author: GRUENDEL, J.

text:
    NANCY J. ZOLL v. LEONARD A. ZOLL
    (AC 28716)
    Flynn, C. J., and Gruendel and Hennessy, Js.

      Argued October 30, 2008
    officially released January 27, 2009

      Louis Kiefer, for the appellant (defendant).
   Opinion

GRUENDEL, J.

The defendant, Leonard A. Zoll, appeals from the judgment of the trial court rendered on his postjudgment motion to modify the terms of his alimony obligations to the plaintiff, Nancy J. Zoll. On appeal, the defendant claims that the court (1) entered several improper orders prior to disposing of his motion to modify alimony, (2) improperly sustained the plaintiffs objection to his requests for admission, (3) rendered an improper judgment on his motion to modify alimony and (4) improperly found him in contempt of court. We conclude that this court does not have subject matter jurisdiction over the first claim and dismiss that portion of the appeal. We affirm the judgment of the trial court as to the remaining three claims.

The following facts and procedural history are relevant to our determination of the defendant’s appeal. The plaintiff and the defendant married on February 27, 1982, and they have two children together—one bom in 1984 and the other in 1986. On October 1, 2001, the plaintiff commenced the present action for dissolution of the marriage. On February 28, 2003, the court rendered judgment dissolving the marriage and ordering, inter alia, that the defendant pay periodic alimony in the amount of $175 per week and child support in the amount of $160 per week. Upon the termination of child support obligations, the defendant’s alimony payment was to increase to $300 per week for a period of nine years.

On May 27, 2006, the defendant was diagnosed with leukemia, and he began chemotherapy on June 8, 2006. As a result of the diagnosis and treatment, the defendant was unable to continue in his position as sales manager of the mortgage brokerage firm where he worked. Instead, he stayed on with the company as an independent loan officer, which enabled him to continue receiving company benefits without needing to work regular hours. The defendant spent seventy-four days in a hospital either for chemotherapy or due to complications from his condition between June 8, 2006, and the declaration that he was in remission on November 22, 2006. After the defendant entered remission, his oncologist recommended that he obtain a stem cell transplant, which would preclude the defendant from working in public for at least one year. If, however, the defendant elected not to undergo the stem cell transplant, the physician indicated that the defendant would be able to return to work almost immediately.

On June 14, 2006, six days into his treatment, the defendant filed a motion for modification of his alimony obligations under the original judgment of dissolution. In that motion, the defendant claimed that his diagnosis and inability to regularly work resulted in a “significant change of circumstance not contemplated at the time of the dissolution of marriage.” He therefore requested that his “duty to pay alimony be terminated.”

On August 2, 2006, the court, Prestley, J., entered a temporary order staying the defendant’s alimony obligations. On September 13, 2006, a hearing was held on the defendant’s motion at which the defendant’s attorney was present, but the defendant was not. At that hearing, the defendant’s attorney asked the court to consider a letter from the defendant’s physician indicating that the defendant was hospitalized and undergoing treatment. The court, however, refused to consider the letter because no foundation had been laid for its admissibility. Without deciding the underlying motion to modify, the court, Solomon, J., vacated the August 2, 2006 temporary stay and reinstated the original alimony order, noting: “As far as I’m concerned, there is no evidence to indicate that the gentleman’s in the hospital any longer. I personally have represented clients who have this . . . and went to work with this disease for a year, year and a half and until they went through a bone marrow transplant, but they were able to work and they were able to earn an income. ... So, effective today, I am vacating the stay. ” The defendant subsequently filed a motion to vacate the September 13, 2006 order. That motion was denied, but the defendant did not resume payment of alimony to the plaintiff. As a consequence of the defendant’s failure to comply with his alimony obligations after the termination of the stay, the plaintiff filed a motion for contempt.

On September 24,2006, the defendant served requests for admission upon the plaintiff pursuant to Practice Book § 13-22. The requests asked the plaintiff to admit to the truth of nineteen facts and the genuineness of nine documents. The plaintiff objected, noting: “The information known or readily obtainable by the [plaintiff is insufficient to enable an admission or denial . . . .” On October 17, 2006, the defendant filed a motion to determine the sufficiency of the plaintiffs response to the requests for admission. At a hearing on November 17, 2006, the court, Epstein, J., sustained the plaintiffs objection and denied the defendant’s motion to determine the sufficiency of the response. The court further noted, however, that the information contained in the requests for admission could best be determined by deposing the defendant and his oncologist, which was later done.

On January 8, 2007, after discovery was complete, a hearing was held on the merits of the defendant’s underlying motion to modify alimony, at which the defendant’s attorney introduced the depositions of the defendant and his oncologist, along with other evidence related to the defendant’s change in circumstances. On March 2, 2007, the court, Simón, J., rendered judgment on the defendant’s motion to modify and on the plaintiffs motion for contempt. The court found that prior to his treatment, the defendant earned a base salary of $60,000 per year and up to an additional $30,000 in bonuses and commissions. It further found that after the defendant started treatment, he began receiving social security disability payments. The court found that his income from all sources, including social security and the mortgage brokerage firm, totaled $601.65 per week and that his expenses totaled $516.28 per week. It concluded, therefore, that “[b]ased on the evidence presented, the defendant has met his burden of showing that there has been a significant drop of income due to his health, which constitutes a substantial change of circumstances.”

Having reached the conclusion that a substantial change in circumstances had occurred, the court reduced the defendant’s alimony obligation to $100 per week, retroactive to June 14, 2006, the date that he filed the motion for modification. It further held that the defendant had “until July 1, 2007, to decide whether or not he will pursue the stem cell transplant. Should he choose to proceed with the transplant, this order will remain in effect until such time as he is cleared to return to work by his treating physician. If, by July 1, 2007, the defendant has decided not to have the procedure, then the alimony obligation will revert to $300 per week based on his earning capacity. Should the defendant earn any income over his present earnings at $601.65 per week, he is to pay the plaintiff an additional 20 percent of the net income after taxes, but no more than his previous obligation of $300 per week.” The court farther ordered the defendant to pay $3600 to the plaintiff representing $100 per week for the thirty-six weeks of missed alimony payments between the week of June 11, 2006, and the filing of the court’s memorandum of decision.

The court then turned to the plaintiffs motion for contempt and sanctions for failure to comply with the court order of September 13, 2006, reinstating alimony of $300 per week. The court found that the defendant “unilaterally stopped payments on June 16, 2006,” and that after the September 13,2006 hearing, the defendant was “under notice that his alimony payments had been reinstated and that he was under an obligation to pay those sums. The defendant failed to make any payment whatsoever. The defendant ignored the order.” The court, therefore, found the defendant in contempt of court and ordered him to pay a portion of the plaintiffs legal fees in the amount of $750, representing an estimate of the cost of prosecuting the contempt motion. This appeal followed.

I

We first address the defendant’s claims relating to orders entered prior to the final disposition of the motion to modify his alimony obligations. The defendant argues that the court improperly (1) terminated the stay suspending payment of alimony on September 13, 2006, and (2) refused to admit into evidence the signed letter from his oncologist. We conclude that this court lacks subject matter jurisdiction over those claims.

“Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case [or claim] over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Kennedy v. Kennedy, 109 Conn. App. 591, 598-99, 952 A.2d 115 (2008).

Even though the issue of mootness was not raised in the defendant’s brief or at oral argument, this court has a duty to consider it sua sponte because mootness implicates the court’s subject matter jurisdiction. It is, therefore, a threshold matter to resolve. See id., 598. “[T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Internal quotation marks omitted.) Smith-Lawler v. Lawler, 97 Conn. App. 376, 378-79, 904 A.2d 1235 (2006).

With this in mind, we address the defendant’s claim that on September 13, 2006, the court, Solomon, J., improperly vacated the prior order entered by Judge Prestley staying the defendant’s alimony obligations. In its March 2, 2007 memorandum of decision rendering final judgment on the defendant’s motion to modify alimony, the court instructed that the judgment and new alimony order were “retroactive to June 14, 2006.” It goes without saying that June 14, 2006, predates the September 13, 2006 order vacating the temporary stay of alimony. Consequently, the claim is rendered moot because a reversal of the September 13, 2006 order would provide no benefit to the defendant, as the subsequent judgment has retroactive effect.

We next address the claim that the court improperly failed to consider, and improperly excluded from evidence, the letter from the defendant’s physician at the September 13, 2006 hearing. On January 8, 2007, that very letter was admitted into evidence and was a full exhibit before the court when it rendered judgment on March 2, 2007. Having already determined that the defendant’s challenge to the September 13, 2006 alimony order is moot, and because the letter was properly admitted into evidence later, a reversal of the court’s exclusion of the letter on September 13 would provide no practical relief to the defendant. The claim, therefore, is likewise moot, and we lack jurisdiction to afford it consideration. We therefore dismiss this portion of the appeal.

II

We next consider the defendant’s claim that the court improperly found that the plaintiffs objection to the requests for admission was justified and that it complied with the requirements of Practice Book §§ 13-22 and 13-23. We begin by setting forth the applicable standard of review. Our Supreme Court has “long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court, and is subject to reversal only if such an order constitutes an abuse of that discretion. . . . [I]t is only in rare instances that the trial court’s decision will be disturbed.” (Internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003).

Practice Book (2006) § 13-22 (a) provides in relevant part: “A party may serve . . . upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters relevant to the subject matter of the pending action set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the existence, due execution and genuineness of any documents described in the request. . . .” The defendant’s requests in the present case sought twenty-eight separate admissions. Most of those concerned the defendant’s physical condition, his various stays in the hospital, his employment status and salary, and the authenticity of records, letters and invoices kept by his various health care professionals.

The plaintiff objected to the defendant’s requests in their entirety, noting that she did not have sufficient knowledge or ability to enable her to make an admission or denial of the requested admissions. Practice Book § 13-23 governs answers and objections to requests for admissions and provides in relevant part: “Each matter of which an admission is requested is admitted unless . . . the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter .... An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless such party states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable an admission or denial. . . .” Practice Book § 13-23 (a).

With regard to the genuineness of the medical reports, letters and records, the court held, citing another Superior Court decision; see Marks v. Beard, Superior Court, judicial district of Fairfield, Docket No. CV-92-0301307-S (June 21,1994) (11 Conn. L. Rptr. 638); that it was inappropriate to require the plaintiff to admit or deny the genuineness of documents prepared by a third party unrelated to the plaintiff. It similarly held that the facts contained in the requests for admission related exclusively to the defendant’s relationships with his medical practitioners and his employer. As such, the court found that it was inappropriate to require the plaintiff to admit or deny those facts of which she had no prior knowledge and that did not directly involve her in any manner.

Indulging every presumption in favor of the correctness of the court’s determination, we conclude that it was not an abuse of the court’s discretion to decline to order the plaintiff to admit or deny the genuineness of the defendant’s documents. Further, it was not an abuse of discretion to decline to order the plaintiff to admit the truth of facts that were within the exclusive knowledge of the defendant and his health care practitioners. Additionally, we note that the court indicated that the most appropriate way to introduce the evidence sought to be admitted in the requests would be through depositions of the defendant and his oncologist. Such depositions did take place, and most, if not all, of the facts that were the subject of the defendant’s requests for admission were proven; most, if not all, of the documents that were the subject of the defendant’s requests for admission were admitted as full exhibits. We conclude, therefore, that the court did not abuse its discretion in failing to order that the plaintiff admit or deny the facts and documents in the defendant’s requests for admission.

Ill

We next consider the merits of the defendant’s challenge to the court’s ruling on his postjudgment motion to modify. The court granted the defendant a modification of alimony from $300 per week to $100 per week. The defendant claims that this reduction was insufficient. He asserts that (1) the court’s order modifying his alimony obligation was improper and against the weight of the evidence and (2) the court improperly required him to pay $3600 in arrearages.

“The standard of review in family matters is well settled. An appellate court will not disturb atrial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Signore v. Signore, 110 Conn. App. 126, 129-30, 954 A.2d 245 (2008).

In the present case, the court based its modification order on its understanding of the defendant’s changed circumstances. In his brief, the defendant proffers a detailed mathematical equation in an attempt to demonstrate that the court improperly calculated his ability to pay $100 in weekly alimony. Because we review the court’s factual findings as to the defendant’s income and expenses under the clearly erroneous standard, we must affirm the court’s decision unless there is either no evidence to support the court’s findings or we are “left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 130. Having reviewed the record and the exhibits introduced at trial, we cannot say that the court’s factual findings regarding the defendant’s income and expenses were clearly erroneous. As such, the court did not abuse its discretion in ordering the defendant to pay $100 per week.

The court also ordered the plaintiff to pay $3600 in alimony for the missed payments from the week of June 11, 2006, through the filing of the memorandum of decision. The defendant claims that the court found that he was able to pay that sum on the basis of an improper determination that he had received $50,000 during that time period. The finding is one of fact, which we review under the clearly erroneous standard discussed previously. The court’s memorandum of decision does not contain any mathematical calculation of the defendant’s income during the applicable time period. The defendant testified that during the applicable period of time, he had received some income from his salary and two bonuses in addition to $20,000 from other sources. Because the defendant did not move for an articulation of the court’s calculation pursuant to Practice Book § 66-5, and because there is sufficient evidence in the record to support the court’s finding that he was able to pay the sum, we cannot say that its finding was clearly erroneous or that the order was an abuse of the court’s discretion.

IV

Finally, we address the defendant’s claims regarding the finding of contempt. The defendant contends that the court improperly found him in contempt for failure to pay alimony during the pendency of his motion to modify. As discussed in part I, the defendant asserts that the order reinstating his alimony obligations was improper. He claims that, as such, the court should not have held him in contempt for failure to observe that arguably improper order. We disagree.

“[0]ur analysis of a [civil] judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

We address our threshold inquiry to the court’s September 13, 2006 order terminating the stay that was entered on August 2, 2006. The order was entered in response to an explicit request by the plaintiff to terminate that stay. The order stated: “The court vacates the stay effective today.” Read in context of the plaintiffs request, the order could not be more clear or unambiguous. Further, the defendant does not claim on appeal that the order was not clear and unambiguous.

The second step in the inquiry requires us to determine if the court abused its discretion in.holding the defendant in contempt. We note at the outset that in its memorandum of decision, the court explicitly found that the defendant was on notice of the order and that his violation of the order was wilful. Further, there is nothing in the record that would suggest that this was not the case. Rather, the defendant’s primary argument appears to be that because the underlying order was improper, the finding of contempt was likewise improper. This argument, however, is contrary to established principles underlying civil contempt.

“[A]n order issued by a court of competent jurisdiction must be obeyed by the parties until it is reversed by orderly and proper proceedings. ... [A] party has a duty to obey a court order however erroneous the action of the court may be ... . Consistent with that conclusion ... a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed . . . and . . . there is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid.” (Citations omitted; internal quotation marks omitted.) State v. Wright, 273 Conn. 418, 425-26, 870 A.2d 1039 (2005), citing Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985); see also Walker v. Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967). This being the case, we need not address the substance of the September 13, 2006 order and conclude that the court did not abuse its discretion in holding the defendant in contempt for failure to comply with the order.

The appeal is dismissed with respect to the defendant’s claims challenging the September 13, 2006 rulings. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We point out that the plaintiff has not responded to the defendant’s claims on appeal, having failed to file a brief with this court.

       At the time that the defendant filed the motion that serves as the basis for the present appeal, the children of the marriage were both over the age of majority, and the $300 per week alimony obligation was in effect.

       This language in the defendant’s motion mirrors that in General Statutes § 46b-86 (a), governing modification of alimony obligations, which provides in relevant part: “Unless and to the extent that the decree [of dissolution] precludes modification . . . any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite . . . may, at any time thereafter ... be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . . . .”

       The court noted that despite not working, the defendant had received approximately $50,000 from various sources during the course of his treatment from which he could pay $3600 to the plaintiff.

       The defendant also claims that the court improperly ordered him to pay $750 in attorney’s fees as a sanction for his contempt of court. In his brief, the defendant argues, essentially, that the plaintiffs counsel engaged in dilatory tactics and violations of the rules of practice and, as such, should not benefit from an award of attorney’s fees. This argument is unrelated to the award of attorney’s fees to the plaintiff for the defendant’s contempt. We conclude that to the extent that the defendant claims that the $750 award was improper, independent of his claim regarding the finding of contempt discussed previously, such claim was inadequately briefed, and we decline to address it. See Moran v. News Media Group, Inc., 100 Conn. App. 485, 506, 918 A.2d 921 (2007).


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    JESUS E. ROMERO v. COMMISSIONER OF CORRECTION
    (AC 28782)
    DiPentima, Gruendel and West, Js.
    Argued October 23, 2008
    officially released January 27, 2009

      Mary Anne Royle, special public defender, for the appellant (petitioner).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Jesus E. Romero, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claims that his trial counsel rendered ineffective assistance. We dismiss the appeal.

The following facts and procedural history provide the necessary background to the disposition of the petitioner’s appeal. The petitioner was convicted, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (2) and 53a-49, one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-147, § 1, and one count of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. On direct appeal, we affirmed the judgment of conviction. State v. Romero, 59 Conn. App. 469, 757 A.2d 643, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000).

In the petitioner’s direct appeal, this court determined that the jury reasonably could have found the following facts. “The victim was bom on March 4,1987. The [petitioner] was the boyfriend of the victim’s mother. In 1989, the [petitioner] lived with the mother and continued to live with the family for six years. The mother had one child with the [petitioner],

“When the victim was five years old, the [petitioner] began sexually abusing her. Between 1993 and 1995, the [petitioner] on several occasions had the victim perform oral sex on him. On one occasion in 1994, the [petitioner] attempted to have sexual intercourse with the victim, but was unsuccessful. During these incidents, the mother was not home.

“The victim initially did not report these activities to anyone. In August, 1996, however, the victim told her mother about the [petitioner’s] conduct. At this time, the [petitioner] was not residing with the mother and the victim. The mother then contacted the police. Lieutenant Kathleen Wilson of the Waterbury police department interviewed the victim, who disclosed the details of the [petitioner’s] conduct, including that the [petitioner] had a mole on his penis. Photographs submitted at trial confirmed this distinguishing mark as did the testimony of the victim, the victim’s mother and the [petitioner]. Moreover, the mother, as well as the [petitioner], testified that there was no innocent way that the victim could inadvertently have observed the [petitioner], In October, 1996, the police arrested and charged the [petitioner] with risk of injury to a child, sexual assault in the first degree and attempt to commit sexual assault in the first degree.

“On or about June, 1997, the victim’s family moved to New Hampshire. At this time, the victim recanted her allegations to her mother. The mother took the victim to see Sidney Horowitz, a psychologist. During her meeting with Horowitz, the victim again recanted her allegations against the [petitioner]. At trial, the victim testified that she had recanted because she had felt bad for her half-brother, who was the [petitioner’s] son.

“In 1997, the victim told a friend, Y, about the [petitioner’s] conduct. The victim then informed her mother that her original allegations against the [petitioner] were true. Y testified as a constancy of accusation witness regarding the victim’s complaint.

“On July 7 and 8, 1998, the court granted motions by the [petitioner] for judgment of acquittal of one count of attempt to commit sexual assault in the first degree and one count of risk of injury to a child. On July 10, 1998, the jury returned a verdict of guilty on the remaining five counts. On September 11,1998, the court sentenced the [petitioner] to a total effective sentence of twenty-five years imprisonment, suspended after fifteen years, and twenty-five years probation.” Id., 471-73.

Following his unsuccessful direct appeal to this court, the petitioner brought this petition for a writ of habeas corpus. In his second amended petition, the petitioner asserted, inter alia, several claims of ineffective assistance of trial counsel. In a detailed memorandum of decision, the habeas court denied the petition, finding as to his ineffective assistance of trial counsel claims that the petitioner had failed to prove that he was denied effective assistance under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This appeal followed. On appeal, the petitioner pursues three of the issues he raised in his petition. The petitioner claims that trial counsel provided ineffective assistance by failing to object properly to constancy of accusation testimony, failing to investigate adequately in preparation of the petitioner’s defense and failing to object properly to prosecutorial impropriety.

“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. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Guadalupe v. Commissioner of Correction, 83 Conn. App. 180, 182, 849 A.2d 883, cert. denied, 270 Conn. 911, 853 A.2d 525 (2004).

We first address the petitioner’s claim that the habeas court improperly concluded that he failed to demonstrate that his trial counsel provided him with ineffective assistance by failing to object properly to constancy of accusation testimony under the exception enunciated in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). The petitioner asserts that his trial counsel, Thomas K. McDonough, should have objected to the proposed constancy testimony on the following two grounds: first, that the victim’s recantation of her accusations against the petitioner broke the chain of constant accusation, thereby making Y’s testimony inadmissible under Troupe and, second, that the testimony itself exceeded the permissible scope of Troupe As to these claimed areas of ineffectiveness alleged by the petitioner, the habeas court found that McDonough’s representation was not deficient. As to the first ground, the court found that “[w]hile the petitioner’s claimed limitation on constancy evidence [which was that a recantation breaks the chain of accusation] may at some point in the future be the rule in Connecticut, that is not the case at present and was not the law at the time of the petitioner’s criminal trial.” As a result, the court concluded, McDonough was not deficient for failing to predict the future status of the law concerning the admissibility of constancy evidence. As to the second ground, the court found that the testimony of the constancy of accusation witness regarding her friendship with the victim and the conduct of the victim as she related her accusation to the witness was outside the scope of Troupe, as it did not relate in any way to the details of the assaults. Consequently, the court concluded, Troupe was inapplicable to that portion of the constancy witness’ testimony, and, therefore, McDonough was not deficient in failing to object to this testimony on these grounds. See State v. Cosby, 99 Conn. App. 164, 172, 913 A.2d 1068 (Troupe inapplicable to testimony not regarding details of alleged assault), cert. denied, 281 Conn. 920, 918 A.2d 273 (2007).

The petitioner’s second claim on appeal involves McDonough’s alleged failure to investigate properly in preparation of the petitioner’s defense. Specifically, the petitioner alleges that McDonough failed to investigate and to obtain evidence that the department of children and families interviewed the children living in the household at the time of the alleged assaults and discovered no evidence of abuse. The court found this claim to be without merit. “[Although it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every eviden-tiary possibility.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 598-99, 940 A.2d 789 (2008). The court concluded that the petitioner failed to introduce evidence at his habeas trial that would allow the court to determine whether McDonough inadequately investigated and presented those claims. “In a habeas coipus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Emphasis added; internal quotation marks omitted.) Id., 599. Moreover, the habeas court concluded that the petitioner failed to show how, had McDonough presented the evidence in question, the outcome of the trial would have been different.

Last, the petitioner claims that McDonough provided ineffective assistance of counsel in failing to object to prosecutorial impropriety that allegedly occurred when the state cross-examined the petitioner and again during the state’s closing argument. The habeas court analyzed these claims by applying the two step analytical process set forth in State v. Stevenson, 269 Conn. 563, 849 A.2d 626 (2004). “The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) Id., 572. First, the petitioner claims that McDonough failed to object to the state’s asking the petitioner on cross-examination about the veracity of another witness. The habeas court concluded that the petitioner failed to show that McDonough was deficient in not objecting, noting that the record revealed that not raising the objection was likely a trial strategy aimed at undermining the credibility of that witness. Moreover, the court concluded that the petitioner did not show that he was deprived of his right to a fair trial by this alleged impropriety.

The petitioner also claims that McDonough failed to object to alleged prosecutorial impropriety that occurred during the state’s closing argument. The petitioner alleges that the prosecutor, Cara F. Eschuk, on six occasions, improperly vouched for the veracity of the victim’s testimony and, on three occasions, argued facts that were not in evidence. The habeas court concluded that Eschuk had not vouched for the veracity of the victim’s testimony but, rather, argued permissibly that the totality of the facts in evidence corroborated the testimony. Next, the court concluded that only in one of the instances alleged by the petitioner did Eschuk argue facts that were not in evidence. The habeas court concluded that although it was improper for Eschuk to comment that it is rare that a perpetrator of a sex crime is found virtually in the act of committing the crime, the petitioner had failed to show that he was deprived of his right to a fair trial by this comment.

In summary, the court found that the petitioner had failed to prove deficient performance by McDonough and that the petitioner had failed to prove any prejudice arising out of any claimed deficiency. The court’s findings are supported by the evidence in the record. “We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. . . . The habeas court judge, as trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ” (Internal quotation marks omitted.) Groomes v. Commissioner of Correction, 86 Conn. App. 486, 489, 862 A.2d 305 (2004), cert. denied, 273 Conn. 907, 868 A.2d 747 (2005).

We conclude that the court’s thoughtful and comprehensive analysis of the facts found is sound. Moreover, our thorough review of the issues raised by the petitioner as well as the court’s resolution of those issues leads us to conclude that the petitioner has failed to demonstrate that any further review is warranted. The court properly concluded that the petitioner failed to demonstrate that McDonough’s representation was deficient. The record does not reveal any errors made by trial counsel that deprived the petitioner of his right to effective representation. Furthermore, considering the record in light of Strickland, we cannot conclude that the issues in this case are debatable among jurists of reason, that they could have been resolved in a different manner or that they raise any question deserving of further examination. See Simms v. Warden, supra, 230 Conn. 616. Therefore, we conclude that the court’s denial of the petition for certification to appeal reflected a sound exercise of discretion.

The appeal is dismissed.

In this opinion the other judges concurred.

       “Under [the Strickland] test, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both deficientperformance and actual prejudice. The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the ‘counsel’ guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Russell v. Commissioner of Correction, 49 Conn. App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom. Russell v. Armstrong, 525 U.S. 1161, 119 S. Ct. 1073, 143 L. Ed. 2d 76 (1999).

       In Troupe, our Supreme Court concluded that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” (Emphasis added.) Statev. Troupe, supra, 237 Conn. 304. Furthermore, “[b]efore the evidence may be admitted . . . the victim must first have testified concerning the facts of the sexual assault and the identity of the person ... to whom the incident was reported.” Id., 304-305.

       In the petitioner’s direct appeal to this court, we stated that McDonough raised the following objection to the testimony of the state’s constancy witness, Y, at trial: “I don’t think it’s in any way relevant or admissible in any way to have this other young lady testify .... My point is that if this witness is going to testify about anything other than the limited things permitted in Troupe, I don’t think it’s permissible. ... I just don’t think it’s material. . . . What I’m saying is, it is immaterial because it is not proving anything. The only thing that a constancy witness should be allowed to prove under the constancy case is to remove this bias jurors have regarding the lack of a fresh report. That’s not the case here. . . . [F]or the purpose of a constancy witness I think at the very least it should be an adult, not another child.” (Internal quotation marks omitted.) State v. Romero, supra, 59 Conn. App. 476 n.6.

       In his direct appeal, the petitioner argued that “the victim’s recantation ‘broke’ the chain of constant accusation, rendering Y’s testimony inadmissible as constancy evidence.” State v. Romero, supra, 59 Conn. App. 476. Because the petitioner did not properly preserve his claim for appeal, we declined to afford it review. Id., 477.

       In his direct appeal, the petitioner claimed that “Y’s testimony about the victim’s demeanor when she recounted the assault to Y should not have been admitted because of its prejudicial quality.” State v. Romero, supra, 59 Conn. App. 478. The petitioner, however, failed to object properly to this testimony at trial. Id. This court concluded that “[b]ecause the [petitioner] failed to preserve his claim properly by articulating the basis for his objection to this evidentiary ruling, we decline to review this claim.” Id., 479.


author: FLYNN, C. J.

text:
    STANLEY KOSIOREK, EXECUTOR (ESTATE OF STANISLAW KOSIOREK) v. JACEK I. SMIGELSKI
    (AC 29477)
    Flynn, C. J., and DiPentima and Lavine, Js.

      Argued December 1, 2008
    officially released January 27, 2009

      Jacek I. Smigelski, pro se, the appellant (defendant).

      William J. Sweeney, Jr., for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The defendant, Jacek I. Smigelski, appeals from the judgment of the trial court' granting a prejudgment remedy in favor of the plaintiff, Stanley Kosiorek, executor of the estate of Stanislaw Kosiorek (decedent). On appeal, the defendant claims that the court improperly (1) found that there was probable cause to grant the prejudgment remedy, improperly taking into consideration the decision of the Probate Court, and (2) issued a prejudgment remedy in the amount of $54,833.33 without taking into consideration any potential defenses or counterclaims. We affirm the judgment of the trial court.

The record reveals the following facts. The plaintiff submitted an affidavit in support of his application for a prejudgment remedy in which he averred the following. On July 12, 2004, the Plainville Probate Court appointed the plaintiff as the executor of the estate of the decedent. The estate hired attorney John Matulis to file an action in the Superior Court, seeking to void a quitclaim deed to 28 Terra Road in Plainville that the decedent had given to his new wife (widow) shortly before he died. The action also sought to have the marriage declared null and void. During pretrial, it was reported that the estate could settle with the widow for $45,000. Matulis withdrew from the case, and, on June 15, 2006, Kosiorek entered into a written fee agreement with the defendant, to represent the interests of the estate in its action against the widow, and he gave the defendant a $5000 retainer. On August 16, 2006, the action was withdrawn pursuant to a settlement agreement in which the estate agreed to pay the widow $35,000 in exchange for her agreement to convey all right, title and interest to the house located at 28 Terra Road. The widow also agreed to release the estate from any and all claims that she might have against it. The settlement was not brought before the Probate Court for approval. On December 21, 2006, the house was sold, and the estate received the net sum of $155,300.82; the defendant charged the estate a total of $70,833.33 for his services. These fees were never approved by the Probate Court. On January 7, 2007, the estate petitioned the Probate Court for a hearing to compromise claim and to determine the reasonableness of the fees charged to the estate by the defendant. On May 21, 2007, the Probate Court found that the defendant’s fees were excessive and unreasonable. It further found that a reasonable fee was $16,000. The Probate Court ordered the plaintiff to restore to the estate the sum of $54,833.33. Despite the plaintiffs demands that the defendant return these funds, the defendant has not done so.

In the plaintiffs unsigned complaint, which was attached to his application for a prejudgment remedy, he alleged five counts against the defendant: disgorgement, quantum meruit, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., civil conversion and constructive trust. The court heard argument on the application for a prejudgment remedy on September 11 and 12, 2007, and it concluded that the plaintiff had met sufficiently his burden of demonstrating probable cause with respect to the CUTPA claim. Finding probable cause on this claim, the court did not consider whether there was probable cause as to the remaining claims, and it approved the application for a prejudgment remedy. This appeal followed.

We begin with a statement of the law governing prejudgment remedies and our limited role on review. “A prejudgment remedy means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment .... General Statutes § 52-278a (d). A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff .... General Statutes § 52-278d (a) (1). . . . Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence. . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. . . . Under this standard, the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . .

“As for [the] standard of review [on appeal], [our Supreme Court has instructed that an appellate] court’s role on review of the granting of a prejudgment remedy is very circumscribed. ... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. ... In the absence of clear error, [a reviewing] court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . [On appeal], therefore, we need only decide whether the trial court’s conclusions were reasonable under the clear error standard.” (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 136-38, 943 A.2d 406 (2008). With this standard in mind, we turn to the defendants’ specific claims on appeal.

I

The defendant first claims that the trial court improperly found that there was probable cause to grant the prejudgment remedy. The defendant claims that the court improperly based that finding on its consideration of the decision of the Probate Court, where the plaintiff “presented no evidence of his own in regard to the invalidity or unreasonableness of the [fee] agreement . . . .” He also contends that “[f]or a finding of a CUTPA violation ... it is not sufficient to allege, as a matter of law, that the fee appears to be unreasonable or unfair.” Accordingly, he argues that because “the plaintiff has not shown enough factual evidence or alleged enough in order for the court to find probable cause of a CUTPA violation here . . . the appeal should be sustained and the decision of the trial court reversed.” We are not persuaded.

“CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act . . . states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state. . . . The entire act is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit. . . .

“Whether a practice is unfair and constitutes a violation of CUTPA is a question of fact. . . . Our Supreme Court has explained that [i]t is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injuiy to consumers, [competitors or other businesspersons]. . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. ... In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . . .” (Citations omitted; internal quotation marks omitted.) Kendall v. Amster, 108 Conn. App. 319, 328-29, 948 A.2d 1041 (2008).

We conclude that the court’s determination regarding the CUTPA count was proper and that the defendant has failed to demonstrate that it was clear error for the court to have granted the application for a prejudgment remedy. Having reviewed the record, we find that there was adequate evidence before the court for it to conclude that there was probable cause that the defendant violated CUTPA and that judgment would be rendered in favor of the plaintiff with respect to his CUTPA claim. See Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 656, 850 A.2d 145 (2004) (conduct of law firm in obtaining business and negotiating fee contracts does fall within ambit of entrepreneurial activities subject to CUTPA). Furthermore, the defendant cites no statute or case law that would prohibit the court from considering a ruling of the Probate Court, which was admitted into evidence, when considering the merits of an application for a prejudgment remedy.

II

The defendant next claims that the court improperly issued a prejudgment remedy in the amount of $54,833.33 without taking into consideration any potential defenses or counterclaims. We conclude that the defendant has not shown that the court’s decision was clear error, and, therefore, we decline to disturb it.

“Because a prejudgment remedy is a statutorily based remedy, we first examine the language of the statute. Section 52-278d (a) requires that a trial court make a probable cause determination as to both the validity of the plaintiffs claim and the amount of the remedy sought. See General Statutes § 52-278d (a); see also Union Trust Co. v. Heggelund, 219 Conn. 620, 625, 594 A.2d 464 (1991). In other words, to justify issuance of a prejudgment remedy, probable cause must be established both as to the merits of the cause of action and as to the amount of the requested attachment. That dual requirement ensures that a person is not deprived of the use of property without due process of law. . . . Kinsale, LLC v. Tombari, [95 Conn. App. 472, 482, 897 A.2d 646 (2006)] (Flynn, C. J., dissenting). Therefore, the party seeking the prejudgment remedy must present evidence that is sufficient to enable the court to determine the probable amount of the damages involved. Ledgebrook Condominium Assn., Inc. v. Lusk Corp., [172 Conn. 577, 585, 376 A.2d 60 (1977)]. Although the likely amount of damages need not be determined with mathematical precision . . . the plaintiff bears the burden of presenting evidence [that] affords a reasonable basis for measuring her loss. . . . Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App. 685, 693, 795 A.2d 1274 (2002).” (Emphasis in original; internal quotation marks omitted.) TES Franchising, LLC v. Feld-man, supra, 286 Conn. 145.

We have reviewed the entire record, including the plaintiffs affidavit, which was included with the application for prejudgment remedy. The plaintiff has provided evidence that supports the amount of the attachment. Given our limited scope of review, and the fact that damages in an application for a prejudgment remedy need not be determined with mathematical precision; see Rafferty v. Noto Bros. Construction, LLC, supra, 68 Conn. App. 693; we cannot conclude that the decision of the court to order an attachment in the amount of $54,833.33 constituted clear error. Although the defendant argues that the court did not take into consideration his defenses or counterclaims, there is no evidence in the record to support such a contention. The court clearly articulated the proper standard in its memorandum of decision, including the necessity of taking into consideration the defenses and counterclaims of a defendant. As our Supreme Court explained in TES Franchising, LLC v. Feldman, supra, 286 Conn. 142, “[A]n appellate court is entitled to presume that the trial court acted properly and considered all the evidence. . . . The [trial] court’s role in ... a hearing [on an application for a prejudgment remedy] is to determine probable success by weighing probabilities. . . . [T]his weighing process applies to both legal and factual issues.” (Internal quotation marks omitted.) Id., quoting Doe v. Rapoport, 80 Conn. App. 111, 116-17, 833 A.2d 926 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       The written fee agreement reveals a hybrid fee structure, which provided that the fee was “based on an hourly charge of $225 per hour or [that it was] contingent upon recovery of benefits and shall be ONE-THIRD of the gross judgment or settlement, which ever amount is greater.” In addition, the plaintiff also was required to give the defendant a $5000 retainer.

       The defendant’s disbursement statement, dated December 26, 2006, provided:
      “Gross amount of settlement; (value of real estate $257,000.00) Sale Price: 28 Terra Road, Plainville, CT; $212,500
      Attorney’s Fees according to agreement 1/3 of the gross amount of settlement that is (33.33% of $257,000.00 or $85,665.81) less courtesy of $14,832.48; less $5,000.00 retainer or $65,833.33
      Plainville Probate Court fees in re:
      Estate of Stanislaw Kosiorek (04-0053) $1,004.99
      Net Proceeds from the closing $155,300.82
      Less: $65,833.33
      Less $1,004.99
      Total due estate of Stanislaw Kosiorek $88,462.50
      TOTAL $155,300.82”
      In an “amended” disbursement statement, dated May 7, 2007, the defendant changed his calculations. The May 7, 2007 statement provided:

        “Gross amount of settlement: Sale Price, 28 Terra Road,
      Plainville, CT; $212,500.00
      [Defendant] Attorney’s Fees according to the agreement;
      1/3 of the gross amount of settlement that is (33.33% of $212,500.00 or $70,832.63); less $5,000.00 retainer; plus, $1,000.00 fee to Mr. Jeffrey Luber, expert fee; less courtesy $999.30; total fee due $65,833.33
      Probate Court representation fees, no charge.
      Plainville Probate Court fees in re:
      Estate of Stanislaw Kosiorek (04-0053) $1,004.99
      Net Proceeds from the closing $155,300.82
      Less attorneys fees $65,833.33
      Less probate court fees $1004.99
      Total due estate of Stanislaw Kosiorek $88,462.50
      TOTAL $155,300.82”
      The defendant noted on the amended disbursement statement that he did not charge any fees for probate work.
      The defendant also explained on the amended disbursement statement that the net proceeds from the closing were “obtained after deduction of $42,500.00 gift of equity to Adam Kosiorek [the nephew of the plaintiff, who purchased the home] and after deduction for closing costs and conveyance fee; please con[s]ult the HUD form.”

       We also note that the plaintiff had sought a remedy that included reasonable attorney’s fees and punitive damages, which the court declined to grant, leaving such claims for a trial on the merits.