text:
    C & H MANAGEMENT, LLC v. CITY OF SHELTON ET AL.
    (AC 33264)
    Bear, Espinosa and Sheldon, Js.

      Argued October 19, 2012
    officially released February 5, 2013

      Thomas R. Gerarde, with whom, on the brief, was Emily E. Cosentino, for the appellants (defendants).

      Ian Angus Cole, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendants, the city of Shelton (city) and Robert Kulacz, appeal from the judgment of the trial court denying their motion for summary judgment, which had been grounded on the doctrine of res judi-cata. On appeal, the defendants claim that the court erred in denying their motion. We affirm in part and reverse in part the judgment of the trial court.

The following facts, as found by the trial court, are relevant to our review of the defendants’ claim. The plaintiff, C & H Management, LLC, commenced an action seeking a writ of mandamus to compel the city and Kulacz, the city’s engineer, to approve the plaintiffs application for the construction of a single-family house (mandamus action). Kulacz had refused to approve the plans, and he refused to give the plaintiff any explanation for his refusal. The city’s planning and zoning commission and its administrator both approved the plans. The plaintiff was successful in the mandamus action, where the court ordered that permits for the construction of the house be issued.

The plaintiff then brought the present action against the defendants for inverse condemnation and for monetary damages for an alleged violation of the plaintiffs rights under 42 U.S.C. § 1983. On April 6, 2010, the defendants filed a motion for summary judgment on the ground that the plaintiffs action was barred by the doctrine of res judicata because these causes of action could have been brought at the time the plaintiff brought the mandamus action. The plaintiff objected to the motion for summary judgment on several grounds. On December 23, 2010, the court denied the defendants’ motion, and it later issued an articulation further explaining its reasons for denying the defendants’ motion. Specifically, the court determined that the plaintiffs action was not barred by res judicata because (1) the relevant facts needed to support the present claims did not surface until the mandamus trial, (2) the mandamus action sought expeditious relief different from the relief sought in the present action and (3) the mandamus action was brought against the city and a number of its officials, whereas the present case is brought against the city and Kulacz, individually. This appeal followed.

On appeal, the defendants claim that the court improperly denied their motion for summary judgment. Specifically, they argue that the elements of res judicata have been met, thereby entitling them to judgment as a matter of law because both the mandamus action and the present action involve the same parties, or those in privity with them, and the plaintiff received a judgment on the merits in the mandamus action. We agree that the claims against the city are barred by the doctrine of res judicata, but conclude that the claims against Kulacz, who has been sued individually instead of in his official capacity, are not barred.

As a preliminary matter, we set forth the applicable standard of review and the relevant legal principles that guide our analysis. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the fight most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 599-600, 922 A.2d 1073 (2007).

“Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The doctrine of res judicata [applies] ... as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction .... The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. . . . Furthermore, [t]he judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. . . . The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matters precluded necessarily depends on what has occurred in the former adjudication. . . .

“Because the operative effect of the principle of claim preclusion ... is to preclude relitigation of the original claim, it is crucial to define the dimensions of that original claim. . . . [T]he claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction . . . out of which the action arose. . . . [This] transactional test . . . provides a standard by which to measure preclusive effect of a prior judgment, which we have held to include any claims relating to the cause of action which were actually made or might have been made. . . . [E]ven though a single group of facts may give rise to rights for several kinds of relief, it is still a single cause of action.” (Citations omitted; internal quotation marks omitted.) Himmelstein v. Bernard, 139 Conn. App. 446, 453-54, 57 A.3d 384 (2012).

The defendants argue that the parties to this action are the same as the parties to the mandamus action. Specifically, they argue that “[t]here is no dispute that the [city] was a party in both the prior action and the present action . . . [and that] Kulacz, having an interest in the subject matter, participated openly and actively in so much of the former litigation as led to the judgment adjudicating the cause of action in question.” (Internal quotation marks omitted.) Accordingly, they argue, the defendants “should be permitted to avail [themselves] of the defense of res judicata in the present action.” We conclude that, for res judicata purposes, the defendant city is the same party in both actions, but that Kulacz, having been sued in his individual capacity in the present action, is not the same party as Kulacz the municipal official who was sued in the mandamus action, nor is the individual defendant Kulacz in privity with Kulacz the municipal official.

“It is well settled law that an action against a government official in his or her official capacity is not an action against the official, but, instead is one against the official’s office and, thus, is treated as an action against the entity itself. ... [In general] an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. ... It is not a suit against the official personally, for the real party in interest is the entity. • • • Since [officials] represent not their own rights but the rights of the municipality the agents of the same municipal corporation are in privity with each other and with the municipality.” (Citations omitted; internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005); see Himmelstein v. Bernard, supra, 139 Conn. App. 456 (same); see also Hartford National Bank & Trust Co. v. Malcolm-Smith, 129 Conn. 67, 70, 26 A.2d 234 (1942) (“in order to make a judgment res adjudicata as regards the issues determined in it the person claimed to be bound by it should have been a party to the first action in the same capacity that he is to the second”).

“Generally, a governmental body and its officers, boards, commissions, agents, representatives, and employees are in privity and form but a single entity with respect to application of the rule of res judicata. . . . For res judicata proposes not all government employees and officials are in privity with the government. An official sued in an individual capacity is generally not considered to be in privity with the government, and consequently not bound by a prior adjudication in which the government was a party. In addition, where officers act for their government under an unconstitutional authority the government is not bound by the judgment.” 50 C.J.S. 532-33, Judgments § 1155 (2009); see also 1 Restatement (Second), Judgments § 36 (2), p. 359 (1982) (“party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity”); but see Gargiul v. Tompkins, 790 F.2d 265, 272 (2d Cir. 1986) (“New York law generally holds that a suit against an individual in his official capacity will bar a later suit, arising out of the same transaction, against him in his individual capacity”).

The plaintiff brought its mandamus action, in relevant part, against the city and against Kulacz, in his official capacity as the city’s engineer. The plaintiff requested that the court order Kulacz and the city to issue permits for the construction of the house, and, following a trial, the court ordered the city to issue the permits. In the present case, the plaintiff again has brought an action against the city, and it alleges that it has brought an action against Kulacz, individually, who, the plaintiff claims, was acting under color of law at the time he refused to issue an approval of the plaintiffs house plans. We conclude that it, essentially, is undisputed that the city is the same party against whom the plaintiff brought the prior mandamus action. We also conclude, however, that Kulacz, an individual, is not the same party against whom the mandamus action was brought, nor is he in privity with that municipal official. Accordingly, the plaintiffs action against Kulacz cannot be barred by the doctrine of res judiciata, as he was not a party to the prior mandamus action, nor in privity therewith. Because the city is the same party in both actions, however, we next must determine whether the mandamus action bars the present action against the city.

The city argues that a final judgment was rendered on behalf of the plaintiff in the mandamus action, that both actions involve the same transaction and the same operative facts, and that the plaintiff had an adequate opportunity to bring the claims against the city in the mandamus action. Accordingly, the city argues, the present claims are barred as they merged into the final judgment in the prior mandamus action. We agree.

“A cause of action is that single group of facts that is claimed to have brought about an unlawful injury to the plaintiff and that entitles the plaintiff to relief. . . . Even though a single group of facts may give rise to rights to several different kinds of relief, it is still a single cause of action.” (Citation omitted.) McCue v. Birmingham, 88 Conn. App. 630, 636, 870 A.2d 1126, cert. denied, 274 Conn. 906, 876 A.2d 14 (2005).

In this case, a review of the pleadings from the present action and from the prior mandamus action reveals that both cases arise out of the same nucleus of operative facts. They both contain many of the same factual allegations, and they both are based in relevant part on the refusal of the city through Kulacz and others to issue the necessary permits. We are aware of no case law in this state that allows a subsequent action for damages to be maintained, despite the doctrine of res judicata, simply because the first action sought only a writ of mandamus.

In support of the viability of his claims against the city, the plaintiff relies, in part, on Carr v. Bridgewater, 224 Conn. 44, 616 A.2d 257 (1992). In Carr, the plaintiff also had been successful in mandamus action against the city defendants; id., 49; and, following the mandamus action, the plaintiff also brought a § 1983 action for damages against those defendants. Id., 50. The plaintiff was successful at trial on the § 1983 claims and the defendants appealed, alleging six different grounds on which the trial court committed error. Id., 51 n.15. The plaintiff in the present case argues that if, in Carr, the claims in the § 1983 action had been barred by res judicata, our Supreme Court would have reversed the judgment of the trial court on that basis, rather than resort to a complex constitutional analysis as a basis for its reversal of the judgment, and the fact that the court did not discuss res judicata implies that it did not determine that doctrine was relevant. We disagree. A review of our Supreme Court’s decision in Carr gives us no indication that the defendants had raised the doctrine of res judicata on appeal. See id. It is reasonably likely, therefore, that the Supreme Court did not discuss that doctrine because it had not been raised by any party on appeal.

The Superior Court has jurisdiction to entertain both legal and equitable claims; see General Statutes § 52-1; and a plaintiff may include both types of claims in one complaint. See General Statutes § 52-97. The Superior Court also may order the separation of causes of action for individual trials where warranted; see Practice Book § 15-2; but that does not eliminate the requirement that a plaintiff bring his claims in one complaint. See Himmelstein v. Bernard, supra, 139 Conn. App. 454 (“[e]ven though a single group of facts may give rise to rights for several kinds of relief, it is still a single cause of action” [internal quotation marks omitted]). Accordingly, we are not persuaded that Carr implies, as the plaintiff contends, that a second action can be brought against the same defendant, despite the doctrine of res judicata, if the first action sought only a writ of mandamus.

The plaintiff also argues that the facts that form the basis of the present action against the city were not disclosed until the end of trial in the prior mandamus action, thereby not giving it a reasonable amount of time to amend its complaint to include the present claims. Specifically, the plaintiff argues that it was not until Kulacz testified that he had no reasonable basis to refuse to approve the plaintiffs plan that the plaintiff had the factual basis to allege a § 1983 claim. It further argues that Kulacz was evasive during his deposition testimony and that “[o]nly when he realized that he was irritating the trial judge and that that tactic was not working did Kulacz decide that he ought to, perhaps, offer an alternate reason for his refusal to sign off on the revised site plan.” We are not persuaded.

Even if we assume that Ktdacz never admitted that there was no reasonable basis for him not to issue permits to the plaintiff, the plaintiff certainly believed that there was no legal basis for Kulacz’ refusal, and, in its mandamus complaint, the plaintiff alleged that the city, Kulacz and other city officials had refused to approve its permits even though its plans conformed to the regulations, and that their failure to issue the permits was wilful and in violation of its due process and property rights. We agree with the United States Court of Appeals for the Second Circuit that unless a defendant had fraudulently concealed the relevant facts, the “discovery of additional facts following . . . judgment does not block the application of res judicata . . . [when the] facts and events themselves arose prior to the filing of the original complaint [and] it was only [the plaintiffs] awareness of these facts that came later.” L-Tec Electronics Corp. v. Cougar Electronic Organization, Inc., 198 F.3d 85, 88 (2d Cir. 1999).

Here, although the plaintiff alleges that it did not learn that Kulacz had no reasonable basis to refuse to approve the permits until Kulacz testified near the end of the mandamus trial, the plaintiff believed that the permits should have been issued and that there was no basis for their denial; that is why the plaintiff sought a writ of mandamus. That Kulácz allegedly first admitted on the witness stand that he had no reasonable basis to refuse to approve the plaintiffs permits does not mean that his lack of a reasonable basis did not exist previously or that knowledge of such lack of a reasonable basis was unavailable to the plaintiff. The plaintiff knew sufficient facts to bring the mandamus action, even without the alleged admission from Kulacz. Accordingly, we conclude that the present action against the city is barred by the doctrine of res judicata because both the present action and the prior mandamus action involved the same transaction and the same set of operative facts, which the plaintiff had an adequate opportunity to address fully and fairly in the mandamus action.

The judgment is reversed with respect to the city and the case is remanded with direction to render judgment in favor of the city on its motion for summary judgment; the judgment is affirmed with respect to Kulacz and the case is remanded for further proceedings on the plaintiffs claims against Kulacz in his individual capacity.

In this opinion the other judges concurred.

       We note that the plaintiffs complaint alleges that this action is brought against Kulacz in his individual capacity; it does not appear, however, that in hand or abode service was attempted on Kulacz. See General Statutes § 52-57. The return of service in the present case specifies that service on both the city and Kulacz was made by “leaving two (2) verified true and attested copies of the original [w]rit, [sjummons and [c]omplaint . . . with and in the hand of Jane Bárrese, Assistant City/Town Clerk, 54 Hill Street, Shelton (One such copy for each of the named defendants).” Nevertheless, “[ujnlike defects in subject matter jurisdiction, which may not be waived, a party waives any objection to a court’s personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance.” Carpenter v. Law Offices of Dressler & Associates, LLC, 85 Conn. App. 655, 661, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004); see also Practice Book § 10-30.

       Although the denial of summary judgment generally is not considered a final judgment for purposes of appellate review, the denial of a motion, for summary judgment grounded on the doctrine of res judicata is a final judgment for purposes of appeal. See Singhaviroj v. Board of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010).

       Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

       We express no opinion about whether the plaintiff ultimately will be able to prove any of his claims against Kulacz in his individual capacity.

       Although the defendants argue that the claims against both of them are barred, because we previously concluded that the individual defendant Kulacz was not a party to the prior mandamus action, nor in privity with a party thereto, we discuss only whether the mandamus judgment bars the claims against the city.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KHARI MILLER
    (AC 34178)
    Robinson, Espinosa and Pellegrino, Js.
    Argued December 13, 2012
    officially released February 5, 2013

      Khari Miller, pro se, the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Gail P.

      Hardy, state’s attorney, and Richard J. Rubino, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The self-represented defendant, Khari Miller, appeals from the denial of his motion to correct an illegal sentence. On appeal, the defendant claims that the trial court improperly found that felony murder in violation of General Statutes § 53a-54c is a class A felony, rather than an unclassified felony. We are not persuaded.

We thoroughly have reviewed the record and briefs in this case and have considered the relevant legal principles. Contrary to the defendant’s claim that felony murder is appropriately characterized as an unclassified felony, our case law makes clear that “felony murder is simply one form of the crime of murder.” State v. Cross, 127 Conn. App. 718, 721, 14 A.3d 1082, cert. denied, 301 Conn. 918, 21 A.3d 464 (2011); see also State v. John, 210 Conn. 652, 696, 557 A.2d 93 (in enacting felony murder statute, “the legislature intended to specify another manner in which the crime of murder could be committed, rather than create a new crime”), cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). Moreover, although the defendant asserts that “[treating the crime of felony murder as a class A murder and sentencing [him] in accordance with [General Statutes] § 53a-35a (2) is and/or would be against the intent of the legislature,” our Supreme Court has explicitly stated that General Statutes §§ 53a-54a (c) and 53a-35a (2) are the “related penalty provisions”; State v. Greco, 216 Conn. 282, 293-94, 579 A.2d 84 (1990); to the felony murder statute and provide that felony murder is punishable as a class A felony by “a prison term of at least twenty-five years and not more than life . . . .” Id., 295 and n.13. Accordingly, we conclude that the trial court properly denied the defendant’s motion to correct.

The judgment is affirmed.

       The defendant was convicted of felony murder in violation of § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in violation of General Statutes §§ 53a-134 (a) (2) and 53a-48. The court sentenced the defendant to forty-five years of incarceration on the felony murder count and fifteen years of incarceration on each of the other counts, to run concurrently, for a total effective sentence of forty-five years imprisonment, consecutive to any sentence in any other case. In his motion to correct and again on appeal, the defendant has asserted that felony murder is an unclassified felony, or alternatively, a class A felony other than murder, for which a forty-five year sentence is not statutorily authorized.

       Indeed, as the court recognized in denying the defendant’s motion to correct, both § 53a-54c, the felony murder statute, and § 53a-54a, the intentional murder statute, begin by stating: “[A] person is guilty of murder when . . . .” (Emphasis added).


text:
    GERALD MOYHER v. COMMISSIONER OF CORRECTION
    (AC 32814)
    Gruendel, Lavine and Espinosa, Js.
    Submitted on briefs October 12, 2012
    officially released February 5, 2013

      W. Theodore Koch III, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Melissa Patterson, assistant state’s attorney, and Sean P. McGuiness, deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Gerald Moyher, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly found that a motion to suppress certain evidence at trial would not have been successful and therefore his trial counsel’s assistance was not ineffective. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s claim. On June 13,2003, the petitioner was arrested at a home he shared with Doreen Storer. Police officers heard an escalating verbal dispute between the petitioner and Storer and entered the home pursuant to the emergency doctrine as they were aware of a history of domestic violence between the couple, who had been drinking. State v. Moyher, 92 Conn. App. 612, 613-15, 886 A.2d 496 (2006), cert. denied, 281 Conn. 926, 918 A.2d 279 (2007). The petitioner ordered the police to leave and was observed pushing Storer. Id., 614. When one of the officers stood his ground, the petitioner pushed the officer and injured him. Id. The police then subdued the petitioner and placed him under arrest. Id. The petitioner was charged with assaulting a police officer acting in the performance of his duties in violation of General Statutes § 53a-167c and interfering with an officer in the performance of his duties in violation of General Statutes § 53a-167a. Id., 613. A jury found the petitioner guilty as charged, and the court sentenced him to four years imprisonment followed by six years of supervised parole, with special conditions. Id.

In his petition for a writ of habeas corpus, the petitioner alleged that he had received ineffective assistance of trial counsel due to his counsel’s failure to file a motion to suppress certain evidence the police found inside the home and a request to charge regarding an illegal entry by the police, among other claims not relevant to this appeal. Following a hearing held on September 16, 2010, the habeas court, in an oral decision, denied the petition for a writ of habeas corpus after finding that a motion to suppress would not have been successful at trial and that the petitioner had failed to demonstrate that his trial counsel’s performance was ineffective. The court also found that the petitioner was not entitled to a jury instruction on an illegal police entry; see State v. Wearing, 98 Conn. App. 350, 356, 908 A.2d 1134 (2006), cert. denied, 281 Conn. 905, 916 A.2d 47 (2007); and that the petitioner was not prejudiced by the performance of his trial counsel. The habeas court granted the petition for certification to appeal.

We review the habeas court’s denial of a petition for a writ of habeas corpus alleging the ineffective assistance of counsel under the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A petitioner must produce evidence that “(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there is a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Emphasis in original; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 138 Conn. App. 454, 474, 53 A.3d 257, cert. granted on other grounds, 307 Conn. 940, 56 A.3d 948 (2012). “Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 126 Conn. App. 453, 458, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011). On the basis of our review of the record and the law, we conclude that the court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

       The trial court, Rodriguez, J., sentenced the petitioner on the interfering with an officer conviction as follows. “[0]n the interfering/resisting, factually I believe it merges into the assault but legally it does not... so I’ll impose an unconditional discharge . . . .” On appeal in this habeas matter, the respondent, the commissioner of correction, claims that this court lacks subject matter jurisdiction to consider the petitioner’s appeal from the denial of his petition for a writ of habeas corpus with respect to the interfering with an officer conviction because the petitioner was not in custody on that charge at the time he filed the subject petition for a writ of habeas corpus. See Richardson v. Commissioner of Correction, 298 Conn. 690, 697, 6 A.3d 52 (2010). We disagree.
      The petitioner has appealed from the denial of his petition for a writ of habeas corpus, which is a final judgment. Pursuant to General Statutes § 52-263, this court has subject matter jurisdiction over final judgments. See also Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., 131 Conn. App. 567, 571, 27 A.3d 467 (2011), cert. granted on other grounds, 303 Conn. 928, 36 A.3d 242 (2012).


author: LAV1NE, J.

text:
    IN RE ISAIAH J. ET AL.

    (AC 34668)
    Lavine, Robinson and Pellegrino, Js.

      Argued November 13, 2012
    officially released January 24, 2013

      William S. Bingham, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (petitioner).

      Michael F. Miller, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, 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 and upon order of the Appellate Court.

       January 24, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

LAV1NE, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to four of her minor children pursuant to General Statutes § 17a-112 (j) (3) (B) for failure to achieve such a degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in her children’s lives within a reasonable time. On appeal, the respondent claims that (1) the court abused its discretion in denying her request for new trial counsel, (2) she received ineffective assistance of counsel, (3) there was insufficient evidence to sustain the court’s finding that she had failed to achieve the requisite degree of personal rehabilitation and (4) she has been denied the right to court-appointed appellate counsel. We affirm the judgments of the trial court.

The record discloses the following procedural history. In December, 2008, the petitioner, the commissioner of children and families, filed four neglect petitions, one for each of the respondent’s children, I, A, K, and T. The petitions alleged that the children were being denied proper care and attention, physically, educationally, emotionally and morally, and that the children were being permitted to live under conditions, circumstances or associations injurious to their well-being. In June, 2009, on the first day of the neglect trial, the respondent entered a plea of nolo contendere. The children were adjudicated neglected and the court, Driscoll, J., committed them to the custody of the petitioner.

On January 19, 2010, the petitioner filed a motion to review the permanency plan, calling for termination of the respondent’s parental rights and adoption. The respondent objected to that plan. On May 13, 2010, the petitioner filed four petitions to terminate parental rights, one for each of the children, on the ground that the respondent had failed to achieve sufficient personal rehabilitation. See General Statutes § 17a-112 (j) (3) (B) (ii). The petitions alleged that the respondent is the mother of each of the children, that the department of children and families (department) had made reasonable efforts to reunify the children with the respondent and that the respondent was unable or unwilling to benefit from reunification efforts. On May 14, 2010, the respondent withdrew her objection to the permanency plan, and the court approved the plan and found that the department had made reasonable efforts to effectuate the plan. The petitions for termination of parental rights were tried to the court in February and March, 2012. In a memorandum of decision filed May 11, 2012, the court, Hon. Michael A. Mack, judge trial referee, granted the petitions to terminate the respondent’s parental rights.

The court made the following findings of fact. The children were bom between 2004 and 2008. The December, 2008 filing of the neglect petitions and accompanying orders for temporary custody occurred because the respondent and the father of the children were engaging in substance abuse, the children were being exposed to domestic violence and were being physically neglected, and the father was involved in criminal activity.

From December 8, 2008, to March 27, 2009, pursuant to the orders of temporary custody, the children were in the care of a maternal aunt. Starting on March 27, 2009, the children were placed together in a department licensed foster home, and the foster parents had been seeking to adopt all four children at the time of trial.

Pursuant to § 17a-112 (j) (1), the court found that the department made reasonable efforts to locate the respondent and to reunify the children with the respondent, individually and collectively. The court found that the respondent was not able or willing to benefit from those efforts. On June 1, 2009, the respondent agreed to specific steps that she was provided, which were necessary for her to reunite with the children. Initially, the respondent cooperated with appointments that the department set, but then her progress deteriorated. The respondent submitted to two substance abuse evaluations, and both recommended intensive outpatient treatment or partial hospitalization. She did not comply with those recommendations. She agreed to twice weekly random mine screens, yet she submitted to only seventeen of a possible 120 screens. The respondent did not follow through with parenting classes or a program with United Community and Family Services, nor did she keep her whereabouts known to the department, frequently moving without notifying the department. The respondent revoked all of the confidentiality releases that she had given, preventing the department from speaking to the service providers to which she had been referred.

Although she denied any ongoing relationship with the children’s father, in 2010 she became pregnant with her fifth child by that father. She fled Connecticut to avoid the department’s involvement with the birth of the child, who would be named S. She delivered S in Georgia. S was bom testing positive for amphetamines, barbiturates and opiates. As a result of the drug exposure, S displayed symptoms of drug withdrawal and required intensive early care. The Georgia child protective agency seized S at birth, and on December 8, 2011, a Georgia court terminated the respondent’s parental rights as to S.

Although the respondent was offered weekly visitation until the court suspended her visits in December, 2011, the respondent last visited with the children on May 13, 2011. She ceased regular contact with the department in early June, 2011. On September 16, 2011, the respondent was arrested for prostitution and possession of narcotics. On February 10, 2012, her rearrest was ordered for failure to appear.

The court made findings with respect to the children as well. The children had been out of the care of the respondent since December 8, 2008, and had lived m the care of their foster family since March, 2009 — at the time of trial in early 2012, the children had been in their care some thirty-eight months. When the children arrived in the care of the foster family in March, 2009, the children were not used to structure or routine, had had no preschool and lacked a grasp of basic information and skills. It had taken I half a year to begin to perform at goal level in school. At the time of trial, A and K were performing well in school, and T was in preschool. All of the children participated in extracurricular activities. The court found that “all four children [were] doing exceptionally well in th[e] foster home.”

The court credited and incorporated into its written decision a report and testimony from I’s and K’s therapist, Sharon Kutner, who is a registered nurse and social worker. Among other things, her report and testimony detailed certain statements by the respondent as reported to Kutner through the children. Specifically, the respondent requested that the children he about the foster parents’ behavior to get them in trouble with the department, such as to report that the foster mother hit I, even though that was not true. The respondent also promised the children toys and candy when they were reunited. Kutner concluded that the respondent’s emotional state at the end of visitations caused the children to feel sad and overly responsible for her.

The court also made special note of testimony from Ronald Anderson, a court-appointed psychological evaluator of the respondent and children. Anderson testified that the respondent had not taken any appropriate steps toward rehabilitation and that she evinced a pattern of consistent irresponsibility.

By clear and convincing evidence, the court found that the children had been found neglected in a prior proceeding and that, as to each child and as to the children collectively, the respondent had failed to achieve such degree of rehabilitation so as to encourage the belief that she could assume a role as a responsible parent within a reasonable period of time. See General Statutes § 17a-112 (j) (3) (B). The court considered the age and needs of each child and that the children had been in the custody of the petitioner for forty-one months.

In the dispositional phase of the proceedings, the court made the seven findings required by statute. See General Statutes § 17a-112 (k). The court found that I was bom October 27, 2004, K and A were bom December 1, 2006, and T was bom April 18, 2008. The court found that the respondent was offered substance abuse evaluation and treatment, as well as random dmg screens and hair analysis toxicology, individual therapy, parenting education, a psychological evaluation, the Thames River Family Program, and supervised visitation and transportation. The respondent refused some of these services, and she started others but failed to complete them. The respondent was generally consistent in exercising visitation rights prior to May, 2011, but many of these visits were problematic for the children. The services offered were appropriate and timely, but the respondent failed to avail herself of most of them.

The court noted that on December 8, 2008, and June 1, 2009, it ordered specific steps for the respondent. Despite the department’s persistent efforts, the respondent failed to engage in the steps to accomplish reunification with the children, collectively or individually. The court noted the finding made on November 29, 2011, by Judge Driscoll that reunification efforts were no longer appropriate. The court found that the respondent made only minimal efforts to adjust her circumstances, conduct or condition to make it in the best interest of the children to return to her.

Additionally, the court made findings as to the children’s emotional ties. All of the children were bonded to the respondent. They also were bonded to their foster parents, whom they sought out for comfort and affection; the bond was strong and appropriate. I, A and K had mixed feelings about adoption while T was too young to appreciate the concept. All of the children assimilated well into the foster home, where they had lived for three years and nine months, and all reported they were happy living with their foster parents. The children had a photo album of their biological parents, and on occasion they referred to the album before resuming normal childhood activities within the household. The court found that no one had prevented the respondent from maintaining a meaningful relationship with the children.

The court concluded that it was in the best interest of each child that the respondent’s parental rights be terminated. Further facts and procedural history are set forth as required.

I

The respondent’s first claim is that the court improperly denied her request for new counsel on the second day of trial. Specifically, the respondent argues that the court abused its discretion in denying her request because both the respondent and her attorney represented that there was a breakdown in the attorney-client relationship. We disagree with the respondent’s claim.

“There is no unlimited opportunity to obtain alternate counsel. ... It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. . . . [A]bsent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error. . . . Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Internal quotation marks omitted.) In re Kaitlyn A., 118 Conn. App. 14, 21, 982 A.2d 253 (2009). “A request for the appointment of new counsel . . . may not be used to cause delay.” (Internal quotation marks omitted.) Id., 23.

The following facts and procedural history are relevant to resolving this claim. On November 29, 2011, the respondent’s first court-appointed counsel, Ryan D. Ziolkowski, reported to the court that for the previous five months he had had insufficient contact with the respondent to provide effective legal assistance. Accordingly, Ziolkowski filed a motion to withdraw due to a breakdown in the attorney-client relationship. The court granted the motion and ordered that new counsel be appointed, and Jean Park was appointed as the respondent’s second counsel. Park later filed a motion to withdraw, citing the same reasons as Ziolkowski— that there was no attorney-client relationship. On February 28, 2012, the first day of trial, Park marked off her motion, but reclaimed it the following day. At that time, the respondent also requested the court to appoint her another attorney.

The court heard extensive argument on this issue from the respondent and Park, and asked each a number of questions. The respondent indicated that she was not satisfied with Park’s performance in settlement negotiations and cross-examination, Park’s reluctance to file a motion unrelated to the present appeal and Park’s preparation for the case. The respondent extensively complained about the particulars of what she wanted in settlement negotiations but was not offered. Park indicated her frustration with unsuccessful attempts to contact the respondent.

The petitioner’s counsel presented his observations to the court as well. He pointed out that Park’s conduct and preparation before trial commenced was consistent with that of “a very good trial attorney . . . .” The petitioner objected to the motion to withdraw as the trial had begun, citing State v. Turner, 133 Conn. App. 812, 37 A.3d 183, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012).

The court concluded that adding another attorney would needlessly delay the proceedings because the respondent failed to make herself available to communicate with Park. The court conditionally denied the respondent’s request for new counsel; the court indicated that it was amenable to approving a change in counsel so long as the trial could proceed. The court gave the respondent until March 8, 2012, to secure the services of a private attorney or to bring in her previous attorney, Ziolkowski, if he and Park reached an agreement acceptable to the public defender’s office. The court pointed out that the respondent could, if she so wished, represent herself. On March 8, 2012, the respondent was still represented by Park.

Our review of the record persuades us that the corut did not abuse its discretion in denying the respondent’s request for new counsel. The record amply supports a conclusion that there was no substantial reason to appoint new counsel because a new attorney would not have made a difference; the lack of communication in the attorney-client relationship was due to the respondent’s conduct. The respondent argues that because she and Park both submitted that there was a breakdown in the attorney-client relationship, the court improperly denied her request for new counsel. But such a mutual representation is not dispositive; rather, it is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. See In re Kaitlyn A., supra, 118 Conn. App. 21. The respondent’s chief issue was that she was not offered what she wanted in settlement negotiations. See id., 25 (disagreement as to trial strategy did not warrant appointment of new counsel). Further, the court went to pains to specify reasonable conditions that would enable the respondent to be represented by another attorney, and the respondent did not take advantage of that opportunity.

II

The respondent argues that she received ineffective assistance of trial counsel. The petitioner contends that the respondent has failed to show that her counsel’s performance prejudiced her by contributing to the termination of her parental rights. We agree with the petitioner.

“In determining whether counsel has been ineffective in a termination proceeding . . . [t]he respondent must prove that [counsel’s performance] . . . contributed to the termination of parental rights. ... A showing of incompetency without a showing of resulting prejudice . . . does not amount to ineffective assistance of counsel.'’ (Emphasis added; internal quotation marks omitted.) In re Dylan C., 126 Conn. App. 71, 91, 10 A.3d 100 (2011). Although the respondent claims prejudice in vague terms, identifying more than a dozen supposed shortcomings of her trial counsel, she does not specify any particular prejudice. For example, the respondent alleges that trial counsel failed to present evidence rebutting Kutner’s report and testimony. Yet, the respondent does not identify any evidence that could have rebutted that testimony. The respondent’s claim that she received ineffective assistance of trial counsel is without merit.

Ill

Next, the respondent claims that the evidence presented at trial is insufficient to support the court’s judgment terminating her parental rights. Specifically, the respondent claims that there was insufficient evidence to support a finding by clear and convincing evidence that the respondent had failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (ii), that it was in the best interest of the children not to allow the respondent more time for rehabilitation, and that the department’s efforts at reunification were sufficient and the department did not hinder those efforts. We disagree.

“An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) In re Dylan C., supra, 126 Conn. App. 87.

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) Id., 88.

In her brief of this claim, the respondent addresses none of the evidence presented at trial with specificity. The respondent’s argument is a series of statements paraphrasing the nature of the claim. Because “[c]laims on appeal that are inadequately briefed are deemed abandoned”; (internal quotation marks omitted) State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001); we are not required to review this claim.

Even if we were to afford the respondent’s argument the most generous possible reading, a conclusion that the findings of the court are not clearly erroneous is ineluctable. We have reviewed the evidence before the court and the court’s thorough and thoughtful memorandum of decision. The clear and convincing evidence before the court supports the findings recited at the beginning of this opinion.

IV

Finally, the respondent claims that she was denied her right to a court-appointed appellate counsel pursuant to General Statutes § 45a-717 (b). Specifically, the respondent argues that there was no judicial review of a determination by the office of the chief public defender that the respondent’s appeal was without merit and, accordingly, no judicial review of a determination that she should not receive the services of court-appointed counsel. See Practice Book § 79a-3 (c) (2). She contends that there should have been a brief to the court justifying that determination. As persuasive authority, the respondent cites Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We do not agree.

Anders v. California, supra, 386 U.S. 739, “concerned . . . the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent’s appeal.” Pursuant to the sixth and fourteenth amendments to the United States constitution, in the criminal context, “[wjhenever appointed counsel seeks to withdraw from his [or her] role as appellate advocate, he [or she] is required ... to file a brief referring to anything in the record that might arguably support the appeal.” (Internal quotation marks omitted.) Paulsen v. Manson, 193 Conn. 333, 340, 476 A.2d 1067 (1984). A mere “no-merit letter . . . do[es] not reach that dignity.” Anders v. California, supra, 744.

The respondent provides no legal basis to support her argument that a statutory right to counsel in a termination of parental rights proceeding carries with it the same sixth amendment protections accorded to a criminal proceeding. A parent’s right to effective assistance of counsel in a termination of parental rights proceeding is not rooted in the federal or state constitutions. See generally General Statutes § 45a-717 (b); see also State v. Anonymous, 179 Conn. 155, 159, 425 A.2d 939 (1979); In re Dylan C., supra, 126 Conn. App. 91 n.9. Accordingly, her claim is without merit.

The judgments are affirmed.

In this opinion the other judges concurred.

       The respondent father, whose parental rights were also terminated, is not a party to this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       The following colloquy occurred during the court’s consideration of this issue:
      “The Court: But what efforts did you make to sit down with your lawyer to prepare for this case? . . .
      “[The Respondent]: [T]he whole sitting down and doing that — no. ... I understand — no, I haven’t. . . .
      “The Court: I’m . . . interested in . . . whether or not this — this relationship . . . has broken down. ... I haven’t heard that it has. You didn’t get in touch with [Park], [Park] tried to prepare a case from scratch because this is your second lawyer. ... It is a — a large file, but the issues are all contained ... in one or two exhibits here, as to what’s going on in this case. And I haven’t heard anything that would indicate that there should be yet another or a third lawyer, plus the fact that . . . you’re on your second lawyer now, and this case is on trial, and at some point we are going to address the permanency of these children and the time is now, and you knew this case was coming up.
      * * *
      “[GJetting your case properly before the [c]ourt... is extremely difficult when you never met with [Park] and . . . you never gave her a chance to put it together again. . . .
      “ [T]here’s no question in my mind that if there were a third lawyer involved in this, it wouldn’t be any different, because we went through this with Attorney Ziolkowski. We’ve gone through it now with [Attorney] Park. We would go through it with Attorney X again .... I haven’t heard anything magic about why there should be another lawyer here. She’s doing her job. You didn’t do yours, but she’s doing her job.”

       The record does not have requisite factual findings, like those present when we review a petition for a writ of habeas coipus alleging ineffective assistance of counsel. See In re Dylan C., 126 Conn. App. 71, 91 n.9, 10 A.3d 100 (2011). As this court previously has observed, “[w]e know of no procedural mechanism within a termination of parental rights proceeding that provides for the creation of a record to determine the effectiveness of counsel.” Id. The present case is similar to State v. Anonymous, 179 Conn. 155, 425 A.2d 939 (1979). In each case, the appellant provided a list of acts of omission and commission committed by trial counsel and no factual findings as to those claimed failures. See id., 160-61. Like the record in Anonymous, the record in the present case is inadequate. Nevertheless, inasmuch as we consider the record before us, the respondent has failed to demonstrate prejudice.

       Pursuant to General Statutes § 51-14 (a), Practice Book § 79a-3 was adopted by the Supreme Court and this court to take effect on February 1, 2012.
      Practice Book § 79a-3 provides in relevant part: “(b) Appeal by indigent party. If a trial attorney who has provided representation to an indigent party through the Division of Public Defender Services declines to pursue an appeal and the indigent party expressly wishes to appeal, the trial attorney shall . . . file ... a sworn application signed by the indigent party for appointment of an appellate review attorney ....
      “(c) Review by the Division of Public Defender Services ... (2) If the reviewing attorney determines that there is no merit to an appeal, that attorney shall . . . inform the party, by letter, of the balance of the time remaining to appeal as a self-represented party or to secure counsel who may file an appearance to represent the party on appeal at the party’s own expense. . . .”

       For clarity, we note that the respondent does not claim that she was deprived of procedural due process, nor does she claim that Practice Book § 79a-3 conflicts with § 45a-717 (b).


text:
    IN RE JEREMIAH J. ET AL.

    (AC 34729)
    Lavine, Robinson and Schaller, Js.
    Argued January 8
    officially released January 25, 2013

      Jeremiah J., Sr., pro se, the appellant (respondent father).

      Edward Wilson, Jr., assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, 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 and upon order of the Appellate Court.

       January 25, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent father appeals from the judgments of the trial court, Elgo, J., terminating his parental rights in his children, a son and a daughter, on the grounds of abandonment and failure to achieve such a degree of personal rehabilitation as would encourage the belief that he could assume a responsible position in his children’s lives within a reasonable time (failure to rehabilitate) pursuant to General Statutes § 17a-112 (j) (3) (A) and (B) (i) respectively. On appeal, the respondent claims that the trial court improperly found that he had failed to rehabilitate, but he has not challenged the court’s findings that he abandoned his children. The respondent’s appeal therefore is moot, and we dismiss it.

The children were the subjects of neglect petitions filed by the petitioner, the commissioner of children and families, on August 7, 2009. On November 12, 2009, the court, Gleeson, J., adjudicated the children neglected and ordered them to be placed in protective supervision with their mother. In April, 2010, the petitioner’s ex parte motion for an order of temporary custody on the basis of the children’s being in imminent physical danger from their surroundings was granted. The order of temporary custody was sustained as to the respondent, who failed to appear for a hearing on June 23, 2010. On December 17, 2010, the petitioner filed petitions to terminate the respondent’s parental rights as to his children. In a detailed and thoughtful opinion, Judge Elgo found by clear and convincing evidence that the petitioner had proven that the department of children and families had made reasonable efforts to reunify the respondent with his children and, alternatively, he was unable or unwilling to benefit from reunification services. The court also found by clear and convincing evidence that the petitioner had proven the grounds of abandonment and failure to rehabilitate and that it was in the best interest of the children to terminate the respondent’s parental rights as to them.

On appeal, the respondent challenges that court’s finding that he failed to rehabilitate. We need not determine whether the court properly found that the respondent failed to rehabilitate. “Proof of one ground is sufficient to terminate parental rights.” In re S.D., 115 Conn. App. 111, 117, 972 A.2d 258 (2009). “Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition. Thus, we may affirm the court’s decision if we find that it properly concluded that any one of the statutory circumstances existed.” In re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707 (2003). The respondent has not challenged the court’s finding that he abandoned his children or that it was in the best interest of the children to terminate his parental rights. The petitioner argues that the respondent has abandoned this claim. We agree.

“[Appellate] practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that [the court] can have the full benefit of that written argument.” (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 394 n.19, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

In this case, the respondent has failed entirely to challenge the court’s finding of abandonment, which is an independent basis on which to terminate the respondent’s parental rights. “[W]here alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court’s judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the [appellant].” Green v. Yankee Gas Corp., 120 Conn. App. 804, 805, 993 A.2d 982 (2010); see In re David L., 54 Conn. App. 185, 193, 733 A.2d 897 (1999). “[I]t is not the province of an appellate court to decide moot issues disconnected from the granting of actual relief.” Green v. Yankee Gas Corp., supra, 806.

Mootness exists when the court cannot grant relief. See Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). “Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve.” (Internal quotation marks omitted.) Housing Authority v. Davis, 57 Conn. App. 731, 733, 750 A.2d 1148, cert. denied, 254 Conn. 901, 755 A.2d 218 (2000). A question concerning subject matter jurisdiction may be raised by the court sua sponte at any stage of the proceedings. See Grimm v. Grimm, supra, 276 Conn. 393 n.18. In this case, the respondent has failed to challenge the court’s finding that he abandoned his children, one of the statutory grounds for termination of parental rights alleged by the petitioner. There is no practical relief that we can afford the respondent, and his appeal is therefore moot.

The appeal is dismissed.

       The parental rights of the children’s mother also were terminated, but she is not a party to this appeal. We therefore refer in this opinion to the respondent father as the respondent.

       With respect to the respondent’s son, the petitioner alleged that the respondent’s parental rights should be terminated on the grounds of abandonment, failure to rehabilitate and no ongoing parent-child relationship under § 17a-112 (j) (3), (A), (B) (i) and (D). With respect to the respondent’s daughter, the petitioner alleged that the respondent’s parental rights should be terminated on the same grounds and also on the ground of parental acts of omission or commission that denied the child necessary care, guidance and control pursuant to § 17a-112 (j) (3) (C).

       “A parent abandons a child if the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... Abandonment focuses on the parent’s conduct. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. . . . Section 17a-112 [(j) (3) (A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern.” (Citations omitted; internal quotation marks omitted.) In re Ilyssa G., 105 Conn. App. 41, 46-47, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008).

       Judge Elgo made the following relevant findings of fact, which the respondent has not challenged. “For a significant period of time both before and after the adjudicatory date, [the respondent] has lived outside of Connecticut in South Carolina, and eventually Georgia, making the clear choice to undermine his own ability to reunify with his children. . . ."
      “The court acknowledges that [the respondent] has vigorously contested the allegations of sexual abuse as to [his daughter] and that he was under court order to have no contact with [his daughter] for three years, until that order was modified in July, 2010, to allow for visitation upon her request and approval by her therapist. There were, however, no court orders preventing him from having contact with [his son] .... Nothing prevented [the respondent] from communicating regularly with [members of the department of children and families] regarding his children’s well-being. However, in the two years during which Pauline Hjame was assigned the case, [the respondent] called only three or four times and also asked for visitation and then failed to follow through. . . . Hjame testified that she would not hear from the [respondent] for months at a time. As of the adjudicatory date, [the respondent] did not have a stable residence and [had] been transient, living with relatives and friends in Connecticut and in South Carolina. When [the respondent] finally made himself available for supervised visitation with [his son] he was inconsistent in his attendance, often late and was on his cell phone so frequently during visitation that the caseworkers for the visitation program consistently needed to address this issue with him.”

       The respondent did not file a proper and timely reply brief or otherwise respond to the petitioner’s claim of abandonment.


author: ROBINSON, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE v. DAVID P. BERTRAND ET AL.
    (AC 33650)
    Robinson, Bear and Espinosa, Js.

      Argued September 19, 2012
    officially released February 12, 2013

      J. Hanson Guest, with whom, on the brief, was Jeremy E. Barer, for the appellant (named defendant).

      David M. Bizar, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant David P. Bertrand appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Deutsche Bank National Trust Company, as trustee for FFMLT 2006-FF13. The defendant claims that the trial court improperly (1) granted the plaintiffs motion for a protective order, (2) defaulted the defendant for failure to plead and (3) refused to accept the defendant’s answer and special defenses when he offered to file it with the court after he was defaulted at the hearing on the motion for judgment of strict foreclosure. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims on appeal. The plaintiff filed this action in January, 2009, seeking to foreclose a residential mortgage on property located at 12 Jeffrey Alan Drive in Manchester. According to the complaint, the defendant executed the mortgage in 2006 as security for a $180,000 note, which was in default. On March 6, 2009, the plaintiff filed a motion to default the defendant for failure to appear, which the clerk of the court granted on March 9, 2009. See Practice Book § 17-20 (d). That same day, the defendant filed an appearance as a self-represented party, which automatically set aside the default as a matter of law. See Practice Book § 17-20 (d).

On May 20,2009, the plaintiff filed a motion for default for failure to plead and a motion for judgment of strict foreclosure. On May 26, 2009, the defendant filed an objection to the motion for default along with a request that he be granted an additional thirty days in which to obtain counsel. Although the clerk of the court initially granted the motion for default for failure to plead on May 27, 2009, that ruling was vacated the next day, presumably on the basis of the defendant’s May 26, 2009 pleadings.

On July 2, 2009, the plaintiff filed a second motion for default for failure to plead. The clerk of the court denied that motion because, on July 6, 2009, the defendant filed a motion to dismiss the foreclosure complaint, in which he alleged that the plaintiff lacked standing to maintain the action because it had not been assigned the mortgage until after the commencement of the action and had not produced the original promissory note. The plaintiff filed an objection to the motion to dismiss on July 22, 2009, arguing that the motion was frivolous and that it was filed solely to further delay the foreclosure proceedings. The next day, Attorney J. Hanson Guest filed an appearance on behalf of the defendant. On August 7, 2009, the defendant, now through counsel, filed a motion seeking an extension of time to respond to the plaintiffs objection. More than two months later, on October 8, 2009, the defendant filed an amended motion to dismiss claiming that the plaintiff had failed to allege sufficient facts in the complaint to establish standing to foreclose on the defendant’s mortgage. The plaintiff filed a memorandum in opposition to the amended motion to dismiss.

Shortly after filing the motion to dismiss, the defendant served the plaintiff with interrogatories, a request for production and a request for admissions. On December 11, 2009, the defendant filed a motion to compel the plaintiff to comply with his discovery requests. The plaintiff objected, arguing that it intended to respond, but that, to reduce costs, it was waiting for an adjudication of the motion to dismiss that the defendant had filed prior to his discovery requests. The court, Auri-gemma, J., sustained the objection and denied the motion to compel on March 8, 2010. On March 19, 2010, the plaintiff filed an objection and responses to the request for admissions.

The court, Scholl, J., denied the defendant’s motion to dismiss on April 1, 2010. It held that the factual assertions in the complaint, namely, that the plaintiff was the holder of the note, that it had been assigned the mortgage and that the mortgage was in default, were sufficient to support standing. The court also held that, contrary to the defendant’s assertion in the amended motion to dismiss, the plaintiff was not required to allege the evidence by which it would prove those factual assertions. See Practice Book § 10-1.

On June 17, 2010, the defendant filed a new motion to compel the plaintiff to respond to interrogatories and to comply with his request for production. The plaintiff filed an objection indicating that the defendant had made “over 140 separate requests for a one count foreclosure matter in which the [defendant has not filed any defenses” and that the only explanation was “annoyance, embarrassment, oppression, or undue burden or expense.” The plaintiff also noted that it was simultaneously filing a motion for a protective order, in which it argued that the defendant’s requests for interrogatories and production were unduly burdensome and sought information well in excess of what was necessary by law to set forth a prima facie case of foreclosure. The defendant objected to the motion for a protective order arguing that “securitized mortgages are very complicated and require significant discovery to determine the relevant facts and issues.” In August, 2010, the court, Aurigemma, J., without comment, sustained the plaintiffs objection to the motion to compel and granted its motion for a protective order.

On November 19, 2010, the plaintiff filed a third motion to default the defendant for failure to advance the pleadings in accordance with Practice Book § 10-8. Five days later, the defendant filed a request to revise the complaint. As a result of the filing of the request to revise, the court clerk denied the motion for default. The plaintiff filed an objection to the request to revise, arguing that the complaint adequately set forth the necessary allegations for a foreclosure complaint and that the defendant improperly was attempting to substantively challenge those allegations. The court sustained the plaintiffs objection to the request to revise on January 18, 2011.

The plaintiff filed its fourth motion for default for failure to plead on February 22, 2011, which was denied because, three days later, the defendant filed a motion to strike the complaint. The motion sought to have the court strike from the complaint the plaintiffs assertions that it was the holder of the note and mortgage and that the note was in default. The defendant argued that if those provisions were stricken, the court should strike the entire complaint as legally insufficient to state a cause of action. The plaintiff filed an objection to the motion to strike. On March 14,2011, the court, Robaina, J., denied the motion to strike without comment. The defendant filed a motion for clarification of that ruling and a motion seeking an extension of time in which to file a motion to reargue the decision, both of which Judge Robaina denied on April 21, 2011.

On June 15, 2011, the plaintiff reclaimed its motion for judgment of strict foreclosure and, on June 22, 2011, filed its fifth motion for default for failure to plead because, as of that date, the defendant had not filed any substantive answer to the allegations in the foreclosure complaint. The following day, the plaintiff filed with the court a foreclosure worksheet, an updated affidavit of debt and an affidavit of compliance with the emergency mortgage assistance program.

The motion for judgment of strict foreclosure was taken up at a June 27, 2011 short calendar hearing before Judge Aurigemma. Counsel for the defendant began the hearing by arguing that the plaintiff should not be allowed to move forward with its adjudication of the motion for judgment of strict foreclosure because there had not yet been any action taken on the plaintiffs motion for default for failure to plead, and, therefore, on the basis of counsel's reading of Practice Book § 17-32, he still had two days to avoid the entry of a default by filing an answer. Counsel for the plaintiff argued that the defendant already had delayed proceedings in this matter for nearly two years by filing frivolous motions and by engaging in unnecessary discovery and that the defendant could have avoided the current proceeding on the motion for judgment of strict foreclosure simply by having filed his answer prior to the hearing. Counsel for the defendant then revealed to the court that he had brought copies of the defendant’s answer and special defenses to the hearing and would like to file them with the court at that time. The court stated that it was too late to do so, that the defendant was required to electronically file his answer and that “this is an outrageous example of just unfounded delay, sir.” The court told the parties that “[d]efault is entering” and, over the objection of the defendant, proceeded to render a judgment of strict foreclosure in favor of the plaintiff. The court found that the fair market value of the property was $195,500 and the debt owed was $237,350.48. It set law days to commence on August 1, 2011. This appeal followed.

I

We first briefly address the defendant’s claim that the trial court improperly granted the plaintiffs motion for a protective order, thereby allegedly preventing the defendant from obtaining necessary discovery. It is well settled that “[t]he granting or denial of a discovery request rests in the sound discretion of the court.” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). That discretion includes the use of protective orders to limit the extent of discovery. See Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 14, 961 A.2d 1016 (2009). A court’s discovery related orders are “subject to reversal only if such an order constitutes an abuse of that discretion. . . . [I]t is only in rare instances that the trial court’s decision will be disturbed.” (Internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003).

In order to determine whether the court abused its discretion by granting the plaintiffs motion for a protective order, we must review the basis for the court’s ruling. The court, however, granted the motion without comment. “The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error.” (Internal quotation marks omitted.) Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268 (1990). As the appellant, the defendant has the burden of providing this court with a record from which this court can review any alleged claims of error. See Practice Book § 61-10; Coss v. Steward, 126 Conn. App. 30, 46, 10 A.3d 539 (2011) (record inadequate for review because court did not state its reasons for granting motion for discovery related protective order). The defendant has failed to meet that burden with respect to the motion for a protective order. Without engaging in impermissible speculation, we cannot conclude on the basis of the record before us that the court abused its discretion in granting the motion for a protective order; accordingly, the defendant’s claim fails.

II

We next turn to the defendant’s claim that the court improperly defaulted him for failure to plead at the hearing on the motion for judgment of strict foreclosure. According to the defendant, he always intended to file an answer and special defenses, but was not obligated to have done so as of the date of the hearing on the motion for judgment of strict foreclosure because, as he reads Practice Book § 17-32 (a), he had an additional seven days from the filing of the motion for default in which to file a pleading, and only five days had passed by the date of the hearing. Therefore, the defendant argues, the court’s action finding him in default for failure to plead was “clear error as it unjustly severed the [defendant's rights to plead and have the case decided on the merits.”

We construe the defendant’s claim as twofold. First, he challenges the court’s authority to render a default in the manner that it did; second, he argues that even if it was within the court’s discretion to render a default, the court abused that discretion. Given the circumstances of the present case and the limited record available for review, we are not persuaded that the court committed reversible error with regard to the entry of default against the defendant.

We first briefly discuss our standard of review of the defendant’s claim. To the extent that the defendant challenges the court’s authority to enter a default, our review is plenary. See State v. Perez, 85 Conn. App. 27, 37, 856 A.2d 452 (issues concerning court’s authority to act raise questions of law over which our review is plenary), cert. denied, 271 Conn. 933, 859 A.2d 931 (2004). We also engage in plenary review with regard to the construction of any relevant statutory provisions or rules of practice. See Malave v. Ortiz, 114 Conn. App. 414, 417, 970 A.2d 743 (2009). “Construction of our rules of practice presents a question of law over which our review is plenary. ... In construing our rules of practice, we are guided by the principles governing statutory interpretation. . . . Our fundamental objective in interpreting a rule of practice is to ascertain and give effect to the intent of the drafters. ... 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.” (Citations omitted; internal quotation marks omitted.) Id. Finally, provided we determine that the court had that authority to act, we review its exercise of that authority under an abuse of discretion standard. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 211, 884 A.2d 981 (2005). “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143 (2007).

We first turn to the question of the court’s authority. General Statutes § 52-119 provides that “[p]arties failing to plead according to the rules and orders of the court may be nonsuited or defaulted, as the case may be.” Section 10-18 of our rules of practice essentially mirrors that language. We read the plain and unambiguous language of both § 52-119 and Practice Book § 10-18 as empowering the court with the discretionary authority to impose a default as a penalty whenever a defendant has failed to comply with our rules regarding pleadings, including the timely advancement of such pleadings. Such authority is in accord with the court’s broad, general authority to act to “maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice.” (Internal quotation marks omitted.) West Haven Lumber Co. v. Sentry Construction Corp., 117 Conn. App. 465, 469, 979 A.2d 591, cert. denied, 294 Conn. 919, 984 A.2d 70 (2009).

In an action to foreclose a mortgage on real estate, Practice Book § 10-8 requires, beginning on the return day of the complaint, that “pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required. . . . The filing of interrogatories or requests for discovery shall not suspend the time requirements of this section unless upon motion of either party the judicial authority shall find that there is good cause to suspend such time requirements.”

When a defendant fails to advance timely the pleadings in accordance with Practice Book § 10-8, Practice Book § 17-32 sets forth a procedure by which the clerk of the court, without input from the judicial authority, may act on a motion for default filed by the plaintiff. Nothing in the plain language of Practice Book § 17-32, however, exposes any intent to limit the authority of the court to render a default in accordance with § 52-119 and Practice Book § 10-18, or to impose upon a judge of the Superior Court any of the procedural restrictions contained in Practice Book § 17-32, which are expressly directed toward defaults entered by the clerk of the court pursuant to § 17-32. Here, if at the time of the hearing on the motion for judgment of strict foreclosure, the court determined that the defendant had failed to meet his obligation to plead in accordance with our rules, pursuant to § 52-119 and Practice Book § 10-18, the court had the authority to find the defendant in default. Although at the time of the hearing Practice Book § 17-32 precluded the clerk of the court from acting on the plaintiffs pending motion for default, the defendant nevertheless had not fulfilled his obligation to advance the pleadings and the rule did not limit the court’s authority to default the defendant, especially given the court’s finding that the defendant’s delay in filing his answer was outrageous and unfounded. See Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 9-10, 776 A.2d 1115 (2001) (trial courts have “inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated” [internal quotation marks omitted]). We conclude that the court had ample authority to render a default against the defendant. Having so concluded, we turn to whether the court abused its discretion by entering a default against the defendant under the circumstances of the present case.

We are fully cognizant of our Supreme Court’s stated policy preference for disposing of disputes by a trial on the merits whenever possible to secure for the litigants their day in court. See Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998). We note, however, that “[t]he design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” (Internal quotation marks omitted). Id. We are not convinced that the court’s action in defaulting the defendant for failing to advance the pleadings in accordance with the rules worked any surprise or injustice on him.

The defendant cannot contest the fact that, at the time he was defaulted by the court, he was not in compliance with his obligation to plead in accordance with our rules of practice. On April 21, 2011, the court had denied the defendant’s motions for clarification and for an extension of time in which to file a motion to reargue the court’s denial of his motion to strike. Having filed every other pleading permitted under Practice Book § 10-6, the defendant was obligated to file an answer and special defenses, if any, on or before May 6, 2011. See Practice Book § § 10-6 and 10-8. The defendant failed to timely plead and never sought an extension of time to do so. This was consistent with his behavior throughout the action. The record reveals that the defendant habitually violated Practice Book § 10-8 with regard to the orderly advancement of pleadings, repeatedly failing to advance the pleadings until after the plaintiff had filed a motion for default with the clerk of the court pursuant to Practice Book § 17-32. Thus, by the June 27, 2011 hearing on the motion for judgment of strict foreclosure, an answer to the complaint was long overdue. The plaintiffs filing of a motion for default for failure to plead in accordance with § 17-32 did not, contrary to the defendant’s assertions throughout his brief, provide the defendant with an additional seven days in which to plead; it merely stayed for seven days the clerk’s authority to act on the motion.

Having had more than two years to compose a substantive response to the foreclosure complaint, a delay expressly noted by the court, the defendant nevertheless chose to appear before the court without having filed his answer, and despite having prepared a pleading in advance of the hearing as evidenced by his counsel’s attempt to file it with the court after the court refused his request to mark over its consideration of the motion for judgment. Although the court never stated on the record the factual and legal basis for its decision to default the defendant, the court found that the defendant’s behavior was outrageous and an unfounded example of delay. Given the court’s duty to ensure the orderly and fair administration of justice for all parties and the clear record of dilatory behavior and frivolous pleading by the defendant in this matter, on the basis of the record provided, we do not conclude that the court abused its discretion by rendering a default against the defendant.

Ill

Finally, the defendant claims that the court improperly refused to accept the defendant’s answer and special defenses, which he offered to file with the court prior to the court rendering the judgment of strict foreclosure. The defendant argues that the court’s action was improper because it violated both General Statutes § 62-121 (a) and Practice Book § 17-32 (b). We are not persuaded.

We have already reiterated that the court has broad authority to “maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice.” (Internal quotation marks omitted.) West Haven Lumber Co. v. Sentry Construction Corp., supra, 117 Conn. App. 469. That authority necessarily includes the discretion to accept or reject documents that a party may attempt to file directly with the trial judge during a hearing rather than with the clerk of the court through normal filing procedures, including electronic filing when required. See General Statutes § 51-343 (b); Practice Book § 4-3. We will review a court’s action in this regard only for an abuse of that discretion.

The defendant’s suggestion that Practice Book § 17-32 (b) somehow imposed a duty on the court to accept his answer when he offered it for filing at the hearing is without merit. Practice Book § 17-32 (b) provides in relevant part that “ [i]f a party who has been defaulted under [§ 17-32 (a)] files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. ...” (Emphasis added.) That rule is inapplicable here because it unambiguously pertains to the clerk of the court, imposing a duty on the clerk to set aside a default if a late pleading is filed prior to the court rendering judgment on the default. The rule does not speak to the court’s authority to decide whether to accept pleadings that a party may attempt to file in court. Further, to the extent that Practice Book § 17-32 (b) can be read to imply that some amount of time must be permitted after the entry of a default in order to permit a defaulted defendant an opportunity to plead, Practice Book § 17-33 expressly exempts the judicial authority from complying with Practice Book § 17-32 (b) in foreclosure proceedings and permits the court to render a default and a judgment thereon simultaneously. See Chase Manhattan Mortgage Corp. v. Burton, 81 Conn. App. 662, 666-67, 841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d 313 (2004). Accordingly, we reject the defendant’s argument that the court’s refusal to allow the defendant to file his pleading in court violated Practice Book § 17-32.

We also must reject the defendant’s argument that the court’s action violated § 52-121 (a). Section 52-121 (a) provides: “Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.” We acknowledge that there is support for the proposition that a court commits plain error if, prior to rendering a judgment upon default, the court fails to accept for filing a defaulted party’s pleading solely on the ground that the pleading is untimely. See Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980). Our review of the hearing transcript reveals, however, that the plaintiff objected to the court accepting the answer not only because of the extensive history of delay but also because the pleading had not been electronically filed. We again note that the record before us does not contain a precise statement by the court for its ruling; however, the court suggests two possible reasons for rejecting the defendant’s request to file his answer and special defenses. In refusing to accept the pleading for filing, the court stated both that “it’s too late for that” and “you’re going to have to e-file it.” Because it is not clear from the record that the court rejected the defendant’s pleading solely on the basis that it was untimely, and the defendant has not addressed the electronic filing issue on appeal, we must reject the defendant’s claim that § 52-121 provides a basis for concluding that the court abused its discretion in refusing to accept his answer when it was offered for filing at the hearing.

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

In this opinion the other judges concurred.

       The foreclosure complaint also named Mortgage Electronic Registration Systems, Inc., as a defendant by virtue of a mortgage it held that allegedly was subsequent in right to the mortgage being foreclosed. Mortgage Electronic Registration Systems, Inc., was defaulted by the trial court for failure to appear, and is not a party to this appeal. Accordingly, we will refer to David P. Bertrand as the defendant.

       Although the defendant indicated on his appeal form that he also intended to challenge the court’s denial of two motions to compel discovery, a motion to reargue one of the motions to compel, a motion to dismiss and a motion to strike, the defendant has not briefed any claims of error pertaining to those rulings, and, thus, he is deemed to have abandoned any such claims. Corrarino v. Corrarino, 121 Conn. App. 22, 23 n.1, 993 A.2d 486 (2010).

       The law firm of Guest & Associates, LLC, later filed an additional appearance for the defendant.

       We note that, on two earlier occasions in the proceeding, the court appeared to suggest that a default already had entered, despite later clearly stating that it was entering a default. There is an entry on the court’s docketing statement indicating that Judge Aurigemma granted the June 22, 2011 motion for default on June 27, 2011, although the record does not reflect if that action occurred before the hearing or at the hearing, and the court did not indicate on the record that it was granting a default pursuant to any particular motion. Nevertheless, as discussed in part I of this opinion with regard to the court’s ruling on the motion for a protective order, the defendant never sought an articulation or rectification seeking to clarify the court’s remarks regarding default, and, therefore, we will not consider their significance in light of the subsequent affirmative statement by the court that it was entering a default against the defendant.

       At the time he filed the appeal, the defendant also filed motions to reargue and to reconsider the court’s decisions to enter default and to render the judgment of strict foreclosure. The court denied both motions on August 2, 2011, without comment. We note that the defendant did not amend his appeal to challenge those rulings in accordance with Practice Book § 61-9.

       The defendant also claims that the court’s action violated his federal and state constitutional rights to due process. We agree with the plaintiff that the defendant failed to raise his due process claims properly before the trial court. Although the record reveals that the defendant baldly asserted a due process violation in his motions to reargue and reconsider; see footnote 5 of this opinion; he did not provide the court with any analysis of that claim and the record does not indicate that the court ever considered that claim in denying those motions without comment. Most importantly, the defendant did not amend his appeal to include a challenge to the court’s decision. See Practice Book § 61-9. Further, the defendant has not requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. Accordingly, we decline to consider the defendant’s due process claims.

       The pleadings allowed and their order are set forth in Practice Book § 10-6, which provides in relevant part: “The order of pleading shall be as follows:
      “(1) The plaintiffs complaint.
      “(2) The defendant’s motion to dismiss the complaint.
      “(3) The defendant’s request to revise the complaint.
      “(4) The defendant’s motion to strike the complaint.
      “(5) The defendant’s answer (including any special defenses) to the complaint.
      “(6) The plaintiffs request to revise the defendant’s answer.
      “(7) The plaintiffs motion to strike the defendant’s answer.
      “(8) The plaintiffs reply to any special defenses.”

       Practice Book § 17-32 (a) provides: “Where a defendant is in default for failure to plead pursuant to Section 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk not less than seven days from the filing of the motion, without placement on the short calendar.”

       The defendant does not directly challenge the court’s authority to render judgment contemporaneously on the default. We nevertheless note that Practice Book § 17-33 (b) expressly gives the court such authority, providing in relevant part: “Since the effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned, the judicial authority, at or after the time it renders the default, notwithstanding Section 17-32 (b), may also render judgment in foreclosure cases . . . provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority.” (Emphasis added.) Here, the plaintiff had filed a motion for judgment of strict foreclosure and had provided the court with a foreclosure worksheet and an updated affidavit of debt.

       We note that the defendant never sought to open the judgment of foreclosure in order to file his answer electronically following the hearing.