author: PER CURIAM.

text:
    ANNE M. AMATO v. THE HEARST CORPORATION
    (AC 35803)
    Gruendel, Alvord and Bear, Js.

      Argued February 21—
    officially released April 29, 2014

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

      Aryn J. Sobo, pro hac vice, with whom were Tal A. Kadar and, on the brief, A. Robert Fischer, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Anne M. Amato, appeals from the judgment of the trial court rendered in favor of the defendant, The Hearst Corporation, following the granting of the defendant’s motion to strike her complaint. The complaint alleged that the defendant discriminated against the plaintiff on the basis of age, in violation of General Statutes § 46a-60 of the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq. On appeal, the plaintiff claims that the court improperly (1) concluded that it was bound by federal precedent in interpreting the provisions of the act, and (2) struck the complaint because she had alleged a valid cause of action. We affirm the judgment of the trial court.

The following procedural history and facts, as alleged in the complaint, are relevant to our resolution of the issues on appeal. The plaintiff was bom in 1948 and had worked at The Connecticut Post, a newspaper then owned by the defendant, for more than twenty years. She had been employed by the defendant for ten years, most recently as a senior reporter covering the valley area of the state. The plaintiffs job evaluations consistently characterized her performance as satisfactory or better than satisfactory.

On October 7,2011, the defendant informed the plaintiff that she “had been placed on a Performance Improvement Plan subjecting her to termination on December 7, 2011.” It is also alleged in the complaint that between October 7, and December 31, 2011, three additional senior reporters with outstanding employment records and twenty or more years of service received similar threats of termination. The defendant, by this conduct, was attempting to remove the older employees from its workforce without regard for their skill or performance history. In response to the defendant’s actions, the plaintiff filed a complaint of age discrimination with the Connecticut Commission on Human Rights and Opportunities (commission) on December 1, 2011. After the complaint had been filed with the commission, the defendant ended or suspended its actions against older employees, and neither the plaintiff nor any of the three other senior reporters were terminated from employment.

On September 7, 2012, the plaintiff commenced this age discrimination action against the defendant, alleging that its conduct “placed the plaintiff in great fear of losing her employment and caused her to suffer severe emotional distress.” On November 8, 2012, the defendant filed a motion to strike the plaintiffs complaint in its entirety for its failure to state a claim upon which relief could be granted. The court heard argument on March 18, 2013, and granted the defendant’s motion in a memorandum of decision issued on May 8, 2013. In the court’s decision, it concluded that the plaintiff failed to allege that she suffered an adverse employment action as a result of being placed on a performance improvement plan and, accordingly, failed to plead the elements of a prima facie case of age discrimination. The plaintiff did not file a new pleading; see Practice Book § 10-44; and the court rendered judgment in favor of the defendant. This appeal followed.

The standard of review in an appeal from the granting of a motion to strike is well established. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling . . . is plenary. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. ... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Citations omitted; internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn. App. 512, 516, 2 A.3d 942 (2010).

I

The plaintiffs first claim is that the trial court “erred in holding that it is bound by federal case law in interpreting the [act].” The plaintiff argues that the court improperly relied on federal cases in determining whether being placed on a performance improvement plan constituted an adverse employment action. Acknowledging that there is no Connecticut appellate case law on this precise issue, the plaintiff claims that the court was “not locked into interpretations by lower federal appellate courts of different, albeit similarly worded, federal statutes when defining for the first time the meaning of [the act].”

We first note that the court did not state that it was bound by federal case law in reaching its determination as to the meaning of the term “adverse employment action.” The court, quoting from our Supreme Court’s decision in Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d 1013 (2012), stated that “Connecticut anti-discrimination statutes should be interpreted in accordance with federal antidiscrimination laws.” (Internal quotation marks omitted.) The court accurately quoted from Patino, and there is no indication in its decision that the court felt constrained to follow federal precedent in this case. It is apparent from the decision that the court was guided by federal case law in reaching its conclusion that the placement of the plaintiff on a performance improvement plan did not constitute an adverse employment action under the circumstances alleged in the complaint, and we conclude that it was appropriate that the court followed federal precedent.

“In interpreting our antidiscrimination and antiretali-ation statutes, we look to federal law for guidance. In drafting and modifying the Connecticut Fair Employment Practices Act . . . our legislature modeled that act on its federal counterpart, Title VII [of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.] . . . and has sought to keep our state law consistent with federal law in this area. ” (Internal quotation marks omitted.) Eagen v. Commission on Human Rights & Opportunities, 136 Conn. App. 563, 579, 42 A.3d 478 (2012).

In order to prevail on a claim of age discrimination based on disparate treatment, the plaintiff first must establish a prima facie case of discrimination. “To establish a prima facie case of discrimination, the complainant must demonstrate that (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action-, and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination. . . . The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiffs favor.” (Citation omitted; emphasis added; internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn. App. 188, 220, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).

In the present case, the court determined that the plaintiff failed to plead the elements of a prima facie case because she failed to allege that she suffered any adverse employment action as a result of being placed on a performance improvement plan. In reaching that conclusion, the court looked to federal court decisions that have considered whether a particular action or conduct by an employer would constitute an adverse employment action. “A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. ... To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” (Citation omitted; internal quotation marks omitted.) Brown v. American Golf Corp., 99 Fed. Appx. 341, 343 (2d Cir. 2004). “[A]n adverse employment action [has been defined] as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” (Internal quotation marks omitted.) Reynolds v. Dept. of the Army, 439 Fed. Appx. 150, 153 (3d Cir. 2011).

Referencing Brown and Reynolds in its decision, the trial court determined that placement of an employee on a performance improvement plan in and of itself would not constitute an adverse employment action as that term is defined in federal case law. We conclude that the court’s decision to follow the federal courts’ interpretation in this case was not improper because, as previously discussed, Connecticut case law clearly provides that our courts may look to federal court precedent for guidance in enforcing Connecticut’s antidis-crimination statutes. See, e.g., Patino v. Birken Mfg. Co., supra, 304 Conn. 689; Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998); Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996); State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989); Eagen v. Commission on Human Rights & Opportunities, supra, 135 Conn. App. 579. Accordingly, the plaintiffs first claim fails.

II

The plaintiffs next claim is that, even applying federal law to the facts alleged in this case, her complaint states a valid cause of action for age discrimination. The plaintiff focuses on the following allegations in her complaint: (1) she was placed on a performance improvement plan; (2) she was told she was subject to termination on a specific date; (3) the defendant had established a pattern of terminating or threatening to terminate its older employees; and (4) the defendant’s conduct placed her in fear of losing her employment and caused her to suffer emotional distress. She argues that those allegations, collectively, were sufficient to state a claim for age discrimination. We disagree.

As discussed by the court in its memorandum of decision, the federal cases of Reynolds and Brown specifically addressed performance improvement plans in the context of age discrimination claims. In Reynolds, the United States Court of Appeals for the Third Circuit, in agreeing with other federal circuit courts, concluded that being placed on a performance improvement plan is not an adverse employment action absent accompanying changes to pay, benefits or employment status. Reynolds v. Dept. of the Army, supra, 439 Fed. Appx. 153-54. In reaching that conclusion, the court in Reynolds reasoned: “[Performance improvement plans] are typically comprised of directives relating to an employee’s preexisting responsibilities. In other words, far from working a change in employment status, a [performance improvement plan] is a method of conveying to an employee the ways in which that employee can better perform the duties that he or she already has.” Id., 153. The plaintiffs claim in Reynolds failed because he did not demonstrate that his performance improvement plan was accompanied by an adverse change in the conditions or terms of his employment. Id.

Here, the trial court reasonably could have found that the holdings in the federal cases, which addressed the precise issue in this case, were persuasive. In reviewing the allegations in the plaintiffs complaint, the court correctly determined that she failed to allege any adverse material changes in the terms or conditions of her employment as a result of being placed on the performance improvement plan. She did not allege that her salary decreased or that she had fewer benefits or that her employment status changed. Although she argues that she was given a specific termination date, she acknowledged that she was not discharged from employment. In the absence of such allegations, the plaintiff failed to allege an adverse employment action and, accordingly, failed to plead all of the requisite elements of a prima facie case of age discrimination.

The judgment is affirmed.

       The commission issued a release of jurisdiction on June 26, 2012.

       General Statutes § 46a-60 (a) (1) provides in relevant part: “It shall be a discriminatory practice . . . [f]or an employer . . . except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s . . . age . . . .”
      The relevant federal provision in the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., provides in relevant part: “It shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age . . . .” 29 U.S.C. § 623 (a) (1) (2012).

       Connecticut courts are not bound by federal law regarding discriminatory employment practices when interpreting Connecticut’s antidiscrimination statutes. State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989); Vollemans v. Wallingford, 103 Conn. App. 188, 199-200, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).

       Title VII claims and Age Discrimination in Employment Act claims are analyzed under the same framework. See Scaria v. Rubin, 117 F.3d 652, 653 (2d Cir. 1997).

       “[Disparate treatment simply refers to those cases where certain individuals are treated differently than others. . . . The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status. ” (Citation omitted; footnote omitted; internal quotation marks omitted.) Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996).

       “[T]he analytical framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) (McDonnell Douglas), and its progeny is used to determine whether a complainant may prevail on a claim of disparate treatment under our state law. See, e.g., Craine v. Trinity College, 259 Conn. 625, 636-37, 791 A.2d 518 (2002). ‘McDonnell Douglas and subsequent decisions have established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases. . . . First, the [complainant] must establish a prima facie case of discrimination. ... In order to establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination.’ . . . Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 505, 832 A.2d 660 (2003). Once the prima facie case has been established, the employer must then produce legitimate, nondiscriminatory reasons for its adverse employment action. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). ‘This burden is one of production, not persuasion; it can involve no credibility assessment.’ ... Id. Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the complainant then must prove, by a preponderance of the evidence, that the employer intentionally discriminated against him. See, e.g., id., 143. ‘Although intermediate evidentiary burdens shift back and forth under this framework, [t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [complainant] remains at all times with the [complainant]. . . . [I]n attempting to satisfy this burden, the [complainant]—once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision—must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination.’ . . . Id .’’Dept. of Transportation v. Commission on Human Rights & Opportunities, 272 Conn. 457, 463 n.9, 863 A.2d 204 (2005).

       “In construing a Connecticut statute that is similar to federal law, we often turn to decisions construing the federal law for guidance.” Commission on Human Rights & Opportunities v. Savin Rock Condominium Assn., Inc., 273 Conn. 373, 386, 870 A.2d 457 (2005). The antidiscrimination on the basis of age provision in the act and the provision in the Age Discrimination in Employment Act are nearly identical. See footnote 2 of this opinion.

       “[I]n the nonacademic setting termination of employment does not ensue inevitably once notification of termination has been given.” Qhtemal quotation marks omitted.) Vollemans v. Wallingford, supra, 103 Conn. App. 214.


source: Caselaw Access Project

author: BEACH, J. FLYNN, J.,

license: Public Domain

text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS, TRUSTEE v. LYNN DEGENNARO ET AL.
    (AC 35149)
    Beach, Robinson and Flynn, Js.

    Argued December 2, 2013—
    officially released April 29, 2014

      StevenP. Kulas, for the appellant (named defendant).

      Marissa Delinks, with whom, on the brief, was Andrew L. Baldwin, for the appellee (substitute plaintiff).

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

   Opinion

BEACH, J.

The defendant Lynn DeGennaro appeals from the judgment of strict foreclosure following the summary judgment rendered in favor of the named plaintiff, Deutsche Bank Trust Company Americas, as trustee. The defendant claims that the trial court erred in (1) granting the plaintiffs motion for summary judgment as to liability, and (2) rendering a judgment of strict foreclosure. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 2010, the plaintiff brought an action alleging that in December, 2003, the defendant executed a promissory note in the amount of $154,700 in favor of American Mortgage Network, Inc. (American), which note was secured by a mortgage granted to Mortgage Electronic Registration Systems, Inc., as nominee for American on property located at 9 East Hill Road, Oxford, and that the defendant was in default on that note. The defendant filed an answer and special defenses, which included a defense of loan modification. The plaintiff filed a motion for summary judgment as to liability only, and submitted evidence in support of its motion. The defendant filed an objection to the motion for summary judgment and submitted evidence in support of her objection.

The court granted the plaintiffs motion for summary judgment as to liability. The court found that the defendant had obtained a loan in the amount of $154,700 on December 8, 2003, and executed a promissory note in favor of American. The defendant also executed a mortgage dated December 8, 2003, as security for the repayment of the promissory note. The court determined that “[b]y her own admission, the defendant has defaulted on payment due under the promissory note,” and, accordingly the court found that there was no genuine issues of fact regarding liability. The court further determined that none of the defendant’s special defenses had merit. The plaintiff filed a motion for judgment of strict foreclosure, which the court granted. This appeal followed.

I

The defendant first claims that the court erred in granting the plaintiffs motion for summary judgment as to liability. We disagree.

“The standard of review of motions for summary judgment is well settled. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a moving party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Hopkins v. Balachandran, 146 Conn. App. 44, 51, 76 A.3d 703 (2013).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. ... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . [I]t is only [o]nce [the] [movant’s] burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] [nonmovant] to show that a genuine issue of fact exists justifying atrial.” (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).

The defendant argues that the court erred in granting the plaintiffs motion for summary judgment because the evidence submitted with her objection to the motion for summary judgment raised a genuine issue as to whether there was both an oral modification and a written modification to the terms of the loan. The court found, however, that the defendant had defaulted on payment due under the promissory note, and determined that the defendant’s defense alleging modification was “without foundation” because the exhibits did not include any modified mortgage notes or other documents that might have raised a genuine issue as to whether there had been an effective modification.

The defendant did not create a genuine issue of material fact by suggesting that there was an oral modification. See Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 590, 715 A.2d 807 (1998) (“[a] material fact is a fact that will make a difference in the result of the case” [internal quotation marks omitted]). In her affidavit, the defendant states that an oral modification was entered into. This fact, however, is not material because, as a matter of law, an oral modification would be ineffective.

The alleged oral modification could not have complied with the statute of frauds pursuant to General Statutes § 52-550, which provides in relevant part: “(a) No civil action may be maintained in the following cases unless the agreement ... is made in writing and signed by the party ... to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property ... or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars. . . .” “A modification of a written agreement [for a loan exceeding $50,000] must be in writing to satisfy the statute of frauds.” Union Trust Co. v. Jackson, 42 Conn. App. 413, 419, 679 A.2d 421 (1996); see also General Statutes § 52-550 (a) (no action may be maintained upon loan agreement exceeding $50,000 unless agreement made in writing).

The alleged oral modification was not effective for the additional reason that there was no evidence of adequate consideration. “A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do.” Thermoglaze, Inc. v. Morningside Gardens Co., 23 Conn. App. 741, 745, 583 A.2d 1331, cert. denied, 217 Conn. 811, 587 A.2d 153 (1991). The defendant stated in her affidavit that she was advised to skip the July, 2009 regular payment and to make three consecutive payments of $1456.23 in August, September, and October, 2009. The total payments the defendant states that she was required to make under the alleged modification total $4368.69, which is less than the amount she was required to pay for that four month period under the terms of the loan agreement, which, at $1315.92 per month, totaled $5263.68. Payment of an existing obligation does not constitute valid consideration. See Willamette Management Associates, Inc. v. Palczynski, 134 Conn. App. 58, 73, 38 A.3d 1212 (2012) (“if the undertaking by one party is simply to perform the whole or part of what it promised in the original contract, this will not support a promise by the other party to perform what it had previously agreed to do and something more; or, to put the same matter in other words, an existing contract cannot be altered by mutual assent by an agreement merely to give one party a right or privilege, or subject the other party to a burden that it did not previously have” [internal quotation marks omitted]).

The defendant also argues that the court improperly granted summary judgment because a genuine issue of material fact existed in that the terms of the note and mortgage were modified by a “written offer from the plaintiff to the defendant.” It is not clear what writing the defendant is referring to. The written agreements that were submitted by the parties include the original loan agreement, a July, 2009 “trial period plan,” and November, 2009 and January, 2010 repayment agreements.

The trial period plan, which the plaintiff attached to its supplemental memorandum in support of summary judgment, undisputedly was entered into in July, 2009, between the defendant and GMAC Mortgage, LLC (GMAC), the loan service provider. This agreement was labeled “Home Affordable Modification Program Loan Workout Plan (Step One of Two-Step Documentation Process).” It stated that the defendant was unable to afford her mortgage payments and that the lender, GMAC, if conditions were met, would “provide [the defendant] with a Loan Modification Agreement . . . as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage.” Section 3 of the agreement provided for a “Trial Period Payment” plan in which the defendant would pay $1453.26 monthly for August, September, and October, 2009. The trial period payment plan provided that the defendant expressly understood that the “[p]lan is not a modification of the Loan Documents and that the Loan Documents will not be modified unless and until (i) [the defendant] meet[s] all of the conditions required for modification, (ii) [the defendant] receive [s] a full and executed copy of a modification agreement, and (iii) the Modification Effective Date has passed.” The agreement also stated: “I further agree and understand that the Lender will not be obligated or bound to make any modification of the Loan Documents if I fail to meet any one of the requirements under this Plan.”

On July 31, 2009, the defendant filed for bankruptcy. By letter dated October 16, 2009, the plaintiffs counsel returned the defendant’s check dated September 22, 2009, in the amount of $1453.26 and made payable to GMAC, to the defendant’s counsel. By letter dated October 16, 2009, the plaintiff notified the defendant that she was in default on the loan, and unless full payment of past due amounts was received, the loan would be accelerated, the obligation declared due, and foreclosure proceedings begun. The letter stated: “This is a demand for payment of the total amount due and owing as of the date of this letter, which is as follows . . . total amount due $4493.25.” The letter indicated that the defendant “may cure the default by paying the total amount due . . . within thirty (30) days from receipt of this letter. . . . Payments must be made in certified funds or cashier’s check. If funds tendered are not honored for any reason, the default will not be cured. . . . Unless we receive full payment of all past-due amounts, we will accelerate the maturity of the loan, declare the obligation due and payable without further demand, and begin foreclosure proceedings.” The defendant offered no evidence before the trial court that she had repaid the amount due within thirty days. Rather, the defendant attached as an exhibit to her opposition to summary judgment, a repayment agreement, dated November 28, 2009, which provided that “[t]here is an outstanding debt to the Lender pursuant to a note and mortgage or deed of trust or equivalent security instrument . . . executed on 12/08/03, in the original principal amount of $15,4700.00. . . . The account is presently in default for non-payment to Lender of the 08/01/09 installment and all subsequent monthly payments due on the Mortgage for principal, interest, escrows and charges.” The defendant signed this agreement, admitting to being in default on the note and mortgage.

The November, 2009 repayment agreement provided in paragraph 5 for a payment schedule in which GMAC agreed to “suspend, but not terminate foreclosure activity on the default account” provided that the defendant executed the agreement and paid monthly installments of $930. Paragraph 9 of the agreement provided: “Customer understands and agrees that all other provisions, covenants and agreements set forth in the Mortgage shall remain in full force and effect during the duration of this Agreement and thereafter, and this Agreement shall not constitute a modification or extension of the Mortgage.” (Emphasis added.) The January, 2010 repayment agreement also contained the same language as that in paragraphs 5 and 9 of the November 2009 repayment agreement. According to the clear language of the repayment agreements, agreed to by the defendant, those agreements were not modifications of the original loan agreement, but merely suspended foreclosure proceedings. See Connecticut National Bank v. Rehab Associates, 300 Conn. 314, 319, 12 A.3d 995 (2011) (interpretation of definitive contract language is question of law subject to plenary review by this court). The defendant has not directed us to any language in any written agreement that provides that the note and mortgage had been modified.

The defendant, then, did not submit evidence sufficient to create a genuine issue of material fact as to whether there had been a modification of the original mortgage note or the existence of a default. The clear and unambiguous meaning of the 2009 documents effectively provided for a brief suspension of foreclosure activity to give the defendant the conditional opportunity to renegotiate. The documents clearly and expressly did not modify the obligations set forth in the original loan agreement. Accordingly, there is no genuine issue of material fact as to whether the original loan agreement was modified, and, therefore, the court did not err in granting the plaintiffs motion for summary judgment as to liability.

II

The defendant next claims that the court erred in rendering a judgment of strict foreclosure. We disagree.

“The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. . . . Where a foreclosure defendant’s liability has been established by summary judgment, all that remains for the court to determine at the judgment hearing is the amount of the debt and the terms of the judgment.” (Citation omitted; internal quotation marks omitted.) GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 186, 73 A.3d 742 (2013).

On October 10, 2012, after a hearing concerning the plaintiffs debt and the value of the property, the court rendered a judgment of strict foreclosure. The debt amounted to $146,736.52, and the fair market value of the property was determined to be $130,000. The plaintiff had submitted into evidence a July 24, 2012 appraisal that valued the property at $130,000. The defendant stated at the hearing that, according to various affidavits by the plaintiffs appraisers, the property had been valued at $100,000 in March, 2010, $120,000 in May, 2011, and $130,000 in July, 2012. The defendant argued that, in light of the economic recession, the later increased value was not credible.

The defendant argues that the court erred in determining the fair market value of the property. She contends that “[mjindful of these economic times, the court should have required more specific evidence of the value of the subject property.” The defendant further argues that “the proposed value submitted by the plaintiff was not credible.” The court had before it the July, 2012 affidavit from the plaintiffs appraiser assessing the fair market value of the property to be $130,000. The court’s finding in this regard was not clearly erroneous. Accordingly, we cannot conclude that the court abused its discretion in rendering a judgment of strict foreclosure.

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

In this opinion the other judges concurred.

FLYNN, J.,

concurring. I concur with the majority opinion but write separately because, although it would not change the result in this case, I fail to see how the interlocutory summary judgment that the trial court rendered on “liability” could find the defendant personally hable for anything as a matter of law.

Section 17-50 of the Practice Book entitled “Triable Issue as to Damages Only,” provides in pertinent part: “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages. . . .” This rule is designed to deal with cases where a plaintiff is liable for some amount of at least nominal damages. When used before the court has determined what type of foreclosure judgment may enter, there is no certainty that the defendant debtor is liable even for nominal damages.

This was an action to foreclose a mortgage, not simply a suit on a note. Although a mortgage note was signed by the defendant, Lynn DeGennaro, together with a mortgage deed, at the time of entry of the interlocutory “summary judgment on liability,” there was no legal basis to determine that the defendant had any personal liability. This is so because the court had not determined whether the judgment of foreclosure would be a strict foreclosure, which would be rendered if there were no redemption and vest title in the plaintiff mortgagee, or a foreclosure by sale at auction. If a strict foreclosure judgment and there were a redemption, there could be no future monetary liability on the defendant. If a strict foreclosure judgment, no redemption, and no plaintiffs timely deficiency motion “[a]t any time within thirty days after the time limited for redemption expired,” there would not be a money judgment against the defendant debtor. If a foreclosure by sale, and the sales proceeds would not fully compensate the foreclosing creditor in full, “the deficiency shall be determined” pursuant to General Statutes § 49-28. Under that statute, if the plaintiff were the party who moved for foreclosure by sale, “no judgment shall be rendered in the [foreclosure] suit or in any other” until one half of the difference between the appraised value and the selling price has been credited. As pointed out in the treatise by Denis Caron and Geoffrey Milne, “[ujnder certain circumstances . . . this formula may operate to eradicate the deficiency completely.”

Under these circumstances, although it has become very common, making a motion for interlocutory summary judgment on liability in a foreclosure case is the procedural equivalent of trying to drive a nail with the blade of a saw.

       Lynn DeGennaro is also known as Lynsie Justine DeGennaro. Mortgage Electronic Registration Systems, Inc., was also named as a defendant in this action. DeGennaro is the only defendant involved in this appeal, and, for the sake of clarity, we refer in this opinion to her as the defendant.

       On October 10, 2012, the court granted the named plaintiffs motion to substitute Deutsche Bank Trust Company Americas, as Trustee for RALI 2004-QS6, as the plaintiff. For convenience, we refer in this opinion to the named plaintiff and the substitute plaintiff collectively as the plaintiff.

       The defendant also argues that she “consistently denied” that she had defaulted on the terms of the mortgage. To the extent that the defendant’s argument in this regard relies on the existence of a loan modification, it fails because we conclude that there is no genuine issue of material fact as to the nonexistence of a valid loan modification agreement. Furthermore, the defendant asserts in her appellate brief that she denied in her answer that she was in default. A denial in an answer does not by itself create a genuine issue of material fact. See Busconi v. Dighello, 39 Conn. App. 753, 770-72, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996).

       As recognized in Union Trust Co. v. Jackson, supra, 42 Conn. App. 419, the statute of frauds may be avoided by partial performance, or equitable reliance. No sufficient facts in avoidance were offered in this case.

       The plaintiff submitted as an exhibit attached to its motion for summary judgment an assignment of the mortgage from Mortgage Electronic Registration Systems, Inc., to the plaintiff. This evidence was undisputed.

       The plaintiff argued in its memorandum of law supporting its motion for summary judgment that the defendant failed to make payments beginning in September, 2009, and failed to cure her default.

       The January, 2010 repayment agreement generally contained the same language.

       Paragraph 5 of the January, 2010 repayment agreement did not specify an amount due per month, but, nonetheless, did specify that in return for certain monthly payments GMA.C agreed to “suspend, but not terminate foreclosure activity on the default account.”

       Additionally, the defendant appears to claim that the court erred by ascribing too high a value. In the context of strict foreclosure, it is difficult to see how an overly generous assessment of fair market value could harm the defendant.

       General Statutes § 49-14 (a).

       D. Caron & G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 10-5:2, p. 575.


text:
    JPMORGAN CHASE BANK, N.A. v. GEORGE N. GEORGITSEAS ET AL.
    (AC 35559)
    Bear, Sheldon and Schaller, Js.
    Argued March 3—
    officially released April 29, 2014

      Genevieve P. Salvatore, for the appellant (named defendant).

      Laura Paséale Zaino, with whom, on the brief, was Brian D. Rich, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant George N. Georgitseas appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, JPMor-gan Chase Bank, N.A. On appeal, the defendant makes three claims pertaining to the court’s rebanee on a “drive-by” or “exterior-only” appraisal dated more than 120 days before the date of the judgment in its calculation of the subject property’s fair market value. We conclude that the defendant has failed to preserve any of his claims for appellate review, and we accordingly affirm the judgment of the trial court.

“Practice Book § 60-5 provides in relevant part that [t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Indeed, it is the appellant’s responsibility to present a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily [the appellant] must raise in the trial court the issues that he intends to raise on appeal. . . . For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge. . . . We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” (Internal quotation marks omitted.) Sturgeon v. Sturgeon, 114 Conn. App. 682, 693, 971 A.2d 691, cert. denied, 293 Conn. 903, 976 A.2d 1278 (2009).

We carefully have reviewed the trial court file, including but not limited to the transcripts of the relevant proceedings, and we cannot find any notice to and opportunity for review by the trial court of any of the defendant’s three claims raised in this appeal. During oral argument before this court, we asked the defendant on what basis we could hear these claims for the first time on appeal. The defendant did not assert that he had properly preserved the claims for appellate review; he, instead, argued that the state of the law and the trial court’s alleged failure to perform its gatekeeping function should compel this court to review his claims, regardless of whether they properly were preserved. In light of our long-standing precedent requiring claims to be made initially in the trial court, and the defendant’s failure to provide any valid explanation for his failure to do so in this case, we have no alternative except to affirm the judgment.

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

       RBS Citizens, N.A., also was named as a defendant but is not involved in this appeal. We therefore refer in this opinion to George N. Georgitseas as the defendant.


author: BORDEN, J.

text:
    NORA LYNNE VALENTINE v. JOEL ROBERT VALENTINE
    (AC 35826)
    Lavine, Keller and Borden, Js.
    Argued February 7—
    officially released April 29, 2014

      Joel R. Valentine, self-represented, the appellant (defendant).
   Opinion

BORDEN, J.

In this uncontested appeal, the self-represented defendant, Joel Robert Valentine, challenges the financial orders entered incident to the judgment of the trial court dissolving his marriage to the plaintiff, Nora Lynne Valentine. Although the defendant raises several claims in this appeal, we need only address those that we deem dispositive, namely, that the court: (1) violated his right to due process by granting in part the plaintiff’s motion for reconsideration and clarification without providing him notice and an opportunity to be heard on the motion and its substance; and (2) improperly issued excessive financial orders. We agree with the defendant and, accordingly, reverse in part the judgment of the trial court.

The trial court entered financial orders for child support, alimony, and property division incident to its judgment dissolving the parties’ marriage. The plaintiff later filed a motion for reconsideration and clarification of those orders. The next day, the court granted in part the plaintiffs motion and entered additional financial orders without holding a hearing. The defendant subsequently initiated this appeal challenging both the propriety of the court’s financial orders entered incident to the judgment of dissolution, and the court’s decision granting in part the plaintiffs motion for reconsideration and clarification. The plaintiff filed notice with this court, pursuant to Practice Book § 67-3, representing that she did not intend to file a brief in the present appeal. We therefore decide this case on the basis of the defendant’s brief and oral argument before this court, and the record available to us.

The following facts and procedural history are relevant to our review. The parties were married on July 8, 1990, and subsequently had two children. The parties’ relationship became increasingly contentious over the years and in October, 2011, the plaintiff filed this complaint for dissolution of marriage. On May 20, 2013, following a six day trial, the court, Gould, J., issued a memorandum of decision dissolving the parties’ marriage and entering financial orders for child support, alimony, and property division.

On June 10, 2013, the plaintiff filed a postjudgment motion for reconsideration and clarification with respect to several of the financial orders set forth in the court’s memorandum of decision. The defendant received a copy of this motion on that same date. The next day, June 11, 2013, the court granted in part the plaintiffs motion for reconsideration and clarification and entered several financial orders without holding a hearing. In relevant part, it ordered the parties to share equally in their minor children’s educational expenses, specifically ordering them to divide the college expenses of their older son. Additionally, the court ordered the defendant to provide health insurance coverage to the plaintiff for three years at his sole expense, and further, determined that the defendant was solely responsible for the debt on the parties’ three credit cards, totaling $20,783.55. The court also ordered the defendant to pay the other debts fisted in his financial affidavit, which totaled $51,200. Finally, the court ordered him to pay the mortgage arrearage at a rate of $200 per week by way of immediate wage execution in the form of alimony and child support.

The defendant thereafter moved for the court to clarify the difference between its orders of May 20, 2013, and June 11, 2013, with respect to the $200 weekly payment toward the mortgage arrearage. The court denied the defendant’s motion for clarification with respect to this inquiry. This appeal followed. Additional relevant facts will be set forth as necessary.

I

We first set forth the well established standard of review in domestic relations cases. An appellate court “will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” (Internal quotation marks omitted.) Tanzman v. Meurer, 309 Conn. 105, 113, 70 A.3d 13 (2013). “In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in [General Statutes] § 46b-81 (division of marital property), [General Statutes] § 46b-82 (alimony) and [General Statutes] 46b-84 (child support). All three statutory provisions require consideration of the parties’ amount and sources of income in determining the appropriate division of property and size of any child support or alimony award.” (Emphasis added; internal quotation marks omitted.) Mensah v. Mensah, 145 Conn. App. 644, 652, 75 A.3d 92 (2013).

We next note that our review of financial orders entered by a trial court in a dissolution matter is governed by the “mosaic doctrine.” “Under the mosaic doctrine, financial orders should not be viewed as a collection of single disconnected occurrences, but rather as a seamless collection of interdependent elements. Consistent with that approach, our courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders even though the review process might reveal a flaw only in the alimony, property distribution or child support awards.” (Internal quotation marks omitted.) Marshall v. Marshall, 119 Conn. App. 120, 135-36, 988 A.2d 314, cert. granted on other grounds, 296 Conn. 908, 993 A.2d 467 (2010). Accordingly, because we conclude that at least two of the defendant’s claims challenging the court’s financial orders have merit, the entire set of them must fall, and a new hearing be held regarding them.

II

The defendant first claims that the court violated his right to due process when it granted in part the plaintiffs motion for reconsideration and clarification without affording him adequate notice and an opportunity to object to the motion and to be heard on its substance. We agree.

It is a fundamental tenet of due process that “no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard ... in sufficient time to prepare their positions on the issues involved.” (Internal quotation marks omitted.) Styrcula v. Styrcula, 139 Conn. App. 735, 745, 57 A.3d 822 (2012). When a party moves for reconsideration of the court’s financial orders, the court is constitutionally required to provide the nonmoving party with the opportunity “to contest the factual predicate on which the court apparently acted or to overcome those facts with countervailing ones.” Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992).

Here, the plaintiff filed her motion for reconsideration and clarification on June 10, 2013. The defendant received a copy of the plaintiffs motion either by e-mail or fax on that same date, but he did not receive notice of a hearing on it. The next day, the court granted in part the motion and entered several additional financial orders without holding a hearing or providing any opportunity for oral argument.

In rendering its decision, the court significantly increased the defendant’s financial obligations, ordering him (1) to pay for 50 percent of his minor son’s college expenses, (2) to provide three years of health insurance coverage to the plaintiff, (3) to pay $200 per week toward the mortgage arrearage by way of immediate wage execution, and (4) to pay more than $70,000 in debts. Given the negligible time frame of less than twenty-four hours between the filing of the motion and entry of the court’s orders, the defendant did not have sufficient time to object to the motion or to request a hearing so as to “subject the factual determinations underlying the . . . court’s [orders] ... to the crucible of meaningful adversarial testing . . . .” (Citation omitted; internal quotation marks omitted.) Bartley v. Bartley, supra, 27 Conn. App. 198.

We conclude that the court failed to provide the defendant with adequate notice and a meaningful opportunity to be heard on the plaintiffs motion for reconsideration and clarification in violation of his constitutional right to due process. Hence, because the court’s financial orders dated June 11, 2013, were entered in violation of the defendant’s right to due process, they cannot stand. See Styrcula v. Styrcula, supra, 139 Conn. App. 748.

IH

The defendant next claims that the court abused its discretion by entering financial orders that exceed his weekly income. We agree. The following additional facts are relevant to our resolution of this claim.

Following the six day trial, the court rendered a judgment dissolving the parties’ marriage and entering financial orders for child support, alimony, and property division. Prior to setting forth its financial orders, the court enumerated its findings with respect to the economic status of each party. On the basis of their financial affidavits, it determined that the plaintiff had a net weekly income of $927.96, which was comprised of alimony, child support, and payments from rental properties, and that the defendant earned a net weekly income of $957.52 from his employment as a Web content professional. It further found that the parties were co-owners of their marital home located in Woodstock and three apartments located on the premises, which the parties rented to third parties. It determined that the marital home had a value of $330,000 and was encumbered by a mortgage of $330,000. It also determined that “[t]he defendant, who was and is the sole wage earner in the home, has not paid the mortgage on the family home since October, 2011.”

On the basis of its findings, the court entered several financial orders on May 20, 2013. First, it ordered the defendant to pay $300 per week in child support and $300 per week in periodic alimony for fourteen years. Second, it ordered him to transfer his rights, title, and interest in the marital home to the plaintiff by way of quitclaim deed, and further ordered that he assume all future mortgage payments, costs, and fees associated with the property. Third, it ordered the defendant to make several other payments to satisfy prior outstanding court orders: “$928 for child support; $16,200 for discovery noncompliance; $10,800 for parenting education noncompliance; $3250 for attorney’s fees; $31,992 for mortgage arrearage; and $2400 for outstanding utilities, for total payments due in the amount of $65,570. . . . The child support and attorney’s fees shall be paid within [ninety] days of the entry of judgment. The other payments shall be satisfied at the rate of $200 per week by [way] of immediate wage execution. In addition, the defendant shall pay $10,000 toward the plaintiffs trial and trial preparation attorney’s fees within 120 days of the entry of judgment.”

The court also ordered the defendant to continue to maintain a $500,000 life insurance policy, and to provide health insurance for the plaintiff. With respect to uninsured medical expenses, it stated that the defendant shall be responsible for 62 percent and the plaintiff for 38 percent of any such costs, pursuant to the child support guidelines. Moreover, the court ordered the parties to divide equally, by way of a Qualified Domestic Relations Order (QDRO), any retirement accounts, 401(k) plans, and pensions owned by the defendant, and to share equally the costs of the QDRO preparation. It also ordered the parties to share equally in any expenses associated with their minor children’s extracurricular activities. Finally, the court ordered that the parties be solely responsible for any payments associated with their respective motor vehicles, and, insofar as it did not conflict with other orders within its decision, ordered the parties to pay their own attorney’s fees, costs, and trial expenses.

Contrary to the court’s claim that it considered the pertinent statutory provisions, we conclude that the court failed to consider the defendant’s ability to comply with its financial orders. After determining that the defendant’s net weekly income was $957.52, the court ordered him to make payments in excess of his financial capacity. It imposed a weekly obligation of $600 toward child support and alimony payments, and an additional $200 toward prior court orders until he satisfied the outstanding amount of $61,392. This $800 weekly sum alone constituted more than 80 percent of the defendant’s net weekly income, and left him with a mere $157.52 to satisfy his weekly living expenses. See Pellow v. Pellow, 113 Conn. App. 122, 129, 964 A.2d 1252 (2009) (holding that financial orders consuming more than 90 percent of defendant’s income were excessive).

In addition to those weekly payments, moreover, the court ordered that the defendant was responsible for $13,250 of the plaintiffs trial attorney’s fees and $928 for outstanding child support. What is more, it ordered him to maintain a $500,000 life insurance policy at his sole expense, to cover 62 percent of any uninsured medical expenses for the parties’ two minor children, and to cover 50 percent of costs associated with their minor children’s extracurricular activities. All of these payments are in addition to the court’s order requiring the defendant to pay his own attorney’s fees, costs, and trial expenses—not to mention his personal living expenses. Moreover, the court did not identify any valuable assets that the defendant could use to comply with its financial orders.

In light of the foregoing, we agree with the defendant’s claim that the court’s financial orders were excessive, leaving him with little to no income to sustain his basic welfare. See Greco v. Greco, 275 Conn. 348, 361, 880 A.2d 872 (2005) (support and financial orders that consume defendant’s income offend “the long settled principle that the defendant’s ability to pay is a material consideration in formulating financial awards”).

We conclude, therefore, that the court abused its discretion in fashioning its financial orders. Accordingly, we remand the case for a new hearing on all financial issues.

The judgment is reversed only with respect to the financial orders and the case is remanded for a new hearing on all financial issues; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant additionally claims that the court improperly: (1) determined that he was responsible for the mortgage arrearage on the marital home and improperly calculated the amount and form of such payment; (2) assigned the plaintiffs personal debt to him; (3) valued the marital home; (4) violated the stay of appeal in ordering him to pay various fines and fees; and (5) entered duplicitous orders with respect to the mortgage arrearage. In view of our decision on the two dispositive claims, it is not necessary to consider these other claims.

       The court’s decision did not address issues of custody and visitation because the court, Adelman, J., previously had approved an agreement reached by the parties with respect to those matters.

       Because the court ordered the defendant to pay mortgage payments at a rate of $200 per week in both its decision dated May 20, 2013 decision and its June 11, 2013 decision, the defendant requested clarification regarding whether his required weekly payment toward the mortgage arrearage was $200 or $400.
      In this appeal, the defendant contends that the court’s order issued on June 11, 2013, impermissibly duplicated its prior order issued on May 20, 2013. As previously stated, we need not address this claim given the disposi-tive nature of the claims discussed in the body of this opinion.

       Because the plaintiff failed to defend this appeal, the defendant’s contention that he was not provided with adequate notice and an opportunity for a hearing remains uncontroverted. Moreover, the records available to this court on appeal support the defendant’s contention that he was denied due process, as they indicate that the court granted in part the plaintiff’s motion one day after it was filed, and there is no evidence that the defendant had an opportunity to object to the motion or that a hearing took place as to its substance.


author: GRUENDEL, J.

text:
    WILLIAM CONNELLY v. COMMISSIONER OF CORRECTION ET AL.
    (AC 35361)
    Gruendel, Alvord and Bear, Js.

      Argued February 21—
    officially released April 29, 2014

      William Connelly, self-represented, the appellant (plaintiff).

      James W. Coley, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and TerrenceM. O’Neill, assistant attorney general, for the appellees (named defendant et al.).

      Gregory F. Daniels, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (defendant Freedom of Information Commission).
   Opinion

GRUENDEL, J.

The self-represented plaintiff, William Connelly, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant Freedom of Information Commission (commission) due to the plaintiffs failure to comply with the service of process requirements of General Statutes § 4-183 (c). Although the plaintiff raises multiple claims on appeal, the dispositive one is whether the court correctly concluded that it lacked subject matter jurisdiction over the appeal. We affirm the judgment of the Superior Court.

At all relevant times, the plaintiff was incarcerated at the Osborn Correctional Institution (Osborn) in Som-ers. In a letter dated March 23,2011, the plaintiff filed a request with the defendant Commissioner of Correction (commissioner) and the defendant Department of Correction (department) to obtain copies of all “psychiatric/psychological diagnoses and evaluations [and] military records” in his file at Osborn. On April 25,2011, the plaintiff filed a complaint with the commission, alleging that the commissioner and the department violated the Freedom of Information Act, General Statutes § 1-200 et seq., in denying that request. Following a hearing, the commission issued a final decision in which it found that none of the requested records were in the plaintiffs file at Osborn. Accordingly, the commission dismissed the plaintiffs complaint. The commission mailed notice of its decision to the plaintiff on February 14, 2012.

On March 26, 2012, the plaintiff timely filed an administrative appeal of that decision in the Superior Court, along with an application for a waiver of fees. That same day, the court accepted the notice of appeal and granted the fee waiver request. On April 24, 2012, the plaintiff filed a motion for articulation, stating in relevant part: “[The court] signed the [waiver] form, but did not indicate whether the order included entry fee, filing fee, service of process fee and transcript fee, as requested by the plaintiff. The transcripts [requested] are vital to the plaintiffs claim. The plaintiff must quote extensively from those transcripts in support of his claim. Therefore, the plaintiff moves the court for articulation of the 26 March 2012 order.” The very next day, the court articulated its order as follows: “The court articulates its waiver of fees to only include the waiver of the $300 filing fee and the posting of the $250 recognizance bond. This court has no power to grant waivers of fees for transcripts of agency proceedings; the plaintiff should receive copies of those transcripts once the agency files the administrative record. Additionally, the court did not waive the marshal fee because of the ability to serve an administrative appeal by certified mail.”

The commission was served, by regular mail, with a handwritten copy of the plaintiffs appeal on April 4, 2012—fifty days after the commission mailed notice of the underlying decision. The commission thereafter filed a motion to dismiss the appeal, alleging that the plaintiff had failed to comply with the requirements of § 4-183 (c). The commissioner and the department filed a similar motion on July 9, 2012. The plaintiff filed oppositions to those respective motions. The court heard argument from the parties on September 12,2012, at which the court requested supplemental briefing on the availability of certified mail service for incarcerated individuals and whether, as a matter of law, a letter or parcel is deemed to be mailed at the time an inmate hands the article to staff for deposit into the mail.

In its December 28, 2012 memorandum of decision, the court found that the plaintiff had failed to comply with the service of process requirements of § 4-183 (c). Specifically, the court found that the plaintiffs service of process on the commission was untimely. In so doing, the court rejected the plaintiffs exhortation to adopt the so-called “prison mailbox rule” and instead reasoned that “the failure of the plaintiff to prove that he actually deposited the appeal in the mail [within the forty-five day time period required by statute] is grounds to find a lack of compliance with § 4-183 (c).” Concluding that it lacked subject matter jurisdiction, the court dismissed the plaintiffs appeal, and this appeal followed.

At the outset, we note that “[a]ppeals to courts from administrative agencies exist only under statutory authority. ... A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. . . . The failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it.” (Emphasis added; internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 55 Conn. App. 679, 683, 739 A.2d 744 (1999), aff'd, 259 Conn. 131, 788 A.2d 1158 (2002). “A determination regarding [the Superior Court’s] subject matter jurisdiction is a question of law. When . . . the [Superior Court] draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Miller’s Pond Co., LLC v. Rocque, 71 Conn. App. 395, 401, 802 A.2d 184 (2002), aff'd, 263 Conn. 692, 822 A.2d 238 (2003).

Section 4-183 (c) provides in relevant part that “[w]ithin forty-five days after mailing of the final decision ... a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision .... If service of the appeal is made by mail, service shall be effective upon deposit of the appeal in the mail.” On our plenary review, we conclude that the plaintiff failed to comply with that statutory requirement.

Our Supreme Court has held that “§ 4-183 (c) requires both the filing and the service of the appeal within the forty-five day period”; Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 853, 633 A.2d 305 (1993); and that “a failure to meet [that] time limitation remains a subject matter jurisdictional defect.” Id., 854; accord Bittle v. Commissioner of Social Services, 249 Conn. 503, 520, 734 A.2d 551 (1999) (“failing to make proper service on the agency in accordance with the relevant statutory provisions [of § 4-183 (c)] is a jurisdictional defect subjecting the appeal to dismissal”). It is undisputed that the commission mailed notice of its decision to the plaintiff on February 14, 2012, and that the commission received service of the plaintiffs appeal on April 4, 2012. As the court specifically found in its memorandum of decision, “the plaintiff has no proof that the complaint was deposited in the mail” within the forty-five day period. That finding is substantiated by the record before us. The precedent of this state’s highest court instructs that “[i]f there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal . . . .” (Internal quotation marks omitted.) Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, supra, 856. Because the record before us is bereft of any evidence indicating that the plaintiff complied with that statutory requirement, the court properly dismissed the administrative appeal. See Godaire v. Freedom of Information Commission, 141 Conn. App. 716, 719, 62 A.3d 598 (2013).

The plaintiff nevertheless claims that the court misapplied that statutory requirement for a variety of reasons, only two of which merit any discussion. First, the plaintiff argues that the forty-five day time period in the present case commenced not on February 14, 2012— the date that the commission mailed notice of its final decision—but rather on February 22,2012, the date that prison officials allegedly delivered the notice to the incarcerated plaintiff. That claim is belied by the plain language of § 4-183 (c), which provides that the forty-five day period commences upon the “mailing” of an agency’s final decision. Although the plaintiff argues that an alleged delay by prison officials in delivering that notice to him rendered the date of mailing “meaningless,” it remains that the forty-five day time period set forth in § 4-183 (c) is triggered by the mailing of notice, not receipt thereof. See Bittle v. Commissioner of Social Services, supra, 249 Conn. 506 (“service of process of appeal papers pursuant to § 4-183 [c] [1] is perfected when the appeal papers are deposited in the mail within the time limits set”).

The plaintiff also claims that the court erred in declining to apply the federal prison mailbox rule. See Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988) (notice of appeal deemed filed when prisoner delivers it to prison authorities for forwarding to court). In Hastings v. Commissioner of Correction, 82 Conn. App. 600, 604, 847 A.2d 1009 (2004), appeal dismissed, 274 Conn. 555, 876 A.2d 1196 (2005), this court expressly declined to adopt such a rule. We are bound by that precedent, as it is axiomatic that one panel of this court cannot overrule the precedent established by a previous panel’s holding. See, e.g., First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 759, 966 A.2d 239 (2009) (“this court’s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel” [internal quotation marks omitted]).

The plaintiff attempts to circumvent Hastings by grounding his claim in the protections afforded by article first, § 10, of our state constitution. We decline to entertain the merits of that unpreserved claim. A review of the record demonstrates that the plaintiff did not raise that distinct claim in any manner before the Superior Court. “It is fundamental that claims of error must be distinctly raised and decided in the trial court. As a result, Connecticut appellate courts will not address issues not decided by the trial court. . . . Practice Book § 60-5 provides in relevant part that our appellate courts shall not be bound to consider a claim unless it was distinctly raised at the trial .... [T]he reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. . . . Thus, the requirement of Practice Book § 60-5 that the claim be raised distinctly means that it must be so stated as to bring to the attention of the court the 'precise matter on which its decision is being asked.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Faison, 112 Conn. App. 373, 379-80, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009). Moreover, the plaintiff has not sought review of that unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. We thus decline to review that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants in the plaintiffs complaint are the Commissioner of Correction and the Department of Correction. They also are parties to this appeal.

       Specifically, the commission found that “none of the requested records are contained in the [plaintiffs] master file at [Osborn]. It is further found that records of ‘psychiatric/psychological diagnoses and evaluations’ would be contained in the [plaintiffs] medical file, which is in the custody of the University of Connecticut [Health Center] Correctional Managed Health Care. However, the [plaintiff] is specifically interested in determining whether such records are also contained in his file at Osborn, which they are not.”

       In granting that request, the court found that, as a result of the plaintiffs indigence, waiver of both the entry fee for the regular docket and the filing fee was warranted.

       It is undisputed that the commission was not served by “United States mail, certified or registered, postage prepaid, return receipt requested,” as required by § 4-183 (c). The defendants maintain, as an alternate ground of affirmance, that such noncompliance provides an additional basis on which to conclude that the court lacked jurisdiction over the plaintiffs administrative appeal. We need not address that alternate argument in light of our conclusion that the appeal was not served on the commission in a timely fashion.

       “Our Supreme Court has held that the party bringing the action bears the burden of proving that the court has subject matter jurisdiction.” Young v. Commissioner of Correction, 104 Conn. App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008).

       The record before us contains copies of both the commission’s February 14,2012 notice to the plaintiff of its final decision and a certified mail receipt from the United States Postal Service indicating that the notice was delivered at 9 a.m. the following day.

       Article first, § 10, of the Connecticut constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”