author: SULLIVAN, J.

text:
    THE LAND GROUP, INC. v. CARL J. PALMIERI, TRUSTEE, ET AL.
    (AC 30741)
    Flynn, C. J., and Gruendel and Sullivan, Js.

      Argued January 20
    officially released August 3, 2010

      Christopher C. Vaugh, for the appellant (plaintiff).

      Allan M. Cane, for the appellees (defendants).

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

   Opinion

SULLIVAN, J.

The plaintiff, The Land Group, Inc., appeals from the judgment of the trial court in favor of the defendants, Carl J. Palmieri, as trustee and in his individual capacity, Frank Palmieri, as trustee and in his individual capacity, Mary Gai, Florence Palmieri and Marie Palmieri, executrix of the estate of Vincent Palmieri. The court found that the defendants did not breach the parties’ contract for the purchase and sale of the real estate at issue. The plaintiff, however, did breach the contract, and, therefore, the defendants were entitled to liquidated damages and attorney’s fees. The plaintiff claims that the court improperly held that (1) the contract required the plaintiff to pursue zoning permits and approvals with due diligence, (2) the plaintiff breached the contract, (3) the defendants had the right to terminate the contract, (4) the defendants did not anticipatorily breach the contract, (5) the defendants did not commit a breach of contract, (6) article two of the contract should be interpreted in an overall restrictive manner, (7) the defendants prevailed on the first count of their counterclaim, (8) the plaintiff was not entitled to attorney’s fees for prevailing on the third count of the defendants’ counterclaim and in a separate action brought by the defendants, and (9) the award of attorney’s fees to the defendants was reasonable.

The plaintiff instituted a three count complaint against the defendants, the record owners of a parcel of land in Westport, alleging anticipatory breach of the contract, breach of contract and breach of the implied covenant of good faith and fair dealing.

The following facts are relevant to the resolution of the appeal. On April 8, 2005, the plaintiff and the defendants entered into a contract for the sale of real property owned by the defendants. They agreed that the plaintiff would pay a purchase price of $1.6 million, with a $50,000 deposit paid at signing, of which $25,000 was released immediately to the defendants and the remainder held in escrow. The contract provided that the purchase price would be based on the plaintiff receiving the town approval for the building of between thirteen and sixteen condominium units. If fewer than thirteen units were approved, the purchase price would be reduced by $125,000 per unit fewer than thirteen units, and if greater than sixteen units were approved, the purchase price would be increased by $125,000 per unit in excess of sixteen units. The court found that the parties were aware that the applicable zoning regulations only permitted five units to be built on the subject property and that any changes to the zoning regulations needed to be approved by the local zoning authority. The contract required the plaintiff to pursue the required zoning approvals and gave the plaintiff ninety days to do so, subject to six month extensions at the discretion of the defendants.

Upon expiration of the initial ninety day period, the plaintiff had not yet obtained the necessary approvals, nor did it attempt to terminate the contract; rather, the plaintiff indicated its willingness to proceed. The plaintiff also released to the defendants the remaining $25,000 from escrow. Satisfied that the plaintiff was proceeding in good faith, the defendants approved a six month extension, with a new closing date of March 23, 2006.

The plaintiff intended to pursue zoning approval for the construction of affordable housing on the property and began to monitor the progress of another application for zoning approval of affordable housing at a nearby site. The other application was denied, but the plaintiff nonetheless decided to pursue that option on the subject property. The court found that the plaintiff had commissioned an updated survey and some architectural drawings and performed some other minor activities to prepare for seeking the necessary zoning approvals. The plaintiff did not, however, file an application with the zoning authority, a clear prerequisite to achieving zoning approval.

At a meeting between a representative of the plaintiff and the defendants in February, the defendants’ representative expressed dissatisfaction with the progress made by the plaintiff toward obtaining zoning approval for the site. The plaintiff offered an up-front payment of $625,000 toward the purchase price, which the defendants rejected. In February, the plaintiff notified the defendants that it was considering pursuing an application for affordable housing, and then, on March 13, 2006, the plaintiff notified the defendants that it would pursue the affordable housing strategy. On March 15, 2006, eight days before the new closing date, the defendants’ attorney notified the plaintiff that the defendants immediately were terminating the contract and would seek other potential buyers.

The contract also provided a license for the plaintiff to store equipment on the subject property. On April 20,2006, the defendants gave notice to the plaintiff that its license was revoked, and they requested that the plaintiff remove its personal property. When the plaintiff refused to do so, the defendants brought an entry and detainer action in the Superior Court. The action was dismissed without prejudice as procedurally improper.

I

The plaintiff first claims that the court incorrectly interpreted the contract by holding that the contingency provision was both a condition and a contractual promise. The court held that “[t]he duty to pursue the zoning approvals was a promise and the duty to do so with ‘due diligence’ was both a promise and a condition of obtaining any additional extension of the closing date. . . . The effect of the ‘due diligence’ condition was to induce the [plaintiff] to move promptly to obtain the necessary approvals while giving the [defendants] the right to terminate the agreement at the end of any six month extension if the [plaintiff] failed to do so.” (Citation omitted.) The plaintiff argues that the relevant language constitutes a mere condition, the fulfillment of which would have given it the right to enforce the contract, but which imposed no affirmative duty. We disagree.

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

Contract language must be given its plain and ordinary meaning. Article two provides in relevant part: “The [plaintiff] shall, at its sole expense, pursue approvals and obtain permits for the construction of a minimum of (13) condominium units at the Real Property. The [plaintiff] shall pursue the approvals and permits with due diligence.” The court considered that, in light of the plaintiffs position as a developer and the defendants’ desire to receive the maximum dollar amount for the sale, “the pursuit of a change in the zoning regulations was clearly an essential part of the bargain [and the] duty was logically assigned to the [plaintiff].” The court also considered that “shall” modified “pursue,” which this court agrees makes the pursuit of approvals a mandatory provision of the contract.

The plaintiff argues that a reasonable interpretation of the contract would have made the pursuit of the zoning approvals a condition which, if not fulfilled, would give it the option to terminate the contract and forfeit the $50,000 deposit. The plaintiffs interpretation is correct to the extent that if it had pursued the approvals unsuccessfully, it would have had the option to terminate the contract. The plaintiff ignores, however, the unambiguous use of the word “shall,” as noted by the court, to modify its duty to pursue the zoning approvals. The ultimate price of the land would be determined by how many units were approved to be built, and if the contract gave the plaintiff the option to do nothing to pursue those approvals, without relieving the defendants of their obligation to sell the land, the plaintiff could force a significant reduction in the price by simply doing nothing. Indeed, in 2007, the plaintiff attempted to close the sale by tendering a check for $550,000 to the defendants, based on valuing the five units that could have been built without any change in zoning. According to the plaintiffs reasoning, it could fail to pursue any approvals and then, at the end of the time allowed for such approvals, it could either terminate the contract or require performance by the defendants. We disagree. The plaintiff had an obligation to pursue the approvals with due diligence according to the plain terms of the contract and their reasonable interpretation.

II

The plaintiff next claims that the court improperly held that the plaintiff breached the contract for failing to pursue the zoning approvals with due diligence and failing to submit such documentation to the defendants. This claim hues closely with the first claim. The plaintiff again argues that because the due diligence clause constituted a condition and not a promise, there can be no breach. The court properly determined that the plaintiff had the duty to pursue zoning approvals with due diligence. Our disposition of the first claim resolves the plaintiff’s claim here.

Ill

The plaintiff next claims that the court improperly held that the defendants had the right to terminate the contract on March 15, 2006. The plaintiff argues that because no contract provision allowed the defendants to terminate the contract prior to the closing date of March 23, 2006, the court improperly held that “the defendants’ repudiation under the circumstances of this case was legitimate. In other words, the defendants not only had the right to refuse to extend the closing date but also had the right to terminate the contract.” The defendants argue that prior to their own repudiation, the plaintiff had breached the contract, giving them, the nonbreaching party, the right to discharge prior to the time appointed for performance. We agree with the defendants.

“An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. ... Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance. . . . The manifestation of intent not to render the agreed upon performance may be either verbal or nonverbal . . . and is largely a factual determination in each instance.” (Citations omitted; internal quotation marks omitted.) Pullman, Comley, Bradley & Reeves v. Tuck-It-Away, Bridgeport, Inc., 28 Conn. App. 460, 465, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992). The Restatement (Second) of Contracts § 254 (1) states that “[a] party’s duty to pay damages for total breach by repudiation is discharged if it appears after the breach that there would have been a total failure by the injured party to perform his return promise.” 2 Restatement (Second), Contracts § 254, p. 290 (1981).

The court determined that on March 15, 2006, the plaintiff could not have possibly completed its obligations under the contract because the zoning approvals could not have been attained by the date set for closing, and, furthermore, the plaintiff had not pursued those approvals with due diligence. The contract did not include a “time is of the essence” clause, meaning that the plaintiff could have tendered performance at the date set for closing, despite the defendants’ repudiation, but the plaintiff did not do so. Instead, the plaintiff waited an entire year before attempting to complete the transaction. In addition, the court found that the purchase price eventually tendered by the plaintiff did not conform to the terms of the contract. As a result of the court’s conclusion that the plaintiff had breached the contract prior to the defendants’ repudiation, it properly concluded that the defendants were discharged from their duties under the contract, as memorialized in the March 15, 2006 letter to the plaintiff terminating the contract.

IV

The plaintiff next claims that the court improperly concluded that the defendants did not anticipatorily breach the contract because the plaintiff demonstrated that it would have been able to perform had there been no repudiation. The court found as a matter of fact that the plaintiff could not have performed because it could not have “obtained all of the necessary zoning approvals within the time limited . . . .” The plaintiff argues that it could have tendered performance because it had an unconditional mortgage commitment for $5 million. We are not persuaded.

The question of whether the plaintiff could have tendered performance presents a question of fact. “We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Seligson v. Brower, 109 Conn. App. 749, 753-54, 952 A.2d 1274 (2008).

In order to establish that the defendants anticipatorily breached the contract, the plaintiff must be able to show that it would have been able to perform its obligations on the date set for performance. The plaintiff argues that the testimony at trial of its president, George Andrew Frank, established its ability to perform on the date set for performance because Frank testified to the existence of a mortgage commitment of $5 million. Although the court did not address that testimony, even if it had found the testimony credible, the sole ability to pay does not establish ability to perform under this contract.

There is no dispute that the contract provided for a purchase price based on the number of units approved for development. We have already upheld the court’s determination that the plaintiff was obligated to pursue those approvals with due diligence. The court found, based on the testimony of the director of the Westport planning and zoning authority, that the necessary approvals would take at least forty-five to sixty days to process, thereby making it impossible for the plaintiff to perform by March 23, 2006. The court’s findings are not clearly erroneous with respect to the inability of the plaintiff to perform on the date set for performance, and, therefore, we cannot conclude that the court improperly found that the defendants did not anticipatorily breach the contract.

V

The plaintiff next claims that the court improperly found that the defendants did not breach the contract when they failed to tender performance on March 23, 2006. The plaintiff argues, echoing its claims raised in parts III and IV of this opinion, that the court improperly held that the defendants legitimately terminated the contract on March 15, 2006, in anticipation of the plaintiffs inability to tender performance and due to the failure of the plaintiff to pursue the zoning approvals with due diligence. As we have already held, the court properly determined that the defendants legitimately terminated the contract, relieving them of the obligation to tender performance. See Pullman, Comley, Bradley & Reeves v. Tuck-It-Away, Bridgeport, Inc., supra, 28 Conn. App. 465.

VI

The plaintiff next claims that the court improperly interpreted the term “due diligence” in an overly restrictive manner when it determined that the plaintiff breached the contract by failing to pursue the zoning approvals with due diligence. The plaintiff emphasizes that obtaining surveys and architectural drawings and its tracking of other zoning applications constituted due diligence within the meaning intended by the parties to the contract. The defendants argue that the court properly interpreted the term to mean “results, not preparations, [and] approvals, not application tracking or surveys.” We agree with the defendants.

The court held that the term due diligence is not ambiguous, and the plaintiff agrees that the language of the contract was definitive. As noted in part I of this opinion, our standard of review is plenary concerning the interpretation of definitive language in the contract. Genua v. Logan, supra, 118 Conn. App. 273-74.

“Due diligence means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) Kubeck v. Foremost Foods Co., 190 Conn. 667, 672, 461 A.2d 1380 (1983). The court rejected the plaintiffs contention that obtaining a survey and tracking another application were reasonable means of diligently pursuing a zoning application. Even if the plaintiff is correct in arguing that the steps that it took were necessary parts of the zoning approval process, the steps were not sufficient to constitute due diligence. The purchase price depended on a successful zoning application, and the court, therefore, was correct in concluding that due diligence under the circumstances required taking sufficient action to achieve results in an effort to close on the agreed upon date.

VII

The plaintiff next claims that the court improperly awarded the defendants liquidated damages on the first count of their counterclaim, in which the defendants had requested recompense for the loss of rents and profits. The plaintiff argues that because the court held that the defendants were entitled only to liquidated damages, rather than actual damages that they requested in their counterclaim, it was improper to render judgment in the defendants’ favor. The plaintiff raises this claim for the first time on appeal, and we, therefore, decline to afford it review. See, e.g., Konigsberg v. Board of Aldermen, 283 Conn. 553, 597 n.24, 930 A.2d 1 (2007) (“[a]s we have observed repeatedly, [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge” [internal quotation marks omitted]).

VIII

The plaintiff next claims that the court improperly refused to award attorney’s fees for its successful defense of the defendants’ entry and detainer action and successful defense of the third count of their counterclaim. We disagree.

The contract provided that “in the event of any litigation brought to enforce any material provision of this Agreement, the prevailing party shall be entitled to recover its reasonable [attorney’s] fees and court costs from the other party.” In refusing to award the plaintiff attorney’s fees, the court held that “[i]nasmuch as [the] plaintiff made no claim of setoff, nor was there any motion by the plaintiff to conform the pleadings to the proof, no award is made to the plaintiff for the successful defense of the entry and detainer action or the third counterclaim in this action.”

The plaintiff argues that its request for attorney’s fees in its prayer for relief in the complaint sufficiently apprised the court that it sought attorney’s fees. The plaintiff further argues that Practice Book § 10-54, which allows a defendant the right to plead any setoff against the plaintiffs claims, does not apply to the plaintiff here. The court did not cite Practice Book § 10-54 for its ruling, and, therefore, we need not decide whether Practice Book § 10-54 applies.

As a general proposition, a party must identify the basis for which it claims attorney’s fees. See, e.g., Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 818, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). Although the plaintiff requested attorney’s fees in its prayer for relief, it did not specify the basis on which the court could award them, either in the individual counts or in the prayer for relief. We further note that the third count of the defendants’ counterclaim and the entry and detainer action may or may not have been covered by the language of the contract allowing for attorney’s fees to the prevailing party in an action brought to enforce a material provision of the contract, but the court had no opportunity to rule on that issue because the plaintiff did not put the question before the court. We cannot now decide on appeal that the plaintiff is entitled to receive an award of attorney’s fees that it never actually requested from the court, based on a contractual provision, the applicability of which the court made no determination.

IX

The plaintiff finally claims that the court abused its discretion in awarding $128,217.65 in attorney’s fees to the defendants. We disagree.

We begin by setting forth the well established standard of review. “[T]he amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” (Internal quotation marks omitted.) Moasser v. Becker, 107 Conn. App. 130, 139,946 A.2d 230 (2008). “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 253, 828 A.2d 64 (2003).

“[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. . . . The courts may then adjust this lodestar calculation by other factors.” (Internal quotation marks omitted.) Ernst v. Deere & Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005). The court in the present case considered testimony by the attorneys on “their respective experience, length of practice, nature of their specialties in the practice of law, the hourly rates that they typically charged clients for their services and the time and effort they spent in representing their clients both pretrial and at trial.” The plaintiff argues that the court did not sufficiently consider, nor have evidence to support, several factors found in rule 1.5 of the Rules of Professional Conduct concerning reasonable fees. The plaintiff does not cite any authority stating that a court must consider all of the factors of rule 1.5 when making an award of attorney’s fees. The plaintiff has also not demonstrated that the court abused its discretion by considering the factors that it did when making the determination that the fees charged were reasonable. In light of the factors it considered, the court properly determined that the number of hours and the hourly rate charged were justified. It, therefore, properly arrived at a final figure by multiplying the number of hours by the hourly rate.

The judgment is affirmed.

In this opinion the other judges concurred.

       Gai was an individual owner but was authorized only to act in this transaction in her capacity as the recognized real estate agent. The contract lists Gai as the listing and selling broker and provides that the buyer will use Gai as the listing broker for sales of any units constructed on the subject property.

       The plaintiff explained in an accompanying note that the $550,000 figure was reached by multiplying the number of units by $125,000 and subtracting the $50,000 deposit. The court noted that the figure was mathematically incorrect but that the error did not affect the court’s rationale.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WALLINGFORD TURNPIKE, LLC v. WEBSTER INSURANCE, INC.
    (AC 30437)
    Harper, Robinson and Lavery, Js.
    Argued November 19, 2009
    officially released August 3, 2010

      Katherine H. Hagmann, with whom was Amy Blume, for the appellant (plaintiff).

      David A. DeBassio, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Wallingford Turnpike, LLC, appeals from the judgment of the trial court in favor of the defendant, Webster Insurance, Inc., in a breach of contract action that arose out of the defendant’s early termination of a commercial office lease. On appeal, the plaintiff claims that the court improperly concluded that the defendant was no longer bound by the obligations of the lease on the basis of its asserted special defenses. Specifically, the plaintiff avers that the court improperly concluded that (1) the defendant was constructively evicted and (2) the defendant was not obligated to comply with the terms of the lease because the plaintiff had breached the lease’s covenant of quiet enjoyment. Because we conclude that the record is inadequate for our review, we affirm the judgment of the trial court.

The following stipulated facts are pertinent to our resolution of the plaintiff’s appeal. The respective predecessors in interest of the parties entered into a lease for commercial office space located in Wallingford on September 26, 1995. That lease was amended twice by supplemental lease agreements, first in 1999 and again in 2001. Although the defendant had moved its operations out of the office space prior to February 20, 2007, it nevertheless continued to fulfill its obligations under the lease until April 30, 2007. On February 20, 2007, the defendant was notified that several unauthorized people—all of whom had been previous subcontractors of the plaintiff, though none of whom had been authorized by either party to be on the premises at that time— were occupying the space being leased to the defendant. Further investigation revealed that the subcontractors had converted a maintenance closet into a working shower and some office space into bedrooms. The defendant notified the plaintiff of the situation, and the plaintiff subsequently had the subcontractors and their belongings removed from the space being leased to the defendant. The defendant notified the plaintiff that it would no longer be occupying the space as of April 30, 2007, and that it would not be responsible for the costs associated with removing the alterations made by the subcontractors. This action followed.

On April 3, 2008, the court held a hearing, during which time both parties were permitted to present oral argument. Although no witnesses testified, the parties filed a stipulation of facts that was supported by various exhibits. A subsequent hearing was held before the court to resolve a few outstanding questions of fact that the court viewed as essential to its resolution of the case. On September 19, 2008, the court rendered judgment, stating: “The court has considered the stipulation of facts, the exhibits and the legal memoranda. The court has concluded that the plaintiff may be entitled to recover payment for use and occupancy from its subcontractors] as they converted the commercial space to residential space. However, under the facts and circumstances of this case, the plaintiff is not entitled to damages as claimed from the defendant. Accordingly, judgment for the defendant.” Although the plaintiff filed a motion for articulation, the court denied the motion, and the plaintiff failed to file a motion for review with this court.

We begin by noting that it is unclear from the court’s memorandum of decision which legal theory it relied on to resolve the claims before it. By way of example, it is unclear whether the court concluded that the plaintiff had failed to make out a prima facie case, whether the defendant had proved one of its special defenses or whether the court decided the case on the basis of a legal theory it raised sua sponte. This ambiguity is furthered by the court’s use of the word “may” in the judgment to indicate that, to the extent that the plaintiff had a claim, it was against the subcontractors. Indeed, the court did not state a legal theory imputing liability to the subcontractors and failed to explain how any putative liability on the part of the subcontractors affected the plaintiffs claims against the defendant in this case. Moreover, because the subcontractors were not parties to this action and the language in the judgment regarding potential claims that the plaintiff might have against the subcontractors was irrelevant to the legal issues between the actual parties, this language was mere dicta. Accordingly, the record does not reveal the legal basis for the court’s judgment.

Although the plaintiff argues that we should nevertheless reach the merits of its appeal because the court’s reference to the subcontractors in its judgment confirms that the court relied on one of the defendant’s special defenses to reach its conclusion, we decline to engage in such conjecture. As we often have observed: “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claim] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). Furthermore, “Practice Book § 66-7 provides in relevant part: Any party aggrieved by the action of the trial judge as regards . . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . . [P]roper utilization of the motion for articulation [and the motion for review] serves to dispel . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The burden of securing an adequate record for appellate review of an issue . . . rests with the . . . appellant. . . . Because it is the . . . appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the . . . appellant should have remedied.” (Citations omitted; internal quotation marks omitted.) Conservation Commission v. Red 11, LLC, 119 Conn. App. 377, 387-88, 987 A.2d 398, cert. denied, 295 Conn. 924, 991 A.2d 566 (2010). “[W]e will, in the absence of a motion for articulation [or a motion for review], assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). Accordingly, because the record does not reveal the basis for the court’s judgment, and the plaintiff failed to file a motion for review, we are unable to review this claim.

The judgment is affirmed.

       Moreover, we note that the plaintiff agrees with our assessment in this regard. During oral argument before this court, the plaintiff conceded that the court could have based its decision on any one of the special defenses asserted by the defendant.


author: DiPENTIMA, C. J.

text:
    IN RE ZAMORA S. ET AL.

    (AC 31452)
    DiPentima, C. J., and Gruendel and Hennessy, Js.

      Argued May 24
    officially released August 3, 2010

      Michael Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      Rosemarie T. Weber, for the appellee (respondent mother).

      Marcus V. Hallum, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

DiPENTIMA, C. J.

The petitioner, the commissioner of children and families, appeals from the judgments of the trial court denying her petition for an adjudication of neglect as to the respondent mother, Sheena S., regarding her minor child, Bryce, and denying the petitions for termination of the respondent’s parental rights as to her minor children, Zamora, Justin, Kelsey, Evan and Bryce. The petitioner argues that the court improperly (1) found that Bryce was not neglected by the respondent, although he was neglected by his father, and (2) applied an elevated standard of proof for a subordinate fact underlying a required element necessary for the petitioner to prevail on the petitions for termination of parental rights. We reverse the judgments of the trial court.

The following facts, as found by the court, are relevant to the resolution of this appeal. The department of children and families (department) first became concerned with the respondent’s family as the result of a referral from the Waterbury police department on May 15, 2006. While striking the respondent, the father accidentally struck Evan, then one year old, causing a bloody nose and bruising. The respondent signed a safety agreement to live with the maternal grandmother but soon moved back in with the father. Department social worker Heather Howard testified that the department considered the major issues of the respondent to be that she was a victim of extensive domestic violence at the hands of the father, the injury to Evan, substance abuse, unaddressed mental health issues and inadequate parenting skills. A psychological assessment completed on September 19, 2008, by Ralph P. Balducci, a licensed psychologist, found that the respondent appeared depressed and that “[h]er emotional difficulties and personality disturbance clearly hinder her ability to effectively sustain relationships and to consistently and appropriately manage her parental responsibilities.”

On August 7, 2006, another domestic violence incident occurred, causing the department to become involved with the family once again. Howard testified that the respondent failed to fulfill her commitment to the department to file a “ ‘restraining-protective order’ ” against the father. Howard testified that the department was concerned with the respondent’s mental health issues and her continuing failure to protect herself and her children from an abusive partner and the father.

On November 17, 2006, the petitioner sought and obtained an order of temporary custody of all of the children as a result of a domestic incident in which Evan apparently spilled a hot cup of coffee after taking it out of a microwave oven, resulting in serious bums to his chest and a five day stay in Bridgeport Hospital’s bum unit. A department social study dated October 10, 2008, stated that in December, 2006, the respondent informed the department that the father had left the home with all of his belongings. The study additionally stated that the department had no known information of domestic violence between the respondent and the father between November, 2006, and November, 2007. The court found that during this time period, the respondent focused on completing the specific steps she and the department had agreed on for achieving reunification with her children and that the department had provided appropriate rehabilitative services. The court further found that “[the respondent] has been faithful to all of the tasks to which she was directed but did not always satisfactorily complete the programs.” In March, 2007, Bryce, the fifth child of the respondent, was bom. In November, 2007, the four oldest children were returned to the custody of the respondent.

On November 20, 2007, however, a serious incident of domestic violence occurred between the respondent and the father. The respondent reported to the department that on that date, the father “extensively beat her for two hours both in and out of the apartment [and] in the neighborhood.” During this time, he reportedly physically assaulted her, “ ‘beating, kicking and dragging her both in and out of the home, in the presence of her children.’ ” Following the November 20, 2007 incident, the respondent took the children to live in the home of their maternal grandmother, where they continued to live until March 1, 2008, when the respondent obtained a four bedroom apartment with the assistance of the department. As a part of the specific steps that the respondent entered into with the department, she agreed that the father would no longer live in her home. On March 26, 2008, Zamora reported to the department that the father had been living in the new home and that she was afraid to go home. She also reported that she had witnessed the father hitting the respondent. When asked, Justin and Kelsey confirmed Zamora’s report. The respondent denied the allegations. On March 27, 2008, the petitioner obtained an ex parte order of temporary custody for all five children and filed a neglect petition with respect to Bryce. On October 14, 2008, the petitioner filed petitions for termination of parental rights as to Zamora, Justin, Kelsey, Evan and Bryce. On June 9,2009, a hearing on the neglect petition as to Bryce and a trial on the termination of parental rights petitions as to all five children commenced. On September 3, 2009, in a memorandum of decision, the court found that Bryce had been neglected by the father but not neglected by the respondent, and rendered judgments terminating the parental rights of the father and denying the petitions to terminate the parental rights of the respondent. This appeal followed.

I

The petitioner first claims that the court improperly found that Biyce was not neglected by the respondent, although he was neglected by the father. More specifically, the petitioner argues that “neglect,” as defined in General Statutes § 46b-120, concerns the status of the child, not the status of an individual parent or guardian. Additionally, the petitioner claims that the court improperly dismissed part of the termination of parental rights petition as to Bryce insofar as that petition applied to the respondent because of its conclusion that the respondent had not neglected Bryce. We agree.

We first set forth our standard of review. “[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the children are neglected .... The application of a statute to a particular set of facts is a question of law to which we apply a plenary standard of review.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re T.K., 105 Conn. App. 502,505-506, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).

Section 46b-129 provides that the petitioner may file a petition with the Superior Court alleging that a child is neglected and plainly stating facts to support the petition. Section 46b-120 defines “neglect,” stating in relevant part that “(8) a child or youth may be found ‘neglected’ who (A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally, (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth, or (D) has been abused . . . .”

The court stated in its memorandum of decision that it “grants the petition of neglect as to [the] father and denies it as to [the respondent].” Later in its memorandum of decision, the court farther explained that “[the petitioner] has NOT proved by a fair preponderance of the evidence that Bryce has been neglected.” The petitioner claims that the court’s determination that Bryce was neglected by the father but not neglected by the respondent was improper in light of the statutory scheme and established law. Specifically, the petitioner cites In re David L., 54 Conn. App. 185, 191-92, 733 A.2d 897 (1999), asserting that the holding in that case— that an allegation and adjudication of neglect concerns the status of the child and not an individual parent— applies in the present case. In the case of In re David L., supra, 186-87, the respondent father appealed from the adjudication of neglect as to his minor son, claiming that because he was named as the father of the child in the neglect petition, the adjudication of neglect applies to him, and, therefore, he had aright to be heard and to contest the adjudication. He further claimed that a trial court must determine who was responsible for the neglect before it can proceed to disposition because that determination is directly related to the justification of removal of the child from either parent’s guardianship. Id., 190. This court dismissed the appeal as moot, finding that “[o]ur review of the relevant statutes leads us to conclude that an adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. Although § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the children are neglected . . . .” (Internal quotation marks omitted.) Id., 191-92.

In the present case, the petitioner claims that the court’s determination that the child was neglected as to the father but not as to the respondent was improper. The petitioner argues that if a child is adjudicated neglected, even if the actions of only one parent created the neglectful conditions, it does not change the status of the child as neglected. We find this argument to be persuasive. “A neglect petition and concomitant request for an order of commitment are not a typical civil action. A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named.” (Internal quotation marks omitted.) In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005). In its memorandum of decision, the court made findings illustrating why it reached the determination that Bryce was neglected as to the father but not as to the respondent. These findings are irrelevant to the legal issue. “The statutes and rules of practice ... do not afford a parent in a neglect proceeding the right to require the trial court to adjudge each parent’s blameworthiness for a child’s neglect. In fact, the rules specifically limit inquiry in the adjudicatory phase to the custodial parent in neglect proceedings and to all appearing parents in termination proceedings. Practice Book § 33-1 (b).” In re David L., supra, 54 Conn. App. 193. It is undisputed that, in the present case, the respondent was the sole custodial parent. The contradictory judgment of the court regarding the status of Bryce as neglected was not rendered according to the law and cannot stand.

II

The petitioner next claims that the court improperly applied an elevated standard of proof for a subordinate fact underlying a required element in the petitions for termination of parental rights as to Zamora, Justin, Kelsey, Evan and Bryce. More specifically, the petitioner refers to the court’s finding that “[n]o clear and convincing evidence has been presented to the court to establish that [the respondent] and [the] father have been living together at any time after November, 2006,” and its reliance on this finding in the court’s determination that the petitioner had not met her burden to prove that the respondent had failed to rehabilitate herself. The petitioner claims that in applying this heightened standard of proof, the court did not engage in a proper assessment of her claim that the respondent had failed to rehabilitate herself, which was alleged in support of the petitions for termination of the respondent’s parental rights. We agree that the court applied an improperly elevated standard of proof for this subordinate fact.

We first set forth our standard of review for this issue. “When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007).

General Statutes § 17a-112 (j) requires the petitioner to establish three specific elements by clear and convincing evidence in order to prevail on a termination of parental rights petition. The three elements that the petitioner had to establish by clear and convincing evidence were that (1) the department has made reasonable efforts to reunify the child with the parent in accordance with the statute, (2) termination is in the best interest of the child and (3) the child has been found in a prior proceeding to have been neglected or has been in the custody of the petitioner for at least fifteen months and that the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to § 46b-129 and has failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. General Statutes § 17a-112 (j). There is no mention under the statute of a particular standard of proof for subordinate facts that may lead the trier of fact to conclude that these three required elements were proven by clear and convincing evidence.

The respondent contends that the court applied the appropriate standard of proof and that the section of the memorandum of decision at issue was “perhaps, inartfully phrased.” We are not persuaded by this argument. The court directly stated the standard of proof that it was applying to its factual finding that the respondent and the father did not five together. It stated, in its written memorandum of decision, that “[n]o clear and convincing evidence has been presented to the court to establish that [the respondent] and [the] father have been living together at any time after November, 2006,” and, later in the decision, that “[the petitioner] failed to prove by clear and convincing evidence that [the] father was present and living in the family home at any time after March 8, 2008.” The respondent alternatively claims that the “misstep as to this insignificant fact [was] harmless.” She further claims that the issue in these cases was domestic violence, and that whether the respondent and the father were living together was of little significance. The petitioner, however, claims that because she alleged as a ground for termination that the respondent had “failed to rehabilitate,” and one of the key issues in her rehabilitation was her commitment to providing a safe environment for the children, any ongoing relationship between the respondent and the father was relevant as a subordinate fact to the court’s eventual finding of whether the respondent had, in fact, failed to rehabilitate herself. We agree with the petitioner.

Our courts have addressed squarely the issue of the requisite standard of proof for a subordinate fact in the context of criminal cases, in which the requisite standard of proof necessary to establish the required elements of the charges at issue is proof beyond a reasonable doubt. “Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.” State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). “ ‘There must be proof beyond a reasonable doubt of all the elements of the crime and the defendant’s participation or responsibility, but not of each evidentiary fact.’ . . . LaFave & Scott, Criminal Law (1972) § 4, p. 16. It is only where aparticular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.” State v. Rodgers, 198 Conn. 53, 58 n.l, 502 A.2d 360 (1985). This legal reasoning can be applied with equal force in the context of the standard of proof for termination of parental rights petitions, such as the ones in the present cases. Under this reasoning, while the court must have found by clear and convincing evidence the three elements of § 17a-112 (j), any subordinate facts that, together, led the court to the conclusion that those elements have been met need not be proven by that heightened standard of proof. We conclude, therefore, that the court improperly applied the heightened standard of proof of “clear and convincing evidence” to a subordinate fact.

The judgments are reversed and the cases are remanded with direction to reconsider the petitions for adjudication of neglect and termination of parental rights and for further proceedings according to law.

In this opinion the other judges concurred.

       The father has not appealed from the court’s decision, and the petitioner does not, in this appeal, seek reversal of the court’s orders terminating his parental rights. Because this appeal concerns only the judgments as to the respondent mother, we refer to her in this opinion as the respondent.

       The petitioner additionally claims that the court improperly (1) ordered that custody of Zamora, Justin and Kelsey be vested in the maternal grandmother, Terrain S., and (2) did not consider evidence regarding the children’s health, medical and developmental needs for the purpose of determining an adjudicatory ground alleged in the petitions for termination of parental rights. Because we reverse the judgments of the court based on the first two claims, we need not address these additional claims.


author: GRUENDEL, J.

text:
    GIOVANNA NUZZO v. ALYSE NATHAN
    (AC 30492)
    Gruendel, Alvord and Pellegrino, Js.

      Argued March 22
    officially released August 10, 2010

      Jack G. Steigelfest, for the appellant (defendant).

      Agustín Sevillano, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

In this extremely close case, the defendant, Alyse Nathan, appeals from the judgment of the trial court granting the motion of the plaintiff, Giovanna Nuzzo, to set aside the verdict reached by the jury in favor of the defendant. On appeal, the defendant claims that she presented sufficient evidence from which the jury reasonably and logically could have found that ice or salt on the road caused the vehicle she was driving to slide or skid and strike the plaintiffs vehicle. We agree and reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of February 21, 2003, the defendant was driving along Route 7 in Wilton on her way to work. The traffic that morning was heavy and slow. Although there had been a significant snowstorm on February 17, 2003, it was not snowing or raining on the morning of February 21.

As the defendant continued on her way to work, she noticed the plaintiffs car attempting to merge onto Route 7. The defendant stopped her car to allow the plaintiffs vehicle to merge in front of her vehicle. As they traveled along Route 7, the defendant observed the brake lights on the plaintiffs vehicle, and others, activate in response to a red traffic signal. The defendant applied her car’s brakes but was unable to come to a complete stop, and her car struck the plaintiffs vehicle. No other vehicles were involved in the collision. Following the collision, the plaintiff called the police, and an officer arrived shortly thereafter. The defendant’s car was towed, and it was later determined that her car was totaled. Although the plaintiffs vehicle also was damaged, she was able to drive away from the scene.

On February 14, 2005, the plaintiff brought a negligence action against the defendant, seeking damages for personal injuries she allegedly had suffered in the collision. A jury trial followed, at the conclusion of which a verdict was returned in favor of the defendant. The court subsequently granted the plaintiff’s motion to set aside the verdict, pursuant to Practice Book § 16-35, and rendered judgment in favor of the plaintiff. From that judgment, the defendant appeals.

In setting aside the verdict, the court found that there was no evidence to support a verdict in favor of the defendant. The corut stated: “Given the defendant’s own version of the manner in which the collision occurred and the lack of any allegations regarding comparative negligence by the plaintiff, the court finds that [the] jury’s verdict was incorrect in that it was contrary to the evidence presented at trial and contrary to the law stated in the trial court’s jury instructions. The defendant introduced the topic of a slippery road surface into evidence as an explanation of why her vehicle slid. The defendant requested a jury instruction on skidding. Yet, the defendant was unable to present any evidence of a slippery substance on the road surface. This was not a shifting of the burden of proof to the defendant, as this explanation was offered by the defendant as to why she slid into the plaintiffs vehicle.

“It is inconceivable that given the defendant’s testimony, the plaintiffs testimony and the contents of the police report that the jury determined that the plaintiff did not prove at least one allegation of negligence as charged by the court. There was no evidence of any slippery substance on the road. The evidence showed that the road was dry and the weather was clear. Despite the defendant’s awareness of the red light, the heavy traffic and the lighted brakes of other vehicles, the defendant drove her vehicle into the rear of the plaintiffs vehicle. The plaintiff proved negligence by the defendant and that the defendant’s negligence was the proximate cause of the collision. There was sufficient evidence as to how the accident happened. The jury heard what the defendant saw, and evidence of physical facts or lack thereof, which were introduced by the testimony of the defendant, the plaintiff and the report of the investigating officer. There is little doubt about the manner in which the accident occurred. The evidence was more than adequate to warrant the juryf’s] finding by a fair preponderance of the evidence that the defendant was responsible in causing her car to take the course it did when it struck the rear of the plaintiffs vehicle. . . . The jury could have found from the nature and the extent of the damage to the vehicles that the defendant was operating her car at an unreasonable speed given the circumstances prevailing at the date and time of the collision. The jury had extensive evidence that the defendant did not keep a proper lookout, did not keep her vehicle under reasonable control and was not driving a reasonable distance apart from the plaintiffs vehicle, and [that] the defendant proximately caused this collision. The jury had no evidence of a substance on the roadway that caused the defendant to slide or skid other than the testimony of the defendant, who admitted she saw no such substance at the subject location and her conjecture that there must have been something that caused her vehicle to slide or skid.” (Citation omitted.)

We begin by setting forth our standard of review. “In reviewing a trial court’s decision to set aside a jury verdict, we must consider the evidence in the light most favorable to the party who succeeded before the jury. . . . While an appellate court must give great weight to a trial court’s decision to set aside a verdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. Great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason. However, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury.” (Internal quotation marks omitted.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417, 425, 780 A.2d 967, cert. granted on other grounds, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002).

“[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn. App. 144, 170, 976 A.2d 723 (2009).

On appeal, the defendant claims that the court improperly set aside the jury verdict. Specifically, the defendant contends that she presented sufficient evidence from which the jury reasonably and logically could have found that ice or salt on the road caused her car to slide or skid into the plaintiffs vehicle. She further asserts that by setting aside the verdict, the court improperly invaded the exclusive province of the jury to make reasonable inferences from the evidence presented. We agree.

Our review of the record reveals that the jury had before it conflicting evidence from which it reasonably could have found either that there was or was not ice or salt on the road. On the one hand, there was the testimony of the plaintiff, who stated that she did not remember seeing any ice or salt on the road at the time of the accident, and a police report that indicated that the weather was clear and the road dry. On the other hand, the defendant presented a weather report indicating that at the time of the accident, there were approximately thirteen inches of snow and ice cover on exposed, untreated, undisturbed outdoor surfaces in the vicinity of Route 7. The report further revealed that there were intervening melting and freezing conditions from February 17 to 21, 2003. Additionally, although the defendant admitted that she did not examine the road surface at the exact spot of the accident, she testified that her vehicle had slid or skidded on ice or salt when she applied her car’s brakes. The following colloquy transpired:

“[The Plaintiffs Counsel]: So, as we sit here today, I know you’re telling us you may have slid on ice or salt, but you’re really not sure?
“[The Defendant]: No. I did slide on a substance. I can’t tell you if it was ice or salt. I know I slid.”

When reviewing whether the court properly set aside the jury verdict, our standard directs that we must examine whether there was some evidence on which the jury reasonably could have based its verdict. See Murdock v. Croughwell, 268 Conn. 559, 565, 848 A.2d 363 (2004). “[A] jury may make all inferences and conclusions which, in their judgment and discretion, may logically and reasonably be drawn from the facts in evidence. . . . The test is, not that the inference must unavoidably and unerringly point in one direction, but, rather, whether the rational mind could with reasonableness draw the inference. ... If two rational minds could reasonably draw different inferences from facts in evidence, whether controverted or uncontroverted, the decision is for the jury.” (Internal quotation marks omitted.) Magnon v. Glickman, 185 Conn. 234, 239, 440 A.2d 909 (1981); see Campbell v. Palmer, 20 Conn. App. 544, 549, 568 A.2d 1064 (1990) (“[p]roof by circumstantial evidence is sufficient where rational minds could reasonably and logically draw the inference” [internal quotation marks omitted]); see also State v. Hart, 118 Conn. App. 763, 778, 986 A.2d 1058 (“there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned”), cert. denied, 295 Conn. 908, 989 A.2d 604 (2010). Here, based on the defendant’s testimony and the weather report, the jury reasonably could have inferred that the defendant’s car slid on ice or salt and crashed into the plaintiffs car. It was the exclusive province of the jury to weigh the conflicting evidence and to determine whether there was ice or salt on the road, and, if so, whether it caused the defendant’s car to strike the plaintiffs vehicle. See Stein v. Tong, 117 Conn. App. 19, 24, 979 A.2d494 (2009). We, therefore, conclude that the court improperly set aside the verdict.

The judgment is reversed and the case is remanded with instruction to render judgment consistent with the jury verdict in favor of the defendant.

In this opinion the other judges concurred.

       Although this evidence was at best scanty, it was evidence that the jury could have considered.


text:
    MASHAWN GREENE v. COMMISSIONER OF CORRECTION
    (AC 30661)
    Bishop, Graendel and Schaller, Js.

      Argued April 13
    officially released August 10, 2010

      Laurie A. Sullivan, special public defender, with whom was Moira L. Buckley, for the appellant (petitioner).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

This habeas appeal involves the distinction between ineffective assistance of counsel claims concerning guilty verdicts and guilty pleas. The petitioner, Mashawn Greene, appeals from the judgment of the habeas court following its denial of his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus. On appeal, he claims that the court improperly found that he was not denied the effective assistance of counsel as it relates to his (1) guilty verdict and (2) guilty pleas. We dismiss in part and reverse in part the judgment of the trial court.

The following facts and procedural history, taken from the decisions of our Supreme Court and the habeas court, are relevant to our discussion. “On the evening of October 10, 2001, the [petitioner] purchased the following stolen firearms [from Felipe Garcia]: a Smith & Wesson Daniels Cobray M-ll nine millimeter submachine gun (Cobray M-ll); a Braco Arms .38 caliber pistol; and a Mossberg 500A shotgun. At the same time, the [petitioner] purchased stolen ammunition for the Cobray M-ll consisting of eight full thirty-five round magazines loaded with nine millimeter Luger Subsonic bullets. A Cobray M-ll is a semiautomatic or automatic assault weapon capable of emptying a thirty-five round magazine in under two seconds.

“On October 12, 2001, the [petitioner and four men] learned that individuals from the area of New Haven known as ‘the Tre’ were planning to ‘shoot up’ the area of New Haven known as ‘West Hills’ in retaliation for a shooting that had occurred the night before. The Tre area includes Elm Street and Orchard Street and the West Hills area includes the McConaughy Terrace projects. Rather than wait for the retaliation, the [petitioner and four men] decided to ‘go through the Tre first.’

“[The petitioner and four men] . . . drove to the Tre. After they saw a group of people on the comer of Edgewood Avenue and Orchard Street, [they exited] the car . . . walked to the comer of Orchard Street and Edgewood Avenue, opened fire on the people on the street comer, then ran back to the [car] and fled the scene. Six people were shot and one of the victims died from his wounds. The victims had no connection to the shooting that had occurred the evening before and were targeted merely because of their presence in the Tre area.” State v. Greene, 274 Conn. 134, 139-40, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006). Police later apprehended the petitioner and the other four men.

The petitioner subsequently was charged with murder as an accessory in violation of General Statutes §§ 53a-54a and 53a-8; conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48; five counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8; possession of an assault weapon in violation of General Statutes § 53-202c; and three counts of theft of a firearm in violation of General Statutes § 53a-212 (a). On January 25, 2002, the petitioner pleaded not guilty to all charges. The petitioner was represented by attorney Paul Carty.

“After discussing the facts about both incidents with the petitioner and with the state’s attorney ... it became apparent that the state intended to use the testimony of three of the other four codefendants to show that it was the petitioner who shot a Cobray M-11 . . . the same type of gun he had purchased two days earlier . . . into a crowd on the evening of October 12, 2001. Mr. Carty then advised his client that it would be in his best interest to plead guilty to the theft of weapons charges in order to prevent those charges from going to the jury. He explained to him that if he were tried on those charges as well, the jury might infer that [the] petitioner was indeed the shooter at the October 12 incident and convict him of murder. Further, [the prosecutor] had represented that he would not use the pleas in the later trial. [The] [petitioner then pleaded guilty to the theft of weapons charges.

“On July 8, 2003, after all the state’s witnesses had testified, the state’s attorney attempted to have admitted the transcript of [the] petitioner’s guilty pleas dated June 3, 2003, which was the subject of Mr. Carty’s motion in limine. When it appeared that the trial judge, Thompson, J., might overrule Mr. Carty’s motion because he felt that the evidence of the guilty pleas was relevant, Mr. Carty suggested that a stipulation, rather than the transcript itself be entered. He reasoned that a ‘sanitized’ version of the evidence of the pleas going to the jury would make it less likely that the jury would conclude that any one of those particular guns purchased by the petitioner had been used by him in the shooting of October 12. The state’s attorney agreed to enter a stipulation to that effect after which a written stipulation was submitted to the trial court with the input of both counsel.”

Thereafter, the petitioner was convicted of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-55a, conspiracy to commit manslaughter in the first degree with a firearm in violation of §§ 53a-48 and 53a-55a, five counts of assault in the first degree as an accessory in violation of §§ 53a-8 (a) and 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of §§ 53a-48 (a) and 53a-59 (a) (5), and possession of an assault weapon in violation of § 53-202c. State v. Greene, supra, 274 Conn. 136-37. The court sentenced the petitioner on those charges, and the three counts of theft of a firearm to which he had pleaded guilty, to sixty-five years incarceration. Subsequently, the petitioner appealed from that judgment. Our Supreme Court reversed the judgment of conviction of manslaughter in the first degree with a firearm as an accessory and remanded the case with direction to modify the judgment to reflect a conviction of manslaughter in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-55 (a) (1). Id., 174. The Supreme Court also reversed the judgment of conviction of conspiracy to commit manslaughter in the first degree with a firearm and remanded the case with direction to render judgment of acquittal on that charge. Id. The judgment was affirmed in all other respects; id.; and the petitioner was resentenced to a total effective term of sixty years imprisonment.

The petitioner thereafter brought a petition for a writ of habeas corpus in which he alleged that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The habeas court denied the petitioner’s claim. The petitioner next filed a petition for certification to appeal from the judgment of the habeas court, which the habeas court also denied. This appeal followed.

We first set forth the applicable standard of review and legal principles that govern our analysis. “When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion. ... A petitioner satisfies that substantial burden by demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If the petitioner can show that the habeas court abused its discretion in denying the petition for certification to appeal, then the petitioner must demonstrate that the judgment of the habeas court should be reversed on its merits. ... To determine whether the court abused its discretion, we must consider the merits of the petitioner’s underlying claims.” (Citations omitted; internal quotation marks omitted.) Reeves v. Commissioner of Correction, 119 Conn. App. 852, 858, 989 A.2d 654, cert. denied, 296 Conn. 906, 992 A.2d 1135 (2010).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .... For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59,106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. . . .

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance.” (Citation omitted; internal quotation marks omitted.) Ryan v. Commissioner of Correction, 114 Conn. App. 331, 334-35, 969 A.2d 221, cert. denied, 292 Conn. 910, 973 A.2d 108 (2009).

To satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate that “there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Porter v. Commissioner of Correction, 120 Conn. App. 437, 447, 991 A.2d 720 (2010). To satisfy the prejudice prong for ineffective assistance claims resulting from guilty pleas, “the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. ... A reasonable probability is one [that] is sufficient to undermine confidence in the result.” (Citation omitted; internal quotation marks omitted.) Borrelli v. Commissioner of Correction, 113 Conn. App. 805, 810, 968 A.2d 439 (2009). With these principles in mind, we now address the petitioner’s claims.

I

We first review the petitioner’s ineffective assistance claim relating to the guilty verdict. The petitioner claims that the court improperly found that he was not denied the effective assistance of counsel as it relates to the guilty verdict. We disagree.

We recite the following findings of the habeas court in denying the petitioner certification to appeal. “When faced with the potential of the earlier guilty pleas going before the jury, [Catty] properly filed a motion in limine to preclude their admission. Only after it became apparent that the court was going to deny his motion did he then propose the ‘sanitized’ stipulation being entered to minimize the prejudice to his client, since the effect of not stipulating would be to allow a more damaging full transcript of the plea hearings in as evidence.

“On the other hand, there was also no mention in [Carty’s] oral argument or motion in limine of the state’s assurance that the pleas would not be used at trial. If there indeed was an off-the-record promise by the state . . . Carty could have raised a Santobello claim in his motion in limine. . . . Although such claims typically involve recommended sentences, the same considerations apply where the quid pro quo is that the pleas will not be used in a subsequent trial. . . . Carty provided no explanation for why this was not argued at trial. Although an attorney’s tactical decisions are given great deference, the failure to raise this issue before the trial court is objectively unreasonable given that the only justification for the guilty pleas was the state’s promise to not introduce them at trial. Thus, the failure to inform the court of the agreement, which would have effectively precluded its entry if proven, renders his performance in this regard deficient.” (Citations omitted; emphasis in original.)

Regarding prejudice, the court made the following comments: “[T]he petitioner has failed to demonstrate prejudice. While certainly relevant to the petitioner’s identity and means to commit the crimes for which he was tried, the fact that he purchased the guns two days before was not the nail in the coffin that led to his conviction. Indeed, as defense counsel ably pointed out in his closing argument, the fact that he purchased stolen guns only proved his possession of them on the date of purchase. In order to convict him of manslaughter and assault, the jury would have had to credit the testimony of the petitioner’s codefendants in conjunction with the state’s DNA and ballistics evidence to have placed the petitioner at the scene of the crime and having fired the Cobray submachine gun. Even absent the guilty pleas, there was sufficient evidence for the jury to have found the petitioner guilty of the crimes. Conclusive samples of his DNA were found on a T-shirt and sweatshirt located in the getaway car; the only shirt to have gunpowder residue on it. However suspect the petitioner’s coconspirators’ testimony may have been, their reconstruction of the events surrounding the shootings was largely consistent with each others’ [testimony] and was in harmony with the physical evidence. In short, the petitioner had failed to show that, had he not pleaded guilty to the charges of theft of a firearm, he would not have been convicted at trial of these charges. Therefore, he has failed to meet the prejudice prong of Strickland because he has not undermined this court’s confidence in the outcome of the proceedings.”

On appeal, the petitioner claims that although the court properly found that Carty’s performance at trial was deficient, it improperly found that the petitioner was not prejudiced by that deficient performance. Specifically, the petitioner contends that he was prejudiced because there is a reasonable probability that, but for Carty’s deficient performance, the outcome of the trial would have been different. More specifically, the petitioner asserts that the habeas court failed to consider properly the impact that Carty’s deficiencies had on the other evidence, namely, by making credible the testimony of Garcia, who stated that he had sold the Cobray M-ll to the petitioner, and that of the three codefendants, who claimed that the petitioner operated the Cobray M-ll on the date of the incident. According to the petitioner, without evidence of the pleas, their statements would otherwise have been impeachable.

Initially, we note that because the petitioner’s ineffective assistance claim involves his guilty verdict, we apply Strickland’s two-pronged standard. That is, we must determine whether (1) counsel’s representation fell below an objective standard of reasonableness and (2) there exists a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. See Porter v. Commissioner of Correction, supra, 120 Conn. App. 447.

We agree with the habeas court that Carty’s performance fell below an objective standard of reasonableness. Although Carty reasonably filed a motion in limine to preclude evidence of the petitioner’s guilty pleas, he unreasonably failed to inform the court of the state’s alleged promise that it would not present evidence of those pleas at trial. If such a promise was, in fact, made by the state, as Carty had informed the petitioner, Carty was obligated to bring this to the court’s attention. His failure to do so renders his performance deficient.

We next consider whether Carty’s deficient performance prejudiced the petitioner. On our review of the record, we are convinced that it did not. The petitioner’s assertion that evidence of the pleas made credible the testimony of Garcia and three codefendants is mere speculation that does not equate to prejudice. See Williams v. Commissioner of Correction, 120 Conn. App. 412, 427, 991 A.2d 705 (2010); see also Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008) (“[i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities”); Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005) (“[speculation and conjecture have no place in appellate review”).

Furthermore, evidence of the pleas had little effect, if any, on the three codefendants’ credibility. The codefendants testified that the petitioner operated the Cobray M-ll during the shootings on October 12, 2001. Evidence of the pleas did not affect the petitioner’s argument that he was not a part of the shootings— they proved only that he possessed the Cobray M-ll on October 10, 2001. As such, any credibility issues there may have been with the codefendants concerning their testimony that the petitioner operated the Cobray M-ll during the shootings remained.

In addition to the codefendants’ testimony, other evidence linked the petitioner to the shootings. There was evidence that one codefendant’s car was used to transport the shooters to and from the scene of the crime. From the trunk of that car, the police recovered a T-shirt containing the DNA of the petitioner and another codefendant and unbumed gunpowder. A shirt bearing the DNA of the petitioner and another codefendant was also recovered in the trunk of that car. There was eyewitness testimony that there were between three and five gunmen. Additionally, police recovered from the scene of the crime an empty magazine, on the bottom of which was the inscription, “Cobray.” Firearms and tool mark examiner Edward Jachimowicz testified that at least four weapons had been used in the shootings on October 12, 2001, including a Cobray M-ll. Finally, police discovered in the petitioner’s home a pistol cleaning kit intended for, inter alia, a nine millimeter style handgun. Detective John Bashta of the New Haven police department testified that nine millimeter ammunition could be fired from the Cobray M-ll. To the extent that the petitioner posits that the outcome of the trial would have been different because much of the evidence was circumstantial, we repeatedly have observed that “there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” (Internal quotation marks omitted.) State v. Hart, 118 Conn. App. 763, 778, 986 A.2d 1058, cert. denied, 295 Conn. 908, 989 A.2d 604 (2010). As such, there is not a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. We, therefore, conclude that the petitioner has failed to meet his burden of demonstrating that his claim involves issues that are debatable among jurists of reason. Accordingly, the court did not abuse its discretion in denying the petitioner’s petition for certification to appeal as to the petitioner’s first claim. This claim is dismissed.

II

We next review the petitioner’s claim of ineffective assistance of counsel relating to his having pleaded guilty on three firearms charges. The court made the following findings relevant to this claim: “Carty testified at the habeas trial that he felt that if the theft of a firearm charges were presented to the jury, the petitioner would have been convicted of murder and that it was in his best interest to plead guilty. He also testified that the state’s attorney assured him that the pleas would not be used against the petitioner at the upcoming trial. The petitioner testified that he would not have pleaded guilty if he knew the pleas could be held against him, and that . . . Carty promised him [that] they could not be used in the trial. He also testified that he discussed the issue with . . . Carty, but that Carty did not tell him why he advised pleading guilty. The record of the criminal trial reveals no express promises, on the record at the plea hearing or otherwise in writing, that the prosecution would not seek to introduce the pleas at the upcoming trial.

“The advice to plead guilty in this case might have been considered a sound strategy if . . . Carty had taken affirmative steps to ensure that the guilty pleas would not be admitted at the subsequent trial. There is, however, nothing in the record of the plea hearings that would prevent the state from introducing his pleas of guilty to three counts of theft of a firearm at the trial, the sole stated purpose of the pleas. Otherwise, there was no benefit to the pleas, for which no bargain was made and for which the maximum sentences were imposed; they served simply to eliminate an extra burden the state had to prove. The failure, therefore, lies not necessarily in advising his client to plead guilty, but in failing to sufficiently protect his client’s interests by ensuring the pleas would not be admitted at trial. Barring some clear expression on the record by the state that it would not seek to introduce the pleas at the upcoming trial, the only reasonably foreseeable effect of the guilty pleas would be to bolster the state’s case on the other charges without any benefit to the petitioner. Therefore, even viewed through the soft-focus lens to which an attorney’s tactical decisions are entitled, this failure on . . . Carty’s part constitutes deficient performance. . . .

“Nevertheless, the petitioner cannot establish the prejudice necessary to meet the second prong of Strickland-Hill. Had he gone to trial on the theft of a firearm charges, it is unlikely that he would have prevailed. ... In short, the petitioner has failed to demonstrate that, had he chosen to not plead guilty, the outcome of the trial on the theft of a firearm charges would have been different. Therefore, he has failed to meet the second prong of Strickland-Hill.” (Citation omitted.)

On appeal, the petitioner claims that the court properly found that Carty’s performance relating to the petitioner’s guilty pleas was deficient but improperly found that the petitioner was not prejudiced by that deficient performance. Specifically, the petitioner contends that he would not have pleaded guilty had he known that the pleas could be introduced at trial. He further contends that although the court stated that it was applying the prejudice prong set forth in Hill, which pertains to guilty pleas, it instead applied the prejudice prong set forth in Strickland, which applies to guilty verdicts.

We agree with the habeas court that Carty’s performance was ineffective. More particularly, we agree with the court that although Carty’s strategic recommendation to the petitioner that he plead guilty was reasonable; see Hill v. Commissioner of Correction, 117 Conn. App. 867, 876, 982 A.2d 224 (2009) (on review, there is strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance), cert, denied, 294 Conn. 930, 986 A.2d 1056 (2010); his failure to follow through on his recommendation by ensuring, on the record, that the state would not seek to introduce those pleas at trial rendered his performance deficient.

We, therefore, next consider whether the petitioner was prejudiced by counsel’s deficient performance. As we stated earlier, to satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate, pursuant to Strickland, “that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Porter v. Commissioner of Correction, supra, 120 Conn. App. 447. To satisfy the prejudice prong for ineffective assistance claims resulting from guilty pleas, “the evidence must demonstrate, [pursuant to Hill], that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Borrelli v. Commissioner of Correction, supra, 113 Conn. App. 810. Because the petitioner’s claim relates to his pleading guilty, we analyze his claim under Hill’s modified prejudice prong.

On our review of the record, we conclude that Carty’s deficient performance prejudiced the petitioner. The petitioner testified that had he known that his guilty pleas would be introduced at trial, he would not have pleaded guilty. Although we have cautioned that such self-serving statements may not be persuasive; see Williams v. Commissioner of Correction, supra, 120 Conn. App. 425; we are persuaded that the petitioner’s statement is especially credible considering that he derived no benefit from pleading guilty, the introduction of those pleas at trial strengthened the state’s case on the remaining charges, and, perhaps most significantly, Carty’s misrepresentation that the pleas could not be used at trial was material to the defendant’s having entered them. Because the petitioner has met his bra-den of demonstrating that his claim involves issues that are debatable among jurists of reason, we conclude that the court abused its discretion in denying him certification to appeal and further conclude that the decision of the court must be reversed on the merits as to this claim.

The judgment is reversed only as to the petitioner’s ineffective assistance of counsel claim relating to his guilty pleas and the case is remanded for further proceedings according to law. The appeal is dismissed in all other respects.

In this opinion the other judges concurred.

       The petitioner was represented by attorney Mark Rademacher in his appeal and second sentencing hearing.

       See Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (“when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”).

       When considering the prejudice prong for ineffective assistance claims relating to a guilty plea, in some situations, we have examined whether the outcome of the trial would have been different. “For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rattier than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” (Internal quotation marks omitted.) Toles v. Commissioner of Correction, 113 Conn. App. 717, 723, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009). In the present case, the petitioner does not claim failure to investigate on the part of Carty.