author: BEACH, J.

text:
    EWAN MARK v. ROBERT NEUNDORF ET AL.
    (AC 33762)
    DiPentima, C. X, and Beach and Alvord, Js.
    Argued September 26, 2013
    officially released January 14, 2014

      John K. Harris, Jr., for the appellant (plaintiff).

      Kathleen M. Cerrone filed a brief for the appellees (defendants).
   Opinion

BEACH, J.

The plaintiff, Ewan Mark, appeals from the trial court’s judgment dismissing his complaint against the defendants, Robert Neundorf, doing business as Go2Guys, and Go2Dump, LLC (Go2Dump). On appeal, the plaintiff claims the court erred in: (1) dismissing his complaint against Go2Dump because it was not a party to the contract between the plaintiff and Neundorf, which contained an alternative dispute resolution clause; and (2) dismissing the plaintiffs complaint against Neundorf, a party to the contract containing the alternative dispute resolution clause, because the imposition of a stay, a less drastic alternative, was available. We reverse the judgment of the trial court.

The following facts, as alleged in the complaint, and procedural history are relevant to this appeal. The plaintiff is the owner of a mobile home situated at 17 Hillside Terrace, Danielson, and resided in the mobile home until February, 2011. At that time, the plaintiffs residence suffered damage due to ice and snow accumulation on its roof.

On February 26, 2011, the plaintiff entered into a contract for repairs to his mobile home. The contract was prepared and signed by Neundorf on behalf of Go2Guys. Section 12 of the contract provides: “If any dispute arises under the terms of this agreement, the parties agree to select a mutually agreeable neutral third party to help them mediate it. If the mediation is deemed unsuccessful, the parties agree that the dispute shall be decided by the applicable small claims court if the amount in dispute is within the court’s jurisdiction, and otherwise by binding arbitration under the rules issued by the American Arbitration Association. The decision of the arbitrator shall be final. Each party shall pay his or her own attorney fees.” (Emphasis added.)

On April 26, 2011, the plaintiff filed a two count complaint against the defendants. Count one, as to Neun-dorf, alleged breach of contract and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Count two, as to Go2Dump, alleged violations of CUTPA. The plaintiff sought monetary damages, costs and fees associated with bringing this action against the defendants, and punitive damages.

On May 26, 2011, the defendants sent to the plaintiff a demand for mediation. The defendants never received a response from the plaintiff.

On June 8, 2011, the defendants filed a motion to dismiss the entire complaint for lack of subject matter jurisdiction. The plaintiff did not file a written objection to the defendants’ motion to dismiss, but his counsel was present at oral argument on the motion. The plaintiffs counsel orally objected to the defendants’ motion to dismiss. The court granted the defendants’ motion to dismiss for lack of subject matter jurisdiction, concluding that the subject contract required mediation or arbitration. This appeal followed.

The plaintiff argues that the trial court erred in: (1) dismissing the plaintiffs complaint against Go2Dump because it was not a party to the contract between the plaintiff and Neundorf that included the alternative dispute resolution clause; and (2) dismissing the plaintiffs complaint against Neundorf, who was a party to the contract that included the alternative dispute resolution clause, because the imposition of a stay, a less drastic alternative, was available. The defendants, in their brief, argue that the trial court properly granted their motion to dismiss for lack of subject matter jurisdiction because section 12 of the contract makes mediation and/or arbitration conditions precedent to litigation, and the plaintiff did not exhaust or even pursue these alternate forms of dispute resolution prior to commencing the action.

“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.” St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). “A motion to dismiss . . . essentially asserts that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.” (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008). Our Supreme Court has “long held that because [a] determination regarding atrial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Id.

Generally, “[w]here a contract contains a stipulation that the decision of arbitrators on certain questions shall be a condition precedent to the right of action on the contract itself, such a stipulation will be enforced and, until arbitration has been pursued or some sufficient reason given for not pursuing it, no action can be brought on the contract. . . . Whether an agreement makes arbitration a condition precedent to an action in court depends on the language of the arbitration clause. While it is true that in the absence of express language a provision for arbitration may be construed, by implication, to be a condition precedent to suit that implication must be so plain that a contrary intention cannot be supposed. It must be a necessary implication. The mere agreement to arbitrate, standing alone, does not give rise to the necessary implication that arbitration is a condition precedent to an action in court. For arbitration to be a condition precedent, the agreement to arbitrate must expressly so stipulate, or it must necessarily be implied from the language used.” (Citation omitted; footnote omitted.) Multi-Service Contractors, Inc. v. Vernon, 181 Conn. 445, 447-48, 435 A.2d 983 (1980).

This court, however, in Catrini v. Erickson, 113 Conn. App. 195, 197, 966 A.2d 275 (2009), recently clarified that even where pursuing arbitration is a condition precedent to litigation, whether by express provision or necessary implication, the court is not without subject matter jurisdiction by virtue of a plaintiffs failure to pursue arbitration. In Catrini, the defendants moved to dismiss the plaintiffs complaint on the ground that the trial court lacked subject matter jurisdiction. The parties had signed a contract providing that the parties would submit any dispute arising from the contract to final and binding arbitration. Id., 196. The trial court granted the defendants’ motion to dismiss, and the plaintiff appealed. Id. On appeal, this court reversed the trial court’s judgment; id.; explaining that “[t]he fact that General Statutes § 52-409 allows a court to enter a stay in a matter involving an arbitration agreement belies the defendants’ claim, and the trial court’s implicit ruling, that an agreement to arbitrate ousts the court of its subject matter jurisdiction. If the existence of an arbitration agreement in a contract implicated the court’s jurisdiction to hear an action, then a court would, accordingly, not have jurisdiction to stay such a matter because, in the absence of jurisdiction, the court may only dismiss a matter. In short, because the power to order a stay implies that the court has jurisdiction over a matter, the legislature could not have empowered the court to enter a stay in such a matter unless the court has jurisdiction over it.” (Footnotes omitted.) Id., 197.

The contract in the present case does not contain a standard arbitration clause. Section 12 of the contract contemplates a two step alternative dispute resolution process that provides for: (1) submission of the dispute to a neutral third-party mediator; and (2) if mediation is unsuccessful, submission of the dispute to small claims court, provided the amount of the claim is within the subject matter jurisdiction of small claims court, or otherwise, submission of the dispute to arbitration. No Connecticut statute expressly authorizes a court to stay judicial proceedings and to compel mediation in accordance with the terms of a mediation or hybrid provision. We conclude, however, that the plaintiffs failure to pursue mediation before commencing the underlying action against the defendants by no means deprived the trial court of subject matter jurisdiction.

First, if agreements to arbitrate do not implicate subject matter jurisdiction, it is difficult to see how agreements to mediate would have such effect. See, e.g., Catrini v. Erickson, supra, 113 Conn. App. 197 (agreements to arbitrate do not defeat court’s subject matter jurisdiction). Second, several Superior Court decisions state the proposition that even where a contract expressly makes mediation a condition precedent to litigation, a party’s failure to pursue mediation before litigation does not deprive the court of subject matter jurisdiction. See, e.g., Leclair v. Scholastic Mortgage, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5009989-S (January 13, 2010) (49 Conn. L. Rptr. 202,205) (denying defendant’s motion to dismiss for lack of subject matter jurisdiction); Cafarelli v. Colon-Collazo, Superior Court, judicial district of Danbury, Docket No. CV-05-5000279-S (June 20, 2006) (41 Conn. L. Rptr. 539, 541) (“Mediation is nonbinding, does not involve a contested hearing, and, in general, does not duplicate proceedings in court. . . . [Although mediation is a condition precedent to court action, the failure of the parties to take advantage of this opportunity does not deprive the court of subject matter jurisdiction.”).

Third, although no Connecticut statute expressly grants the court the authority to stay proceedings and to compel mediation where the parties contractually have agreed to mediate their disputes, the courts nevertheless possess the discretionary authority to do so. See generally Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 701, 556 A.2d 602 (1989) (“[t]he Superior Court’s exercise of its equitable powers in [deciding whether to grant a stay] is in fact much broader” than that expressly conveyed by statute); EJV Development, LLC v. CRC Real Estate Development, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5009105-S (March 12, 2009) (47 Conn. L. Rptr. 365, 365) (“[t]he court has inherent power to stay proceedings before it in the interest of the just resolution of controversies” [internal quotation marks omitted]); 1 Am. Jur. 2d 848, Actions § 68 (2005) (“[e]very court has the authority to stay proceedings before it to insure that justice is done or as an incident of its right to provide for the efficient and economic use of judicial resources” [footnotes omitted]). Section 12 of the contract does not destroy the court’s jurisdiction. Accordingly, we conclude the court improperly granted the defendants’ motion to dismiss for lack of subject matter jurisdiction.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Go2Dump is a Connecticut limited liability company. Hereafter, references to Neundorf include Ms .role in doing business as Go2Guys.

       The plaintiffs complaint alleges that Neundorf breached the contract for repairs to the plaintiffs home by: (1) failing to complete the work; (2) failing to perform the work in a workmanlike manner; (3) failing to perform the work in compliance with applicable building codes; and (4) failing to maintain insurance.
      The plaintiffs complaint further alleges that Neundorf violated CUTPA by: (1) using the fictitious trade name “Go2Guys” and/or “Go2Guys, LLC” without registering that fictitious trade name as required by General Statutes § 35-1; (2) using the home improvement contractor registration number for Go2Dump in violation of the requirements of General Statutes § 20-427; and (3) advertising home improvement and/or repair services without including a valid contractor’s registration number in violation of § 20-427.

       The plaintiffs complaint alleges that Go2Dump violated CUTPA by allowing Neundorf to use the home improvement contractor registration number issued to Go2Dump.
      The defendants, in their brief, argued that the plaintiff waived his right to argue that the trial court improperly dismissed the complaint with respect to Go2Dump because the language in count two that incorporates by reference paragraphs one through three of count one can be read only as making a breach of contract claim against Go2Dump, thereby alleging that Go2Dump signed the contract and is thus subject to the alternative dispute resolution clause contained in the contract. We do not agree that this is the only plausible reading of the language in the plaintiffs complaint; however, we decline to decide the issue because it is extraneous to the resolution of this appeal.

       The submission to mediation states: “The insurance company has provided approximately $35,000.00 in funds to Mr. Mark which [he] has refused to provide to the contractor [Neundorf]. [Neundorf] also claims an additional approximate amount of $12,000.00 due from Mr. Mark.”

       Although the defendant’s motion to dismiss is titled “motion to dismiss” and not “motion to dismiss for lack of subject matter jurisdiction” the only reason for dismissal cited by the defendants in their motion, memorandum of law in support of their motion to dismiss, and at oral argument on their motion, is the trial court’s claimed lack of subject matter jurisdiction. This court has repeatedly stated the proposition that “[i]t is the substance of a motion . . . that governs its outcome, rather than how it is characterized in the title given to it by the movant.” State v. Taylor, 91 Conn. App. 788, 792, 882 A2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005); see Drahan v. Board of Education, 42 Conn. App. 480, 489, 680 A.2d 316 (proposition that motion is to be decided on basis of substance rather than on form or label affixed to motion), cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).

       The trial court did not expressly state that its reason for dismissal was lack of subject matter jurisdiction; rather, the court stated only: “GRANTED. The subject contract requires mediation/binding arbitration.” The court thus seems to have adopted the defendants’ argument, and neither the court nor any of the parties have suggested any other ground for dismissal.

       Section 52-409 provides that: “If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.”

       Although we are not bound by these decisions, we do find the reasoning helpful.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    AMERICAN TAX FUNDING, LLC v. ABRAHAM JOSEPH BASHER ET AL.
    (AC 35340)
    Gruendel, Lavine and Bishop, Js.

      Argued October 30, 2013
    officially released January 14, 2014

      Thomas J. Flanagan, for the appellant (defendant Abraham F. Basher).

      Gary Greene, with whom, on the brief, was Walter M. Spader, Jr., for the appellee (substitute plaintiff).
   Opinion

LAVINE, J.

This appeal from the trial court’s judgment of strict foreclosure concerns the apportionment of moneys paid for past due real property taxes. On appeal, the defendant Abraham F. Basher, claims that the court improperly (1) construed an agreement between the parties and (2) granted summary judgment as to his liability because there was a genuine issue of material fact with regard to the parties’ agreement. We affirm the judgment of the trial court.

The record reveals the following procedural history. On January 3,2008, the plaintiff, American Tax Funding, LLC, commenced a foreclosure action for real property taxes due and owing for 35 Spring Street (property) in the city of Danbury (city). The complaint alleged, in part, that Abraham Joseph Basher and Helen Basher were the owners of the property and that they had failed to pay taxes for the years 2001 through 2005. The complaint contained a count for each year in which taxes had not been paid. The defendant filed an appearance as a self-represented party.

The plaintiff filed a motion for judgment of strict foreclosure. A subsequent hen holder, the defendant, Danbury Hospital, filed a motion for foreclosure by sale. On April 11, 2011, the court ordered a judgment of foreclosure by sale and set the sale date as October 15, 2011.

On October 5, 2011, the plaintiff filed a motion to cite in additional parties, in which it represented that Abraham Joseph Basher and Helen Basher had died in 1993 and 2003 respectively, and that their heirs were necessary parties to the action. On December 2, 2011, the plaintiff filed an amended complaint alleging that the heirs of Abraham Joseph Basher and Helen Basher were the owners of the property and that they owed the city taxes that had been assessed for the years 2001 through 2005. Counsel appeared for the defendant and filed an answer. Thereafter, court granted the plaintiffs motion to open the judgment of foreclosure by sale.

On July 20, 2012, the plaintiff filed a motion for summary judgment as to liability pursuant to Practice Book § 10-70. hi its memorandum of law, the plaintiff represented that there were no genuine issues as to any material fact as it had proved ownership of the property at the time the taxes were assessed, that the city properly had assigned the tax liens to the plaintiff, that certificates of the continuing liens properly were filed, and that other encumbrances on the property were alleged in the complaint. The plaintiff claimed that it was entitled to summary judgment as to liability.

The defendant objected to the plaintiffs motion for summary judgment claiming that he had paid at least a portion of each of the tax hens purchased by the plaintiff. In his affidavit opposing summary judgment, he attested that he had paid more than $12,500 for taxes due and owing and that he understood, and that it was his intention, that the moneys he paid would be applied proportionately to all of the liens. He contended that Practice Book § 10-70 provides that “in any action to foreclose a municipal tax . . . hen the plaintiff need . . . allege and prove . . . that no part of [the assessed tax] has been paid,” and that he paid moneys toward the satisfaction of all of the hens sought to be foreclosed. He argued that because the parties disagree as to the apphcation of the moneys he paid, there was a genuine issue of material fact and summary judgment should not be granted.

The plaintiff rephed to the defendant’s objection, arguing that the defendant had misconstrued the language of Practice Book § 10-70. The plaintiff represented that the defendant had paid $12,549, which the plaintiff apphed to the 2001 and 2002 hens and a portion of the 2003 hen as provided by General Statutes § 12-144b. The plaintiff argued that the defendant’s intention as to the apportionment of the moneys paid violated § 12-144b and that taxes remained due and owing for 2003,2004, and 2005. It further argued that its apportionment of moneys paid raised a question of law, not fact, and that summary judgment should be granted in its favor.

On November 7,2012, the court issued a written order denying in part and granting in part the plaintiffs motion for summary judgment. The court found that the defendant had conceded that taxes were owed the city, but that he believed that the payments he made would be applied in equal portions to each year’s deficiency. The defendant had provided no document to support his belief. The court quoted language from § 12-144b that provides “[e]ach tax payment made to a municipality for taxes due on any specific property shall be applied by the municipality toward payment of the oldest outstanding tax levied on such property with the interest thereon . . . .” The court also found that the tax hens on the property for 2001 and 2002 were satisfied, and denied the motion for summary judgment as to counts one and two of the amended complaint. The court denied summary judgment as to count three, which pertained to 2003, finding that there was a genuine issue of fact pertaining to the payment of the taxes owed for that year. The court found that there was no factual dispute that that the tax hens for 2004 and 2005 had not been paid. The court, therefore, granted summary judgment as to liability with respect to counts four and five of the amended complaint. Thereafter, the plaintiff withdrew counts one through three and, on December 19, 2012, filed a motion for strict foreclosure on the basis of the remaining counts. The court granted the motion for strict foreclosure on January 7, 2013, and rendered judgment thereon. The defendant appealed.

On appeal, the defendant claims that the court improperly granted the plaintiffs motion for summary judgment as to liability with respect to counts four and five of the amended complaint because the court misconstrued the parties’ agreement. We disagree.

Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citation omitted; internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996).

An appellate court’s review of a trial court’s decision to grant a party’s motion for summary judgment is plenary. See Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006).

On the basis of our review of the record and the trial court’s order granting the plaintiffs motion for summary judgment as to liability with regard to counts four and five of the amended complaint, we conclude that the court properly determined that there was no genuine issue of material fact. The defendant conceded that he was the owner of the property and that there were taxes due as alleged in the amended complaint. He, however, disputed the manner in which the plaintiff apportioned the moneys he had paid. He claims, therefore, that he had raised a genuine issue of fact sufficient to deny the plaintiffs motion for summary judgment. We disagree that the defendant’s affidavit provided a sufficient evidentiary basis on which to deny summary judgment. The defendant relied on his understanding of an agreement he supposedly had with the plaintiff. He provided no evidence, however, supporting his position beyond an averment as to his belief and his intention.

“While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Citation omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998). “[W]ith respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.” Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1999). The court, therefore, properly granted the plaintiffs motion for summary judgment as to the defendant’s liability.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       When the action was commenced, Abraham Joseph Basher, Helen Basher, the City of Danbury, Danbury Hospital, John Doe, and Jane Doe were named as defendants. They are not parties to this appeal. In this opinion, we refer to Abraham F. Basher, who was cited in, as the defendant.

       Pursuant to General Statutes § 12-195h, the city previously had assigned the five liens on the property to American Tax Funding, LLC. During the course of the proceedings, American Tax Funding, LLC, assigned the liens to ATFH Real Property, LLC, which was substituted as the party plaintiff. Immediately prior to argument before this court, the liens were assigned to VMF TL1, LLC, which was substituted as the party plaintiff.

       John Doe and Jane Doe were served at the property.

       Practice Book § 10-70 (a) provides in relevant part: “In any action to foreclose a municipal tax . . . lien the plaintiff need only allege and prove: (1) the ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made; (2) that thereafter a tax in the amount specific in the list, or such assessment in the amount made, was duly and properly assessed upon the property and became due and payable; (3) . . . that thereafter a certificate of lien for the amount thereof was duly and properly filed and recorded in the land records of the said town on the date stated; (4) that no part of the same has been paid; and (5) other encumbrances as required . . . .”

       The defendant averred, in part, as follows in his affidavit in opposition to summary judgment:
      “2. Subsequent to the commencement of this action, I entered into an agreement with the Plaintiff to pay the monies due under the tax liens that had been sold to the Plaintiff by the City of Danbury.
      “3. Pursuant to that agreement, I have paid the Plaintiff more than $12,500.
      “4. It was my understanding and intention that the monies would be applied to all the liens that had been purchased by the Plaintiff.”
      The affidavit does not refer to a written manifestation of the agreement, and the record contains none.

       General Statutes § 12-144b provides: “Each tax payment made to a municipality for taxes due on any specific property shall be applied by the municipality toward payment of the oldest outstanding tax levied on such property with the interest thereon; provided, if there is litigation pending between the municipality and the party liable for the oldest outstanding tax on such property concerning such oldest outstanding tax, such tax payment shall only be applied to the oldest outstanding tax on such property which is not involved in such litigation, provided this section shall not apply to tax payments tendered by third parties pursuant to contract or by operation of law.”

       The defendant has argued on appeal that the plaintiff was not bound by § 12-144b because it is not a municipality. We need not decide that question, as the defendant failed to demonstrate that he and the plaintiff had an agreement that the moneys he paid would be apportioned equally to all of the tax liens.


author: PER CURIAM.

text:
    FRANCISCO LINARTE v. COMMISSIONER OF CORRECTION
    (AC 33398)
    DiPentima, C. J., and Gruendel and Laveiy, Js.

      Argued November 20, 2013
    officially released January 14, 2014

      Michael Stone, assigned counsel, for the appellant (petitioner).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Marcia Pillsbury, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Francisco Linarte, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) abused its discretion in denying certification to appeal and (2) improperly discredited the testimony of the petitioner’s expert witness. We conclude that the court properly denied certification to appeal, and, therefore, dismiss this appeal.

The following factual and procedural history is relevant to our discussion. A jury found the petitioner guilty of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and five counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The court rendered judgment in accordance with the jury’s verdict and sentenced the petitioner to a total effective sentence of forty years incarceration, execution suspended after twenty years, and thirty five years probation. The petitioner unsuccessfully appealed his conviction. See State v. Linarte, 107 Conn. App. 93, 944 A.2d 369, cert. denied, 289 Conn. 901, 957 A.2d 873 (2008).

On June 2, 2009, the petitioner filed an amended petition for a writ of habeas corpus. In his five count petition, the petitioner alleged (1) ineffective assistance of his criminal trial counsel, (2) ineffective assistance of his appellate counsel, (3) prosecutorial misconduct, (4) cumulative error of his criminal trial counsel, the prosecutor and the trial judge, and (5) actual innocence. On July 1, 2010, following a four day proceeding, the habeas court issued an oral decision denying the petition for a writ of habeas corpus. The court subsequently denied the petitioner’s petition for certification to appeal the denial of his petition for a writ of habeas corpus. This appeal followed.

On appeal, the petitioner claims that the habeas court abused its discretion in denying certification to appeal from the denial of his petition for a writ of habeas corpus and that the habeas court improperly discredited the testimony of David Mantell, the petitioner’s expert witness. We are not persuaded.

“The standard of review and the hurdles a petitioner must overcome to obtain appellate review of a habeas court’s denial of a petition for a writ of habeas corpus after certification to appeal has been denied are well known. ... In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615-16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. ... In determining whether the habeas court abused its discretion [a reviewing court] necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 146 Conn. App. 499, 513-14, 79 A.3d 77 (2013); see also Spyke v. Commissioner of Correction 145 Conn. App. 419, 423, 75 A.3d 738, cert. denied, 310 Conn. 932, 78 A.3d 858 (2013).

In its memorandum of decision, the habeas court expressly discredited the testimony of the petitioner’s expert witness, Mantell, a clinical psychologist. On appeal, the petitioner asks this court to reject that determination by the habeas court. We decline his invitation to do so. “As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005); see also Coward v. Commissioner of Correction, 143 Conn. App. 789, 803, 70 A.3d 1152 (habeas judge, as trier of fact, assesses credibility of witnesses and appellate court does not review that determination), cert. denied, 310 Conn. 905, 75 A.3d 32 (2013); Corbett v. Commissioner of Correction, 133 Conn. App. 310, 316-17, 34 A.3d 1046 (2012) (same).

Indeed, this court has most recently stated: “As an appellate court, we do not reevaluate the credibility of testimony .... Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . We are not persuaded that the court’s determination in this regard is debatable among jurists of reason, that a court could resolve the issue differently, or that it deserves encouragement to proceed further. . . . Therefore, the habeas court did not abuse its discretion by denying the petition for certification to appeal as to this issue.” (Citations omitted; internal quotation marks omitted.) Gonzales v. Commissioner of Correction, 145 Conn. App. 28, 32, 74 A.3d 509, cert. denied, 310 Conn. 929, 78 A.3d 145 (2013). We similarly conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal the denial of the amended petition for a writ of habeas corpus.

The appeal is dismissed.

       The habeas court determined that the petitioner failed to prove that his criminal trial counsel, Attorney Michael Sherman, provided ineffective assistance and that there was insufficient evidence of prejudice. See, e.g., Spyke v. Commissioner of Correction, 145 Conn. App. 419, 424, 75 A.3d 738 (“[T]he proper standard for attorney performance is that of reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland .... 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 [ajmendment. ... 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.” [Internal quotation marks omitted.]), cert. denied, 310 Conn. 932, 78 A.3d 858 (2013).

       The petitioner’s claim on appeal is limited to the actions of his criminal trial counsel, Attorney Michael Sherman.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. KOIL D. HOLDER
    (AC 34983)
    DiPentima, C. J., and Robinson and Mihalakos, Js.

      Argued November 13, 2013
    officially released January 14, 2014

      W. Theodore Koch III, assigned counsel, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Mary Jean Kanabis, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DiPENTIMA, C. J.

The defendant, Koil D. Holder, appeals from the judgment of the trial court finding him in violation of his conditional discharge under General Statutes § 53a-32. On appeal, the defendant claims that the court permitted him to represent himself without conducting a proper canvass. We dismiss the appeal as moot.

The following facts and procedural history are relevant to our discussion. On April 19, 2011, the defendant was convicted of threatening in the second degree in violation of General Statutes § 53a-62, and was sentenced to one year incarceration, execution suspended, followed by one year conditional discharge. On February 21, 2012, the defendant was arrested and charged with violation of conditional discharge under § 53a-32. A hearing was held, and during the adjudicatory phase, the defendant was not represented by counsel. The state concedes that the court did not conduct a proper canvass before it allowed the defendant to represent himself. During the dispositional phase, however, the defendant was represented by counsel. Having found that the defendant violated his conditional discharge, the court sentenced him to one year incarceration. This appeal followed.

While this appeal was pending, the defendant pleaded guilty, pursuant to the Alford doctrine, to criminal violation of a standing criminal protective order under General Statutes § 53a-223a. The conduct underlying the plea was the same conduct that served as the factual basis for the charge of violation of conditional discharge.

On appeal, the defendant claims that the court failed to comply with Practice Book § 44-3, and therefore, did not find a voluntary and knowing waiver of his right to counsel during the adjudicatory phase of the hearing. We do not reach this claim, for there is a threshold issue raised by the state that is dispositive of the appeal. Specifically, the state argues that because the defendant pleaded guilty to the conduct underlying the charge of violation of conditional discharge, his claim is moot. The defendant responds that his claim is not moot because it is of constitutional magnitude. We agree with the state.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction .... We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . .

“The mootness doctrine is rooted in the first factor of the Nardini test. ... It is founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue. . . . [T]he standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Indeed, we note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . .

“[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008).

The question asked in this appeal has been answered by our Supreme Court. In State v. McElveen, 261 Conn. 198, 218, 802 A.2d 74 (2002), the court stated: “[T]he defendant is seeking review of the trial court’s determination that he violated probation by virtue of his criminal conduct on August 26, 1998. By admitting to that very conduct by virtue of his guilty plea and the resultant judgment of conviction of attempted robbery in the third degree . . . the defendant has eliminated the controversy before the court. Accordingly, this appeal is moot.” (Citation omitted.) The holding in McElveen was reiterated in State v. Singleton, 274 Conn. 426, 439, 876 A.2d 1 (2005): “Where, subsequent to a finding of violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of probation, his appeal from that judgment of violation of probation is rendered moot because there is no longer any live controversy about whether he engaged in the conduct for which his probation was violated.”

Both McElveen and Singleton involved, as the defendant points out, challenges to findings of violation of probation on insufficiency of evidence grounds and not constitutional grounds. We see nothing in the language of either case to limit their holdings to challenges of insufficiency of evidence. Furthermore, the defendant has provided no authority to support a different interpretation. A fair reading of McElveen and Singleton reveals that the focus of inquiry is not on the type of challenge raised but on the underlying conduct later admitted. See State v. McElveen, supra, 261 Conn. 218; State v. Singleton, supra, 274 Conn. 439. Thus, the defendant’s conviction for the same conduct that served as the factual basis for his charge of violation of conditional discharge ended the five controversy. Accordingly, we do not reach the merits of his claim and conclude that this appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrinéis a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Pentland, 296 Conn. 305, 308 n.3, 994 A.2d 147 (2010).

       The defendant did not appeal this conviction, and the time for filing an appeal has expired.

       We recognize that McElveen and Singleton arose from violations of probation and not, as in this case, a violation of conditional discharge. For purposes of this appeal, this is a distinction without a material difference.


text:
    IAN WRIGHT v. COMMISSIONER OF CORRECTION
    (AC 34562)
    Gruendel, Lavine and Bishop, Js.
    Argued October 30, 2013
    officially released January 14, 2014

      Ian Wright, self-represented, the appellant (petitioner).

      Adam E. Mattei, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Craig P. Nowak, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ian Wright, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court, Newson, J., denying his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred by dismissing counts two and three of his petition for a writ of habeas corpus. We dismiss the appeal.

The following factual and procedural history, as set out by this court in the petitioner’s appeal from the 2006 denial of his petition for a writ of habeas corpus, is relevant to the resolution of the petitioner’s claim. “The petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a, as enhanced by General Statutes § 53-202k, and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. He was sentenced to a total effective term of thirty-five years incarceration. His conviction was affirmed on direct appeal. . . . Thereafter, the petitioner filed a petition for a writ of habeas coipus, in which he alleged that he was deprived of the effective representation of trial and appellate counsel as guaranteed by the sixth amendment to the United States constitution. The petition came before the habeas court [Fuger, J.] on April 5 and May 3, 2006. After admitting various documents into evidence . . . the court denied the petition. . . . The court granted the petition for certification to appeal to this court on July 28, 2006.” (Citation omitted.) This court affirmed the judgment of the habeas court in Wright v. Commissioner of Correction, 106 Conn. App. 342, 343-44, 942 A.2d 438, cert. denied, 289 Conn. 901, 957 A.2d 875 (2008).

The petitioner thereafter filed two petitions for a writ of habeas corpus, which the court consolidated. The petitioner then filed a four count amended petition, which is the subject of the present appeal. In this petition, the petitioner alleged, in count one, the ineffective assistance of habeas counsel in the first habeas proceeding; in count two, the ineffective assistance of trial counsel in the underlying criminal trial; in count three, the ineffective assistance of appellate counsel in the direct appeal from the underlying criminal conviction; and, finally, in count four, the ineffective assistance of appellate counsel in the first habeas proceeding. In his return, the respondent, the Commissioner of Correction, alleged, as a special defense, that counts two and three of the consolidated petition were successive on the ground that the petitioner had made the same claims in the first petition. On January 20, 2012, Judge Newson rendered partial judgment, dismissing counts two and three of the amended petition as successive pursuant to Practice Book § 23-29 (3). Thereafter, the petitioner filed a motion to reconsider, arguing that his claims were never adjudicated in his first habeas petition and that he required a ruling on those claims in order to meet the state court exhaustion requirements of federal habeas corpus jurisdiction.

In February, 2012, trial took place on counts one and four of the amended petition. During the hearing, the petitioner addressed his motion to reconsider in which he argued that counts two and three of his petition had not been adjudicated on the merits by Judge Fuger in conjunction with the first petition and, therefore, he was entitled to an evidentiary hearing on the merits of those claims. He argued, accordingly, that the claims made against his criminal trial and appellate attorneys in his first petition and repeated in this consolidated and amended petition were not successive because his “previous habeas corpus attorney didn’t claim constitutional violations” and that he was now asserting fifth, sixth, and fourteenth amendment violations that had not previously been made in regard to these counts. Unpersuaded, Judge Newson found that Judge Fuger had adjudicated the claims of ineffective assistance of trial and appellate counsel and, accordingly, Judge New-son reaffirmed his dismissal of counts two and three. The hearing proceeded on counts one and four. On February 24, 2012, the court issued its judgment orally, concluding that the petitioner had failed to prove ineffective assistance of either habeas trial counsel or habeas appellate counsel. Accordingly, the court denied the petition. The petitioner timely filed for certification to appeal, which the habeas court denied. This appeal followed.

The petitioner claims that Judge Newson abused his discretion when he denied the petition for certification to appeal and, specifically, that he erred in dismissing counts two and three of his amended petition as successive. We are not persuaded.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Internal quotation marks omitted.) Jefferson v. Commissioner of Correction, 99 Conn. App. 321, 324-25, 913 A.2d 491 (2007).

As noted, Judge Newson dismissed counts two and three pursuant to Practice Book § 23-29, which provides in relevant part: “The judicial authority may, at anytime, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .”

“Our Supreme Court has stated that [i]n our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron v. Warden, [180 Conn. 153, 158, 429 A.2d 841 (1980)], we observed that, pursuant to Practice Book [§ 23-29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. ... In this context, a ground has been defined as sufficient legal basis for granting the relief sought. . . .

“[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief. . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn. App. 300, 305-306, 950 A.2d 619 (2008).

We agree with the court’s conclusion that counts two and three of the amended habeas petition were successive. Count two alleges the ineffective assistance of trial counsel while count three alleges the ineffective assistance of appellate counsel. These claims are nearly identical to claims alleged in counts one and two of the petitioner’s first petition, dated January 24, 2006. Although the petitioner asserts that counts two and three of the amended petition differ because he now claims constitutional violations for the first time, this is inaccurate because, in both counts one and two of the first petition, he argued that he was denied the effective assistance of counsel in violation of the sixth and fourteenth amendments. In addition, the prayer for relief in both petitions is identical. The court thus properly dismissed counts two and three of the petitioner’s amended petition as successive.

The petitioner also argues that the second habeas court erred in dismissing both counts without conducting an evidentiary hearing. If the court had done so, the petitioner asserts, it would have concluded that Judge Fuger did not adjudicate either count on the merits and that, therefore, the claims cannot be successive. Contrary to the petitioner’s argument, the record shows that Judge Newson gave the petitioner ample opportunity to present evidence, which the petitioner did not do. Additionally, the petitioner’s contention that Judge Fuger did not adjudicate the petition on the merits is incorrect. Indeed, the record reflects that the court’s disposition of the petitioner’s first petition for a writ of habeas corpus constituted a judgment on the merits of the petitioner’s ineffective assistance of counsel claims. On the basis of our review of the record, we conclude that Judge Newson did not abuse his discretion in his disposition of this habeas action.

The appeal is dismissed.

       The petitioner filed his second petition for a writ of habeas corpus in Wright v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-06-4001430-S. The petitioner also filed a third petition for a writ of habeas corpus in Wright v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-400-3354-S.

       Section 2254 (b) (1) of title 28 of the United States Code provides in relevant part: “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—(A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”

       In counts one and four of his amended petition, the petitioner alleged that habeas trial counsel and habeas appellate counsel rendered ineffective assistance. The petitioner has not appealed from the court’s judgment dismissing those counts and, therefore, we need not address counts one and four of his amended petition on appeal.

       The allegations of ineffective assistance of trial counsel and appellate counsel made in the present petition were also alleged in the petitioner’s first petition.


text:
    JODI BAKER-GRENIER v. DANIEL GRENIER
    (AC 34992)
    Gruendel, Lavine and Alvord, Js.
    Submitted on briefs December 3, 2013
    officially released January 14, 2014

      James F. Cirillo, Jr., filed a brief for the appellant (plaintiff).

      Richard W. Callahan, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Jodi Baker-Grenier, appeals from the judgment of the trial court granting the motion to modify custody and visitation filed by the defendant, Daniel Grenier II. On appeal, the plaintiff claims that the court abused its discretion by finding that (1) there had been a substantial change in circumstances to warrant modification of the existing custody and visitation orders, and (2) modification of the custody and visitation orders was in the best interests of the child. We affirm the judgment of the trial court.

In adjudicating the defendant’s postjudgment motion to modify custody, the court, Hon. James G. Kenefick, Jr., judge trial referee, made the following relevant findings of fact. The parties intermarried on February 23, 2005, and are the parents of one child, Anthony, bom on June 26, 1998. The court, Swienton, J., rendered judgment dissolving the parties’ marriage on March 31, 2009. The judgment of dissolution incorporated the parties’ agreement that they would share legal and physical custody of their child and that the defendant would provide the child with support. On April 15, 2011, the defendant filed the present motion to modify custody seeking physical custody of the child with reasonable rights of visitation in the plaintiff. The defendant also filed a motion for a guardian ad litem for the child. The court, Gould, J., appointed a guardian ad litem who filed a motion to have the matter referred to the Family Relations Office of the Court Support Services Division of the Judicial Branch for a comprehensive evaluation. The court, Abery-Wetstone, J, granted the motion for an evaluation. The defendant subsequently filed a motion to modify custody seeking sole legal custody of the child, which was denied.

Judge Kenefick held a hearing on the April 15, 2011 motion to modify over several days in the summer of 2012. On the basis of his evaluation, the family relations officer, Brendan Holt, recommended that the parties continue to share joint legal custody with the defendant having primary physical custody and final decision-making authority. The guardian ad litem testified, however, that the plaintiff “harbors too much anger . . . which affects her dealings with” the defendant.

On the basis of the evidence adduced at the hearing on the motion and the demeanor and credibility of the parties, the court found that it was in the best interests of the child to reside with the defendant. In its August 9, 2012 memorandum of decision, the court ordered that the parties share joint legal custody of the child with the defendant having final decision-making authority as to the child. It also issued orders regarding a parenting plan, decision-making responsibilities, miscellaneous parenting plan provisions, child support, the guardian ad litem’s fees and costs, and further proceedings. Thereafter, the plaintiff appealed.

“Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion. . . . [I]n a dissolution proceeding the trial court’s decision on the matter of custody is committed to the exercise of its sound discretion and its decision cannot be overridden unless an abuse of that discretion is clear. . . . The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. ... In determining what is in the best interests of the child, the court is vested with a broad discretion. . . . [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . .

“The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant. . . . [E]very reasonable presumption should be given in favor of the correctness of [the trial court’s] action. . . . We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence.” (Citations omitted; internal quotation marks omitted.) Ford v. Ford, 68 Conn. App. 173, 187-88, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002).

On the basis of our review of the record, the court’s memorandum of decision, its orders, and the briefs and arguments of the parties, we conclude that the court acted well within its discretion when it granted the defendant’s motion to modify custody. The court’s exercise of its discretion is supported by the evidence.

The judgment is affirmed.

       The guardian ad litem for the parties’ minor child adopted the legal arguments made in the defendant’s appellate brief and requested that the judgment of the trial court be affirmed.

       “[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child ... or a finding that the custody order sought to be modified was not based upon the bests interests of the child.” (Internal quotation marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 55, 732 A.2d 808 (1999).
      In his appellate brief, the defendant contends that we should not review this claim as the plaintiff herself filed a motion for modification seeking a decrease in the defendant’s visitation rights and granting her physical custody and final decision-making responsibility on the basis of a substantial change of circumstances. We agree.
      By filing the standard motion for modification form, the plaintiff in essence admitted that there has been a substantial change in circumstances. “Actions that are induced by a party ordinarily cannot be grounds for error [on appeal].” (Lntemal quotation marks omitted.) Martin v. Martin, 101 Conn. App. 106, 120 n.7, 920 A.2d 340 (2007).

       The plaintiff represented herself at the hearing.


text:
    TROY LITTLE v. COMMISSIONER OF CORRECTION
    (AC 33910)
    Gruendel, Lavme and Sheldon, Js.
    Argued December 5, 2013
    officially released January 14, 2014

      Justin R. Clark, assigned counsel, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Troy Little, appeals following the denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. He claims that the habeas court abused its discretion when it denied his petition for certification to appeal and improperly concluded that he had not established that his trial and appellate counsel rendered ineffective assistance. We dismiss the appeal.

The petitioner was involved in a shooting incident in New Haven on August 16, 2000, that resulted in the death of Kishawn Council. See State v. Little, 88 Conn. App. 708, 710-11, 870 A.2d 1170, cert. denied, 274 Conn. 916, 879 A.2d 895 (2005). His arrest and a jury trial followed, at the conclusion of which the petitioner was found guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The trial court rendered judgment accordingly and sentenced the petitioner to a total effective term of thirty-two years incarceration. This court affirmed that judgment of conviction on direct appeal. Id., 720.

In December, 2010, the petitioner filed an amended petition for a writ of habeas coxpus alleging ineffective assistance of his trial and appellate counsel. In that petition, he averred that trial counsel failed (1) to communicate to him a plea bargain offer made by the state, (2) to examine a key witness properly, and (3) to request “any language to balance” the court’s jury charge on consciousness of guilt. He further alleged that his appellate counsel failed to address the consciousness of guilt charge adequately in the direct appeal. Following a trial, the habeas court rejected those claims and denied the petition. The petitioner then filed a petition for certification to appeal to this court, which the habeas court denied.

The habeas court’s denial of the petition for a writ of habeas coxpus was predicated on a factual review of the petitioner’s claims that he was denied the effective assistance of trial and appellate counsel, and a determination that the petitioner had failed to rebut the strong presumption that his counsels’ “conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). In a thoughtful and comprehensive memorandum of decision, the habeas coxxrt analyzed the petitioner’s claims and the law applicable thereto. Because the court’s memorandum of decision fully addresses the issues raised in this appeal, we adopt it as a proper statement of the facts and the applicable law. See Little v. Warden, 53 Conn. Supp. 236, 88 A.3d 621 (2011). It would serve no useful purpose for us to repeat the discussion contained therein. See Talton v. Commissioner of Correction, 84 Conn. App. 608, 609, 854 A.2d 764, cert. denied, 271 Conn. 930, 859 A.2d 585 (2004).

To prevail in this appeal, the petitioner must, as a threshold matter, demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different maimer]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis omitted; internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). We conclude that the petitioner has not met that substantial burden. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 616.

The appeal is dismissed.