author: HARPER, J.

text:
    STATE OF CONNECTICUT v. TAURUS DAVENPORT
    (AC 31784)
    DiPentima, C. J., and Harper and Alvord, Js.

      Argued October 25, 2010
    officially released April 12, 2011

      Morgan P. Rueckert, with whom was Moira L. Buckley, for the appellant (defendant).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Edward R. Azzaro, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Taurus J. Davenport, appeals from the judgment of conviction rendered after he pleaded guilty under the Alford doctrine to one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that his conviction should be reversed and the case should be remanded so that he may withdraw his plea because the trial court improperly accepted his plea without first complying with the mandates of General Statutes § 54-251 (a) and ensuring that he understood that he would be required to register as a sex offender as a consequence of his plea. We agree.

The record reveals the following facts and procedural history that are relevant to the resolution of the defendant’s claim on appeal. On September 23, 2009, the defendant entered a plea of guilty under the Alford doctrine to one count of risk of injury to a child in violation of § 53-21 (a) (2). On December 2, 2009, the defendant was sentenced to ten years of imprisonment, execution suspended, with ten years of probation. The defendant also was required to register as a sex offender pursuant to § 54-251 for a period of ten years. On December 22, 2009, the defendant filed a notice of appeal, a motion for stay of probation and sex offender registration pending appeal, and a motion to correct an illegal sentence. On January 15, 2010, the court granted the defendant’s motion to stay probation and sex offender registration pending appeal. The defendant subsequently withdrew his motion to correct an illegal sentence. At no point did the defendant file a motion to withdraw his guilty plea.

The defendant claims that the trial court erred in failing to comply with the provisions of § 54-251 (a) by accepting his guilty plea without adequately informing him that he would be required to register as a sex offender as a consequence of his plea. The defendant contends that because the court failed to comply with § 54-251 (a), his conviction should be reversed and his case remanded so that he may withdraw his plea. We agree.

As an initial matter, we must address the defendant’s failure to properly preserve his claim by filing a timely motion to withdraw his plea pursuant to Practice Book § 39-26. “Practice Book 39-26 provides in relevant part: A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed. . . . Our courts have held that [b]ecause Practice Book § [39-26] precludes a defendant from withdrawing his plea after the conclusion of sentencing, [t]he failure of the defendant to make a motion to withdraw his plea before the conclusion of the proceeding at which the sentence was imposed ordinarily precludes review of claimed infirmities in the acceptance of a plea.” (Emphasis in original; internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 810, 772 A. 2d 690 (2001). The defendant, however, seeks redress of his claim under the plain error doctrine.

“[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citations omitted; internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009).

“[W]e recently clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .

“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 205, 982 A.2d 620 (2009).

Although not a per se rule; see State v. Myers, supra, 290 Conn. 290 n.10; both this court and our Supreme Court have often found plain error in instances where a trial court failed to comply with the mandatory requirements of an applicable statute. See, e.g., Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993) (“[i]t is plain error for a trial court to fail to apply an applicable statute, even in the absence of the statute having been brought to its attention by the parties”); State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980) (“[wjhere the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error”); State v. Ellis, 32 Conn. App. 849, 853, 632 A.2d 47 (1993) (trial court’s failure to comply with applicable rule of practice constituted plain error).

The defendant claims that the trial court committed a clear and obvious mistake by failing to comply with the requirements of § 54-251 (a) and that, as a result of this failure, his conviction under § 53-21 (a) (2) is manifestly unjust. Pursuant to § 54-251 (a), a person who is convicted of a “criminal offense against a victim who is a minor” is required to register as a sex offender. A “criminal offense against a victim who is a minor,” as the term is used in § 54-251 (a), includes a violation of “subdivision (2) of subsection (a) of section 53-21 . . . .” General Statutes § 54-250 (2). Thus, the defendant’s conviction under § 53-21 (a) (2) subjected him to the registration requirements of § 54-251 (a). Section 54-251 (a) provides in relevant part: “Prior to accepting a plea of guilty or nolo contendere from a person with respect to a criminal offense against a victim who is a minor or a nonviolent sexual offense, the court shall (1) inform the person that the entry of a finding of guilty after acceptance of the plea will subject the person to the registration requirements of this section, and (2) determine that the person fully understands the consequences of the plea.” Therefore, pursuant to § 54-251 (a), prior to accepting the defendant’s plea, the court was required to both inform him that an entry of a finding of guilty after accepting his plea would subject him to the sex offender registry requirements and determine that he fully understood those consequences of his plea.

A thorough review of the transcript of the plea hearing reveals that, contrary to the requirements of § 54-251 (a), the court did not inform the defendant that he would be required to register as a sex offender prior to accepting his guilty plea Although the court inquired as to whether the defendant had discussed penalties that attached to his offenses with his attorney, to which the defendant responded affirmatively, the court never informed the defendant that he would be required to register as a sex offender as a consequence of his guilty plea, or inquired as to whether he was aware that sex offender registration was a consequence of his plea. During the ongoing canvass immediately following the acceptance of the defendant’s plea, the following colloquy took place:

“The Court: All right. . . . I’m going to make the following findings: I’m going to find that your plea is entered knowingly and voluntarily and it’s also entered intelligently. You understand the penalty of the crime that you’ve pled guilty to, as well as the penalties and consequences of entering that plea. I’m going to find that you have received adequate advice and effective assistance of competent counsel. I’m going to find a factual basis for the plea. The plea is hereby accepted, a finding of guilty is made.
“The court does hereby order the preparation of a presentence investigation. Now . . . the agreement is that you’re going to receive a sentence of ten years suspended, ten years probation.
“The Defendant: Yes.
“The Court: All right. And that’s the only promise or inducement that’s been made to you in order to have you plead guilty?
“The Defendant: Yes. The only thing, I was trying to avoid the — the, you know, the register — to register because, like I said, I want to continue to try to prevent this problem. And I want to deal with the kids. I’m really qualified to do it. That’s the field I should have been in, but I like volunteering to do that. That’s just something I like to do, so—
“The Court: Okay. All right.
“The Defendant: So—
“The Court: But I — I think a plea under this section, sir—
“The Defendant: I understand.
“The Court: —makes the registration mandatory—
“The Defendant: Yeah.
“The Court: —if I’m thinking of the right section. And I’m quite sure that that’s something [your attorney] has already considered—
“The Defendant: Yeah.
“The Court: —in trying [to] work out a deal for you. All right. So, are you going back to Florida at this point . . . ?
* * *
“The Court: You always have a right to modify the conditions of your probation.
“The Defendant: Okay.
“The Court: The registration part, though, that, you should speak to [your attorney] about because—
“The Defendant: Okay.
“The Court: —that’s a trickier issue.
“The Defendant: All right.
“The Court: Okay. It’s not an issue that I can give you a simple answer to cause there is no simple answer to it.
“The Defendant: I understand.
“The Court: All right. Any more questions, sir?
“The Defendant: No, sir.
“The Court: December 2 for sentencing.
“The Defendant: Thank you.”

The defendant claims, and we agree, that the court’s statements did not satisfy the requirements of § 54-251 (a). Although the court mentioned the sex offender registry requirements during the ongoing canvass, its discussion was not sufficient to satisfy the mandate of § 54-251 (a). The court’s statement that it thought registration was mandatoiy if it was “thinking of the right section” and its assertion that there was “no simple answer” to the question of whether the defendant would be required to register, were not adequate to inform the defendant that he would be required to register as a sex offender or to ensure that he fully understood the consequences of his plea, as is required by § 54-251 (a). Thus, under the first step of our plain error analysis, we conclude that the trial court erred by not adequately complying with the requirements of § 54-251 (a) and that such error is obvious in the sense that it is not debatable.

Turning to the second step of our analysis, we conclude that, under the unique circumstances of this case, the court’s failure to comply with the requirements of § 54-251 (a) constitutes “one of the truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings” and thereby warrants reversal under the plain error doctrine. (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 87, 905 A.2d 1101 (2006), cert, denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

In the present case, the error went beyond merely failing to comply with the requirements of § 54-251 (a). Rather, during the canvass, the defendant informed the court that one of the reasons he was entering his plea was to avoid the requirement that he register as a sex offender. By doing so, the defendant brought the issue of registration to the attention of the trial court and explicitly indicated to the court his fundamental misunderstanding about the consequences of his guilty plea. In response to this statement, the court, rather than expressly informing the defendant that he would, in fact, be required to register as a consequence of his plea, essentially told the defendant that it was unsure if registration was a consequence of the plea. Therefore, in the present case, the court not only failed to comply with the requirements of § 54-251 (a), but failed to do so even after the issue had been raised and the court had been informed that the defendant was entering his plea on the mistaken belief that doing so would allow him to avoid the registry requirements. We conclude that, under the unique circumstances of this case, not reversing the conviction would result in manifest injustice to the defendant and, thus, the court’s failure to comply with the requirements of § 54-251 (a) constituted plain error.

The judgment is reversed and the case is remanded with direction to allow the defendant to withdraw his guilty plea and for further proceedings in accordance with law.

In this opinion the other judges concurred.

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

       The defendant also requests that this court, exercise its supervisory authority to review his claim, or in the alternative, review his claim under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because we find that plain error exists, we need not address these requests.

       Neither party contests that the requirements of § 54-251 (a) are mandatory. We note that such an interpretation is consistent with the plain language of the statute in light of the fact that the word “shall” is juxtaposed with the substantive action verbs “inform” and “determine,” thus indicating that the provisions of the statute are mandatory. See Wiseman v. Armstrong, 295 Conn. 94, 101, 989 A.2d 1027 (2010) (“the word shall creates amandatory duty when it is juxtaposed with [a] substantive action verb” [internal quotation marks omitted]).

       The record reflects that during the plea proceedings the defendant was represented by attorney Matthew S. Davis.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DOUGLAS R. BROWN, ADMINISTRATOR (ESTATE OF EDMOND FENYES), ET AL. v. RICHARD FENYES
    (AC 32534)
    DiPentima, C. J., and Gruendel and Flynn, Js.
    Argued January 31
    officially released April 12, 2011

      Richard Fenyes, pro se, the appellant (defendant).

      Douglas R. Brown, pro se, the appellee (named plaintiff).

      Joseph W. Auger, for the appellee (plaintiff James Sheridan, trustee).
   Opinion

PER CURIAM.

The defendant, Richard Fenyes, appeals from the judgment of possession rendered in this summary process action in favor of the plaintiffs, Douglas R. Brown, administrator of the estate of Edmond Fenyes, and James Sheridan, trustee of the Mary Fenyes living trust. After reviewing the briefs, underlying record and pending motions, the court concludes that it lacks jurisdiction to consider this appeal and accordingly dismisses it.

The plaintiffs brought this action against the defendant, alleging that he no longer had any right or privilege to occupy the premises at 607 Booth Hill Road, Trumbull. After trial, the court rendered judgment of possession in favor of the plaintiffs. The defendant filed a timely appeal. During the pendency of the appeal, the plaintiffs filed a motion under General Statutes § 47a-35a seeking an order of use and occupancy payments. On October 26, 2010, after a hearing, the court ordered the defendant to pay monthly use and occupancy in the amount $1000 beginning November 1, 2010. Thereafter, the defendant filed an amended appeal from the use and occupancy order and made the ordered payments in November and December. At the time of oral argument before this court, the defendant had not paid use and occupancy for the month of January, 2011. Prior to oral argument, the plaintiffs filed motions to dismiss the appeal and the amended appeal, and the defendant timely objected.

As to the motion to dismiss the defendant’s amended appeal, the court turns to its decision in Scagnelli v. Donovan, 88 Conn. App. 840, 871 A.2d 1084 (2005), for guidance. In that case, this court stated that the sole remedy for seeking review of an order of use and occupancy is through a motion for review under Practice Book § 66-6. Id., 841-42. On the basis of this precedent, we dismiss the defendant’s amended appeal.

We now turn to the original appeal filed by the defendant. Section 47a-35a (a) requires a defendant occupying a dwelling unit in a summary process action to give a bond for use and occupancy during the pendency of the appeal. In Young v. Young, 249 Conn. 482, 497, 733 A.2d 835 (1999), the Supreme Court stated that “[fjailure to comply with the bond requirement makes the appeal voidable upon attack. . . . Therefore, the failure to provide such a bond furnishes a sufficient ground for dismissal of the appeal.” (Citation omitted; internal quotation marks omitted.) The defendant’s failure to comply with the use and occupancy payments in January, 2011, is a failure to comply with the bond requirement of § 47a-35a (a).

The plaintiffs’ motions to dismiss are granted.

       “Summary process is a special statutory procedure designed to provide an expeditious remedy. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Internal quotation marks omitted.) St. Paul’s Flax Hitt Co-operative v. Johnson, 124 Conn. App. 728, 733, 6 A.3d 1168 (2010), cert, denied, 300 Conn. 906, 12 A.3d 1002 (2011).

       General Statutes § 47a-35a (a) provides in relevant part: “When any appeal is taken by the defendant occupying a dwelling unit as defined in section 47a-l in an action of summary process, he shall, within the period allowed for taking such appeal, give a bond with surety to the adverse party to guarantee payment for all rents that may accrue during the pendency of such appeal, or, where no lease had existed, for the reasonable value for such use and occupancy that may so accrue; provided the court shall upon motion by the defendant and after hearing thereon order the defendant to deposit with the court payments for the reasonable fair rental value of the use and occupancy of the premises during the pendency of such appeal accruing from the date of such order. . . .”

       The defendant did file a motion for review of the court’s order for use and occupancy payments. A panel of this court granted the motion for review but denied the relief requested. The defendant then filed a motion for reargument to the panel and the court, en banc; this motion was denied.


author: ALVORD, J.

text:
    PARK NATIONAL BANK v. 3333 MAIN, LLC
    (AC 32300)
    Gruendel, Alvord and Flynn, Js.
    Argued February 8
    officially released April 12, 2011

      James M. Nugent, for the appellant (defendant).

      Scott D. Rosen, for the appellee (substitute plaintiff SA Challenger, Inc.).
   Opinion

ALVORD, J.

The defendant, 3333 Main, LLC, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, Park National Bank, after the court granted the plaintiffs motion for summary judgment as to liability. On appeal, the defendant claims that the court improperly granted the plaintiffs motion for summary judgment because a genuine issue of material fact existed as to whether the plaintiff was the holder of the note at the time it commenced the action. Because we conclude that, under the facts of this case, the court should have conducted an evidentiary hearing to determine the issue of the plaintiffs standing, we reverse the judgment of the trial court and remand the case for further proceedings.

The pleadings, affidavits and other documentary information presented to the court reveal the following facts. On April 27,2007, the defendant executed a promissory note in the principal amount of $748,000 payable to GreenPoint Mortgage Funding, Inc. (GreenPoint). The note was secured by a mortgage on real property located at 3333 Main Street in Stratford.

By complaint filed October 31,2008, the plaintiff commenced this foreclosure action alleging that the defendant defaulted on its payments beginning June 1, 2008. The defendant answered and filed a number of special defenses, including claims that the court lacked subject matter jurisdiction and that the plaintiff lacked standing.

On July 13, 2009, the plaintiff filed a motion for summary judgment as to liability, attaching an affidavit of Cindy Gruner, in which Gruner identified herself as a commercial loan officer of the plaintiff (first Gruner affidavit). Therein, Gruner stated that GreenPoint had assigned its interest in the note and mortgage to the plaintiff by virtue of an assignment of mortgage dated May 4,2008, and recorded June 23,2008, in the Stratford land records, and by “corrective assignment” recorded on March 2, 2009. Attached to that affidavit, however, was only the corrective assignment executed on February 19, 2009 (2009 corrective assignment). The corrective assignment stated it was “effective dated February 29, 2008,” but recorded on March 2, 2009.

The defendant objected to the motion for summary judgment on August 27, 2009, arguing that although the plaintiff alleged it had been assigned GreenPoint’s interest in the note and mortgage at some juncture, the only evidence provided to the court was that such assignment was recorded March 2, 2009. Thus, the defendant claimed that the plaintiff was not the holder of the note at the time the complaint was filed, October, 2008, which presented a genuine issue of material fact regarding the plaintiffs standing. The defendant argued that the plaintiff provided no evidence allowing the court to determine that the plaintiff was the holder of the note at the time of the commencement of the action.

On January 15,2010, the plaintiff filed a supplemental memorandum of law and supplemental affidavit from Gruner in support of the motion for summary judgment (second Gruner affidavit) in which Gruner claimed that the plaintiff had purchased the note on March 17, 2008. Documents substantiating this date of transfer were not attached to the second Gruner affidavit. Gruner also stated that the plaintiff was currently in possession of the original note, and indicated that a true and complete copy of the note and endorsement was appended to the affidavit. That endorsement, however, was undated and provided only that: “without recourse pay to the order of: [the plaintiff].” Finally, the plaintiff also appended the original assignment of mortgage, which had not been attached to the first Gruner affidavit, and that assignment reflected that it had been executed on February 29, 2008, but notarized on May 4, 2007, and recorded on June 23,2008 (2008 assignment). The plaintiff claimed that this 2008 assignment included a scrivener’s error in the notarized date and the 2009 corrective assignment was filed to remedy this error.

On January 22, 2010, the court granted the plaintiff’s motion for summary judgment. The court held that there was “no genuine issue of material fact as to whether the plaintiff was the owner and holder of the note at the time of the commencement of the instant foreclosure action.” On May 10, 2010, the court rendered judgment of strict foreclosure and set the law day for August 10, 2010.

The defendant appeals the judgment of foreclosure based on the granting of summary judgment as to liability. The defendant claims that it was improper for the court to grant the motion for summary judgment because there is a genuine issue of material fact as to whether the plaintiff owned the note at the time it commenced the action and, thus, lacked standing, thereby depriving the court of subject matter jurisdiction. We conclude that the court improperly rendered judgment without first resolving the issue of standing.

Our resolution of the defendant’s appeal is governed by a well established standard of review. “We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at anytime. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... 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. . . . Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented. . . . The court must fully resolve it before proceeding further with the case.” (Citations omitted; internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).

“In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. . . . Because the elements of subject matter jurisdiction are dependent upon both law and fact ... in some cases it may be necessary to examine the facts of the case to determine if it is within a general class the court has power to hear. . . . Further, [w]hen 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.” (Citations omitted; internal quotation marks omitted.) Cross v. Hudon, 27 Conn. App. 729, 733, 609 A.2d 1021 (1992).

The burden of demonstrating that a party has standing to bring an action is on the plaintiff. Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert, denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005). “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 574, 706 A.2d 989, cert, denied, 244 Conn. 913, 713 A.2d 830 (1998).

In the present case, the court ruled upon the motion for summary judgment without first resolving the factual issue of when the plaintiff took ownership and control of the note and, thus, whether it had subject matter jurisdiction. This court has recently concluded that when the jurisdiction of the court hinges on a factual determination regarding the plaintiffs status as holder of the note at the time of the commencement of the action, the court must determine the pertinent facts necessary to ascertain whether jurisdiction existed and rule on the issue of standing before addressing the merits of the controversy. Equity One, Inc. v. Shivers, 125 Conn. App. 201, 206, 9 A.3d 379 (2010); see also Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 799-800, 3 A.3d 183 (2010); LaSalle Bank, National Assn. v. Bialobrzeski, 123 Conn. App. 781, 789-90, 3 A.3d 176 (2010). In light of the documents before the court, showing discrepancies as to the date of the transfer of the note, as well as the defendant’s argument that the plaintiff had not demonstrated that it was the holder of the note when this complaint was filed, the court improperly formed a legal conclusion without establishing the factual predicate for the court’s subject matter jurisdiction. Accordingly, we reverse and remand the case to the trial court for a hearing to ascertain the plaintiffs status as the owner or holder of the subject note at the time the action was commenced, so that the court may properly determine whether it has subject matter jurisdiction.

The judgment is reversed and the case is remanded for an evidentiary hearing consistent with this opinion.

In this opinion the other judges concurred.

       Subsequent to the court’s granting of the plaintiffs motion for summary judgment, U.S. Bank, N.A., was substituted as the plaintiff. SA Challenger, Inc., was later substituted for U.S. Bank, N.A., as the plaintiff. We refer hereinafter to Park National Bank as the plaintiff for purposes of this opinion.

       The trial court granted the plaintiffs motion to cite in Dahill Donofrio, GF Mortgage Corp., Equity Release Corp. and Equity Release Holding Corp. as defendants, and the plaintiff filed an amended complaint. We will refer only to 3333 Main, LLC, as the defendant in this opinion.

       The court cited General Statutes § 49-17 for the proposition that the holder of a negotiable instrument that is secured by a mortgage may foreclose on the mortgage even when the mortgage has not yet been assigned to him. The issue in the present case is not resolved by § 49-17 because the question remains whether the plaintiff was, in fact, the holder of the negotiable instrument at the time the complaint was filed. See Fleet National Bank v. Nazareth, 75 Conn. App. 791, 795, 818 A.2d 69 (2003) (stating that “General Statutes § 49-17 . . . provides an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him. Our legislature, however, has not passed similar legislation that would give the holder of the mortgage, without having been assigned the note, the ability to foreclose on the property.”).


author: ROBINSON, J.

text:
    JASON ROBERT’S, INC. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 31256)
    Gruendel, Lavine and Robinson, Js.

      Submitted on briefs December 7, 2010
    officially released April 12, 2011

      Stuart Hawkins and Daniel Shepro filed a brief for the appellant (plaintiff).

      Richard Blumenthal, former attorney general, and Philip M. Schulz and Richard T. Sponzo, assistant attorneys general, filed a brief for the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiff, Jason Robert’s, Inc., appeals from the judgment of the trial court affirming the decision of the employment security board of review (board), which found that the plaintiff was hable for unemployment compensation contributions with regard to the claimant, Michael Derose. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff is a concrete business. During the years 1998,1999 and 2000, the plaintiff employed Derose as a concrete artisan. While Derose was working for the plaintiff as an employee, he asked for a raise in salary. In order to give Derose the potential to earn more money, the plaintiff directed Derose to set up a business so that he could enter into an agreement with the plaintiff as a licensed dealer. In or about 2001, after Derose had set up his own business, the plaintiff presented him with a licensed dealer authorization (agreement), and, on May 4, 2001, Derose signed the agreement and became a licensed dealer for the plaintiff.

The agreement provided the following: the plaintiff would do all of the scheduling when a job was sold on its contract; Derose had to contact the plaintiff on a daily basis for a status report on each job; Derose had to purchase the plaintiffs uniforms and wear the uniform each day; the plaintiff retained the right to cancel the agreement if Derose engaged in certain conduct, which included, inter alia, use of drugs, use of alcohol during the workday, intoxication on the job, continued absence or tardiness, failure to meet installation goals and insubordination; Derose had to notify the plaintiff one hour prior to his normal arrival time if he was to be absent on that day; Derose had to lease a truck from the plaintiff and was required to maintain the truck, which included waxing the exterior of the vehicle and cleaning the interior of the vehicle; and Derose could not compete, directly or indirectly, with the plaintiff for the term of the agreement and for a period of two years thereafter.

Derose was a licensed dealer of the plaintiff during the years 2001 and 2002. During those years, the plaintiff classified Derose as an independent contractor. At the end of 2002, Derose terminated the agreement because the arrangement had become unprofitable for him. After terminating the agreement, Derose filed a claim for benefits under the Unemployment Compensation Act (act), General Statutes § 31-222 et seq. This claim for benefits caused the defendant, the administrator of the act, to issue a missing wage assignment. Pursuant to the missing wage assignment, Robert E. Stem, a field auditor of the employment security division of the state department of labor, requested that the plaintiff make available its books and records for an audit. On April 25, 2003, after Stem had conducted his audit, he issued his written report, wherein he concluded that Derose was an employee during the years 2001 and 2002. In a letter dated April 29, 2003, the defendant informed the plaintiff of this determination and that there would be an assessment for the contributions due in the amount of $4366.03 plus interest. On May 16, 2003, the plaintiff appealed this determination to the appeals division, and, on April 17, 2007, a hearing was held before an appeals referee. On September 12, 2007, after having made extensive findings of fact, the appeals referee affirmed the determination. In its decision, the appeals referee applied § 31-222 (a) (1) (B) (ii), more commonly known as the “ABC test,” to its extensive factual findings and concluded that Derose was an employee of the plaintiff. The referee reached this conclusion after having determined that the plaintiff failed to satisfy any of the three prongs of the ABC test.

On September 20, 2007, the plaintiff appealed the decision of the appeals referee to the board pursuant to General Statutes § 31-249. On appeal, the plaintiff claimed that the appeals referee had failed to consider the issue of whether a franchise agreement existed between it and Derose pursuant to General Statutes § 42-133e (b). Additionally, the plaintiff claimed that, as a matter of law, a finding that a franchise agreement existed would have removed the relationship between it and Derose from the operation of the act. On November 2, 2007, the board modified and adopted the appeals referee’s findings of fact, affirmed the decision and dismissed the plaintiffs appeal. In its decision, the board declined to make a finding as to whether a franchise agreement existed between the plaintiff and Derose. The board concluded that, even if a franchise agreement did exist, the ABC test governed the question of whether Derose was an employee as defined by the act. Having determined this, the board then concluded that the plaintiff had failed to satisfy any of the prongs of the ABC test. Thereafter, the plaintiff, pursuant to General Statutes § 31-249b, appealed the board’s decision to the Superior Court. The court affirmed the board’s decision and rendered judgment dismissing the plaintiffs appeal on June 17, 2009. This appeal followed.

On appeal, the plaintiff claims that the court should have determined that the board’s decision resulted from the application of the incorrect legal standard to the facts found. Specifically, the plaintiff claims that the board should have applied § 42-133e (b), rather than the ABC test, to the facts found. We disagree.

Our standard of review of appeals of this nature is well settled. “To the extent that an [appeal] . . . concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry facts nor hear evidence. . . . If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996).

We conclude that the board applied the correct legal standard to the facts found. The sole question before the appeals referee and the board was whether Derose was an employee of the plaintiff for unemployment compensation purposes. To answer this question, the referee and the board applied well settled unemployment compensation law. “An individual may receive unemployment compensation benefits if he or she was an employee within the meaning of the act. In addition to defining the employer-employee relationship pursuant to the common law, § 31-222 (a) (1) (B) provides that individuals who perform services for others are presumed to be employees, unless the recipient of the services (enterprise) satisfies . . . the ABC test. In order for an enterprise to demonstrate that an individual was not an employee, and that the enterprise therefore has no liability for unemployment taxes under the act, the enterprise must prove that the individual satisfies each of the three prongs of the ABC test. This test is conjunctive; failure to satisfy any one of the prongs will render the enterprise subject to the act. . . . Under the ABC test, an individual will not be considered an employee if: [A] such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and [B] such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and [C] such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 277-78. Having applied this law to the extensive facts found, the board properly determined that the plaintiff failed to satisfy all of the prongs of the ABC test and, consequently, that Derose was an employee.

The plaintiff contends, however, that had the board applied § 42-133e (b) to the facts found, it would have determined that a franchise agreement existed and, furthermore, that the ABC test would have been inapplicable. Specifically, the plaintiff argues that a finding that a franchise agreement exists between the parties exempts the relationship from the purview of the act. The plaintiff neither cites, nor does our research reveal, any legal support for this argument. On the basis of our review of the act, we find nothing that elucidates the question of whether the existence of a franchise agreement precludes application of the ABC test. The act makes no express exemption for franchises, nor can we imply an exemption, particularly when, as is the case here, the legislature has created numerous exemptions from coverage under the act. “[I]f the legislature had intended to create [an] exception . . . we must assume that it would have said so expressly. [I]t is a principle of statutory construction that a court must construe a statute as written. . . . Courts may not by construction supply omissions ... or add exceptions merely because it appears that good reasons exist for adding them. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 320-21, 984 A.2d 676 (2009). While we appreciate that franchises are business arrangements that can differ in many ways from a traditional employment relationship, “[w]e must construe and apply the statute as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions.” (Internal quotation marks omitted.) State ex rel. Heimov v. Thomson, 131 Conn. 8, 12, 37 A.2d 689 (1944). Accordingly, we conclude that the court properly affirmed the board’s decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       The claimant, Derose, was a nonappearmg defendant at trial and is not involved in this appeal. We refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       General Statutes § 31-222 (a) (1) (13) provides in relevant part: “Any service performed prior to January 1, 1978, which was employment as defined in this subsection prior to such date and, subject to the other provisions of this subsection, service performed after December 31, 1977, including service in interstate commerce, by any of the following: (i) Any officer of a corporation; (ii) any individual who, under either common law rules applicable in determining the employer-employee relationship or under the provisions of this subsection, has the status of an employee. Service performed by an individual shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that © such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . .”

       General Statutes § 31-249 provides in relevant part: “At any time before the referee’s decision has become final within the periods of limitation prescribed in section 31-248, any party including the administrator, may appeal therefrom to the board. . . .”

       General Statutes § 31-249b provides in relevant part: “At any time before the board’s decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the superior court for the judicial district of Hartford or for the judicial district wherein the appellant resides. . . .”

       General Statutes § 42-133e (b) provides: “ ‘Franchise’ means an oral or written agreement or arrangement in which (1) a franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed in substantial part by a franchisor, provided nothing contained herein shall be deemed to create a franchisor-franchisee relationship between the grantor and grantee of a lease, license or concession to sell goods or services upon or appurtenant to the premises of the grantor, which premises are occupied by the grantor primarily for its own independent merchandising activities; and (2) the operation of the franchisee’s business pursuant to such plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor or its affiliate, and includes any agreement between a manufacturer, refiner or producer and a distributor, wholesaler or jobber, between a manufacturer, refiner or producer and a retailer, or between a distributor, wholesaler or jobber and a retailer . . . .”

       The plaintiff does not challenge the court’s determination that the plaintiff failed to prove all three prongs of the ABC test.

       For example, the act exempts the following individuals from coverage: certain commissioned workers; General Statutes §§ 31-222 (a) (5) (K) and (N); students; General Statutes § 31-222 (a) (5) (G); work study individuals; General Statutes § 31-222 (a) (5) (J); relatives; General Statutes § 31-222 (a) (5) (A); and independent contractors; General Statutes § 31-222 (a) (1) (B).


author: LAVERY, J.

text:
    HOWARD C. FRITZ v. JULIANNA M. FRITZ
    (AC 30167)
    Lavine, Beach and Lavery, Js.

      Argued December 6, 2010
    officially released April 12, 2011

      Samuel V. Schoonmaker TV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellant (plaintiff).

      George J. Markley, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Howard C. Fritz, appeals from the judgment of the trial court dissolving his marriage to the defendant, Julianna M. Fritz. The plaintiff takes issue with the corut’s financial orders and awards, claiming that the court (1) improperly awarded him nonmodifiable, time limited periodic alimony and (2) made erroneous assumptions about his contributions to the parties’ home equity line of credit. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claims on appeal. The parties were married on May 29, 1994, and their only child was bom on June 22, 1995. The plaintiff commenced the underlying divorce action on April 6, 2006. The parties continued to reside together until November 16, 2006, when the court granted the defendant’s motion for exclusive possession of the marital residence located at 168 Westport Road in Wilton. Shortly thereafter, the plaintiff moved into the parties’ rental property located at 1179-1181 Hope Street in Stamford. The corut heard testimony over five days in March, 2008, and issued its memorandum of decision on July 2, 2008. The court then articulated its decision on February 13, 2009, and August 6, 2009.

The court found the following facts. The plaintiff, aged forty-four, holds a bachelor’s degree from the State University of New York at Albany. Following his graduation from college, he held a wide range of positions within the publishing industry. He also launched two privately held businesses, which he operated until 2002. As of the date of trial, he was working as a self-employed Realtor. His income was “sporadic, inconsistent and unpredictable.” The defendant, also aged forty-four, holds a bachelor’s degree from Ithaca College. As of the date of trial, she was working for JP Morgan Chase Bank. She had an annual gross income of $128,000.

On March 18, 2002, the plaintiff was involved in an automobile collision. He complained of back and neck pain, and was taken to a nearby hospital for treatment. Although he was discharged from the hospital later that day, he continued to feel “as if he was in a huge cloud.” (Internal quotation marks omitted.)

At trial, the plaintiff argued that the collision adversely had affected his mental capacity and ability to work. Specifically, he testified that his mental processing speed had slowed and that he found it difficult to express himself following the collision. Jeffrey S. Cohen, the plaintiffs treating psychologist, testified that the plaintiffs mental processing speed was abnormally slow and that the plaintiffs attention, concentration and memory skills were deficient. Cohen also testified that the plaintiff was suffering from anxiety, depression, postconcussive syndrome and post-traumatic stress disorder. Sidney S. Horowitz, the court-appointed psychologist, testified that the plaintiffs judgment, memory and insight skills were mildly to moderately impaired and that the plaintiffs attention, concentration and visual motor integration skills were severely impaired. The defendant testified, however, that she had not noticed any change in the plaintiffs mental capacity following the collision.

On July 2, 2008, the court issued the judgment of dissolution, comprehensive financial orders and alimony award that form the basis of the present appeal. The court, in its memorandum of decision, made several findings regarding the plaintiffs argument that the collision adversely had affected his mental capacity and ability to work. Specifically, the court found that the plaintiff ably had managed the parties’ rental property, passed a real estate licensing examination and conducted several real estate transactions following the collision. The court also found that the plaintiff offered no evidence, other than his own testimony, that tends to demonstrate that the collision adversely affected his ability to maintain some form of employment. The court then found that the plaintiff had an earning capacity of at least $40,000 per year.

The court also made several findings regarding the parties’ home equity line of credit. Specifically, the court found that “[t]he parties have relied heavily on their home equity line of credit ... to service recurring debt and to pay lawyers. Between January, 2006, and July, 2007, aside from what appears to be payment of the family’s regularly recurring, customary and/or ordinary expenses, the plaintiff has paid to himself the sum of approximately $111,500. The court would note that the defendant was paying all three mortgages [on the parties’ marital residence and rental property] and the plaintiff has made no contribution toward those expenses. The plaintiff has made one payment toward the balance owed on the [home equity line of credit] in the amount of $5000.”

The court entered comprehensive financial orders in connection with the parties’ assets, and ordered the defendant to pay to the plaintiff periodic alimony in the amount of $1000 per month for a term of two years. The alimony award provides that it shall be nonmodifiable as to the specified amount and term.

On December 16, 2008, the plaintiff filed a motion for articulation requesting, among other things, that the court articulate whether it considered the plaintiffs health in fashioning the alimony award. The court granted the plaintiffs motion and issued its articulation on February 13, 2009. The articulation provides in relevant part: “As to the award of rehabilitative alimony to the plaintiff, the court considered all of the relevant statutory criteria as set forth in [General Statutes §] 46b-82 .... The court’s award of alimony was time limited, in that the evidence demonstrated that the plaintiff has the ability to support himself, but would require a reasonable amount of time, with this litigation no longer consuming him, before he was fully self-sufficient.”

On March 3, 2009, the plaintiff filed a motion for further articulation requesting, among other things, that the court articulate whether it found that the defendant had used funds from the home equity line of credit to make mortgage payments on the parties’ marital residence. The court denied the plaintiffs motion. Thereafter, the plaintiff filed with this court a motion for review, which this court granted on May 6, 2009. In its August 6, 2009 articulation, the trial court stated in relevant part: “In addition to the court’s finding at pages 25-27 of the court’s July 2, 2008 memorandum of decision, the court would add that, by way of the defendant’s employment income and use of the parties’ [home equity line of credit], the defendant paid substantially all of the parties’ regularly recurring debts, including the mortgages on both the [marital residence and rental property]. The plaintiff contributed little, if any funds, to the parties’ recurring debts.” This appeal followed. Additional facts and procedural history will be set forth as necessary.

We begin by setting forth the applicable standard of review. “It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous. . . . An appellate court will not disturb atrial 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.” (Citation omitted; internal quotation marks omitted.) Kovalsick v. Kovalsick, 125 Conn. App. 265, 270-71, 7 A.3d 924 (2010).

I

The plaintiff first claims that the court abused its discretion by awarding him nonmodifiable, time limited alimony. Specifically, he argues that the court (1) did not adequately consider his health in fashioning the alimony award, and improperly (2) found that he had an earning capacity of at least $40,000 per year, (3) limited the duration of the award to two years and (4) precluded modification of the award. We are not persuaded.

A

The plaintiff argues that the court abused its discretion by not adequately considering his health in fashioning the alimony award pursuant to the requirements of § 46b-82. Specifically, he argues that the court did not adequately consider the adverse effect of the collision on his mental capacity and ability to work. In response, the defendant argues that the court thoroughly considered the available evidence regarding the plaintiffs health in compliance with § 46b-82. We agree with the defendant.

“[Section] 46b-82 governs awards of alimony. That section requires the trial court to 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 .... In awarding alimony, [t]he 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 findings as to each statutory factor. ... In particular, rehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency.” (Internal quotation marks omitted.) Id., 271-72.

Our review of the record indicates that the court fully considered the plaintiffs health in fashioning the alimony award. The court heard testimony from several witnesses regarding the plaintiffs health and received a variety of reports from two psychologists regarding the plaintiffs mental capacity. The court also heard testimony and received evidence regarding the plaintiffs professional activities following the collision. In light of the foregoing evidence, the court found that the plaintiff was able to work and that his “capacity, both physical and mental, [was] greater than that to which he aspire[d].” We therefore conclude that the claim that the court abused its discretion by failing to consider the plaintiffs health in fashioning the alimony award is without merit.

B

The plaintiff next argues that the court abused its discretion by imputing to him an earning capacity of at least $40,000 per year. Specifically, he argues that the court’s finding is unrealistic in light of his training, mental capacity and recent employment history. In response, the defendant argues that the court’s finding is realistic in light of the available evidence. We agree with the defendant.

“[T]he court may base financial awards on earning capacity rather than actual earned income of the parties. . . . While there is no fixed standard for the determination of an individual’s earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health. . . . [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings. ... It is appropriate to consider a party’s earning capacity where there is evidence of that party’s previous earnings.” (Citation omitted; internal quotation marks omitted.) Boyne v. Boyne, 112 Conn. App. 279, 283, 962 A.2d 818 (2009).

The record contains ample support for the court’s finding that the plaintiff has an earning capacity of at least $40,000 per year. While the court found that the plaintiffs income since the date of the collision had been sporadic, it also found that his financial difficulties were due, in large measure, to his failure to apply himself to his work as a self-employed Realtor. Specifically, the court found that the plaintiff had not advertised his services, maintained office hours, retained telephone coverage or worked for more than two hours each day. While the court found that the plaintiff had not invested sufficient time and effort into his work, it credited the plaintiffs testimony that he had earned between five and six commissions since the date of the collision. The court also took note of one transaction in 2005 in which the plaintiff and an investment partner invested in and renovated a property, from which the defendant earned $38,260. The court then found that there is nothing in the record that tends to demonstrate that the plaintiff would be unable to conduct similar transactions in the future.

In addition to its extensive findings regarding the plaintiffs work as a self-employed Realtor, the court also made extensive findings regarding the plaintiffs continued management of the parties’ rental property. The court found that the plaintiffs responsibilities in managing the rental property were substantial, as he was responsible for locating tenants, negotiating lease agreements and coordinating renovations. The court then found that the plaintiffs negotiation of one lease agreement demonstrated that he was clear, decisive and organized.

In light of the foregoing, we conclude that the record contains sufficient evidence regarding the plaintiffs education and employment history to support the court’s finding that he had an earning capacity of at least $40,000 per year. The finding, therefore, is not clearly erroneous and the court did not abuse its discretion.

c

The plaintiff also argues that the court abused its discretion by limiting the duration of the alimony award to two years. Specifically, the plaintiff argues that the two year time limitation is logically inconsistent with the court’s findings of fact and the evidence in the record. In response, the defendant argues that the two year time limitation is fully supported by the court’s findings and the evidence in the record. We agree with the defendant.

“Time limited alimony is often awarded. [Our Supreme Court] has dealt with challenges to an award of time limited alimony on numerous occasions. . . . The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand. . . . In addition to being awarded to provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency, time limited alimony is also appropriately awarded to provide interim support until a future event occurs that makes such support less necessary or unnecessary.” (Internal quotation marks omitted.) de Repentigny v. de Repentigny, 121 Conn. App. 451, 460-61, 995 A.2d 117 (2010).

In the present case, the court found that while the plaintiff was capable of working, he had been consumed by the dissolution litigation. The court determined, therefore, that the plaintiff would require a reasonable amount of time after the litigation before he could become fully self-sufficient. In light of its findings, the court limited the duration of the alimony award to two years. Our review of the record reveals ample support for the court’s findings. We conclude, therefore, that the court did not abuse its discretion by limiting the duration of the alimony award to two years.

D

The plaintiff finally argues that the court abused its discretion by precluding modification of the alimony award. Specifically, the plaintiff argues that nonmodifiable alimony awards are contrary to public' policy. In response, the defendant argues that the court had the authority under § 46b-86 to preclude modification of the award. We agree with the defendant.

“It is a well settled principle of matrimonial law that courts have the authority under § 46b-86 to preclude the modification of alimony awards. . . . Section 46b-86 (a) itself provides in relevant part that [u)nless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. . . . This statute clearly permits a trial court to make periodic awards of alimony nonmodifiable.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Marshall v. Marshall, 119 Conn. App. 120, 128-29, 988 A.2d 314, cert, granted on other grounds, 296 Conn. 908, 993 A.2d 467 (2010) (appeal withdrawn November 18, 2010).

The plaintiffs policy argument is trumped by the plain language of § 46b-86, which empowers the trial court to preclude modification of an alimony award. Moreover, the plaintiffs argument is contrary to our case law. See id. Accordingly, the plaintiffs argument is without merit.

II

The plaintiff next claims that the court made erroneous assumptions about his contributions to the parties’ home equity line of credit. Specifically, he argues that the court’s finding is clearly erroneous and that the court improperly altered its finding by way of its August 6, 2009 articulation. We are not persuaded.

General Statutes § 46b-81 governs assignments of property and transfers of title in dissolution proceedings. The plaintiff focuses on § 46b-81 (c), which provides in relevant part: “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, 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, 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.” (Emphasis added.)

The plaintiff argues that the court erroneously found that he “ ‘made no contribution’ ” to the “payments of expenses of the family, including the mortgages and the home equity line of credit.” The court, however, did not find that the plaintiff “made no contribution” toward the home equity line of credit. Rather, the court found that between January, 2006, and July, 2007, the plaintiff used funds from the home equity line of credit to cover the parties’ regularly recurring debts, and specifically found that he had made one payment toward the balance owed on the home equity line of credit. The court found that the defendant “was paying all three mortgages” and that the plaintiff has “made no contribution” toward “those expenses.” The court noted that only the defendant was making any payments on the first mortgages on each property but specifically credited the plaintiffs one $5000 payment toward the home equity line of credit. Thus, the plaintiffs argument is without merit.

The plaintiff also argues that the court improperly altered its initial finding by way of its August 6, 2009 articulation. Specifically, he argues that the court “broadened its answer . . . beyond the [home equity line of credit] in a possible attempt to minimize its problematic ‘no contribution’ finding.” Because we have determined that the court did not find that the plaintiff “made no contribution” to the home equity line of credit, the plaintiffs argument is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       At oral argument before this court, the plaintiff abandoned his second claim, which pertained to the order of custody regarding the parties’ minor child, and his fourth claim, which pertained to the division of the parties’ personal property.

       In the section of the plaintiffs brief that addresses the court’s finding regarding the plaintiffs earning capacity, the plaintiff appears to assert an additional argument under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. He argues that “[i]f [he] has a disability that substantially limits his ability to perform the essential functions of his previous jobs, then he may not be qualified, with or without accommodations, to hold those jobs.” Because the plaintiffs argument is little more than a bare assertion unsupported by a material legal analysis, we decline to review the merits of his argument. See DiBlase v.Logistec Connecticut, Inc., 123 Conn. App. 753, 758 n.4, 3 A.3d 128, cert, denied, 299 Conn. 908, 10 A.3d 524 (2010).


author: BISHOP, J.

text:
    RICHARD KOSLIK v. COMMISSIONER OF CORRECTION
    (AC 31232)
    Bishop, Alvord and West, Js.

      Argued February 4
    officially released April 12, 2011

      Alan Jay Black, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Richard Koslik, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, he claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim of ineffective assistance of trial counsel. We conclude that the court improperly denied certification to appeal. Nevertheless, we agree with the court’s determination that the petitioner failed to prove ineffective assistance of counsel and, accordingly, affirm the judgment of the habeas court.

The record reveals the following factual and procedural history. On August 26, 1998, the department of consumer protection (department) suspended the petitioner’s registration as ahorne improvement contractor. Thereafter, in February of 2001, the petitioner was hired by Christine Bums in connection with a home remodeling project. When the petitioner failed to complete the project, Bums filed a complaint with the department. The department investigated the complaint, and the petitioner was subsequently arrested. Following a jury trial in 2002, during which he was represented by attorney Donald Gaudreau, the petitioner was convicted of one count of representing himself falsely as or impersonating a registered home improvement contractor in violation of General Statutes (Rev. to 2001) § 20-427 (b) (3) and one count of offering to make a home improvement without being registered as a home improvement contractor in violation of § 20-427 (b) (5). He was sentenced to a total effective term of one year incarceration, suspended after 180 days, and three years of probation. This court upheld his conviction on direct appeal. See State v. Koslik, 80 Conn. App. 746, 747-49, 837 A.2d 813, cert, denied, 268 Conn. 908, 845 A.2d 413 (2004).

In January, 2004, the petitioner commenced the present habeas action. He filed a pro se amended petition for a writ of habeas corpus on January 12,2007, alleging ineffective assistance of trial counsel, among other claims. Following a trial, the court denied the petition on May 29, 2009, and subsequently denied certification to appeal on June 9, 2009. This appeal followed.

We first review the habeas court’s denial of the petition for certification to appeal. In this regard, the petitioner claims that the issues he presented were debatable among jurists of reason and, therefore, that the court abused its discretion in denying certification to appeal from the denial of his habeas petition. We begin our analysis of this issue with the well established 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. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 125 Conn. App. 641, 646, 9 A.3d 402 (2010); see also Simms v. Warden, 230 Conn. 608, 612-18, 646 A.2d 126 (1994).

“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 . . . 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.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 125 Conn. App. 646-47.

In our review of the petitioner’s substantive claims, “although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Synakorn v. Commissioner of Correction, 124 Conn. App. 768, 771, 6 A.3d 819 (2010). “According to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a petitioner alleging ineffective assistance of counsel must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 125 Conn. App. 647. “The claim will succeed only if both prongs are satisfied. ... It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Emphasis in original; internal quotation marks omitted.) Synakom v. Commissioner of Correction, supra, 772.

Accordingly, in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner’s underlying claim that his trial counsel rendered ineffective assistance. The claim contains numerous allegations asserting, in short, that counsel deficiently failed (1) to pursue all available defenses, (2) to conduct adequate pretrial discovery and (3) to prevent the introduction of unfavorable evidence, and that the petitioner was prejudiced as a result. We consider each in turn.

I

The petitioner contends that counsel deficiently pursued one theory of defense to the exclusion of other available defenses. At the petitioner’s criminal trial, Gaudreau argued that the written contract stated, “no installation,” that the petitioner performed no installation and, therefore, that § 20-427 of the Home Improvement Act did not apply to the petitioner. The state countered with evidence that the petitioner did perform installation. The petitioner asserts that Gaudreau also should have argued, as alternative theories, that the petitioner was neither a contractor nor a salesperson as defined by § 20-427, that he was a subcontractor on the project and/or that the moneys he received for installation services fell below the minimum amount covered by the statute. The habeas court, however, found that Gaudreau reasonably rejected these alternative and inconsistent theories because they could have been discredited easily by evidence to the contraiy. Additionally, the court found that the petitioner undermined the defense strategy by testifying against the advice of counsel, which opened the door to damaging rebuttal testimony.

On the basis of our review, we believe that the record supports the court’s findings in this regard. We also note that “[i]t is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Citation omitted.) Strickland v. Washington, supra, 466 U.S. 689. In light of the foregoing, we conclude that the court properly determined that counsel’s general defense strategy was reasonable under the circumstances.

II

The petitioner next contends that counsel deficiently did not file discovery motions, did not request a bill of particular's and did not request a continuance when the state moved to correct the date of the charged conduct on the morning of trial. He claims that, as a result, counsel was unprepared to defend him effectively. The petitioner particularly points to Gaudreau’s testimony at the habeas trial that he did not know exactly what Bums’ testimony was going to be. He argues that Gau-dreau could have anticipated this testimony by filing pretrial discovery motions. Additionally, the petitioner points to Gaudreau’s testimony that he did not know what specific dates the state was referring to when it cited conduct “on dates subsequent” in its substitute information. The petitioner argues that counsel could not have prepared an adequate defense without this knowledge.

The petitioner, however, does not point to any information absent from counsel’s file that could have been obtained by way of a pretrial motion for discovery. The record reveals that Gaudreau had a copy of Bums’ complaint to the department, which was the best available predictor of her testimony. The petitioner also fails to specify on appeal how a bill of particulars or motion for continuance could have aided his defense at trial. Although he did argue before the habeas court that it was prejudicial for counsel not to pinpoint the “dates subsequent” because they fell outside the statute of limitations, the court properly rejected this argument, and the petitioner has not raised it on appeal. Rather, his claim that pretrial motions would have improved his defense is unsupported. We conclude, therefore, that the court properly determined that the petitioner failed to demonstrate that he was prejudiced by counsel’s failure to file pretrial motions.

Ill

The petitioner’s final contention is that counsel was deficient in failing to keep unfavorable evidence from the jury. Most of his allegations in this regard do not warrant exhaustive review. He alleges that Gaudreau introduced a “mug shot” of the petitioner into evidence. The photograph was part of the state investigator’s report, which was submitted in its entirety as a defense exhibit. Having reviewed the exhibit, we find no basis for this claim. If the photograph is a mug shot, there is nothing in the image to lead a stranger to that conclusion. Information that the petitioner may have known about the circumstances under which it was taken cannot be imputed to the jury on the basis of the photograph in question.

The petitioner also alleges that Gaudreau should have objected to Bums’ testimony concerning her understanding of the written contract because the trial court had declared this information to be irrelevant. We note, in this regard, that “[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [TJhere is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .’’(Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 768-69, 953 A.2d 685, cert, denied, 289 Conn. 950, 961 A.2d 417 (2008).

Additionally, the petitioner alleges that Gaudreau did not control adequately his cross-examination of the state’s main witness but, rather, allowed the witness to ramble. It appears that this particular argument was not raised before the habeas court, and, therefore, we will not consider it. See Dauti Construction, LLC v. Planning & Zoning Commission, 125 Conn. App. 665, 674-75, 10 A.3d 92 (2010) (this court does not consider claim on basis of specific legal ground not raised during trial). Regardless, as the court commented, the record reveals that, on balance, the cross-examination impeached the credibility of the state’s witnesses and elicited information that was beneficial to the petitioner. Therefore, on the basis of our review of the record, we conclude that the foregoing allegations demonstrated neither deficiency nor resulting prejudice.

The petitioner raises two other allegations of deficiency, however, that are more problematic. Because we believe these issues are debatable among jurists of reason, the trial court should have granted certification to advance these claims on appeal. See Simms v. Warden, supra, 230 Conn. 616. Both claims relate to trial counsel’s handling of evidentiary issues at trial. Reasonable jurists could disagree as to whether counsel’s actions at trial reflect reasonable strategic decisions or mistakes in judgment amounting to ineffectiveness.

One claim relates to evidence of prior disciplinary action against the petitioner that counsel permitted to come to the jury’s attention. The following additional facts are relevant to this claim. At the criminal trial, the state’s investigator testified that she knew the petitioner from prior civil and criminal investigations and that his registration as a home improvement contractor had been suspended involuntarily. The petitioner asserts that Gaudreau should have prevented the jury from hearing this patently damaging testimony. He argues that Gaudreau could have stipulated before the trial that the petitioner’s registration was not active on the relevant dates and that counsel could and should have made a motion in limine to prevent reference to the involuntary suspension. Furthermore, the petitioner argues that, at the very least, when the investigator testified to these prejudicial facts, Gaudreau should have objected to the testimony as irrelevant and prejudicial and sought a limiting instruction.

The second claim in this regard relates to the introduction as a full exhibit at the criminal trial, at his own counsel’s instance, of the investigator’s report, which expressly states that “Richard Koslik d/b/a Ready Company appears to be in violation of probation resultant from other home improvement criminal cases.” The petitioner argues that Gaudreau was deficient in introducing evidence revealing his own client’s prior conviction for the very behavior for which he was on trial.

As we have noted, there is a strong presumption that counsel’s strategic decisions are reasonable. See Mitchell v. Commissioner of Correction, supra, 109 Conn. App. 768. “Competent representation is not to be equated with perfection.” (Internal quotation marks omitted.) Id., 767. In assessing counsel’s strategic decisions, “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland v. Washington, supra, 466 U.S. 689.

The record reveals that counsel’s decision not to conceal the petitioner’s history was strategic. As Gaudreau acknowledged at the habeas trial, he could have filed motions in limine or made more objections to prejudicial testimony. It is also arguable, in regard to the investigator’s report, that the reference to prior convictions could have been redacted or, alternatively, that Gau-dreau could have elicited the beneficial information contained in the document from the witness herself without submitting it as a full exhibit. As he testified at the habeas trial, however, he strategically decided not to try to conceal the petitioner’s history from the jury because the information likely would have emerged regardless, and the attempt to hide it would have increased its prejudicial impact. He noted in particular that the information regarding the suspension was likely to come to light in conjunction with the petitioner’s attempt to explain why he wrote the curious “no installation” disclaimer on the contract.

We find these strategic decisions to be potentially problematic. However, even if these decisions could be found to reflect deficient performance, we conclude, on the basis of our thorough review of the record and in light of the abundant evidence supporting the conviction, that the petitioner was not prejudiced by the manner of counsel’s trial advocacy. Section 20-427 requires the state simply to prove that the defendant engaged in the prohibited conduct, which was impersonating a home improvement contractor and offering to make home improvements. The state’s evidence that the petitioner engaged in this conduct was strong, and he has not demonstrated a reasonable probability that the outcome of the trial would have been different had counsel dealt with the prior misconduct evidence in a different maimer.

Having determined that reasonable jurists might debate some of the issues raised on appeal, we conclude that the court abused its discretion in denying certification to appeal. Nevertheless, because the petitioner has failed to demonstrate ineffective assistance of counsel, the court properly denied his petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2001) § 20-427 (b) provides in relevant part: “No person shall ... (3) represent himself falsely as, or impersonate, a registered home improvement contractor or salesman [or] ... (5) offer to make or make any home improvement without having a current certificate of registration under this chapter . . . .”

       At the time the petition was filed, the petitioner was serving the probationary portion of his sentence, which fulfilled the jurisdictional requirement of General Statutes § 52-466 that a habeas petitioner be in custody. See Lebron v. Commissioner of Correction, 274 Conn. 507, 529-31, 876 A.2d 1178 (2005). Although the probation appears to have expired before this appeal was filed, this court has continuing jurisdiction over the petition, and it is not moot. See id., 529-30.

       The petitioner also claims on appeal that the court improperly precluded him from introducing evidence of the prior disciplinary record of a witness, who was the prosecutor at his criminal trial, for the purpose of impeachment. At trial, however, he offered the prior misconduct evidence not for impeachment but as substantive evidence that the prosecutor had acted unethically in the present case. “[W]e have consistently declined to review claims based on a ground different from that raised in the trial court . . . .” (Internal quotation marks omitted.) State v. Ouellette, 110 Conn. App. 401, 407, 955 A.2d 582 (2008), affd, 295 Conn. 173, 989 A.2d 1048 (2010). Accordingly, we decline to review this claim.
      Additionally, the petitioner makes several claims that are inadequately briefed. He claims that counsel was burdened by a conflict of interest, failed to call crucial witnesses and failed to object to the court’s jury charge. Aside from asserting these claims, the petitioner has made no argument nor cited to any supporting relevant decisional law. “Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn. App. 778, 796, 971 A.2d 766, cert, denied, 293 Conn. 915, 979 A.2d 488 (2009). Accordingly, we decline to review these claims.

       General Statutes § 20-419 (4) provides in relevant part: “ ‘Home improvement’ does not include . . . (B) the sale of goods by a seller who neither arranges to perform nor performs, directly or indirectly, any work or labor in connection with the installation or application of the goods or materials .. . .”

       In making the following statement to the witness, the trial court seems to have implied that counsel was not controlling her adequately: “Ma’am, I’m going to stop you now. You’re rambling, and no one else is going to stop you.”

       During the petitioner’s examination of Gaudreau, Gaudreau testified in relevant part: “I think I’ve stated earlier that the position with respect to your past was that we were not going to try to keep that away from the jury. . . . [T]he harder you fight to try to keep that information from the jury, I think, the more of an impact it makes on the jury if it comes out. And I thought that there were certainly many opportunities when that information would come out. So the way to address that problem was not to run away from your past. You had written ‘no installation’ on a contract. . . . [Tjhat’s a curious thing to put on a contract and would have needed to be explained. And the explanation was, you knew that you couldn’t do installation because you didn’t have a registration and that was the deal you made with Mrs. Bums. . . .
      “And that was basically the defense ....
      “I mean motions in limine could have been filed. There were objections [that] could have been made. Arguments could have been made early on to the jury. But there were in addition ... a number of reasons why I thought it just might come out anyway or that the jury would at least understand that there must have been a reason that your registration was suspended, that the better approach was to just acknowledge what it was and to segue and tie that in to what you wrote on the contract . . . .”