author: MIHALAKOS, J.

text:
    MARIA MCMELLON v. WILLIAM MCMELLON
    (AC 29593)
    Haiper, Robinson and Mihalakos, Js.
    Argued April 20
    officially released August 11, 2009

      Campbell D. Barrett, with whom were Jon T. Kukueka and, on the brief, C. Michael Budlong, for the appellant (defendant).

      Robert L. Sweeney, Jr., for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

In this marital dissolution action, the defendant, William McMellon, appeals from the judgment of the trial court with respect to the court’s financial orders. The defendant claims that the court improperly awarded (1) lifetime alimony to the plaintiff and (2) $15,000 in attorney’s fees. We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant for our consideration of the appeal. The parties married on August 31, 2001, in San Jose, California. No minor children were bom of the marriage. In April, 2005, the couple purchased the marital home in Bran-ford using as the down payment proceeds from the sale of the plaintiffs condominium and an inheritance that the plaintiff had received. The plaintiff is employed full-time as a certified nurse’s assistant. The defendant was unemployed during the entire marriage due to an injury he received while previously working as an electrician. The defendant receives social security disability payments, workers’ compensation benefits, a pension and rental income. Both parties have retirement accounts. The dissolution proceeding was tried on December 7 and 12, 2007, and the court ordered the dissolution of the marriage and distribution of the parties’ assets, awarding to the plaintiff $325 per week in lifetime alimony, a cash award of $100,000 and $15,000 in attorney’s fees. This appeal followed.

We start with our well established standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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. . . .

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutoiy criteria. ... In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Citation omitted; internal quotation marks omitted.) Rubenstein v. Rubenstein, 107 Conn. App. 488, 493-94, 945 A.2d 1043, cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008). With this standard in mind, we now turn to the defendant’s claims.

I

The defendant first claims that the court abused its discretion when it awarded lifetime alimony to the plaintiff. Specifically, the defendant argues that the record contained insufficient evidence to support an award of lifetime alimony when the plaintiff was earning more than she ever had previously and when the marriage only lasted for six years. We disagree.

“Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes. . . . General Statutes § 46b-82 describes factors a court should consider in its decisions regarding alimony. The court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding[s] as to each statutory factor. . . . Nor need it give each factor equal weight.” (Citation omitted; internal quotation marks omitted.) Rubenstein v. Rubenstein, supra, 107 Conn. App. 495.

On appeal, the defendant’s argument against lifetime alimony focuses on two claims: (1) the fact that the plaintiff was earning more than she ever had previously and (2) the duration of the parties’ marriage. As to the plaintiffs earnings, the court only needs to look at the income of the parties as one of the numerous statutory factors it must consider. The court, however, is not required to consider a party’s current income in comparison to the party’s previous income; it is at the court’s discretion. See Vandal v. Vandal, 31 Conn. App. 561, 566, 626 A.2d 784 (1993) (“[i]n marital dissolution proceedings, under appropriate circumstances the trial court may base financial awards on the earning capacity rather than the actual earned income of the parties” [emphasis added; internal quotation marks omitted]). As to the duration of the marriage, we interpret this argument as an invitation to articulate a bright line rule as to how long a marriage must last for one party to be entitled to lifetime alimony. We decline that invitation. Instead, we must simply determine whether the court abused its discretion by granting an award of lifetime alimony on the basis of its findings as to the statutory factors enumerated in § 46b-82. We conclude that the court did not abuse its discretion.

General Statutes § 46b-82 provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

“General Statutes § 46b-82 describes circumstances under which a court may award alimony. The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. ... As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony.” (Internal quotation marks omitted.) Hughes v. Hughes, 95 Conn. App. 200, 210, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).

In the present case, in its memorandum of decision, the court articulated that all of the evidence was considered, as well as the provisions of General Statutes §§ 46b-62,46b-81 and 46b-82. The court determined that the plaintiffs weekly net income was $390.30 and the defendant’s weekly net income was $1082.44, not including voluntarily deferred payments from two pensions to which the defendant is entitled. Further, it found that the defendant’s behavior and substance abuse were significant factors in the breakdown of the marriage. The court also undertook a thorough examination of the assets of the parties and specified numerous assets that the defendant would be entitled to retain, including, inter alia, a workers’ compensation settlement, two investment properties and his retroactive benefits from his two pension plans.

It is clear from its memorandum of decision that the court was mindful of its obligation to consider the statutory factors in determining alimony. Given the court’s findings, which were supported by evidence in the record, we do not conclude that the court abused its discretion in issuing an alimony order of unlimited duration. We also do not conclude that the duration of the parties’ marriage was the only factor that the court considered in its alimony award. Although we are mindful that alimony is not meant to punish; Cleary v. Cleary, 103 Conn. App. 798, 807, 930 A.2d 811 (2007) (“alimony is not designed to punish, but to ensure that the former spouse receives adequate support”); we note that “[t]he trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case.” Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992). “There is no additional requirement that the court specifically state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor.” Rivnak v. Rivnak, 99 Conn. App. 326, 331, 913 A.2d 1096 (2007).

Our review of the record leads us to the conclusion that the court was mindful of the statutory factors in determining the alimony to be awarded to the plaintiff and we defer to the court’s broad discretion in determining the order. See Rubenstein v. Rubenstein, supra, 107 Conn. App. 495. We conclude, therefore, that the court did not abuse its discretion in awarding lifetime alimony to the plaintiff.

II

The defendant’s next claim is that the court improperly awarded attorney’s fees to the plaintiff. Specifically, the defendant argues that because the plaintiff had substantial liquid assets to pay her attorney’s fees without undermining the court’s other financial orders, the court’s order was punitive in nature and constituted an abuse of discretion. We disagree.

“[W]e may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion, for the trial court is in the best position to evaluate the circumstances of each case. . . . Because the trial court is in the best position to evaluate the circumstances of each case, we will not substitute our opinion concerning counsel fees or alter an award of attorney’s fees unless the trial court has clearly abused its discretion.” (Internal quotation marks omitted.) Rubenstein v. Rubenstein, supra, 107 Conn. App. 500.

“General Statutes § 46b-62 allows the trial court to order either [party] to pay the reasonable attorney’s fees of the other in any family relations matter. . . . Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. . . . In determining whether to allow counsel fees, the court must consider the statutory criteria set out in . . . §§ 46b-62 and 46b-82 and the parties’ respective financial abilities. ... An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did. . . .

“In making its determination regarding attorney’s fees the court is directed by ... § 46b-62 to consider the respective financial abilities of the parties. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . [T]o award counsel fees to a spouse who had sufficient liquid assets would be justified, if the failure to do so would substantially undermine the other financial awards.” (Citation omitted; internal quotation marks omitted.) Papa v. Papa, 55 Conn. App. 47, 57-58, 737 A.2d 953 (1999).

In its memorandum of decision, the court articulated that attorney’s fees are awarded at the discretion of the court and upon a finding by the court that “there are ample liquid assets with which to make the payment or failure to award attorney’s fees will undermine the court’s other financial orders.” The court further articulated that it had reviewed the fees charged by the plaintiffs counsel and found them to be fair and reasonable. Accordingly, the court awarded the plaintiff $15,000 in attorney’s fees. “[0]n appeal, it is not our function to decide anew whether requiring [a party] to pay her own counsel fees would have undermined the court’s other financial orders, but rather whether the record supports the court’s conclusion in that regard.” Pacchiania v. McAree, 94 Conn. App. 61, 71, 891 A.2d 86, cert. denied, 278 Conn. 922, 901 A.2d 1221 (2006). In the present matter, the court articulated the discrepancy between the parties’ net incomes as well as their assets and ordered a lump sum payment of $100,000 to be paid to the plaintiff. The findings of the court support the court’s conclusion that to deny an allowance of attorney’s fees to the plaintiff would undermine the financial orders. Accordingly, we conclude that the court did not abuse its discretion in awarding attorney’s fees to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    SCOTT LEWIS v. COMMISSIONER OF CORRECTION
    (AC 29760)
    Flynn, C. J., and Lavine and Borden, Js.

      Argued February 10
    officially released August 11, 2009

      Scott Lewis, pro se, the appellant (petitioner).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Christopher T. Godialis, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Scott Lewis, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court improperly concluded that (1) he failed to prove that the state suppressed evidence of an agreement with a witness, (2) his claim that his conviction was the product of perjured testimony was not an independent or freestanding claim on which relief could be granted in a habeas proceeding and (3) newly discovered evidence did not establish his actual innocence of the crimes of which he was convicted. We dismiss the appeal.

In 1995, following a jury trial, the petitioner was found guilty and convicted of two counts of murder in violation of General Statutes §§ 53a-8 and 53a-54a, and two counts of felony murder in violation of General Statutes § 53a-54c. He received a sentence of 120 years in prison. The relevant factual history was recounted extensively in our Supreme Court’s decision disposing of the petitioner’s direct appeal, and we set forth only the most relevant facts.

“In 1990, the [petitioner], Stefon Morant and Jeff Rochler were partners engaged in the sale of drugs .... Ovil Ruiz, the state’s key witness [in the petitioner’s and Morant’s trials], was involved in various aspects of the drug operation .... As part of this drug operation, one of the victims, Ricardo Turner, stored drugs and drug money in his second floor apartment at 634 Howard Avenue, New Haven. The other victim, Edward Lamont Fields, was Turner’s roommate. . . .

“[On] October 10, 1990, Ruiz . . . overheard a discussion between the [petitioner] and Morant in which they discussed the possibility that Turner might abscond with the money and drugs in his apartment .... [The petitioner], Morant and Ruiz drove to Howard Avenue. They arrived at the victims’ apartment building at approximately 4 a.m. [on October 11, 1990], . . . [The petitioner] then told Ruiz to keep the car running while [he] and Morant went upstairs to get the money and drugs. . . . [Both victims were shot.]

“On the same morning of October 11, 1990, Diane Basilicato, who lived in the second floor front apartment of the victims’ apartment building on Howard Avenue, returned home and entered her apartment shortly after 4 a.m. . . . Within a few minutes of entering her apartment, Basilicato heard five or six loud ‘bangs,’ and heard two people running down the stairs and out of the building.” State v. Lewis, 245 Conn. 779, 782-84, 717 A.2d 1140 (1998).

The petitioner’s first habeas petition was dismissed on September 19, 2001, and this court dismissed his appeal from that judgment. See Lewis v. Commissioner of Correction, 73 Conn. App. 597, 808 A.2d 1164 (2002), cert. denied, 262 Conn. 938, 815 A.2d 137 (2003). On January 11, 2008, the petitioner filed his second amended petition for a writ of habeas corpus. The habeas court denied the petition on February 5, 2008. On February 11, 2008, the petitioner filed a petition for certification to appeal from the judgment of the habeas court pursuant to General Statutes § 52-470. The court denied his petition for certification to appeal on February 13, 2008. On February 27, 2008, the petitioner appealed to this court following the denial of his petition for certification to appeal. Further facts will be set forth as necessary.

We set forth the appropriate standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616. “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., 612.

I

The petitioner’s first claim on appeal is that the habeas court improperly concluded that he failed to prove that the state suppressed evidence of its agreement with Ruiz at his criminal trial. Although the petitioner requests de novo review and claims that the court placed “an improper burden of proof upon [him] to establish [that] the evidence was suppressed”; (internal quotation marks omitted); the petitioner also relies on this court’s decision in Walker v. Commissioner of Correction, 103 Conn. App. 485, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007), and we therefore construe his claim to be that the court improperly concluded that he failed to prove suppression of exculpatory evidence by the state at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

The following additional facts are relevant. At the petitioner’s trial in 1995, Ruiz testified that he did not receive anything in exchange for his testimony from the prosecuting attorney or from the investigating detective, Vincent M. Raucci, Jr. On January 30, 2007, Ruiz testified at a hearing on Morant’s habeas petition. At that hearing, Ruiz refused to answer most of the questions posed by defense counsel by invoking his right against self-incrimination under the fifth amendment to the United States constitution. When defense counsel asked him, however, whether he was worried that the state might prosecute him for the murders of the victims, Ruiz stated that he had been told that nothing was going to happen to him if he cooperated. He testified that when he “went to the Feds, now, all of a sudden, indeed, they want to prosecute [him] on somethin’ else.” When the state attempted to cross-examine Ruiz, he again invoked his constitutional rights and refused to answer. The state declined to grant immunity to Ruiz in exchange for his testimony, and the court denied defense counsel’s motion to order the granting of immunity.

In addition to this evidence, the petitioner presented the habeas court with evidence that already was available to him when he filed his first habeas petition. A report prepared by the Federal Bureau of Investigation (FBI) on February 22, 1996, shows that Ruiz told FBI agents that he was threatened by Raucci and the prosecuting attorney, that he lied at the petitioner’s trial and that individuals named Frank Párese, Raul Luciano, Armando Luciano and a “Colombian only known as ‘Loco’ ” murdered the victims while Ruiz waited in the car. In another FBI report, prepared on October 24, 1996, Ruiz stated that he was present during the murders with Raul Luciano and Eloy Cruz, also known as Popi or Flocco, but that Ruiz actually killed Fields and Turner. Additionally, at a hearing held on October 25, 1999, in connection with one of Morant’s petitions, Michael Sweeney, a former member of the New Haven police department, testified that he and Raucci questioned Ruiz on January 13 and 14,1991, and that Raucci revealed certain facts regarding the murders to Ruiz. Sweeney also testified that Raucci spent time alone in the room with Ruiz and that Ruiz changed his statement about the murders several times.

In its memorandum of decision, the habeas court concluded that the petitioner failed to prove that the state had suppressed evidence against him. The court referred to the earlier portion of its memorandum, addressing a different count of the petition, where it questioned the truthfulness of Ruiz’ January 30, 2007 testimony and found that Ruiz had a “long history of recanting and repudiating his recantations.” The court additionally found that the petitioner failed to produce any evidence from state officials at the habeas trial to prove that the state in fact suppressed evidence of an agreement with Ruiz.

“To establish a claim under Brady, the petitioner must establish that (1) the evidence allegedly suppressed was favorable to the petitioner, either because it was exculpatory or impeaching, (2) the evidence was suppressed by the state, either wilfully or inadvertently and (3) prejudice resulted from its absence.” Wilson v. Commissioner of Correction, 104 Conn. App. 224, 232, 932 A.2d 481 (2007)

“The question of whether there existed an agreement between [a witness] and the state is a question of fact .... When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Walker v. Commissioner of Correction, supra, 103 Conn. App. 490-91. “A petitioner bears the burden of proving the existence of an agreement between the state or police and a state’s witness. . . . Any such understanding or agreement between any state’s witness and the state police or state’s attorney clearly falls within the ambit of the Brady principles. ... An unexpressed intention by the state not to prosecute a witness does not.” (Citations omitted.) Id., 493.

In support of his claim that the habeas court improperly found that there was no evidence of an agreement between the state and Ruiz, the petitioner refers to Ruiz’ January 30,2007 testimony, Sweeney’s October 25,1999 testimony and the FBI reports. The petitioner also notes that Ruiz was never prosecuted by the state for a different double murder.

We conclude that the habeas court’s finding was not clearly erroneous. The petitioner did not present testimony at the hearing on his habeas petition from either Ruiz or anyone from the office of the state’s attorney involved in the alleged deal. Contra Walker v. Commissioner of Correction, supra, 103 Conn. App. 491-92 (recanting witness, attorney for witness and detective testified at petition hearing). The fact that Ruiz has not been charged with the murders of Turner and Fields, or any other murders, is not evidence of an agreement between him and the state. See State v. Rucker, 177 Conn. 370, 376, 418 A.2d 55 (1979) (unexpressed intention by state not to prosecute witness is not understanding or agreement within ambit of Brady principles). Additionally, although Sweeney’s testimony suggests that Raucci disclosed information to Ruiz during the questioning, it does not provide any evidence of a deal between Ruiz and the state.

The only evidence, therefore, offered by the petitioner to establish the existence of an agreement between Ruiz and the state was Ruiz’ January 30, 2007 testimony and the statement Ruiz gave to FBI agents in 1996. The habeas court concluded that Ruiz’ credibility was undermined greatly by his numerous inconsistent statements. We defer to the court’s credibility determination and conclude, on the basis of our review of the evidence presented, that its finding that the petitioner failed to prove the existence of an agreement between Ruiz and the state was not clearly erroneous. See State v. Floyd, 253 Conn. 700, 740, 756 A.2d 799 (2000) (trial court’s factual finding that there was no implied agreement must stand where reasonable fact finder would not be compelled to conclude that there was implied agreement between witness and state).

II

The petitioner next claims that the habeas court improperly concluded that habeas corpus relief cannot be granted on a freestanding or independent claim that the petitioner’s conviction was a product of perjured testimony.

The following additional facts are relevant. In his petition, the petitioner alleged that Ruiz’ January 30, 2007 testimony that he had a deal with the state demonstrated that Ruiz committed perjury at the petitioner’s 1995 trial when he stated that he did not receive anything in exchange for his testimony. To support this claim, in addition to Ruiz’ January 30, 2007 testimony and the FBI reports discussed previously, the petitioner offered into evidence a letter purportedly sent to him by Ruiz in March, 1996, in which Ruiz expressed guilt over testifying against the petitioner and stated that he had been forced to do so by the prosecuting attorney, Raucci and others. We emphasize that the petitioner did not claim in his petition that the alleged perjury resulted in a violation of his constitutional rights and failed entirely to explain how it affected the outcome of his trial.

The habeas court concluded that because the petitioner had not alleged that the perjured testimony came through any intentional action by the state or through any deficient performance of his trial counsel, his perjury claim was an unadorned, newly discovered evidence count that might support a petition for a new trial, but that is not an independent claim on which relief can be granted in a habeas proceeding.

The question before us is whether the court properly concluded that an independent or freestanding claim of perjury is not a claim on which habeas corpus relief can be granted. It is a question of law over which we have plenary review. “Although a habeas court’s findings of fact are reviewed under a clearly erroneous standard of review, questions of law are subject to plenary review.” Tyson v. Commissioner of Correction, 261 Conn. 806, 816, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S. Ct. 1914, 155 L. Ed. 2d 836 (2003). “Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 65 Conn. App. 172, 175, 782 A.2d 201 (2001).

We conclude that the court’s conclusion is logically and legally correct. Our Supreme Court stated in Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994), that the “standards that generally govern a habeas corpus petition seeking a new trial are well established. ... To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.” (Citations omitted; internal quotation marks omitted.) Id., 419. Our Supreme Court also has held that “[h]abeas corpus provides a special and extraordinary legal remedy for illegal detention. . . . When a habeas petition is properly before a court, the remedies it may award depend on the constitutional rights being vindicated. . . . Further, any remedy must be commensurate with the scope of the constitutional violations that have been established.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 815, 786 A.2d 1091 (2002).

The pro se petitioner appears to argue here, on appeal, that the allegedly perjured testimony violated his due process rights. He did not, however, allege a violation of any constitutional right in connection with his perjury claim before the habeas court. He similarly did not explain to the habeas court, in his petition or at his habeas hearing, precisely how the alleged perjury affected the outcome of his trial. We are unaware of any precedent where either this court or our Supreme Court has held that an allegation of perjury, unaccompanied by an antecedent constitutional violation or an explanation of how that perjury affected the result of a trial, is a proper ground for seeking habeas relief.

We therefore conclude that the habeas court’s conclusion that the perjury count of the petitioner’s complaint failed to state a claim on which habeas corpus relief can be granted is legally and logically correct.

Ill

In his third and final claim on appeal, the petitioner asserts that the habeas court improperly concluded that the newly discovered evidence did not contribute to a showing of his actual innocence of the crimes. In his brief, the petitioner lists all the relevant evidence that was before the court and argues that, considered together, it demonstrates his actual innocence. We have reviewed all of the evidence on which the petitioner relies, and we agree with the habeas court.

The following additional facts are relevant. The petitioner introduced into evidence more than fifty items, lie emphasizes the following evidence on appeal. At his criminal trial, the petitioner attempted to introduce a police report prepared by Detective Vaughn Maher on November 24, 1990, which shows that Lieutenant Francisco Ortiz told Maher that an informant told Ortiz that an individual named Michael Cardwell confessed to murdering the victims. According to the report, Michael Cardwell told the informant that he murdered the victims while his brother, Vincent Cardwell, stayed outside to whistle when no apparent activity was on the street. Ortiz testified at the petitioner’s trial, but the trial court sustained the state’s objection to the introduction of the report into evidence because it concluded that the petitioner had not established that Michael Cardwell was an unavailable witness. State v. Lewis, supra, 245 Conn. 793-95, 799. Our Supreme Court held that the trial court did not abuse its discretion in excluding the report. Id., 809.

At a hearing on his habeas petition on December 3, 2007, the petitioner introduced a memorandum from the office of the state’s attorney dated June 9, 2005, which stated that Basilicato, who testified at the petitioner’s criminal trial and who resided in the same building as the victims at the time of the murders, identified in a photographic array the man she had encountered in front of the building at approximately 4 a.m. on October 11, 1990. The petitioner also submitted Basilicato’s testimony from April 25, 1995, which indicated that the man Basilicato met on October 11, 1990, was whistling at someone in one of the surrounding houses. The petitioner additionally introduced into evidence police reports from October 11, 1990. The relevant parts of those reports established that Michael Cardwell knew and was linked to the victims though drug dealing activities.

The habeas court concluded that the newly introduced evidence did not contribute significantly to showing the petitioner’s actual innocence. The court reasoned that the evidence that Basilicato identified Michael Cardwell as the person who had whistled outside the building on October 11, 1990, contradicted the evidence that the petitioner sought to admit at his criminal trial, namely, the informant’s statement that Michael Cardwell confessed to murdering the victims while Vincent Cardwell stood outside the building whistling. The court also noted that all the police reports that the petitioner introduced into evidence were fully available at the time of his trial.

In addition, the habeas court carefully reviewed what it construed to be a claim that the evidence of Ruiz’ perjured testimony demonstrated that the petitioner was actually innocent. See footnote 6. The court concluded that Ruiz’ January 30, 2007 statement that he had a deal with the state did not clearly and convincingly establish the petitioner’s actual innocence. The court found that the letter purportedly sent by Ruiz to the petitioner, in which Ruiz expressed guilt over testifying at the petitioner’s trial, was of dubious credibility because it was unsworn. The court also relied on State v. Lewis, supra, 245 Conn. 779, in which our Supreme Court stated that Ruiz was subject to expensive cross-examination by defense counsel at the petitioner’s trial regarding his mental health, including schizophrenia, the fires that he had started in prison and the antipsychotic drugs that he was prescribed. Id., 790. The court concluded that given the strong attacks on Ruiz’ credibility dining the cross-examination that did not cause the jury to reject his testimony, it is unlikely that the jury would have rejected Ruiz’ testimony with the additional evidence.

“In Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997), this court held that the proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).

Having reviewed the entire record before us, we conclude that the habeas court properly concluded that the petitioner could not prevail on his claim of actual innocence. The November 24, 1990 report was not admitted into evidence at the petitioner’s trial. Even if it were admissible and even if we were to assume that the person Basilicato identified in the photographic array was Michael Cardwell and that her identification was reliable, we also would agree with the court that the newly discovered evidence that Michael Cardwell was whistling in front of the building where the victims were murdered contradicts the November 24, 1990 report, according to which Michael Cardwell committed the murders while his brother stood outside the building whistling. Evidence submitted through the police reports indicating that Michael Cardwell was associated with the victims through drug dealing also fails to establish that the petitioner is actually innocent of the crimes of which he was convicted.

We similarly cannot conclude that the petitioner is actually innocent on the basis of what he claims to be Ruiz’ false testimony at his criminal trial. It is impossible for us to conclude, on the basis of all the evidence before us, which statements by Ruiz are false and which are truthful. We are therefore unable to determine whether Ruiz testified falsely at the petitioner’s criminal trial, when he testified that he had no agreement with the state, or at the January 30, 2007 hearing, when he testified that the state told him that nothing was going to happen to him if he cooperated. Ruiz testified at the petitioner’s trial against the petitioner, and, although he offered differing versions of the October 11, 1990 events since that trial, he also stated in 1997 that his testimony at the petitioner’s trial was the truth and that the petitioner had pressured him to fabricate the other statements. See footnote 5. In light of the fact that Ruiz was subjected to extensive cross-examination at the petitioner’s trial and the jury nonetheless credited his testimony, we cannot conclude that no reasonable fact finder would find the petitioner guilty of the crimes when faced with newly discovered evidence of Ruiz’ lack of credibility.

Moreover, all the evidence considered together is contradictory and does not demonstrate the petitioner’s actual innocence. Evidence that Michael Cardwell or Vincent Cardwell was whistling in front of the victims’ building, in combination with all of Ruiz’ inconsistent statements and recantations, does not establish by clear and convincing evidence that the petitioner is actually innocent. Ruiz never named Michael Cardwell or Vincent Cardwell as the perpetrator of the crimes in any of the inconsistent statements he gave throughout the years. We therefore agree with the court’s conclusion that the petitioner has failed to demonstrate by clear and convincing evidence that he actually is innocent of the crimes for which he was convicted and that no reasonable juror would find him guilty.

We conclude that the petitioner has not demonstrated that the issues raised with regard to his claims are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner’s second amended petition for a writ of habeas corpus set forth six counts, and the court’s memorandum of decision addressed all six counts. On appeal, the petitioner clearly states that he is appealing only from the habeas court’s judgment regarding counts three, five and six of his petition. We therefore address only those three counts.

       The Supreme Court reversed the trial court’s judgment in part and remanded the case with direction to combine the petitioner’s conviction of the two counts of felony murder with his conviction of the two counts of intentional murder and to vacate the felony murder sentences. State v. Lewis, 245 Conn. 779, 819, 717 A.2d 1140 (1998). In all other respects, the judgment was affirmed. Id.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       The petitioner submitted into evidence a transcript from October 25, 1999, as exhibit forty-one.

       The habeas court cited Morant v. State, 68 Conn. App. 137, 142, 151-54, 802 A.2d 93 (denial of petition for new trial), cert. denied, 260 Conn. 914, 796 A.2d 558 (2002). The court in that case described Ruiz’ statements addressed previously and added the following: “On February 16, 1997, Ruiz provided another statement to the FBI, in which he said that his prior two statements were false and that his testimony at the petitioner’s trial was the truth. He claimed that [the petitioner] had pressured him to fabricate the other statements.” Id., 154.

       The court proceeded to construe this count as an actual innocence claim and concluded that the petitioner failed to establish that he was actually innocent of the crimes of which he was convicted. We will not review that conclusion here because the petitioner set forth a separate count specifically alleging that newly discovered evidence established his actual innocence, which the habeas court reviewed in a separate part of its memorandum. We therefore will consider evidence of alleged perjury in part III, in which we review the court’s conclusion regarding the petitioner’s actual innocence claim.

       The following are the petitioner’s exact allegations as set forth in the third count of his habeas petition:
      “The petitioner states there is newly discovered evidence to support that said conviction was the product of perjured testimony. . . .
      “The state’s key witness, Ovil Ruiz, testified under oath that he received [no promises] from the state in exchange for his testimony against the petitioner at the criminal trial. . . .
      “The state’s key witness, Ovil Ruiz, on January 30,2007 under oath testified to the contrary, and was specific that he had an agreement with the state not to be prosecuted if he testified against the petitioner at the criminal trial. . . .
      “The state never rebutted the truth of that testimony of Ovil Ruiz, or cross-examined him concerning that testimony. . . .
      “There is also evidence in the form of a letter written by Ovil Ruiz, and analyzed by the [FBI] where Ruiz admits that his criminal trial testimony [was] false. . . .
      “There is further evidence that Ovil Ruiz in fact authored criminal trial exhibit Q1 (a threatening letter) to bolster the believability of his trial testimony against the petitioner.” (Citation omitted; emphasis in original.)

       The petitioner specifically claims that his right to due process of law under the federal and state constitutions was violated “when the habeas court erroneously concluded that a perjury claim, without alleging action of the state was not an independent claim upon which relief can be granted via habeas corpus . . .

       In his appellate brief, the petitioner relies on a case from the United States Court of Appeals for the Second Circuit, in which a habeas petitioner sought relief on the ground that his murder conviction was obtained on the perjured testimony of a purported witness to the crime. See Ortega v. Duncan, 333 F.3d 102, 103-104 (2d Cir. 2003). We note that the petitioner in that case, unlike the petitioner in the present case, alleged in his habeas petition that the allegedly false testimony at his trial violated his due process rights. Id., 105-106.
      Our conclusion that a freestanding perjury allegation is not a proper habeas claim is supported by the Ortega court’s statement that “[a] claim based on newly discovered evidence ha[s] never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. . . . We have held that a showing of perjury at trial does not in itself establish a violation of due process warranting habeas relief. . . . Instead, when false testimony is provided by a government witness without the prosecution’s knowledge, due process is violated only if the testimony was material and the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 108.
      Our review of the petitioner’s habeas petition and the transcript from the hearing shows that the petitioner did not claim before the habeas court that the alleged perjury violated his due process rights under the legal test outlined in Ortega or in any other state or federal case. In the absence of such a claim, a habeas court is unable to determine whether an allegedly false testimony was material and whether, but for that testimony, the petitioner would most likely not have been convicted.

       Basilicato testified regarding the June 9, 2005 identification at the petitioner's January 11, 2008 habeas hearing and at Morant’s January 30, 2007 habeas hearing.


author: ROBINSON, J.

text:
    DOUBLE G.G. LEASING, LLC v. UNDERWRITERS AT LLOYD’S, LONDON
    (AC 29998)
    DiPentima, Robinson and Alvord, Js.

      Argued April 28
    officially released August 11, 2009

      William A. Conti, with whom, on the brief, was Gregory T. Nolan, for the appellant (plaintiff).

      Lawrence A. Dugan, pro hac vice, with whom was Stephen O. Clancy, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Double G.G. Leasing, LLC, appeals from the summary judgment rendered by the trial court in favor of the defendant, Underwriters at Lloyd’s, London. The plaintiffs two count complaint alleged breach of contract and breach of the implied covenant of good faith and fair dealing. On appeal, the plaintiff claims that the court improperly concluded that there were no genuine issues of material fact as to whether (1) Carl Glatzel, Jr., the plaintiffs sole member, owner and manager, had filed federal and state income tax returns and had failed to provide them to the defendant, and (2) the plaintiffs submission to the examination under oath satisfied the substantial compliance standard. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history, taken from the court’s memorandum of decision granting the defendant’s motion for summary judgment, are relevant to our consideration of the plaintiffs claims. “At all relevant times . . . Glatzel . . . was the sole member, owner and manager of the [plaintiff]. On February 25, 2005, the [plaintiff] purchased real property in New Milford . . . from John R. Duda and the Judith H. Duda Living Trust (collectively ‘Duda’) on which was situated a vacant, two-family residential structure. The purchase price was $550,000. The purchase was financed largely by [John] Duda and secured by an open end mortgage on the property. The [plaintiff] obtained an insurance policy from the defendant that insured the [plaintiff] against, inter alia, physical loss or damage to the property by fire for the period of March 19, 2005, to September 19, 2005. Pursuant to the policy, the defendant agreed to provide coverage for the structure with a policy limit of $360,000 on a replacement cost basis. On April 24, 2005, less than five weeks after the commencement of the policy period, the building was destroyed by fires of incendiary origin that were ignited at two separate locations at the rear of the building with the use of flammable liquid accelerant. . . .

“By letter dated April 19, [2006], the defendant notified the plaintiffs attorney that it would require Glatzel’s examination under oath and production of documents at the examination. The plaintiffs attorney requested three continuances of the examination. After three more letters from the defendant’s attorney, Glatzel appeared for the examination on December 7, 2006. He answered many questions but stated that he did not know the answers to others and did not produce many of the requested documents at that time. He produced some documents subsequent to his examination. However, though he admitted at his examination that he had filed personal income tax returns, he never produced them.”

The complaint, filed April 23, 2007, alleged that the plaintiffs direct loss was approximately $350,419.99 and that the plaintiff had substantially and materially fulfilled all terms, conditions and requirements of the policy but that the defendant had not paid the loss and damage in accordance with the terms and conditions of the policy in breach of the insurance contract. The complaint further alleged that the defendant had issued excessive requests for records and documents during the course of its investigation of the fire for the purpose of unfairly impeding the plaintiffs right to receive benefits that it reasonably expected to receive under the contract and, therefore, had breached the implied covenant of good faith and fair dealing.

The defendant moved for summary judgment on September 26, 2007, on the ground that the action was barred because the plaintiff failed to comply with essential conditions of the contract concerning the insured’s duties after loss relating to the production of documents and records. The court determined that the defendant’s attorney had submitted a written request to the plaintiffs attorney by letter dated April 19, 2006, and made a demand that Glatzel and his father, Carl Glatzel, Sr., submit to examinations under oath on May 4, 2006, and that they bring certain documents with them on that date, including, but not limited to: “All state and federal tax returns, whether individual, joint, several, corporate, partnership or business filed by you or on your behalf or on behalf of any entity or business which employed you or in which you own any ownership interest (excluding an ownership interest solely by reason of stock ownership in a corporation which is publicly traded on a recognized stock exchange) for the period which includes calendar years 2001 through the present. ... All financial statements, books of account, general ledgers or other financial documents prepared or created by you or any other person or entity which pertain to your financial condition . . . ,”

The requested examination of Carl Glatzel, Jr., was rescheduled numerous times at the request of the plaintiffs attorney, delaying its commencement from May 5 to December 7, 2006. During the examination, the following colloquy took place:

“[The Defendant’s Counsel]: So, is it your testimony that all of the income that Twin Eagles Construction [a construction concern that Glatzel owns] has earned since at least 2001—

“[The Witness]: To the best of my knowledge, yes.

“[The Defendant’s Counsel]:—has been recorded on tax returns that were filed by you personally or by Twin Eagles Construction?

“ [The Witness]: I didn’t file, my accountant takes care of all the paperwork, I go out and do the jobs. When it comes to paperwork, I’m lost.

“[The Defendant’s Counsel]: You signed tax returns?

“[The Witness]: Oh, yeah.

“[The Defendant’s Counsel]: You have filed taxes?

“[The Witness]: Yes. To the best of my knowledge— I’ll call him and have him send the stuff to you, but you’re asking for numbers I don’t have, you know what I’m saying? I don’t know exact numbers to tell you, because I don’t know what they are. . . .

“[The Defendant’s Counsel]: Typically, how much do you pay in income tax each year?

“[The Witness]: Numbers, again. I don’t know what it is.

“[The Defendant’s Counsel]: . . . Have you paid income tax in each of the last five years?

“[The Witness]: I don’t know what was paid. I don’t know how much, if that’s what you’re getting at. I don’t have a number.

“[The Defendant’s Counsel]: My question was—

“[The Witness]: To the best of my knowledge, yes. I heard the question.

“[The Defendant’s Counsel]: To the best of your knowledge, you have paid income taxes, you just don’t know how much money.

“[The Witness]: Right.”

The topic also came up later during the same examination:

“[The Defendant’s Counsel]: That brings us exactly to the item two on exhibit A, which reads that you were requested to produce all financial statements, books of account, general ledgers or other financial documents prepared or created by you which pertain to your financial condition and that of any other corporation, partnership, entity or business which employed you or in which you own an ownership interest . . .

“[The Witness]: I didn’t read all that.

“[The Defendant’s Counsel]: . . . from January, 2001, to the present.

“[The Witness]: I thought he meant [the plaintiff].

“[The Defendant’s Counsel]: No, that’s ... let me just clarify, it reads specifically, which pertain to your financial condition or that of any other corporation, partnership, entity or business which employed you in which you own an ownership interest.

“[The Witness]: Well, I misunderstood it.

“[The Defendant’s Counsel]: Well, let me clarify that the request is directed to you, sir, as hundred percent owner of [the plaintiff], president, stockholder, controlling person.

“[The Witness]: [The plaintiff] is easy. There’s like a hundred dollars in the account. That thing hasn’t done nothing.

“[The Defendant’s Counsel]: Right. So, I’m speaking to you, personally.

“[The Witness]: But I just come through that. That’s why I should have read the whole damn thing, but I didn’t.

“[The Plaintiffs Counsel]: We will provide you with . . .

“[The Witness]: Absolutely, I can provide that.

“[The Defendant’s Counsel]: The problem, and let me get . . .

“[The Plaintiffs Counsel]: I know.

“[The Defendant’s Counsel]: Let me cut to the chase.

“[The Witness]: I wish you could.

“[The Plaintiffs Counsel]: Right.

“[The Defendant’s Counsel]: [The plaintiff’s attorney], I’m sure, understands that the record right now is not acceptable.

“[The Plaintiffs Counsel]: We understand. We’ll provide you with additional information.

“[The Defendant’s Counsel]: And the opportunity to request the witness again?

“[The Plaintiffs Counsel]: Absolutely, we’ll make ourselves available.”

The defendant’s attorney sent a request for additional documentation from the plaintiff on December 18, 2006.* 1 In response, Glatzel provided the defendant with copies of certain documents. He did not provide the defendant with copies of federal or state tax returns filed by himself or on behalf of the plaintiff. At oral argument on the motion for summary judgment on February 1, 2008, the court asked the plaintiffs attorney why he had not provided the defendant with information about profit loss statements and the plaintiffs taxes. The plaintiffs attorney replied: “Those documents don’t exist. I think the most important thing, and the most concrete thing we can talk about, is the tax situation. And, I think I can represent [that] there is an investigation going on, and my client is resolving his tax issues. I mean, there’s no doubt about that. There’s no intentional—and I think that [the defendant’s attorney] acknowledged this—there’s no intentional, you know, conduct to withhold these documents from the [defendant]. They just—they don’t exist. Those issues are being addressed right now by the Internal Revenue Service [IRS], and that’s really the core issue in front of the court today. The number one documents that they demanded were the IRS documents, and, you know, they don’t exist at the present time.”

The plaintiffs attorney later reiterated that the requested documents did not exist, stating: “That’s accurate. [Glatzel] has submitted an affidavit that says that he has provided everything he has in the list of documents requested . . . and [Glatzel] has provided everything that he has that’s in that list .... So, in terms of the issue of compliance, I think, at the very least, there is a genuine issue of material fact as to whether he complied with the examination under oath. . . . My client . . . has submitted an affidavit that says I just don’t have anything else that you want. I’ve given you everything I have, and I don’t have anything else. And I think that’s accurate. I believe my client. There is nothing else to give.” The defendant’s attorney responded: “I am surprised by the statement that . . . Glatzel had tax problems with the IRS and that he didn’t file because that is directly contracted by his testimony [at the examination under oath].”

The court granted the defendant’s motion for summary judgment on May 16, 2008. This appeal followed. Additional facts will be set forth as necessary.

We initially note the well established standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Curley v. Kaiser, 112 Conn. App. 213, 219-20, 962 A.2d 167 (2009). “A material fact . . . [is] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Pagan v. Gonzalez, 113 Conn. App. 135, 137, 965 A.2d 582 (2009). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Davis v. Davis, 112 Conn. App. 56, 62, 962 A.2d 140 (2009).

I

The plaintiff first claims that the court improperly concluded that (1) Glatzel had filed federal and state income tax returns for the years 2001 through 2006 and (2) he failed to provide these returns to the defendant. We disagree.

In moving for summary judgment, the defendant alleged that no genuine issue of material fact existed as to whether (1) the plaintiff had complied with its duties under the insurance policy and (2) compliance with its duties is a condition precedent to recoveiy by the plaintiff under the policy. The insurance policy issued by the defendant contains a section entitled “Duties In The Event Of Loss Or Damage” that provides in relevant part: “a. You must see that the following are done in the event of loss or damage to Covered Property ... (5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed. (6) As often as may be reasonably required, permit us to . . . examine your books and records. ... (8) Cooperate with us in the investigation or settlement of the claim, b. We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records. In the event of an examination, an insured’s answers must be signed.” The policy also provides, in the commercial property conditions section: “No one may bring a legal action against [the defendant] under this Coverage Part unless: 1. There has been full compliance with all of the terms of this Coverage Part . . .

The basis for the defendant’s request of the financial and tax records in question was predicated on the findings by investigators that the fire was suspicious in nature. “[I]n order to establish a prima facie case of arson for purposes of denying coverage under an insurance policy, the insurer must establish that the fire was incendiary [and] that the insured, its agents or officers had an opportunity to cause the fire .... These elements are in accord with the leading treatises on insurance.” (Internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 801, 807 A.2d 467 (2002). Additionally, as the court noted in its memorandum of decision, “[a]rson is a difficult crime to prove. It can only be established by circumstantial evidence and by inquiries into motive. Financial records of the insured are, as the cases say, patently relevant to the insurance company’s rightful scope of the investigation.” (Internal quotation marks omitted.)

In deciding the motion for summary judgment, the court first found that, although the language of the insurance policy did not impose obligations on Glatzel to disclose purely personal information or personal tax returns, Glatzel was nevertheless required to disclose this information because he and the plaintiff were one and the same, and, therefore, the court should disregard the corporate structure and pierce the corporate veil. The court concluded that “[i]n light of the circumstances surrounding the fire loss, the temporal proximity of the plaintiffs highly leveraged purchase of the property to the fire loss, the incendiary nature of the fire [and] the apparent absence of any regular source of income enjoyed by Glatzel, Glatzel’s personal income tax returns were highly material.”

The plaintiff contends on appeal that the court improperly decided an issue of fact by concluding that Glatzel admitted at his examination that he had filed personal income tax returns. The plaintiff denies that there was an unequivocal admission that tax returns were filed on behalf of the plaintiff, and Glatzel filed a sworn affidavit on October 25, 2007, in which he stated: “I have provided [the defendant’s attorneys], via my attorneys, with all documents in my possession, or that I was able to obtain in the exercise of due diligence, that correspond with the requests [for documents].” In his affidavit, Glatzel does not specifically refute the existence of the requested tax returns, but the plaintiff in its brief asserts that the court should have presumed, for the purposes of deciding a motion for summary judgment, that Glatzel’s affidavit was accurate and that the statement in the affidavit was “sufficient to create a legally sufficient doubt as to the meaning of the above cited deposition transcript.” The court found that, although the plaintiffs attorney had represented at oral argument that the tax returns did not exist, Glatzel’s sworn testimony at his examination under oath that such tax returns had been filed remained uncontradicted.

The statement in Glatzel’s affidavit is not sufficient to raise a genuine issue of material fact. “The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact.” Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004). “[S]ome evidence showing the existence of such an issue must be presented in the counteraffidavit.” (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003). “Further, [i]t is not enough . . . merely to assert the existence of such a disputed issue . . . [instead] the genuine issue aspect requires the party to bring forward before trial evidentiary facts, or substantial evidence outside of the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Emphasis in original; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 168-69, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992).

“A mere assertion of fact in the affidavit of the party opposing summary judgment is not enough to establish the existence of a material fact that, by itself, defeats a claim for summary judgment.” Campbell v. Plymouth, 74 Conn. App. 67, 83, 811 A.2d 243 (2002). “[Affidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit. . . . Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.” (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

In 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn. App. 140, 888 A.2d 141 (2006), a case involving the legality and enforceability of a lease, this court held that, in determining whether summary judgment was proper on the issue of whether the action had been brought in good faith, an affidavit submitted in support of the plaintiff that claimed, “I tested the validity of the lease in good faith by instituting legal proceedings” was a conclusion, not a statement of fact based on personal knowledge. (Internal quotation marks omitted.) Id., 157. The court concluded that the affidavit was insufficient to oppose a motion for summary judgment. Id.

Similarly, in Fidelity Bank v. Krenisky, 72 Conn. App. 700, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002), the moving party disputed that an accord had been reached between the parties, and the court concluded that the statements in the affidavit did not raise a genuine issue of material fact as to the existence of an accord, where the affidavit provided in relevant part: “The matter was initially resolved in [April, 1997] and then the bank repudiated same. I sent them, as agreed, all the back mortgage payments along with check [no.] 3378 . . . made out to the City of New Haven, which was never cashed. Defendants] believed this resolved the dispute. Plaintiff repudiated same, and returned these checks, for no apparent reason.” (Internal quotation marks omitted.) Id., 719.

On the basis of our review of the affidavits and other documents submitted to the court, we conclude, contrary to the plaintiffs assertion, that none of the documents raise a genuine issue of material fact as to the existence of the tax returns. Glatzel’s statement in his affidavit that he submitted everything that he could obtain through the exercise of due diligence, like the statements in 12 Havemeyer Place Co., LLC v. Gordon, supra, 93 Conn. App. 157, and Fidelity Bank v. Krenisky, supra, 72 Conn. App. 719, is merely a conclusion and does not raise a genuine issue of material fact. Because the plaintiff failed to demonstrate the requisite underlying factual predicate for the existence of a genuine issue of material fact, the court’s decision to grant the motion for summary judgment was legally and logically correct.

II

The plaintiffs second claim is that the court failed to apply the substantial compliance standard when it evaluated the plaintiffs cooperation with the examination under oath. Specifically, the plaintiff claims that the court demanded “absolute perfection, not substantial compliance,” in determining that the plaintiff had failed to cooperate with the investigation as required by the terms of the insurance contract. We are not persuaded.

“Generally, in the absence of a reasonable excuse, when an insured fails to comply with the insurance policy provisions requiring an examination under oath and the production of documents, the breach generally results in the forfeiture of coverage, thereby relieving the insurer of its liability to pay, and provides the insurer an absolute defense to an action on the policy.” (Citations omitted.) 13 G. Couch, Insurance (3d Ed. 1999) § 196.23, pp. 196-31 through 196-32. “In the absence of estoppel, waiver or other excuse, cooperation by the insured in accordance with the provisions of the policy is a condition the breach of which puts an end to the insurer’s obligation. . . . The lack of cooperation, however, must be substantial or material. Curran v. Connecticut Indemnity Co., 127 Conn. 692, 696, 20 A.2d 87 (1941); Rochon v. Preferred Accident Ins. Co., 118 Conn. 190, 198, 171 A. 429 (1934); annot, 60 A.L.R.2d 1146, 1150 [1958]. In this state, where an insurer raises the issue of the violation of the cooperation clause of the policy by a special defense, the burden is on the plaintiff to prove cooperation by the insured. Arton v. Liberty Mutual Ins. Co., [163 Conn. 127, 135, 302 A.2d 284 (1972)]; Manthey v. American Automobile Ins. Co., 127 Conn. 516, 519, 18 A.2d 397 (1941).” (Citations omitted; internal quotation marks omitted.) O’Leary v. Lumbermen’s Mutual Casualty Co., 178 Conn. 32, 38, 420 A.2d 888 (1979).

“[T]he condition of cooperation with an insurer is not broken by a failure of the insured in an immaterial or unsubstantial matter. . . . The reason why immaterial and unsubstantial failures of an assured do not constitute a breach is because they are not included within the fair intendment of the requirement that the assured cooperate, and lack of prejudice to the insurer from such failure is a test which usually determines that a failure is of that nature.” (Citation omitted; internal quotation marks omitted.) Arton v. Liberty Mutual Ins. Co., supra, 163 Conn. 133-34. “A cooperation clause in a liability insurance policy requires that there shall be a fair, frank, and substantially full disclosure of information reasonably demanded by the insurer to enable it to prepare for, or to determine whether there is, a genuine defense. . . . [I]t has been held that an insured’s failure to disclose information breached a cooperation clause [when] . . . [t]he insured . . . [failed] to provide information requested by the insurer.” 14 G. Couch, Insurance (3d Ed. 1999) § 199.39, pp. 199-71 through 199-72.

The plaintiff claims that its cooperation with the defendant’s investigation satisfied the substantial compliance standard. It claims that it “almost completely complied with the [defendant’s] requests for disclosure and production” and that the court erred “in demanding absolutely perfect compliance . . . .” We disagree. The court found that the plaintiff breached the cooperation provision of the insurance policy by not providing the requested tax returns and, additionally, that the plaintiff did not demonstrate that the insurer was not prejudiced by the breach. We agree with the court that, in the course of an arson investigation by an insurer, “requests for income records are certainly material inquiries” and that “[i]n view of the fact that direct proof of arson is seldom available, courts have recognized that the requisite degree of proof can be satisfied in civil cases by circumstantial evidence .... Information gleaned from the tax returns of an individual insured or the officers of a corporate insured can be of crucial significance in that regard.” (Citation omitted; internal quotation marks omitted.), quoting 2423 Mermaid Realty Corp. v. New York Property Ins. Underwriting Assn., 142 App. Div. 2d 124, 131, 534 N.Y.2d 999 (1988), leave to appeal denied, 74 N.Y.2d 607, 543 N.E.2d 746, 545 N.Y.S.2d 103 (1989). We conclude that there is no genuine issue of material fact regarding whether the plaintiff failed to provide the defendant with requested information that the court properly deemed to be material to the investigation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also requested other information, including: “All documents, including loan agreements, payment books, statements of account, monthly statements or other similar materials which refer or relate to any mortgage, loan, credit card balance or other indebtedness owed by yourself, or by any corporation, partnership, business or other entity which employed you or in which you own an ownership interest .... All documents which relate to [the plaintiff], ...”

       The defendant requested information, including: “All receipts, invoices, billings and other documents pertaining to work performed at the subject structure prior to [or] after the subject reported fire. ... A copy of the plot plan, survey and drawings obtained by or provided to your client concerning the use of the subject land parcel and the work created from January 1, 2003 to the current date. . . . Closing statements and other documents pertaining to the sale of [Glatzel’s residence] at 26 Nutmeg Place Lane near Milford, Connecticut and the purchase of his North Carolina residence.”

       Glatzel provided the defendant with copies of: “[T]he mortgage deed and security agreement for the subject property; correspondence from the New Milford town attorney and fire marshal regarding the fire investigation; two changes of statutory agent for the plaintiff filed with the secretary of [the] state; two interim notices of change of member/manager for the plaintiff filed with the secretary of [the] state; an assignment of membership interest of the plaintiff; a letter from the secretary of [the] state, dated December 3, 2006, and Acceptance of Business Filing,’ for the plaintiff; a business information verification report; various correspondence from Eastland Claim Service, Inc., [the] defendant’s fire investigators, one enclosing a copy of [the] preliminary statement of the actual cash value of items claimed lost in the fire; invoice from Twin Eagles Construction, LLC; a bill from Plimpton & Hills, dated January 6, 2005, for materials sold to Jeff Schmidt; a list of items entitled ‘Jeff Schmidt’; a bill from Cherry Hill Construction to Twin Eagles Construction; a bill from Cherry Hill Construction for demolition of the house and site clean up; various correspondence from the Bozelko law firm; a Consent to Search & Examination of Evidence, signed by Glatzel for the Connecticut department of public safety; correspondence from the Bozelko law firm to Richard Palmieri of Eastland Claim Service, Inc., enclosing (1) documents concerning the purchase of 366 Danbury Road, New Milford, Ct. by the plaintiff, (2) documents concerning the creation of the plaintiff; and (3) a list of improvements made to the property since the plaintiffs purchase; and appraisal of replacement cost of the property; a completed questionnaire and diagrams provided to United Cleaning regarding certain items destroyed in the fire; a warranty deed and real estate conveyance tax return; a bill from an attorney for the preparation of closing documents; a sheath of documents entitled ‘Results of Your Mortgage Calculation'; articles of organization of [the] plaintiff; promissory notes; a tax bill to John Duda for 370 Danbury Road, New Milford, Ct.; a boundary survey of the subject property prepared for the plaintiff; an agreement between Malgorzaa Kobialka and Carl Glatzel, trustee of the Carl T. Glatzel, Jr. Irrevocable Trust, dated April 10, 2005, for the sale and purchase of 26 Nutmeg Drive, New Milford, Ct.; a copy of a foreclosure . . . lawsuit and a lis pendens filed by John Duda and the John Duda Living Trust against the plaintiff and Glatzel as to the subject property; a closing statement for the plaintiffs sale of the subject property on June 26, 2006; and a survey of the subject property.”

         The defendant submitted the sworn affidavit of William G. May, the fire marshal of the town of New Milford, which stated that he conducted a cause and origin investigation into the structure fire that occurred on the plaintiff’s property and that “during the investigation and inspection of the premises, it was concluded that the fire was intentionally set with two points of origin.”
      The defendant also submitted the sworn affidavit of David Rentz, a cause and origin fire investigator retained by the insurance adjuster for the defendant, which stated that he had conducted an investigation into the fire and “was able to determine that the fire was intentionally set and originated at two distinct locations within the structure.”

       We note that the court in Travelers Ins. Co. concluded that Connecticut should not require motive to be proven as a separate element of a civil arson defense but that motive is still relevant to such a defense; the court held that “its role is best served by bolstering cases in which direct evidence of arson is lacking.” Travelers Ins. Co. v. Namerow, supra, 261 Conn. 803.

       As noted by the court in its memorandum of decision, it is axiomatic that an attorney’s argument is not evidence. See State v. Santangelo, 205 Conn. 578, 585, 534 A.2d 1175 (1987).

       See, e.g., 304 Meat Gorp. v. New York Property Ins. Underwriting Assn., 188 App. Div. 2d 382, 591 N.Y.S.2d 390 (1992).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. LUIS E. DELGADO
    (AC 29540)
    Bishop, DiPentima and Graendel, Js.
    Argued May 28
    officially released August 11, 2009

      Luis E. Delgado, pro se, the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, was Matthew C. Gedansky, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Luis E. Delgado, appearing pro se, appeals following the denial of his motion to correct an illegal sentence. Specifically, the defendant claims that the trial court improperly (1) found that his sentence for possession of a weapon in a motor vehicle in violation of General Statutes § 29-38 was legal with regard to the manner in which the weapon was used and (2) found that his sentence was within the parameters of § 29-38 with regard to the size of the weapon used. We conclude that the court lacked subject matter jurisdiction over the motion. Accordingly, we reverse the denial of the defendant’s motion and remand the matter to the trial court with direction to render judgment of dismissal.

On September 12,2006, pursuant to a plea agreement, the defendant pleaded guilty to one count of larceny in the third degree in violation of General Statutes §§ 53a-119 (9) and 53a-124 (a) (2) and one count of possession of a weapon in a motor vehicle in violation of § 29-38. Also pursuant to a plea agreement, the defendant pleaded guilty, under the Alford doctrine, to one count of assault in the third degree in violation of General Statutes § 53a-61. The court sentenced the defendant to five years incarceration on the charge of possession of a weapon in a motor vehicle, to be served consecutively with a six month sentence on the charge of assault in the third degree and concurrently with all other sentences. Thus, the court imposed a total effective sentence of five and one-half years incarceration.

On March 16, 2007, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. Following a hearing on June 25, 2007, the court denied the defendant’s motion on October 19, 2007. In its memorandum of decision, the court concluded: “In this case, the sentences imposed were within the permissible range for the crimes charged, and there are no issues as to which sentencing statutes were applicable. The sentences were not imposed in an illegal manner in that there are no issues of double jeopardy, there are no issues pertaining to the computation of the length of the sentence or the question of consecutive or concurrent prison time, and the sentence is not ambiguous or internally contradictory.” On November 5, 2007, the defendant filed this appeal from the motion to correct an illegal sentence.

On appeal, the defendant argues that his sentence for conviction of possession of a weapon in a motor vehicle is illegal because the weapon in question, a knife with a three and one-half inch blade, was not used in a crime and is not prohibited from being in a motor vehicle without a permit. He further argues that his sentence is illegal because the weapon in question does not fall within the parameters of § 29-38, which provides that the weapon must be at least four inches long. The state argues that because the defendant attacks the validity of his conviction rather than the validity of the imposition of his sentence, the court did not have subject matter jurisdiction over the motion. We agree with the state.

Whether a court has subject matter jurisdiction is a question of law over which our review is plenary. State v. Alexander, 269 Conn. 107, 112, 847 A.2d 970 (2004). “The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal. . . . We consider the question of subject matter jurisdiction because, once raised, the question of subject matter jurisdiction must be answered before we can address the other issues raised.” (Citation omitted; internal quotation marks omitted.) State v. Taylor, 91 Conn. App. 788, 791, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005).

“Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153, 913 A.2d 428 (2007). It is well established that the jurisdiction of a sentencing court terminates once a defendant has begun serving his sentence. Id. “[Therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act. . . . Practice Book § 43-22, which provides the trial court with such authority, provides that [t]he judicial authority may at any time correct an illegal sentence .... An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Internal quotation marks omitted.) State v. Mungroo, 104 Conn. App. 668, 683-84, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008); see State v. Lawrence, supra, 155-57. “Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and its execution has begun.” State v. Lawrence, supra, 155. Our Supreme Court has stated that for a trial court to have jurisdiction to consider a defendant’s claim of an illegal sentence, the claim must fall within one of four categories: “The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable.” (Citations omitted; internal quotation marks omitted.) Id., 156-57.

In his motion to correct an illegal sentence, the defendant argued that the weapon he allegedly used did not fall within the statutory requirements of § 29-38, the weapon was not allegedly used in a manner consistent with the definitions in § 29-38, the plea was entered without his knowledge of the elements of § 29-38 and the prosecution failed to disclose information favorable to the defendant and relevant to sentencing.

As our Supreme Court noted in State v. Lawrence, supra, 281 Conn. 147, “[i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.” (Emphasis added.) Id., 158. Here, the defendant’s claims attack the validity of his conviction and plea colloquy. Specifically, he challenges the validity of his conviction by claiming that the weapon he allegedly used, and the way in which he allegedly used it, fall outside of the definitions of § 29-38. Similarly, his claims that the plea was entered without his knowledge of the elements of the crime and without the prosecution’s having turned over information favorable to the defense challenge the validity of the plea colloquy. Although the defendant’s plea colloquy and sentencing took place on the same day, none of his claims attack the substance of what occurred during the sentencing portion of the hearing. Compare State v. Cator, 256 Conn. 785, 804-805, 781 A.2d 285 (2001) (sentencing court had jurisdiction to consider motion to correct illegal sentence when sentence violated prohibition against double jeopardy) with State v. Mollo, 63 Conn. App. 487, 490-92, 776 A.2d 1176 (trial court properly determined it lacked jurisdiction to consider defendant’s motion to correct an illegal sentence when claim of illegality centered on defect in factual basis of plea), cert. denied, 257 Conn. 904, 777 A.2d 194 (2001).

Therefore, the defendant’s claim falls outside of the limited circumstances in which a court retains jurisdiction over a defendant once that defendant has begun serving his sentence. See State v. Wright, 107 Conn. App. 152, 157-58, 944 A.2d 991 (court did not have jurisdiction to hear defendant’s motion to correct illegal sentence when motion attacked the validity of defendant’s conviction), cert. denied, 289 Conn. 933, 958 A.2d 1247 (2008). Accordingly, the court lacked jurisdiction to consider the claims raised in the defendant’s motion to correct an illegal sentence. See State v. Lawrence, supra, 281 Conn. 159.

The form of the judgment is improper, the judgment denying the defendant’s motion to correct an illegal sentence is reversed and the case is remanded with direction to render judgment of dismissal.

       The defendant also makes additional claims relating to his motion to withdraw his guilty plea, which the court denied on October 19, 2007. Because, as both parties agreed at oral argument, the defendant on appeal challenges only the denial of his motion to correct an illegal sentence, we do not address the claims relating to the motion to withdraw a guilty plea.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 736 n.1, 930 A.2d 644 (2007).

       On the same day, the defendant pleaded guilty to and was sentenced on various counts in four additional criminal dockets.

       We note the defendant’s unsupported claim on appeal that the court retained jurisdiction over him because he had not yet begun serving his sentence. We also note that absent indication to the contrary, there is a presumption that execution of a sentence begins promptly after it is imposed. See State v. Adams, 14 Conn. App. 119, 132-33, 539 A.2d 1022 (1988).