author: KELLER, J.

text:
    MICHAEL PERUGINI v. ROSEMARY GIULIANO ET AL.
    (AC 35167)
    Bear, Keller and Harper, Js.

      Argued December 2, 2013—
    officially released March 25, 2014

      Michael Perugini, self-represented, the appellant (plaintiff).

      Amber J. Hines, with whom was Paul Grocki, for the appellees (defendants).
   Opinion

KELLER, J.

The self-represented plaintiff, Michael Perugini, appeals from the judgment of the trial court rendered in favor of the defendants, attorney Rosemary Giuliano and the law firm with which she is associated, Giuliano & Richardson, LLC, in his action alleging misconduct in the defendants’ representation of the plaintiffs wife during the couple’s prior divorce proceedings. The plaintiff claims that the court erred in (1) suspending his February 8, 2012 deposition until the pleadings were closed, (2) denying his February 22, 2012 request for leave to amend his complaint, (3) dismissing his claim of negligent infliction of emotional distress for lack of subject matter jurisdiction, and (4) striking his August 6, 2012 substitute complaint from the docket and rendering judgment for the defendants. We affirm the judgment of the trial court.

The record reveals the following procedural history. On September 9, 2010, the plaintiff, appearing before the court as a self-represented party, filed a two count complaint against the defendants for wilful violation of the Rules of Professional Conduct and negligent infliction of emotional distress. The complaint alleged that Giuliano had engaged in misconduct during her representation of Kimberly Gamble-Perugini, the plaintiffs former wife, in prior marriage dissolution proceedings against the plaintiff. Specifically, it alleged that Giuliano failed to disclose a conflict of interest resulting from her prior representation of Judge Elizabeth Bozzuto, who presided over postjudgment proceedings and issued various rulings between April 27, 2009, and June 8, 2010. Although the complaint acknowledged that any allegedly inappropriate orders issued by Judge Bozzuto had been vacated, the plaintiff sought damages from the defendants for the stress, agony, depression and expense he claims to have endured as a result of Giuli-ano’s alleged misconduct.

This action was commenced on September 10, 2010. The defendants filed a request to revise the plaintiffs complaint on September 21, 2011, to which the plaintiff did not properly object until December 30, 2011. In the interim, the plaintiff noticed Giuliano’s deposition for October 20, 2011. On October 14, 2011, the defendants filed a motion for a protective order on several grounds, including the claim that privileged documents involving the defendants’ representation of Gamble-Perugini should not be explored and the deposition should be limited to the allegations in the complaint. On December 6, 2011, the court, Trombley, J., issued an order allowing the deposition to proceed by February 17, 2012, which further stated: “The areas inquired into at said deposition shall be those that are framed by the allegations in the plaintiffs complaint . . . .” He further indicated that “[t]he defendants are not required to produce their file or any documents in their possession pertaining to the dissolution action . . . entitled Kimberly Gamble-Perugini v. Michael Perugini, as the information contained therein is protected by attorney-client privilege.”

On January 17, 2012, Judge Trombley, pursuant to Practice Book § 10-37 (b), ordered the plaintiff to revise his complaint as requested by the defendants. The plaintiff filed a motion to reargue to which the defendants objected. On February 8, 2012, Judge Trombley denied the motion to reargue and ordered the plaintiff to revise his complaint and to incorporate the revisions ordered by the court on January 17, 2012. On February 8, 2012, the plaintiff, having not yet revised his complaint, commenced a deposition of Giuliano. During the deposition, the plaintiff asked Giuliano questions regarding her communications with Gamble-Perugini during the prior divorce proceedings. The defendants objected, claiming that the information was protected by the attorney-client privilege and that the questions were outside the scope of the pleadings. Judge Trombley was asked to resolve the issue and, upon learning that the plaintiff still had not revised his complaint, ordered, sua sponte, that a revised complaint be filed within two weeks. Additionally, Judge Trombley suspended the deposition until, absent a motion for summary judgment, the pleadings were closed and all the issues were framed. On February 27,2012, the plaintiff filed a motion to reargue asking Judge Trombley to reconsider the suspension of the deposition of Giuliano, which the court denied.

On February 21, 2012, the plaintiff filed a revised complaint that still contained only two counts, wilful violation of the Rules of Professional Conduct and negligent infliction of emotional distress. Although the revised complaint addressed some of the defendants’ requested revisions, it also included new factual allegations that Giuliano had engaged in representation of Gamble-Perugini without her consent.

Only one day later, on February 22, 2012, the plaintiff filed a request for leave to amend his revised complaint, to which the defendants objected. The proposed amended complaint included with the request, dated February 22, 2012, deleted the count for wilful violation of the Rules of Professional Conduct, maintained the count for negligent infliction of emotional distress and added three new counts: fraudulent misrepresentation, conspiracy to defraud, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The proposed amended complaint, in paragraphs 10 and 12 of the second count, further expanded the facts alleged in support of the plaintiffs claim that Giuliano had engaged in unauthorized representation of Gamble-Perugini while Giuliano had knowledge of the couple’s reconciliation. On March 21, 2012, Judge Trombley sustained the defendants’ objection to the plaintiffs request to file a proposed amended complaint and established the two count February 21, 2012 revised complaint as the operative complaint. The court’s order stated: “While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a [request] to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. . . . Practice Book § 10-60 (b) provides: The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” (Citation omitted; internal quotation marks omitted.) On April 6, 2012, the plaintiff filed a motion to recuse Judge Trombley, which the court denied on April 23, 2012.

On April 9, 2012, the defendants filed another request to revise the plaintiffs February 21, 2012 revised complaint, to which the plaintiff objected. On May 14, 2012, the court, Dooley, J., overruled the plaintiffs objections, thereby requiring the plaintiff to revise his complaint as requested by the defendants. The plaintiffs second revised complaint, dated and filed on May 22, 2012, again set forth two counts of wilful violation of the Rules of Professional Conduct and negligent infliction of emotional distress. The defendants then moved to strike the second revised complaint, arguing that the Rules of Professional Conduct do not give rise to a cause of action and that the count of negligent infliction of emotional distress was barred by the doctrine of absolute immunity for attorney conduct in the course of a judicial proceeding. On July 26,2012, Judge Dooley granted the defendants’ motion to strike as to the count sounding in wilful violation of the Rules of Professional Conduct and dismissed the count sounding in negligent infliction of emotional distress for lack of subj ect matter jurisdiction under the doctrine of absolute immunity.

On August 6, 2012, pursuant to Practice §10-44, the plaintiff filed a substitute complaint, premised on similar facts as previously set forth, but asserting six counts sounding in conspiracy to defraud, alienation of affection, violation of CUTPA, abuse of process, vexatious litigation and intentional infliction of emotional distress. The defendants objected to this substitute complaint, arguing that the plaintiff was required to request leave to amend his complaint pursuant to Practice Book § 10-60 and that the amendments made by the plaintiff were retaliatory, violated prior court orders, and were prejudicial to the defendants, given the age of the case and the fact that many of the claims and allegations already had been ruled legally insufficient and improper. The plaintiff filed an opposition to the defendants’ objection, arguing that he had the right to file a substitute complaint pursuant to Practice Book § 10-44 and that the defendants’ objection was a procedurally improper pleading. The plaintiffs opposition also addressed the defendants’ nonprocedural arguments that the substitute complaint violated the law of the case and prejudiced the defendants. On September 26, 2012, the court, Shapiro, J., sustained the defendants’ objection and struck the August 6,2012 substitute complaint from the record. On September 27, 2012, the defendants filed a motion for judgment. On October 11, 2012, the plaintiff filed a motion for extension of time to plead and a motion to reargue. On October 17, 2012, Judge Shapiro denied the plaintiffs motions, granted the defendants’ motion for judgment and rendered judgment for the defendants. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the plaintiff first challenges Judge Trom-bley’s order suspending the deposition of Giuliano until the pleadings were closed, and his order denying the plaintiffs February 22,2012, request for leave to amend his complaint.

A

The plaintiff first claims that Judge Trombley erred in suspending the deposition of Giuliano until such time that the pleadings were closed. Specifically, the plaintiff argues that Judge Trombley’s order suspending the deposition represented a reversal of the court’s previous order compelling Giuliano to submit to a deposition before a certain date. We consider this claim to be abandoned.

At the February 8,2012 hearing in which Judge Trom-bley was asked to resolve the dispute concerning Giuli-ano’s invocation of the attorney-client privilege, the judge learned that the plaintiff had not yet revised his complaint as required by a previous order. As a result, he ordered that the plaintiff submit a revised complaint within two weeks from the date of the hearing. Following this order, Judge Trombley stated: “The second thing we are going to do is we are going to suspend this deposition as of now, until such time as the pleadings are closed and the issue is joined.” He went on to explain that the plaintiff still would have an opportunity to complete the deposition before pleadings were closed if the defendants moved for summary judgment. He then asked the plaintiff: “Fair enough?” The plaintiff responded: “Fair enough.” At no point during this hearing did the plaintiff object to the court’s order.

“It is fundamental that claims of error must be distinctly raised and decided in 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 .... That requirement 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. ... As our Supreme Court has explained, [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.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) U.S. Bank National Assn. v. Iaquessa, 132 Conn. App. 812, 814-15, 34 A.3d 1005 (2012).

Here, by failing to object to the court’s suspension of the deposition, the plaintiff did not provide the court with a timely opportunity to reconsider the order. The record therefore is devoid of any deliberation as to why the deposition should have continued on February 8, 2012, or how its suspension might have prejudiced the plaintiff. Furthermore, having expressly agreed to the court’s decision, the plaintiff cannot now seek to attack the order on appeal. See Menon v. Dux, 81 Conn. App. 167, 170-71, 838 A.2d 1038 (claim unpreserved where appealing party expressly acquiesced to court’s eviden-tiary ruling at trial), cert. denied, 269 Conn. 913, 852 A.2d 743, cert. denied, 543 U.S. 1003, 125 S. Ct. 623, 160 L. Ed. 2d 463 (2004). Accordingly, we decline to review this unpreserved claim.

B

Next, the plaintiff claims that Judge Trombley erred in sustaining the defendants’ objection to his February 22, 2012 request for leave to amend his complaint. Specifically, he argues that the court abused its discretion in failing to take a liberal approach to Practice Book § 10-60. We disagree.

“Our standard of review of the plaintiffs claim is well settled. While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiffs] burden in this case to demonstrate that the trial court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002).

At the time of Judge Trombley’s ruling, the action had been pending more than seventeen months, since September 10,2010. The pleadings still were not closed. In sustaining the defendants’ objection to the plaintiffs request for leave to amend his complaint, the court noted that the plaintiff already had filed several complaints and cited the provision in Practice Book § 10-60 (b) that allows the court to restrain amendments in order to compel the parties to join issue in a reasonable time for trial. These were proper considerations within the court’s discretion in ruling on the issue and, therefore, we decline to upset the court’s decision.

II

The plaintiff also challenges Judge Dooley’s order dismissing the plaintiffs claim of negligent infliction of emotional distress for lack of subject matter jurisdiction. Specifically, he argues that the doctrine of absolute immunity does not apply to claims alleging attorney misconduct for the purpose of personal financial gain. We are not persuaded.

“[W]hether attorneys are protected by absolute immunity for their conduct during judicial proceedings is a question of law over which our review is plenary.” Simms v. Seaman, 308 Conn. 523, 530, 69 A.3d 880 (2013). As the doctrine of absolute immunity concerns a court’s subject matter jurisdiction; Stone v. Pattis, 144 Conn. App. 79, 96-97, 72 A.3d 1138 (2013); we are “mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Id., 95. The question before us is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive dismissal on the grounds of absolute immunity. Rioux v. Barry, 283 Conn. 338, 341, 343 927 A.2d 304 (2007).

Our case law differentiates between actions based on alleged misconduct by an attorney in his role as advocate, such as defamation and fraud, and actions that challenge the underlying purpose of the litigation itself, such as vexatious ligation and abuse of process. Simms v. Seaman, supra, 308 Conn. 546. For the former category, the law protects attorneys from suit in order to encourage zealous advocacy on behalf of their clients, unrestrained by the fear of exposure to tort liability. Id., 535-36. On this basis, we recently have held that claims against attorneys for negligent infliction of emotional distress are barred when the alleged conduct giving rise to the action occurs in the course of judicial proceedings. Stone v. Pattis, supra, 144 Conn. App. 98.

In the present case, the plaintiff alleged Giuliano, in the course of representing Gamble-Perugini in divorce proceedings against the plaintiff: (1) failed to disclose a conflict of interest with the presiding judge, (2) exerted improper influence over the judge to obtain favorable monetary rulings, and (3) filed court actions without Gamble-Perugini’s consent for her own financial benefit. All of this alleged conduct occurred in the context of the dissolution proceedings between the plaintiff and Gamble-Perugini. Giuliano therefore is immune from any claim of negligent infliction of emotional distress arising from that conduct. See id.

We recognize that the plaintiff alleged that certain proceedings at issue were not brought for a proper purpose, as they were allegedly initiated by Giuliano without Gamble-Perugini’s consent for the sole purpose of self-enrichment. These allegations may have properly formed the basis for an abuse of process action, where “a legal process [is used] against another primarily to accomplish a purpose for which it is not designed”; [internal quotation marks omitted] Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987); and absolute immunity does not necessarily attach. Id., 497. Nonetheless, the allegation that certain judicial proceedings were not brought for a proper purpose does not in itself remove immunity for attorneys in negligent infliction of emotional distress actions. See Simms v. Seaman, supra, 308 Conn. 526-28, 569-70 (attorney who allegedly misrepresented client’s financial situation in order to seek court ordered payments immune from action for intentional infliction of emotional distress). In order to avoid dismissal, such an action against an attorney must allege conduct that occurred outside the scope of judicial proceedings. See Heim v. California Federal Bank, 78 Conn. App. 351, 367, 828 A.2d 129 (holding that absolute immunity did not apply to intentional infliction of emotional distress claim where “some of the allegations . . . [were] based on . . . conduct that occurred outside the scope of judicial proceedings”), cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). Thus, the court’s decision to dismiss the plaintiffs claim on the basis of absolute immunity was proper.

m

Next, the plaintiff challenges Judge Shapiro’s orders striking the plaintiffs August 6, 2012 substitute complaint from the docket and entering judgment for the defendants.

A

First, the plaintiff argues that the defendants’ objection to his substitute complaint, rather than a motion to strike, was an improper vehicle to challenge a complaint filed pursuant to Practice Book § 10-44. We disagree.

“The interpretive construction of the rules of practice . . . involves a question of law and our review . . . is plenary.” (Citation omitted; internal quotation marks omitted.) Commissioner of Social Services v. Smith, 265 Conn. 723, 733-34, 830 A.2d 228 (2003). Judge Shapiro, in determining he could consider the defendants’ objection, first noted that the procedural posture in this case differs from those in the two cases cited by the plaintiff in support of his argument. The court noted that in each of the cases cited by the plaintiff, Smith v. Furness, 117 Conn. 97, 100, 166 A. 759 (1933), and Newman v. Golden, 108 Conn. 676, 679-80, 144 A. 467 (1929), permission was sought to file the amended pleading. Here, the plaintiff did not seek permission to file the August 6, 2012, substitute complaint. In addition, neither of these cited cases involved an objection, as in this case, that the substitute complaint violated prior court orders. The court then indicated, “[0]ther courts have considered objections to complaints which were filed after a motion to strike was granted.” Second, the court, noting that the defendants were claiming that the substitute complaint violated prior orders in the case, stated: “It is fundamental that no one has a right to disobey the orders of any court of this state .... Consideration of an objection where a party asserts that a pleading has been filed in violation of a court order, even though the Practice Book does not specifically provide for such an objection, is also supported by Practice Book § 1-8 . . . which requires that Practice Book provisions be construed to advance justice. . . . The proper administration of justice includes the necessity of enforcement of compliance with court orders.” (Citations omitted; footnote in original; internal quotation marks omitted.)

The defendants, as part of their objection, argued that the substitute complaint violated the orders of Judge Trombley and Judge Dooley, and that it was “prejudicial in that, two years into the case, the plaintiff seeks ‘another bite of the apple’ by stating claims and allegations already ruled to have be legally insufficient and improper . . . .”

We agree that to permit a party to persist in refiling pleadings in a form previously disallowed does not advance the interests of justice. Rather, it encourages needless delay and places an unnecessary and unfair burden on the party who previously has successfully stricken or objected to the improper filing. When parties engage in such tactics, their opponent and the court needlessly and repetitively are forced back to square one. Furthermore, we conclude, after reviewing the defendants’ objection and the plaintiffs reply to it, that the court proceeded properly. Those pleadings provided the parties with a full and fair opportunity to be heard, quite similar in nature to a case where a request to revise, and a consequent objection thereto, has been filed.

B

Next, the plaintiff claims that Judge Shapiro erred in striking the plaintiffs August 6, 2012 substitute complaint from the docket because the court lacked the authority to disallow a substitute complaint filed by right pursuant to Practice Book §10-44. We disagree.

As previously noted in part III A of this opinion, because this claim involves the interpretive construction of the rules of practice, our review is plenary. Practice Book § 10-44 provides that “[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading.” This court has clarified that this right “is limited to making those corrections needed to render the claims set forth in the original pleading legally sufficient. It is not an opportunity to file wholly amended pleadings that assert new legal claims . . . permission for which ordinarily could be obtained only in accordance with the provisions of Practice Book § 10-60.” GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 180-81, 73 A.3d 742 (2013); see also Stone v. Pattis, supra, 144 Conn. App. 94-95 (“Practice Book § 10-44 does not permit [a party] to add new counts in subsequent amended complaints following the court’s decision striking the . . . complaint in accordance with our rules of practice”). An example of aproper pleading filed pursuant to Practice Book § 10-44 is one that “supplies] the essential allegation lacking in the complaint that was stricken.” Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 551-52 n.4, 427 A.2d 822 (1980).

In the present case, subsequent to the granting of the defendants’ motion to strike, the plaintiff had the right to file a substitute complaint correcting the legal deficiencies of the stricken count alleging wilful violation of the Rules of Professional Conduct. As the plaintiff has since acknowledged, however, the Rules of Professional Conduct do not give rise to a private cause of action. See Noble v. Marshall, 23 Conn. App. 227, 231, 579 A.2d 594 (1990). Thus, there was no “essential allegation” or any other correction to be added that would have made the stricken count legally sufficient.

Instead, the plaintiff filed an entirely new complaint asserting six legal theories for relief that had not been asserted in his stricken complaint. As Practice Book § 10-44 does not provide for the assertion of new legal claims, the court properly concluded that this substitute complaint should have been accompanied by a request for leave to amend pursuant to Practice Book § 10-60 (a), only to be accepted at the court’s discretion. To allow the plaintiff to state new causes of action following the granting of a motion to strike under Practice Book § 10-44 would nullify the procedure of requiring court approved amendments pursuant to Practice Book § 10-60. Accordingly, Judge Shapiro properly held that the plaintiff could not file new causes of action following the granting of the defendants’ motion to strike and that the plaintiff violated Practice Book § 10-60 in failing to seek leave to amend his complaint.

C

We next consider whether Judge Shapiro improperly concluded that the plaintiff, in filing the August 6, 2012 substitute complaint, disregarded the law of the case by violating Judge Trombley’s and Judge Dooley’s previous orders. We do not agree.

We consider whether a court correctly applied the law of the case doctrine under an abuse of discretion standard. “The law of the case doctrine provides that [w]here a matter has previously been ruled upon inter-locutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Internal quotation marks omitted.) Signore v. Signore, 110 Conn. App. 126, 133, 954 A.2d 245 (2008).

In sustaining the defendants’ objection to the plaintiffs August 6,2012 substitute complaint, Judge Shapiro found that on February 22, 2012, the plaintiff filed a request to amend his February 21, 2012 revised complaint, which was substantially premised on claimed violations by Giuliano of the Rules of Professional Conduct and allegations concerning unauthorized representation of his former wife by Giuliano. He further found that in objecting to the February 22, 2012 proposed amended complaint, the defendants claimed that that proposed amendment was untimely, as it was filed sixteen months after the return day. The defendants also claimed that the proposed amended complaint expanded previous factual allegations and added new causes of action despite the fact that the additional events alleged by the plaintiff all occurred before the return day. The defendants “asserted that the proposed amendment would delay trial . . . [and] cause them inconvenience, in that, since the inception of the matter, they had defended the action based on one set of allegations and causes of action, and should not be forced to start over in protracted litigation.”

Judge Shapiro also found that Judge Dooley’s memorandum of decision striking the first count of the plaintiffs May 22,2012 second revised complaint specifically determined that “any count based on a violation of the Rules of Professional Conduct is legally insufficient.” Judge Shapiro then stated: “In the [substitute] complaint, the first count is again premised on numerous alleged violations of the Rules of Professional Conduct by [Giuliano] in her representation of the plaintiffs former wife. ... In each of the subsequent counts of the [substitute] complaint, the plaintiff incoiporates all of the allegations contained in the first count. Thus, the core of each count is premised on alleged violations of the Rules of Professional Conduct by [Giuliano] . . . . In addition, starting with the second count, the plaintiff adds in again the expanded allegations as to alleged unauthorized representation [that] were first contained in the first proposed amended complaint [of February 22, 2012]. . . . Judge Trombley’s March 21, 2012 order sustained the defendants’ objection, [such that] the first proposed amended complaint did not become operative. These expanded allegations are also incorporated by reference in each of the subsequent counts of the currently proposed [substitute] complaint. In the sixth count, the plaintiff expands on the allegations to add that he suffered additional stress and anguish in the course of the dissolution action.” (Footnotes added.)

It is clear in striking the substitute complaint that Judge Shapiro concluded that the plaintiff was violating the prior orders of both Judge Trombley and Judge Dooley. Judge Shapiro stated: “[The] plaintiff has not restated a cause of action by supplying the essential allegation lacking in the complaint that was stricken. . . . Rather, he has alleged a set of facts which are not materially different than that single group of facts which was the subject of Judge Dooley’s memorandum of decision.” (Citation omitted; internal quotation marks omitted.) With respect to Judge Trombley’s prior orders, Judge Shapiro further articulated: “[C]ontrary to Practice Book § 10-60 (a), and Judge Trombley’s [March 21, 2012] order, in the [substitute] complaint, the plaintiff seeks, without consent or the court’s permission, to amend the complaint to add factual allegations and legal theories which were not allowed by Judge Trombley’s ruling sustaining the plaintiffs previous objection to the plaintiffs request to amend. . . . [T]he plaintiff previously sought to add the expanded allegations concerning alleged unauthorized representation, which was not permitted. In addition, the plaintiff previously sought to claim conspiracy to defraud and violation of CUTPA, both of which are now included as theories in the [substitute] complaint. Judge Trom-bley’s ruling precluded these amendments. The plaintiffs [substitute] complaint’s changes in legal theories are even more untimely now than when Judge Trombley sustained the defendants’ objection to the plaintiffs request to amend in March 2012.”

In summary, Judge Shapiro found that the plaintiff, in his substitute complaint, sought to add the expanded allegations concerning alleged unauthorized representation, which previously were not permitted by Judge Trombley. In addition, the plaintiff sought to add counts sounding in conspiracy to defraud and violation of CUTPA, which Judge Trombley also had disallowed. Furthermore, all of his proposed new counts included references to violations of the Rules of Professional Conduct, which Judge Dooley ruled rendered any count legally insufficient. Finally, all of the plaintiffs proposed new counts were untimely in fight of the time the case had been pending and the fact that all of the new allegations pertained to events that occurred prior to the initiation of this action. After a thorough review of the pleadings, we do not find error in Judge Shapiro’s conclusion that all of the newly alleged counts in the plaintiffs substitute complaint contained materially similar allegations to those in his February 22, 2012 first proposed amended complaint, as rejected by Judge Trom-bley, and the first count of his May 22, 2012 second revised complaint, as rejected by Judge Dooley. Given that similarity and the considerable amount of time that had passed since the action initially was brought, it was within Judge Shapiro’s discretion to sustain the defendants’ objection to the plaintiffs substitute complaint.

In his claim as to the impropriety of Judge Shapiro’s rulings, the plaintiff also argues, in conclusory fashion with scant analysis, that he was denied due process when Judge Shapiro struck the plaintiffs substitute complaint from the docket and subsequently rendered judgment for the defendants. We disagree.

“A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved .... It is a fundamental tenet of due process of law . . . that persons whose . . . rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Stone v. Pattis, supra, 144 Conn. App. 87 n.6.

Practice Book § 10-44 provides that “in those instances where an entire complaint . . . has been stricken, and the party whose pleading . . . has been so stricken fails to file a new pleading within [a] fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint . . . .” Here, the plaintiffs entire complaint was stricken on July 26, 2012. On or before August 9, 2012, the plaintiff failed to file a proper new pleading. Before his substitute complaint was stricken, he had ample opportunity to reply to the defendants’ objection to it. After Judge Shapiro considered all of the plaintiffs arguments and ruled on the defendants’ objection, the case fell squarely within the provision of Practice Book § 10-44, allowing Judge Shapiro to grant the defendants’ September 27, 2012 motion for judgment. Despite his reliance on Practice Book § 10-44, the plaintiff had no right under that provision to replead the August 6, 2012 substitute complaint, as that complaint was not disposed of by means of a motion to strike, but rather by objection. On September 25, 2012, Judge Shapiro’s decision on the defendants’ objection to the substitute complaint gave the plaintiff guidance as to a possible way to remedy the legal and procedural deficiencies of his pleading. He could have requested leave to file an amended complaint, but he failed to do so before the court ruled on the defendant’s motion for judgment, despite the fact that a properly amended complaint was long overdue as a result of Judge Dooley’s July 26,2012 ruling. See Peoples v. Carberry, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-5013413-S (June 14,2011) (52 Conn. L. Rptr. 106) (plaintiff who improperly filed amended complaint alleging new causes of action in derogation of Practice Book § 10-44 would likely be able to subsequently file request for leave to amend absent any claim of unfair prejudice). A period of twenty days then elapsed before Judge Shapiro granted the defendants’ September 27, 2012 motion for judgment on October 17, 2012, after the court considered the plaintiffs dilatory motions for an extension of time to plead and to reargue for the acceptance of his August 6, 2012 substitute complaint, which motions were not filed until October 11, 2012. Given the ample time and opportunity afforded to the plaintiff, it cannot be said that his due process rights were violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 10-35 provides: “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defenses improperly combined in one defense, or (4) any other appropriate correction in an adverse party’s pleading, the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”
      Practice Book § 10-37 (b) explains the procedure for objecting to a request to revise, and provides in relevant part: “If the judicial authority overrules the objection, a substitute pleading in compliance with the order of the judicial authority shall be filed within fifteen days of such order.”

       The plaintiff argues that his May 22, 2012 second revised complaint contained the expanded allegations as to unauthorized representation that Judge Trombley had disallowed in his order of March 21, 2012, and that the defendants’ failure to file a request to revise for a second time to object to these expanded allegations constituted a waiver of any objection to their inclusion. A review of the first and second revised complaints, however, indicates that the expanded allegations as to unauthorized representation in the first proposed amended complaint that were prohibited by Judge Trombley are not contained in the plaintiffs second revised complaint. Accordingly, we find no waiver on the part of the defendants that somehow would have negated Judge Trombley’s order.

       The plaintiff has not appealed the order striking the first count of his May 22, 2012 second revised complaint.

       Practice Book § 10-44 provides in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . . .”

       Practice Book § 10-60 provides in relevant part:
      “(a) ... [A] party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to [the first thirty days after the return day] in the following manner:
      “(1) By order of judicial authority; or
      “(2) By written consent of the adverse party; or
      “(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party . . . and with proof of service endorsed thereon. . . .

        “(b) The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.”

       Nearly a month later, on February 27, 2012, the plaintiff filed a motion to reargue, asking Judge Trombley to reconsider the decision suspending the February 8, 2012 deposition. By that point, the parameters of any proposed rescheduled deposition had been greatly altered, as the court had pending before it the plaintiffs request for leave to file his February 22,2012 proposed amended complaint. It would have been impossible for the court to reschedule the deposition after only reconsidering the status of the parties’ dispute as of February 8, 2012. Judge Trombley summarily denied the motion to reargue. The plaintiff has not sought articulation of this order or appealed the denial of the motion to reargue.

       The plaintiff also claims that the court acted improperly in dismissing the claim absent the defendants’ filing of a motion to dismiss. This claim is without merit, as “[i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.” (Internal quotation marks omitted.) Stone v. Pattis, 144 Conn. App. 79, 96, 72 A.3d 1138 (2013).

       See Walker v. Temple Surgical Center, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-CV-06-5005306-S (February 7,2008) (objection to revised complaint considered and sustained after granting of motion to strike); Estate of Ridgaway v. Cowles & Connell, Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X04-CV-03-0103616-S (October 14,2004) (objection to substitute complaint filed after granting of motion to strike accepted and treated in nature of request to revise by court); Dodge v. Lane, Superior Court, judicial district of Fairfield, Docket No. CV-96-0332808-S (April 9,1998) (request for leave to amend complaint denied pursuant to doctrine of law of the case based on defendant’s objection after court already had sustained objection to same claim asserted in prior complaint).

       Practice Book § 1-8 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

       Our Supreme Court has found it appropriate for a defendant to file either a motion to strike or a request to revise when an allegedly improper revised complaint replaces a stricken complaint, especially when the allegations of the revised complaint appear to be the same in substance as those of the earlier, stricken complaint. See Royce v. Westport, 183 Conn. 177, 180-81, 439 A.2d 298 (1981); Good Humor Corp. v. Ricciuti, 160 Conn. 133, 137, 273 A.2d 886 (1970); see also Parker v. Ginsburg, 85 Conn. App. 777, 781, 859 A.2d 46 (2004) (when allegations of amended complaint appear to be same in substance as those of earlier complaint that was stricken, defendant may challenge amended complaint by filing request to revise); P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 50, 643 A.2d 1302 (either motion to strike or request to revise may be used when amended complaint merely restates original cause of action that was previously stricken), cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). None of these cases, however, involve a plaintiff attempting to utilize Practice Book § 10-44 to circumvent the sustaining of an objection to a previous request to amend the complaint prior to the decision granting a motion to strike. Thus, the factors to be considered in whether to permit the amendment, as set forth in Practice Book § 10-60 and cited in Judge Trombley’s order, were not at issue in those cases. It is undeniable that an objection to an amended complaint is a proper vehicle to ask the court to preclude a party from filing an amended complaint pursuant to § 10-60 for reasons such as delay or prejudice, reasons cited by the defendants in this case. See Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 257-58, 905 A.2d 1165 (2006) (upholding court’s decision to sustain objection to amended complaint on grounds of delay and prejudice).

       The unauthorized representation allegations that first appeared in the plaintiff s February 21,2012 revised complaint are expanded upon by including three additional sentences in the plaintiffs February 22, 2012 proposed amended complaint

       See paragraph 7 of all counts of the substitute complaint.

       “The Rules of Professional Conduct caution those who seek to rely on their provisions. They provide a framework for the ethical practice of law. . . . Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.” (Internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 403, 766 A.2d 416 (2001). Notably, the defendants, in their objection to the plaintiffs request for leave to file his February 22, 2012 proposed amended complaint, alleged that the grievance panel for the statewide grievance committee had dismissed the plaintiffs complaint against Giuliano on November 30, 2011, finding no probable cause. The defendants attached a copy of the panel’s decision to their objection.

       In Ms memorandum of decision on the plaintiffs motion to reargue, Judge Shapiro also noted that “[s]tyling the facts, as alleged in the [August 6,2012 substitute] complaint, as supporting claims of alienation of affection (second count); abuse of process (fourth count); vexatious litigation (fifth count); and intentional infliction of emotional distress (sixth count), does not change the fact that the expanded allegations were not permitted by Judge Trombley and that the allegations are not materially different from those addressed by Judge Dooley’s decision, wMch ... is the law of the case.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BRIAN WATKINS ET AL. v. ROMI MASONRY CONSTRUCTION, LLC, ET AL.
    (AC 35562)
    Bear, Keller and Norcott, Js.
    Argued January 14—
    officially released February 4, 2014
   Defendants’ appeal from the Superior Court in the judicial district of Stamford-Norwalk, Genuario, J.

Per Curiam.

The judgment is affirmed.


text:
    BILLY HUNT v. COMMISSIONER OF CORRECTION
    (AC 34168)
    Lavine, Beach and Sheldon, Js.
    Argued January 14—
    officially released February 4, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Newson, J.

Per Curiam.

The appeal is dismissed.


text:
    CHARLES TUCKER v. COMMISSIONER OF CORRECTION
    (AC 34126)
    Gruendel, Sheldon and Pellegrino, Js.
    Argued January 16—
    officially released February 11, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Sferrazza, J.

Per Curiam.

The appeal is dismissed.


text:
    MICHAEL MOURNING v. COMMISSIONER OF CORRECTION
    (AC 34514)
    Gruendel, Beach and Alvord, Js.
    Argued January 21—
    officially released February 11, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, T. Santos, J.

Per Curiam.

The judgment is affirmed.


text:
    RAMSEY QUIJANO v. COMMISSIONER OF CORRECTION
    (AC 35131)
    Lavine, Beach and Alvord, Js.
    Argued January 22—
    officially released February 11, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Cobb, J.

Per Curiam.

The appeal is dismissed.


text:
    LAWRENCE GRANT v. COMMISSIONER OF CORRECTION
    (AC 34735)
    Sheldon, Keller and Bishop, Js.
    Argued January 23—
    officially released February 11, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Shapiro, J.

Per Curiam.

The judgment is affirmed.


text:
    NADINE M. CHANCE v. NOEL R. CHANCE
    (AC 35229)
    Gruendel, Lavine and Alvord, Js.
    Submitted on briefs January 22—
    officially released February 25, 2014
   Defendant’s appeal from the Superior Court in the judicial district of Litchfield, Danaher, J.; Trombley, J.

Per Curiam.

The judgment is affirmed.


text:
    ANTHONY JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 35273)
    Lavine, Keller and Borden, Js.
    Argued February 7—
    officially released March 4, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Mullarkey, J.

Per Curiam.

The appeal is dismissed.


text:
    ALAN C. HALL v. COMMISSIONER OF CORRECTION
    (AC 34647)
    Beach, Keller and Borden, Js.
    Argued February 11—
    officially released March 11, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Newson, J.

Per Curiam.

The judgment is affirmed.


text:
    CEFLA FINISHING AMERICA, INC. v. KITCHENS AND BATHS BY CAM, LLC
    (AC 35428)
    Alvord, Keller and Pellegrino, Js.
    Argued February 18—
    officially released March 18, 2014
   Defendant’s appeal from the Superior Court in the judicial district of Fairfield, Levin, J.; Hon. Richard P. Gilardi, judge trial referee.

Per Curiam.

The judgment is affirmed.


text:
    JORDEN WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 35113)
    DiPentima, C. J., and Gruendel and Beach, Js.
    Argued February 18—
    officially released March 18, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Newson, J.

Per Curiam.

The appeal is dismissed.


text:
    DAVID PALMER v. COMMISSIONER OF CORRECTION
    (AC 34399)
    Gruendel, Alvord and Bishop, Js.
    Argued February 19—
    officially released March 18, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Newson, J.

Per Curiam.

The appeal is dismissed.


text:
    CITIBANK, N.A. v. NABIL R. GHAWI
    (AC 35514)
    Gmendel, Alvord and Bishop, Js.
    Argued February 19—
    officially released March 25, 2014
   Defendant’s appeal from the Superior Court in the judicial district of Stamford-Norwalk, Tobin, J.; Hon. A. William Mottolese, judge trial referee; Hon. Taggart D. Adams, judge trial referee.

Per Curiam.

The judgment is affirmed.


text:
    WELLS FARGO BANK, N.A. v. WILLIAM H.B. SMART ET AL.
    (AC 35628)
    Bear, Keller and Pellegrino, Js.
    Argued February 20—
    officially released March 25, 2014
   Defendants’ appeal from the Superior Court in the judicial district of Fairfield, Hartmere, J.; Tyma, J.

Per Curiam.

The judgment is affirmed.


text:
    RONALD SCHIAVO v. COMMISSIONER OF CORRECTION
    (AC 35059)
    Gruendel, Alvord and Bear, Js.
    Argued February 21—
    officially released March 25, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Cobb, J.

Per Curiam.

The judgment is affirmed.


text:
    CHARTER OAK FEDERAL CREDIT UNION v. SHERI A. SPEER
    (AC 35855)
    DiPentima, C. X, and Keller and West, Js.
    Argued March 4—
    officially released March 25, 2014
   Defendant’s appeal from the Superior Court in the judicial district of New London, Cosgrove, J.

Per Curiam.

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


text:
    JAMES WOMACK v. COMMISSIONER OF CORRECTION
    (AC 34874)
    Bear, Sheldon and Schaller, Js.
    Argued March 3—
    officially released March 25, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Cobb, J.

Per Curiam.

The appeal is dismissed.


text:
    LUIS OCASIO v. COMMISSIONER OF CORRECTION
    (AC 34452)
    DiPentima, C. X, and Lavine and Alvord, Js.
    Argued March 5—
    officially released March 25, 2014
   Petitioner’s appeal from the Superior Court in the judicial district of Tolland, Newson, J.

Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. ALEXIS SANTOS
    (AC 35755)
    Lavine, Beach and Alvord, Js.
    Argued March 3—
    officially released March 25, 2014
   Defendant’s appeal from the Superior Court in the judicial district of Waterbury, Crawford, J.

Per Curiam.

The judgment is affirmed.


text:
    PORTFOLIO RECOVERY ASSOCIATES, LLC v. KRISTEN JENCKS
    (AC 35444)
    Lavine, Beach and Alvord, Js.
    Argued March 3—
    officially released March 25, 2014
   Defendant’s appeal from the Superior Court in the judicial district of Windham at Putnam, Calmar, J.

Per Curiam.

The judgment is affirmed.


author: PER CURIAM.

text:
    CARRIE MANKA v. THE WALT DISNEY COMPANY
    (AC 34777)
    Alvord, Bear and Harper, Js.
    Argued October 15, 2013
    officially released March 25, 2014

      Jennifer B. Levine, with whom was Harvey L. Levine, for the appellant (plaintiff).

      Michael T. McCormack, with whom, on the brief, was Michael C. Sorensen, for the appellee (defendant).
   Opinion

PER CURIAM.

This action arises out of an automobile accident between the plaintiff, Carrie Manka, and a nonparty, Nicole Briscoe. The plaintiff sought to hold the defendant, The Walt Disney Company, hable for her injuries as Briscoe’s employer. The plaintiff appeals from the judgment of the court granting the defendant’s motion to dismiss for lack of personal jurisdiction, arguing that the dismissal was based on factual findings that were clearly erroneous. We affirm the judgment of the trial court.

The court made the following findings of fact, as detailed in its memorandum of decision. Keko Media, Inc. (Keko), entered into a contract with ESPN Productions, Inc. (ESPN), agreeing that Briscoe would provide commentary and analysis for ESPN television and radio programs. Pursuant to the contract, ESPN assigned Briscoe’s appearances and arranged her travel accommodations. On December 7, 2008, Briscoe was driving to ESPN’s Connecticut office when the rental car she was operating collided with the plaintiffs vehicle in Bristol.

On September 9, 2010, the plaintiff commenced the present action. By way of a timely motion to dismiss, the defendant argued that the court lacked personal jurisdiction over it because it is a foreign corporation, and the plaintiff could not satisfy Connecticut’s long arm statute, General Statutes § 33-929 (f). The plaintiff, a Connecticut resident, conceded that the defendant is a foreign corporation, but argued that it was still amenable to suit pursuant to the long arm statute. In order to decide the jurisdictional question, the parties were provided with an opportunity to conduct discovery and present admissible evidence to the court at an evidentiary hearing.

Pursuant to § 33-929 (f), a Connecticut court has jurisdiction over a foreign corporation, inter alia, “on any cause of action arising as follows: (1) [o]ut of any contract made in this state or to be performed in this state ... or (4) out of tortious conduct in this state . . . .” In support of her claim that the court had personal jurisdiction over the defendant, the plaintiff argued that the defendant is a party to the contract between Keko and ESPN, which required Briscoe to work in Bristol. This claim is based on language in the contract that defines ESPN as including “[ESPN’s] parent, subsidiary, and affiliated companies.” The plaintiff argued that the defendant is an “affiliated compan[y]” pursuant to the contract by virtue of the corporate relationship between ESPN and the defendant, and therefore the defendant is a party to the contract. Furthermore, the plaintiff claimed that the accident occurred while Briscoe was performing the contract. This leads to the conclusion, according to the plaintiff, that there is jurisdiction based on a cause of action arising out of a contract to be performed in the state. The plaintiff also claimed, in the alternative, that the court had jurisdiction because the defendant engaged in tortious conduct in the state. This claim is based on the proposition that Briscoe was the defendant’s employee at the time of the accident. The plaintiff reasoned that personal jurisdiction existed because the defendant is responsible for Briscoe’s actions as its employee, and therefore the defendant is liable for a tort committed within the state.

The court concluded that there was no credible evidence submitted in the present action that the defendant conducted business in or entered into a contract to be performed in Connecticut. With respect to the relationship between the defendant and ESPN, the court characterized the evidence submitted as “unreliable,” consisting of “a variety of printouts from internet websites that are otherwise unauthenticated.” The court also concluded that Briscoe was not the defendant’s employee but rather was employed by Keko. On the basis of these conclusions, the court granted the defendant’s motion to dismiss. The plaintiff filed a timely appeal.

The plaintiff argues that the court erred in granting the defendant’s motion to dismiss because the court improperly concluded (1) that the defendant was not a party to the contract between ESPN and Keko, and (2) that Briscoe was not employed by the defendant. When a motion to dismiss for lack of personal jurisdiction over a foreign corporation raises issues of fact in fight of the record, the burden is on the plaintiff to establish that the court has jurisdiction. Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). “A motion to dismiss . . . properly attacks the jurisdiction of the court . . . .” (Internal quotation marks omitted.) Narayan v. Narayan, 305 Conn. 394, 401, 46 A.3d 90 (2012).

“[0]ur review of the court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn. App. 218, 221, 31 A.3d 429 (2011). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App. 526, 533, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004). “The applicable standard of review for the [granting] of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury, supra, 221.

The plaintiff argues that the court erred in dismissing the case because the court improperly concluded that the defendant was not a party to the contract between Keko and ESPN. The court found that the present action “does not derive from any contract that [the defendant] made in this state or that [the defendant] caused to be performed in this state.” The court also found that, based on the plaintiffs evidence, “the two companies appear to be linked through a number of intermediary corporations.” The relationship that exists between two companies is a finding of fact subject to the clearly erroneous standard of review. See Naples v. Keystone Building & Development Corp., 295 Conn. 214, 234, 990 A.2d 326 (2010) (decision to pierce corporate veil subject to clearly erroneous standard of review). Although the court found the companies appeared to be linked through intermediary corporations, the court’s finding that there was no direct relationship between the defendant and ESPN was based on the absence of credible evidence that such a relationship existed. After a careful review of the record, we agree with the court’s characterization of the evidence alleging a direct relationship as “unreliable,” and we conclude that the court’s finding was not clearly erroneous. See Herring v. Daniels, 70 Conn. App. 649, 659-60, 805 A.2d 718 (2002) (finding based on absence of evidence not clearly erroneous).

The plaintiff also claims the court erred in concluding that Briscoe was not the defendant’s employee. The conclusion that an individual is an employee is a finding of fact subject to the clearly erroneous standard of review. Nationwide Mutual Ins. Co. v. Allen, supra, 83 Conn. App. 533. The distinguishing characteristic of an employer-employee relationship is “the right to control the means and methods used by the worker in the performance of his or her job.” (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 680-81, 748 A.2d 834 (2000). The court found that Briscoe was Keko’s employee and not employed by the defendant. This finding was not clearly erroneous. The agreement between Keko and ESPN states that Keko will make Briscoe available to ESPN to provide commentary and analysis at ESPN’s discretion. This supports the finding that Briscoe was Keko’s employee.

In light of our conclusion that the findings were not clearly erroneous, we affirm the court’s judgment granting the defendant’s motion to dismiss for lack of personal jurisdiction. The court’s finding that the defendant was not a party to the contract defeats the argument that the cause of action is based on a contract entered into or to be performed in this state. Also, the plaintiffs claim that the defendant committed a tortious act in Connecticut through Briscoe is unavailing because the court’s conclusion that Briscoe was not the defendant’s employee was not clearly erroneous. See Elliott v. Waterbury, 245 Conn. 385, 408, 715 A.2d 27 (1998) (defendant not hable for acts of person not agent or employee). We conclude that the plaintiff did not sustain her burden of proving that the court had personal jurisdiction over the defendant pursuant to § 33-929 (f), and that the court properly granted the motion to dismiss.

The judgment is affirmed.

       The plaintiff also claims that the court erred by failing to pierce the corporate veil. Because the plaintiff did not argue this theory before the court, she is precluded from raising it on appeal. Rosenblit v. Laschever, 115 Conn. App. 282, 287 n.4, 972 A.2d 736 (2009).

       Briscoe is also the president of Keko.

       The court found that because the defendant was not the owner of the rental car, the plaintiff could not utilize General Statutes § 52-183, which establishes in civil actions a presumption that the operator of the vehicle is the owner’s agent. The plaintiff does not challenge this determination on appeal.

       The plaintiff initially commenced an action against Briscoe, the rental car company, ESPN, and the defendant. The plaintiff failed to properly serve the defendant in that action, and thereafter initiated the present action.

       The plaintiff also claims on appeal that the court improperly quashed her subpoena. During the discovery phase leading up to the evidentiary hearing, the plaintiff subpoenaed ESPN’s “keeper of records” to produce certain documents. The defendant filed a motion to quash, which the court granted in part in an order stating: “[A]ny future subpoenas duces tecum served upon [ESPN] . . . similar to those which are subject to the motion ... to quash ... are limited to an itemization of those payments made by or on behalf of the defendant . . . pursuant to the [agreement between Keko and ESPN] and the corresponding documentation.” The plaintiff served ESPN with a second subpoena requesting that it produce records at the evidentiary hearing. At the hearing, the plaintiff argued that the defendant failed to produce the documents requested. The court concluded that, in light of the limitations in the previous order, the second subpoena sought the same materials requested in the previous one. Furthermore, the court concluded that the defendant had complied with the previous request.
      “[T]he granting or denial of a discovery request rests in the sound discretion of the court. . . . [T]hat decision will be reversed only if such an order constitutes an abuse of discretion. . . . Under the abuse of discretion standard, we must make every reasonable presumption in favor of the trial court’s action.” (Citation omitted; internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 775, 48 A.3d 16 (2012). “Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings.” (Internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 13, 35 A.3d 177 (2011). After carefully reviewing the two subpoenas, we conclude that the court did not abuse its discretion in determining that they requested the same material. In light of this, and the deference we afford the court’s credibility determination, the plaintiffs claim fails.

       The plaintiff also argues that the court improperly excluded evidence as to whether the defendant is an “insurer” under General Statutes § 38a-271 (a). At the evidentiary hearing, the plaintiff presented letters from an insurance claims administrator to demonstrate that the administrator was the defendant’s agent. The court sustained the defendant’s hearsay objection to the evidence. The plaintiff claims that the letters were admissible under the statement by a party opponent exception to the hearsay rule because the claims administrator was the defendant’s agent. The determination that the letters were hearsay is subject to plenary review. State v. Foster, 293 Conn. 327, 334, 997 A.2d 199 (2009). Hearsay is an out-of-court statement offered to establish the truth of the matter asserted. Conn. Code Evid. § 8-1 (3). Hearsay evidence is inadmissible, subject to certain exceptions. Conn. Code Evid. § 8-2. Under the party opponent exception to the hearsay rule, a party must first offer prima facie evidence of an agency relationship before the agent’s statement is admissible. Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 959 (1978). We conclude that the court properly determined that the letters were hearsay, as they were offered to prove the truth of the matter asserted therein, namely, that the sender was the third party claims administrator for the defendant, and there was no other evidence of an agency relationship.

       The plaintiff avers that, during the evidentiary hearing, the court improperly declined to rule on her motion to compel. At the hearing, the plaintiff stated that it was her understanding that the court would hear her motion. The court instructed the plaintiff that it never issued a notice that it would hear a motion to compel on that date. The court repeated multiple times that the purpose of the hearing was to present evidence regarding the jurisdictional matter, and not to hear the merits of a motion to compel. The plaintiff did not file any motions during the one month period from the conclusion of the hearing until the court issued its decision. Furthermore, the caseflow request upon which the plaintiff relies in support of her argument relates to a separate action, to which the defendant is not a party. Based on a careful review of the record, we conclude that there was no error.

       We note that the court did not specifically interpret the term “affiliate” in the contract. Although the plaintiff sought an articulation from the court, she did not ask the court to articulate its interpretation of the term “affiliate. ” Instead, she claimed: “[T]he trial court fails to articulate on what basis it finds that ESPN is not a direct subsidiary of [the defendant] . . . .” Furthermore, in her brief on appeal the plaintiff claims that the contract “expressly includes [the defendant] as a party . . . .” Because the plaintiff has failed to raise this issue of contract interpretation, we will not address it sua sponte. See Calcano v. Calcano, 257 Conn. 230, 245, 777 A.2d 633 (2001).

       For the reasons previously stated with respect to the plaintiffs claim that the defendant is ESPN’s “affiliate,” we also conclude that it was not clearly erroneous for the court to find that the defendant was not Briscoe’s employer pursuant to the contract.

       Because we conclude that the plaintiff failed to satisfy § 33-929 (f), there is no need to engage in a constitutional analysis. Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983).


author: SCHALLER, J.

text:
    RAFAEL CRESPO v. COMMISSIONER OF CORRECTION
    (AC 35372)
    Lavine, Alvord and Schaller, Js.

      Argued October 22, 2013
    officially released March 25, 2014

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Adrienne Maciulewski, deputy assistant state’s attorney, for the appellant (respondent).

      Hilary Carpenter, assistant public defender, with whom, on the brief, was Carolyn Trotta, legal intern, for the appellee (petitioner).
   Opinion

SCHALLER, J.

The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting the third amended petition for a writ of habeas corpus filed by the petitioner, Rafael Crespo. On appeal, the respondent claims that the habeas court, in concluding that the petitioner was deprived of his right to the effective assistance of counsel, improperly determined that his trial counsel’s deficient performance was prejudicial. We agree with the respondent and, accordingly, reverse the judgment of the habeas court.

In the underlying criminal matter, the petitioner was charged with four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and one count of kidnapping in the second degree in violation of General Statutes § 53a-94. Following a jury trial, he was convicted of two counts of sexual assault in the first degree and one count of assault in the third degree. This court affirmed the judgment of conviction on direct appeal. Slate v. Crespo, 114 Conn. App. 346, 969 A.2d 231 (2009), aff'd, 303 Conn. 589, 35 A.3d 243 (2012). In doing so, this court determined the jury reasonably could have found the following facts.

“The [petitioner] met the victim during the summer of 2002, and the two began dating. At times relevant, the [petitioner] was a police officer and the victim was a college graduate student. In the months prior to December, 2002, the two engaged in sexual activities together, but this conduct did not include vaginal or anal intercourse. In December, 2002, the [petitioner] forcibly engaged in vaginal intercourse with the victim but, prior to this sexual encounter, she had been a virgin. On February 4, 2003, the victim sought medical attention at a college health clinic. Although the victim reported to a nurse that she had been raped, the victim declined to report the incident to the police. The victim believed that if she were to report the incident, the [petitioner’s] status as a police officer would protect him and that he would retaliate against her.

“Following this incident, the victim’s physical and psychological well-being suffered. The victim took steps to distance herself from the [petitioner]. For example, on several occasions she did not return the [petitioner’s] telephone calls or e-mails. The [petitioner] persisted in his efforts to continue the relationship by calling and e-mailing the victim. Also, he appeared uninvited at both her residence and place of employment. Nonetheless, the victim’s relationship with the [petitioner] continued, and she accepted favors and gifts from the [petitioner] and, on occasion, accepted his invitations to dinner and the like. The [petitioner’s] relationship with the victim, however, was characterized by violent outbursts. During an incident in March, 2003, the [petitioner] unexpectedly visited the victim at her residence. The [petitioner] angrily accused the victim of making herself look good so that she could attract other men. The [petitioner] called the victim a slut and physically assaulted her by punching her and pulling her hair. The [petitioner] told the victim that he wanted to end their relationship, yet the [petitioner] thereafter contacted the victim. The [petitioner] repeatedly threatened the victim, both implicitly and explicitly, with physical violence. Although the victim feared the [petitioner], she continued to spend time with him, often in public settings, and did not report any incidents of abuse to law enforcement personnel.

“In June, 2003, the victim returned to Connecticut from a family engagement in another state. The [petitioner] had instructed the victim to call him while she was away, but the victim had called him only once. When the victim arrived at the airport, the [petitioner] was waiting there for her and, taking her by the hand, angrily led her away from the airport. The [petitioner] drove the victim to her residence. Upon accompanying the victim inside, the [petitioner] played the messages that had been left on the victim’s telephone answering machine while she was away. Consequently, the [petitioner] heard a message left for the victim from a man who had met the victim at a local nightclub. The caller indicated that he thought the victim was attractive and that he wanted to see her again.

“Upon hearing this message, the [petitioner] became irate. The [petitioner] physically assaulted the victim by slapping the victim’s face, pulling her hair, punching her, kicking her and knocking her to the floor. The [petitioner] called the man who had left the message for the victim; he argued and yelled at him while the victim pleaded for the [petitioner] to stop.

“After the [petitioner] ended the telephone conversation, he continued his physical assault of the victim. Despite her protests, the [petitioner] hit, kicked and punched the victim about her body while yelling at her and calling her a whore. The [petitioner] punched the victim in the face and knocked her to the floor. Thereafter, the [petitioner] forcibly removed the victim’s clothing and vaginally raped her. Following the sexual assault, the [petitioner] left the residence. The victim reported this assault to her mother but not to the police. Shortly after this incident, the [petitioner] sent the victim an e-mail in which he expressed his intent to stop interacting with the victim. Nevertheless, the [petitioner] later resumed having contact with the victim.

“On May 15, 2004, the [petitioner] drove to the victim’s place of employment, and the victim permitted the [petitioner] to take her shopping and to a movie. The [petitioner] drove the victim to a shopping mall, where he purchased undergarments for her. Later, while the two were watching a movie, the [petitioner] became upset with the victim and hastily left the movie theater. The victim left the theater with the [petitioner] in his automobile. Following a dispute over the victim’s sunglasses, the [petitioner] became more and more agitated while driving the victim home. He began striking his steering wheel and was brandishing a gun. The [petitioner] drove his automobile into a parking lot where he began to beat the victim. The victim exited the automobile, but the [petitioner] pursued her and continued to strike her. The [petitioner] kicked the victim, causing her to fall to the ground. Among her injuries, the victim sustained a significant elbow injury. When the victim was unable to rise from the pavement, the [petitioner] drove away from the scene. Several minutes later, the [petitioner] returned and forced the victim into the automobile by pulling her hair and pushing her into the passenger seat.

“The victim told the [petitioner] that she did not want others at her college residence to see her in the condition that she was in. At her suggestion, the [petitioner] drove her to his parents’ home, where the victim stayed for several days. Thereafter, the [petitioner] and his father drove the victim back to her place of employment. In the following days, the victim sought treatment for her injuries from medical personnel at her college. At this time, the victim suffered emotionally, and her physical injuries ranged from the injury to her elbow to dehydration. The victim told a nurse and a physician that her boyfriend had beaten and sexually assaulted her. An administrator at the victim’s college also became aware of the victim’s condition as well as the victim’s concern for her safety. As a result, the victim moved into a more secure dormitory at the college. Despite discussing her claims of abuse with these individuals associated with her college, the victim declined to report the incidents of abuse to the police.

“In mid-June, 2004, on the victim’s birthday, the [petitioner] called the victim at her place of employment approximately fifty times. The victim agreed to go to dinner with the [petitioner]. After dinner, the two returned to the victim’s residence. The [petitioner], who was cordial during the date until this time, became irritable. He removed his clothing, accused the victim of staining his shirt during dinner and demanded that she clean the shirt. Upon the victim’s refusal, the [petitioner’s] anger escalated, and he became verbally abusive. Then, the -victim and the [petitioner] engaged in consensual vaginal intercourse. Afterward, the [petitioner] forcibly engaged in anal intercourse "with the victim against her will. The [petitioner] later left the victim’s apartment while she was showering.

“The [petitioner] and the victim remained in contact following this incident. By November, 2004, the victim had taken steps to end the relationship despite the [petitioner’s efforts to continue the relationship. In December, 2004, the victim reported the incidents of abuse to a police officer. The [petitioner]’s arrest followed.” (Footnotes omitted.) Id., 348-53.

Following his unsuccessful direct appeal, the petitioner brought this petition for a writ of habeas corpus, claiming, inter alia, that his trial counsel, Robert Pickering, was ineffective in failing to investigate and present at trial the testimony of Jeffrey Cruz, a witness who would have impeached the testimony of the victim.

Cruz, a lifelong friend of the petitioner, was referenced in the underlying criminal trial through the victim’s testimony regarding an incident of uncharged misconduct. Specifically, during presentation of the state’s case-in-chief, the victim testified that the petitioner physically assaulted her at Cruz’ New Jersey residence in February, 2004. In her specific testimony concerning the incident of uncharged misconduct, the victim related the following sequence of events. The victim and the petitioner had traveled to New Jersey to stay with Cruz on or about February 14, 2004, with the intention of staying for the weekend. One morning during their stay, an argument occurred between the victim and the petitioner in a second floor bedroom. In the midst of their argument, the petitioner punched the victim in the face causing her to fall to the floor near the bedroom door. He then slammed her hand with the door and left the residence. The victim, with visible bruises and cuts on her face, then went downstairs where she encountered Cruz. Cruz had heard the fighting and demanded to know what happened. Before the victim could explain, Cruz noticed the victim’s physical injuries. He then asked her to leave or cover her injuries with cosmetics. After telling him that she had nowhere to go, Cruz and the victim talked “for a few hours.” During their discussion, Cruz told the victim that “this is how [the petitioner] treats women . . . you need to break off the relationship and get out of it . . . [the petitioner] treats women like dogs.” The petitioner, testifying in his own defense during the criminal trial, denied assaulting the victim in New Jersey. Cruz was never presented as a witness during trial.

During the habeas trial, Cruz offered a different account of what occurred during the petitioner’s and victim’s February, 2004 visit to his residence. Cruz testified that he observed the petitioner exit his residence through the backdoor one morning. About five seconds later, he stopped the victim, who was “going after” the petitioner, because he wanted to avoid an argument occurring outside of his residence. He denied hearing any argument before the victim came downstairs and also denied observing any injuries, bruising, or cuts on the victim’s body. In addition, he testified that he did not tell the victim that the petitioner mistreated women, treated them like “dogs,” and that his conversation with her could not have lasted more than “two or three minutes.”

The habeas court determined that Pickering’s failure to present the testimony of Cruz constituted deficient performance and, but for such failure, there existed “a reasonable likelihood that the outcome of the petitioner’s criminal trial would have been different . . . ,” The court granted the petition, vacated the petitioner’s conviction, and remanded the case for a new trial. This appeal followed. Additional facts and procedural history will be set forth as necessary.

As a preliminary matter, we set forth the applicable standard of review and relevant principles of law that will guide our analysis. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland . . . [i]t is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied.” (Citations omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).

In the present case, the respondent concedes that the habeas court properly determined that Pickering’s failure to present Cruz as a witness during the petitioner’s criminal trial constituted deficient performance. The respondent’s only claim on appeal is that the court improperly applied Strickland’s prejudice prong in concluding that, but for Pickering’s deficient performance, there was a reasonable probability that the outcome of the underlying criminal trial would have been different.

In order to satisfy the prejudice prong, “the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . [T]he question is whether there is a reasonable probability that, absent the [alleged] errors, the [fact finder] would have had a reasonable doubt respecting guilt. . . .

“In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury. . . . Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 688-89. We note, however, that “the [Strickland] principles ... do not establish mechanical rules. . . . [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case [we] should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland v. Washington, supra, 466 U.S. 696.

In support of its claim that the court’s application of Strickland’s prejudice prong was fundamentally flawed, the respondent contends that the court failed to consider the totality of the evidence before the jury. Specifically, the respondent contends that “the state presented substantial independent evidence corroborating the victim’s testimony that the petitioner sexually and physically assaulted her, which the habeas court improperly failed to consider” in determining that Pickering’s failure to present Cruz as a witness was reasonably probable to produce a different result in the petitioner’s criminal trial. We agree.

The impact that Cruz’ “ostensibly credible” testimony likely would have had on the jury’s verdict in the underlying criminal trial “must be considered in light of all of the evidence that was before the jury.” Griffin v. Commissioner of Correction, 98 Conn. App. 361, 367, 909 A.2d 60 (2006). “Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.” (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 689.

Our review of the criminal trial record reveals that the February, 2004 incident of uncharged misconduct was “admitted only insofar as it [was] relevant to the relationship between the [victim] and the [petitioner].” “It is well established that [t]he jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions.” (Internal quotation marks omitted.) William C. v. Commissioner of Correction, 126 Conn. App. 185, 190-91, 10 A.3d 115, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011); see Strickland v. Washington, supra, 466 U.S. 695 (“[t]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision”). Even assuming, arguendo, that the jury would have fully credited Cruz’ testimony and discredited the victim’s testimony with respect to the February, 2004 incident of uncharged misconduct, we cannot conclude on the record before us that Pickering’s failure to present Cruz “likely would have permeated to some degree every aspect of the trial and raised a reasonable doubt in the minds of the [jurors] as to the petitioner’s guilt.” Bryant v. Commissioner of Correction, supra, 290 Conn. 523.

To begin with, the state presented evidence independent of the victim’s testimony with respect to each offense for which the petitioner was convicted. Turning first to the June, 2003 incident and the corresponding conviction of sexual assault in the first degree, the jury heard the testimony of the victim’s mother, who testified that the victim called her shortly after the petitioner had beaten and raped her in June, 2003. In addition, the jury was presented with e-mails sent by the petitioner to the victim shortly after the incident, as well as e-mails the victim’s mother sent to the police after receiving the telephone call from the victim. With respect to the May, 2004 incident and the corresponding conviction of assault in the third degree, the jury heard the testimony of Judith Hlawitschka, a physician, who testified that she had examined the victim and found that the victim had suffered physical injuries consistent with being knocked to the ground and dragged. In addition, the jury heard testimony from a dean of the victim’s college. The dean testified that he met with the victim in May, 2004, and thought it necessary to facilitate the victim’s move to a dormitory on campus in fight of her safety concerns. Finally, regarding the June, 2004 incident and corresponding conviction of sexual assault in the first degree, the jury heard the testimony of Dennis Murphree. Murphree testified that he encountered the victim in the street following the alleged sexual assault, found her crying uncontrollably, and she “had a very stiff walk just like a penguin.” In addition, the jury was presented with several e-mails the petitioner sent to the victim the day following the June, 2004 incident.

The state also presented the testimony of Samuel Flores and Nana Duffie Addo, who independently corroborated the petitioner’s aggressive behavior toward the victim. Flores testified that he and the petitioner argued over the telephone in June, 2004. The telephone call ended with the petitioner announcing his intention to confront Flores. Thereafter, the petitioner called Flores’ place of employment and left aggressive messages with Flores’ colleagues. Addo testified that she witnessed the petitioner punch doors in the victim’s apartment when Addo, who was staying with the victim at the time, refused to leave upon his arrival. In addition, Addo testified that the petitioner acted rather “irrational.” The testimony of Flores and Addo removes the evidence concerning the nature of the relationship between the petitioner and the victim from the realm of a mere credibility contest. The jury also heard the testimony of the petitioner’s former supervisor, Sergeant Kenith Smith of the East Windsor Police Department. Smith testified that the petitioner demonstrated aggression toward him in a manner akin to the testimony of the victim, Flores, and Addo.

In contrast to the evidence presented at trial, however, stands the habeas court’s limited summary thereof: “[T]he trial evidence pitted the victim’s testimony against the petitioner’s. Neither person had a previous criminal record. Both were employed in respectable careers. The petitioner was a police officer, and the victim was a graduate student in physics. Forensic evidence played no important role in the case. Instead, constancy of accusation and medical and psychological evidence regarding signs of abuse predominated to corroborate the victim’s allegations.” Moreover, the court found that Cruz’ testimony “directly refutes testimony by the victim which portrayed the petitioner as abusive to women even in the eyes of the petitioner’s closest friend.” Even if the jury fully credited Cruz’ testimony in this regard, his testimony would have impeached the victim’s testimony of events only with respect to the incident of uncharged misconduct. His testimony would not tend to refute the testimony of the victim’s mother concerning the June, 2003 sexual assault, the testimony of Hlawitschka and the dean of the victim’s college concerning the May, 2004 assault, the testimony of Murphree concerning the June, 2004 sexual assault, and the e-mails relating to all of the foregoing incidents. Moreover, Flores, Addo, and Smith testified that the petitioner displayed aggressive behavior toward them, just as the victim had described that the petitioner was aggressive toward her.

In light of the foregoing, we conclude that the introduction of Cruz’ testimony to the body of evidence presented at trial would have “had an isolated, trivial effect.” (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 689. As stated previously, the impact Cruz’ “ostensibly credible” testimony likely would have had on the jury’s verdict in the underlying criminal trial “must be considered in light of all of the evidence that was before the jury.” (Emphasis added.) Griffin v. Commissioner of Correction, supra, 98 Conn. App. 367. In the present case, the habeas court’s limited view of the trial evidence inhibited its application of Strickland's prejudice prong. The state’s body of evidence was not, as argued by the petitioner and set forth by the habeas court, directly predicated on the victim’s credibility.

Although we recognize that Cruz’ testimony could have affected the trial to some degree, Strickland expressly requires the petitioner to demonstrate that, absent counsel’s error, the result of the trial would have been different. Cruz’ testimony related to an incident of uncharged misconduct that played a relatively minor role in the petitioner’s criminal trial. Notwithstanding the habeas court’s determination that Cruz was “ostensibly credible,” he undoubtedly would have been subject to impeachment. Even if fully credited by the jury, however, his testimony would not undermine the independent testimony and evidence presented by the state to support the charges for which the petitioner was convicted. In sum, if Cruz’ testimony was presented at trial, it was not reasonably probable that the outcome would have been different. See Harrington v. Richter, 562 U.S. 86, 107, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (“[t]he likelihood of a different result must be substan tial, not just conceivable” [emphasis added]). Accordingly, we conclude that the petitioner failed to establish that he was prejudiced by Pickering’s failure to present Cruz as a witness at the criminal trial.

The judgment is reversed and the case is remanded with direction to render judgment denying the amended petition for a writ of habeas corpus.

In this opinion the other judges concurred.

       “The jury returned a not guilty verdict with regard to a count of kidnapping in the second degree as well as two additional counts of sexual assault in the first degree. The jury returned a guilty verdict with regard to an additional count of assault in the third degree, but the [trial] court later dismissed this count prior to sentencing. The court imposed a total effective term of incarceration of twenty-six years, execution suspended after fourteen years, followed by a fifteen year term of probation.” State v. Crespo, 114 Conn. App. 346, 348 n.1, 969 A.2d 231 (2009), aff'd, 303 Conn. 589, 35 A.3d 243 (2012).

       During trial, the trial court granted the petitioner’s motion for notice of uncharged misconduct. The petitioner, however, did not object to evidence of the February, 2004 incident or any other specific instance of uncharged misconduct.

       During the habeas trial, the petitioner testified that he met with Pickering the Saturday before the start of the criminal trial. During this meeting, both Pickering and the petitioner reviewed police reports obtained through discovery. One of the police reports referenced the February, 2004 incident between the petitioner and the victim that occurred while both were staying with Cruz. The petitioner explained the nature of the incident to Pickering, informed him that Cruz could corroborate his version of events, and asked him to call Cruz as a witness. Pickering, however, did not present Cruz as a witness during the criminal trial.

       The habeas court later specified that it used “reasonable likelihood” and “reasonable probability” as synonyms.

       The habeas court granted the respondent’s petition for certification to appeal from its judgment.

       The respondent, relying on Bryant v. Commissioner of Correction, supra, 290 Conn. 510, and Sanchez v. Commissioner of Correction, 138 Conn. App. 594, 600, 53 A.3d 1031 (2012), cert. granted, 307 Conn. 951, 58 A.3d 976 (2013), contends that the court improperly “discounted” Cruz’ “obvious bias” as the petitioner’s lifelong friend in applying Strickland’s prejudice prong. In light of our conclusion that the court improperly failed to consider the totality of the evidence presented at trial for purposes of assessing prejudice under Strickland, we need not address this argument.

       The trial court instructed the jury that evidence of uncharged misconduct “was not admitted to prove the bad character of the [petitioner] or the [petitioner’s] tendency to commit criminal acts. In other words, you may not consider such evidence as establishing a predisposition on the part of the [petitioner] to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider this evidence, if you believe it, only if you find that it is probative of the relationship between the [victim] and the [petitioner]. On the other hand, if you do not believe this evidence or even if you do, if you find that it is not probative of their relationship, then you may not consider this evidence for any purpose.”

       Specifically, the petitioner threatened to “tear off’ Smith’s head and “shit down” his neck.

       The petitioner nevertheless argues that Cruz’ testimony would have impeached the victim’s credibility entirely and, by extension, would have called into question the testimony of the state’s witnesses insofar as their testimony was based solely on the victim’s reports to them. This argument must fail as the trial court instructed the jury that the incident of uncharged misconduct, as related by the victim in her testimony, was relevant only to “the relationship between the [victim] and the [petitioner].” See Strickland v. Washington, supra, 466 U.S. 695 (petitioner not entitled to “luck” that jury would not have followed instructions). If it were the case that Cruz’ testimony, if offered at trial, likely would have refuted the victim’s testimony with respect to the uncharged misconduct, we cannot say it would have also functioned to refute either her testimony concerning the charges against the petitioner or the entirety of the state’s evidence. “[N]ot every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” (Emphasis added.) Id., 693.

       Indeed, our review of the record reveals that the February, 2004 incident of uncharged misconduct was only referred to during the victim’s testimony and briefly during the state’s closing argument.