author: ALVORD, J. SCHALLER, J.,

text:
    AARON MANOR, INC. v. JANET A. IRVING
    (AC 30900)
    Lavine, Alvord and Schaller, Js.

      Argued October 22, 2010
    officially released February 22, 2011

      Edward M. Rosenthal, for the appellant (plaintiff).

      Gerald L. Garlick, with whom, on the brief, was Charles J. Irving, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Aaron Manor, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Janet A. Irving. The plaintiff claims that the court improperly (1) failed to find that the defendant breached her contract with the plaintiff and (2) awarded attorney’s fees to the defendant pursuant to General Statutes § 42-150bb. We agree with the plaintiffs second claim and reverse in part the judgment of the trial court.

The court’s memorandum of decision and the record reveal the following undisputed facts and procedural history. The plaintiff is a skilled nursing care facility that provides medical care, including long-term care, room and board, and prescription medication for its residents. William P. Ammon, the defendant’s father, was admitted to the plaintiffs facility on October 29, 2002. Upon his admission, the defendant signed a “Patient/Resident Admissions Agreement” (admission agreement) and various other documents as the “responsible party” for the patient. Section II, paragraph 10, of the admission agreement states that “[i]f the responsible party has control of or access to the patient/ resident’s income and/or assets, the responsible party agrees that these funds shall be used for the patient/ resident’s welfare, including but not limited to making prompt payment for care and services rendered to the patient/resident in accordance with the terms of this agreement.”

The defendant never had her father’s power of attorney, nor had she ever been appointed conservatrix of his person or estate, or executrix or administratrix of his estate after he died. When her father was admitted to the facility, the defendant informed the plaintiff that she would be the contact person for matters concerning her father’s personal care, and that her brother, William P. Ammon, Jr. (Ammon, Jr.), would be responsible for their father’s financial matters. The admitting record form lists Ammon, Jr., as the person responsible for the account, and the plaintiff mailed monthly bills directly to him. Ammon, Jr., held a power of attorney for their father and paid the father’s bills from the father’s bank account.

The defendant’s father was a resident at the plaintiffs nursing care facility from the date of his admission until his death on July 24, 2003. Initially, the charges for his residency were covered by medicare. His private health insurance then paid for his care until March 1, 2003, at which time the plaintiff was notified by the insurer that the coverage was being discontinued on the ground that he no longer required skilled care. From June 11, 2003, until the date of his death, the private health insurance again paid for the father’s residency. Thus, the period of time uncovered by either medicare or the private health insurance was March 1 through June 10, 2003, which resulted in a total unpaid balance of $27,340.

The father’s bank statements for the period of March 1 through June 30, 2003, indicated account balances fluctuating between $26,000 and $54,000. The father had additional assets, including shares of stock, certificates of deposit and a house in Bridgeport. Although the plaintiff sent monthly invoices to Ammon, Jr., the account for the father remained unpaid. Despite the outstanding bill, Ammon, Jr., wrote a check payable to the defendant for $11,000 from the father’s account as a gift in April, 2003. Similarly, he wrote a check to himself at the same time for $11,000 from the father’s account. After the father’s death, the house in Bridgeport was sold, and Ammon, Jr., gifted the defendant $55,000, and, similarly, gifted himself $55,000 from the proceeds of that sale.

The defendant never questioned the quality of care provided her father during his stay at the plaintiffs facility. In fact, she testified that the “caregivers are exceptional.” Notably, her mother was a resident at the plaintiffs facility at the time of trial, and the defendant herself had been a resident in the past. Nevertheless, neither the defendant nor Ammon, Jr., paid the outstanding bill from their father’s assets even though the assets were ample and more than sufficient to satisfy the amount due the plaintiff.

The plaintiff filed the present action against the defendant in March, 2006, claiming breach of contract and fraud. The defendant, represented by her husband, attorney Charles J. Irving, filed an answer with seven special defenses and a four count counterclaim. Pretrial discovery and pleadings were handled by attorney Irving. Shortly before trial, the firm of Krasow, Garlick and Hadley, LLC, filed an appearance in lieu of attorney Irving on behalf of the defendant. The case was tried before the court on April 8, 2008.

By memorandum of decision filed September 24, 2008, the court found that the defendant did not have a power of attorney for her father and did not have access to his checking account or to any of his other financial resources. Accordingly, the court rendered judgment in favor of the defendant on the complaint. The court found the issues in favor of the plaintiff on the counterclaim. Thereafter, the plaintiff filed a motion for reargument and reconsideration pursuant to Practice Book § 11-12, which the court granted but denied the relief requested.

By motion filed October 8, 2008, the defendant requested attorney’s fees pursuant to § 42-150bb and Practice Book § 11-21 for her successful defense against the complaint. The plaintiff filed an objection to the motion, claiming, inter alia, that the defendant’s attorney’s fees were spent primarily on the prosecution of the counterclaim and not in the defense of the plaintiffs claim. A hearing was held November 3, 2008, at which time the defendant requested $39,000 for pretrial and trial representation. Of that amount, $25,481.25 was requested by the defendant’s husband’s firm, Charles J. Irving, LLC, for pretrial representation. On November 25, 2008, Charles J. Irving, LLC, filed an appearance on behalf of the defendant in addition to the appearance already on file of Krasow, Gaxlick and Hadley, LLC. On February 27, 2009, the court issued its memorandum of decision on the request for attorney’s fees. In that decision, the court noted that “[t]he plaintiff argues that the attorney’s fees should not apply to the counterclaim upon which she did not prevail. The court agrees with this argument. Accordingly, the court awards to defendant Janet Irving attorney’s fees in the amount of $36,000 for successfully defending the complaint in this case.” No further explanation was provided for the court’s calculation of the amount awarded.

On September 22, 2009, attorney Irving filed an application for a prejudgment remedy in the amount of $75,000 to secure the attorney’s fees already awarded and to secure “substantial additional [attorney’s] fees for the defense of the plaintiffs appeal, which [attorney’s] fees are subject to a further award to the defendant pursuant to [§] 42-150bb.” The court granted the application in the amount of $50,000. Additional facts and procedural history will be set forth as necessary.

I

LIABILITY UNDER THE CONTRACT

The plaintiff claims that the court improperly failed to find the defendant liable under the admission agreement for those funds that she received as gifts and reimbursements from her father’s assets through Ammon, Jr., by means of the father’s power of attorney. The defendant argues that the court concluded correctly that the only person who had access to the patient’s funds was Ammon, Jr., and that the defendant was under no obligation to remit to the plaintiff any gifts or reimbursements that she received. We agree with the defendant.

The following additional facts were found by the court in a supplementary memorandum of decision filed June 1, 2009. The father had a joint checking account with his wife from which Ammon, Jr., paid their bills pursuant to his power of attorney. As previously noted, between March and June, 2003, the period during which the $27,340 balance accrued, Ammon, Jr., transferred various sums of money to himself and to the defendant. The funds transferred to the defendant from the checking account were either reimbursements for funds expended by the defendant on behalf of her father and/ or mother or monetary gifts from her father and/or mother. Specifically, one check to the defendant was the previously mentioned gift in the amount of $11,000. Various other checks reimbursed the defendant for purchases she made for her father for such items as shoes, sweaters and pants, bringing the total amount transferred to the defendant from the checking account to $13,630.89. The court concluded that, upon the defendant’s receipt of the funds, the funds became her property, and not the father’s, and therefore she was under no legal obligation to use these funds to pay the plaintiffs outstanding bill.

On appeal, the plaintiff does not challenge these findings. Rather, it challenges the conclusion that the defendant was under no legal obligation to use the $13,630.89 to pay the plaintiffs outstanding bill. It maintains that because she had “access” to her father’s funds, the defendant’s failure to remit the funds to the plaintiff constituted a breach of the admission agreement. To resolve this question, we must examine the language of the admission agreement that the plaintiff relies on to support its claim.

“We begin by setting forth our standard of review. The standard of review for the issue of contract interpretation is well established. When, as here, there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Accordingly, our review is plenary. . . . The reviewing court must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Genua v. Logan, 118 Conn. App. 270, 273-74, 982 A.2d 1125 (2009).

“Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Citation omitted; internal quotation marks omitted.) Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn. App. 462, 471-72, 823 A.2d 438 (2003).

It is undisputed that the defendant was the “responsible party,” as that term is used in the admission agreement. She signed many documents on her father’s behalf, including documents relating to organ donation, the administration of oxygen and an influenza vaccine, and regarding her father’s participation in facility activities and social events. The admission agreement provides that “[i]f the responsible party has control of or access to the patient/resident’s income and/or assets, the responsible party agrees that these funds shall be used for the patient/resident’s welfare, including but not limited to making prompt payment for care and services rendered to the patient/resident in accordance with the terms of this agreement.” (Emphasis added.) The contract, as drafted by the plaintiff, employs the word “if.” The contract does not require that the person serving as the “responsible party” also be the person in control of the patient’s income or assets. The plain language of the contract contemplates a scenario in which one party may be responsible for making decisions for the patient’s personal care while another may be responsible for “making prompt payment for care and services rendered to the patient.”

The evidence on which the plaintiff relies for the proposition that the defendant had “access” to the patient’s assets is that she received $13,630.89 in gifts and reimbursements from him during the relevant period. We agree with the court’s conclusion that when the defendant received a gift from her father through the power of attorney, title vested in her immediately. As a result, that sum could not be considered accessible funds for the purpose of holding the defendant liable for her father’s debt under the admission agreement. Similarly, we do not agree that, when the defendant expended her own funds for the benefit of her father and received reimbursements from her father through Ammon, Jr., the reimbursed sums were accessible funds such that the defendant is liable for breach of contract. The evidence indicates that the plaintiff mailed monthly bills for its services to Ammon, Jr., as the person responsible for the account, and not to the defendant. Ample evidence was presented to support the court’s finding that Ammon, Jr., and not the defendant, had their father’s power of attorney and had access to their father’s checking account and other financial resources.

The plaintiffs reliance on Sunrise Healthcare Corp. v. Azarigian, 76 Conn. App. 800, 821 A.2d 835 (2003), is misplaced. Unlike the defendant in the present case, the defendant in Sunrise Healthcare Corp. had executed a contract with a nursing care facility both as the “responsible party” under the contract and as the patient’s power of attorney. Id., 802. As such, she had “ ‘control of or access to the resident’s income and/or assets’ id., 808; and breached the contract with the facility by misusing the patient’s assets. Id., 813. We agree with the court that the defendant in the present case had no such control or access. Accordingly, we conclude that the defendant is not obligated under the admission agreement to remit to the plaintiff any sums that she received from her father as gifts or reimbursements.

II

ATTORNEY’S FEES

Section 42-150bb provides that a consumer may recover attorney’s fees against a commercial party when the consumer successfully defends an action based on a contract “in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes” if the contract provides for attorney’s fees for the commercial party. The plaintiff challenges whether § 42-150bb applies to this contract, whether the defendant was a consumer entitled to recover attorney’s fees pursuant to the statute and, if this court concludes that the statute does apply, whether the attorney’s fees awarded were reasonable. We conclude that the statute does not apply because the defendant is not a consumer and, therefore, that the court improperly awarded the attorney’s fees.

We set forth our standard of review and the relevant principles of law. “The general rule of law known as the American rule is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs ... or a statute may confer such rights.” (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007). “The law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by way of statute. . . . Section 42-150bb clearly authorizes an award of attorney’s fees to the consumer who successfully prosecutes or defends an action or a counterclaim on a consumer contract or lease.” (Citations omitted; internal quotation marks omitted.) Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 429, 922 A.2d 1056 (2007).

Whether the defendant is a “consumer” pursuant to the statute presents a question of statutory construction. Statutory construction is “a [question] of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine [the] meaning [of a statute], General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks omitted.) Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).

Section 42-150bb provides in relevant part: “Whenever any contract or lease ... to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. . . .” As noted by our Supreme Court in Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 75, 689 A.2d 1097 (1997), the purpose of § 42-150bb is to make attorney’s fees clauses “ ‘reciprocal’ ” in order to bring parity between a commercial party and a consumer. The legislature was concerned with remedying an inequitable situation: “What [the statute] does is give some equity to the situation. At the present time, many form contracts include attorney’s fees provisions for the commercial party, and even though . . . that [commercial] party may be wrong and a consumer successfully defends an action against him, or her, [the consumer] would not be entitled to receive attorney’s fees in defending that action.” (Internal quotation marks omitted.) Id., 75-76.

“Under § 42-150bb, the court has no latitude to deny [attorney’s fees] to a consumer who successfully defends an action brought against him by a commercial party.” (Emphasis added.) Id., 66. Such attorney’s fees are available, rather, by operation of law. Id. Section 42-150bb provides in relevant part that “[f]or the purposes of this section . . . ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. . . .” The defendant concedes, and we agree, that she is not a buyer, debtor or lessee as those terms are used in the statute. We agree with both parties that if anyone was a buyer pursuant to the statute, it was the father because it was he who received the plaintiffs services and it was from his assets that outstanding bills were to be paid.

The defendant maintains, however, that she was the buyer’s “personal representative” and is thus a “consumer” for the purposes of the statute. The term “personal representative” is not defined in § 42-150bb but is used throughout our statutes to refer to a person who acts as a custodian or guardian of a person who lacks capacity or one with authority to act on behalf of a decedent. As our Supreme Court has explained, “[w]hen a statute does not provide a definition, words and phrases in a particular statute are to be construed according to their common usage. ... To ascertain that usage, we look to the dictionary definition of the term.” (Internal quotation marks omitted.) Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 633, 6 A.3d 60 (2010). Webster’s Third New International Dictionary (1993) defines a “personal representative” as “a person (as an executor or administrator for a deceased person, heir or next of kin for an ancestor, a devisee or legatee for a testator, a receiver for an absent or insolvent person or guardian or conservator or committee for an incompetent) who stands in the place of another or who represents his legal interests.” See also Black’s Law Dictionary (9th Ed. 2009) (“personal representative. ... A person who manages the legal affairs of another because of incapacity or death, such as the executor of an estate.”).

In the present case, no conservator ever was appointed for the defendant’s father. The defendant did not have his power of attorney, was not appointed his conservatrix and was not the executrix or administra-trix of his estate after he died. She simply does not fall within that term as it has been used in our statutory scheme or fall within the definition of personal representative as defined in Webster’s Third New International Dictionary or Black’s Law Dictionary. She signed the admission agreement as the responsible party and obligated herself to pay the plaintiff for her father’s care from her father’s assets if she had control over his assets. The defendant consistently took the position, and the trial court agreed, that she had no authority over the disposition of her father’s assets. The terms responsible party and personal representative are not synonymous. We decline to expand the definition of personal representative to include the defendant, and, especially under these circumstances, it would not be legally sound to do so.

Furthermore, as we previously noted, Connecticut adheres to the American rule. ACMAT Corp. v. Greater New York Mutual Ins. Co., supra, 282 Conn. 582. Section 42-150bb, enacted in 1979, provides for the recovery of attorney’s fees by a consumer who successfully prosecutes or defends an action or a counterclaim based on a consumer contract. “[W]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.” (Internal quotation marks omitted.) Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988). Accordingly, § 42-150bb should be strictly construed.

We are particularly reluctant to expand the definition of personal representative to include responsible party because the award of statutory fees under § 42-150bb is mandatory. “[T]he court has no latitude to deny such an award to a consumer who successfully defends an action brought against him by a commercial party.” Rizzo Pool Co. v. Del Grosso, supra, 240 Conn. 66. The court has no discretion; it is obligated to award reasonable attorney’s fees by operation of law. Id. To expand the definition of personal representative in the way proposed by the defendant and the dissent represents a policy decision more properly left to the legislature, not this court.

Because the defendant is not a buyer, debtor, lessee or personal representative, her claim that she is a consumer under § 42-150bb must fail. Accordingly, she was not entitled to attorney’s fees under that statutory provision, and the court improperly awarded those fees to her.

The judgment is reversed only as to the award of attorney’s fees and the case is remanded with direction to vacate that award. The judgment is affirmed in all other respects.

In this opinion LAVINE, J., concurred.

SCHALLER, J.,

concurring in part and dissenting in part. Although I agree with part I of the majority opinion, I respectfully disagree with part II. The plaintiff, Aaron Manor, Inc., claimed in its breach of contract action that the defendant, Janet A. Irving, was the party responsible for payments for the care of its patient, her late father, William Ammon. The defendant successfully defended the action. In my view, the defendant was a “consumer” entitled to recover attorney’s fees from the plaintiff under General Statutes § 42-150bb. Accordingly, I dissent from part II in which the majority concludes that the defendant was not entitled to recover such fees.

The plaintiff, a nursing facility that provides medical care and services, incurred expenses providing such services to Ammon. The record indicates that on the day he was admitted to the facility, “confusion” prevented him from signing the forms necessary for admission. In order to gain him admission to the facility, his daughter, the defendant, signed a number of documents, including the admission agreement, as the “responsible party.” As found by the trial court, the defendant informed the plaintiff that she would be the contact person for matters concerning the patient’s personal care, and that her brother, William P. Ammon, Jr. (Ammon, Jr.), would be responsible for the patient’s financial matters. The admitting record form lists Ammon, Jr., as the person responsible for the account. Ammon, Jr., held a power of attorney for his father and managed his financial affairs, including paying his bills from his bank account. The plaintiff mailed monthly bills for the services provided to the patient directly to Ammon, Jr.

The plaintiff provided care and services for which it was not paid by either medicare or the patient’s insurance carrier. The plaintiff, a commercial party, commenced the present action against the defendant, alleging in its complaint that she had agreed, by signing the admission agreement, to apply her father’s income and assets to pay for such care and services if she had control of or access to her father’s income or assets. The plaintiff alleged that she had such control or access but had failed to pay the outstanding balance for the services. It alleged further that, because of the defendant’s breach of the admission agreement, it was entitled to interest and reasonable attorney’s fees as provided in the agreement.

The defendant successfully defended this breach of contract action based on the plaintiffs failure to prove that she had the requisite control of or access to her father’s income or assets. The defendant requested the court to award her attorney’s fees pursuant to § 42-150bb and Practice Book § 11-21, which the court granted in the amount of $36,000.

Section 42-150bb provides that a “consumer” may recover attorney’s fees against a commercial party when the consumer successfully defends an action based upon a contract “in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes” if the contract provides for attorney’s fees for the commercial party. General Statutes § 42-150bb. Section 42-150bb provides in relevant part that “[f]or the purposes of this section . . . ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. ...” As noted by the majority, the issue in the present appeal is whether the defendant was the “personal representative” of her father, and therefore, a “consumer” entitled to avail herself of the statute.

Whether the defendant is a “consumer” pursuant to the statute presents an issue of statutory construction, which is “a [question] of law, over which [this court exercises] plenary review.” (Internal quotation marks omitted.) Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).

As the majority points out, the statute is in derogation of the common law American rule that attorney’s fees and ordinary expenses and burdens of litigation are not awarded to the successful party absent a contractual or statutory exception. ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007). While there axe few exceptions to this rule, it does not necessarily follow that the statute must be construed narrowly, as the majority determines. “The law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by way of statute. . . . Section 42-150bb clearly authorizes an award of attorney’s fees to the consumer who successfully prosecutes or defends an action or a counterclaim on a consumer contract or lease.” (Citations omitted; emphasis added; internal quotation marks omitted.) Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 429, 922 A.2d 1056 (2007).

The purpose of § 42-150bb is to make attorney’s fees clauses reciprocal in order to bring parity between a commercial party and a consumer. Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 75, 689 A.2d 1097 (1997). In Rizzo Pool Co., our Supreme Court examined the legislative history of the statute, noting that “[i]n 1979, the Connecticut legislature enacted No. 79-453 of the 1979 Public Acts, entitled ‘An Act Concerning Attorney’s Fee Clauses in Consumer Contracts.’ ” Id., 74. The legislative emphasis on reciprocity, equity, fairness and consumer protection is evident throughout the debate on the bill. For example, speaking on behalf of the bill, Senator Alfred Santaniello, Jr., remarked: “This bill makes attorney’s fee clauses reciprocal.” (Internal quotation marks omitted.) Id., 75. Representative Richard D. Tulisano commented: “What [the statute] does is give some equity to the situation.” (Emphasis added; internal quotation marks omitted.) Id. In response to a remark in opposition to the bill, in which the opponent argued that the bill took away the parties’ freedom of contract, Senator Salvatore C. DePiano stated: “I think that most of the time these consumer contracts are drawn up by the creditor and under the circumstances many of the consumers are not aware of [the attorney’s fees] provision in the [contract], and therefore, I think [the consumers] should be protected because ... if a creditor brings a lawsuit . . . had he been successful, he would have collected attorney’s fees. I think it’s only fair that we legislate that the consumer can get the same protection and therefore be entitled [to] attorney’s fees [should the consumer prevail]. I think it’s a good consumer bill and I urge its passage . . . .” 22 S. Proc., Pt. 13, 1979 Sess., pp. 4276-77.

I conclude that, as a consumer protection statute, § 42-150bb has a remedial purpose that should be interpreted broadly in favor of those persons whom the legislature intended to protect. See, e.g., Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 678, 657 A.2d 1087 (1995) (noting that “[a]s remedial legislation [the Home Improvement Act, General Statutes § 20-418 et seq.] must be afforded a liberal construction in favor of those whom the legislature intended to benefit”); Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 14, 680 A.2d 964 (1996) (noting that “the Lemon Law [General Statutes §§ 42-179 through 42-186] is a remedial statute that ought to be read broadly in favor of those consumers whom the law is designed to protect”).

In the present case, the issue is whether the defendant is a “personal representative” of the buyer. As noted by the majority, the term “personal representative” is not defined in § 42-150bb but is commonly used in various statutes to refer to a person who acts as a custodian or guardian of a person who lacks capacity or one with authority to act on behalf of a decedent. In this instance, however, unlike such statutes as the Uniform Transfer on Death Security Registration Act and the Connecticut Uniform Transfers to Minors Act, the legislature chose not to define the term in a way that limited its application to legal representatives. Evidence of the defendant’s authority to make decisions of a personal and medical nature on the patient’s behalf was presented to the court by the plaintiff, itself. Before her father could be admitted to the facility, the defendant was required to sign various forms on his behalf as the representative of her father with respect to certain matters affecting her father’s well-being and other interests. For example, she was required to sign a document concerning which “heroic measures” could be administered to him, in which she declined cardiopulmonary resuscitation. She was required to sign other documents regarding his medical care and treatment, including an organ and tissue donation form, an admission screening form for medicare as a secondary insurance, an assignment of medicare benefits form and a form consenting to such rehabilitation therapy as may be ordered by his physician. On that same day, she was required to sign various other documents required by the plaintiff, including the admission agreement, a document regarding the resident’s responsibilities, his consent to be photographed, his consent to room changes, notifications concerning the privacy act and the patient’s bill of rights and other documents. On a date shortly thereafter, as the responsible party and at the plaintiffs request, she authorized the facility to administer an influenza vaccine to her father.

The plaintiff commenced this action against this defendant precisely because she was the party who signed the forms that it required in order for her father to receive care. The plaintiff relied on the defendant’s position and authority as the “responsible party” under the agreement that it had required when it initiated the lawsuit against her. It alleged that, by virtue of her authority as the “responsible party,” she was hable for her father’s outstanding bill, at least insofar as she had control of or access to his income or assets per the admission agreement. The plaintiff failed to prove that the defendant had the requisite control of or access to the patient’s assets. As a result, she prevailed in the breach of contract action.

The purpose of § 42-150bb is to bring parity between a commercial party and a consumer who defends successfully an action on a contract prepared by the commercial party. The plaintiff bears full responsibility for placing the defendant in the position of having to defend a breach of contract action by alleging that, as the “responsible party,” she was responsible for paying certain outstanding bills by virtue of her authority to act on behalf of the patient. It cannot now maintain that, because it failed to prove that she had access to or control of the patient’s financial assets, she had no authority to act on behalf of the patient and is not entitled to recover the fees she incurred defending that action. Under the facts and circumstances of this case, I would conclude that the defendant was the “personal representative” of the patient buyer for the purposes of the statute and, accordingly, is a “consumer” under § 42-150bb. Because the defendant is a consumer who defended the action successfully, pursuant to terms of the statute, she would be entitled by operation of law to reasonable attorney’s fees as provided in the contract. Accordingly, I dissent from part II of the majority opinion.

Because the majority concluded that the defendant was not entitled to attorney’s fees, it did not reach the question of whether the fees awarded were reasonable. Because I conclude that the defendant was entitled to reasonable attorney’s fees by operation of law as provided in the contract, I will address the plaintiffs argument.

The trial court’s memorandum of decision did not go into detail on the issue of the reasonableness of the fee awarded. The court found that the defendant was entitled to “reasonable” attorney’s fees pursuant to § 42-150bb and the contract for defending the complaint but not for prosecuting the counterclaim on which she did not prevail. Although the defendant requested $39,000 in fees, the court awarded $36,000 without making any other findings pertaining to the reasonableness of the fees.

The plaintiff objects primarily to the portion of the attorney’s fees awarded that were incurred by the defendant’s husband, which was the basis for approximately $25,500 of the amount claimed. The itemized bill from the defendant’s husband was admitted as a full exhibit at trial, but the plaintiff did not challenge the bill at that time. At oral argument on the motion for counsel fees, the court asked the plaintiff whether it challenged the amount of counsel fees or the reasonableness of the counsel fees claimed, and the court heard the plaintiffs argument. In light of this record, I find the plaintiffs claim that it had no opportunity to challenge the reasonableness of the fees to be unavailing. The plaintiff had at least two such opportunities.

Moreover, the plaintiff failed to seek an articulation from the court as to how it arrived at the $36,000 award. Making every reasonable presumption in favor of upholding the trial court’s ruling, the evidence before the court included the itemized bills from which it reasonably could have determined that $3000 was an appropriate deduction for the prosecution of the counterclaim. See Appliances, Inc. v. Yost, 186 Conn. 673, 681 n.5, 443 A.2d 486 (1982) (itemized list of services, court file and court’s own general knowledge could provide evidentiary basis for court to decide amount of reasonable attorney’s fees). Although the amount of the award is troubling, I find no basis on which to reverse the court’s decision.

       In reviewing attorney Irving’s billing summary, we note that the first three entries are for legal services performed in July and September, 2005, which was prior to the service of process of the complaint, which occurred many months later on March 13, 2006. At the time of trial, the defendant testified that she had not yet paid her husband his fees.

       A gift is the transfer of property without consideration. The two requisites of a valid gift are a delivery of the possession of the property to the donee and an intent that the title thereto shall pass immediately to him. Guinan’s Appeal from Probate, 70 Conn. 342, 347, 39 A. 482 (1898).

       General Statutes § 42-150bb provides: “Whenever any contract or lease entered into on or alter October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney’s fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney’s fee under this section and in which the commercial party is represented by its salaried employee, the attorney’s fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the purposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.”

       This issue was not raised by the plaintiff in the trial court. After oral argument, this court requested and received briefs from both parties on the question of whether the defendant was a consumer under the statute.

       The legislative history of § 42-150bb provides no guidance in this regard. See Public Acts 1979, No. 79-453.

       See, e.g., General Statutes § § 3-94q (pertaining to personal representative of deceased notary), 20-122 (pertaining to personal representative of deceased dentist), 33-182g (pert aining to personal representative of deceased or legally incompetent shareholder).

       There also was testimony at trial that the defendant was not a co-owner of her father’s checking or savings accounts.

       A consumer is “[a] person who buys goods or services for personal, family, or household use . . . .” (Emphasis added.) Black’s Law Dictionary, supra. In this case, the defendant had no access to her father’s funds and was not in a position to purchase anything for him.

       Because the resolution of this issue is dispositive of the plaintiffs appeal with respect to the award of attorney’s fees, we do not reach its claim that the amount awarded by the trial court was unreasonable.

       General Statutes § 42-150bb provides: “Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney’s fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney’s fee under this section and in which the commercial party is represented by its salaried employee, the attorney’s fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the puiposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household puiposes.”

       See Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 432, 922 A.2d 1056 (2007) (“the proper procedural vehicle for requesting an award of attorney’s fees pursuant to § 42-150bb is a motion for attorney’s fees pursuant to [Practice Book] § 11-21”).

       I note that the plaintiff also argues that the statute is inapplicable because the admission agreement to the nursing care facility is not a contract “ ‘in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes’ ” pursuant to the statute. The agreement states in part II, paragraph 1, that the plaintiff “agrees to provide room, board and general nursing care to the [patient] for a basic per diem charge.” In its complaint, the plaintiff alleges that it agreed to “render care and services to the [patient] and the [defendant, as the [responsible] [p]arty, agreed to apply the [patient’s] income and assets to pay for such care and services if the [djefendant had control of or access to the [patient’s] income or assets.” It alleges further that, pursuant to the agreement, it “rendered care and services to the [patient]” — which it defines as “including but not limited to, long term care, medical care, skilled nursing care, rehabilitation, therapy, room and board, and prescription medication . . . .” Surely, such services are of a “personal” nature.
      I am not persuaded by the plaintiffs argument that the contract was not for “personal, family or household purposes” under § 42-150bb because the patient, not the defendant, received the services rendered. The services described in the contract itself, and thus the “service [s] which [are] the subject of the transaction” pursuant to the statute, are of a personal nature, regardless of whom the plaintiff designates as a defendant. Accordingly, I agree with the court’s conclusion that the contract at issue is the type of contract for which attorney’s fees may be recovered under § 42-150bb.

       The issue in Rizzo Pool Co. v. Del Grosso, supra, 240 Conn. 73, was whether the term in § 42-150bb limiting a consumer’s award of attorney’s fees to “ ‘the terms governing the size of the fee for the commercial party’ ” incorporated General Statutes § 42-150aa by reference, thereby limiting attorney’s fees awarded to the holder of a contract to 15 percent of the amount of the judgment. Our Supreme Court answered that question in the negative. Id., 74.

       See General Statutes § 45a-468a (5): “ ‘Personal representative’ includes executor, administrator, successor personal representative, special administrator and persons who perform substantially the same function under the law governing their status.”

       See General Statutes § 45a-557a (12): “ ‘Personal representative’ means an executor, administrator, successor personal representative or temporary administrator of a decedent’s estate or person legally authorized to perform substantially the same functions.”

       Compare with statutes that do not define the term, including General Statutes §§ 3-94q (pertaining to personal representative of deceased notary), 20-122 (pertaining to personal representative of deceased dentist), 33-182g (pertaining to personal representative of deceased or legally incompetent shareholder).

       I would note that many of the documents that the defendant was required to sign pertain to matters commonly incorporated in a designation of attorney-in-fact or health care surrogate.

       Although the defendant did not have control of or access to her father’s assets, she was not relieved of her other obligations under the admission agreement. For example, pursuant to that agreement, the defendant, as the responsible party, was bound to “apply promptly for, or assist the facility as necessary in establishing eligibility or otherwise applying for any applicable [mjedicare or other insurance benefits” and to “provide all information that may be requested” in connection with any application for medicaid assistance. The plaintiff did not allege that the defendant breached the contract in any respect, other than failing to pay the bill.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    ANTHONY SINCHAK v. COMMISSIONER OF CORRECTION
    (AC 29068)
    Bishop, Robinson and Hennessy, Js.

      Argued October 13, 2010
    officially released February 22, 2011

      J. Patten Brown III, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Eva B. Lenczewski, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Anthony Sinchak, appeals following the denial of his petition for certification to appeal from the judgments of the habeas court denying his consolidated petitions for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal from the judgments rejecting his claim that his trial counsel rendered ineffective assistance and (2) failed to conduct a sufficient inquiiy into his allegation that a conflict of interest existed between him and his habeas counsel. We dismiss the appeal.

The following facts and procedural history are relevant to the resolution of the petitioner’s appeal. The jury found the petitioner guilty of one count of murder in violation of General Statutes § 53a-54a and twro counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). Thereafter, the trial court sentenced the petitioner to a total effective term of ninety-six years incarceration. His conviction was upheld on direct appeal. See State v. Sinchak, 47 Conn. App. 134, 703 A.2d 790 (1997), appeal dismissed, 247 Conn. 440, 721 A.2d 1193 (1999).

On July 26, 2000, and July 3, 2001, the petitioner filed two separate pro se petitions for a writ of habeas corpus, which the habeas court consolidated for trial. By way of his consolidated habeas petitions, the petitioner alleged that he had been deprived of the right to the effective assistance of trial counsel because counsel (1) failed to file amotion to discover certain exculpatory statements prior to the hearing in probable cause, (2) failed to conduct an adequate pretrial investigation, (3) failed to hire a forensics expert, (4) failed to move for a mistrial or dismissal, (5) failed to confront certain witnesses with conflicting testimony, (6) failed to file timely a motion for a new trial, (7) failed to speak on his behalf at sentencing and (8) was intoxicated dining portions of the trial.

On June 29,2007, the habeas court issued a memorandum of decision denying the consolidated habeas petitions. The court concluded that the “petitioner . . . [had] neither affirmatively showm deficient performance nor the prejudice arising therefrom. Even assuming deficient performance by [trial counsel], which [the] petitioner has not shown, [the] petitioner has presented no evidence that such deficient performance resulted in prejudice.” The petitioner then sought certification to appeal, which the court denied. This appeal followed. Additional relevant facts and procedural history will be set forth as necessary.

We begin by setting forth the standard of review and the general legal principles applicable to the petitioner’s appeal. “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 enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and 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.” (Internal quotation marks omitted.) Synakorn v. Commissioner of Correction, 124 Conn. App. 768, 771, 6 A.3d 819 (2010).

I

The petitioner’s first claim on appeal is that the habeas court abused its discretion in denying his petition for certification to appeal from the judgments denying his consolidated petitions for a writ of habeas corpus. We are not persuaded.

The following additional relevant facts and procedural history are set forth in our decision on the petitioner’s direct appeal. “The charges [in the underlying criminal case] stem from an incident that occurred on July 27,1992, at the Freight Street Social Club, an illegal after-hours social club. At the time, Kathleen Gianni worked as a bartender at the social club, which was jointly owned by her close friend, Jo Orlandi, and by Dennis O’Connor. Dennis O’Connor was the president of the Helter Skelter Motorcycle Club, of which the [petitioner] was also a member. Dennis O’Connor’s brother, Terrence O’Connor, also a motorcycle club member, worked as a doorman at the social club.

“On July 26, 1992, the motorcycle club held a barbecue fund-raiser to raise bail money for some incarcerated bikers. Both Orlandi and the [petitioner] attended the barbecue. The [petitioner] was accompanied by his girlfriend, Laura Ryan. At approximately 1 a.m. on July 27,1992, Orlandi, Gianni and another friend opened the social club for business. A number of people visited the club that morning, including the [petitioner], Ryan, Terrence O’Connor and several other motorcycle club members. Also at the club that morning were Michael Lambo and James Palomba.

“The [petitioner] and Ryan remained in the back office when Orlandi began to lock the front doors of the club. The [petitioner] walked out from the back office and fired a shot at Gianni, who was standing behind the far end of the bar. The [petitioner] threatened Orlandi and Ryan with the gun, stating that he could not allow any witnesses to the shooting and then fired several more shots at Gianni who lay on the floor behind the bar moaning and gasping. After the [petitioner] fired the final, fatal shot, he grabbed Orlandi and Ryan, placed the gun to their heads and announced that the three of them were going to leave the club and stay together until the whole incident was straightened out.

“The three then went from the club to the Torrington residence of Lisa Fruin, the mother of the [petitioner’s] infant son. Once at Fruin’s residence, the [petitioner] disassembled the gun and ordered Fruin to dispose of the gun parts in a nearby dumpster. The [petitioner] disposed of the clothes that he had been wearing when he shot Gianni. The [petitioner] forced Ryan and Orlandi to remain with him and tied a bell to Orlandi’s ankle while she slept so that he could hear if she attempted to escape.

“Around noon the next day, the [petitioner] allowed Orlandi to leave, but ordered Ryan to stay with her for at least twenty-four hours. Orlandi returned home with Ryan and they remained there until approximately 4 p.m. the next day. At that time, Ryan left Orlandi’s home . . . .” State v. Sinchak, supra, 47 Conn. App. 136-37.

In the days following the shooting, the Waterbury police interviewed and took written statements from Orlandi, Ryan, Lambo and Palomba. On August 3,1992, the police filed a warrant application and an affidavit, which contained a summary of these statements. The petitioner’s trial counsel, attorney Michael Graham, received a copy of these materials on September 15, 1992, eight days before the hearing in probable cause. The state, however, did not disclose the written statements to Graham at that time.

“After the state had rested and during the [petitioner’s] case, the state revealed to the [petitioner] that the Waterbury police had taken written statements from Lambo and Palomba. The court ordered the immediate disclosure of the statements. The [petitioner] claimed that the statements contained exculpatory evidence because, taken together, the statements contradicted the testimony of the state’s eyewitnesses by implicating Terrence O’Connor as the shooter. After reviewing the materials, the court held that the statements, taken together, contained exculpatory evidence and should have been disclosed to the [petitioner].” Id., 140.

We begin by setting forth the relevant principles of law. “We have noted that [t]he sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel.” (Internal quotation marks omitted.) Abrams v. Commissioner of Correction, 119 Conn. App. 414, 418, 987 A.2d 371, cert. denied, 295 Conn. 920, 991 A.2d 564 (2010). “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both 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. . . . The claim will succeed only if both prongs are satisfied. ... It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Emphasis in original; internal quotation marks omitted.) Synakorn v. Commissioner of Correction, supra, 124 Conn. App. 772.

The petitioner first claims that Graham’s failure to file a motion to discover the full text of the exculpatory statements of Lambo and Palomba deprived the petitioner of the right to the effective assistance of counsel during the hearing in probable cause. The habeas court found that while Graham had not received the full text of the exculpatory statements prior to the hearing in probable cause, he had received a summary of the exculpatory evidence contained therein by way of the affidavit offered in support of the August 3, 1992 warrant application. The court determined, therefore, that the petitioner had failed to prove that Graham rendered ineffective assistance by failing to file a motion to discover the exculpatory statements prior to the hearing in probable cause. Even if we assume, arguendo, that Graham’s failure to file a motion to discover the full text of the exculpatory statements prior to the hearing in probable cause fails to satisfy the performance prong of Strickland, the petitioner failed to prove that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. We conclude, therefore, that the petitioner failed to show prejudice and agree with the court that this claim must fail.

The petitioner next claims that Graham rendered ineffective assistance by failing to conduct an adequate pretrial investigation. Specifically, the petitioner claims that Graham failed to speak to potential witnesses and pursue leads contained within the full text of the exculpatory statements of Lambo and Palomba. The petitioner testified, however, that Graham hired several investigators, that he provided at least one of those investigators with the names of potential witnesses and information regarding potential leads, and that the investigators attempted to interview several of the potential witnesses. Even if we were to assume, without deciding, that Graham’s failure to interview potential witnesses and pursue leads fails to satisfy the performance prong of Strickland, the petitioner failed to present any evidence showing what information the potential witnesses would have provided and what evidence additional investigation would have yielded. It is well established that “[m]ere conjecture and speculation are not enough to support a showing of prejudice.” (Internal quotation marks omitted.) Toles v. Commissioner of Correction, 113 Conn. App. 717, 724, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009). Because the petitioner failed to prove what information the potential witnesses would have provided or what evidence further investigation would have revealed, we agree with the corut that the petitioner failed to show prejudice and that his claim must fail.

The petitioner next claims that Graham rendered ineffective assistance by failing to hire a forensics expert. Our review of the record reveals that the sole evidence on point, the petitioner’s testimony, contradicts the petitioner’s claim. At the habeas trial, the petitioner testified that Graham had informed him that he had hired a forensics expert and that that expert had reviewed the available evidence. The court found, on the basis of the foregoing evidence, that the petitioner had failed to prove that Graham failed to hire a forensics expert. The petitioner also failed to present any evidence in order to demonstrate what information additional investigation by a forensics expert would have revealed. Thus, even if we were to assume, without deciding, that Graham’s failure to hire a forensics expert fails to satisfy the performance prong of Strickland, the petitioner failed to introduce any evidence to show that he suffered prejudice as a result of that deficient performance. See Coney v. Commissioner of Correction, 117 Conn. App. 860, 865-66, 982 A.2d 220 (2009), cert. denied, 294 Conn. 924, 985 A.2d 1061 (2010). Because we conclude that the petitioner failed to show deficient performance on Graham’s part or prejudice resulting therefrom, we agree with the court that the petitioner’s claim must fail.

The petitioner next claims that Graham rendered ineffective assistance by failing to file a motion for a mistrial and a motion to dismiss due to the state’s untimely disclosure of the complete written statements of Lambo and Palomba. “While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62,68,967 A.2d 41 (2009). In order to show prejudice, the petitioner must prove that if Graham had filed a motion for a mistrial or a motion to dismiss, there would have been a reasonable probability that the motions would have been granted. See Correa v. Commissioner of Correction, 101 Conn. App. 554, 556, 922 A.2d 289, cert. denied, 283 Conn. 911, 928 A.2d 536 (2007). In the present case, the habeas court found that a mistrial would not have been granted because a less extreme remedy existed, namely, granting the petitioner a continuance in order to allow him to interview Lambo and Palomba. The court concluded, therefore, that the petitioner had failed to prove that Graham’s performance was deficient or that he was prejudiced by Graham’s alleged failures. After carefully reviewing the record and briefs, we agree with the court’s decision that the petitioner was not deprived of the effective assistance of trial counsel due to Graham’s failure to move for a mistrial or dismissal.

The petitioner next claims that Graham rendered ineffective assistance by failing to recall Orlandi and Ryan in order to confront them with conflicting testimony offered by Lambo and Palomba. The habeas court found that Graham’s decision not to recall Orlandi and Ryan to the witness stand was a matter of trial strategy. It is well established that “[a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.” (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 120 Conn. App. 412, 417, 991 A.2d 705, cert. denied, 297 Conn. 915, 996 A.2d 279 (2010). As the court noted, Orlandi and Ryan were not mere witnesses, they were victims. By recalling Orlandi and Ryan to the witness stand, Graham might well have engendered greater sympathy for them and greater antipathy for the petitioner. Because we conclude, therefore, that the petitioner failed to show deficient performance on Graham’s part or prejudice resulting therefrom, we agree with the court that the petitioner’s claim must fail.

The petitioner next claims that Graham rendered ineffective assistance by failing to file timely a motion for a new trial. The habeas court found that, at the close of the petitioner’s criminal trial, the trial court instructed Graham to submit posttrial motions by May 12, 1995. On July 20,1995, Graham filed a motion for a new trial, which the court dismissed as untimely. In dismissing the petitioner’s motion, the trial court noted that the claims set forth in the motion were not, in any event, proper grounds for a new trial. The habeas court found, therefore, that the petitioner had failed to prove prejudice under the Strickland standard. “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.” (Internal quotation marks omitted.) Synakorn v. Commissioner of Correction, supra, 124 Conn. App. 772. Thus, in this case, the petitioner must prove that if Graham had timely filed the motion for a new trial, there would have been a reasonable probability that the motion would have been granted. See Correa v. Commissioner of Correction, supra, 101 Conn. App. 556. Because we conclude that the petitioner failed to prove that Graham’s performance in untimely filing the motion for a new trial caused him to suffer any prejudice, we agree with the court that the petitioner’s claim must fail.

The petitioner next claims that Graham rendered ineffective assistance because he failed to speak on the petitioner’s behalf during sentencing. Because the petitioner failed to prove what additional facts, arguments or evidence Graham could have introduced that would have altered the terms of his sentence, we agree with the court that the petitioner failed to satisfy the prejudice prong of the Strickland standard. See Corona v. Commissioner of Correction, 123 Conn. App. 347, 353-54, 1 A.3d 1226, cert. denied, 299 Conn. 901, 10 A.3d 519 (2010).

The petitioner next claims that Graham rendered ineffective assistance because he was intoxicated during portions of the criminal trial. Aside from the petitioner’s testimony, however, the petitioner failed to adduce any evidence in support of his claim. The habeas court found that Graham was lucid throughout the criminal trial and that his arguments were always logical and appropriate. Because the petitioner failed to prove that Graham was intoxicated during the criminal trial, we agree with the court that this ineffective assistance of counsel claim must fail.

Therefore, upon our examination of the record and the court’s resolution of the issues presented in the consolidated habeas petitions, we are not persuaded that the court abused its discretion by denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues differently or that the questions presented warrant encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616.

II

The petitioner’s next claim on appeal is that the habeas court failed to explore adequately his allegation that a conflict of interest existed between him and his habeas counsel. The respondent, the commissioner of correction, contends that the court’s inquiry was more than sufficient because the true source of the petitioner’s allegation is not a conflict of interest but a disagreement over trial tactics and strategy. We agree with the respondent.

The record reveals the following additional relevant facts and procedural history. During the habeas trial, the petitioner informed the court that he wanted to remove attorney Donald O’Brien as his counsel and to have new counsel appointed. The petitioner alleged that O’Brien failed to investigate his claim that his trial counsel had failed to review certain forensics evidence and failed to amend the consolidated habeas petitions to include a claim that trial counsel had failed to request a jury instruction pursuant to State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005). O’Brien responded that he had thoroughly investigated the petitioner’s claims and that he had acted in the petitioner’s best interest. Thereafter, the court informed the petitioner that it would not appoint new counsel, and the petitioner agreed to allow O’Brien to continue to serve as his attorney.

We begin by setting forth the relevant legal principles. It is well established that “[a] petitioner in a habeas proceeding has both the right to effective assistance of habeas counsel and the right to be represented by habeas counsel who is free from conflicts of interest. . . . [I]n order to safeguard a habeas petitioner’s right to the effective assistance of habeas counsel, a habeas court, like a criminal trial court, has an affirmative obligation to explore the possibility that habeas counsel has a conflict of interest when that possibility is brought to the attention of the habeas court in a timely manner. In discharging that duty, the habeas court must be able, and be freely permitted, to rely on habeas counsel’s representation that the possibility of such a conflict does or does not exist. The court may rely on the solemn representation of a fact made by habeas counsel as an officer of the court. The course thereafter followed by the court in its inquiry depends on the circumstances of the particular case.” (Internal quotation marks omitted.) Abrams v. Commissioner of Correction, supra, 119 Conn. App. 418-19.

Although the petitioner alleges that his relationship with his attorney was afflicted by a conflict of interest, his allegation does not fit into the traditional legal concept of a conflict of interest wherein the attorney has an interest that is at odds with his client’s interest. In the present case, the petitioner has not alleged a conflict of interest but, rather, a disagreement with counsel over legal tactics and strategy. See, e.g., id., 419.

Our review of the record reveals that the court thoroughly investigated the alleged conflict of interest. The court allowed the petitioner to voice his concerns and then addressed those concerns to his attorney. The court then determined, on the basis of the representations made to it, that no conflict of interest existed. Because we have determined that the court properly investigated the petitioner’s allegation and determined that no conflict of interest existed, we conclude that it was unnecessary for the court to have inquired further.

The appeal is dismissed.

In this opinion the other judges concurred.


author: BISHOP, J.

text:
    ANTHONY SINCHAK v. COMMISSIONER OF CORRECTION
    (AC 29193)
    Bishop, Robinson and Hennessy, Js.
    Argued October 13, 2010
    officially released February 22, 2011

      J. Patten Brown III, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Eva B. Lenczewski, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Anthony Sinchak, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus that alleged ineffective assistance of habeas counsel. On appeal, he claims that the court improperly (1) failed to appoint counsel to represent him when he filed his habeas petition and (2) dismissed his petition as premature. Because we agree with the petitioner’s first claim, and subsequent events have rendered moot the court’s determination that the petition was premature, we reverse the judgment of the habeas court.

The following procedural history is relevant to our disposition of the petitioner’s appeal. Following a jury trial in 1995, the petitioner was convicted of murder in violation of General Statutes § 53a-54a and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92. On July 26, 2000, the petitioner filed a pro se petition for a writ of habeas corpus, and he filed another petition on July 3, 2001. The two petitions were consolidated by court order on July 30, 2001 (first petition). Attorney Donald O’Brien was later appointed as a special public defender and filed his appearance on February 22, 2002. The matter was tried in December, 2006, and March, 2007, before the habeas court, and in a memorandum of decision filed June 29, 2007, the court denied the petition. On July 9, 2007, the court also denied the petitioner’s subsequent petition for certification to appeal from that judgment. The petitioner appealed on August 1,2007, following the denial of certification.

Prior to a resolution of the appeal of the first petition, on July 25, 2007, the petitioner filed a second habeas petition (second petition) claiming ineffective assistance of habeas counsel in his representation of the petitioner in his first petition. In the second petition, the court granted the petitioner’s application for waiver of entry fee on August 1, 2007, but then dismissed the petition on August 8, 2007, pursuant to Practice Book § 23-29 (4), on the ground that the claim was premature. The court granted his petition for certification to appeal from the dismissal on November 16, 2007. This appeal followed.

On appeal, the petitioner claims that the court incorrectly dismissed the second petition as premature and improperly failed to appoint counsel once the petition had been docketed. We agree with his claim regarding counsel.

The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a “habeas on a habeas,” was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296 (a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through ahabeas petition. Id., 838-41. To resolve the petitioner’s claim in the present case, we must determine whether § 51-296 (a) provides an indigent petitioner with a right to counsel for such a habeas on a habeas, as it does for the initial petition.

Because this analysis requires us to interpret the statute affording counsel to an indigent habeas petitioner, our review is plenary. In re A.R., 123 Conn. App. 336, 339, 1 A.3d 1184 (2010). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.” (Internal quotation marks omitted.) Id. “When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Bank of New York v. Bell, 120 Conn. App. 837, 845, 993 A.2d 1022, cert. denied, 298 Conn. 917, 4 A.3d 1225 (2010).

We look first to the language of the statute. See General Statutes § l-2z. Section 51-296 (a) provides, in relevant part, that a court shall appoint counsel to represent an indigent petitioner “[i]n any criminal action” or “in any habeas corpus proceeding arising from a criminal matter . . . ,” Our appellate courts have liberally construed the reference in § 51-296 (a) to “any habeas corpus proceeding” as providing an indigent petitioner with a statutory right to counsel in both habeas hearings and habeas appeals. Gipson v. Commissioner of Correction, 257 Conn. 632, 646 n.20, 778 A.2d 121 (2001). The limiting phrase “arising from a criminal matter,” however, has not been interpreted separately. It is not statutorily defined, and neither § 51-296 nor any other statutory provision clearly indicates whether a habeas on a habeas arises from a criminal matter within the meaning of § 51-296 (a).

Certainly not every habeas proceeding arises from a criminal matter. “The writ of habeas corpus . . . does not focus solely upon a direct attack on the underlying judgment or upon release from confinement. See, e.g., Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984) (undue appellate delay); Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982) (conditions of confinement); Roque v. Warden, 181 Conn. 85, 434 A.2d 348 (1980) (first amendment issues); Negron v. Warden, 180 Conn. 153, 429 A.2d 841 (1980) (state’s extradition practice); Doe v. Doe, 163 Conn. 340, 307 A.2d 166 (1972) (custody and visitation disputes).” Lozada v. Warden, supra, 223 Conn. 841-42. Lozada clearly distinguishes, however, that ineffective assistance of counsel claims arise from a criminal matter, stating that “whether the accused had reasonably competent habeas and trial counsel . . . are matters that ultimately challenge the underlying conviction.” Id., 842. In fact, it appears to be this direct nexus to the criminal matter that convinced the Lozada court that the vehicle for challenging the effectiveness of trial counsel, a habeas petition, may also be employed to assert an ineffectiveness claim regarding habeas counsel. Id., 842-43. Accordingly, we conclude that a habeas on a habeas arises from a criminal matter within the meaning of § 51-296 (a). Indeed, it would produce an anomalous result to hold that one has a right to bring a habeas challenging the effectiveness of habeas counsel but one is not statutorily entitled to the assistance of counsel in such an effort. As Lozada’s provision for the remedy of a habeas upon a habeas is premised on the notion that one’s criminal conviction is at the root of an initial habeas claiming ineffectiveness of trial counsel as well as at the root of a habeas claiming ineffectiveness of habeas counsel, we believe that the statutory right to counsel in a habeas petition arising from one’s conviction pertains not only to the initial habeas petition asserting ineffectiveness of trial counsel but also to the habeas upon a habeas claiming ineffectiveness of habeas counsel.

We find additional support for our conclusion in the reasoning in Gipson v. Commissioner of Correction, supra, 257 Conn. 632, in which our Supreme Court interpreted the portion of § 51-296 (a) referencing “any criminal action . . . .” Gipson determined that “any criminal action” under § 51-296 (a) includes all direct appeals, including petitions for certification, and not just a first appeal as of right. Gipson v. Commissioner of Correction, supra, 646. The court found precedent for this “liberal construction” in the expansive interpretation it had given to the reference in § 51-296 (a) to habeas corpus proceedings. Id., 646 n.20. That precedent of liberal construction applies even more precisely to the present case, which directly concerns the intent of the reference in § 51-296 (a) to habeas proceedings. Consequently, in the same manner in which Gipson reasoned that a provision of counsel for the first appeal as of right logically extends to all direct appeals from a conviction; id., 646; we reason that a provision of counsel for an initial ineffective assistance habeas petition logically extends to all ineffective assistance habeas petitions, including a habeas on a habeas.

Our Supreme Court also construed the phrase “any criminal action” in State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007), and, as with Gipson, we find its reasoning instructive in our interpretation of the phrase “arising from a criminal matter.” Casiano determined that “any criminal action” includes the preparation and filing of a nonfrivolous motion to correct an illegal sentence and any direct appeal from the denial of such motion. Id., 624. It reasoned that a motion to correct an illegal sentence is an alternate route equivalent to an appeal of an illegal sentence and, because § 51-296 (a) provides counsel for such an appeal, the statutory right to counsel logically extends to the equivalent motion. Id., 625-26. Similarly, in the present case, a habeas on a habeas is equivalent to an initial ineffective assistance habeas because both require the same proof and offer the same remedy. See Lozada v. Warden, supra, 223 Conn. 842-43 (ineffective assistance petitioner must prove ineffective assistance of trial counsel and remedy for successful claim is new trial). By logical extension, then, § 51-296 (a), which applies to an initial ineffective assistance habeas, applies equally to a habeas on a habeas.

The court in Casiano also noted that a motion to correct is an integral, albeit optional, part of a postcon-viction sentencing procedure. State v. Casiano, supra, 282 Conn. 626-27, citing Consiglio v. Warden, 153 Conn. 673, 679, 220 A.2d 269 (1966). Because of this close nexus and the “critical importance” of the sentencing phase, at which a defendant has a constitutional right to counsel, it reasoned that a motion to correct is a “criminal action” within the purview of the right to counsel in § 51-296 (a). State v. Casiano, supra, 626-27. Similarly, in the present case, the close nexus between the habeas on a habeas and the underlying conviction, at which there is a constitutional right to counsel, indicates that the habeas on a habeas arises “from a criminal matter” within the purview of the right to counsel provided in § 51-296 (a).

As a point of contrast, we recognize that this court has determined that the term “any criminal action” in § 51-296 (a) does not include petitions for a new trial because such petitions are ancillary to the original criminal trial, commenced by the service of civil process and prosecuted as civil actions. Small v. State, 101 Conn. App. 213, 217-19, 920 A.2d 1024 (2007), appeal dismissed, 290 Conn. 128, 962 A. 2d 80, cert. denied, 558 U.S. 842, 130 S. Ct. 102, 175 L. Ed. 2d 68 (2009). In a similar argument, the respondent, the commissioner of correction, contends that because habeas corpus is a civil proceeding; see Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970); a habeas on a habeas arises from an underlying civil matter, not a criminal matter as required under § 51-296 (a). The present case is distinguishable from Small, however, because, unlike petitions for a new trial, which must conform to the general rule that there is no right to counsel in civil cases, habeas petitions fall under the express exception to that general rule in § 51-296 (a). See Small v. State, supra, 217-18. Furthermore, as our Supreme Court stated in Lozada, “[t]he second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the veiy fabric of the conviction that led to the confinement.” Lozada v. Warden, supra, 223 Conn. 843. The underlying matter in a habeas on a habeas, therefore, is not the initial civil petition but the criminal conviction itself, and it falls within the purview of § 51-296 (a).

To summarize, in light of the expansive interpretation of § 51-296 (a) with regard to habeas corpus proceedings, the equivalence of a habeas on a habeas to the initial ineffective assistance habeas, the nexus between a habeas on a habeas and the underlying criminal conviction and the fact that the justification for a habeas on a habeas claim derives from § 51-296 (a) itself as interpreted in Lozada, we are persuaded that the right to counsel in § 51-296 (a) for an indigent petitioner in “any habeas proceeding arising from a criminal matter” includes habeas petitions alleging ineffective assistance of habeas counsel. Accordingly, the habeas court was required to appoint counsel to the petitioner in the present case.

The judgment is reversed and the case is remanded for the appointment of counsel and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(4) the claims asserted in the petition are moot or premature . . .

       As to the petitioner’s claim that the court improperly dismissed his petition as premature pursuant to Practice Book § 23-29 (4), he asserts that our Supreme Court’s reasoning in State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (petitioner may bring habeas claim while direct appeal of conviction is pending), 476 U.S. 1184,106 S. Ct. 2922,91 L. Ed. 2d 550 (1986), should apply to the present situation, allowing him to be heard in a habeas claiming ineffective assistance of habeas counsel even though his appeal of the initial habeas is still pending. We need not reach the question of whether the reasoning of Leecan applies to this situation because, in this same issue of the Connecticut Law Journal, we publish our opinion in the first habeas petition, Sinchak v. Commissioner of Correction, 126 Conn. App. 670, 14 A.3d 348 (2011). There, we dismiss the petitioner’s appeal of the first habeas on the ground that the court did not abuse its discretion in denying the petition for certification to appeal. As a consequence, to the extent that the court determined that this second habeas was premature, the subsequent dismissal of the first appeal has rendered moot the court’s determination because, on remand, the petitioner will have the opportunity to amend his petition to now include the allegation that his first habeas has been dismissed on appeal. Accordingly, we need not address the petitioner’s Leecan argument.

       General Statutes § 51-296 (a) provides in relevant part: “In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . (Emphasis added.)

       Likewise, Practice Book § 23-26 provides for the appointment of counsel for indigent parties “[i]n petitions arising from criminal matters,” and Practice Book § 44-1 provides for the appointment of counsel for any “petitioner in any habeas corpus proceeding arising from a criminal matter . . .