author: ROBINSON, J.

text:
    SANDY D. MCRAE v. SCOTT A. MCRAE
    (AC 31842)
    Gruendel, Beach and Robinson, Js.
    Argued January 7
    officially released May 31, 2011

      Campbell D. Barrett, with whom was Jon T. Kukucka, for the appellant (defendant).

      Matthew J. O’Keefe, with whom was Joseph M. Busher, Jr., for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant in this marital dissolution matter, Scott A. McRae, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Sandy D. McRae, and entering related financial orders. On appeal, the defendant claims that the court improperly (1) assessed the value of his business and (2) awarded the plaintiff the cash equivalent of one-half of the value of his business in addition to alimony generated solely by that business. We affirm the judgment of the trial court.

Our review of the record reveals the following relevant facts and procedural history. The plaintiff and the defendant were married on September 2, 1989, in Mystic, and they are the parents of two daughters. At the time of the dissolution, the plaintiff was forty-seven years old and the defendant was fifty-one years old. The plaintiff was the sole owner of Distinctive Finishes, LLC, a decorative painting business, and the principal caregiver of the parties’ two children. Her income was derived principally from her work as a decorative painter with her business and from substantial gifts from her family. The defendant was the sole owner and shareholder of Creative Change, Inc. (Creative), a business that creates software programs for use by hospitals and physicians. Although he assisted the plaintiff with starting her business, the defendant derived his income solely from his work with Creative.

The plaintiff commenced this marital dissolution action by complaint filed May 31, 2007, in which she alleged that the marriage had broken down irretrievably. In the complaint, she requested, inter alia, that the court issue a decree dissolving the marriage, award her alimony and undertake an equitable division of the parties’ marital property.

The dissolution trial took place over eight days in January, March and April, 2009. During the trial, the main issue of contention concerned the value of Creative, and both parties presented extensive evidence on this issue, including expert testimony. The plaintiff offered the testimony of Joseph A. DeCusati, a certified public accountant and business valuation analyst. According to DeCusati, the estimated fair market value of Creative, as of December 16, 2008, was $376,968. DeCusati testified that he utilized the net asset approach in formulating his valuation. In response, the defendant offered the testimony of John Kramer, a certified public accountant. Kramer testified that he had utilized the same methodology as did DeCusati, but he opined that, as of December 31, 2008, Creative had a fair market value of $56,000. The court admitted into evidence Kramer’s valuation report, which explained in detail the calculations he undertook in reaching his final valuation.

On October 5,2009, ruling orally, the court concluded that the marriage had broken down irretrievably and that both parties were “either to blame or blameless for the breakdown of the marriage.” Accordingly, the court rendered judgment dissolving the marriage. Thereafter, the court proceeded to make factual findings and enter financial orders that form the basis of the present appeal.

On the basis of the evidence adduced during the trial, the court found that the plaintiff had an earning capacity of $50,000 per year and that the defendant had a present earning capacity of $100,000 per year. In accordance with these findings, and after considering the criteria set forth in General Statutes § 46b-82, the court ordered the defendant to pay periodic alimony to the plaintiff for ten years, in the amount of $500 per week for the first three years and $250 per week for the remaining seven years. In addition, pursuant to General Statutes § 46b-62, the court awarded the plaintiff $15,000 in attorney’s fees and ordered that the fees be taken from $315,338 that was being held in escrow.

As to the marital property, after considering the criteria set forth in General Statutes § 46b-81, the court found that the plaintiffs business had a value of $2500 and that Creative, “for the purposes of property distribution,” had a value of $144,000. The court explained that in reaching its valuation of Creative, it had taken the valuation offered by Kramer, rounded to the nearest thousand dollar, and then added to it $88,000, the approximate value of an undeposited check issued by Middlesex Hospital to Creative (hospital check). According to the court, it believed that the hospital check belonged in Kramer’s valuation.

The court also stated that, setting aside the alimony order and the award of attorney’s fees, its intention was to divide the marital property equally so that each party would receive assets valuing approximately $340,367. To effectuate this intention, the court first permitted each party to keep his or her own business, business bank accounts, stocks, bonds, mutual funds and cars. Thereafter, to compensate for the perceived inequality that resulted from this initial division, which was largely due to the $144,000 value placed on the defendant’s business, the court awarded the plaintiff $254,585 out of the proceeds being held in escrow. The defendant was awarded the remaining $60,753.

On April 22, 2010, the defendant filed a motion for articulation, in which he requested, inter alia, that the court articulate the complete factual basis for concluding that Creative was worth $144,000 and for awarding the plaintiff $254,585 out of the escrow funds. Furthermore, the defendant requested that the court articulate the legal basis for awarding the plaintiff periodic alimony in addition to purportedly awarding her the cash value of one-half of his business. The court denied the motion. On April 28, 2010, the defendant filed with this court a motion for review of the trial court’s denial of his motion for articulation. This court granted the motion for review but denied the relief requested therein. This appeal followed. Additional facts will be set forth as necessary.

Before considering the defendant’s claims, we first set forth the legal principles and applicable standard of review that guide our resolution of these claims. “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 statutory criteria. ... 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 atrial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Kaczynski v. Kaczynski, 124 Conn. App. 204, 209, 3 A.3d 1034 (2010).

“An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. . . . Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. . . . Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. . . . Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Campbell v. Campbell, 120 Conn. App. 760, 766-67, 993 A.2d 984 (2010).

I

First, the defendant claims that the court improperly assessed the value of his business. Specifically, the defendant argues that the court erroneously added the approximate value of the previously mentioned hospital check to Kramer’s valuation because the evidence established that the hospital check represented a prepayment for future services and, therefore, had not been earned by Creative. In the alternative, the defendant argues that, even assuming that the hospital check had been earned, it was an abuse of discretion for the court to add the full approximate value of the hospital check to Kramer’s valuation because (1) Kramer testified that he had already included a portion of the $88,000 in his final valuation and (2) Creative would have incurred expenses in performing the work for which the hospital check had been issued. For the reasons we will set forth, we conclude that the trial court did not value Creative improperly.

A

We first consider the defendant’s argument that the court erroneously added the approximate value of the hospital check to Kramer’s valuation because the evidence established that the hospital check represented a prepayment for future services. In essence, the defendant contends that the court’s factual finding that the hospital check had been earned by Creative is clearly erroneous. We disagree.

In or about July, 2007, Creative entered into a contract with Middlesex Hospital (hospital contract) for the installation of a patient registration scanning system (system). The hospital contract provided that Creative would install the system by the end of October, 2008, and that Middlesex Hospital would make various progress payments throughout the installation process. By invoice dated September 17, 2008, Creative billed Middlesex Hospital in the amount of $88,185 for certain hardware and software, including its installation (hospital invoice). On or about October 10, 2008, Middlesex Hospital issued the hospital check to Creative in the amount of $88,185.

Sreedhar K. Poetti, the manager of financial applications for Middlesex Hospital, testified that he had received the invoice from Creative and that it related to the system. According to Poetti, the hospital contract required Middlesex Hospital to make progress payments to Creative as it acquired materials for installation of the system and that these payments were due within thirty days of request. He also testified that the hardware and software detailed in the hospital invoice had been delivered and installed during the last week of October, 2008.

During cross-examination, Poetti admitted that he had requested that Creative submit an invoice prior to September 30, 2008. According to Poetti, this was done so that Middlesex Hospital could incur as much of the expenses related to the system as possible before the end of its fiscal year. He also stated that the hospital check had included payment for future work, but he did not specify what this work entailed or when this work was completed. He did testify, however, that Creative had installed the system fully, and thus completed the contract, some time prior to April 24, 2009.

Steven McDowell, the purchasing manager for Middlesex Hospital, who was in charge of accounts payable, testified that although he did not know whether the hospital check represented the final payment under the hospital contract, he believed that it had been issued as a payment for services performed, as opposed to future services. In addition, he testified that although he did not know whether the work called for under the hospital contract had been completed, Middlesex Hospital “wouldn’t have issued the check” unless the work had been completed. According to McDowell, it would be “unusual” for Middlesex Hospital to issue a check for work not yet performed and then ask the recipient to refrain from using the funds until completion of the work.

During his testimony, the defendant admitted that he had received the hospital check shortly after October 10, 2008, but stated that he had not deposited it into any of Creative’s bank accounts. According to the defendant, he believed that the hospital check represented a prepayment for uncompleted work and, therefore, he could not include it in his business bank accounts until it had been earned.

On appeal, the defendant challenges the factual finding that the hospital check had been earned by Creative. “Our review of the trial court’s factual findings is limited to the question of whether the findings are clearly erroneous. ... 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.” (Citation omitted; internal quotation marks omitted.) Waterview Site Services, Inc. v. Pay Day, Inc., 125 Conn. App. 561, 566-67, 11 A.3d 692 (2010), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).

“It should be reiterated that the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court. . . . The trial court has the unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” (Citation omitted; internal quotation marks omitted.) Stearns v. Stearns, 4 Conn. App. 323, 327, 494 A.2d 595 (1985). “Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 508, 4 A.3d 288 (2010).

In the present case, there is sufficient evidence in the record to support the trial court’s finding that the hospital check had been earned. During his testimony, Poetti explained that the hospital check had been issued for certain hardware and software that Creative had acquired for installation of the system, and that the hospital contract required Middlesex Hospital to pay Creative when it acquired this material. Additionally, McDowell testified that it would have been highly unusual for Middlesex Hospital to issue a check for payment unless the work for which it had been issued was completed. On the basis of this testimony, the court reasonably could have concluded that the check had been earned at the time it was issued by Middlesex Hospital.

In opposition to this conclusion, the defendant argues that Poetti’s testimony during cross-examination establishes that Creative “received an $88,000 advance payment from Middlesex Hospital in 2008 for work that was not completed until 2009.” Even if we were to assume that the work had not been completed until 2009, Poetti testified that all of the work called for under the hospital contract had been completed no later than April 24, 2009. As our Supreme Court has recognized, the “date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property.” (Internal quotation marks omitted.) Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990); see also General Statutes § 46b-81. Therefore, the court reasonably could have concluded that the hospital check represented a prepayment when it was issued but had been earned once the contract was completed, which was before the date of dissolution. Accordingly, we conclude that the trial court’s factual finding that the hospital check had been earned by Creative was not clearly erroneous.

B

We next consider the defendant’s alternative argument that, even assuming that the hospital check had been earned, it was an abuse of discretion for the court to add the full approximate value of the hospital check to Kramer’s valuation because (1) Kramer testified that he had already included a portion of the $88,000 in his final valuation and (2) Creative would have incurred expenses in performing the work for which the hospital check had been issued. For these two reasons, the defendant argues that the court’s method of valuing Creative constitutes a “ ‘patently erroneous methodology’,” requiring us to reverse the trial court’s decision pursuant to this court’s decision in Brooks v. Brooks, 121 Conn. App. 659, 997 A.2d 504 (2010). We are not persuaded.

At the dissolution trial, Kramer testified at length regarding his valuation report and how he had calculated his final valuation of Creative. According to Kramer, he had concluded that the hospital check was a prepayment after reviewing information in Creative’s financial records. Because he regarded the hospital check as a prepayment, Kramer explained that he had accounted for it on both the asset side and the liability side of his valuation report, so as to avoid an overvaluation. More specifically, Kramer stated that he had included the value of the hospital check in his valuation report as an account receivable (an asset) and a deferred revenue (a liability). As a result of doing so, the asset and the liability offset fully, resulting in the hospital check adding no value to Creative. Kramer admitted, however, that if the hospital check represented a payment for completed work, and thus had been earned, it should not have been included in his calculation as a deferred revenue.

In addition, Kramer testified that the defendant had informed him that Creative had incurred approximately $37,000 in costs related to purchases of hardware for future jobs, including the hospital contract. On the basis of this information, Kramer stated that he had included these costs in his valuation report as an asset (cost asset) because they represented amounts that “have actually been paid in relation to those [jobs].” According to Kramer, because some of these costs had been incurred in connection with the hospital contract, a portion of the deferred revenue associated with the hospital check had been removed from the business’ liabilities and made a cost asset. Kramer did not explain what amount or percentage of the hospital check’s deferred revenue had been included as a cost asset in his valuation.

“Section 46b-81 governs the distribution of assets in dissolution actions.” DiCerto v. Jones, 108 Conn. App. 184, 192, 947 A.2d 409 (2008); see also Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995); General Statutes § 46b-81. “In distributing the assets of the marital estate, the court is required by § 46b-81 to consider the estate of each of the parties. Implicit in this requirement is the need to consider the economic value of the parties’ estates. ... In assessing the value of the assets that comprise the marital estate, the trial court functions as the trier of fact.” (Citations omitted.) Bornemann v. Bornemann, 245 Conn. 508, 531, 752 A.2d 978 (1998).

“[T]he trier [of fact] arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . . The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a -wrong or improper effect to any test or consideration which it was his duty to regard.” (Citations omitted; internal quotation marks omitted.) Stearns v. Stearns, supra, 4 Conn. App. 328; see also Bornemann v. Bornemann, supra, 245 Conn. 531-32; Brooks v. Brooks, supra, 121 Conn. App. 666-67.

Turning to the defendant’s claim, Kramer testified that if the hospital check had been issued for completed work, it should not have been included as a deferred revenue in his valuation report. Therefore, after concluding that the hospital check had been earned, the court was permitted to conclude that the value of the hospital check should be removed from the deferred revenue of Kramer’s valuation report. As a result, under Kramer’s formulation, the value of the hospital check would be counted as an asset only, without an offsetting liability, thereby increasing the value of Creative to that extent.

The defendant nevertheless argues that it was improper for the court to add all of the full approximate value of the hospital check to Kramer’s valuation because Kramer had testified that he had already included a portion of the hospital check’s deferred revenue in his valuation as a cost asset. According to the defendant, because the cost assets did not have an offsetting liability, the court’s addition of $88,000 produced an overvaluation of Creative to the extent that Kramer had included a portion of the hospital check’s deferred revenue as a cost asset.

The defendant’s argument, however, ignores that “the trial court is the sole arbiter of witness credibility, [and] it has discretion to reject even uncontested evidence.” Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008); see Stewart v. King, 121 Conn. App. 64, 74, 994 A.2d 308 (2010) (“[t]he court . . . [is] free to discredit even uncontroverted testimony”). As the sole arbiter of credibility, the trial court was free to reject Kramer’s testimony and conclude that none of the costs assets were attributable to the hospital contract. Having rejected this testimony, the court reasonably could have determined that the full approximate value of the hospital check should be included in the valuation of Creative.

In addition, the defendant argues that the court erred in its valuation because it failed to consider “the wages that Creative . . . would have had to pay its programmers in order to earn the $88,000 sum, and the materials that Creative . . . required to complete the work and any other overhead costs that were necessary to maintain the business as a going viable entity.” In his brief on appeal, however, the defendant has cited to nothing in the record to indicate that evidence was produced regarding the amount of these claimed expenses. After a careful review of the record, we also have been unable to find any evidence suggesting the amount of these claimed expenses. Without some evidence regarding these expenses, the court had no way of determining what these expenses included or how much these expenses totaled. Having failed to adduce at least some evidence, the defendant cannot now claim on appeal that the trial court committed error in failing to consider these expenses in formulating its valuation. See Bornemann v. Bornemann, supra, 245 Conn. 535 (“when neither party in a dissolution proceeding chooses to introduce detailed information as to the value of a given asset, neither party may later complain that it is not satisfied with the court’s valuation of that asset”). In light of the absence of evidence, we cannot say that the court, in reaching its valuation, misapplied, overlooked or gave improper effect to a consideration that it had a duty to regard. Stearns v. Stearns, supra, 4 Conn. App. 328.

On the basis of these conclusions, we further conclude that the defendant’s reliance on Brooks, and particularly the patently erroneous methodology language, is misplaced. In Brooks, this court concluded that it was clearly erroneous for the trial court to ignore “three critical factors” in determining the value of the defendant’s interests in six closely held entities. Brooks v. Brooks, supra, 121 Conn. App. 667. Because the trial court failed to take these factors into consideration, this court held that the trial court “employ [ed] a patently erroneous methodology . . . .” Id., 672.

In the present case, as we have already discussed, the trial court did not ignore, or fail to take into account, any consideration that it had a duty to regard in formulating its valuation of the defendant’s business. Therefore, we are persuaded that the trial court followed a reasonable path in assessing thé value of Creative. See id. Accordingly, we conclude that the trial court did not abuse its discretion in assessing the value of the defendant’s business.

II

Next, the defendant claims that the court improperly awarded the plaintiff the cash equivalent of one-half of the value of his business in addition to alimony generated solely by that business. We are not persuaded.

First, the defendant argues that “after awarding a spouse a percentage of the value of the other spouse’s closely held business, a court cannot award alimony to the recipient spouse that is derived from income generated by the remaining capital of the business.” Our alimony statute expressly provides that “[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider . . . the award, if any, which the court may make pursuant to section 46b-81 . . . .” General Statutes § 46b-82 (a). While the plain language of this statute permits a trial court to consider the award, if any, that it has made under § 46b-81, nothing in the statutory language forbids a court from awarding periodic alimony to one spouse when the court has made an equitable distribution of the other spouse’s closely held business pursuant to § 46b-81.

Second, the defendant argues that “the trial court’s decision to take into account [his] business in both the property division and the award of alimony constitutes improper ‘double dipping.’ ” The defendant’s argument, however, misconstrues the basis for the court’s alimony order. In its oral decision, the court provided that its order was based on the earning capacity that the court ascribed to the plaintiff and the defendant. Because earning capacity is a permissible ground on which to base an alimony order; see Wolf v. Wolf, 39 Conn. App. 162, 169, 664 A.2d 315 (1995); Hart v. Hart, 19 Conn. App. 91, 94, 561 A.2d 151, cert. denied, 212 Conn. 813, 565 A.2d 535 (1989); the court was permitted to award alimony to the plaintiff based on this consideration. The defendant has pointed to nothing in the record indicating that the court based its alimony order on his business. Furthermore, as the defendant has not challenged the court’s factual finding as to his earning capacity, we do not address the issue. Accordingly, we conclude that the trial court did not abuse its discretion in awarding periodic alimony to the plaintiff under the facts of the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       In general, under the net asset approach, the value of a business is determined by deducting the business’ total liabilities from the business’ total assets. See West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 329, 514 A.2d 734 (1986) (noting that “net asset value ... [is defined as] the present sale price of the business assets less its liabilities”); 2 Valuation and Distribution of Marital Property (M. Bender ed., 2010) § 22.08 [2], p. 22-91 (noting that under net asset approach, “value is assets minus liabilities”).

       As to the defendant’s present earning capacity, the record indicates that the court did not base its finding entirely on the work he performed with Creative. Instead, the court concluded that he had a good prospect for employability if he should ever leave his company.

       General Statutes § 46b-82 (a) 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 . . . 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, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       These alimony payments were not subject to modification as to term but were ordered to terminate upon the death of either party or remarriage of the plaintiff.

       Concerning family relations matters, General Statutes § 46b-62 provides in relevant part that “the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”

       It is undisputed that the proceeds being held in escrow came from the sale of the marital residence, which had been sold during the pendency of the dissolution proceeding.

       General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree annulling or dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . 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, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The court initially indicated that, although the plaintiff testified that her business was worth $2500, “[n]o one obtained a valuation for the business, and it might not have any value.” The court later found that the plaintiffs business had a value of $2500. The defendant has not challenged this finding on appeal.

       The court also ordered that the total value of the parties’ individual retirement accounts were to be divided equally by giving the plaintiff $21,274 by way of a qualified domestic relations order.

       The court’s award of $254,585 to the plaintiff appears to have included the $15,000 it awarded to her in attorney’s fees, which was to be taken out of those funds.

       The estimated total cost of the project was $117,935.

       The record indicates that at the time of the dissolution hearing, the defendant was still in possession of the hospital check and it had still not been deposited.

       As a current asset of the business, under the net asset approach, the cost assets would have increased the business’ value because they would not have an offsetting liability.

       In addition, even if the court had accepted Kramer’s testimony, we could not conclude that the court committed error. As the defendant conceded during oral argument before this court, the record is not clear regarding how much of the approximately $37,000 in costs were attributable to the hospital contract. Consequently, without some evidence that identified the costs associated with the hospital contract, the court had no way of determining how much of the costs related to the hospital contract or, consequently, what amount of the deferred revenue associated with the hospital check had been converted into a cost asset. For that reason, we could not conclude that the court, in reaching its valuation, misapplied, overlooked or gave improper effect to a consideration that it had a duty to regard. Stearns v. Stearns, supra, 4 Conn. App. 328.

       We note that although some' general testimony was offered regarding the salaries and hourly wages of Creative’s employees, the evidence does not indicate which employees may have worked on the hospital contract or how many hours these employees dedicated to its completion.

       In determining the value of the defendant’s interest, the trial court failed to take the following into consideration: “the lack of a ready market for closely held interests; [the defendant’s] lack of control of the business entities; and the restrictions on [the defendant’s] ability to transfer his shares as evidenced by the buyback agreements pertaining to three of the businesses.” Brooks v. Brooks, supra, 121 Conn. App. 667-68.

       We also are not persuaded that the cases cited by the defendant in support of this argument stand for the broad proposition that he advances.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    BILL ROY HENDERSON v. COMMISSIONER OF CORRECTION
    (AC 32039)
    Bishop, Alvord and Bear, Js.

      Argued March 11
    officially released May 31, 2011

      Wayne A. Francis, special public defender, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Tamara A. Grosso, special deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

The petitioner, Bill Roy Henderson, appeals from the judgment of the habeas court following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly concluded that (1) trial counsel was not ineffective in failing to call certain witnesses to testify at the petitioner’s criminal trial, (2) trial counsel was not ineffective for failing to offer a specific recommendation that the petitioner accept the state’s plea offer and (3) the doctrine of res judicata barred the petitioner’s claim that there had been a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), during his criminal trial. We dismiss the appeal.

The following facts and procedural history are relevant to the petitioner’s appeal. On November 5, 2001, the petitioner was found guilty, after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48, murder in violation of General Statutes §§ 53a-54a and 53a-8, and tampering with a witness in violation of General Statutes §§ 53a-151 and 53a-8. The court sentenced the petitioner to a total effective term of sixty years incarceration. Following his conviction, the petitioner filed a motion for a new trial on the ground that the state had failed to disclose that Michael Wright, the principal witness for the state, had received a benefit from the state in exchange for his testimony against the petitioner. After a hearing, the trial court denied the motion, finding that there was no credible evidence that Wright had received a benefit in exchange for his testimony, and the petitioner, thereafter, filed a direct appeal. The petitioner’s conviction was upheld by this court in State v. Henderson, 83 Conn. App. 739, 749, 853 A.2d 115, cert. denied, 271 Conn. 913, 859 A.2d 572 (2004).

On January 16, 2009, the petitioner filed an amended petition for a writ of habeas corpus, claiming that his trial counsel had rendered ineffective assistance, his appellate counsel had rendered ineffective assistance and the prosecutor had committed prosecutorial impropriety by committing a Brady violation. The habeas court rejected each of the petitioner’s claims and denied his habeas petition. Thereafter, the habeas court denied the petition for certification to appeal, and this appeal followed.

We begin by setting forth our well settled standard of review. “[W]e have previously determined that if either the petitioner or the respondent is denied a timely request for certification to appeal from a habeas court’s judgment, such review may subsequently be obtained only if the appellant can demonstrate that the denial constituted an abuse of discretion. . . . We recognize that [i]n enacting [General Statutes] § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. ... A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: 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. . . . [I]f ah appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in Lozada and adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Citation omitted; internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448-49, 936 A.2d 611 (2007).

I

The petitioner claims that the habeas court erred when it concluded that his trial counsel was not ineffective in failing to call certain witnesses, including the petitioner, to testify at trial and in failing to recommend that the petitioner accept the state’s plea offer. We are not persuaded.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . . Mozell v. Commissioner of Correction, 291 Conn. 62, 76-77, 967 A.2d 41 (2009).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995). ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 123 Conn. App. 424, 435-36, 1 A.3d 1242 (2010).

A

The petitioner claims that the court erred when it concluded that his trial counsel was not ineffective in failing to call certain witnesses, including the petitioner, to testify at trial. The petitioner argues that counsel should have called his witnesses, namely, Donald Gaynor and Nigel Gaynor, to testily on his behalf. He further argues that he was willing to testify at trial and that “he could have provided testimonial evidence to controvert the testimony of the state’s key witness.” The respondent, the commissioner of correction, argues that the habeas court properly rejected these claims because the petitioner failed to present any evidence at the habeas trial as to what the Gaynors would have said had they been called to testify, and the petitioner failed to explain what testimony he would have offered had he elected to testify. Accordingly, the respondent argues, the habeas court properly rejected these claims. We agree with the respondent.

“In consideration of [a] petitioner’s claim concerning the adequacy of trial counsel's investigation and the calling of alibi witnesses . . . [w]e have stated that the presentation of testimonial evidence is a matter of trial strategy. . . . The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 823-24, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).

Although the petitioner argues that counsel should have called the Gaynors to testify on the petitioner’s behalf, he failed to present them as witnesses at the habeas trial. Without their testimony, the habeas court could not evaluate them as witnesses, nor could it assess the import of their testimony. Accordingly, the court properly found that the petitioner could not establish prejudice. See Townsend v. Commissioner of Correction, 116 Conn. App. 663, 668, 975 A.2d 1282 (insufficient showing of prejudice where petitioner offered sole testimony regarding exculpatory witness because court had no opportunity to evaluate testimony or credibility of claimed witness), cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); Andrews v. Commissioner of Correction, 45 Conn. App. 242, 247-48, 695 A.2d 20 (prejudice cannot be demonstrated with regard to trial counsel’s alleged failure to interview potential witnesses where petitioner fails to call those witnesses to testify at habeas trial or offer any other proof that their testimony would have been favorable to him at criminal trial), cert. denied, 242 Conn. 910, 697 A.2d 364 (1997); see also Taft v. Commissioner of Correction, 47 Conn. App. 499, 504-505, 703 A.2d 1184 (1998). In this case, the habeas court specifically found that the representation received by the petitioner was “more than constitutionally sufficient.” Additionally, the court found that it was “abundantly clear that there was no prejudice demonstrated at the habeas trial. . . . The petitioner did not present any evidence at the habeas trial that would lead this [court] to conclude that there was any likelihood that the outcome of the trial would have been any different.” The record supports this conclusion.

As to the petitioner’s argument that trial counsel should have called him to testify, we agree with the habeas court that the petitioner has failed to prove prejudice. It is axiomatic that “[i]t is the right of every criminal defendant to testify on his own behalf . . . and to make that decision after full consultation with trial counsel. . . . Nevertheless, the burden [is] on the petitioner to show that he was not aware of his right to testify, not on the state to show that he was.” (Citations omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 870-71, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). Furthermore, although “the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 814-15, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).

The record reveals that the petitioner was canvassed by the trial court during his criminal trial and that he stated that he knew he had the right to testify. The court stated that it had been informed that the petitioner had discussed this with his attorney but that the court wanted the petitioner to know that the decision as to whether to testify was the petitioner’s decision. The petitioner acknowledged that he had decided not to testify. The court then confirmed with the petitioner that “there has been no pressure put upon you to decide not to testify, this is your free choice .... Is that what you want to do is not testify?” To which the petitioner responded: “Yes, sir.” During the habeas trial, the petitioner testified that he told his attorney that he was willing to testify but that counsel thought it would be unnecessary. The petitioner, however, offered no testimony at the habeas trial as to what trial testimony he would have offered in his defense, nor did he question trial counsel as to the reasons why counsel thought the petitioner’s testimony was not necessary. Accordingly, the petitioner did not demonstrate that he was prejudiced by counsel’s trial strategy.

B

The petitioner next claims that the court erred when it concluded that his trial counsel was not ineffective in failing to recommend that the petitioner accept the state’s plea offer. He argues that for an accused in a criminal case to make an informed decision regarding a plea offer, his counsel must make a recommendation as to whether he thinks the accused should accept the plea offer. The respondent contends that this claim has no constitutional implications and that we, therefore, “should decline review because the right to the effective assistance of counsel does not extend to the rejection of a plea offer followed by a fair trial.” On the merits of the claim, the respondent argues that counsel adequately informed the petitioner of the charges against him, of the strengths and weaknesses of the case and of the possible sentence if he was convicted; the petitioner offered no evidence that he would have accepted the plea offer if counsel had recommended it, and the evidence shows that the petitioner was adamant that he was innocent and wanted to go to trial. Thus, the respondent argues, the petitioner has failed to prove either deficient performance or prejudice. We conclude that the petitioner failed to raise as an issue in his amended petition any claim regarding counsel’s failure to recommend that he accept the state’s plea offer; this issue, therefore, was not before the habeas court, and, thus, it could not have been decided by the habeas court. See Velasco v. Commissioner of Correction, 119 Conn. App. 164, 166 n.2, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). Accordingly, we are unable to review the claim, because it was raised for the first time on appeal.

“A petition for a writ of habeas corpus must set forth specific grounds for the issuance of the writ. Practice Book § 23-22 (1) specifically provides that the petition shall state the specific facts upon which each specific claim of illegal confinement is based and the relief requested . . . .” (Internal quotation marks omitted.) Corona v. Commissioner of Correction, 123 Conn. App. 347, 354, 1 A.3d 1226, cert. denied, 299 Conn. 901, 10 A.3d 519 (2010). A reviewing court will not consider claims not raised in the habeas petition or decided by the habeas court. Velasco v. Commissioner of Correction, supra, 119 Conn. App. 166 n.2; Toles v. Commissioner of Correction, 113 Conn. App. 717, 730, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009); Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). Appellate “review of claims not raised before the habeas court would amount to an ambuscade of the [habeas] judge.” (Internal quotation marks omitted.) Mercado v. Commissioner of Correction, 85 Conn. App. 869, 871, 860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1079 (2005).

In this case, we have reviewed the habeas petition, the pretrial briefs, the transcripts of the habeas trial and the posttrial briefs, and we can find no mention of a claim regarding trial counsel’s alleged ineffectiveness for failing to recommend to the petitioner that he accept the state’s plea offer. We also have thoroughly examined the habeas court’s memorandum of decision and can find no mention of such a claim therein. Furthermore, during oral argument before this court, the petitioner’s counsel stated that the habeas court had not ruled on this aspect of the claim and, in fact, that its memorandum of decision “was silent” on the issue. The habeas court could not and did not rule on the issue because it was not raised in the petition or tried before that court. On the basis of the foregoing, we are unable to review the petitioner’s claim.

II

The petitioner next claims that the habeas court improperly concluded that the doctrine of res judicata barred his claim that there had been a Brady violation during his criminal trial. The petitioner argues that the state had a deal with Wright, its key witness, in exchange for his testimony against the petitioner and that it suppressed the existence of that deal throughout the petitioner’s criminal trial. He also argues that the issue was not fully litigated in the prior proceeding on his motion for a new trial because there are several additional letters that have surfaced that were not available in the prior proceeding. The respondent argues that the habeas court properly ruled that this issue was barred by the doctrine of res judicata because “[additional letters to the same effect as the evidence that was already considered does not open the door to relitigating a claim that has already been decided adversely to the petitioner by a fact finder and [a] reviewing court.” We agree with the respondent.

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim. ... To determine whether two claims are the same for purposes of res judicata, we compare the pleadings and judgment in the first action with the complaint in the subsequent action. . . . The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . [Wjhere a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. . . .

“The doctrine [of res judicata] applies to criminal as well as civil proceedings and to state habeas corpus proceedings .... Although the doctrine of res judicata in its fullest sense bars claims that could have been raised in a prior proceeding, such an application in the habeas corpus context would be unduly harsh. . . . Unique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Foremost among those considerations is the interest in making certain that no one is deprived of liberty in violation of his or her constitutional rights. . . . With that in mind, we limit the application of the doctrine of res judicata in circumstances such as these to claims that actually have been raised and litigated in an earlier proceeding.” (Citations omitted; internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 86 Conn. App. 42, 44-46, 859 A.2d 948 (2004).

The following additional facts are relevant to our analysis. Before the court sentenced the petitioner in the underlying criminal case, the petitioner filed a motion for a new trial on the basis of the alleged Brady violation. The petitioner contended that he had newly discovered evidence, in the form of a recently written letter from Wright to an assistant state’s attorney, that demonstrated that Wright, who was the state’s key witness, had been promised a transfer to federal prison in exchange for his testimony against the petitioner. See State v. Henderson, supra, 83 Conn. App. 742. The letter stated in relevant part: “One year ago you came to me and ask for a certain individual head on a platter and I deliver. One thing that I stress to you was to go to a federal prison that is decent and you assure me that this was no problem . . . .” (Internal quotation marks omitted.) Id., 742 n.3. The petitioner claimed that the state had suppressed the existence of this alleged agreement, and that the alleged agreement was exculpatory information and was material to the determination of his guilt or innocence. Id., 742-43. The trial court denied the motion for a new trial, finding that “there were no promises made, expressed or implied, to procure Wright’s testimony [and] since no promises were made, the existence of those promises was not suppressed.” (Internal quotation marks omitted.) Id., 745. We affirmed that judgment on direct appeal. Id., 750.

In his amended habeas petition, the petitioner claimed that he had received a package of information while in prison that contained additional evidence, which consisted of materials that were dated after the hearing on his motion for a new trial and which proved that the state had made a deal with Wright in exchange for his testimony. The habeas court found that this issue had been fully litigated, decided adversely to the petitioner, affirmed on appeal and that the issue, therefore, was res judicata. On appeal, the petitioner argues that, although the issue was litigated and decided against him in a prior proceeding, he never had the opportunity to “fairly” litigate the claim because these additional documents were not available previously. Therefore, he argues, res judicata does not apply. We conclude that there is no substantive difference between the claim raised, litigated and decided on direct appeal and that alleged in the amended habeas petition. Accordingly, the habeas court properly concluded that this claim was barred by the doctrine of res judicata.

In the petitioner’s motion for a new trial, he had alleged that the state had suppressed evidence of a deal between it and Wright to transfer Wright to federal prison in exchange for his testimony against the petitioner. The petitioner presented the trial court with a letter from Wright to an assistant state’s attorney in an attempt to substantiate this claim. The trial court found that there was no deal and, accordingly, that there was no suppression. This finding, along with the petitioner’s conviction, was affirmed on direct appeal. In the petitioner’s habeas trial, he asserted the same claim, namely, that the state had suppressed evidence that it had made a deal with Wright to testify against the petitioner in exchange for a transfer to federal prison. He asserted that he had additional documents, which were not available earlier, that proved the existence of this deal. After reviewing the record, we conclude that the habeas court properly determined that this claim was barred by the doctrine of res judicata, having already had been litigated and decided against the petitioner.

After considering the merits of the petitioner’s claims on appeal, we conclude that the petitioner has failed to demonstrate that the issues raised are debatable among jurists of reason, that the court could resolve the issues in a different manner or that the questions involved are adequate to deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994); see also Taylor v. Commissioner of Correction, supra, 284 Conn. 448-49. Accordingly, we conclude that the petitioner has failed to demonstrate that the habeas court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       On appeal, the petitioner has not raised an issue regarding the effectiveness of his appellate counsel.

       The habeas court specifically found that “[t]he petitioner adamantly denied committing this crime and refused to plead guilty under any circumstances.” The petitioner, in his appellate brief, did not challenge this finding as clearly erroneous.

       During oral argument before this court, Judge Bishop inquired as to the exact nature of the petitioner’s claim. He asked counsel whether there was a claim that trial counsel had failed to explain fully the plea offer or the state’s case to the petitioner, and appellate counsel replied that, although there was such a claim before the habeas court, there was no such claim on appeal. Counsel further explained that the claim on appeal was that the petitioner was entitled to a recommendation as to whether to accept the plea offer and that counsel failed to make such a recommendation.

       “In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment].” (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 452, 758 A.2d 824 (2000).

       “It is well established that impeachment evidence may be crucial to a defense, especially when the state’s case hinges entirely upon the credibility of certain key witnesses. . . . The rule laid out in Brady requiring disclosure of exculpatory evidence applies to materials that might well alter . . . the credibility of a crucial prosecution witness.” (Internal quotation marks omitted.) State v. Esposito, 235 Conn. 802, 815-16, 670 A.2d 301 (1996).

       During the hearing on the petitioner's motion for a new trial, Wright had testified in relevant part as follows on cross-examination by the state:
      “[The Prosecutor]: . . . Was the representation ever made to you by the state’s attorney’s office . . . that you would be transferred to a federal prison?
      “[The Witness]: What he told—what he—what [state division of criminal justice] Inspector [James C. ] Rovella told me, he can’t promise exactly where I will go, but they have to—being that they have to ship me, if they ship me, they’ll ship me out of state, but he couldn’t exactly. But I—that was my—that was my preference. But he’s like, he can’t promise me that because it’s up to [the] department of correction.
      “[The Prosecutor]: Which department of correction? Connecticut?
      “[The Witness]: Yes.” (Internal quotation marks omitted.) State v. Henderson, supra, 83 Conn. App. 746 n.7.

       In relation to the petitioner’s appeal following the court’s denial of his motion for a new trial, we stated: “The record shows that Wright was placed in protective custody for his own protection, a placement that he did not request and did not consider to be a benefit. Wright made it clear that he wanted to be moved out of protective custody and placed in the general population of whatever facility in which he would be serving his sentence. At the hearing, Wright stated numerous times that he was not promised placement in a different correctional facility on the basis of the outcome of the [petitioner’s] trial. Moreover, the record makes clear that although he desired placement in a federal prison, Wright never received a promise of such placement by the state. We therefore conclude that the court’s finding that there was no credible evidence that would show the existence of any express or tacit agreement that the state would transfer Wright to a federal prison to reward him for testifying was not clearly erroneous. We further conclude that it was not an abuse of the court’s discretion to deny the [petitioner’s] motion for a new trial because the allegedly newly discovered evidence did not show that an injustice was done or that it was probable that a different result at trial would have been reached.” State v. Henderson, supra, 83 Conn. App. 745-46.


text:
    NANCY BURTON v. DOMINION NUCLEAR CONNECTICUT, INC.
    (AC 31349)
    Harper, Bear and Peters, Js.

      Argued December 3, 2010
    officially released May 31, 2011

      Nancy Burton, pro se, the appellant (plaintiff).

      Kimberly P. Massicotte, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Matthew I. Levine, assistant attorney general, for the appellee (defendant commissioner of environmental protection).

      Elizabeth C. Barton, with whom were Harold M. Blinderman and Rene A. Ortega, for the appellee (named defendant).
   Opinion

BEAR, J.

The plaintiff, Nancy Burton, appeals from the judgment of the trial court concluding that she did not have standing to maintain her action for declaratory and injunctive relief against the defendant Dominion Nuclear Connecticut, Inc., (Dominion). The commissioner of environmental protection (commissioner) was granted intervenor status shortly after the plaintiff filed suit and, therefore, is also a defendant in this action and a party to the appeal. On appeal, the plaintiff claims that the court improperly concluded that she lacked standing. She also claims that the court improperly denied her the opportunity to present witnesses in support of her standing claim and to cross-examine the affiant of an affidavit that the commissioner submitted in support of her motion to dismiss. Dominion raises three alternate grounds; see Practice Book § 63-4 (a) (1) (A); for affirming the judgment of the trial court: (1) the plaintiffs action sought relief only for a particular time period, which time period has passed, thereby rendering the case moot; (2) the plaintiffs case is barred by the prior pending action doctrine; and (3) the plaintiff failed to exhaust her administrative remedies. We conclude that the court properly determined that the plaintiff does not have standing to pursue this action. Accordingly, we affirm the judgment of the trial court.

In her action, the plaintiff claimed that the operation of the Millstone Nuclear Power Station (Millstone), which is owned and operated by Dominion, is illegally withdrawing more than two billion gallons of water daily from Long Island Sound for cooling purposes, in violation of the Connecticut Environmental Protection Act of 1971 (act), General Statutes § 22a-14 et seq., and the Connecticut water quality standards, as adopted by the department of environmental protection (department). She claimed that this conduct constituted an unreasonable destruction of a natural resource, because “billions of marine life, including Niantic River winter flounder larvae, are sucked in and entrained at . . . Millstone . . . and ultimately destroyed . . . [and] the population of the Niantic River winter flounder has plummeted to dangerously low levels nearing collapse and extinction.” The plaintiff brought her action pursuant to the act, particularly General Statutes §§ 22a-16, 22a-18 and 22a-20. The defendants filed motions to dismiss the complaint on the ground that the plaintiff lacked standing. The court granted the motions to dismiss on April 30, 2009, via a written memorandum of decision.

In its April 30, 2009 memorandum of decision, the court explained that the plaintiff did not have standing pursuant to § 22a-16 because the regulation of Millstone’s cooling system was governed by the permitting process outlined in General Statutes § 22a-430 and, therefore, was within the exclusive province of the department. The court explained: “[Essentially, while § 22a-16 creates a broad class of litigants by removing the aggrievement requirement to have standing to bring suit, it is limited in scope in that it does not apply when the legislature has delegated the resolution of the alleged environmental harms to the [department] through another provision of [the act], . . . While the plaintiff . . . tactically avoids raising the issue of permit validity and instead attacks the direct consequences of the Millstone cooling system, she, in effect, asks the court to determine the very same issues that are currently being considered by the [department] under § 22a-430. As such, if this court were to adjudicate the plaintiffs allegations that the Millstone cooling system constitutes an unreasonable pollution of the environment, it would effectively require the court to make a determination that has been delegated to the ongoing [department] permitting process.” On the issue of the plaintiffs alleged standing under § 22a-18 and § 22a-20, the court explained that neither statute conferred standing to bring an action in the Superior Court.

Following the plaintiffs successful appeal on the issue of standing pursuant to § 22a-16 in a related case, Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 812, 970 A.2d 640 (2009), the plaintiff filed a motion for reargument with the trial court. On July 28, 2009, the trial court denied the plaintiffs motion, concluding that Burton was inapplicable. The court explained that the Supreme Court “delivered a narrow holding that related solely to . . . challenges where the plaintiff alleges both unreasonable environmental harm and that the agency permitting procedure is fatally flawed. . . . Whether the rights recognized under [the act] are adequately protected by the permitting process is simply not at issue in the present case.” (Emphasis in original). This appeal followed.

I

On appeal, the plaintiff claims that the court erred in concluding that she lacked statutory standing under § 22a-16 to pursue her environmental claims against Dominion for its operation of Millstone. She argues that she sufficiently alleged that Dominion was engaging in unreasonable environmental pollution, impairment and destruction of natural resources and that the court, therefore, should not have dismissed her complaint. She further argues that the “pendency of administrative proceedings—the basis for the trial court’s dismissal— is legally irrelevant.” We conclude that the court properly found that the plaintiff does not have standing to pursue this action.

Initially, we set forth our standard of review. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. . . . Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action. . . . The [act] . . . however, waives the aggrievement requirement in two circumstances. First, any private party, including a municipality, without first having to establish aggrievement, may seek injunctive relief in court for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction .... General Statutes § 22a-16. Second, any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. General Statutes § 22a-19 (a). . . .

“Under § 22a-16, standing ... is conferred only to protect the natural resources of the state from pollution or destruction. . . . Accordingly, all that is required to invoke the jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by any person [or entity] against any person [or entity], of conduct resulting in harm to one or more of the natural resources of this state. . . . Although it is true, of course, that the plaintiff need not prove [his or her] case at this stage of the proceedings . . . the plaintiff nevertheless must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment. ... A complaint does not sufficiently allege standing [however] by merely reciting the provisions of § 22a-16 .... Rather, it must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken.” (Citations omitted; internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 802-804.

“In ruling [on] whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . If . . . the plaintiffs standing does not adequately appear from all materials of record, the complaint must be dismissed.” (Citation omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

Our Supreme Court recently has explained that “to make a colorable claim sufficient to establish . . . standing under § 22a-16 ... [a] complaint . . . [must] contain allegations of substantive violations giving rise to unreasonable pollution . . . that is, allegations of pollution in excess of that permitted under the regulatory scheme . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 557.

In her complaint, the plaintiff claimed that Millstone is withdrawing more than two bilhon gallons of water daily from Long Island Sound for cooling purposes and that this conduct constitutes an unreasonable destruction of a natural resource, because “billions of marine life, including Niantic River winter flounder larvae, are . . . ultimately destroyed . . . [and] the population of the Niantic River winter flounder has plummeted to dangerously low levels nearing collapse and extinction.” A review of the plaintiffs allegations simply does not support an inference that the alleged harm caused by Millstone activities exceeds that which is permissible under the applicable legislative or regulatoiy scheme. See id., 557-59; Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 141, 836 A.2d 414 (2003) (“the fact that conduct may be permitted under the relevant environmental statute does not preclude a claim that the activity causes unreasonable pollution under [the act], as when the alleged pollution exceeds the amount approved in the permit”). Indeed, the operation of the Millstone cooling system is governed by the permitting process set forth in § 22a-430, and the plaintiff does not claim in this action that Millstone is operating outside of its permit.

Pursuant to § 22a-430, Millstone is required to obtain a permit from the department in order to operate its cooling system. Millstone’s permit renewal application was pending before the department from approximately 1997 until August, 2010. While the application was pending, Millstone continued to operate under its previously granted permit. The plaintiff was an intervenor in the permit renewal process where she raised several important environmental issues, including the issues she has raised in this action. At the time of her filing the present action in March, 2009, Millstone’s permit renewal application still was pending before the department. In August, 2010, however, the permit application was granted by the department with many restrictions, and a new permit was issued on September 1, 2010. We also take judicial notice that the plaintiff has appealed from that decision. See generally Papic v. Burke, 113 Conn. App. 198, 221 n.13, 965 A.2d 633 (2009) (appellate courts have authority to take judicial notice of Superior Court files).

Clearly, “the department . . . has statutory and regulatory authority to issue water discharge permits, to determine the completeness of renewal applications and to pursue any one of several remedies if it concludes that a discharge is creating unreasonable pollution or is occurring without a valid permit.” (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 133. In the present action, the plaintiff essentially is claiming that Millstone’s water cooling process is environmentally harmful. That process, however, is governed by the regulatory scheme set forth in § 22a-430. The plaintiff does not claim that Millstone has gone beyond that which is permitted by the department’s permit. See Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. 559-61. Although the plaintiff does not facially challenge the validity of the permit on environmental grounds, that is the essence of her claim. Accordingly, the court properly concluded that the plaintiff did not have standing to pursue her claim under the act. See Connecticut Coalition Against Millstone v. Rocque, supra, 148 (“[w]here the alleged conduct involves a permitting claim . . . there is no standing pursuant to § 22a-16 to bring the claim directly in the Superior Court”).

II

The plaintiff next claims that the court improperly denied her the opportunity to present witnesses and to cross-examine the commissioner’s affiant in order to prove that the plaintiff had standing to proceed with this action. We disagree.

It is well established in our case law that an evidentiaty hearing may be appropriate with respect to a motion to dismiss. “[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. ... If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.” (Citation omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007). “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Fairfax Properties, Inc. v. Lyons, 72 Conn. App. 426, 432, 806 A.2d 535 (2002); see also Lawton v. Weiner, 91 Conn. App. 698, 705-706, 882 A.2d 151 (2005) (hearing required only when motion to dismiss raises genuine issue of material fact).

As explained by the trial court: “On March 23, 2009, the plaintiff requested that she be allowed to present witness testimony from two [department] marine scientists that would rebut the defendants’ arguments. The court ordered that the witnesses would be permitted to testify on April 2, 2009, but stated that the court would only permit testimony that was relevant to the issue of standing as raised in the defendants’ motions to dismiss. On March 30,2009, the plaintiff filed a memorandum in opposition to the defendants’ motions to dismiss. On April 2, 2009, the defendants filed motions in limine to preclude the plaintiff’s proposed witness testimony on the ground that her witnesses would be unable to present any testimony that would be relevant to the issue of standing and that any testimony the witnesses, as marine scientists, could credibly provide would address the merits of her case, and not the standing arguments raised in the defendants’ motions to dismiss. At the scheduled hearing on April 2, 2009, the court advised the plaintiff of the recently filed defense motions to preclude [her] witness testimony and asked if the plaintiff would like a continuance so that she could respond to the defendants’ motions to preclude [the] witness testimony. The plaintiff declined and expressed that she wished to proceed and respond to the motions in open court. The court then asked the plaintiff to provide a proffer that would demonstrate that [the] witnesses she wished to present could address the issue of statutory standing under [the act]. After lengthy proffer and argument, the court found [that] the plaintiffs proffer was insufficient and precluded the witness testimony on the ground that the proposed witnesses could not provide any testimony that would be relevant to the issues of statutory standing raised in the defendants’ motions to dismiss.” We agree with the court.

As stated in part I of this opinion, the plaintiff alleges that Millstone’s water cooling process is environmentally harmful. The water cooling process, however, is governed by the regulatory scheme set forth in § 22a-430 and the permit issued pursuant thereto by the department. The plaintiffs complaint does not allege that Millstone is acting outside of its permit. Rather, it appears to allege, without specifically saying as much, that the permit should be invalidated because it is allowing environmentally harmful results, i.e., the destruction of the fish and their larvae. Such allegations, however, are insufficient to prove standing under the act. Accordingly, we agree with the court that the plaintiff could not prove standing in this case by the introduction of testimony, there being no disputed facts that would support the plaintiffs standing.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 63-4 (a) provides in relevant part: “At the time the appellant sends a copy of the endorsed appeal form and the docket sheet to the appellate clerk, the appellant shall also send the appellate clerk an original and one copy of the following: (1) A preliminary statement of the issues intended for presentation on appeal. If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within twenty days from the filing of the appellant’s preliminary statement of the issues . . .

       In Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 801, 970 A.2d 640 (2009), our Supreme Court concluded that “§ 22a-20 does not create an independent cause of action.”

       Although we do not agree with the plaintiff that the court based its decision to dismiss this action on the fact that there were ongoing administrative proceedings, we note that prior to oral argument in this appeal, we were notified by the parties that the department issued a final decision on the defendant’s application for renewal of Millstone’s national pollutant discharge elimination system permit for the withdrawal and discharge of waters from Niantic Bay into Long Island Sound associated with the operation of Millstone in August, 2010, and the new permit was issued on September 1, 2010.

       When this action was commenced, the permit under which Millstone was allowed to operate its cooling system was a permit that was approved in 1992. During the permit application renewal process, the 1992 permit remained in effect. In September, 2010, the department issued a new permit. See footnote 3 of this opinion.