author: ALVORD, J.

text:
    MARY MARGARET FARREN v. J. MICHAEL FARREN
    (AC 33996)
    Kobinson, Alvord and Sheldon, Js.

      Argued January 14
    officially released April 23, 2013

      J. Michael Farren, pro se, with whom, on the brief, was Timothy C. Moynahan, for the appellant (defendant).

      Kenneth J. Bartschi, with whom were Brendon P. Levesque and, on the brief, Wayne D. Effron, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, J. Michael Farren, appeals from the trial court’s rulings on various post-judgment motions. On appeal, the defendant claims that the court (1) abused its discretion in denying his motion to open and correct the judgment, (2) improperly denied his motion to determine the date of the filing of his motion to open and correct the judgment, and (3) improperly denied his motion for an expedited order with respect to the distribution of benefits held in his supplemental executive retirement plan. We affirm the judgment of the trial court.

The record reveals the following facts, as found by the court or undisputed, and procedural history. The plaintiff, Mary Margaret Farren, commenced this dissolution action against the defendant on January 4, 2010. Following a trial, the court issued its memorandum of decision dissolving the marriage and entering orders with respect to, inter alia, the custody of the parties’ minor children, child support payments and the division of assets. In the court’s decision dated June 13, 2011, it made the following findings of fact: (1) both of the parties are well educated and have had highly successful careers; (2) the defendant served as general counsel for Xerox Corporation (Xerox) until his retirement from the company; (3) prior to the service of the dissolution complaint, the defendant subjected the plaintiff to abuse; (4) at the time the dissolution complaint was served, the plaintiff indicated that she would consider reconciling with the defendant provided that he consented to marital counseling; (5) on January 6, 2010, which was two days after the service of the dissolution complaint, the defendant brutally attacked the plaintiff with his fists and a flashlight; (6) at the time of the dissolution trial, the defendant was awaiting a civil trial for damages arising from the assault and a criminal trial for attempted murder and strangulation in the first degree; (7) the plaintiffs earning capacity had been “gravely compromised” by the assault; and (8) the defendant, although he had had a substantial earning capacity, voluntarily destroyed that earning capacity by his own wilful actions. After considering the relevant statutory provisions, the court, inter alia, entered the following orders as to the division of assets: “[T]he parties shall divide the net value of the partiefs’] assets, real estate 75 [percent] to the plaintiff and 25 [percent] to the defendant (real estate, bank, checking, money market accounts, stocks, bonds, mutual funds, retirement plans, and education fund account, Xerox pension, federal pension). . . . The values assigned to these items shall be their respective value as of [the] date of judgment. Life insurance policies are not included in this division. The defendant shall retain his 55,000 Xerox stock options.” (Citation omitted.) Notice of the judgment of dissolution was issued on June 16, 2011.

On July 7, 2011, which was twenty-one days after notice of the judgment had been given to the parties, the defendant filed a motion to open and correct the judgment. Although the defendant attempted to file his motion to open the judgment on July 6, 2011, via facsimile transmission, he did not pay the requisite filing fee for the motion until July 7, 2011. The clerk’s office, which initially marked the motion as being filed on July 6, 2011, crossed out that initial marking and restamped the date of filing as July 7, 2011. On July 11, 2011, the plaintiff filed a motion to dismiss the defendant’s motion to open the judgment, claiming that the motion was defective because it did not have a memorandum of law attached as required by Practice Book § 11-10. On July 12, 2011, the defendant filed a memorandum of law in support of his motion to open and correct the judgment, and, on July 15, he filed an objection to the plaintiffs motion to dismiss. On October 19, 2011, the court denied the defendant’s motion to open and correct the judgment, granted the plaintiffs motion to dismiss and overruled the defendant’s objection to the motion to dismiss.

On August 9, 2011, the defendant filed a motion captioned: “Defendant’s Motion for Determination of Date of Filing Re: Motion to Open and Correct the Judgment.” In that motion, the defendant argued that even though the clerk’s office had date-stamped the motion to open the judgment as being filed on July 7, 2011, the court should determine that it had been filed on July 6, 2011, because he had paid the filing fee less than twenty-four hours from the time that the motion was received by facsimile transmission on that date. On August 23,2011, the plaintiff filed an objection to that motion. On October 19,2011, the court sustained the plaintiffs objection to the defendant’s motion to determine the date of filing of the motion to open and correct the judgment.

On September 26, 2011, the defendant filed a motion captioned: “Defendant’s Motion for Expedited Order Re: SERP Benefits.” In that motion, the defendant requested the court to enter an order “releasing the defendant’s Supplemental Executive Retirement Plan (‘SERP’) benefits currently retained by Xerox, the defendant’s former employer.” The defendant claimed that the benefits were income, not an asset, and therefore “[were] not subject to the [75 percent/25 percent] distribution of marital assets ordered by the [c]ourt.” The plaintiff filed a motion to dismiss the defendant’s postjudgment motion on September 28, 2011, claiming that the defendant was seeking an order that would be contrary to the judgment of dissolution previously rendered by the court. On October 19, 2011, the court granted the plaintiffs motion to dismiss the defendant’s motion for an expedited order with respect to the supplemental executive retirement plan benefits.

On November 4, 2011, the defendant appealed from the “judgment” rendered “June 13, 2011,” and the rulings issued October 19,2011. In the defendant’s preliminary statement of issues filed on November 9, 2011, the first three issues related to the dissolution judgment rendered on June 16, 2011, and the last three issues related to the court’s October 19, 2011 rulings on the postjudgment motions. By motion to dismiss filed with this court on November 14, 2011, the plaintiff claimed that the portions of the defendant’s appeal that challenged the judgment of dissolution rendered on June 16, 2011, were not timely filed. On February 1, 2012, this court granted the plaintiffs motion to dismiss with respect to any claims relating to the June 16,2011 dissolution judgment.

On February 24, 2012, the defendant filed a motion for articulation of three of the court’s rulings on the parties’ postjudgment motions and objections. On March 26, 2012, notice was sent to the parties that the trial court denied the defendant’s motion for articulation. On April 3, 2012, the defendant timely filed a motion for review with this court. By order dated May 9, 2012, this court granted the defendant’s motion for review and granted in part the relief requested. The trial court was ordered “to comply with the provisions of [Practice Book] § 64-1 by filing a memorandum of decision . . . explaining the factual and legal bases for [its] October 19, 2011 decisions denying ‘Defendant’s Motion to Open and Correct the Judgment’, dated July 6, 2011, and granting ‘Plaintiffs Motion to Dismiss Defendant’s Motion to Open and Correct the Judgment, Post-Judgment’, dated July 11, 2011.” The trial court complied with this court’s order by filing a memorandum of decision dated June 6, 2012.

In its June 6,2012 memorandum of decision, the court stated that the defendant had failed to file a separate memorandum of law with his motion to open the judgment as required by Practice Book § 11-10. It further noted that the plaintiff, by filing her objection, did not waive the defendant’s noncompliance with that requirement. The court concluded: “In view of defendant’s failure to follow the rules of practice, the court was within its authority to dismiss the motion.” Additionally, the court stated that, alternatively, the defendant’s motion properly was denied because he “failed to demonstrate a good and compelling reason to justify opening this judgment. . . . The court considered all the points raised by the defendant including his challenges to the financial orders.”

I

The defendant’s first issue on appeal is whether the trial court abused its discretion in denying his motion to open and correct the judgment rendered on June 16, 2011. He claims that the court should have granted his motion because he “cited not one or two claims of error but eight specific items that begged for correction . . . .” The defendant further claims that his failure to comply with Practice Book § 11-10 was not a proper ground for the court’s denial. He claims that his late-filed memorandum of law in support of the motion and the lack of prejudice it caused to the plaintiff should have been sufficient to grant his motion under the circumstances of this case.

“The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation. . . . The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal. . . . We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94-95, 952 A.2d 1 (2008).

In the present case, the court stated two grounds for its decision. First, the defendant failed to comply with Practice Book § 11-10 by failing to file a separate memorandum of law with his motion to open and correct the judgment. The defendant does not dispute the fact of his noncompliance, but, rather, he claims his noncompliance should be excused because he subsequently filed a memorandum of law and the plaintiff had not been prejudiced. We cannot conclude that the trial court abused its discretion by requiring compliance with the rules of practice. “Either we adhere to the rules or we do not adhere to them. There was no abuse of discretion here where the trial [court] decided to enforce adherence to the rules of practice.” Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984).

The second ground given for the court’s decision was its conclusion that the defendant had presented no “ ‘good and compelling reason’ ” to justify opening this judgment. See Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94. The court noted that it had considered “all the points raised by the defendant” in reaching that determination. The trial court articulated the proper standard and stated that it had reviewed all of the defendant’s arguments. On this record, we are unable to conclude that the trial court acted beyond the scope of its discretion in denying the defendant’s motion to open and correct the judgment.

II

The defendant’s next claim is that the court improperly denied his postjudgment motion to determine the date of the filing of his motion to open and correct the dissolution judgment. The defendant argues that his motion was filed within the twenty days necessary to preserve appealable issues from the dissolution judgment, even though he failed to pay the filing fee until the twenty-first day after notice of that judgment had been given to the parties. The defendant claims that “since the record was clear and the [m]otion was a necessary component of the appeal process, the decision should be overturned and remanded to the trial court for further proceedings.”

If the defendant’s motion to open and correct the judgment was not filed within the requisite twenty day period, he cannot challenge issues addressed to the dissolution judgment, but may only challenge the court’s decision in denying that motion. “[Bjecause the defendant did not file his motion to open within twenty days from the date of the judgment, the appeal from the denial of that motion can test only whether the court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.” Berzins v. Berzins, 105 Conn. App. 648, 649 n.1, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008). Because no filing fee had been paid at the time the defendant filed his motion by facsimile transmission, the clerk’s office date-stamped the pleading as being filed on July 7, 2011, when the fee was paid, which was twenty-one days after notice of the judgment had been given to the parties.

It would serve no purpose to require the trial court to articulate the date of the filing of the defendant’s motion to open and correct the judgment. We already have made that determination in dismissing the issues raised in the defendant’s preliminary statement of issues that addressed the merits of the dissolution judgment. “It is clear from the language of [General Statutes § 52-259c] that payment of [the filing] fee is mandatory upon the filing of a motion to open. It therefore follows that an otherwise properly filed motion to open will not be accepted by the court unless accompanied by the filing fee. Since the plaintiff did not pay the required fee until October 15, the motion was not filed until that date . . . .” Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 519, 494 A.2d 549 (1985).

We therefore conclude that the defendant’s second claim is moot. “Mootness presents a circumstance wherein the issue before the court has been resolved or [has] lost its significance because of a change in the condition of affairs between the parties. . . . Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings.” (Citation omitted; internal quotation marks omitted.) Champagne v. Champagne, 85 Conn. App. 872, 877, 859 A.2d 942 (2004). Because we decided this issue when we ruled on the plaintiffs motion to dismiss portions of the defendant’s appeal, we now dismiss this claim of the defendant as moot.

Ill

The defendant’s final claim is that the court improperly denied his postjudgment motion for an expedited order with respect to the distribution of benefits held in his supplemental executive retirement plan. Specifically, the defendant argues that the court improperly characterized those benefits as a marital asset, subject to the 75 percent/25 percent distribution set forth in the dissolution judgment, when those benefits should have been considered earnings that were not subject to equitable distribution. The plaintiff claims that the defendant’s motion was proceduraily improper because he was collaterally attacking the underlying dissolution judgment. We agree with the plaintiff.

The defendant, by his motion for an expedited order with respect to the Xerox pension benefits, seeks to alter the substantive terms of the court’s prior judgment. He first sought such relief in his motion to open and correct the judgment, but the court denied that motion. He did not file an appeal within twenty days of the date when notice of the dissolution judgment was given nor did he file any motion within that period of time that would have extended his time to take an appeal. See Practice Book §§11-11 and 63-1. Instead, with a postjudgment motion filed more than three months after the dissolution judgment, the defendant challenged the court’s distribution of the executive retirement benefits in the underlying judgment. “Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs .... A collateral attack on a judgment is a procedurally impermissible substitute for an appeal.” (Internal quotation marks omitted.) Urban Redevelopment Commission v. Katsetos, 86 Conn. App. 236, 244, 860 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005).

Although the caption of the motion did not indicate that the defendant was directly challenging the court’s division of assets, “we look to the substance of the relief sought by the motion rather than the form . . . .” (Internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 605, 974 A.2d 641 (2009). In his appellate reply brief, the defendant argues that the Xerox pension benefits are earnings, not marital property, and urges this court to undertake plenary review of the trial court’s decision and “overturn” the “improper” “property distribution.” The defendant concludes his argument as follows: “The decision in the dissolution action declaring the Xerox SERP as marital property is . . . contrary to the characterization of income and should be overturned.” (Emphasis added.) The defendant’s motion for an expedited order addressed to those benefits clearly constituted an untimely and impermissible collateral attack on the underlying dissolution action, and the court therefore properly denied the defendant’s request.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant filed his motion pursuant to Practice Book § 17-4.

       Practice Book § 17-4 (b) provides: “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the judicial authority.”
      General Statutes § 52-259c (a) provides in relevant part: “There shall be paid to the clerk of the Superior Court upon the filing of any motion to open, set aside, modify or extend any civil judgment rendered in Superior Court a fee of seventy-five dollars for any housing matter, a fee of seventy-five dollars for any small claims matter and a fee of one hundred twenty-five dollars for any other matter . . . .”

       Practice Book § 11-10 provides in relevant part: “A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests . . . (4) motions to set aside judgment filed pursuant to Section 17-4 . . .

       No memorandum of decision accompanied these rulings.

       The court did not specifically rule on the defendant’s motion. No memorandum of decision accompanied the court’s ruling on the plaintiffs objection.

       The court did not specifically rule on the defendant’s motion. No memorandum of decision accompanied the court’s ruling on the plaintiffs motion to dismiss.

       As previously noted, the memorandum of decision was dated June 13, 2011, but notice of that judgment was given to the parties on June 16, 2011.

       The defendant’s first issue in his preliminary statement of issues was as follows: “Did the trial court abuse its discretion and commit reversible error by ordering a [75 percent/25 percent] distribution of marital assets?”

       On April 11, 2012, the defendant filed an amended preliminary statement of the issues on appeal. At that point, the plaintiff filed a motion to dismiss the defendant’s appeal claiming that he was attempting to reintroduce issues already dismissed by this court in its order dated February 1,2012. By order dated June 27, 2012, this court dismissed five of the eight issues set forth in the defendant’s April 11, 2012 amended preliminary statement of issues on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANTHONY CARTER
    (AC 34414)
    (AC 34487)
    Lavme, Beach and Bear, Js.

      Argued February 21
    officially released April 23, 2013

      Anthony Carter, pro se, the appellant (petitioner).

      Kathryn W. Bare, assistant state’s attorney, with whom, on the brief, was GailP. Hardy, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

These consolidated appeals arise from the judgments of the trial court denying the petitions for a writ of error coram nobis filed by the self-represented petitioner, Anthony Carter. On appeal, the petitioner claims that the trial court erred by denying his petitions for a writ of error coram nobis (1) in the absence of a written “objection” from the respondent, the state of Connecticut, and (2) by applying a three year limitation period. We conclude that the trial court lacked subject matter jurisdiction over the petitions and therefore should have rendered judgments dismissing them.

The following facts and procedural history are relevant on appeal. The petitioner was involved in a drug turf shooting during which a seven year old girl was struck by a stray bullet. See State v. Carter, 84 Conn. App. 263, 265, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005). In 2002, following a jury trial, the petitioner was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). Id. In addition to a direct appeal, the petitioner has filed numerous collateral attacks on his judgment of conviction.

On December 1, 2011, the self-represented petitioner filed a petition for a writ of error coram nobis requesting that the court correct errors of fact regarding a motion in limine “heard on May 2, 2002, which, if known at the time judgment was rendered, would have prevented its rendition.” The court, Alexander, J., denied the petition on December 16, 2011, noting that the petition was “filed after the three year limitation.” (Emphasis in original.) The court denied the petitioner’s motion for reconsideration on January 3, 2012.

On January 4, 2012, the petitioner filed a second petition for a writ of error coram nobis requesting that the court correct errors of fact regarding his motion for a judgment of acquittal after verdict heard on August 2, 2002. Judge Alexander denied the second petition on January 5, 2012, and the petitioner’s motion for reconsideration on January 26,2012. The petitioner filed separate appeals from the judgments denying his petitions for a writ of error coram nobis, and this court sua sponte ordered that the appeals be consolidated.

“A writ of error coram nobis is an ancient common-law remedy which authorized the trial judge, within three years, to vacate the judgment of the same court if the party aggrieved by the judgment could present facts, not appearing in the record, which, if true, would show that such judgment was void or voidable. . . . The facts must be unknown at the time of the trial without fault of the party seeking relief. ... A writ of error coram nobis lies only in the unusual situation where no adequate remedy is provided by law. . . . Moreover, when habeas corpus affords a proper and complete remedy the writ of error coram nobis will not lie.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Henderson, 259 Conn. 1, 3, 787 A.2d 514 (2002). “[S]uch a writ has been held not to be available when a proper remedy is afforded by an appeal . . . .” State v. Grisgraber, 183 Conn. 383, 385, 439 A.2d 377 (1981).

Judge Alexander denied the first petition on the ground that it was not filed within three years. The petitioner does not contend that the filing of the first petition was timely, but that the court improperly ruled on the petition prior to the respondent’s having filed an “objection.” Judge Alexander did not state a reason for denying the second petition, but the record reveals that it too was filed well beyond the three year limitation period. See State v. Burney, 288 Conn. 548, 560, 954 A.2d 793 (2008) (court may rely on any ground supported by record to support judgment). The petitioner does not contend otherwise.

The three year limitation for the filing of a petition for a writ of error coram nobis has been the law in Connecticut for more than 130 years. See State v. Das, 291 Conn. 356, 370, 968 A.2d 367 (2009); State v. Henderson, supra, 259 Conn. 3; State v. Grisgraber, supra, 183 Conn. 385; Hurlbut v. Thomas, 55 Conn. 181, 182-83, 10 A. 556 (1887); Jeffery v. Fitch, 46 Conn. 601, 604 (1879); State v. William C., 135 Conn. App. 466, 468-69, 41 A.3d 1205 (2012). More importantly, the three year limitation period is jurisdictional. See State v. William C., supra, 468-69. A court may raise an issue of subject matter jurisdiction sua sponte at any time because it implicates the court’s authority to act. State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992). The petitions for a writ of error coram nobis disclose on their face that they were not filed within three years of the petitioner’s conviction, which is all that was needed to bring the jurisdictional matter to the court’s attention. Moreover, the petitioner has not identified any statute or rule of practice requiring that the court hold a hearing before acting on an untimely petition for a writ of error coram nobis.

In these cases, because the court lacked jurisdiction over the petitions for a writ of error coram nobis, it should have rendered judgments dismissing the petitions. See State v. Ramos, 306 Conn. 125, 142, 49 A.3d 197 (2012).

The form of the judgments is improper; the judgments are reversed and the cases are remanded with direction to render judgments of dismissal.

       Subsequent to his conviction and direct appeal, the petitioner filed four petitions for a writ of habeas corpus in our state courts. See Carter v. Commissioner of Correction, 133 Conn. App. 387, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012); Carter v. Commissioner of Correction, 131 Conn. App. 905, 28 A.3d 360 (2011), cert. denied, 303 Conn. 938, 37 A.3d 153 (2012); Carter v. Commissioner of Correction, 109 Conn. App. 300, 950 A.2d 619 (2008); Carter v. Commissioner of Correction, 106 Conn. App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008). The petitioner also filed an unsuccessful motion to correct an illegal sentence. See State v. Carter, 122 Conn. App. 527, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011). The petitioner also sought collateral relief in the federal District Court. See Carter v. Dzurenda, United States District Court, Docket No. 3:04cvl691 (JBA) (D. Conn. July 29,2005), reconsideration denied, United States District Court, Docket No. 3:04cvl691 (JBA) (D. Conn. October 25, 2005), cert. denied, 549 U.S. 879, 127 S. Ct. 365, 166 L. Ed. 2d 138 (2006). The petitioner recently filed the necessary forms to file a successive petition for a writ of habeas corpus in the federal court. See Carter v. Haupt, United States Court of Appeals, Docket No. 12-4102, application for petition for writ of habeas corpus (2d Cir. October 26, 2012).

       The petitioner’s defense counsel filed the motion in limine with respect to “items marked E-l through E-15 on the chart prepared by the Hartford Police Department on July 18,2001. The items consist of spent casings from a .45 caliber weapon, spent casings from a .9 mm weapon and a bullet.” (Internal quotation marks omitted.) The court, Mulcahy, J., denied the motion in limine.

       The petitioner filed the motion for acquittal as a self-represented party. The court, Mulcahy, J., denied the motion for a judgment of acquittal.

       In his brief on appeal, the petitioner relies on Telesco v. Telesco, 187 Conn. 715, 447 A.2d 752 (1982), for the proposition that the court could not act on his petitions prior to the respondent’s filing an “objection.” Telesco was a civil action and is distinguishable on its facts and procedural posture.

       In its brief, the respondent offers several alternative grounds on which to affirm the judgments of the trial court, including that, if the writ of error coram nobis ever existed in this state, it may only lie where there is no adequate remedy at law; see, e.g., State v. Grisgraber, supra, 183 Conn. 385; or that it has been supplanted by other remedies. See, e.g., State v. Das, supra, 291 Conn. 372. Assuming that the writ of error coram nobis exists, we conclude that the court lacked jurisdiction over the petitions at issue herein.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. SOMEN SHIPMAN
    (AC 34672)
    Gruendel, Sheldon and Borden, Js.

      Argued January 8
    officially released April 23, 2013

      Damon A. R. Kirschbaum, assigned counsel, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and C. Robert Satti, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Somen Shipman, appeals from the judgment of conviction, rendered after a jury trial, of two counts of murder in violation of General Statutes § 53a-54a (a), one count of capital felony in violation of General Statutes § 53a-54b (8), and one count of conspiracy to commit mmder in violation of General Statutes §§ 53a-48 and 53a-54a. The defendant claims that (1) our Supreme Court improperly granted the state’s motion to reconsider its order to rectify the trial court record to reflect the races of the jury venirepersons and (2) the trial court improperly permitted the state to exercise a peremptory challenge to excuse a black venireperson from sitting as an alternate juror. We decline to review the merits of the defendant’s first claim and affirm the judgment of the trial court.

The following facts, as reasonably could have been found by the jury, are relevant to the resolution of the defendant’s claims. In October, 1996, Torrance McClain, Norman Gaines and the defendant were entrenched in Bridgeport’s drug trade. Sometime in mid-October, Ronald Marcellus, another drug dealer and an associate of McClain, Gaines and the defendant, engaged with Gary Louis-Jeune in an angry verbal exchange over their respective drug dealing enterprises. Following this exchange, Marcellus requested that the defendant “take care of [the situation]” for him because Louis-Jeune was attempting to “move in on the block.” The defendant and Gaines, on the evening of October 29, 1996, thereafter shot Louis-Jeune and his girlfriend, Marsha Larose, multiple times, killing both of them.

In December, 1996, McClain was arrested and pleaded guilty to drug charges. Before he was sentenced pursuant to his guilty plea, McClain provided the Bridgeport police with a written statement indicating that Gaines and the defendant were responsible for the shooting of Louis-Jeune and Larose. The defendant subsequently was arrested and charged with one count of capital felony, two counts of murder and one count of conspiracy to commit murder. After a trial, the jury returned a verdict of guilty on all charges, and the court, on April 28, 2000, rendered judgment in accordance with the verdict. Merging the two counts of murder with the capital felony charge, the court sentenced the defendant to life imprisonment without the possibility of release, to run concurrently with twenty years imprisonment on the charge of conspiracy to commit murder, for a total effective sentence of life imprisonment without the possibility of release.

In June, 2000, the defendant appealed his conviction directly to the Supreme Court, following which he moved for rectification of the trial court record to establish the races of the jury venirepersons. The trial court denied his motion and, thereafter, the defendant moved for review by the Supreme Court. On March 16, 2004, the Supreme Court granted the motion and the relief requested therein. On November 17, 2011, the state moved for reconsideration of the Supreme Court’s granting of the defendant’s motion for rectification of the record. The Supreme Court granted both the state’s motion and the relief requested therein, stating: “Upon careful review of the record, it is apparent that the defendant failed to raise a disparate treatment claim in the trial court and, therefore, is not entitled to rectification of the record to augment [it] with evidence to support such a claim. See, e.g., State v. Hodge, 248 Conn. 207, 227 [726 A.2d 531] (when ‘the defendant [fails] to raise a disparate treatment claim with respect to [specific] venirepersons, the record is inadequate for appellate review of his claims with respect to those venirepersons’), cert. denied, 528 U.S. 969 [120 S. Ct. 409, 145 L. Ed. 2d 319] (1999); State v. Haughey, 124 Conn. App. 58, 61 n.3 [3 A.3d 980] (same) [cert. denied, 299 Corm. 912, 10 A.3d 529 (2010)].” Thereafter, pursuant to Practice Book § 65-1, the Supreme Court transferred the defendant’s appeal to this court.

I

The defendant first claims that our Supreme Court improperly granted the state’s motion to reconsider its granting of the defendant’s motion for rectification of the record and its granting of the relief requested therein. In raising this claim, the defendant invites this court to substitute our judgment for that of our Supreme Court. We reject his invitation.

“As an intermediate appellate body, it is axiomatic that the Appellate Court is . . . not at liberty to overrule or discard the decisions of our Supreme Court but [is] bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions. . . . Our Supreme Court is the ultimate arbiter of the law in this state [and] [w]e, as an intermediate appellate court, cannot reconsider the decisions of our highest court.” (Citations omitted; internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Corm. App. 31, 48-49, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010); see also Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010) (“it is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by [its] precedent”).

Our Supreme Court has determined, finally, that under Connecticut law, the defendant is not entitled to a rectification of the trial court record. To engage in a reanalysis of the defendant’s claim and a review of our highest court’s decision on the matter would be both improper and fruitless. We, therefore, decline to afford it review.

II

The defendant next claims that the trial court improperly permitted the state to exercise a peremptoiy challenge of a black venireperson, T.G., in violation of the defendant’s and the excluded juror’s rights under the equal protection clause of the fourteenth amendment to the United States constitution. Specifically, the defendant argues that the court (1) incorrectly found that the state’s proffered reasons for excluding T.G. were not pretext for racial discrimination, and (2) improperly offered and relied on its own race neutral reason for excusing T.G. We are not persuaded by either of these arguments.

After the petit jury had been selected for the defendant’s trial, voir dire of prospective alternate jurors began. During voir dire of T.G., among other topics, the prosecutor, C. Robert Satti, Jr., questioned him regarding his knowledge of the neighborhood in which the murders occurred and whether he had family or friends who were police officers. T.G. revealed that he was familiar with and frequented the area where the murders were committed “[a]t least two times a week.” T.G. also testified that his father was a police officer in Florida involved in drug task force work while T.G. was living with him. The defendant’s counsel, Lawrence Hopkins, did not pose any questions to T.G.

Following voir dire of T.G., Satti attempted to exercise one of the state’s peremptory challenges to excuse him. Hopkins then requested, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), that Satti articulate for the record his reasons for excluding T.G. The court granted Hopkins’ request and then engaged in the following colloquy:

“Mr. Satti: . . . The two reasons that I would put on the record are the knowledge of the area, more specifically, the knowledge of the area of the homicide where he indicated he would go through at least two or three times; I thought it was a minimum [of] a month or a week, I’m not sure exactly. And then Laurel Court, he indicated, though, back in [1996] he wasn’t through there, he did know the area. And, I have a concern that although people may not know names, they would see faces. These are known drug areas. It is expected additionally that we will have evidence about drug dealing in this.

“And, one of the—I believe, it would be, in my view, a minor concern, but I think it’s part of the total package, is the father working as a police officer, does not normally excuse somebody, but working a drug task force, and we expect there will be drug dealing and the like. . . . But, I think that knowing the area sufficiently is a concern for me as to what might he bring by way of knowledge of people and the like.

“Mr. Hopkins: ... I don’t think he—his responses to any one—any question that was posed to him would indicate that it would be a problem with any of the things that Mr. Satti suggested there even might. And, consequently, I think the juror ought to be seated.

“I’m concerned. We’ve had precious few minorities, particularly blacks in this case, on the voir dire panel who were able to serve or not prohibited from serving, I should say, for some valid reason, whether, for example, the black woman this morning who was ill, people had problems with jobs, et cetera. And, I understand that that’s a fact of life and I accept that. But, I think in this case, of this twenty-four year old black man, [T.G.], he didn’t give any response that would indicate any cause for concern, bias, prejudice, or any problem that I can see, and I think, consequently, he ought to be seated. Particularly in light of the fact that we have so few blacks on the panel at this juncture.

“The Court: Anything else, Mr. Satti?

“Mr. Satti: I was just—he’s raised an additional ground on the issue of who was seated on the panel, which goes a little beyond what this particular individual, my reasons for the particular individual. . . .

“The Court: But, it certainly can be raised within the context of Batson in general.

“Mr. Satti: No, I’m suggesting the additional argument is, what has the state done in the past—

“The Court: Yes. Exactly.

“Mr. Satti:—as far as the seating of jurors.

“The Court: Okay.

“Mr. Satti: And, my recollection is that we have accepted previously at least one clear member of a minority, who, unfortunately, that was [T.E.], for [a] different reason unrelated to the state’s—

“The Court: Who I ultimately excused because of employment problems, which she was kind enough to come in and stated for the record her reasons for not being able to be with us. That’s correct. Go ahead.

“Mr. Satti: I’m quickly going through and I believe there’s at least, who could be classified, as I see it through my notes, three or four minorities alone. Whether they’re African-American or black. . . . [M]y point is that we have not been routinely excluding black individuals. We have been accepting them, and for different reasons, they have not been before the panel. So, I would suggest to the court that this is not an issue of a pattern. . . .

“Mr. Hopkins: I did not mean to suggest that, by the way.

“Mr. Satti: Oh, I’m sorry.

“The Court: No, no. There doesn’t necessarily have to be a pattern. The court has to take into consideration the—either the questioning of the proposed venireman or the lack thereof. I will admit that the state’s attorney has been consistent in terms of his shown concern with—for anybody who has a working knowledge of the area in question. It seems to me that there was a certain reticence on the part of the venireperson in terms of the state’s attorney exploring his knowledge of the area in question. I think that that is, in and of itself, a sufficient race neutral reason in terms of the exercise here.

“And, I think, given the totality of the circumstances and based upon the history of the questioning of the venire people, venirepersons, here, I think that the state’s attorney has given sufficient reason, given sufficient race neutral reason for excuse, and therefore, I’m going to allow him to exercise a peremptory.”

After excusing T.G., the court made the following comment: “The record should reflect, by the way, that the court likewise was somewhat concerned with the fact that his father had experience here as a narcotics enforcement, which seemed to me to be a concern that, in general, one would have in terms of his basic fairness on behalf of this defendant, given the fact that there would be certain evidence adduced as to possible drug transactions being involved in this case .... And, therefore, the record should reflect that that might be a concern that the court in and of itself might have with regard to this venireperson.”

Following T.G.’s excusal, the defendant made no requests to add information regarding the races of either selected or excused jurors, and, accordingly, the record does not indicate the races of any of the jurors except for T.E., who was excused by the court after presenting a hardship excuse, and T.G. The defendant made no such request until after the jury had returned its guilty verdict and he initiated his direct appeal to the Supreme Court. As our Supreme Court has made the ultimate decision that the record ought not be rectified, we base our review on the record as it now stands. See part I of this opinion.

We begin by setting forth the well established principles of law that govern Batson claims. “Peremptory challenges are deeply rooted in our nation’s jurisprudence and serve as one state-created means to the constitutional end of an impartial jury and a fair trial. . . . Although such challenges generally may be based on subjective as well as objective criteria . . . they may not be used to exclude a prospective juror because of his or her race or gender. . . .

“In Batson . . . the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race ....

“Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established [the existence of] purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. . . .

“We have identified several specific factors that may indicate that [a party’s removal] of a venireperson through a peremptory challenge was . . . motivated [by race or gender]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case ... (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race [or gender] were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race ... as the challenged juror were not struck ... (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically ... (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race ....

“In assessing the reasons proffered in support of the use of a peremptory challenge . . . [a]n explanation . . . need not ... be pigeon-holed as wholly acceptable or wholly unacceptable . . . and even where the acceptability of a particular explanation is doubtful, the inquiry is not at an end. In deciding the ultimate issue of discriminatory intent, the judicial officer is entitled to assess each explanation in light of all the other evidence relevant to prosecutorial intent. The officer may think a dubious explanation undermines the bona fides of • other explanations or may think that the sound explanations dispel the doubts raised by a questionable one. As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances. . . .

“Finally, the trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. . . . Accordingly, a trial court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 343-46, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).

The defendant contends that the court improperly found that the state’s articulated reasons for exercising its peremptory challenge to excuse T.G. were not pretexts for racial discrimination. He asserts that the court’s finding was clearly erroneous because the state questioned other nonminority jurors differently than it questioned T.G. and accepted or did not exercise peremptory challenges to excuse other nonminority jurors with responses similar to those offered by T.G. on voir dire. We cannot, however, review the merits of this claim because the record does not include the races of the relevant venirepersons.

The races of the relevant venirepersons are requisite facts without which we are unable to conduct a comparison of the state’s treatment of T.G., a black venire-person, against its treatment of nonminority venirepersons. See State v. Hodge, supra, 248 Conn. 228 (“[bjecause a disparate treatment claim raises factual questions that must be decided by the trial court, the defendant’s failure to raise the claim in the trial court is fatal to his claim on appeal”); see also United States v. Houston, 456 F.3d 1328, 1338 (11th Cir. 2006) (without adequate record, court lacks “benefit of the prosecutor’s explanation for why he struck the black venire members rather than the white venire members now alleged to be similarly situated” and the “benefit of a finding by the trial judge as to the credibility of such explanations”), cert. denied, 660 U.S. 926, 127 S. Ct. 2148, 167 L. Ed. 2d 877 (2007). In order to conduct such a comparison, the defendant urges this court to assume, based upon comments made on the record that there were very few minority venirepersons, that the comparative venirepersons are nonminorities. This proposition, however, overlooks the bedrock principle that “[w]e afford review only to claims based on the complete factual record developed by the trial court. We do not guess or speculate as to the existence of a factual predicate.” Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). We, therefore, cannot review the defendant’s disparate treatment claim.

Next, the defendant argues that the court improperly found that the state’s proffered reason for excluding T.G. was not pretextual because the reason offered was “implausible and fantastic.” In particular, the defendant contends that the court erroneously found that one of Satti’s reasons for excusing T.G., the reason that was based on his father’s experience as a police officer involved with narcotics work, was not pretext for purposeful discrimination because Satti, as a prosecutor, would not exclude a venireperson for being biased in favor of the police. We disagree with the defendant’s characterization of the record and, accordingly, his argument.

“In Purkett v. Elem, 614 U.S. 766, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), the [United States Supreme Court] explained the manner in which the second procedural step required under Batson should be applied: Under our Batson jurisprudence . . . [t]he second step of this process does not demand an explanation that is persuasive, or even plausible. At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. ... It is not until the third step that the persuasiveness of the justification becomes relevant. . . . At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” (Emphasis in original; internal quotation marks omitted.) State v. Hodge, supra, 248 Conn. 219 n.18.

At the outset, we note that we need not reach the question of whether a prosecutor offering a venire-person’s bias toward the police as a reason for exercising a peremptory challenge would tend to indicate that there existed pretext for purposeful discrimination because the record does not reveal that Satti exercised his peremptory challenge for this reason. Rather, Satti mentioned during argument on the defendant’s Batson challenge that he had “a minor concern” about T.G.’s father “working a drug task force” when Satti “expect[ed] there [would] be [evidence in this case of] drug dealing and the like.” Satti’s explanation indicates that his principal reason for excluding T.G. was not his possible bias in favor of the police, but his potential knowledge of or familiarity with the general subject of drug dealing. On this record, we cannot conclude that Satti’s proffered reason was “implausible and fantastic” or that the court’s determination that this reason was not pretext had no evidence to support it. The court’s finding, therefore, was not clearly erroneous.

The defendant also claims that the court’s finding that there was no pretext with respect to the state’s proffered reason was clearly erroneous because, in making its determination, it relied on a race neutral reason for excusing T.G. that was provided by the court rather than the state. We do not agree.

“A Batson challenge does not call for a mere exercise in thinking up any rational basis [for exercising a peremptory challenge]. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The [court’s] . . . substitution of a reason for eliminating [a venireperson] does nothing to satisfy the prosecutors’ burden of stating a racially neutral explanation for their own actions.” Miller-El v. Dretke, 545 U.S. 231, 252, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005).

After engaging in its Batson analysis and finding that the state had not engaged in purposeful discrimination, the court excused T.G. Only after excusing T.G. did the court note for the record that it had its own concerns about T.G.’s fitness to serve as a juror. The court’s concerns surrounded T.G.’s exposure to his father’s experience on a drug task force and indicated that the court believed that T.G. may not have been able to render a fair and impartial decision in the defendant’s case, which would likely relate to the drug trade. The defendant has pointed to no evidence that this consideration substituted for the state’s proffered reason for excluding T.G., or that it entered into the court’s evaluation of the defendant’s Batson challenge whatsoever. Rather, from the record, it appears that the court merely was articulating that it had observed grounds that could have been the basis for excusing T.G. for cause. As the court is well within its province to excuse a venire-person “if the judge ... is of the opinion from the [voir dire] examination that [the] [venireperson] would be unable to render a fair and impartial verdict”; (internal quotation marks omitted) State v. Griffin, 251 Conn. 671, 699, 741 A.2d 913 (1999); explaining its apprehension about T.G.’s ability to be fair to the defendant does not, alone, undercut the court’s finding, based on the evidence before it, that the state had not engaged in purposeful discrimination. We, therefore, conclude that the defendant has not demonstrated that the court’s finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Gaines was tried and convicted of the murders of Louis-Jeune and Marsha Larose. His conviction was affirmed by the Supreme Court. State v. Gaines, 257 Conn. 695, 778 A.2d 919 (2001).

       To protect the legitimate privacy interests of the venirepersons involved in this case, we refer to them only by their initials. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).

       We note that, in his brief to this court, the defendant himself concedes that “[t]his [c]ourt cannot provide meaningful and effective review of [his] Batson claim without having the record rectified to show the races of the relevant venirepersons.”

       The defendant argues that Hodge, insofar as it precludes review of disparate treatment claims raised for the first time on appeal, has been overruled by the United States Supreme Court cases Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2006), and Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008). We need not decide that issue, however, because neither Miller-El nor Snyder addressed the case, as is present here, where the record does not contain the requisite facts to review a disparate treatment claim not raised in the trial court.

       Inexplicably, the defendant suggests that we assume, in the alternative, that all of the relevant venirepersons were black.

       The defendant claims also that the court, in stating that T.G.’s reticence to discuss his knowledge of the area where the homicides occurred would be “in and of itself’ a “sufficient race neutral reason” to exercise a peremptory challenge, improperly substituted its own reason for that of Satti. The record, however, belies this claim, as the court went on to state that “given the totality of the circumstances and based upon the history of the questioning ... the state’s attorney has given sufficient . . . race neutral reason” for exercising his peremptory to excuse T.G. “and, therefore, [the court was] going to allow [the state] to exercise a peremptory.” (Emphasis added.) While the court noted its own observations of T.G.’s demeanor and hypothesized about it being a permissible reason for exercising a peremptory challenge, the court plainly indicated that the state provided a credible race neutral reason and that this was the basis for allowing the state’s exclusion of T.G.


text:
    BROOKLYN MACELLAIO v. NEWINGTON POLICE DEPARTMENT ET AL.
    (AC 34628)
    Robinson, Alvord and Harper, Js.

      Argued January 10
    officially released April 23, 2013

      Brooklyn Macellaio, pro se, the appellant (plaintiff).

      Michael K. Skold, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant Ralph Dagostine).
   Opinion

PER CURIAM.

The plaintiff, Brooklyn Macellaio, appeals from the judgment of dismissal rendered by the trial court in favor of the defendant Ralph Dagostine on the ground of sovereign immunity. We affirm the judgment of the trial court.

On December 9, 2011, the plaintiff filed a two count complaint against the defendant alleging claims for false arrest and negligence. In particular, the plaintiff alleged that the defendant, as chief deputy clerk of the New Britain Superior Court, destroyed the plaintiffs bond records after he was arrested. The plaintiff alleged various injuries as a result. On January 18, 2012, the defendant filed a motion to dismiss on the ground of sovereign immunity. On February 6, 2012, the court granted the defendant’s motion to dismiss over the plaintiffs objection. This appeal followed.

The plaintiff claims that dismissal was improper because he was denied access to the court due to his inability to pay the claims commissioner’s filing fee. In particular, the plaintiff contends that the claims commissioner denied his fee waiver application despite his indigence. Regardless, the plaintiff cannot prevail on his claims pursuant to the doctrine of sovereign immunity because he sought to bring an action for monetary damages against the defendant in his official capacity as a state officer without authorization from the claims commissioner.

“[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347, 977 A.2d 636 (2009).

“The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. ... It has deep roots in this state and our legal system in general, finding its origin in ancient common law. . . . Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.” (Internal quotation marks omitted.) Id., 349. “If the plaintiffs complaint reasonably may be construed to bring claims against the defendants in their individual capacities, [however] then sovereign immunity would not bar those claims.” Miller v. Egan, supra, 265 Conn. 307. “The determination of whether the plaintiffs complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). ... [In Spring, our Supreme Court] set forth four criteria to determine whether an action is in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.” (Citation omitted; internal quotation marks omitted.) Miller v. Egan, supra, 308.

In his complaint, the plaintiff alleged that the defendant, as chief deputy clerk of the New Britain Superior Court, destroyed the plaintiffs bond records after the plaintiff was arrested. The first and second criteria are met because the defendant is a state official and this suit concerns a matter related exclusively to his position as chief deputy clerk of the New Britain Superior Court. The third criterion is met because damages are sought for injuries allegedly caused by the defendant for performing acts that are a part of his official duties such that the state is the real party against whom relief is sought. See Kenney v. Weaving, 123 Conn. App. 211, 216-17, 1 A.3d 1083 (2010). Finally, the fourth criterion is met because any judgment against the defendant would subject the state to liability. See id.; see also General Statutes § 5-141d (a). There are no allegations in the plaintiffs complaint that the action was brought against the defendant in his individual capacity or any factual allegations that would support that assertion. Thus, in accordance with Spring, we conclude that the plaintiffs complaint alleged claims against the defendant in his official capacity only, and, therefore, this suit was, in effect, against the state. Accordingly, the doctrine of sovereign immunity applies.

“In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so. . . . When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. . . . This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions.” (Citation omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 351-52; see also General Statutes § 4-160 (a) (“[w]hen the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be hable”).

In his complaint, the plaintiff sought monetary damages but did not receive permission from the claims commissioner to sue the state. The plaintiff has claimed that he was denied access to the court because the claims commissioner denied his fee waiver application despite his indigence. The claims commissioner’s denial of the plaintiffs fee waiver application does not prevent the application of the doctrine of sovereign immunity in this case; the fact remains that the plaintiff did not receive authorization from the claims commissioner. “Waiver of sovereign immunity by the commissioner is a legislative prerogative with which we will not interfere lightly.” Klemonski v. University of Connecticut Health Center, 141 Conn. App. 106, 110, 60 A.3d 1002 (2013). Furthermore, the plaintiffs complaint does not fall within any recognized exception to the doctrine of sovereign immunity. Accordingly, the plaintiffs claims against the defendant are barred by the doctrine of sovereign immunity. The trial court therefore properly rendered judgment dismissing the plaintiffs action.

The judgment is affirmed.

       The Newington Police Department and Officers Arkadiusz Petlik and Jeanine AUin are also defendants in this action but are not parties to this appeal. Accordingly, we will refer to Dagostine as the defendant.

       In his complaint, the plaintiff sought monetary damages in the amount of $15,000 or more.

       The plaintiff contends that he did not receive an order or judgment on his application, just a copy of a prior memorandum of decision from the claims commissioner, dated May 26,2010. In that decision, the commissioner stated that the plaintiff had filed forty-four claims between May 1 and October 26, 2009, as well as eleven court actions in 2009. The commissioner determined that “[t]his serial claimant has received fee waivers and abused the courts and this office for frivolous claims. In the future [the plaintiff] shall be required to pay the statutory filing fee for any claims filed with the Office of the Claims Commissioner.” (Internal quotation marks omitted.) Klemonski v. University of Connecticut Health Center, 141 Conn. App. 106, 109, 60 A.3d 1002 (2013); id., 107 (plaintiff, Kevin Klemonski, now known as Brooklyn Macellaio).

       General Statutes § 5-14M (a) provides in relevant part: “The state shall save harmless and indemnify any state officer or employee . . . from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person’s civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.” There are no allegations in the plaintiffs complaint of any wanton, reckless or malicious behavior on the part of the defendant.

       The trial court also granted the defendant’s motion to dismiss on the ground of statutory immunity. Because we find that the plaintiff’s complaint failed to allege any claims against the defendant in his individual capacity, consideration of the doctrine of statutory immunity is unnecessary. General Statutes § 4-165 (a) provides: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.” (Emphasis added.) “[Section 4-165] is part of chapter 53 which covers claims against the state. The manifest legislative intent expressed by chapter 53 is that an employee is immune where and because the state may be sued . . . .” (Internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 163, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, supra, 265 Conn. 325. Again, this suit was, in effect, against the state such that the doctrine of sovereign immunity applies. “ [T]he statutory immunity provided by § 4-165 applies where sovereign immunity does not apply.” Shay v. Rossi, supra, 164.

       “[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiffs constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority.” (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349.


text:
    CAESAR O’NEIL v. COMMISSIONER OF CORRECTION
    (AC 33070)
    Robinson, Sheldon and Flynn, Js.
    Argued February 7
    officially released April 23, 2013

      Brittany Bussola Paz, with whom, on the brief, were Norman A. Pattis and Daniel M. Erwin, for the appellant (petitioner).

      Linda Currie-Zeffiro, assistant state s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Caesar O’Neil, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus following its denial of his petition for certification to appeal. The petitioner claims that the court improperly rejected his claim that his trial counsel had provided constitutionally ineffective assistance by failing to object to certain hearsay testimony related to the pretrial identification of the petitioner as the perpetrator of the alleged crimes. Prior to oral argument before this court, we ordered the petitioner to file a supplemental brief addressing the threshold issue of whether the habeas court had abused its discretion by denying his petition for certification to appeal. We conclude that the court did not abuse its discretion and, therefore, dismiss the appeal.

The petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a), attempt to commit murder in violation of General Statutes § 53a-49 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and criminal attempt to tamper with a witness in violation of General Statutes §§ 53a-49 (a) (2) and 53a-151 (a). His convictions were affirmed on appeal. See State v. O’Neil, 67 Conn. App. 827, 837, 789 A.2d 631 (2002).

The relevant facts underlying the convictions are as follows. “During the early morning hours of June 25, 1993, two shootings involving the same weapon occurred in Bridgeport within a brief period of time. One of four individuals occupying a car fired a gun from the rear passenger seat, hitting two men, Rafael Rodriguez and Juan Miles. Rodriguez died from the injuries he sustained, and Miles was injured by a bullet that went through his leg. Shortly thereafter, a second shooting occurred. Donald Vernon, while attempting to use a pay telephone, was hit by a bullet that came from the rear passenger seat of a car that was identical to the one involved in the earlier shooting.

“The investigation that followed led the police to suspect the [petitioner] as the shooter in both incidents. From 1993 through 1997, the Bridgeport police department, including its fugitive task force, attempted to locate the [petitioner], without success. On March 14, 1997, the [petitioner] was arrested in connection with the June 25, 1993 shootings. He was charged with murder as a result of the first shooting, and attempt to commit murder and assault in the first degree as a result of the second shooting.

“While the [petitioner] was incarcerated and awaiting trial, officials at the Walker Reception Center intercepted a coded letter that he had sent to his mother. The letter, when deciphered, informed the [petitioner’s] mother to get a message to one of the [petitioner’s] associates. The [petitioner] attempted to establish an alibi for the time of the shooting and to make sure that Vernon did not testify. Subsequently, the [petitioner] was charged with criminal attempt to tamper with a witness.” Id., 829-30. The charges against the petitioner were consolidated for trial. Id., 830. The petitioner’s trial counsel was Attorney Lawrence Hopkins.

Vernon testified at trial that the petitioner was the person who had shot him. He also testified about a pretrial interview that he had given to Detective William Perez of the Bridgeport police department. Vernon admitted that at the beginning of the interview he had identified the petitioner only as one of the occupants of the car involved in the shooting, but not as the shooter. After additional inquiry by Perez, however, Vernon ultimately told Perez that the petitioner had shot him. Vernon testified that his initial reluctance in identifying the petitioner stemmed from threats that Vernon had received against him and his family. Vernon was cross-examined by Hopkins about his prior inconsistent statements regarding his ability to identify his assailant. In particular, Hopkins elicited from Vernon on cross-examination that Vernon had told a police sergeant at the hospital shortly after the shooting that he had no idea who had shot him. Hopkins also got Vernon to agree on the record that when he claimed that he saw the petitioner shoot him, he, in fact, was relying on statements by other people at the crime scene who had told him that the petitioner was the shooter. Vernon nevertheless reasserted on redirect that he saw the petitioner shoot him, just as he had indicated in his interview with Perez.

Perez also testified at the criminal trial about Vernon’s pretrial interview and identification of the petitioner. On cross-examination, Hopkins asked Perez whether prior to interviewing Vernon he had been made aware “that [Vernon] had told at least one maybe more officers that he couldn’t be of any help to them, he didn’t know who shot him.” Perez answered: “[Vernon] had told one other officer that he in fact knew who had shot him.” Hopkins did not object to or move to strike that answer as hearsay. Instead, he asked Perez whether he was aware of any report that would corroborate his previous statement. Perez responded in the negative and later agreed with Hopkins’ statement that Vernon’s interview with Perez was the first time that Vernon had indicated that the petitioner was responsible for shooting him. Hopkins made two more attempts to elicit from Perez whether, at the time he had interviewed Vernon, Perez had been aware of Vernon’s statement to the officer at the hospital that he could not identify his shooter. Perez first repeated his testimony that he “only had knowledge that—from one officer that he did.” The second time he simply stated that he “wasn’t aware of that.” On redirect, Perez again testified, without eliciting any objection from Hopkins, that he had pressed Vernon during his interview because an officer had told him that Vernon could identify his shooter. Ultimately, the jury found the petitioner guilty on all counts charged.

The petitioner filed the operative amended petition for a writ of habeas corpus on July 31, 2009. The petitioner alleged, inter alia, that he was deprived of his constitutional right to the effective assistance of counsel because of Hopkins’ failure to make timely objections to hearsay testimony given at trial by Perez during cross-examination and on redirect that, prior to interviewing Vernon, Perez had been told by another unnamed officer that Vernon knew who had shot him and that the shooter was the petitioner. The petitioner argues that Perez’ hearsay testimony unfairly bolstered the direct testimony given by Vernon that the petitioner was the shooter.

Following the habeas trial, the court issued its memorandum of decision denying the petition for a writ of habeas corpus. The court found that Hopkins had acted “within the acceptable range of performance” and that the petitioner had failed to present any evidence from which the court could conclude that the outcome of the trial would have been different but for the hearsay testimony of Perez. The court subsequently denied the petitioner’s petition for certification to appeal. This appeal followed.

“In a habeas appeal, 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. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test . . . adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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.” (Citation omitted; internal quotation marks omitted.) Synakorn v. Commissioner of Correction, 124 Conn. App. 768, 771, 6 A.3d 819 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004 (2011).

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, 127 Conn. App. 662, 668, 14 A.3d 1066, cert. denied, 301 Conn. 913, 19 A.3d 1269 (2011).

“ [T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here 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.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 801, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 643 U.S. 864, 126 S. Ct. 301, 160 L. Ed. 2d 90 (2004). An “[e]xperienced [litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury.” (Internal quotation marks omitted.) State v. Davis, 76 Conn. App. 653, 665, 820 A.2d 1122 (2003).

Although Hopkins did not object to Perez’ hearsay statement, he obtained Perez’ admission that there was no report or other evidence that corroborated the statement, thus minimizing its impact on the jury without highlighting the testimony with an objection. Hopkins also effectively cross-examined Vernon regarding his prior inconsistent statements. Although Hopkins testified at the habeas trial regarding his general defense strategy, he was never asked to explain why he chose not to object to Perez’ hearsay testimony. The petitioner also presented no expert testimony to the habeas court regarding whether Hopkins’ actions fell outside of the range of acceptable performance by a criminal defense attorney. On the basis of the limited evidence before it, the habeas court found “the strategic and tactical decisions of [trial] counsel, as well as the manner in which he carried them out to be within the acceptable range of performance.” Our review of the record leads us to conclude that the habeas court’s finding was not clearly erroneous, nor could a reasonable jurist have reached a different conclusion regarding Hopkins’ performance on the basis of the evidence presented. Similarly, with regard to proof of the prejudice prong, the habeas court found that even if it presumed that Hopkins’ performance was deficient, the petitioner “did not present any evidence at the habeas trial” from which to conclude “that there was any likelihood that the outcome of the trial would have been any different.” That finding likewise is supported by our review of the record.

In sum, having thoroughly reviewed the record and the issues raised by the petitioner on appeal, we are left to conclude that the habeas court correctly applied the law and reasonably could have reached only the conclusion that it did. The petitioner has not met his burden under Simms v. Warden, supra, 230 Conn. 612, of showing that the habeas court abused its discretion in failing to grant his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus.

The appeal is dismissed.

       The amended petition for a writ of habeas corpus contained a number of additional allegations of ineffective assistance, as well as a claim of actual innocence. After the habeas trial, the habeas court denied the remainder of the petition “on the grounds of either procedural default, clear lack of evidence, or abandonment of the claim.” That ruling is not challenged on appeal.


author: BEAR, J.

text:
    DARRELL MORRIS v. YALE UNIVERSITY
    (AC 34671)
    Lavine, Robinson and Bear, Js.

      Argued February 14
    officially released April 23, 2013

      John R. Williams, for the appellant (plaintiff).

      Patrick M. Noonan, with whom, on the brief, was Colleen Noonan Davis, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Darrell Morris, appeals from the summary judgment of the trial court, rendered in favor of the defendant, Yale University, on the plaintiff’s complaint. On appeal, the plaintiff claims that the court “erred in failing to view the evidence in the light most favorable to the nonmoving party and in finding disputed facts, when deciding the defendant’s motion for summary judgment.” We affirm the judgment of the trial court.

The plaintiff alleged the following relevant facts in his complaint. In the fall of 2000, the plaintiff was a matriculated medical student at the Yale University School of Medicine (medical school). Upon his admission to medical school, the defendant gave the plaintiff a student handbook that “memoriaiiz[ed] the policies, procedures and rules governing student requirements.” This handbook created a contract between the defendant and the plaintiff. One of the requirements in the handbook was that medical students had to take and pass step one of the United States medical licensing examination (exam). The handbook stated that students were allowed three opportunities to pass this exam, and students were expected to pass the exam within six years of their admission to the medical school. By October, 2003, the plaintiff had taken the exam twice and failed it both times. The defendant then dismissed the plaintiff without permitting him a third opportunity to take the examination. The plaintiff appealed the dismissal, and the medical school conditionally readmitted him. When the plaintiff had not retaken the exam by June 30, 2004, however, the medical school again dismissed him. The plaintiff took the exam in March, 2005, and passed it. He then notified the medical school and requested readmission, which it denied.

By complaint dated April 30, 2007, returnable June 5,2007, the plaintiff brought the present action, alleging breach of contract, negligent misrepresentation, breach of the covenant of good faith and fair dealing, and promissory estoppel. On May 14, 2008, the defendant filed a motion for summary judgment on the entire complaint, supported by the affidavit of Nancy R. Angoff, the associate dean for student affairs of the medical school, and numerous exhibits. In response, the plaintiff submitted an objection and an affidavit with exhibits in support thereof. On May 7, 2012, the court granted the defendant’s motion in its entirety and rendered judgment in favor of the defendant. This appeal followed.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . Finally, the scope of our review of the trial court’s decision to grant the plaintiffs motion for summary judgment is plenary.” (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012).

On appeal, the plaintiff admits that the evidence before the trial court “was sufficient to justify a jury verdict in the defendant’s favor,” but he argues that the court erred in “relying on that evidence to the detriment of the contrary evidence offered by the plaintiff. Most particularly, it clearly is not the case that no reasonable jury could find from the plain language of the student handbook that the parties had no expectation that a student would be given three opportunities to pass the exam before being terminated. While it is possible that a jury could reach the same conclusion reached by the court on that issue, it manifestly is not the case that a jury would be required to do so. Indeed, the more reasonable interpretation of the handbook language, particularly since it was written by the defendant . . . is that the defendant did promise each student ‘three strikes’ before being terminated.” (Citation omitted; emphasis in original.) We are not persuaded.

In this case, the plaintiffs complaint is grounded on the allegation that he was dismissed from medical school by the defendant because he twice failed the exam, although the defendant had promised, either contractually or otherwise, to give him three opportunities to take the exam before dismissing him. With its motion for summary judgment, the defendant submitted a detailed affidavit from Angoff, explaining and documenting with exhibits that the plaintiff was dismissed from medical school because he failed to take the exam by June 30, 2004, and pass it, as he was required to do by the terms of his conditional readmission, and because he had demonstrated a pattern of poor academic performance. Specifically, the documents demonstrated that in June, 2003, the progress committee of the medical school unanimously decided to place the plaintiff on academic probation because of his continuing poor academic performance. In October, 2003, the progress committee again reviewed the plaintiffs progress and, taking into consideration the plaintiffs struggles with his academics and his failure to pass the exam on two occasions, voted to dismiss him from the medical school. After the plaintiff appealed from that decision, the medical school allowed him to return under specific conditions, the first of which was that he successfully complete the exam prior to June 30, 2004.

Portions of the plaintiff’s deposition in which he acknowledged that he was readmitted to medical school on a probationary basis conditioned on his successfully completing the exam prior to June 30, 2004, and admitted that he knew this but that he did not follow through by timely taking the exam, also were submitted in support of the defendant’s motion for summary judgment. The plaintiff additionally acknowledged that the medical school could dismiss a student for reasons other than his or her failure to pass the exam after three attempts. Nothing in the documents submitted in support of the plaintiffs opposition to the motion for summary judgment disputed the defendant’s evidence or created a genuine issue of material fact as to the reasons for the defendant’s dismissal of the plaintiff from medical school. He previously had been dismissed for poor academic performance and for twice failing to complete the exam successfully. After probational readmittance, conditioned, in part, on his successful completion of the exam prior to June 30, 2004, he, nevertheless, failed to take the exam prior to that date.

Our law regarding summary judgment is quite clear: “ [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . [and it] is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. . . . The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact.” (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004). Reviewing the record before us, including the court’s well reasoned and thorough memorandum of decision, we conclude that the court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    CHARLES D. GIANETTI v. DAVID E. GOMBOS ET AL.
    (AC 34099)
    Lavine, Bear and Pellegrino, Js.
    officially released April 23, 2013

      Charles D. Gianetti, pro se, the appellant (plaintiff).

      David E. Gombos, pro se, and Catherine W. Gombos, pro se, the appellees (defendants).
   Opinion

PER CURIAM.

After reviewing the record and considering the issue presented by the self-represented plaintiff, Charles D. Gianetti, a physician, in this appeal from the judgment of the trial court rendered in favor of the self-represented defendants, David E. Gombos and Catherine W. Gombos, we are not persuaded that the court committed reversible error.

The judgment is affirmed.

Argued January 15

       The plaintiff has presented us with a limited record; see, e.g., Practice Book § 61-10; Deutsche Bank National Trust Co. v. Bertrand, 140 Conn. App. 646, 654, 59 A.3d 864 (2013); and a brief that fails to identify, discuss or analyze any Connecticut statutes or case law relating to the type, meaning and effect of assignments, including but not limited to the relevant statutes or case law existing at the time of the specific assignment prepared by the plaintiff and executed by the defendants in this case. See, e.g., Carrillo v. Goldberg, 141 Conn. App. 299, 307 n.7, 61 A.3d 1164 (2013); In re Jason M., 140 Conn. App. 708, 711 n.2, 59 A.3d 902 (2013).

    Argued January 15