text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. ETHAN BOOK, JR., ET AL.
    (AC 27491)
    Bishop, McLachlan and Borden, Js.
    Argued September 9
    officially released October 21, 2008

      Ethan Book, Jr., pro se, the appellant (named defendant).

      Thomas R. Ventre, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant department of revenue services).

      David F. Borrino, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this mortgage foreclosure action, the defendant Ethan Book, Jr., appeals from the supplemental judgment of the trial court rendered in favor of the lienor defendant, the department of revenue services (department), in the amount of $27,135.07, ordering that sum to be paid to the department, and ordering further that the balance of the proceeds of the sale of the property involved be held pending further order of the court. The defendant raises seven claims on appeal. We affirm the judgment of the trial court.

This is the second appeal by the defendant from a judgment of the trial court in this case. In the first appeal, this court noted the “tortuous” and “labyrinthine” “factual and procedural history” of the case; Mortgage Electronic Registration Systems, Inc. v. Book, 97 Conn. App. 822, 824-25, 908 A.2d 547 (2006), cert. denied, 283 Conn. 901, 926 A.2d 670 (2007); and, after fully considering the defendant’s claims, affirmed the judgment under consideration in that appeal. Id., 836. It is fair to say that the defendant has continued the litigation tactics that caused this court to characterize the case as tortuous and labyrinthine.

Some of the defendant’s claims in this appeal were disposed of in the first appeal. Suffice it to say that we have considered fully all of the defendant’s claims that are properly before us; see footnote 4; and conclude that they are wholly without merit.

In this connection, we also note that on December 19, 2007, while this appeal was pending, this court ordered that “the defendant-appellant is prohibited from filing any further appeals or amended appeals in the underlying foreclosure action, Mortgage Electronic Registration Systems, Inc. v. Ethan Book, Jr., et al., Docket No. CV-03-0403879-S. The appellate clerk’s office is instructed not to accept and to return any documents in violation of this order. It is further ordered, sua sponte, that the defendant is prohibited from filing further motions or documents in appeal AC 27491 unless he obtains permission of this court.” The defendant did not appeal from that order, and it remains in effect.

To address any possible confusion about the future scope of such previous orders, we clarify those orders as follows: (1) the defendant remains prohibited from filing further motions or documents in this appeal, AC 27491, including, without limitation, motions to reargue or to reconsider, unless he obtains permission of this court, and the appellate clerk’s office is instructed not to accept and to return any documents in violation of this order; (2) nonetheless, the defendant may, without permission of this court, file with the Supreme Court a petition for certification for permission to appeal to that court from our judgment in this appeal; and, (3) if certification for permission to appeal to the Supreme Court is denied, the defendant is prohibited from filing any future appeals or amended appeals from future orders of the trial court in the underlying foreclosure action, Mortgage Electronic Registration Systems, Inc. v. Book, Superior Court, judicial district of Fairfield, Docket No. CV-03-0403879-S, unless he obtains permission from this court, and the appellate clerk’s office is instructed not to accept and to return any documents in violation of this order.

The judgment is affirmed.

       Book will hereinafter be referred to as “the defendant.”

       The defendant’s claims are: (1) “There are substantial due process defects to these proceedings, including systematic biases which effectively invalidate the judgments which are the subject of this [ajppeal”; (2) “Related to the due process issue developed above, there is an interagency governmental conspiracy which is reflected in the subject judgments such as to fully invalidate them”; (3) “There is the appearance of an impermissible conflict of interest on the part of Superior Court Judge Earl Richards”; (4) “There is a lack of jurisdiction for the Superior Court to have issued the subject judgments for defective service by the [pjlaintiff of the writ and complaint”; (5) “There is a lack of jurisdiction for the Superior Court to have issued the subject rulings for lack of court jurisdiction, that through lack of proper notice by the [pjlaintiff to [the defendant] of the recording of the lis pendens for the judgment sought to be supplemented”; (6) “There is a lack of proper cause and jurisdiction for the assessments to which the [department] liens referred”; and (7) “The [department] liens were unlawfully presented.” (Emphasis added.)

       At this point, the trial and appellate files constitute six large volumes that, when placed on top of each other, rise to a height of approximately sixteen inches.

       Of the first five claims raised in this appeal; see footnote 2; two claims, namely, numbers four and five, were stricken from the defendant’s brief in the first appeal. Mortgage Electronic Registration Systems, Inc. v. Book, supra, 97 Conn. App. 826. Claim three, pertaining to the alleged conflict of interest on the part of Judge Richards, was raised and decided adversely to the defendant in the first appeal. See id., 827-31. We therefore decline to consider claims three, four and five. Consequently, the only claims that are properly before us are claims one, two, six and seven. See footnote 2.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SUSAN RENEE CUSTER
    (AC 28649)
    Harper, Lavine and West, Js.

      Argued September 8
    officially released October 21, 2008

      Richard S. Cramer, for the appellant (defendant).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony J. Spinella, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Susan Renee Custer, appeals from the judgment of conviction, rendered after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2005) § 14-227a. On appeal, the defendant claims that the court improperly found her to be ineligible for the pretrial alcohol education program (program) because she failed to meet the requirements of General Statutes § 54-56g. Specifically, the defendant claims (1) that the court misconstrued § 54-56g (f) by finding her to be a holder of a commercial driver’s license at all times relevant within the meaning of that subsection and thus precluded from the program and (2) that the court misconstrued § 54-56g (a) (1) in finding that she had invoked the program within the previous ten years and was thus ineligible. We affirm the judgment of the trial court.

The following facts and procedural history are relevant for our resolution of the defendant’s appeal. From the exhibits and stipulations entered at trial, the court reasonably could have found the following facts. On September 17, 2006, the defendant was arrested by South Windsor police for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of §14-227a. At the time of her arrest, the defendant was the holder of a commercial driver’s license. On October 27, 2006, the defendant applied to the court for entry into the program under § 54-56g. The court found her to be ineligible on November 30, 2006. The court determined that she was statutorily ineligible because she had invoked the program within the previous ten years.

On December 28, 2006, the defendant voluntarily caused the rescission of her commercial driver’s license by returning it to the department of motor vehicles. On January 11, 2007, the defendant filed a motion for reconsideration of the denial of her admittance into the program. On March 15, 2007, the court denied the motion, finding that the defendant at the time of her arrest had possessed a commercial driver’s license and was therefore not eligible for the program under the then applicable statute. That same day, the court found her guilty of operating a motor vehicle while under the influence of intoxicating liquor or drugs and imposed a sentence of six months incarceration, execution suspended, eighteen months probation and 100 hours of community service. This appeal followed. Further facts will be put forth as necessary.

The defendant claims that the court improperly found her to be ineligible for the program because she was a holder of a commercial driver’s license at the time she was charged with violating § 14-227a. We disagree.

At the outset, we identify the standard of review and applicable legal principles that guide our resolution of the defendant’s claim. In resolving the defendant’s claim as to the court’s construction of § 54-56g (f), we must interpret this provision in conjunction with other provisions of that statute to determine its proper application in the present case. See Peck v. Milford Hunt Homeowners Assn., Inc., 110 Conn. App. 88, 94, 953 A.2d 951 (2008). “Issues of statutory construction present questions of law, over which we exercise plenary review.” (Internal quotation marks omitted.) Benson v. Zoning Board of Appeals, 89 Conn. App. 324, 329, 873 A.2d 1017 (2005).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Citation omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007).

We start by quoting the pertinent statutory text. “The provisions of [§ 54-56g] shall not be applicable in the case of any person charged with a violation of section 14-227a while operating a commercial motor vehicle, as defined in section 14-1, or who is the holder of a commercial driver’s license, as defined in section 14-1.” General Statutes § 54-56g (f). The only issue we must decide is whether the court misconstrued this subsection of the statute by finding the defendant to be ineligible for the program because she was a holder of a commercial driver’s license when charged with violating § 14-227a. We conclude that the court properly interpreted the statute.

The defendant argues that when she appeared in court on March 15, 2007, and requested entry into the program by way of a motion for reconsideration of denial of entry into the program, she was not the holder of a commercial driver’s license as a result of her voluntary relinquishment of her commercial driver’s license on December 28,2006. The defendant contends that the plain meaning of the term “charged” in the subsection at issue is distinct from arrest. She asserts that “charged” has a dynamic meaning in that a person who is charged with a crime remains charged from arrest to disposition of the matter. The defendant contends that on March 15, 2007, she stood before the court, charged with violating § 14-227a, but not as a holder of a commercial driver’s license. Consequently, she asserts, the court misconstrued the term “charged” as it applied to her in those circumstances and wrongly found her to be ineligible for the program.

The defendant also disputes the court’s interpretation of the phrase “who is a holder” in the subsection at issue. The defendant contends that this phrase is ambiguous in that it fails to delineate a specific time when this provision should apply. The defendant argues that the statute reasonably could be interpreted to refer to someone who is the holder of a commercial driver’s license at the time of application for the program, a parameter, she contends, that was met on her March 15, 2007 reapplication. Moreover, the defendant contends that as a result of this alleged ambiguity in the language of the statute, the rule of lenity should apply, and, therefore, this provision should not serve as a bar to her admission into the program.

The first step in statutory analysis is to examine the relevant language of § 54-56g (f) to determine whether it is plain and unambiguous. In determining whether statutory language is plain and unambiguous, we look to the text itself and its relationship to other statutes. “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 134 n.19, 848 A.2d 451 (2004). We conclude that § 54-56g (f) is not susceptible to more than one reasonable interpretation. Therefore, neither branch of the defendant’s argument of misconstruction bears fruit.

First, the contention that “charged” is a dynamic term and, therefore, that the defendant stood before the court at the time she reapplied for the program on March 15, 2007, charged with violating § 14-227a, but not a holder of a commercial driver’s license is unpersuasive. Resolution of this issue turns on the meaning of the statutory phrase “charged with a violation of section 14-227a . . . who is the holder of a commercial driver’s license . . . .” General Statutes § 54-56g (f).

Although the word “charged” is not defined in the statute, it is clear that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” General Statutes § 1-1 (a). Accordingly, “[i]f a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994).

The word “charged” is defined as an “[accusation of crime by complaint, indictment or information.” Black’s Law Dictionary (6th Ed. 1990). The fact that the defendant’s status changed in regard to being a holder of a commercial driver’s license while her status as one charged remained static is of no moment here. It is not disputed that the defendant was the holder of a commercial driver’s license at the time of her arrest and at the time the state filed its original information, formally charging her with a violation of § 14-227a. These facts were stipulated by the defendant. Tellingly, § 54-56g (f) speaks not at all to the timing of the application to the program but merely to whether or not a defendant was the holder of a commercial driver’s license when charged with a violation of § 14-227a. Moreover, it expressly states that the program “shall not be applicable” to defendants who hold commercial driver’s licenses when charged with violating § 14-227a. General Statutes § 54-56g (f). This provision applies to the defendant. As a result, on the basis of the plain language of the statute, the court properly denied the defendant entry into the program.

As it is clear from the plain and unambiguous language of the statute that the intent of the legislature was to preclude from the program those defendants who were holders of commercial driver’s licenses, the defendant’s second assertion, which is that the statute could reasonably be interpreted to refer to someone who is the holder of a commercial license at the time of application for the program, also has no merit. This is readily apparent when the portion of the statute in question is read in conjunction with the previous clause of the statute. This phrase fixes the time for determining preclusion from the program for operators of commercial vehicles, who under the law must be holders of commercial driver’s licenses, not at the time of application to the program but at the time of the operation of the vehicle in question. To construe the statute to fix varying times for mere holders as opposed to operators would work an internal, illogical inconsistency in the statute that would lead to a patently uneven application. It would also serve to undermine the very purpose of the provision by allowing a holder of a commercial driver’s license to avoid preclusion from the program by merely surrendering their commercial driver’s license. If the legislature intended this result, it would have explicitly provided for such.

Last, the defendant’s reliance on the rule of lenity is misplaced. “[T]he touchstone of this rule of lenity is statutory ambiguity. . . . [W]e . . . [reserve] lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute. ” (Internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 555, 729 A.2d 760 (1999), cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999); see also State v. King, 249 Conn. 645, 687 n.47, 735 A.2d 267 (1999). Because we conclude that there is no ambiguity in the relevant statutory provision, the rule of lenity has no application here. In sum, the court properly construed the provision in question.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) §14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. . . .”

       General Statutes § 54-56g (a) provides in relevant part: “There shall be a pretrial alcohol education system for persons charged with a violation of section 14-227a, 14-227g, 15-133, 15-1401 or 15-140n. Upon application by any such person for participation in such system and payment to the court of an application fee of fifty dollars and a nonrefundable evaluation fee of one hundred dollars, the court shall, but only as to the public, order the court file sealed, provided such person states under oath, in open court or before any person designated by the clerk and duly authorized to administer oaths, under penalties of perjury that: (1) If such person is charged with a violation of section 14-227a, such person has not had such system invoked in such person’s behalf within the preceding ten years for a violation of section 14-227a . . . .”

       Effective July 1, 2006, Public Acts 06-130, § 21, revised General Statutes § 54-56g (f) to provide that “[t]he provisions of this section shall not be applicable in the case of any person charged with a violation of section 14-227a while operating a commercial motor vehicle, as defined in section 14-1, or who is the holder of a commercial driver’s license, as defined in section 14-1.” Unless otherwise noted, throughout this opinion, references to § 54-56g (f) are to the statute as amended by Public Acts 06-130, § 21.
      We note that this subsection was again amended, by Public Acts 07-167, § 42, to remove the language limiting the eligibility of holders of commercial driver’s licenses from participation in the pretrial alcohol education program. This change, however, occurred after the disposition of this matter at trial, and, therefore, the previous provision applies in this appeal.

       Because the resolution of the plaintiffs first issue is dispositive of the appeal, we do not reach this remaining claim.

       On March 15,2007, the parties filed a joint stipulation with the trial court.

       As noted previously, the defendant also claims that the court improperly found that she had invoked the program within the previous ten years and was thus ineligible for the program on this ground. As we conclude that the issue concerning § 54-56g (f) is dispositive, we do not reach this claim.

       We note that the defendant has stipulated not only that she was a holder of a commercial driver’s license on the date of her arrest and one full month later on the date of the filing of her original application to the court for admission into the program but also that she maintained that license until December 28, 2006, nearly one month after the court first denied her entry into the program, albeit for the reason of the ten year prohibition.

       The rule of lenity provides that penal laws generally are to be construed strictly against the state. See State v. King, 249 Conn. 645, 681, 735 A.2d 267 (1999) (criminal statutes not to be read more broadly than language plainly requires and ambiguities ordinarily to be resolved in favor of defendant).

       We are not required to decide whether the defendant was “charged” when she was arrested. We leave that issue for another day.

       “The provisions of this section shall not be applicable in the case of any person charged with a violation of section 14-227a while operating a commercial motor vehicle, as defined in section 14-1 . . . .” General Statutes § 54-56g (f).


author: PER CURIAM.

text:
    JOSEPH HOSKIE v. COMMISSIONER OF CORRECTION
    (AC 29128)
    McLachlan, Robinson and Hennessy, Js.
    Argued September 11
    officially released October 21, 2008

      Laljeebhai R. Patel, special public defender, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Joseph Hoskie, appeals following the denial of his petition for a writ of habeas corpus alleging that the state’s attorney at his criminal trial withheld exculpatory information in violation of the holding in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). On appeal, the petitioner claims that it was improper for the habeas court to hold that the claimed information was not exculpatory and that there was no Brady violation.

The petitioner, following a trial to the court, was convicted of various criminal offenses. The court sentenced the petitioner to a total effective term of twelve years, execution suspended after nine years, with five years probation that was to run consecutively to an unrelated four year sentence. The petitioner then filed a direct appeal. This court affirmed the judgment of conviction. State v. Hoskie, 74 Conn. App. 663, 813 A.2d 136, cert. denied, 263 Conn. 904, 819 A.2d 837 (2003).

The petitioner subsequently filed a petition for a writ of habeas corpus in which he alleged that it was improper for the state’s attorney to not disclose claimed exculpatory information. The petitioner claims that a disclosure by the victim sometime after the trial of certain uncharged misconduct, in which the victim claimed that she was sexually abused by the petitioner but never reported it to the police, was exculpatory material. The habeas court denied the petition on July 20, 2007. In its memorandum of decision, the court found that the petitioner had not been denied due process of law due to any alleged Brady violation. The court specifically found that the petitioner did not meet his burden to show that undisclosed exculpatory information actually exists. Further, the court found that “the most logical interpretation of the material is that it is inculpatory.” (Emphasis in original.)

The United States Supreme Court has held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, supra, 373 U.S. 87; State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990). “To prevail on a Brady claim, the defendant bears a heavy burden to establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.” (Internal quotation marks omitted.) State v. Burke, 51 Conn. App. 328, 333, 723 A.2d 327 (1998), cert. denied, 248 Conn. 901, 732 A.2d 177 (1999).

“Whether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review. . . . The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Walker v. Commissioner of Correction, 103 Conn. App. 485, 491, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

After our plenary review of the record as a whole, we conclude that the petitioner failed to introduce any credible evidence that the state’s attorney failed to disclose exculpatory information to the petitioner. Further, the court’s holding that there was no Brady violation is supported by facts in the record and is legally and logically correct. The court properly denied the petitioner’s habeas petition.

The judgment is affirmed.

       Specifically, the petitioner was convicted of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 and one count of unlawful restraint in violation of General Statutes § 53a-95.

       On direct appeal, the petitioner claimed that the court improperly admitted prior misconduct evidence and allowed the state to qualify a police officer as an expert witness without notice prior to trial.

       The respondent, the commissioner of correction, in her return to the petitioner’s revised petition for a writ of habeas corpus, asserted the defense of procedural default, claiming that the petitioner could have raised this issue at the time of sentencing or in his direct appeal. The court did not address this claim in its memorandum of decision, and there was no articulation requested to address this claim; therefore, we will address the merits of the petitioner’s claim.


author: Per Curiam.

text:
    IN RE PATRICIA I.
    (AC 29038)
    DiPentima, Harper and Lavery, Js.
    Argued September 10
    officially released October 14, 2008
   Per Curiam.

The judgment is affirmed. Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 633 A.2d 305 (1993).


text:
    CECELIA LEBBY v. ATTORNEY GENERAL OF THE STATE OF CONNECTICUT ET AL.
    (AC 29533)
    McLachlan, Gruendel and Lavine, Js.
    Submitted on briefs September 12
    officially released October 14, 2008
   Per Curiam.

The judgment is affirmed.


text:
    CECELIA LEBBY v. FUTURES, INC., ET AL.
    (AC 29535)
    McLachlan, Gruendel and Lavine, Js.
    Submitted on briefs September 12
    officially released October 14, 2008
   Per Curiam.

The judgment is affirmed.


text:
    CECELIA LEBBY v. ATTORNEY GENERAL OF THE STATE OF CONNECTICUT ET AL.
    (AC 29532)
    McLachlan, Graendel and Lavine, Js.
    Submitted on briefs September 12
    officially released October 14, 2008
   Per Curiam.

The judgment is affirmed.


text:
    STEVEN GARY v. COMMISSIONER OF CORRECTION
    (AC 28475)
    DiPentima, Harper and Berdon, Js.
    Argued September 25
    officially released October 14, 2008
   Per Curiam.

The appeal is dismissed.


text:
    JOHN L. v. COMMISSIONER OF CORRECTION
    (AC 28097)
    DiPentima, Gruendel and Lavine, Js.
    Argued September 22—officially
    released October 14, 2008
   Per Curiam.

The appeal is dismissed.


author: BISHOP, J.

text:
    KEVIN V. O’DONNELL v. CITY OF WATERBURY ET AL.
    (AC 29022)
    Bishop, Harper and Hennessy, Js.

      Argued April 23
    officially released October 28, 2008

      Paula N. Anthony, assistant corporation counsel, for the appellants (defendants).

      Francis J. Grady, with whom, on the brief, was Richard O. LaBrecque, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendants, the city of Waterbury (city) and the Waterbury retirement board (board), appeal from the Superior Court’s judgment in favor of the plaintiff, retired police Officer Kevin V. O’Donnell, claiming that the court improperly found that the collective bargaining agreement between the city and the police union requires the board to complete a whole person disability evaluation and that the board abused its discretion when it denied O’Donnell a continuance to seek further medical evaluations. We disagree and affirm the judgment of the trial court.

The following facts are not in dispute. At all times relevant to this matter, O’Donnell was a member of the police union and subject to the terms and conditions of the 2000-2005 collective bargaining agreement between the city and the police union. On June 1,2005, O’Donnell submitted to the board an application for retirement seeking both service pension and disability retirement. O’Donnell based his claim for disability retirement on heart and hypertension problems and injuries to his back and right knee, all of which he sustained while performing his duties as a police officer. Consequently, pursuant to the 2000-2005 collective bargaining agreement, O’Donnell submitted to independent medical examinations by two cardiologists and two orthopedic physicians selected by the city. One of the orthopedic physicians recommended that O’Donnell be reevaluated after follow-up surgery on his right knee was complete. The other physician was apparently unaware of the scheduled follow-up surgery. Neither the orthopedic nor the cardiac physicians concluded that O’Donnell was totally and permanently disabled at that time from performing his duties as a police officer due to either hypertension or orthopedic injuries.

O’Donnell underwent an additional surgery on his right knee in December, 2005. At his January 12, 2006 hearing before the board, O’Donnell requested a continuance for the purpose of reassessing his knee in light of the recently completed surgery and an ensuing soft tissue infection. The board denied his request for a continuance and denied his application for disability retirement.

O’Donnell appealed from the decision of the board to the Superior Court for the judicial district of Waterbury, claiming that the board violated the terms of the collective bargaining agreement by failing to assess the combined or “whole person” effect of his cardiac and orthopedic disabilities. Additionally, O’Donnell claimed that the board abused its discretion when it denied his request for a continuance. The court agreed with O’Donnell, holding that the collective bargaining agreement provided the “right to a whole person evaluation . . . .” The court continued: “Any other interpretation does not make sense. The question is whether the person is permanently and totally disabled from working. It is conceivable that such disability can and sometimes does result from a combination of conditions. It is therefore the entire person that must be evaluated for purposes of determining disability.” Additionally, the court concluded that the board abused its discretion by failing to grant the requested continuance. The court remanded the case to the retirement board for further medical examinations of O’Donnell and for a new hearing to determine whether he is permanently and totally disabled. Subsequently, the defendants appealed to this court.

At oral argument on this appeal, the defendants, citing a recent Superior Court ruling, raised the issue of subject matter jurisdiction for the first time, arguing that O’Donnell has no statutory right of appeal from a decision of the board. The question of whether the trial court had subject matter jurisdiction to hear this case can be raised at any time and must be answered before we can proceed to the issues originally raised on appeal. See Lichtman v. Beni, 280 Conn. 25, 30, 905 A. 2d 647 (2006) ; Fennelly v. Norton, 103 Conn. App. 125, 134, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007) . As the determination of subject matter jurisdiction is a question of law, our review is plenary. Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). Additionally, “[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).

Traditionally, our Supreme Court has held that appeals to courts from administrative decisions exist only under statutory authority, with the notable exception that “[i]f any person claims to be harmed by such an order, his constitutional right to due process is protected by his privilege to apply to a court.” (Internal quotation marks omitted.) Rybinski v. State Employees Retirement Commission, 173 Conn. 462, 473, 378 A.2d 547 (1977).

We begin by assessing whether O’Donnell had a statutory right to appeal from the board’s decision under the terms of the Waterbury city charter (charter). It is undisputed that at the time the collective bargaining agreement was entered into, the charter provided a right of appeal to the Superior Court for any person aggrieved by a decision of the board. See Waterbury Charter, § 2709. The authority for the charter’s grant of a right of appeal comes directly through the legislature’s enactment of 26 Spec. Acts 297, No. 460, § 8 (1951) (Special Act 51-460). In fact, the language providing a right of appeal in Special Act 51-460 is identical to the language providing that same right in the charter. “[A] town charter, whether adopted by special act of the General Assembly or . . . under the Home Rule Act; General Statutes § 7-188; constitutes the organic law of the municipality. ... It is well established that a [town’s] charter is the fountainhead of municipal powers. . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised.” (Citations omitted; internal quotation marks omitted.) West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983).

The defendants claim, however, that this appeal was filed pursuant to an amended pension and retirement ordinance, § 35.20, which was adopted by Waterbury’s board of alderman in 2003 and which replaced the language regarding pension and retirement appeals in the charter. The defendants argue that even though the ordinance describes an appeal process similar to that in the charter, because a municipal ordinance cannot confer jurisdiction for an administrative appeal, the court does not have subject matter jurisdiction to hear O’Donnell’s appeal. We disagree.

The ordinance in question, § 35.20, echoes the charter language granting a right of appeal from the board’s pension and retirement decisions. The legislature, through enactment of § 7-188 (a), specifically authorized that “[a]ny municipality, in addition to such powers as it has under the provisions of the general statutes or any special act, shall have the power to . . . adopt and amend a charter which shall be its organic law and shall supersede any existing charter, including amendments thereto, and all special acts inconsistent with such charter or amendments, which charter or amended charter may include the provisions of any special act concerning the municipality but which shall not otherwise be inconsistent with the Constitution or general statutes . . . .” Notably, the ordinance does not create a right of appeal but merely amends an existing right, extending the number of days an aggrieved person has to appeal and streamlining the language describing the appeal proceedings. Consequently, we conclude that O’Donnell retains his statutory right of appeal under the city’s charter and that the court properly had subject matter jurisdiction for this appeal.

Having established that the trial court had subject matter jurisdiction, we now turn to the claims originally raised on appeal. First, we set forth the applicable standard of review. “Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence. . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary.” (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 721, 780 A.2d 1 (2001).

The defendants claim that the court incorrectly found that article XXIII, § 12, of the 2000-2005 collective bargaining agreement, which contains the terms and conditions governing disability retirement, requires that the board evaluate the combined effects of all of O’Donnell’s claimed injuries in determining whether he is permanently and totally disabled from performing the essential duties of a police officer. Additionally, the defendants argue that because none of the examining physicians’ reports supports a finding of permanent and total disability for O’Donnell’s independent injuries, the board was not required to conduct a comprehensive evaluation.

“The law governing the construction of contracts is well settled. When a party asserts a claim that challenges the . . . construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact .... If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Citation omitted; internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 743-44, 945 A.2d 936 (2008).

O’Donnell’s application for retirement disability triggered article XXIII, § 12, of the collective bargaining agreement, which provides in pertinent part: “Any police participant totally and permanently disabled during the performance of essential duties pertaining to his employment, shall upon application in a form prescribed by the Retirement Board, be retired for disability, provided proof of total disability is submitted to the Retirement Board by reports of examinations to be made by at least two (2) impartial competent medical examiners appointed by the Retirement Board . . . .”

In reviewing the language of article XXIII, § 12, we agree with the trial court that the terms of the contract language are unambiguous. Specifically, the purpose of the reports from the independent medical examiners is to provide proof of “total disability.” Black’s Law Dictionary defines total disability as the following: “A worker’s inability to perform employment-related duties because of a physical or mental impairment.” Black’s Law Dictionary (8th Ed. 2004). Additionally, article XXIII, § 12, lacks particularized language such as that found in a workers’ compensation schedule. A rational reading of the term “total disability” indicates that the board is responsible for evaluating whether the person is capable of performing the essential duties of a police officer and not solely whether the person’s right knee or heart, in isolation, renders him disabled. As a matter of common sense, it is plausible that total disability can result from a combination of partial disabilities relating to different parts of one’s body. The only logical interpretation of article XXIII, § 12, requires the board to evaluate a police officer’s injuries in their totality to determine their impact on his or her ability to continue to work. Although we cannot predict whether a comprehensive evaluation will result in a determination that O’Donnell is totally and permanently disabled, and we leave to the board the determination of whether additional medical examinations of O’Donnell are required for a fair assessment of his disability claims, we do conclude that the language of the collective bargaining agreement requires the board to take into consideration the aggregate impact of an applicant’s separate employment related injuries and infirmities in making its ultimate determination.

The final issue that the defendants challenge on appeal is the court’s conclusion that the board abused its discretion by failing to grant O’Donnell’s requested continuance. The defendants argue that the denial of the continuance was well within the discretion of the board and was not so arbitrary as to violate O’Donnell’s right to due process. We disagree.

“Requests for continuances invoke the discretionary authority of the adjudicating tribunal. [0]n review every reasonable presumption in favor of the [tribunal's] ruling will be made. . . . The [tribunal's] decision will be reversed only if it represents a gross abuse of discretion. ... In deciding whether the denial of a continuance is so arbitrary as to violate due process, we have not resorted to mechanical tests but have instead examined closely the particular facts of each individual case.” (Citation omitted; internal quotation marks omitted.) Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 485, 576 A.2d 510 (1990). The party seeking the continuance has the burden of establishing good cause for such a continuance. State v. Gordon, 197 Conn. 413, 424B, 504 A.2d 1020 (1985).

In assessing whether the denial of a continuance amounts to an abuse of discretion, courts have considered a number of factors, including the legitimacy of the reason for the delay, the likely length of the delay, prior continuances, the requesting party’s responsibility for the timing of the request and any prejudice or substantial impairment that a denial of the continuance would have on the requesting party’s rights. State v. Hamilton, 228 Conn. 234, 240-41, 636 A.2d 760 (1994). In this case, when the board denied the continuance, it was aware that Richard Dyer, one of the board selected orthopedic surgeons who evaluated O’Donnell, had indicated in his report to the board that O’Donnell should be “appropriately re-evaluated for work status” after his second knee surgery. The board knew that O’Donnell had recently undergone a second surgery to his right knee, which, according to his physician, left him temporarily totally disabled. Additionally, the board was aware that just one week prior to the hearing, O’Donnell had been diagnosed with a “superficial but somewhat threatening soft tissue infection” and found to be temporarily disabled. O’Donnell’s initial knee injury was indisputably due to his employment as a police officer. Because the outcome of his second knee surgery remained uncertain and one of the physicians who had examined O’Donnell for the board recommended that he be reevaluated, O’Donnell’s request for a continuance was legitimate.

Additionally, the denial of O’Donnell’s requested continuance resulted in a substantial impairment of his rights. Given that at the time of the board’s decision, the extent of O’Donnell’s disability was uncertain, the board’s refusal to grant him a continuance denied him an opportunity to present fairly his request for disability retirement. Furthermore, as the defendants acknowledged at oral argument, because O’Donnell retired in June, 2005, he was no longer eligible to file a second or amended application for disability. Accordingly, the board’s refusal to grant the continuance and its subsequent denial of his application barred O’Donnell from consideration for disability retirement before the extent of his disabilities was known. Any delay in the board’s determination of O’Donnell’s case due to the unresolved nature of his injuries was outweighed by his right to have his disability retirement determined on the basis of the full extent of his employment injuries. Consequently, we conclude that the board abused its discretion when it denied his request for a continuance.

The judgment is affirmed.

In this opinion the other judges concurred.

       Despite the fact that the court remanded this case to the board for a new hearing, this appeal is properly taken from a final judgment. Our Supreme Court has determined that a judicial order for further administrative proceedings because an administrative ruling was in error is a final judgment. Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 410, 521 A.2d 566 (1987). The right of appeal from this type of judicial order “avoid[s] the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue.” Id. Accordingly, the judgment of the court is an appealable final judgment.

         Russo v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. X01-CV-08-4015095-S (April 16, 2008) (dismissing five counts of plaintiffs complaint on ground that court lacked subject matter jurisdiction as there was no statutory right to bring plaintiffs administrative appeal).

       The parties submitted simultaneous supplemental briefs on whether O’Donnell has a statutory right of appeal or, in the alternate, a plenary right of action against the defendants.

       We note that the charter allows fifteen days for an appeal from a decision of the board while the ordinance allows thirty days. As the defendants failed to raise the issue of timeliness both at the time of filing and in their supplemental briefs, we consider it waived. See Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987).

       The defendants argue that because O’Donnell submitted his application for retirement disability on the presumption that he was permanently and totally disabled at the time he filed his application, the board was only required to evaluate him as to the extent of his injuries at that time. Essentially, because a police officer cannot apply for disability retirement after retiring, the defendants argue that an officer must continue working with a disability until such time as the magnitude of that disability has been fully determined and then apply for disability retirement. This argument is irrational.


author: HARPER, J.

text:
    ROBERT E. HENRY v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 28916)
    DiPentima, Harper and Lavery, Js.

      Argued April 22
    officially released October 28, 2008

      Susan L. Miller, with whom, on the brief, was Teresa O’Connell, for the appellant (plaintiff).

      Mark A. Dubois, chief disciplinary counsel, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, Robert E. Henry, a member of the bar of this state, appeals from the judgment of the trial court dismissing his appeal from the reprimand issued to him by the reviewing committee of the defendant, the statewide grievance committee, for violating rules 3.3 (a) (1) and 8.4 (4) of the Rules of Professional Conduct. The plaintiff claims that the court improperly concluded that (1) the reviewing committee did not misapply the law when it determined that he had violated rules 8.4 (4) and 3.3 (a) (1), (2) the defendant presented sufficient evidence of violations of rules 3.3 (a) (1) and 8.4 (4), and (3) the reviewing committee did not rely on irrelevant facts in reaching its conclusions. We affirm the judgment of the trial court.

The following relevant facts are largely undisputed. Nurul Huq, a mail carrier for the United States Postal Service, allegedly was attacked and injured by a dog while delivering mail in the course of his employment. Huq filed a workers’ compensation claim for this work-related injury. In connection with this claim, and at the request of Huq’s employer, Philip A. Micalizzi, Jr., a physician, performed an independent medical examination of Huq. Huq later filed a negligence action against the dog’s owners, Joseph Collins and Judy Collins. The Collinses retained the plaintiff to represent them in that personal injury action.

On January 8, 2004, Huq authorized the plaintiff to obtain his medical records. Later that day, the plaintiff subpoenaed Micalizzi to appear at a deposition on January 22,2004, scheduled to take place at Micalizzi’s office, and to produce at the deposition his entire file concerning the treatment of Huq. The plaintiff also sent Micalizzi a letter that day advising him that in lieu of appearing at the deposition, Micalizzi could produce the requested documents prior to the deposition date.

During the next two weeks, the plaintiff contacted Micalizzi’s office on a repeated basis. Although the parties dispute precisely what transpired, as a result of these contacts, the plaintiff came to believe that Micalizzi would not be producing the requested documents, nor would he be attending the deposition. Regardless, the January 22,2004 deposition did not occur. The plaintiff thereafter informed Micalizzi that in the absence of Micalizzi’s turning over the requested documents, the court would issue a capias.

On February 10, 2004, the plaintiff presented to the Superior Court an application for a capias. He also testified before the court that same day. The following colloquy ensued:

“The Court: [Y]ou had subpoenaed a doctor that didn’t show up for a deposition?
“[The Plaintiff]: That is correct, Your Honor.
“The Court: Okay. You—you’re asking for a capias?
“[The Plaintiff]: I am, Your Honor.
“The Court: Okay. You may proceed.
“[The Plaintiff]: Yes, Your Honor. On January 9, process was served on [Micalizzi] ....
* * *
“[The Plaintiff]: In-hand service for a records deposition that was to occur on January 22. [Micalizzi] did not appear for the deposition. He did not provide the records in lieu thereof. I’ve had numerous telephone conversations with his office in the interim, advising him that service had been made, he had an obligation to appear or, in lieu of, I would accept the records. That has not occurred at this point.” The court then issued a capias, which was executed on February 17, 2004. Micalizzi subsequently filed a complaint with the defendant, which was then referred to the local grievance panel (local panel).

On January 31, 2006, the local panel concluded that there existed probable cause that the plaintiff had violated rules 3.3 (a) (1), 54.4 (a) and 8.4 (4). On August 11, 2006, the reviewing committee of the defendant issued a written; decision in which it found that the plaintiff had violated rules 3.3 (a) (1) and 8.4 (4) by clear and convincing evidence and reprimanded the plaintiff. On September 5, 2006, the plaintiff, pursuant to Practice Book § 2-35 (g), requested a review of the decision by the defendant. On September 22, 2006, the defendant affirmed the decision of the reviewing committee. The plaintiff appealed to the trial court, which rejected his claims and affirmed the decision of the defendant. This appeal followed.

I

The plaintiff first claims that the court improperly determined that the reviewing committee did not misapply the law in finding that he violated rules 8.4 (4) and 3.3 (a) (1). We will address each component of the plaintiffs claim in turn.

Before we do so, however, we first note that “in reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct.” (Internal quotation marks omitted.) Somers v. Statewide Grievance Committee, 245 Conn. 277, 290, 715 A.2d 712 (1998).

A

We first address the plaintiffs claim that the court improperly determined that the reviewing committee did not apply an improper legal standard in concluding that he had violated rule 8.4 (4). In support of this claim, the plaintiff contends that the reviewing committee’s decision states that “[t]he [plaintiffs] misrepresentation to the court was prejudicial to the administration of justice in violation of rule 8.4 (4) . . . . The [plaintiffs] misrepresentation led to the issuance of a capias . . . .” The plaintiff asserts that “misrepresentation is not the standard. ‘Dishonesty, breach of trust, or serious interference’ is the standard. . . . Misrepresentation is not equal to dishonesty, breach of trust, serious interference with the administration of justice, or intentional conduct.” (Citations omitted.) We conclude that because the plaintiff has quoted out of context this “standard” that he believes governs the application of rule 8.4 (4), his argument that the committee applied an incorrect “standard” in its analysis of rule 8.4 (4) is misplaced.

A review of rule 8.4 and its commentary will serve to illuminate our conclusion. Rule 8.4 provides in relevant part that “[i]t is professional misconduct for a lawyer to . . . (2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects ... (4) Engage in conduct that is prejudicial to the administration of justice . . . .”

The commentary to rule 8.4 then provides in relevant part: “Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.” (Emphasis added.)

It is clear to us that the aforementioned commentary section applies to circumstances in which a professional misconduct prosecution has been initiated in response to a criminal act committed by an attorney. Furthermore, rule 8.4 (2), by its plain language, is the rule pursuant to which a professional misconduct prosecution would be initiated in response to a criminal act committed by an attorney. The “standard” contained in this commentary section would logically, therefore, apply to prosecutions convened pursuant to rule 8.4 (2). Consequently, we conclude that the plaintiff is incorrect in his assertion that rule 8.4 (4) violations must involve “dishonesty, breach of trust [or] serious interference with the administration of justice . . . .”

B

We next turn to the plaintiffs claim that the court improperly determined that the reviewing committee did not apply an improper legal standard in concluding that he had violated rule 3.3 (a) (1).

The reviewing committee, in its decision, found that “[t]he [plaintiff] knowingly made a false statement of material fact to the court in violation of rule 3.3 (a) (1) by representing to the court that [Micalizzi] did not appear for the January 22, 2004 deposition. [Micalizzi] was in his office on January 22,2004, the date and place of the scheduled deposition. . . . Neither the [plaintiff] nor a reporter appeared to take [Micalizzi’s] deposition on January 22, 2004.”

Rule 3.3 (a) provides: “A lawyer shall not knowingly ... (1) [m]ake a false statement of fact or law to a tribunal . . . .” The commentary to rule 3.3 then provides in relevant part that “an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.”

The plaintiff asserts that rule 3.3 (a) (1) provides two distinct standards. He argues that the reviewing committee improperly assessed the alleged violation of rule 3.3 (a) (1) pursuant to the standard contained in the rule—whether the lawyer knowingly made a false statement—as opposed to the standard contained in the commentary to the rule—whether the lawyer believed his statement to be true on the basis of a reasonably diligent inquiry. The plaintiff then contends that “since the [reviewing] committee used the incorrect standard to begin with, any legal conclusion the [reviewing] committee reache[d] cannot be supported.”

The plaintiff, in making this argument, is in essence contending that the defendant, in prosecuting an alleged violation of rule 3.3 (a) (1), is required to prove not only that a lawyer knew his statement to be false but, furthermore, that he did not believe that statement to be true on the basis of a reasonably diligent inquiry.

We conclude, similar to our conclusion in part I A, that the plaintiffs argument that the committee applied an incorrect “standard” in its analysis of rule 3.3 (a) (1) is misplaced. We do not place the same weight on commentaries as we would place on expressed rules. The explanatory notes section in the rules of practice provides in pertinent part: “The Commentaries were prepared by the drafters of proposed amendments to the rules and are included in this volume for informational purposes only. Commentaries are not adopted by the Judges and Justices . . . .” (Emphasis in original.) Practice Book, explanatory notes, p. iii. Commentaries are routinely used for purposes of persuasive consideration, to guide or assist the court as to the meaning of a rule or statute or for instructive guidance to analyze an issue further. See, e.g., W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704, 716-18, 817 A. 2d 91 (2003) (Zarella, J., concurring) (using statute’s commentary to construct meaning of term in statute); State v. Courchesne, 262 Conn. 537, 581-82, 816 A.2d 562 (2003) (discussing citation of commentaries to various statutory codifications as reliable evidence of ascertaining legislative intent); Connecticut National Bank v. Giacomi, 233 Conn. 304, 321, 341, 659 A.2d 1166 (1995) (using commentary on Uniform Securities Act [1976] to assist court in ascertaining legislative intent). The defendant applied the correct standard for rule 3.3 (a) (1) and was not required to go beyond the clear text of the rule.

Accordingly, we conclude that the trial court properly affirmed the reviewing committee’s determination that the plaintiff violated rule 3.3 (a) (1).

II

The plaintiff next claims that the court improperly determined that the defendant presented clear and convincing evidence of violations of rules 3.3 (a) (1) and 8.4 (4). Before we address the merits of the plaintiffs claim, we first note that we review the findings challenged in attorney grievance appeals pursuant to the clearly erroneous standard of review. Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 613, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007). “The clearly erroneous standard of review provides that [a] court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Id., 612. “Additionally, because the applicable standard of proof for determining whether an attorney has violated the Rules of Professional Conduct is clear and convincing evidence . . . we must consider whether the [fact finder’s] decision was based on clear and convincing evidence.” (Citation omitted.) Briggs v. McWeeny, 260 Conn. 296, 322-23, 796 A.2d 516 (2002).

A

The plaintiff claims that the court improperly determined that the defendant had produced clear and convincing evidence of a violation of rule 3.3 (a) (1). We do not agree.

To establish a violation of rule 3.3 (a) (1), the defendant bore the burden of proving, by clear and convincing evidence, that the plaintiff knowingly made a false statement of fact or law to a tribunal. Rules of Professional Conduct 3.3 (a) (1).

The reviewing committee concluded that the plaintiff “knowingly made a false statement of material fact to the court in violation of rule 3.3 (a) (1) by representing to the court that [Micalizzi] did not appear for the January 22, 2004 deposition.” The plaintiff has challenged the committee’s finding that he made a false statement of fact.

The reviewing committee heard testimony, and found as facts, that neither the plaintiff nor a court reporter appeared at Micalizzi’s office, the place where the deposition was designated to take place, on January 22,2004. The reviewing committee also heard testimony, and also found as fact, that Micalizzi did appear at his office that day. The plaintiff concedes that the January 22, 2004 deposition thus did not occur. Yet, the plaintiff unequivocally stated to the court, at the hearing on his application for a capias, that Micalizzi failed to attend that very deposition. Although the plaintiff vehemently argues that he was under no legal obligation to establish that a deposition had been convened before a capias may issue, we cannot comprehend how an individual can fail to attend a deposition that is never convened. Accordingly, we conclude that it was not clear error for the reviewing committee to have found that the plaintiff made a false statement of fact.

The plaintiff nevertheless contends that because the reviewing committee heard testimony that Micalizzi did not intend to attend the January 22, 2004 deposition, the reviewing committee could not properly have found that the plaintiffs statement that Micalizzi had not attended that deposition was false. It suffices to say that our determination in part I B that this testimony could not, as a matter of law, support a finding that the plaintiff believed his statement to be true is dispositive of the plaintiffs contention.

In sum, we conclude that the court properly determined that it was not clear error for the reviewing committee to have found that the plaintiff violated rule 3.3 (a) (1).

B

The plaintiff next claims that the court improperly determined that the defendant presented clear and convincing evidence of a violation of rule 8.4 (4). We do not agree.

To establish a violation of rule 8.4 (4), the defendant bore the burden of proving, by clear and convincing evidence, that the plaintiff “engage [d] in conduct that is prejudicial to the administration of justice . . . .” Rules of Professional Conduct 8.4 (4).

The reviewing committee, in its decision, concluded as follows: “The [plaintiffs] misrepresentation to the court was prejudicial to the administration of justice in violation of rule 8.4 (4) . . . . The [plaintiffs] misrepresentation led to the issuance of a capias . . . .” Because Connecticut courts have yet to fashion a precise interpretation of rule 8.4 (4), we briefly digress to consider whether the grounds relied on by the reviewing committee—a misrepresentation that induces a court to take action it would not otherwise have taken—may constitute conduct that is prejudicial to the administration of justice.

We begin by noting that “rule 8.4 (4) casts a wide net over an assortment of attorney misconduct.” O’Brien v. Superior Court, 105 Conn. App. 774, 805, 939 A.2d 1223 (DiPentima, J., concurring in part and dissenting in part), cert. denied, 287 Conn. 901, 947 A.2d 342 (2008). Furthermore, our sister states have consistently held that an attorney’s mere misrepresentation to a court may result in a violation of rule 8.4 (4). See, e.g., In re Tarantino, 286 Kan. 254, 258, 182 P.3d 1241 (2008) (attorney misrepresented that he would seek to set aside default disbarment); Attorney Grievance Commission v. Kreamer, 404 Md. 282, 318-19, 946 A.2d 500 (2008) (attorney misrepresented that she had not begun representing client until three months after representation actually had began); Florida Bar v. Varner, 780 So. 2d 1, 4 (Fla. 2001) (attorney submitted to counsel for insurance company, but not to court, fictitious notice of voluntary dismissal); In re Crumpacker, 269 Ind. 630, 649-50, 383 N.E.2d 36 (1978) (attorney engaged in conduct prejudicial to administration of justice when he misrepresented, during closing argument, evidence that had been produced at trial), cert. denied sub nom. Crumpacker v. Indiana Supreme Court Disciplinary Commission, 444 U.S. 979, 100 S. Ct. 481, 62 L. Ed. 2d 406 (1979).

We conclude that given the wide variety of conduct to which rule 8.4 (4) has been applied and the consistency with which courts have found rule 8.4 (4) violations on the basis of a mere misrepresentation to the court, the allegation in the present case—a misrepresentation that induced the court to take action it otherwise would not have taken—constitutes conduct that is prejudicial to the administration of justice and is thus sufficient to form the basis of a violation of rule 8.4 (4).

The plaintiff contends, however, that the defendant failed to produce evidence sufficient to establish that his misrepresentation induced the court to take action it would not otherwise have taken. He argues that the reviewing committee “assume [d] that if [the plaintiff] had not ‘misled’ [the court], [the court] would not have issued the capias. It is the committee’s burden to prove that [the plaintiff’s] alleged ‘misrepresentation led to the issuance of a capias.’ There is not one shred of evidence that [the court] would not have issued the capias . . . .” We do not agree.

The statute that authorized the court to issue the capias, General Statutes § 52-148e (e), provides in relevant part: “If any person to whom a lawful subpoena is issued under any provision of this sectionfails without excuse to comply with any of its terms, the court before which the cause is pending . . . may issue a capias . . . .” (Emphasis added.)

The subpoena, which was presented to the reviewing committee as evidence, stated in relevant part: “You are hereby commanded to appear before [the plaintiff] for the taking of your deposition to be holden at [Micalizzi’s office] on the 22nd day of January A.D. 2004 . . . and you are further commanded to bring with you and produce at the same time and place: Your entire file concerning treatment and evaluation of . . . Huq . . . .” (Emphasis added.)

The subpoena thus provided by its very terms that compliance therewith would have required, at a minimum, appearing at the deposition. Because the subpoena clearly required that Micaiizzi “bring with [him] and produce” Huq’s medical records at the deposition, Micalizzi’s simply producing those documents, without attending the deposition, would have been inadequate to comply with the plain terms of the subpoena. Absent the plaintiffs representation that Micaiizzi failed to appear at the deposition, the court could not have concluded that Micaiizzi failed to comply with the terms of the subpoena and, thus, would have been without legal authority to issue the capias. The reviewing committee was indeed presented with evidence of this precise representation. We conclude that it was not clear error for the reviewing committee to have found, on this basis, that the plaintiffs misrepresentation led to the issuance of a capias.

Accordingly, the court did not improperly determine that the defendant presented clear and convincing evidence of a violation of rule 8.4 (4).

Ill

The plaintiff finally claims that the court improperly concluded that the reviewing committee did not rely on irrelevant facts in reprimanding him. We do not agree.

The plaintiff contends that three of the reviewing committee’s factual findings are irrelevant to the issue of whether the plaintiff had violated rules 3.3 (a) (1) or 8.4 (4). The plaintiff bases his claim on three statements by the reviewing committee: (1) “On or about January 13, 2004, the [plaintiff] received correspondence from the Medical Consultants Network advising the [plaintiff] that he needed to contact the Office of Workers Compensation Program’s for the records because they were the ‘custodians for the records’ (2) “On February 17, 2004 at about 9 p.m. [Micalizzi] was taken from his home by four marshals and two policemen in view of his children, arrested, handcuffed and transported to jail. [Micalizzi] was released after midnight”; and (3) “The [plaintiff] indicated that he is a defendant in a pending civil lawsuit initiated by [Micalizzi] arising out of the same allegations as those set forth in the grievance complaint.”

Because we concluded in parts IIA and B that there was sufficient evidence for the reviewing committee to have found violations of rules 3.3 (a) (1) and 8.4 (4) absent any reliance on these allegedly irrelevant factual findings, any impropriety in making these findings was necessarily harmless. See, e.g., Stohlts v. Gilkinson, 87 Conn. App. 634, 650, 867 A.2d 860 (court’s improper reliance on facts irrelevant to claim of negligent infliction of emotional distress harmless when, even absent irrelevant facts, sufficient evidence existed to support court’s finding), cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005); Ezikovich v. Commission on Human Rights & Opportunities, 57 Conn. App. 767, 776, 750 A.2d 494 (“commission’s discussion of the collective bargaining agreement, even if it was erroneous, was harmless because there was substantial evidence in the record to support the commission’s decision. Our Supreme Court has held that [h] armless error analysis is available in the administrative context.” [Internal quotation marks omitted.]), cert. denied, 253 Conn. 925, 754 A.2d 796 (2000).

The judgment is affirmed.

In this opinion the other judges concurred.

       Micalizzi had taken the position that because he had examined Huq in connection with a federal workers’ compensation claim, Huq’s medical records could only be released by the federal Office of Workers’ Compensation Programs or its third party administrator, Medical Consultants Network.

       At the plaintiffs hearing before the reviewing committee of the defendant, the plaintiff testified that he had spoken with Micalizzi on either January 21 or 22, 2004, and that Micalizzi had advised him that he would not be attending the January 22 deposition. At the same hearing, Micalizzi denied that this conversation had occurred.

       The local panel reviews matters from the judicial district of New Britain and the judicial district of Hartford, geographical area number twelve, and the towns of Avon, Bloomfield, Canton, Farmington and West Hartford.

       Rule 3.3 (a) provides: “A lawyer shall not knowingly ... (1) [m]ake a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . . .”

       Rule 4.4 (a) provides: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”

       Rule 8.4 provides: “It is professional misconduct for a lawyer to . . . (4) [ejngage in conduct that is prejudicial to the administration of justice . . . .”

       The reviewing committee also found that the plaintiff had not violated rule 4.4 (a).

       The plaintiff also argues that the court failed to address this claim in its memorandum of decision and, in so doing, implicitly agreed with an argument offered by the defendant before that court that, in the words of the plaintiff, “finding a violation of rule 8.4 (4) is necessary when it finds a violation of rule 3.3 (a) (1) because that is the ‘[c]ommitt,ee’s long-standing procedure.’ ”
      We first note that “[w]e have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court . . . .” McGuire v. McGuire, 102 Conn. App. 79, 87, 924 A.2d 886 (2007). Contrary to the plaintiffs assertion that the court failed to rule on this claim, the court simply summarily rejected the claim.
      More importantly, however, the claim appears to be based on speculation as to the basis of the reviewing committee’s decision. The decision is devoid of any indication that the reviewing committee applied the logic suggested by the plaintiff. Rather, the decision clearly states that the reviewing committee found a rule 8.4 (4) violation because “[t]he [plaintiffs] misrepresentation led to the issuance of a capias . . . .” Accordingly, we will review only the stated basis for the reviewing committee’s determination.

       “ [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Somers v. Statewide Grievance Committee, supra, 245 Conn. 290-91.

       The plaintiff has also argued that “the [defendant] has not met the clear and convincing proof standard to prove that under rule 3.3 [the plaintiff] did not believe his statements to [the court] to be true based on his interactions with . . . Micalizzi.” As we concluded in part I B, however, the reviewing committee was not required to make such a detennination beyond the clear text of the rule.

       Connecticut courts, although only occasionally considering the matter, have upheld findings of rule 8.4 (4) violations where an attorney wrote a letter accusing a judge of extorting money from his client; Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 236, 890 A.2d 509, cert. denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39 (2006); where an attorney refused to attend several criminal pretrial conferences; Statewide Grievance Committee v. Whitney, 227 Conn. 829, 830, 633 A.2d 296 (1993); and where an attorney failed to pay a judgment that had been rendered against him in a timely manner. Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 210, 804 A.2d 1027 (2002).
      Our sister states have found 8.4 (4) violations under even further reaching circumstances. See, e.g., In re Selmer, 749 N.W.2d 30, 36 (Minn. 2008) (failure to file income tax); State ex rel. Oklahoma Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla. 2008) (failure to appear in court on behalf of client); North Carolina State Bar v. Ethridge, 657 S.E.2d 378, 382-83 (N.C. App. 2008) (preparation and recordation of deed conveying client’s property to self contrary to client’s intent); In re Abbott, 925 A.2d 482, 486-87 (Del.) (submission of brief including inflammatory language), cert, denied sub nom. Abbott v. Office of Disciplinary Counsel, 552 U.S. 950, 128 S. Ct. 381, 169 L. Ed. 2d 263 (2007); Attorney Grievance Commission v. Mba-Jonas, 397 Md. 690, 701, 919 A.2d 669 (2007) (careless management of escrow account); Florida Bar v. Barcus, 697 So. 2d 71, 72-74 (Fla. 1997) (appeal filed solely for purpose of delaying foreclosure); Attorney Grievance Commission v. Garland, 345 Md. 383, 390, 396-97, 692 A.2d 465 (1997) (failure to appear at alcohol treatment facility in violation of court order); Attorney Grievance Commission v. Singleton, 315 Md. 1, 6, 553 A.2d 222 (1989) (failure to notify client of own suspension from legal practice).

       The plaintiff goes to great lengths to argue that the court assessed the propriety of the reviewing committee’s determination pursuant to the incorrect capias statute, General Statutes § 52-143 (e), rather than the correct capias statute, General Statutes § 52-148e (e). Because we conclude that the reviewing committee’s finding of a violation was not clearly erroneous when considered pursuant to § 52-148e (e), any impropriety on the part of the court was harmless. See Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).