author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. SCOTT LAFONTAINE
    (AC 31284)
    Bishop, Bear and Peters, Js.

      Argued March 9 —
    officially released May 10, 2011

      Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and James Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Scott LaFontaine, appeals from the judgment of conviction, rendered after a jury trial, of two counts of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3). On appeal, the defendant claims that the statute is (1) unconstitutionally vague, both facially and as applied to his conduct, and (2) unconstitutional as applied to his conduct. We agree that the statute was unconstitutionally applied to the defendant’s conduct and, therefore, reverse the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant’s former wife was represented by Attorney Nikola Cunha in postdivorce matters involving visitation rights and custody of the defendant and his former wife’s three minor children. On December 19, 2006, the defendant telephoned Cunha’s law office and asked to speak to her. The receptionist, Cherokee Ghere, who is also Cunha’s sister, informed the defendant that Cunha was out of the office but that he could leave a message. The defendant was upset by this response and became angry. He complained that Cunha had advised his former wife not to fill out paperwork in regard to his visitation rights and called Cunha “a corrupt cunt and a bitch.” After listening to the defendant for a couple of minutes, Ghere became upset and fearful for her own and Cunha’s safety. She yelled at the defendant, calling him “disgusting.”

Witnessing Ghere becoming emotional and yelling, Louise Massaro, a case manager at the law firm, instructed her to put the call on hold. Massaro then picked up the telephone and asked the defendant to identify himself. He did so and informed her that he called to speak to Cunha because he was not going to let her get away with advising his former wife not to sign the visitation papers. When Massaro replied that Cunha was out of the office and that the defendant should take up his complaint with the court, he angrily yelled that Cunha was a “scumbag” and a “douche bag” and that if they thought they deserved respect, he would “show [them] what respect was.” Massaro became nervous and hung up the telephone. Shortly thereafter, the women contacted the police. When Officer Lance Helms arrived at the office, he found the women to be visibly shaken and upset.

Following a jury trial, the defendant was convicted of two counts of harassment in the second degree in violation of § 53a-183 (a) (3). The court imposed a total effective sentence of thirty days incarceration. This appeal followed.

The defendant claims that § 53a-183 (a) (3) is vague both on its face and as applied to his conduct, in violation of his right to due process under the fourteenth amendment to the United States constitution, and that his conviction under the statute had the effect of criminalizing his speech, in violation of the first amendment. Conceding that these claims were not raised in the trial court, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). For a claim that the statute is unconstitutional on its face, the record, to be adequate, must show that the defendant was convicted under the statute. For a claim that the statute is unconstitutional as applied to the defendant’s conduct, the record must reflect the conduct that formed the basis of his conviction. See State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994). The record is sufficient in this regard and the issues are constitutional in magnitude. Because the claims are amenable to review, we analyze them under Golding’s third prong to determine whether the alleged constitutional violations clearly exist.

I

The defendant first claims that § 53a-183 (a) (3) is unconstitutionally vague both (a) on its face and (b) as applied to his conduct in violation of his right to procedural due process. We do not agree.

We begin our analysis with the governing legal principles. A deteimination of statutory vagueness is a question of law over which we exercise de novo review. State v. Winot, 294 Conn. 753, 758-59, 988 A.2d 188 (2010). In undertaking such review, we make every presumption in favor of the statute’s validity. Id., 759. Accordingly, “[t]o demonstrate that [a statute] is unconstitutionally vague as applied to [the defendant, he must] . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Internal quotation marks omitted.) Id. Finally, although a defendant ordinarily may challenge the vagueness of a statute only as applied to his particular conduct; State v. Robert H., 273 Conn. 56, 67, 866 A.2d 1255 (2005); where an allegedly vague statute threatens to inhibit a constitutionally protected right such as freedom of speech, the statute’s constitutionality may be tested for vagueness on its face. State v. Ehlers, 252 Conn. 579, 584-85, 750 A.2d 1079 (2000).

The United States Supreme Court has expounded upon these principles as follows. “First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abutfs] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.” (Internal quotation marks omitted.) Grayned v. Rockford, supra, 408 U.S. 108-109; see also State v. Winot, supra, 294 Conn. 759-60.

Here, the state concedes that its evidence of the harassing manner of the defendant’s phone call “rested entirely” on the content of the speech he conveyed. Consequently, because the right to free speech under the first amendment is implicated, we review the defendant’s claim that the statute is vague on its face as well as his claim that the statute is vague as applied to his conduct.

A

The defendant claims that the statutory standard “in a manner likely to cause annoyance or alarm” is subjective and, consequently, that § 53a-183 (a) (3) is unconstitutionally vague on its face. He argues that because it does not provide an express objective standard, such as a reasonable person standard, parties lack reasonable notice of what conduct is prohibited, and, therefore, the statute likely will be enforced according to the inconsistent whims of law enforcement personnel, victims and juries.

“In a facial vagueness challenge, we . . . examine the challenged statute to see if it is impermissibly vague in all of its applications. A statute that is impermissibly vague in all its applications is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. . . . Such a provision simply has no core.

“Further, in evaluating the defendant’s challenge to the constitutionality of the statute, we read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it. We will indulge in every presumption in favor of the statute’s constitutionality .... In so doing, we take into account any prior interpretations that this court, our Appellate Court and the Appellate Session of the Superior Court have placed on the statute.” (Citations omitted; internal quotation marks omitted.) State v. Indrisano, supra, 228 Conn. 804-805.

We recognize that although the term “annoy” has been declared unconstitutionally vague; see id., 815-16; this vagueness has been remedied by judicial interpretation. The Supreme Court in Indrisano recognized that a court may add interpretive gloss to a challenged statute in order to render it constitutional. Id., 805; see also State v. Robert H., supra, 273 Conn. 67 (“facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards” [internal quotation marks omitted]). Accordingly, in regard to the statute at issue in Indrisano, the court remedied the vagueness in the language “annoys or interferes with another person” by holding that parties should rely primarily on the term “interferes” to interpret the statute, essentially reading the term “annoys” out of the statute. State v. Indrisano, supra, 228 Conn. 818. This court has adopted a similar interpretive gloss in regard to § 53a-183 (a) (3), holding the language “in a manner likely to cause annoyance or alarm” to be unambiguous as a whole by relying on the term “alarm” to remedy the vagueness of the term “annoyance.” See State v. Cummings, 46 Conn. App. 661, 672-74, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).

Just as in Cummings, in which we followed the Supreme Court’s statutory construction in Indrisano to read the term “annoyance” out of § 53a-183 (a) (3), we again follow Indrisano's lead to resolve the defendant’s present claim that the statute provides no ascertainable standard of conduct. In Indrisano, the court held that the language “with intent to cause inconvenience, annoyance or alarm” was not subject to arbitrary interpretation because “the legislature intended the language ‘inconvenience, annoyance, or alarm’ to be that perceived by a reasonable person operating under contemporary community standards.” State v. Indrisano, supra, 228 Conn. 810. Accordingly, we deduce that the legislature intended the same language in § 53a-183 (a) (3), namely, “annoyance or alarm,” to be that perceived to be as such by a reasonable person operating under contemporary community standards. We conclude, therefore, that the statute provides a sufficient core of meaning that it is not void for vagueness on its face.

B

We turn next to the defendant’s claim that § 53a-183 (a) (3) is unconstitutionally vague as applied to his conduct. He makes two arguments in this regard: neither the statute nor any prior decision of this state provides fair warning of what constitutes harassment, and no prior decision of this state has held that the substance of his conversation could be made subject to punishment. We do not find either of these arguments to be availing.

“[T]he fundamental purpose of the void for vagueness doctrine is to ensure fair warning in order to avoid traps for the innocent . . . .” (Internal quotation marks omitted.) State v. Winot, supra, 294 Conn. 770. Here, the defendant has made no plausible argument that he acted in reliance on the belief that his conduct was lawful or that a person of ordinary intelligence would have no reason to know that he was engaging in harassing conduct. See id. To the contrary, our state’s appellate decisions have held that the statute is not vague as applied to angry telephone “complaints” to a place of business; see State v. Bell, 55 Conn. App. 475, 481-83, 739 A.2d 714, cert. denied, 252 Conn. 908, 743 A.2d 619 (1999); and that “the fact finder may consider the language used in the communication in determining whether the state has proven the elements of the offense, namely, that the defendant intended to harass, annoy or alarm, and that he did so in a manner likely to cause annoyance or alarm.” State v. Murphy, 254 Conn. 561, 569, 757 A.2d 1125 (2000). Furthermore, insofar as the defendant is implying that a single, angry telephone call is insufficient to demonstrate harassment, we note that an insufficiency argument is not pertinent to a vagueness analysis. See, e.g., State v. Winot, supra, 770.

Additionally, we note that in arguing that no prior decision has held that the substance of his conversation could be criminalized, the defendant is implying not that the statute gave inadequate notice but, rather, that the statute impermissibly criminalized his speech. In other words, this is a pure first amendment claim in the guise of a vagueness challenge, and, as such, it is not persuasive for purposes of vagueness analysis. See id. Because he has failed to demonstrate beyond a reasonable doubt that he lacked adequate notice that his conduct was prohibited by the statute, we conclude that the statute is not vague as applied to the operative facts in the present case.

II

We turn, finally, to the defendant’s claim that § 53a-183 (a) (3) is unconstitutional as applied to his conduct. In this regard, the defendant argues that because his conviction rested primarily on the verbal content of the telephone call, the statute impermissibly was applied to proscribe his speech. We agree.

As a preliminary matter, we note that the defendant’s challenge, in this regard, is that the statute is unconstitutional as applied to him, not that it was facially over-broad. “Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case-by-case basis. . . . Overbreadth analysis, in contrast, does not reach the question whether the challenger’s speech is constitutionally protected; instead it strikes down the statute entirely, because it might be applied to others not before the Court whose activities are constitutionally protected. When invalidated for overbreadth, a law is not narrowed, but rather becomes wholly unenforceable until a legislature rewrites it or a properly authorized court construes it more narrowly.” (Internal quotation marks omitted.) Leydon v. Greenwich, 257 Conn. 318, 347 n.33, 777 A.2d 552 (2001).

Section 53a-183 (a) (3) has survived multiple first amendment challenges. See State v. Bell, supra, 55 Conn. App. 481 (“Although the defendant claims that the statute prevents him from speaking out on matters of public concern, it merely prohibits purposeful harassment by use of the telephone and does not involve first amendment concerns. The statute proscribes conduct, not the content of the telephone calls.”); State v. Anonymous (1978-4), 34 Conn. Sup. 689, 696, 389 A.2d 1270 (1978) (“it is the manner and means employed to communicate [the messages] which is the subject of the prohibition rather than their content”); see also Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980) (fact finder permissibly could consider verbal content of telephone call as evidence of defendant’s intent without infringing on first amendment rights).

Nevertheless, we subsequently ruled in State v. Moulton, 120 Conn. App. 330, 991 A.2d 728, cert. granted, 297 Conn. 916, 996 A.2d 278 (2010), that § 53a-183 (a) (3) was unconstitutional as applied to a postal employee who called her place of work and commented that she understood how a postal worker could become enraged and kill coworkers and that she could “ ‘do that, too.’ ” Id., 333. We held in Moulton that although the statute is not unconstitutionally overbroad on its face, “the state prosecuted the defendant on the basis of her speech, not her conduct in making the telephone call, and, therefore, her conviction was based on an impermissible construction of § 53a-183 (a) (3), which implicated her first amendment rights. Accordingly, we conclude that the statute was unconstitutional as applied to the defendant.” Id., 337. We also stated that “[t]he jury should have been instructed to examine only whether the act of calling and causing the ringing of the telephone was harassing, and to look to the speech only for the intent in physically making the telephone call.” Id., 339.

The present case is similar to Moulton not only factually but also because here, as in Moulton, the state prosecuted the defendant on the basis of his speech. Consequently, and in accord with Moulton, we conclude that § 53a-183 (a) (3) was unconstitutionally applied to the defendant’s speech in violation of the first amendment. Furthermore, given the state’s concession that its evidence of the harassing manner of the defendant’s telephone call “rested entirely” on the content of the speech he conveyed, we conclude, pursuant to the third prong of Golding, that the constitutional violation clearly deprived the defendant of a fair trial. Removing the defendant’s speech from consideration in regard to the conduct element, the remaining evidence was insufficient to sustain a conviction under the statute.

The judgment is reversed and the case is remanded with direction to render a judgment of acquittal as to both counts.

In this opinion the other judges concurred.

       General Statutes § 53a-183 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

       Although the defendant conflates these two claims in his brief, we note that they are distinct andrequire separate analyses. See Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (“clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct”). Additionally, the defendant claims that (1) the evidence was insufficient to prove intent, (2) the jury instructions were improper and (3) the conviction on the second count violated the constitutional protection against double jeopardy. Because we find that the defendant must be acquitted on the basis of his claim that the statute was unconstitutionally applied, we need not reach these claims.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 23EM0. “The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 325, 977 A.2d 209 (2009).

       We also note that although the defendant has raised an insufficiency claim in regard to the state’s evidence of intent to harass, he has failed to raise a formal insufficiency claim in regard to the evidence of harassing conduct.

       The state argues in opposition that the defendant’s first amendment rights were not implicated because the telephone communication amounted to a constitutionally unprotected “true threat.” It also suggests that the language may have amounted to constitutionally unprotected obscenity. These arguments are unpersuasive given that the state did not prosecute the case under either of the two criminal threatening statutes, General Statutes §§ 53a-61aa and 53a-62, or the criminal obscenity statutes, General Statutes § 53a-193 et seq.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    NANCY T. WEINSTEIN v. LUKE A. WEINSTEIN
    (AC 31681)
    Harper, Lavine and McDonald, Js.
    Argued November 16, 2010 —
    officially released May 10, 2011

      Luke A. Weinstein, pro se, the appellant (defendant).

      Nancy T. Weinstein, pro se, the appellee (plaintiff).
   Opinion

HARPER, J.

The defendant, Luke A. Weinstein, appeals from the judgment of the trial court denying his motion to modify the amount of child support he pays to the plaintiff, Nancy T. Weinstein. The defendant claims that the trial court improperly determined that the change in the financial circumstances of the parties did not warrant a modification of the child support order. Specifically, the defendant claims that because (1) the plaintiffs net assets increased substantially, (2) the cost of the child’s education, which is paid for by the defendant, increased substantially and (3) the child is living with the defendant, the court improperly declined to modify the child support order. We disagree and affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The parties’ marriage was dissolved on May 12, 1998. Relevant to the current appeal is the child support order entered by the court, Abery-Wetstone, J., on August 23,2005. Pursuant to that child support order, the defendant is required to pay the plaintiff $52 per week in child support, which was a deviation from the child support guidelines as provided by § 46b-215a-3 (b) of the Regulations of Connecticut State Agencies. See General Statutes § 46b-215a. Judge Abery-Wetstone found that the deviation was appropriate because the “deviation would enhance the lower income parent’s ability to foster a relationship with the child, and sufficient funds remain for the parent paying support to meet the basic needs of the child after deviation.” On April 8, 2009, the defendant filed a motion to modify the August 23, 2005 child support order. The court, M. Taylor, J., denied the defendant’s motion to modify in a memorandum of decision dated August 7, 2009. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth our well settled standard of review in domestic relations cases. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases . . . .” (Citation omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 516, 914 A.2d 1058 (2007).

With respect to the factual predicates on which Judge Taylor based his decision on the motion for modification, our standard of review is well settled. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Arena v. Arena, 92 Conn. App. 463, 466, 885 A.2d 765 (2005).

“General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment. . . . Section 46b-86 (a) permits the court to modify child support orders in two alternative circumstances. Pursuant to this statute, a court may not modify a child support order unless there is first either (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines .... Both the substantial change of circumstances and the substantial deviation from child support guidelines’ provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole . . . .” (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn. App. 482, 491-92, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). “Trial courts have broad discretion in deciding motions for modification.” DiStefano v. DiStefano, 67 Conn. App. 628, 632, 787 A.2d 675 (2002).

Although § 46b-86 (a) allows a court to modify a child support order when the order substantially deviates from the child support guidelines, “once the court enters an order of child support that substantially deviates from the guidelines, and makes a specific finding that the application of the amount contained in the guidelines would be inequitable or inappropriate, as determined by the application of the deviation criteria established in the guidelines, that particular order is no longer modifiable solely on the ground that it substantially deviates from the guidelines.” McHugh v. McHugh, 27 Conn. App. 724, 728-29, 609 A.2d 250 (1992).

When presented with a motion to modify child support orders on the basis of a substantial change in circumstances, “a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and . . . make an order for modification. ... A party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in circumstances of either party that makes the continuation of the prior order unfair and improper.” (Citation omitted; internal quotation marks omitted.) Weinstein v. Weinstein, supra, 104 Conn. App. 492.

In ruling on the defendant’s motion to modify child support, Judge Taylor found that in the time since the 2005 child support order, the plaintiffs net weekly income had increased by $98. Additionally, the court found that the defendant’s weekly income had increased by $533 since the 2005 child support orders were entered. The court also found that the educational expenses of the child, paid by the defendant, had increased by $13,000 per year. The defendant claims that, in light of the court’s findings regarding the changes in the financial circumstances of the parties, the court improperly denied the defendant’s motion to modify the 2005 child support order.

Regarding the first basis for a modification of the child support order under § 46b-86 (a), the court concluded that there was substantial evidence that the income of both parties had increased. After calculating the amount of child support by applying the deviation from the guidelines to the parties’ changed financial circumstances, however, the court found that a modification would result in only a $5.25 per week decrease in the defendant’s child support payment. The court concluded that “[u]nder these circumstances, it is not unfair or improper to continue the existing order when the modification would result in a $5.25 or a 10 percent change in [the defendant’s] weekly child support obligation, especially in light of his gross weekly income of $2480.” Thus, the court found that although there was a substantial change in the circumstances of the parties, continuation of the child support order would not be unfair or improper.

Regarding the second basis for a modification under § 46b-86 (a), substantial deviation from the guidelines, the court found that, despite the changes in the value of the parties’ assets, “the remaining social and economic circumstances [of the parties are] as true today as they were when Judge Abery-Wetstone made the same determination in 2005 and deviated from the guidelines. The income disparity of the parties remains essentially the same. The custody and access orders remain essentially the same. Finally, a deviation will continue to enhance [the plaintiffs] ability to foster a relationship with the child and sufficient funds remain for [the defendant] to meet the basic needs of the minor child.” As such, the court concluded that the application of the guidelines continued to be inequitable and maintained the previously ordered deviation from the child support guidelines.

On appeal, the defendant has reiterated the arguments made before the trial court that formed the basis for his motion for modification of the child support order. “This court . . . may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances . . . .” (Internal quotation marks omitted.) Doody v. Doody, supra, 99 Conn. App. 516. After a thorough review of the record, we conclude that the court did not abuse its discretion in denying the defendant’s motion for modification of the child support order. The facts in the record support the court’s findings that a deviation from the guidelines remained equitable and that, despite the change in circumstances of the parties, continuation of the prior child support order was not unfair or improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 46b-215a-3 (b) (6) (B) of the Regulations of Connecticut State Agencies provides: “Extraordinary disparity in parental income. When the custodial parent has high income, resulting in an extraordinary disparity between the parents’ net incomes, it may be appropriate to deviate from presumptive support amounts if: (i) such deviation would enhance the lower income parent’s ability to foster a relationship with the child; and (ii) sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation.”


author: STOUGHTON, J.

text:
    KENNETH MYERS v. COMMISSIONER OF CORRECTION
    (AC 31621)
    Gruendel, Alvord and Stoughton, Js.

      Argued January 11 —
    officially released May 10, 2011

      Matthew J. Collins, special public defender, for the appellant (petitioner).

      Brenda Hans, assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

STOUGHTON, J.

The petitioner, Kenneth Myers, appeals following the denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, he claims that the habeas court abused its discretion in denying his petition for certification and improperly denied his claim of ineffective assistance of trial counsel. Specifically, he claims that his trial counsel rendered ineffective assistance by waiving a trial on a part B information. We disagree and dismiss the appeal.

The petitioner was charged in a two part information with several violations of this state’s dependency producing drug laws. In part B of the information, the state charged him with being a repeat offender of General Statutes § 21a-277 (a) and sought an enhanced sentence in accordance with the repeat offender provisions of that statute. In a separate information, he also was charged with violation of probation. Following a jury trial, the petitioner was found guilty of possession of narcotics with intent to sell in violation of § 21a-277 (a), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b) and possession of narcotics in violation of General Statutes § 21a-279 (a). See State v. Myers, 290 Conn. 278, 281-83, 963 A.2d 11 (2009).

During the jury trial, the court held a violation of probation hearing outside the presence of the jury at which a certification of the petitioner’s conviction in 2003 for a previous violation of § 2 la-277 (a) was received into evidence. Id., 282. At the hearing, the petitioner was identified by his probation officer, who testified that she had supervised him during his probation in connection with his 2003 conviction. Id., 283.

After the jury’s verdict on the narcotics charges, the court found that the petitioner had violated the terms of his probation. Thereafter, defense counsel waived a jury trial on part B of the information, stating that she was not sure that a part B was appropriate “ ‘in this case’ ” and that the presentence investigation report would show the prior conviction. Id. The petitioner subsequently was sentenced to an enhanced penalty on the basis of his previous narcotics conviction and thereafter appealed. Id., 283-84.

This court affirmed the narcotics convictions but vacated the enhanced sentencing of the petitioner as a repeat offender and remanded the case for a hearing on part B of the information on the ground that the trial court committed plain error in failing to follow the mandate of Practice Book § 42-2, which requires a plea and, if necessary, a trial on part B of an information after a finding of guilty on the first part. See State v. Myers, 101 Conn. App. 167, 185-86, 921 A.2d 640 (2007), rev’d in part, 290 Conn. 278, 963 A.2d 11 (2009). Our Supreme Court reversed in part the judgment of this court and remanded the case with direction to affirm the judgment of the trial court, concluding that on the facts of this case there was no constitutional right to a separate trial when the fact of a prior conviction is essentially uncontested; State v. Myers, supra, 290 Conn. 294; and that the trial court’s failure to comply with Practice Book § 42-2 did not constitute plain error. Id., 299-300.

On May 15, 2009, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of his trial counsel. The habeas court, after a hearing, denied the petition and subsequently denied the petition for certification to appeal. This appeal followed.

The petitioner claims that the habeas court abused its discretion in denying certification to appeal from five denial of his habeas corpus petition, in which he alleged that his trial counsel’s waiver of a trial on part B of the information constituted ineffective assistance. The habeas court made several salient findings of fact regarding this claim, including the following: (1) it was the petitioner’s decision to proceed to trial before a jury on the criminal narcotics charges and before the court on the violation of probation charge; (2) the petitioner, through his counsel, waived a trial on part B of the information; (3) the petitioner was actively involved in the decision to waive a trial on part B; and (4) trial counsel discussed with the petitioner the ramifications of having a trial on part B and his decision to waive a trial. In addition, the habeas court concluded that the petitioner was not prejudiced by the waiver of trial where the facts concerning his prior conviction were irrefutable.

The petitioner first bears the burden of demonstrating that the habeas court’s denial of his petition for certification to appeal constituted an abuse of discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). If he succeeds, he must then show that the judgment should be reversed on the merits. Id. To establish a clear abuse of discretion in the denial of a timely request for certification, the petitioner must show either 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. Id., 615-16.

The habeas court credited the testimony of trial counsel that the petitioner participated in the decision to waive a trial on the part B information that charged him with being a repeat offender of § 21a-277 (a), but the record does not reflect that the petitioner ever was canvassed by the court on that waiver or put to plea, as mandated by Practice Book § 42-2. See footnote 1 of this opinion. The petitioner claims that his trial counsel’s performance was inadequate because she waived a jury trial on part B of the information charging him as a repeat offender and, consequently, failed to ensure that the strictures of Practice Book § 42-2 were followed. We examine the petitioner’s underlying claim of ineffective assistance of counsel to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Gonzalez v. Commissioner of Correction, 127 Conn. App. 454, 457, 14 A.3d 1053 (2011).

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) William C. v. Commissioner of Correction, 126 Conn. App. 185, 189, 10 A.3d 115 (2011).

To demonstrate that such a strategy was ineffective, the petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Stevenson v. Commissioner of Correction, 112 Conn. App. 675, 684, 963 A.2d 1077, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009). The petitioner must establish both the performance and prejudice prongs in order to prevail on a claim of ineffective assistance of counsel. Vazquez v. Commissioner of Correction, 123 Conn. App. 424, 436, 1 A.3d 1242 (2010).

To establish prejudice, “[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Green v. Commissioner of Correction, 119 Conn. App. 348, 353, 987 A.2d 389, cert. denied, 296 Conn. 905, 992 A.2d 1135 (2010). We conclude that the petitioner has not met that burden.

It is apparent that the petitioner suffered no prejudice from the waiver of trial on the part B information. The evidence of the petitioner’s prior narcotics conviction was already known to the court and was never challenged. A certified copy of the conviction was admitted into evidence, and the petitioner’s probation officer had identified him, as did members of the Danbury police department who participated in the arrest leading to his prior conviction. Additionally, in his direct appeal the petitioner failed to raise any doubt with respect to the validity of his prior conviction. State v. Myers, supra, 290 Conn. 290. In light of the certainty of the evidence of his prior conviction, we conclude that there is no reasonable probability that the petitioner would have been found not guilty in a trial on the part B information. The issue of whether trial counsel provided effective assistance therefore is not debatable among jurists of reason, could not have been determined in a different manner and does not deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, we conclude that the habeas court did not abuse its discretion in denying certification to appeal this issue.

The appeal is dismissed.

In this opinion the other judges concurred.

       Practice Book § 42-2 provides in relevant part: “When an information is divided into two parts ... on a finding of guilty on the first part of the information, a plea shall be taken and, if necessary, election made on the second part and the trial thereon proceeded with. If the defendant elects a jury trial on the second part of the information, such trial may be had to the same or to another jury as the judicial authority may direct.”


author: DiPENTIMA, C. J.

text:
    ROBERT LABULIS, ZONING ENFORCEMENT OFFICER OF THE TOWN OF NORTH BRANFORD v. PHYLLIS KOPYLEC
    (AC 30374) (AC 31134)
    DiPentima, C. J., and Lavine and Lavery, Js.

      Argued October 25, 2010 —
    officially released May 17, 2011

      Vincent T. McManus, Jr., for the appellant (defendant).

      John M. Gesmonde, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

These consolidated appeals arise out of a long-standing and increasingly acrimonious zoning dispute between the parties. In AC 30374, the defendant, Phyllis Kopylec, appeals from the trial court’s denial of her motion to dismiss the case and her motion to open the stipulated judgment and remand the case for a trial. On appeal, the defendant claims that the court (1) improperly denied her motion to dismiss and motion to open and remand for a trial for failure to join an indispensable party and (2) was without subject matter jurisdiction ab initio because the plaintiff, Robert Labulis, the zoning enforcement officer of the town of North Branford (town), commenced his action before allowing for the exhaustion of remedies contained in General Statutes § 8-7 and the town’s zoning regulations. In AC 31134, the defendant appeals from the denial of her motion for contempt and claims that the court, Hon. William L. Hadden, Jr., judge trial referee, erroneously interpreted a previous order of the court, entered by Pittman, J. We disagree and, accordingly, affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of these appeals. On April 12, 2002, the plaintiff filed a complaint with the court and an application for a temporary injunction seeking to have the defendant comply with the terms of a cease and desist order he had served upon her. Specifically, the plaintiff sought to restrain and prohibit the defendant from engaging in grading and filling activity on property located at 944 Totoket Road, North Branford (property). The complaint was served only on the defendant although the defendant’s husband, Joseph Kopylec, a one-third owner of the property, had been served with a cease and desist order on October 5,2001.

On May 13,2002, at a hearing on the plaintiffs application for a temporary injunction, the defendant acknowledged that the parties had reached an agreement. The terms of the agreement were presented to the court, and the court canvassed the defendant to ensure that she was in accord with them. On June 5, 2002, a stipulation for judgment was filed with the court, wherein the parties agreed that a permanent injunction would enter against the defendant enjoining her, her servants, agents and employees from any additional filling or grading of the property. The court, Munro, J., approved the stipulation and rendered judgment in accordance with it on June 13, 2002.

Thereafter, the defendant failed to comply with the terms of the stipulated judgment, and on May 21, 2003, the plaintiff filed a motion for contempt. A hearing on the matter was held before Judge Munro on June 9, 2003, and another agreement was reached. The plaintiff presented the terms of the agreement to the court, specifically stating that “the defendant acknowledges that this order applies to not only herself, but to her husband, which he is actually acting on her behalf, and her son, as agents of the defendant.” Although not present in court, the defendant, acting through counsel, agreed to a finding of contempt and again agreed to have an A-2 survey map prepared, devise a regrading plan and apply for a temporary special use permit pursuant to the 2002 stipulated judgment. The defendant’s attorney also informed the court that Joseph Kopylec was present and had full authority to bind the defendant to the terms of the new agreement. The court noted that Joseph Kopylec was a one-third owner of the property and canvassed him to ensure that he also agreed to the terms. The court then found the defendant in contempt and approved, as a court order, new deadlines for completion of the items contained in the 2002 stipulated judgment.

The defendant failed to comply with both the 2002 stipulated judgment and the 2003 contempt order and the plaintiff filed a second motion for contempt on March 22, 2004. In the meantime, on July 18, 2003, the defendant, Joseph Kopylec and Rocklan Kopylec, transferred, by quitclaim deed, all of their interests in the property to the defendant and Joseph Kopylec. On November 9, 2004, the plaintiff filed a third motion for contempt, alleging that the defendant continued to be in violation of two previous court orders.

On November 22, 2004, at a hearing held on the plaintiffs third motion for contempt, the defendant admitted that she had not complied with the terms of the court orders and claimed that she was financially unable to do so. The plaintiff then proposed that, in lieu of entering another finding of contempt, Judge Pittman could issue an order that would enable the town to enter the property and perform the remedial work, payment for which was to be secured by the placement of a lien on the property. Judge Pittman canvassed the defendant before adopting the plaintiffs proposal. Joseph Kopylec was not present at this hearing.

On January 20, 2005, the defendant filed a motion to open judgment and dismiss the case, claiming that Joseph Kopylec was an indispensable party and that the plaintiffs failure to join him deprived the court of subject matter jurisdiction over the action. After determining that Joseph Kopylec was an indispensable party, Judge Pittman denied this motion on July 29, 2005. Shortly thereafter, in a letter dated August 4,2005, Joseph Kopylec informed the plaintiff that he, as part owner of the property, denied the town permission to enter the property and any attempt to enter and conduct remedial work would “be considered a trespass which shall be repelled by all reasonable means . . . .’’On August 29, 2005, the defendant, by quitclaim deed, assigned all of her interest in the property to Joseph Kopylec, who, consequently, became the sole owner of the property.

Between August 5, 2005, and September 12, 2005, both parties filed motions, and a hearing before Judge Pittman was held on September 19, 2005. At this hearing, the court recognized that the plaintiffs failure to cite Joseph Kopylec into the action continued to make the enforcement of the court’s orders problematic. The court determined that allowing the town “to go on this property on some theory that [Joseph] Kopylec is bound by a judgment ... in which he was never a named defendant is not the best way to proceed.” The court concluded that, if the plaintiff wanted to enforce the court’s prior orders, the plaintiff should first obtain judgment against Joseph Kopylec as he was an owner of the property at the time the 2002 stipulated judgment was entered. Accordingly, the court issued an order finding Joseph Kopylec “a necessary and indispensable party to the full resolution of the dispute over the use of the property” and stayed all “substantive proceedings related to the enforcement of the previous orders of this court until such time as Joseph Kopylec is joined as a party to this action.” That order is not challenged on appeal.

Thereafter, on November 27, 2006, the defendant filed another motion to dismiss claiming, again, that the failure to join Joseph Kopylec, a necessary and indispensable party, deprived the court of subject matter jurisdiction over the action. On January 30, 2007, the defendant filed a motion to open judgment and remand for a trial, claiming, in the alternative, that principles of due process required that Joseph Kopylec be made a party. In a consolidated memorandum, the court, Corradino, J., denied the defendant’s motions on September 10, 2008, and the defendant appealed to this court. Then, on December 23, 2008, the defendant filed a motion for contempt against the plaintiff, alleging that the failure to cite Joseph Kopylec into the action was wilful noncompliance with the court’s September 19, 2005 order. After a hearing, Judge Hadden denied the defendant’s motion on April 23,2009, and the defendant filed a separate appeal to this court.

I

AC 30374

In AC 30374, the defendant claims that the trial court improperly denied her November, 2006 motion to dismiss the case for lack of subject matter jurisdiction, and her January, 2007 motion to open the stipulated judgment and remand the case for a trial for failure to join an indispensable party. Specifically, the defendant contends that Joseph Kopylec was a necessary and indispensable party to the stipulated judgment and she argues that, pursuant to our rules of joinder, due process required that he be joined to the action. We disagree.

The defendant’s claim that the court improperly denied her motion to dismiss for lack of subject matter jurisdiction warrants little discussion. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo.” (Internal quotation marks omitted.) St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn. App. 728, 734, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011). It is well established that the failure to serve or name an indispensable party does not deprive a court of subject matter jurisdiction over an action, because such a defect may be cured pursuant to Practice Book § 9-19. Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 288, 914 A.2d 996 (2007); Bauer v. Souto, 277 Conn. 829, 839, 896 A.2d 90 (2006); Hilton v. New Haven, 233 Conn. 701, 721, 661 A.2d 973 (1995); but see Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 637, 563 A.2d 293 (1989) (“[o]nly when the statute authorizing the appeal requires a designated person to be made a party does the failure to do so constitute noncompliance with its terms and thus involve subject matter jurisdiction”). The court, therefore, properly denied the defendant’s motion to dismiss for lack of subject matter jurisdiction.

“The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Housing Authority v. Goodwin, 108 Conn. App. 500, 506, 949 A.2d 494 (2008). “A stipulated judgment, although obtained through mutual consent of the parties, is binding to the same degree as a judgment obtained through litigation. ... It necessarily follows that if the judgment conforms to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake.” (Internal quotation marks omitted.) Id., 506-507.

The defendant does not claim that she entered into the stipulation as the result of fraud, accident or mistake. Rather, the defendant notes that Joseph Kopylec was not served with the plaintiffs complaint and points to the court’s September 19, 2005 order of stay determining that he “is a necessary and indispensable party to the full resolution of the dispute . . . .” Then, invoking our rules of joinder, the defendant argues that principles of due process require that the stipulated judgment be opened and the plaintiffs case remanded for a trial because an indispensable party must be provided with notice and an opportunity to protect his property interest. We are not persuaded.

We recognize that our Supreme Court has stated that “a court may refuse to proceed with litigation if a claim cannot properly be adjudicated without the presence of those indispensable persons whose substantive rights and interests will be necessarily and materially affected by its outcome. . . . Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience. . . . Joinder of indispensable parties is mandated because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action].” (Citations omitted; emphasis added; internal quotation marks omitted.) Hilton v. New Haven, supra, 233 Conn. 722-23.

Judgment, however, was rendered against the defendant pursuant to an agreement that she entered into with the plaintiff. “[A] stipulated judgment is not a judicial determination of any litigated right . . . [and] may be defined as a contract .... The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest . . . .” (Emphasis added; internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn. 384, 389-90, 985 A.2d 319 (2009). Moreover, “each cotenant holds an undivided partial moiety or interest in the whole of their property. [T]he common characteristic of all such interests [is that] the owners have no separate rights as regards any distinct portion of the land, but each is interested, according to the extent of his share, in every part of the whole land. ... A consequence of this form of ownership is that a cotenant can freely sell, lease or mortgage [her] own undivided interest in the whole of the property to a third party without the consent of the remaining cotenants.” (Citation omitted; internal quotation marks omitted.) Ianotti v. Ciccio, 219 Conn. 36, 41, 591 A.2d 797 (1991).

Thus, the defendant, as the owner of an undivided interest in the whole of the property, had a right to voluntarily restrict her use of it pursuant to an agreement with the plaintiff. Joseph Kopylec was not a party to the stipulated judgment, and since “ [a] cotenant may not . . . act unilaterally so as to bind the interest of his cotenant”; id.; the stipulated judgment was not enforceable against him when it was entered. See also 20 Am. Jur. 2d 134, Cotenancy and Joint Ownership § 3 (2005) (“one cotenant cannot ordinarily bind fellow cotenants by contracts with third persons, unless duly authorized to do so, or unless the cotenants later ratify this act”). Accordingly, the entry of stipulated judgment was not inconsistent with equity and good conscience. See Hilton v. New Haven, supra, 233 Conn. 722-23. The court, therefore, did not abuse its discretion in denying the defendant’s motion to open the stipulated judgment and remand for a trial.

II

AC 31134

In this related appeal, the defendant appeals from the denial of her motion for contempt. On appeal, the defendant claims that Judge Hadden erroneously interpreted a previous order of the court, entered by Judge Pittman on September 19, 2005.

The order at issue, entered on September 19, 2005, states: “Because, as stated in its memorandum of decision dated July 29, 2005, the court has determined that Joseph Kopylec is a necessary and indispensable party to the full resolution of the dispute over the use of the property at 944 Totoket Road in the Northford section of North Branford, the court hereby stays all discovery and other substantive proceedings related to the enforcement of the previous orders of this court until such time as Joseph Kopylec is joined as a party to this action.” On December 23, 2008, the defendant filed a motion for contempt against the plaintiff, alleging that the failure to join Joseph Kopylec was a “willful and continual failure to comply with the order of the court, Pittman, J., entered [September 19,2005].” After a hearing, Judge Hadden denied the defendant’s motion on April 23, 2009. The defendant then filed a motion to reconsider, which the court denied on May 15, 2009.

The defendant contends that the court erroneously determined that the September 19, 2005 order did not direct the plaintiff to join Joseph Kopylec to the action. Specifically, the defendant argues that portions of the transcripts from the hearing held before Judge Pittman on September 19, 2005, reveal what the court “actually ordered,” and because Judge Hadden did not allow the defendant to submit a brief or present witness testimony at the hearing on April 23, 2009, he reached an erroneous conclusion. We disagree.

“A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [plaintiff] were in contempt of a court order.” (Internal quotation marks omitted.) Adamo v. Adamo, 123 Conn. App. 38, 49, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010). An examination of the April 23, 2009 transcript reveals that the court denied the defendant’s motion because it determined that “Judge Pittman’s [September 19, 2005] order does not order the plaintiff to bring in [Joseph] Kopylec as a party.” Thus, to determine if the court abused its discretion in denying the defendant’s motion for contempt, we must review the court’s construction of the September 19, 2005 order.

“The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole. ... To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances.” (Emphasis added; internal quotation marks omitted.) JSA Financial Corp. v. Quality Kitchen Corp. of Delaware, 113 Conn. App. 52, 62-63, 964 A.2d 584 (2009). We previously have determined that there has been no abuse of discretion when “[t]he plain language of the judgment does not support the defendant’s claim.” Defeo v. Defeo, 119 Conn. App. 30, 33, 986 A.2d 1099 (2010).

We conclude that Judge Hadden did not abuse his discretion. Judge Pittman’s order on September 19, 2005, imposed a stay on all enforcement proceedings “until such time as Joseph Kopylec is joined as a party to this action.” Judge Pittman’s order does not command the joinder of Joseph Kopylec; rather it stops all enforcement action “until such time as” he is joined as a party. Moreover, there is a conspicuous lack of language directing a specific party to undertake the joinder of Joseph Kopylec. We decline the defendant’s invitation to examine the transcripts of the September 19, 2005 hearing to ascertain an alleged actual meaning that is in direct conflict with the plain language of the order.

The judgments are affirmed.

In this opinion the other judges concurred.

       The trial court granted the plaintiffs motion to substitute Carol A. Zebb, the acting zoning enforcement officer of the town, as the plaintiff in 2005. We will refer to Robert Labulis as the plaintiff for purposes of this opinion.

       The plaintiff claimed that grading and filling activity occurring on the property was changing the contours of the land so that runoff water that had previously collected in a small pond on the property was being diverted and flooding the property of adjacent landowners.

       At the time, the defendant, Joseph Kopylec and their son, Rocklan Kopylec, each owned a one-third interest in the properly.

       The defendant also agreed to retain a licensed land surveyor and civil engineer to prepare an A-2 survey map by August 1, 2002, submit an application for a temporary special use permit for grading and filling, comply with the planning and zoning commission’s decision with respect to this application and complete all necessary remedial work to reestablish a “ ‘small pond’ ” on the property to the satisfaction of the plaintiff.

       In a letter to the defendant’s attorney, dated April 29, 2003, Joseph Kopylec explained that the defendant was “not able to handle” her obligations under the stipulated judgment and that he held power of attorney to act on her behalf. The letter also requested that the attorney inform the plaintiff that all correspondence relating to the stipulated judgment be addressed to Joseph Kopylec.

       The record reveals the following colloquy between the court and Joseph Kopylec:
      “The Court: Okay, [Joseph] Kopylec, you understand that as a property owner, even though you’re not presently a named party, that you can be cited in and held as responsible for these things as Phyllis Kopylec?
      “[Joseph] Kopylec: I do.
      “The Court: And so therefore, do you agree with everything that was related on the record by [the plaintiff] as something you can comply with?
      “[Joseph] Kopylec: It is.
      “The Court: All right. And [do] you understand that if you fail to comply, if the matter comes to court for further findings in contempt you’ll be cited in as a party and be facing contempt of court? You understand that?
      “[Joseph] Kopylec: Yeah.
      “The Court: All right. So you can do all of these things, right?
      “[Joseph] Kopylec: As long as I’m not hospitalized before.”

       The record does not indicate what, if any, action was taken on this motion.

       The plaintiff based his claim on the defendant’s failure to (1) prepare an A-2 survey map, (2) submit an application for a temporary special use permit and (3) submit a regrading plan.

       On July 29, 2005, the plaintiff filed and Judge Pittman approved the order issued pursuant to the November 22, 2004 hearing. The order was recorded on the town land records on August 8, 2005. This order is the subject of a separate appeal that is pending before this court.

       The record shows that on August 26, 2005, the defendant filed a motion to stay proceedings and noticed a deposition of the plaintiff. In response, on September 1, 2005, the plaintiff filed a motion for a protective order and a motion to quash and an objection to production request.

       We summarily dismiss the defendant’s second claim that the court lacked subject matter jurisdiction over the plaintiffs action ab initio because the plaintiff failed to permit the exhaustion of administrative remedies in the town’s zoning regulations prior to filing his complaint. The plaintiff brought an action for injunctive relief pursuant to General Statutes § 8-12, which “empowers [zoning enforcement] officers to seek relief, that is, to take overt action in order to compel compliance with the zoning laws. The officers can act on their own initiative, and do not act merely in response to an appeal . . . .” Planning & Zoning Commission v. Campanelli, 9 Conn. App. 534, 537, 520 A.2d 242 (1987). “[Section 8-12] expressly provides that the officer may seek injunctive relief.” Johnson v. Murzyn, 1 Conn. App. 176, 179, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).

       Practice Book § 9-19 provides in relevant part: “[N]o action shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the judicial authority, at any stage of the cause, as it deems the interests of justice require.” See also General Statutes § 52-108.

       We note that this conclusion is consistent with the court’s September 19,2005 order finding that “Joseph Kopylec is a necessary and indispensable party to the full resolution of the dispute . . . (Emphasis added.) Thus, the stipulated judgment cannot be enforced against Joseph Kopylec until he is joined in any enforcement proceeding.

       We pause to stress that the court’s September 19, 2005 order remains in effect and has stayed all substantive proceedings related to the enforcement of the stipulated judgment until Joseph Kopylec is joined as a party. This case has languished in the trial court for almost eight years without resolution and could have been brought to a conclusion long ago, saving an enormous amount of scarce judicial and party resources, had the plaintiff simply heeded what the court told Joseph Kopylec at the June 9, 2003 hearing: “[I]f you fail to comply, if the matter comes to court for further findings in contempt you’ll be cited in as a party and be facing contempt of court.”

       In light of this determination, we need not reach the defendant’s claim that the court improperly concluded that the doctrine of privity would bind her husband, Joseph Kopylec, to the stipulated judgment she entered into with the plaintiff.

       We note that the defendant has failed to set forth her claim with the preferred degree of clarity. In fact, the defendant’s brief to this court is rather remarkable in its near complete failure to comport with even the basic requirements of Practice Book § 67-4. The brief lacks a statement of the issues and any statement of the standard of review. In addition, because the defendant has failed to cite to any legal authority in support of her argument, her brief also lacks a table of authorities. “[W]e will nonetheless review all claims which are fairly presented, or at least, reasonably discernible, upon the record before us.” (Internal quotation marks omitted.) McCook v. Whitebirch Construction, LLC, 117 Conn. App. 320, 322 n.3, 978 A.2d 1150 (2009), cert. denied, 294 Conn. 932, 987 A.2d 1029 (2010).