B.-J. was in the best interests of the children, rather than reunification with the parents (although protective supervision was also mentioned). . . . These children have formed bonds with their respective foster parents, who happen to be sisters, and have a remarkable relationship with each other, which transfers to the children. The foster parents are willing to adopt the children and are agreeable to maintaining a relationship with the children’s parents. The children are in need of permanency and stability in their lives, and this is not possible with [Stacey S.’s] unresolved issues.”

As to the respondent, the court found that he continued to test positive for cocaine use up to April 29, 2011, and afterward evaded scheduled hair tests. He continues to have issues maintaining sobriety. The children have disclosed that they witnessed domestic violence in the home that causes them to run and hide. The respondent is unable to parent safely his children and has not rehabilitated from abusing illegal substances and has been abusive physically to Stacey S. The court concluded that the children are in need of a safe, nurturing environment and a permanent home. The respondent does not dispute the court’s factual findings, and he does not dispute that the evidence supports those findings.

The court recognized the bond between the respondent and the children when it made the following finding as required by § 17a-112 (k): “Mother, [the respondent] and the children appear to have a bond. The children see their parents weekly, have engaged in special visits and participate in telephonic conversations. The children also appear bonded to their foster parents. The foster parents are sisters, and they often visit in each other’s homes to ensure that the children remain bonded. The children all attend the same school.” Given the portions of the memorandum of decision cited herein, we conclude that the court did, in fact, consider the wishes of the children and the counsel for all parties. The court considered, in conjunction with the evidence, the criteria that it must consider in any termination of parental rights case.

Contrary to the respondent’s argument, the court is not required to accept his view of the evidence. “[I]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed. . . . The function of the appellate court is to review, and not retry, the proceedings of the trial court.” (Internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 700, 1 A.3d 157 (2010).

The fact that the respondent does not challenge the court’s having found by clear and convincing evidence that he has a serious substance abuse problem, that he minimizes Stacey S.’s numerous issues that she has failed to address and that he cannot provide a safe environment for the children undercuts his argument that termination of his parental rights is not in the best interests of his children. The respondent also ignores the fact that the court was aware of the children’s bond with their parents as well as the fact that the children’s foster parents supported that bond and do not want it broken. To that end, the court knew that the foster parents are willing to permit the children to remain in contact with the respondent and Stacey S. For all of these reasons, we conclude that the court did not fail to consider the relationship the children have with their parents, the testimony of the foster parents and the arguments of counsel.

Ill

In his third claim, the respondent claims that the court prejudged him and, therefore, its denial of his motion to transfer guardianship of the children to Lisa B.-J. must be reversed. Not only did the respondent fail to raise the claim at trial, thus preserving it for review, he also failed to adequately brief his claim.

In his brief, the respondent states, “[a]s set forth more fully above, the appearance of impropriety calls for a reversal of the court’s denial of the [respondent’s] motion.” The respondent states that the court demonstrated bias toward him. As we stated in part I of this opinion, the respondent never asked the court to recuse itself. His briefing of this is one page in length. It contains no specific facts or references to the pages of the transcript; see Practice Book § 67-4 (d); and other than citing General Statutes § 46b-129 (j), which requires that the transfer of guardianship be in the best interest of the child, his brief cites no law that is analyzed with respect to the facts of this case.

Despite the lack of preservation and the inadequacy of the respondent’s brief, we nonetheless conclude that the respondent’s claim lacks merit. The respondent does not challenge the court’s findings, by clear and convincing evidence, that (1) the children were found in a prior proceeding to be neglected, (2) the department made reasonable efforts to reunite him with the children, (3) specific steps were ordered for him, (4) he failed to rehabilitate and (4) termination of his parental rights is in the best interests of the children. See General Statutes § 17a-112 Q). The court’s written decision denying the respondent’s motion to transfer guardianship to Lisa B.-J. is devoid of any evidence of bias and is amply supported by the evidence in the record that the respondent sought the transfer of guardianship to Lisa B.-J. as a conduit for returning the children to him and Stacey S. “It is an elementary rule of law that the fact that a trial court rules adversely to a litigant, even if some of these rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias.” (Internal quotation marks omitted.) Wendt v. Wendt, 59 Conn. App. 666, 694, 767 A.2d 1226, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). In this case, we find no erroneous rulings or bias and conclude that the court properly denied the motion to transfer guardianship.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the children’s mother, Stacey S., also were terminated by the court. See In re Messiah S., 138 Conn. App. 606, 53 A.3d 224 (2012). Stacey S. is not a party to this appeal. In this opinion, we refer to Eric B. as the respondent.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... (3) ... (B) the child . . . has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       Counsel for the children has adopted the position of the respondent.

       The court found that the department had made reasonable efforts to reunify the children with the respondent and that the respondent is unable or unwilling to benefit from reunification. On appeal, the respondent does not challenge those two findings of the court.

       The respondent claims to be the psychological parent of the child, Messiah.

       Rule 2.2 of the Code of Judicial Conduct provides: “A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.” The respondent relies specifically on comment (1), which states: “To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.”

       We have quoted the respondent’s claim as articulated in his brief. Although he used the plural possessive “respondents’,” the record demonstrates that he did not ask the court to recuse itself.

       See footnote 7 of this opinion.

       Stacey S. also appealed from the termination of her parental rights as to the children. In her appeal, she claimed that the court abused its discretion by denying her motion to recuse. Because she raised the claim at trial and the court ruled on it, it was preserved for appellate review. We reviewed her claim, but found that the court did not abuse its discretion by denying the motion to recuse. See In re Messiah S., supra, 138 Conn. App. 622-628.

       We decline to review the fairness and impartiality issue because the respondent’s brief is devoid of any legal analysis as to that claim. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Statewide Grievance Committeev. Rapoport, 119 Conn. App. 269, 280, 987A.2d 1076, cert. denied, 297 Conn. 907, 996 A.2d 639 (2010).
      In her appeal, Stacey S. claimed that “when undertaking its analysis of the best interests of the children, the court copied ‘almost word-for-word’ the analysis it used in prior unrelated and factually distinct cases.” In re Messiah, S., supra, 138 Conn. App. 628. We rejected her claim. Id., 633.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    WILLIAM S. BAILEY v. VERNON L. LANOU, JR.
    (AC 33632)
    Gruendel, Sheldon and West, Js.

      Argued March 12
    officially released October 16, 2012

      Keith Yagaloff, for the appellant (defendant).

      Matthew E. Willis, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

This case is about a paved driveway. The defendant, Vernon L. Lanou, Jr., appeals from the judgment of the trial court in favor of the plaintiff, William S. Bailey. He claims that the court (1) made erroneous factual findings, (2) improperly admitted and credited the testimony of the plaintiffs expert, (3) rendered an erroneous award of damages, (4) improperly awarded the plaintiff damages pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (6) erroneously awarded the plaintiff attorney’s fees. We dismiss for lack of a final judgment that portion of the appeal contesting the award of attorney’s fees and otherwise affirm the judgment of the trial court.

In its memorandum of decision, the court found the following relevant facts. The plaintiff owns real property known as 33 Knowles Road in Middle Haddam. The defendant is a paving contractor who employed his son, Keith Lanou, among other individuals. On August 20, 2008, Keith Lanou submitted a written proposal to the plaintiff on behalf of the defendant to construct a paved driveway and cart path on the property. That proposal stated that the defendant was a licensed home improvement contractor. On August 26, 2008, the parties entered into a written contract. Its plain terms provided that the defendant would excavate the existing driveway and then install a six to eight inch base of reprocessed stone for the new driveway and cart path. After permitting that base to settle for a period of one month, the new driveway was to be paved with “class II bituminous” asphalt. The contract further provided that “[a]ll material is guaranteed to be as specified, and the above work to be performed . . . and completed in a substantial workmanlike manner for the sum of . . . $25,000 . . . .” When the parties modified the contract approximately two weeks later to encompass additional work, the contractprice was increased to $31,300.

Like the written proposal, the contract represented that the defendant was a licensed home improvement contractor, listing “CT LIC. 645061” under the defendant’s address. The court specifically found that “[t]he plaintiff relied upon the representation that the defendant was a licensed home improvement contractor. When the contract was executed and when the work was performed, the defendant was not a licensed home improvement contractor as required by law.”

The court found that “ [t]he excavation and placement of the driveway base materials was performed in September, 2008. The paving was done in October, 2008. The driveway is approximately 10,000 square feet in size. It took a number of truck loads of asphalt to pave this large area. The paving process involved the placement of hot asphalt into a paving machine. This machine then spreads out the material. The asphalt is then rolled. There are times when hand raking also is required. There were four men performing the paving work— [the defendant], Keith Lanou, and two other employees. The plaintiff was present while the paving was taking place. He observed that some of the asphalt contained much larger stones than specified in the class II [bituminous asphalt] mix. The plaintiff also observed that it contained other contaminates such as pieces of rubber material. The plaintiff requested that the defendant reject truck loads containing the larger stones and contaminates. The defendant refused this request. Most of the substandard asphalt was paved in . . . [an] area [that] is approximately 2500 square feet in size. The defendant’s workers attempted to remove the large stones by picking them out of the pavement. This was unsuccessful because of the significant [number] of large stones. The large stones give the driveway a rough and coarse appearance.

“It is extremely important to roll the driveway when the asphalt material is at the optimum temperature. If asphalt is rolled when it is either too hot or cold, it produces unacceptable results. This requires effective job planning which includes coordination of asphalt deliveries with the pace of the work being performed on the site by the paving machine and roller. A paving machine spreads asphalt in strips of pavement up to thirteen feet in width. It is then rolled and compacted by a roller. If the asphalt is rolled when it has cooled, it produces a cold seam between the adjoining strips of pavement. A cold seam is visible and is more likely to crack over time. Cold rolled pavement also produces what is referred to as ‘orange peel flaking.’ This is a condition in which you have rough areas with loose paving stones. If asphalt is rolled when it is too hot, it stretches the material and produces a rough and unacceptable surface. Asphalt which is rolled either too hot or cold does not result in proper compaction of the material.

“The plaintiffs driveway was paved over a period of two days. The work was slowed because at times the [defendant’s] roller was not working properly and was unable to keep up with the pace of the work. Many areas of the driveway were cold rolled. This resulted in improper compaction, numerous cold seams, loose stones, and a rough and coarse appearance. The driveway was not installed in a workmanlike manner in accordance with standards in the paving industry.”

The plaintiff paid the defendant $30,300 for the work performed. Although the parties thereafter had numerous discussions concerning corrective work on the driveway, no agreement was reached.

The plaintiff commenced the present action in March, 2010. His three count complaint alleged negligence, breach of contract and a CUTPA violation on the part of the defendant. In response, the defendant filed an answer with ten special defenses, as well as a counterclaim alleging breach of an implied covenant of good faith and fair dealing, breach of contract and defamation on the part of the plaintiff. Following a two day bench trial, the court found in favor of the plaintiff on all of his claims, the defendant’s special defenses and the defendant’s counterclaim. On the issue of damages, the court found that the defendant had failed to fulfill his obligations to construct the driveway “in a substantial workmanlike manner” and with the material “guaranteed to be as specified . . . .” It further found that “[t]he credible evidence proves that the driveway can be satisfactorily repaired by removing defective pavement in the areas adjacent to the garage and bam, then repave the driveway. The cost to perform this work is $18,000. The plaintiff has proven his entitlement to damages in this amount.” The court declined to award punitive damages but indicated that “[i]f the plaintiff seeks attorney’s fees pursuant to [General Statutes] § 42-1 lOg (d), his counsel shall submit an affidavit of attorney’s fees along with contemporaneous records no later than June 1, 2011.” The defendant subsequently filed a motion for reconsideration on May 31, 2011. The plaintiff filed an objection to that motion, which the court sustained, and this appeal followed.

I

The defendant first assails numerous factual findings made by the court, which do not merit substantial discussion. We conclude that all of the challenged findings are supported by the record before us and address specifically the defendant’s claims that the court erroneously found that (1) the paved driveway contained material other than class II bituminous asphalt and (2) the paved driveway was improperly rolled.

It is axiomatic that “[t]his court will not reverse the factual findings of the trial court unless they are clearly erroneous.” Solomon v. Connecticut Medical Examining Board, 85 Conn. App. 854, 865, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003).

A

The defendant claims that the court erroneously found that the paved driveway contained material other than class II bituminous asphalt. To the contrary, the record contains ample evidence substantiating that finding. The deposition testimony of the plaintiffs expert, Michael Airoldi, was presented at trial. Airoldi testified that, on the basis of his firsthand inspection of the driveway and his examination of numerous photographs thereof, he observed large stones and rocks in the asphalt mix, as well as a piece of rubber. In particular, he opined that a portion of the driveway “was contaminated with stuff in it, bigger stones, rubber glob . . . .” He further testified that the large stones and debris that he observed in the paved driveway were not consistent with a typical class II bituminous asphalt mix. The plaintiff also introduced dozens of photographs — many of which contain a measuring tape for reference — that depict in graphic detail the condition of the paved driveway, including multiple photographs featuring large stones. In addition, a handwritten letter from Keith Lanou to the plaintiff dated August 12, 2009, was admitted into evidence. In that letter, he acknowledged that a portion of the driveway contained “the occasional large stone in the mix and two pieces of rubber . . . .” The plaintiff also introduced into evidence a piece of rubber, approximately four inches by one inch in size, that was removed from the driveway constructed by the defendant. On that evidence, the court reasonably could have found that the paved driveway contained material other than class II bituminous asphalt.

B

The defendant also claims that the court erroneously found that “substantial portions of the driveway were either cold rolled or rolled too hot. This has resulted in visible seams, rough surfaces and loose stone ‘orange peel flaking.’ In these areas, the pavement was not properly compacted.” Those findings are supported by the testimony of Airoldi, who explained that a cold seam “is where you pick up with a paver and go back and start another pass with a paving machine, that would be a joint between the two areas. Some of the joints I [saw on the plaintiffs driveway] were rolled too late, meaning it was coarser, more texture, rough looking, which will flake, the stones will flake if it is not rolled in properly. A smoother area would be an area that’s rolled in at the right time. And if it stretches and it’s smooth, it was rolled when it was too hot. . . . [Y]ou don’t want cold seams.” Airoldi testified that he observed “at least five” cold seams dining his inspection of the driveway that contained “loose stones, orange peeling, flaking.” Airoldi opined that the foregoing was caused by not being “rolled in properly” and that the flaking in particular was a result of “not getting the right compaction out of it . . . Asked why the plaintiffs “driveway looks the way it does,” Airoldi answered that “[t]he cold seams and the orange peel flaking is [because it was] rolled too late. Some areas are rolled a little bit too late, some areas in the driveway are rolled a little bit too early due to the fact that I see stretching in the blacktop. When blacktop stretches, it’s rolled too hot.” The plaintiff introduced into evidence multiple photographs that displayed those conditions.

Moreover, in his August 12,2009 letter to the plaintiff, Keith Lanou stated in relevant part: “The problem started when the wind came after we paved from the house garage into the large circle area. My roller started to run like crap misfiring and slowing down the rolling process which caused the worst of the problem areas. In order to keep going we had two torches going constantly to try to combat the wind and slow rolling. There is no way for you or I to turn back the clock or we would I can guarantee that. The only choice I had is to move forward, the material was already there and half of the largest span of pavement and largest seam is done. I need[ed] to continue so I can stop with a short seam to be able to heat and join the next day . . . .” That evidence further substantiates the court’s factual finding that portions of the driveway were improperly rolled. The finding, therefore, was not clearly erroneous.

II

The defendant next claims that court improperly admitted and credited the expert testimony of Airoldi. “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible.” (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002). “[T]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Concerning expert testimony specifically, the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court ... in considering the issues.” (Internal quotation marks omitted.) Russo v. Phoenix Internal Medicine Associates, P.C., 109 Conn. App. 80, 87, 950 A.2d 559 (2008).

The plaintiffs November 30, 2010 expert disclosure indicated that Airoldi would base his expert opinions and conclusions upon his education, background, training and decades of experience in the field of asphalt paving. That disclosure further stated that Airoldi “will testify regarding defects in the material and workmanship in relation to the driveway which was installed by the defendant, the cause of the defects and damages.” In his testimony offered at trial, Airoldi stated that he was a licensed home improvement contractor with twenty-five years of experience in the paving industry. He testified that he was “a master paving specialist.” Although he performed both residential and commercial paving projects, he estimated that 75 percent of his business was residential. On that testimony, the court reasonably could have concluded that Airoldi possessed special skills and knowledge directly applicable to the present dispute.

Our thorough review of the one hundred and thirty-four pages of Airoldi’s testimony, in which he provided detailed insight into the practice of paving a driveway, reveals that he possessed “knowledge, beyond the ken of the average [fact finder], that, as properly applied, would be helpful to the determination of an ultimate issue.” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). In particular, Airoldi offered testimony as to proper installation of a paved driveway in accordance with the standards and practices in the paving industry by, inter alia, explaining the dangers of rolling pavement either too hot or too cold and the consequences thereof, which included orange peel flaking, loose stones, cold seams and a rough and coarse finish on the driveway. As sole arbiter of credibility and the weight to be given specific testimony, the court was “free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). We cannot say that the court abused its wide discretion in admitting and crediting Airoldi’s testimony.

Ill

The defendant also contests the basis of the court’s award of damages. In its memorandum of decision, the court found that “[t]he credible evidence proves that the driveway can be satisfactorily repaired by removing defective pavement in the [affected] areas . . . then repav[ing] the driveway. The cost to perform this work is $18,000. The plaintiff has proven his entitlement to damages in this amount.” The defendant suggests that the court failed to consider less costly alternatives, such as seal coating. The record contains no indication that the court failed to do so. To the contrary, the court credited Airoldi’s testimony on how best to repair the plaintiffs driveway. Airoldi testified as follows:

“[The Plaintiffs Counsel]: So, in your opinion, how would you repair this problem, these problems?
“[Airoldi]: Well, you could infrared it, seal coat it, but then that’s just putting a Band-Aid on it because where the cold seam is, it’s going to be more apt to crack than if it was, you know, a hot seam. Or saw cut out areas, for proper run off, take [those] areas out and overlay the whole thing.
“[The Plaintiffs Counsel]: What would be the preferred method to make this driveway what it’s supposed to be?
“[Airoldi]: To cut out the areas and overlay it. Cut out the areas so you can get the proper water to run off in the right areas and take out whatever areas you need to take out and overlay the whole thing.”

Airoldi further estimated that the cost of the preferred method to repair the plaintiffs driveway was $18,000. In light of that testimony, which the court was free to credit, the court’s finding was not clearly erroneous.

IV

The defendant claims that the court improperly awarded the plaintiff damages under CUTPA because he failed to prove an ascertainable loss. We disagree.

“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he or she must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he [or she] must present evidence providing the court with a basis for a reasonable estimate of the damages suffered. . . . The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he [or she] has suffered an ascertainable loss due to a CUTPA violation. . . . An ascertainable loss is a loss that is capable of being discovered, observed or established. . . . The term loss necessarily encompasses a broader meaning than the term damage, and has been held synonymous with deprivation, detriment and injury. ... To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount. . . . A loss is ascertainable if it is measurable even though the precise amount of the loss is not known.” (Citations omitted; internal quotation marks omitted.) Marinos v. Poirot, 132 Conn. App. 693, 707-708, 33 A.3d 282 (2011), cert. granted on other grounds, 303 Conn. 940, 37 A.3d 154 (2012).

The court found, and the defendant does not dispute, that he was not a licensed home improvement contractor “[w]hen the contract was executed and the work was performed” on the plaintiffs property in violation of the Home Improvement Act (act), General Statutes § 20-418 et seq. The failure to comply with the act “is a per se violation of CUTPA by virtue of General Statutes § 20-427 . . . which provides that any violation of the [act] is deemed to be an unfair or deceptive trade practice.” A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990); see also New England Custom Concrete, LLC v. Carbone, 102 Conn. App. 652, 666, 927 A.2d 333 (2007). The only issue before us, therefore, is whether the court correctly concluded that the plaintiff proved that he suffered an ascertainable loss.

Once a violation of the act has been established, “the homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA.” Hees v. Burke Construction, Inc., 290 Conn. 1, 14, 961 A.2d 373 (2009). In the seminal case of Hinchliffe v. American Motors Corp., 184 Conn. 607, 612-13, 440 A.2d 810 (1981), our Supreme Court held that a plaintiff is not required “to prove a specific amount of actual damages in order to make out a prima facie case” under CUTPA. The court explained that “[w]henever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known. . . . When the product fails to measure up, the consumer has been injured; he has suffered a loss.” Id., 614. Accordingly, the court held that “[t]o satisfy the ‘ascertainable loss’ requirement, a plaintiff need prove only that he has purchased an item partially as a result of an unfair or deceptive practice or act and that the item is different from that for which he bargained.” Id., 614-15.

In its memorandum of decision, the court specifically found that the plaintiff “relied upon the representation that the defendant was a licensed home improvement contractor” in entering into the contract with the defendant. The court further found that, as a result of the defendant’s failure to fulfill his contractual obligations to construct the driveway in a substantial workmanlike manner and to utilize the specified material, the plaintiff was damaged. Stated differently, the plaintiff purchased the new driveway in part as a result of the defendant’s false representation that he was a licensed home improvement contractor, which driveway was different from that for which he bargained. On that basis, the court properly concluded that the plaintiff suffered an ascertainable loss. See Hinchliffe v. American Motors Corp., supra, 184 Conn. 614-15. As this court has observed, “the loss of a contract is an ascertainable loss.” Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 355, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).

We further are mindful that, like the complaint in Larobina v. Home Depot, USA, Inc., 76 Conn. App. 586, 595, 821 A.2d 283 (2003), the plaintiffs complaint here alleged the same conduct as the basis for both its breach of contract and CUTPA claims. In rejecting the claim that the plaintiff had not demonstrated an ascertainable loss, the court in Larobina stated: “We fail to see how the court could have concluded logically that the defendant’s conduct was such that it caused the plaintiff to suffer the loss of his contract, thereby entitling him to contract damages, yet the same conduct, while sufficient to establish a CUTPA violation, failed to constitute an ‘ascertainable loss’ for purposes of CUTPA.” Id., 596. We concur with that assessment.

V

As a final matter, we briefly address the defendant’s bald contention that the court erroneously awarded attorney’s fees to the plaintiff. It is undisputed that, at the time that the defendant filed the present appeal, the court had not acted on the plaintiffs May 17, 2011 request for attorney’s fees pursuant to § 42-1 lOg (d). See footnote 3 of this opinion. With respect to the award of attorney’s fees, we conclude that the defendant has not appealed from a final judgment.

Although neither of the parties raised a question as to the finality of the judgment, we do so sua sponte because it invokes this court’s subject matter jurisdiction. See, e.g., State v. Carey, 222 Conn. 299, 304-305, 610 A.2d 1147 (1992) (court may raise issue of subject matter jurisdiction sua sponte because it “involves the authority of a court to adjudicate the type of controversy presented by the action before it”). “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. . . . The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263 . . . .” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 793-94, 967 A.2d 1 (2009).

In Paranteau v. DeVita, 208 Conn. 515, 524 n.11, 544 A.2d 634 (1988), our Supreme Court stated that “[a] supplemental postjudgment award of attorney’s fees becomes final and appealable . . . not when there is a finding of liability for such fees, but when the amount of fees are conclusively determined. A finding as to liability only, prior to a determination on the issue of damages, is not a final judgment from which an appeal lies.” Relying on that precedent, this court has held that when “[i]t is undisputed . . . that the plaintiff filed her [appeal] before the amount of attorney’s fees had been conclusively determined,” the portion of the appeal pertaining to the award of attorney’s fees “was not taken from a final judgment.” McKeon v. Lennon, 131 Conn. App. 585, 611, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011); see also Sullivan v. Brown, 116 Conn. App. 660, 662-63, 975 A.2d 1289, cert. denied, 294 Conn. 914, 983 A.2d 852 (2009). In light of the foregoing, we conclude that the defendant has not appealed from a final judgment with respect to the award of attorney’s fees. We therefore dismiss that portion of the present appeal challenging, as clearly erroneous, the award of attorney’s fees.

The appeal is dismissed for lack of a final judgment with respect to the issue of attorney’s fees. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The operative complaint named “Vernon L. Lanou, Jr. d/b/a V. Lanou and Co.” as the sole defendant. “[T]he use of a fictitious or assumed business business name does not create a separate legal entity . . . [and] [t]he designation [doing business as] ... is merely descriptive of the person or corporation who does business under some other name .... [I]t signifies that the individual is the owner and operator of the business whose trade name follows his, and makes him personally liable for the torts and contracts of the business (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 135, 947 A.2d 261 (2008).

       The contract was admitted into evidence as the plaintiffs exhibit number five.

       The defendant filed this appeal on July 5, 2011, at which time the court had not determined whether to grant the plaintiffs May 17, 2011 request for attorney’s fees pursuant to § 42-110g (d). Nevertheless, our Supreme Court has held that “a judgment on the merits is final for purposes of appeal even though the recoverability or amount of attorney’s fees for the litigation remains to be determined.” Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988).

       The defendant also alleges that no evidence or expert testimony was provided as to the applicable standard of care, rendering the plaintiff unable to meet his burden of proof. He is mistaken. As the court specifically found, the “standard of care was established through the express terms of the contract,” which provides that the defendant’s work was to be “completed in a substantial workmanlike manner” and that “[a]ll material is guaranteed to be as specified . ...” In his expert testimony, Airoldi offered detailed testimony as to the proper installation of a paved driveway. Airoldi opined that, on his examination of “all of the problems” present as to the plaintiffs driveway, the defendant had not installed it in a workmanlike manner in accordance with the standards and practices in the paving industry. He further testified that the driveway contained materials other than class II bituminous asphalt, the material specified in the contract.

       The defendant also argues that the plaintiff failed to plead that he suffered an ascertainable loss as a result of the CUTPA violation. We reject that contention. His CUTPA count alleged that his acceptance of the defendant’s written proposal was based in part on the defendant’s representation that he was a licensed home improvement contractor. After specifying various manners in which the defendant failed to construct the driveway properly, the count alleged that the plaintiff “now must retain the services of another contractor to finish and/or remediate the services and materials previously rendered by the [defendant” and that “[a]s a result of the foregoing, the [defendant's negligence has caused monetary damages, delay and loss to the [p]laintiff.”

       Prior to oral argument before this court, we notified the parties that they should be prepared to address this final judgment issue.