author: McLACHLAN, J. FLYNN, J.,

text:
    TOWN OF EAST HAMPTON v. DEPARTMENT OF PUBLIC HEALTH
    (AC 23275)
    Flynn, West and McLachlan, Js.

      {One judge dissenting)
    Argued May 29
    officially released November 25, 2003

      Jean M. DAquila, for the appellant (plaintiff).

      Richard J. Lynch, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Rosemary M. McGovern, assistant attorney general, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, the town of East Hampton (town), appeals from the judgment of the trial court rendered after the granting of the motion filed by the defendant, the department of public health (department), to dismiss the plaintiffs administrative appeal on the ground that the court lacked subject matter jurisdiction pursuant to the Uniform Administrative Procedure Act (UAPA). On appeal, the town claims that (1) the court improperly concluded that General Statutes (Rev. to 1999) § 25-36 (a) did not confer a right to a direct appeal from the department’s orders issued pursuant to General Statutes §§ 25-33g and 25-33h, independent of the final decision requirement of General Statutes § 4-183, and (2) even if § 25-36 (a) did not confer a right to a direct appeal, the court improperly concluded that a right of appeal did not exist because the department orders appealed from constituted final decisions as required by § 4-183 and within the meaning of the UAPA. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the claims on appeal. The department is a state agency authorized and required by General Statutes §§ 25-33c through 25-37 to administer and to coordinate the planning of public water supply systems within the state. In performing that function, the department delineates the boundaries of public water supply management areas. See General Statutes § 25-33e. For each such management area, the department convenes a water utility coordinating committee (coordinating committee), which implements the planning process. Pursuant to General Statutes § 25-33f, each coordinating committee consists, inter alia, of one representative from each public water system with a source of water supply or a service area within the public water supply management area. The town operates a public water system within the Southeastern Connecticut water supply management area and is subject to the planning process implemented by the Southeastern Water Utility Coordinating Committee (water committee). Pursuant to § 25-33g, the water committee is required to establish and recommend to the department exclusive service area boundaries for each public water supply system within its public water supply management area. Pursuant to § 25-33h, the water committee is further required to recommend to the department a proposed coordinated water system plan for its management area. In accordance with those requirements, the water committee submitted to the department a report recommending exclusive service area boundaries and a proposed coordinated water system plan for the town, which the department subsequently approved and issued orders with respect thereto.

The town appealed from the department’s orders to the Superior Court, pursuant to the applicable agency appeal procedure set forth in § 25-36 (a). The department thereafter filed a motion to dismiss the appeal, claiming that the court lacked subject matter jurisdiction because the department orders appealed from did not constitute final decisions within the meaning of the UAPA, as required by § 4-183. The court agreed and, accordingly, granted the department’s motion to dismiss. This appeal followed.

Our standard of review for a challenge to a ruling on a motion to dismiss is well settled. “A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [Bjecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn. App. 215, 219, 815 A.2d 281 (2003).

I

The town first claims that the court improperly concluded that § 25-36 (a) did not confer a right to a direct appeal of the department’s orders independent of the final decision requirement of § 4-183. We disagree.

“It is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn. App. 134, 138, 779 A.2d 817, appeal dismissed, 260 Conn. 180, 799 A.2d 294 (2002). As such, our task is to determine whether orders of the department issued pursuant to §§ 25-33g and 25-33h are appealable. Under the clear weight of existing authority, they are not. See, e.g., Morel v. Commissioner of Public Health, 262 Conn. 222, 234, 811 A.2d 1256 (2002); Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 800-802, 629 A.2d 367 (1993); Lewis v. Gaming Policy Board, 224 Conn. 693, 699-700, 620 A.2d 780 (1993); Ahern v. State Employees Retirement Commission, 48 Conn. App. 482, 487-88, 710 A.2d 1366 (Lavery, J., concurring), cert. denied, 245 Conn. 911, 718 A.2d 16 (1998); see Bailey v. Medical Examining Board for State Employee Disability Retirement, supra, 75 Conn. App. 221.

The town argues that the legislative history of §§ 25-33g and 25-33h compels the conclusion that an appeal is permissible even though no statutorily required hearing was provided thereunder. The town cites specifically a remark by Senator Eric R. Benson, who stated that if a water company was not satisfied by the decision reached by the coordinating committee, an appeal would be available “through the [Uniform Administrative Procedure Act] . . . .” 28 S. Proc., Pt. 16, 1985 Sess., p. 5242, remarks of Senator Eric R. Benson. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule.

“In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine its range of plausible meanings and, if possible, narrow that range to those that appear most plausible. We do not, however, end with the language. We recognize, further, that the purpose or purposes of the legislation, and the context of the language, broadly understood, are directly relevant to the meaning of the language of the statute.

“This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003).

The bare text of § 25-36 (a) clearly supports the meaning that an appeal taken pursuant thereto must comply with the requirements of § 4-183. Specifically, § 25-36 (a) provides in relevant part: “Except as provided otherwise in this part, any person or corporation aggrieved by any order of the Department of Public Health made under the provisions of part III of this chapter, may appeal therefrom in accordance with the provisions of section 4-183, except venue shall be in the judicial district in which the source of the water or ice supply is located. ...” (Emphasis added.) Section 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”

Section 4-166 (3) (A) defines a “final decision” as “the agency determination in a contested case . . . .” Section 4-166 (2) defines a “contested case” as “a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” (Emphasis added.) “That is, the UAPA mandates, as a predicate for contested case status, that a party must have enj oyed a statutory right to a hearing.” Bailey v. Medical Examining Board for State Employee Disability Retirement, supra, 75 Conn. App. 221; see also Lewis v. Gaming Policy Board, supra, 224 Conn. 700. In the present case, both §§ 25-33g and 25-33h provided for the solicitation of comments, but neither statutorily required a hearing.

Had the legislature intended §§ 25-33g and 25-33h to require a hearing, it could have expressly done so. Section 25-36 (a) applies to part III of chapter 474 of the General Statutes, which includes two sections that specifically require a hearing. See General Statutes §§ 25-32g and 25-34b. “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed. . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.” (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). The difference in the language used in §§ 25-33g and 25-33h and in those statutes that expressly require a hearing is persuasive evidence of a lack of similar legislative intent to impose the same requirement.

The town’s reliance on Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002), for the proposition that if we were to construe § 25-36 (a) as conditioning the right of appeal on satisfaction of the final decision requirement, § 25-36 (a) would be rendered meaningless, is misplaced. In Nizzardo, the relationship between an agency appeal provision and the final decision requirement of § 4-183 was examined. The appeal provision at issue in Nizzardo provided in relevant part: “Any person aggrieved by any decision of the State Traffic Commission hereunder may appeal therefrom in accordance with the provisions of section 4-183, except venue for such appeal shall be in the judicial district in which it is proposed to operate such establishment. . . .” (Emphasis added.) General Statutes § 14-311 (e).

After first recognizing the general rule that for an administrative decision to qualify as a final decision, and therefore be appealable, there must be a hearing required by statute, the court nevertheless determined that an appeal could be brought pursuant to § 14-311 even though that statute did not require a hearing. The court reasoned that if it construed § 14-311 (e) as imposing that usual requirement, “the [appeal] provision would be meaningless, because the very statute to which it refers does not require a hearing. Thus, there would never be a permissible appeal thereunder.” Nizzardo v. State Traffic Commission, supra, 259 Conn. 140 n.11.

That conclusion was based on the fact that the appeal provision at issue in Nizzardo was adopted simultaneously with and expressly limited in its applicability to one statute, § 14-311, which did not require a hearing. As such, the court was faced with the predicament that if it imposed the usual requirement of a statutorily required hearing, there could never be a permissible appeal under § 14-311 (e), and the entire subsection would be rendered meaningless. In contrast, § 25-36 (a) expressly applies to all of part III of chapter 474 of the General Statutes, which encompasses §§ 25-32 through 25-54, inclusive. Although many of the sections contained within part III do not require a hearing, there are sections that do and, therefore, permissible appeals may arise under § 25-36 (a).

The narrow exception carved out in Nizzardo is inapplicable to the present case because § 25-36 (a) is not rendered meaningless by requiring that a party appealing thereunder must comply with the final decision requirement of § 4-183. Senator Benson’s remark is not compelling enough to overcome either the plain language of the statute, which makes clear that § 4-183 (a) places the jurisdictional requirement of a final decision on appeals brought pursuant to § 25-36 (a), or the policy reasons for such requirement.

We conclude that the department orders issued pursuant to §§ 25-33g and 25-33h did not statutorily require a hearing and, therefore, did not constitute appealable final decisions in a contested case, within the meaning of § 4-183. We accordingly conclude that the court correctly decided that it lacked subject matter jurisdiction to entertain the town’s appeal.

II

The town’s second claim is that even if § 25-36 (a) did not expressly confer a right to a direct appeal, the court improperly failed to conclude that a right of appeal nevertheless existed because the department orders appealed from constituted final decisions as required by § 4-183 and within the meaning of the UAPA. The town reasons that because §§ 25-33g and 25-33h both provide for the solicitation of comments, the hearing requirement has been satisfied because the commenting process is tantamount to a hearing. We disagree.

This court has emphasized that when a hearing is gratuitously held but not statutorily required, the contested case requirement is not satisfied. See Dadiskos v. Connecticut Real Estate Commission, 37 Conn. App. 777, 782, 657 A.2d 717 (1995). Stated differently, even if a “proceeding” was in fact held, it lacked the essential element of a “right to be heard,” and, thus, remained gratuitous and did not qualify as a “statutorily required hearing.” As a result, there could not have been a contested case to which the provisions of the UAPA might apply. Accordingly, the court had no jurisdiction to entertain the plaintiffs appeal and the dismissal was proper.

The judgment is affirmed.

In this opinion WEST, J., concurred.

FLYNN, J.,

dissenting. I respectfully dissent from the result reached by the majority.

First, I do so because if jurisdiction is exercised to review the claim of the plaintiff town of East Hampton (town), there is a substantial issue to be decided, namely, whether a special act granting the municipality the right to provide water prevails over a general statute by which the commissioner of public health purports to give that right to others. The town, for almost forty years, was authorized by 31 Spec. Acts 206, No. 216 (1963), to provide water service within its boundaries, and there has been no express repeal of this special act. The special act expressly gives to the municipality the entire geographical area of East Hampton as its service area. See id., § 1. “[I]t is a canon of statutory construction that a later statute general in its terms and not expressly repealing a prior special or specific statute will be considered as not intended to affect the special or specific provisions of the earlier statute, unless the intention to effect the repeal is clearly manifested or unavoidably implied by the irreconcilability of the continued operation of both.” 73 Am. Jur. 2d 464, Statutes § 300 (2001); see also Clisham v. Board of Police Commissioners, 223 Conn. 354, 360 n.12, 613 A.2d 254 (1992) (“[b]ecause, in enacting [the statute at issue], the legislature has not shown a manifest intent to repeal [the related special act], to the extent that the provisions of the special act and the general statute are inconsistent, the special act is controlling”).

In this case, there has not been any general reference in the legislation itself to indicate that the provisions of General Statutes §§ 25-33g and 25-33h would prevail over any charter provision, special act or ordinance as the legislature knew how to do, and expressly has done, time and time again when adopting legislation that it specifically wanted to supersede prior legislation. See, e.g., General Statutes § 13a-198n (“[notwithstanding any provision of the general statutes or any regulation issued pursuant to such statutes or any provision of any special act to the contrary, the [department of [transportation shall not construct the Route 2-3 access road in the vicinity of Forbes Street, East Hartford”); General Statutes § 16-262o (b) (“[notwithstanding the provisions of any special act, the [department of [p]ub-lic [u]tility [c]ontrol shall extend the franchise areas of the acquiring water company to the service area of the water company acquired pursuant to this section”); General Statutes § 22a-368 (b) (“[notwithstanding any other provision of the general statutes or any special act to the contrary, no person or municipality shall, after July 1, 1982, commence to divert water from the waters of the state without first obtaining a permit for such diversion from the commissioner”); General Statutes § 25-32b (“[notwithstanding any other provision of the general statutes or regulations ... or special act or municipal ordinance, the [commissioner of [p]ublic [h]ealth may authorize or order the sale, supply or taking of any waters”).

In addition, I find it relevant that § 25-33g expressly states that “[i]n establishing such [service area] boundaries the commissioner shall maintain existing service areas and consider the orderly and efficient development of public water supplies . . . ,” General Statutes § 25-33g (b). The existing service area, as expressly granted to the town by special act, was not, in this instance, maintained by the commissioner.

Second, if we assume that the defendant’s actions constituted an order, the town has a statutory right to an appeal. Both the trial court and the majority opinion refer to the commissioner’s action as an “order.” Given the consequences of the defendant’s actions in conjunction with the assumption that an order was created, I believe that General Statutes (Rev. to 1999) §§ 25-32 (j) and 25-32 (k), now (k) and (J), are implicated. The effect of the commissioner’s action was to declare a moratorium on any further expansion of the municipal water system to unserved parts of the town, to take away from the municipality those parts of the town which constitute the unserved area and to grant them to another entity. Section 25-32 (j) provides: “The commissioner may issue an order declaring a moratorium on the expansion or addition to any existing public water system that he deems incapable of providing new services with a pure and adequate water supply.”

Additionally, § 25-32 (k), now ([), provides that “[t]he commissioner may issue, modify or revoke orders as needed to carry out the provisions of part III of this chapter. Except as provided otherwise in this part, such order shall be issued, modified or revoked in accordance with procedures set forth in subsection (b) of section 25-34.”

Section 25-34 (b) then sets forth the manner in which a party affected by an order shall be notified and the manner in which such party may challenge that order. Initially, I note that there is no indication in the record that the defendant complied with the notice requirement clearly set forth in § 25-34 (b) by mailing a copy of the challenged order to the town by certified mail. There is, however, an assertion by the town that it repeatedly requested a hearing and was told that a hearing would be held. Paragraph fifteen of the town’s complaint alleged: “Representatives of the plaintiff town immediately and periodically prevailed upon the [defendant] to correct the procedural irregularities associated with the [Southeastern Connecticut Water Utility Coordinating Committee’s] recommendation and allow the town and the public an opportunity at a public hearing to show the [defendant] why the town of East Hampton should be designated as the exclusive service area provider for water within the town of East Hampton, with the exception of areas currently served by others.” If, in fact, it is an order, § 25-34 (b) provides that if a hearing is requested, it shall be granted, and the request for a hearing suffices as a condition precedent to taking an appeal from an order. Furthermore, the hearing contemplated by § 25-34 (b), in which “the recipient of the order may . . . show why the findings in the order are not based on substantial evidence or that the order is an abuse of discretion,” would seem to satisfy the requirements for a “contested case” as that term is defined by General Statutes § 4-166 (2). Additionally, § 25-34 (b) expressly provides that “[a]ny hearing shall be deemed to be a contested case and held in accordance with the provisions of chapter 54.”

Third and alternatively, if the commissioner’s action approving the plan, which takes away the right of the municipal water company to serve the unserved areas of the town, is viewed as being akin to a “decision” rather than an order, I agree with the third claim of the town. In its third claim, the town contended that the commissioner’s decision constituted a final decision in a “contest case,” sufficient to meet the definition found in General Statutes § 4-166 (2).

In Herman v. Division of Special Revenue, 193 Conn. 379, 382, 477 A.2d 119 (1984), our Supreme Court outlined a three part test to be used in determining whether a matter constitutes an appealable “contested case.” The first part of the test is whether a legal right, duty or privilege is at issue. Id. Clearly, that is satisfied here because the result of the commissioner’s approval of the contested plan resulted in the abrogation of a statutory right of the municipal water company, granted by 31 Spec. Acts 206, No. 216, § 1, to service the entire town.

The second prong requires that the matter statutorily be required to be determined by the agency. Id. That prong is satisfied by § 25-33g, which requires the commissioner to set the service area boundaries.

The third and final prong requires that the agency determination be made “after an opportunity for hearing or in which a hearing is in fact held . . . .’’Id. This prong, arguably, is satisfied by §§ 25-33g and 25-33h and their requirements that the municipality be given an opportunity to be heard as to the development of this water system plan. The committee, which is charged with advising the commissioner as to the appropriate designation of service areas, was required by §§ 25-33g (b) and 25-33h (b) to solicit comments and to respond to those comments. I agree with the town that this is tantamount to a hearing. I concede that this was not a right to a hearing before the commissioner, but it was statutorily required before the commissioner could act, and it is, therefore, more than the slender reed of a federally mandated hearing that our Supreme Court, in Morel v. Commissioner of Public Health, 262 Conn. 222, 237, 811 A.2d 1256 (2002), found insufficient to meet the third prong.

Accordingly, I dissent.

       See General Statutes § 4-166 et seq.

       See General Statutes §§ 4-183, and 4-166 (2) and (3).

       Exclusive service area means an area in which public water is supplied by one system. See General Statutes § 25-33d (c). The system that is designated as the exclusive service area provider for aparticular areais “responsible for providing adequate service as requested by consumers and under terms otherwise provided by statute, regulation and ordinance within their exclusive service area boundaries within a reasonable time frame . . . .” Regs., Conn. State Agencies § 25-33h-l (k) (2).

       General Statutes § 25-36 (a) applies to part III of chapter 474 of the General Statutes, which includes General Statutes §§ 25-32 through 25-54, inclusive.

       We are mindful of Public Acts 2003, No. 03-154, § 1 (effective October 1, 2003), which provides that the “meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plan and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” We take no position as to the effect of that legislation on State v. Courchesne, supra, 262 Conn. 537.

       The legislative history of General Statutes § 25-36 (a) reveals that in 1977, the legislature added the language that appeals brought pursuant thereto must be taken “in accordance with the provisions of section 4-183 . . . .” Public Acts 1977, No. 77-603, § 108. That was an attempt to make uniform all appeals from administrative agency decisions. See 20 H.R. Proc., Pt. 13, 1977 Sess., p. 5252, remarks of Representative Ernest N. Abate.

       General Statutes § 4-166 (3) defines “final decision” as “(A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . . .”

       The explanation of the “contested case” requirement has been succinctly integrated into a three part test: “(1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held.” (Emphasis in original; internal quotation marks omitted.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 800-801.

       The nature of the relationship between an agency appeal provision and General Statutes § 4-183 has routinely been construed as complementary, such that the requirements of § 4-183 serve the gatekeeping function of limiting the agency determinations that are subject to judicial review. See, e.g., Coalition to Save Horsebam Hill v. Freedom of Information Commission, 73 Conn. App. 89, 92, 806 A.2d 1130 (2002) (characterizing requirements of § 4-183 as “complementary” of General Statutes § 1-206 (d), the Freedom of Information Act appeal provision), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003); Toise v. Rowe, 243 Conn. 623, 626, 707 A.2d 25 (1998) (determining that § 4-183 sets qualifications for appealability of agency determinations to Superior Court).

       Specifically, General Statutes § 25-32g, concerning department orders to correct immediate threats to public water supplies, provides in relevant part that “[t]he commissioner shall. . . hold a hearing to provide the person an opportunity to be heard . . . .” General Statutes § 25-34 (b), concerning the department’s orders to protect the water or ice supply from pollution, provides in relevant part that “[u]pon receipt of [a request for a hearing] the commissioner shall grant a hearing as soon thereafter as practicable or within ten business days if the order requires immediate compliance. . . .”

       Indeed, this court has implicitly recognized the validity of a statutory scheme in which the agency appeal provision, when read in conjunction with the final decision requirement of General Statutes § 4-183, prohibits appeals from statutes that are expressly included in the scope of the appeal provision. In Southern New England Telephone Co. v. Dept. of Public Utility Control, supra, 64 Conn. App. 139 n.3, the agency appeal provision was applicable to “ ‘any order, authorization or decision of the Department of Public Utility Control ....’” Although some of the orders, authorizations and decisions to which the appeal provision applied were appealable because they satisfied the final decision requirement of § 4-183, others did not satisfy that requirement and, therefore, could never be appealed. Although the court construed the relationship between the agency appeal provision and the requirements of § 4-183, the court did not suggest that the nature of the statutory scheme rendered the appeal provision meaningless with respect to those orders, authorizations and decisions that could not satisfy the final decision requirement.

       We reach that conclusion reluctantly. We recognize some expression of legislative intent for a right of appeal with respect to General Statutes §§ 25-33g and 25-331», and we agree that such right of appeal would obviate the potential for mischief raised by the legislature. The bare text of General Statutes § 25-36 (a), however, simply cannot bear such a construction in light of the weight of authority against such a construction. If the legislature indeed intended for a right of appeal to exist for §§ 25-33g and 25-331», it failed to craft the statutes to effectuate that intent. We further recognize that any reformulation of §§ 25-33g and 25-331» to create appellate rights is the function of the legislature. See Bhinder v. Sun Co., 263 Conn. 358, 365, 367, 819 A.2d 822 (2003).

       I find it significant that although the drafters of General Statutes § 25-33g repeated the phrase, “[i]f there is no agreement by the committee” in the two preceding sentences, they did not repeal it in this final sentence, which leads me to the conclusion that the commissioner’s obligation to maintain existing service areas applies whether or not an agreement has been reached by the committee.

       The provisions contained in General Statutes (Rev. to 1999) § 25-32 (j) and (k) were renumbered and are now contained in General Statutes § 25-32 (k) and (J), respectively.

       When amotion to dismiss is the procedure that is used, the court views all of the allegations contained in the complaint as true in passing on the motion.

       General Statutes § 4-166 (2) defines that term “contested case” to mean “a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168 . . . .”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    ANN STANLEY’S APPEAL FROM PROBATE
    (AC 23682)
    Foti, Dranginis and Peters, Js.

      Argued September 17
    officially released November 25, 2003

      Richard McCarthy, for the appellants (substitute plaintiff Michael Stanley et al.).

      Gregory P. Patti, pro se, the appellee (defendant).
   Opinion

FOTI, J.

The substitute plaintiffs, Michael Stanley and Arlene Stanley, executors of the estate of Ann Stanley, appeal from the judgment of the trial court dismissing as moot the appeal, which had been initiated by Ann Stanley prior to her death, from the decree and order of the Probate Court for the district of Fairfield. The probate appeal contested the appointment of the defendant Gregory P. Patti and Michael Stanley as conservators of Ann Stanley’s estate and person. We conclude that the appeal is not moot and, therefore, reverse the judgment of the trial court.

The trial court found the following relevant facts. On May 13, 1999, the Probate Court appointed Patti, an attorney, and Michael Stanley as conservators of the estate and person of Ann Stanley. Ann Stanley then filed with the Probate Court an application for appeal, alleging that she was “aggrieved by the order and decree of the [Probate] [C]ourt.” On June 10,1999, the Probate Court issued a decree allowing her to appeal from that appointment. On September 14,1999, the Probate Court found that Ann Stanley no longer was in need of a conservator and ordered that the conservatorship be terminated. On June 5, 2000, Ann Stanley died.

We take judicial notice of additional facts that appear in documents contained in the Probate Court for the district of Fairfield. See Schiavone v. Snyder, 73 Conn. App. 712, 717, 812 A.2d 26 (2002). On October 22, 1999, following the termination of the conservatorship, the Probate Court awarded fees totaling $7080.50 as follows: $3805.50 to Patti as conservator; $1000 to Norman Hewitt, an attorney; and $2175 to John McCarthy, an attorney, as guardian ad litem. Ann Stanley also appealed to the Superior Court from that decree.

In its memorandum of decision, the trial court concluded that the termination of the conservatorship rendered moot the appeal from the appointment of conservators and found that there was no collateral injury or consequence from which a court could grant relief. We do not agree.

“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996).

If an actual controversy as to Ann Stanley’s claims ceased to exist when the Probate Court terminated the conservatorship, the present appeal would be rendered moot. See, e.g., Murphy’s Appeal from Probate, 22 Conn. App. 490, 578 A.2d 661 (approval of final accounting, order of distribution rendered moot appeal from two orders involving administration of estate), cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990). Furthermore, a court will not decide questions when there exists no actual controversy or when no actual practical relief can follow from the court’s determination. Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134, 566 A.2d 703 (1989). Such is not the case here.

Ann Stanley was not seeking merely to terminate a conservatorship, but also to have the appointment itself set aside. The order of September 14,1999, which terminated the conservatorship, did not cause the controversy to cease to exist. Furthermore, we view a pending appeal at the Superior Court contesting the reasonableness and the amount of the award of fees as a cause for declaring this matter as not being moot. Neither the termination of the conservatorship nor the pending appeal contesting fees allows for the substitute plaintiffs to contest whether there was a valid appointment of a conservator. The substitute plaintiffs may argue that if no legal basis is found for the appointment, then there also exists no legal basis for an award of fees. To declare this appeal moot would be to disallow the substitute plaintiffs to litigate their claims fully. Because the substitute plaintiffs may be offered practical relief as a result of this appeal, their claims are not moot.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Michael Stanley, the plaintiffs son, did not submit a bond as required by the court and ultimately was not appointed a conservator. He also is not a party on appeal.

       The appeal from the award of fees is Ann Stanley’s Appeal from Probate, CV 99-0368621 judicial district of Fairfield.

       In Schiavone v. Snyder, supra, 73 Conn. App. 718, we concluded that claims on appeal involving the Probate Court’s order and decree approving an interim account were rendered moot, as any actual controversy as to the plaintiffs claims ceased to exist on the Probate Court’s order approving the final account and on the failure of the plaintiff to appeal therefrom.

       The Probate Court’s order itself is quite clear on that point, stating that the plaintiff “was no longer in need of a conservator,” which implies that she previously was in need of a conservator.

       The substitute plaintiffs would not be allowed, in that appeal, to pursue a collateral attack on the appointment itself, as a separate and distinct appeal is required, or that claim would be waived.


author: DiPENTIMA, J.

text:
    JOHN ORSINI v. KATHLEEN TARRO
    (AC 23531)
    Schaller, DiPentima and McLachlan, Js.

      Submitted on briefs September 19
    officially released November 25, 2003

      Michael D. O'Connell and Julia B. Morris filed a brief for the appellant (defendant).

      Vincent T. McManus, Jr., filed a brief for the appel-lee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant, Kathleen Tarro, appeals from the judgment of the trial court granting the application for a prejudgment remedy filed by the plaintiff, John Orsini, in the amount of $5500. The defendant claims that the court improperly granted the prejudgment remedy on the basis of General Statutes § 52-568. We affirm the judgment of the trial court.

The following facts are relevant to our consideration of the defendant’s claim on appeal. The defendant is the principal of Interiors of Yesterday, LLC (Interiors). The plaintiff was Interiors’ landlord. In April, 2001, the plaintiff, pursuant to the lease agreement between the parties, pursued Interiors through arbitration for rent due and various other damages. The arbitrator awarded the plaintiff $110,000, and the trial court confirmed that award. The defendant, pro se, appealed from the court’s judgment.

On October 19, 2001, the defendant, pro se, filed a voluntary bankruptcy petition on Interiors’ behalf, which the United States Bankruptcy Court for the District of Connecticut dismissed. On February 6, 2002, the defendant, pro se, filed a second voluntary bankruptcy petition on Interiors’ behalf. On February 26, 2002, the plaintiff commenced the present action against the defendant pursuant to § 52-568. On May 6, 2002, the plaintiff filed an application for a prejudgment remedy, asserting that there was probable cause that he would succeed on the merits of his claim against the defendant for vexatious defenses interposed in the arbitration proceeding and in filing the bankruptcy petitions. On September 24, 2002, the court granted the plaintiffs application, stating: “The court finds that there is probable cause that the.plaintiff will prevail in his claim that these bankruptcy petitions improperly initiated by [the defendant], with no bona fide basis to believe she had the right to so proceed, were vexatious proceedings by [her]. The court finds, based on the evidence before it, that the plaintiff has incurred damages by way of attorney’s fees and costs regarding the bankruptcy in the amount of $4175.

“The appeal filed pro se by [the defendant] was also a civil action filed without merit or a bona fide belief in the right to so proceed. As a result of this vexatious conduct, there is probable cause to believe the plaintiff will be successful on the merits of this aspect of the claim. The plaintiff has established damages by way of attorney’s fees in the amount of $1150. Based upon the evidence before the court for this proceeding, the court finds there is probable cause the plaintiff will prevail at least in part and issues a prejudgment remedy attachment in the amount of $5500.” The defendant now appeals from that judgment.

“The [prejudgment remedy] probable cause review is extremely limited. It is firmly established that the trial court’s hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiffs claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable successes by weighing probabilities.” (Internal quotation marks omitted.) William Beazley Co. v. Business Park Associates, Inc., 34 Conn. App. 801, 805-806, 643 A.2d 1298 (1994).

“Appellate review of a trial court’s broad discretion to deny or grant a prejudgment remedy is limited to a determination of whether the trial court’s rulings constituted clear error.” State v. Ham, 253 Conn. 566, 568, 755 A.2d 176 (2000). “It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.” Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991).

“The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.” (Citation omitted; internal quotation marks omitted.) Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984).

In her argument, the defendant claims that because there was no evidence that the bankruptcy petitions had terminated, the plaintiff could not satisfy one of the elements of a claim for vexatious litigation. In essence, the defendant argues that before a prejudgment remedy may issue, the court must find, either expressly or impliedly, that a cause of action exists. That is not the law. “The adjudication made by the court on the application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action. It is independent of and collateral thereto and primarily designed to forestall any dissipation of assets by the defendant .... [P]rejudgment remedy proceedings . . . are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication.” (Internal quotation marks omitted.) William Beasley Co. v. Business Park Associates, Inc., supra 34 Conn. App. 806.

On the basis of our review of the record, we conclude that the court did not abuse its broad discretion in granting the plaintiffs application for a prejudgment remedy.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time the trial court rendered its decision on the plaintiffs application for a prejudgment remedy, the Bankruptcy Court had scheduled a hearing on the bankruptcy petition to determine whether it should be dismissed for an invalid pro se filing. We note that the Bankruptcy Court subsequently declined to dismiss the matter.

       General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

       Because it was not raised as an issue in this appeal or before the trial court, this court does not address whether the filing of a bankruptcy petition constitutes a civil action within the meaning of General Statutes § 52-568. But see Gonzales v. Parks, 830 F.2d 1033 (9th Cir. 1987); see also Lewis v. Chelsea G.C.A. Realty Partnership, LP, Superior Court, judicial district of Waterbury, Docket No. X06-960154801 (January 22, 2003) (34 Conn. L. Rptr. 5).

       We note that the court also determined that “neither the arbitration nor the proceedings in the Superior Court to confirm the arbitration award constitute a civil action within the meaning of General Statutes § 52-568.” Therefore, the statute was not implicated by the allegedly vexatious conduct with respect to the arbitration proceedings.

       A claim for vexatious litigation requires a plaintiff to allege that a previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiff s favor. Vandersluis v. Weil, 176 Conn. 353, 356, 407 A2d 982 (1978).


author: PER CURIAM.

text:
    JERRY K. GLENN v. COMMISSIONER OF CORRECTION
    (AC 23031)
    Dranginis, West and Hennessy, Js.
    Submitted on briefs October 30
    officially released November 25, 2003

      Jerry K. Glenn, pro se, the appellant (petitioner), filed a brief.

      Richard Blumenthal, attorney general, and Henri Alexandre scad Madeline A. Melchionne, assistant attorneys general, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The pro se petitioner, Jerry K. Glenn, appeals from the judgment of the trial court dismissing his petition for a writ of habeas corpus and denying his petition for certification to appeal. On appeal, the petitioner claims that it was improper for the court to dismiss his petition for a writ of habeas corpus. The petitioner, however, has failed to address whether the court abused its discretion in denying his petition for certification to appeal. We, therefore, dismiss the appeal.

The habeas court found the following facts that are relevant to our consideration of the petitioner’s appeal. On January 8,1980, the petitioner received an indeterminate sentence of not less than twenty-five years, but not more than life, imprisonment following his conviction for murder in violation of General Statutes (Rev. to 1973) § 53a-54a (1980 sentence). On May 19,1981, the defendant received a second indeterminate sentence of not less than two years, but not more than four years, imprisonment for assault in the second degree in violation of General Statutes (Rev. to 1973) § 53a-60 (a) (5), as well as an indeterminate sentence of not less than four years, but not more than eight years, for robbery in the second degree in violation of General Statutes (Rev. to 1977) § 53a-135 (a) (1). The petitioner’s 1981 sentences were to be served concurrent with one another, but consecutive to the 1980 sentence. On January 25,1989, the petitioner was convicted of an unauthorized conveyance of items into a correctional institution in violation of General Statutes (Rev. to 1973) § 53a-174, for which he received a sentence of one year imprisonment, eight months of which were to be served concurrent with the 1980 sentence, which he was currently serving, and four months consecutive to that sentence.

The petitioner completed the twenty-five year portion of his 1980 sentence. On August 22, 1996, while he was serving the life portion of his 1980 sentence, he was awarded parole, but remained incarcerated so that he could serve the 1981 and 1989 consecutive sentences. The petitioner completed his consecutive sentences and was granted parole on the life portion of his 1980 sentence effective November 1, 1999. On January 27, 2000, while on parole, the petitioner was arrested and, following a hearing, found to be in violation of his parole. The petitioner was then returned to the custody of the respondent commissioner of correction to serve the balance of his life sentence.

In his petition for a writ of habeas corpus, the petitioner alleged that he was being held illegally by the respondent because he had completed the life portion of the 1980 sentence. In dismissing the petition, the court found that the petitioner is serving the balance of his 1980 life sentence, which will last for the rest of his natural life, and that he is eligible for parole. The petitioner had failed to prove that he was being held illegally by the respondent.

The petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right, and further, that he has failed to sustain his threshold burden of persuasion that the court’s denial of his certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

       The 1980 sentence was imposed in accordance with General Statutes (Rev. to 1977) § 53a-35, which provided that for a class A felony, such as murder, the maximum term of an indeterminate sentence was life imprisonment, meaning the natural life of the petitioner. Subsequent to the petitioner’s sentence, General Statutes (Rev. to 1981) § 53a-35b defined life imprisonment as a sentence of sixty years. Section 53a-35b does not apply to the petitioner.

       Our Supreme Court upheld the petitioner’s conviction on appeal in State v. Glenn, 194 Conn. 483, 481 A.2d 741 (1984).


author: CRETELLA, J.

text:
    REYNALDO RAMOS ET AL. v. BENITO RAMOS, JR., ET AL.
    (AC 23455)
    Lavery, C. J., and West and Cretella, Js.
    Argued September 15
    officially released November 25, 2003

      William J. Melley III, for the appellants (defendants).

      Hugh D. Hughes, with whom, on the brief, were William F. Gallagher and Brian M. Flood, for the appellee (plaintiff Wilson Ramirez).
   Opinion

CRETELLA, J.

The defendant Benito Ramos, Jr., appeals from the judgment of the trial court, rendered after the jury’s award of $23,475.45 on its verdict in favor of the plaintiff Wilson Ramirez for damages resulting from an automobile accident. The defendant claims that the court abused its discretion in (1) excluding evidence that the plaintiff had been diagnosed with hepatitis B prior to the accident and (2) in denying the defendant’s motion for a continuance following the late disclosure of the plaintiffs medical condition. Because we find that the court abused its discretion in both excluding evidence of the plaintiffs hepatitis B and in denying the defendant’s motion for a continuance, we reverse the judgment and remand the case for a new hearing in damages.

The following facts are relevant to the defendant’s appeal. The plaintiff was a backseat passenger in a motor vehicle that was struck in the right rear and side by a motor vehicle driven by the defendant. Officer Francis J. Monahan of the Waterbury police department testified at trial that the damage to both vehicles was minor and that none of the parties involved in the accident appeared to be injured or requested to go to a hospital. The plaintiff testified that he had experienced some pain at the time of the accident, but ignored it. A short time later, the plaintiff testified, he began to complain of pain in his back and neck, and of numbness in his hands.

In an amended complaint, the plaintiff sought damages for the following injuries: “Strain/sprain of his cervical spine .... Strain/sprain of his right shoulder .... Strain/sprain of his lumbosacral spine .... Pain and suffering, both mental and physical.” In addition, the plaintiff sought damages to compensate him for medical care, medicines and therapy, future medical expenses, lost earnings due to time taken from work, and compensation for being rendered “unable to participate in and enjoy his usual activities.”

The plaintiff was treated by Robert Costanzo, a chiropractor, for approximately four to five months. The plaintiff testified that he later received physical therapy from Brian Peck, a physician, approximately one year after the accident. Peck’s records revealed that the plaintiff had a ten year history of “suprapubic pain” that worsened when he had sexual intercourse, and radiated to the thigh and around to the right flank and back, and that he had a history of prostatitis and had suffered a gunshot wound to his left chest in 1992, for which he had received a blood transfusion. The records also revealed that the plaintiff had sustained a serious head injury in a car accident seventeen years earlier, and although he denied illicit drug use, the medical records noted the presence of hepatitis B surface antibody, hepatitis B core antibody and antibody to hepatitis A in his blood. The records stated that the plaintiff was not infectious and had no risk of active disease. Although the defendant’s counsel had subpoenaed those records to court for the first day of trial, Peck’s office mistakenly faxed the records to the defendant’s counsel instead.

Immediately preceding trial, the plaintiff sought to preclude the admission of the hepatitis information for lack of probative value. After a hearing outside the presence of the jury, the court ordered that all hepatitis references be redacted from Peck’s records and ordered that the defendant not inquire about the plaintiffs hepatitis during cross-examination. The court found that such evidence was more prejudicial than probative. The court later articulated its reasoning for finding the illness to be prejudicial, stating: “I agree that . . . [the plaintiffs] health is at issue here, and his ability to enjoy his life, which is an allegation in the complaint, is certainly impacted by his health. My problem is . . . the prejudicial effect of having a sexually transmitted disease out before the jury, unless there’s really some specific reference in the medical records that it does affect his daily life.” The court ruled that it would not admit evidence of the plaintiffs hepatitis without some expert testimony regarding its effect on the plaintiffs life expectancy.

In his motion for a continuance, the defendant argued that because the contents of Peck’s records were revealed less than twenty-four hours before trial and the basis of the court’s ruling was the lack of expert testimony, additional time was needed to find such an expert. In denying the motion for a continuance, the court stated that there never had been a need to disclose the hepatitis condition because it was not related to the injuries claimed by the plaintiff. The court also stated that the evidence was excluded because it was prejudicial. Following the defendant’s cross-examination of the plaintiff, the defendant again objected to the court’s ruling on the exclusion of the hepatitis evidence and made another motion for a continuance, which the court also denied.

On appeal, the defendant claims that the court abused its discretion by excluding evidence of the plaintiffs hepatitis on the basis of its prejudicial effect. Although the court properly weighed the probative value of the evidence against its propensity for prejudice, we conclude that under these facts, the court abused its discretion. The defendant also claims that the court abused its discretion by denying his request for a continuance to determine the impact of hepatitis on the plaintiff’s health. We agree. Because those issues are closely related, we will address them together.

“The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion. . . . The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect.” (Internal quotation marks omitted.) Olkowski v. Dew, 48 Conn. App. 864, 871, 713 A.2d 264, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998). This court has recognized that “[e]vidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. . . . All evidence adverse to a party is, to some degree, prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.” (Citation omitted; emphasis in original.) Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990).

In excluding the hepatitis evidence, the court stated that because of “the pretty common knowledge of the sources of the disease,” the revelation of the hepatitis would be highly prejudicial to the defendant. The fact that a particular disease can be transmitted sexually or via intravenous drug use does not render evidence inherently prejudicial because that evidence shows that an individual has contracted the disease. See, e.g., State v. Mercer, 208 Conn. 52, 62, 544 A.2d 611 (1988) (revelation during jury selection that defendant had AIDS did not prejudice his case or deprive him of fair trial when no evidence of actual juror bias shown).

In determining whether evidence should be admitted, the primary inquiry is whether it is relevant to a material issue in the case. “While there is no precise test for relevancy, evidence is admissible if it tends to establish a fact in issue . . . .” (Citation omitted.) Chouinard v. Marjani, supra, 21 Conn. App. 575. The evidence at issue here, namely, that the plaintiff at some time had been infected with hepatitis B, was relevant to a fair determination of his damages. The plaintiff put his state of health into issue by seeking compensation for being unable to partake in his “usual activities.” The plaintiffs medical history prior to the accident was highly probative and necessarily had to be disclosed so that the jury could determine accurately how his life and health may have been affected by the defendant’s conduct. See Donoghue v. Smith, 114 Conn. 64, 66, 157 A. 415 (1931) (life expectancy may be determined by “evidence such as the age, health, habits and physical condition of the plaintiff’); Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 715, 596 A.2d 1318 (instruction regarding life expectancy upheld because jury not prevented from considering evidence of plaintiffs health problems that could have shortened his life span), cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). The trier of fact must properly determine what impact, if any, the plaintiffs medical history has on the overall award of damages.

The court excluded evidence of the plaintiffs hepatitis even though there was nothing in his medical records suggesting the maimer in which the plaintiff had contracted the disease, nor was there any reason to surmise that the jury would have been unable to render a fair decision if provided with that knowledge. “When the evidence is relevant and the likelihood of prejudice is not great, deviation from the general rule of admissibility is not warranted and discretion has been abused if the evidence is excluded.” Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 221, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

Although the court essentially placed a burden on the defendant to show that the hepatitis evidence was probative, the defendant was afforded no opportunity to establish that because he had learned of the plaintiffs hepatitis diagnosis only the day before trial. Moreover, the burden properly should have been placed on the plaintiff to show that the evidence was prejudicial rather than on the defendant to evince its probative value. See Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, 475, 661 A.2d 123 (“burden of showing that the evidence may unduly arouse the jurors’ emotions of hostility or sympathy rests with the party claiming prejudice”), cert. denied, 235 Conn. 922, 666 A.2d 1185 (1995).

Even if the court found possible danger of prejudice, it could have taken steps to minimize the effect rather than abrogating the scope of the defendant’s cross-examination. The court could have limited the defendant’s examination of the plaintiff to reduce any negative inferences, required the defendant to voir dire the plaintiff outside the presence of the jury to better determine the probative value of his testimony or given a limiting instruction to the jury explaining exactly how the evidence could be used. In Richmond v. Longo, 27 Conn. App. 30, 40, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992), we held that the court abused its discretion in limiting the scope of the defendant’s cross-examination of the plaintiffs expert witness, stating that it should have permitted the defendant to voir dire the witness outside the presence of the jury and concluding that its “refusal to permit such cross-examination without having full knowledge of what such cross-examination might elicit was improper.” We reversed the judgment and remanded the case for a new trial because: “When a party has not been permitted fair and full cross-examination of a witness upon the subjects of his examination in chief . . . [the] denial of this right is . . . prejudicial and requires reversal by this court.” (Internal quotation marks omitted.) Id.

“[T]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . . . Therefore, on appeal, we . . . must determine whether the trial court’s decision denying the request for a continuance was arbitrary or unreasonabl[e].” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 261 Conn. 708, 711 805 A.2d 705 (2002). “Every reasonable presumption must be made in favor of the proper exercise of the trial court’s discretion.” State v. Wallace, 181 Conn. 237, 240, 435 A.2d 20 (1980). To show that the court abused its discretion in denying the motion for a continuance, the defendant must demonstrate that (1) the court acted arbitrarily and (2) the denial prejudiced his ability to present a defense. See Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 52, 634 A.2d 870 (1993).

In denying the defendant’s motion for a continuance, the court reasoned that the defendant had had an opportunity to question the plaintiff about his health and medical conditions during the plaintiffs deposition. Although that was true, it is unreasonable that the failure to learn of a potentially relevant fact during discovery precludes a continuance when the fact is revealed shortly before or at the time of trial. One reason for granting a continuance is to “minimize the possibly prejudicial effect of a late disclosure . . . .” Rullo v. General Motors Corp., 208 Conn. 74, 79, 543 A.2d 279 (1988). The defendant had no reason to suspect that the plaintiff had hepatitis, and, therefore, would not have specifically questioned him about it during the deposition.

The court also noted that there was no duty on the plaintiffs part to disclose his hepatitis infection because it was not related to the injuries he claimed to have sustained in the accident. When a plaintiff makes a claim for damages on the basis of his inability to participate in his usual activities, any medical condition that has any potential bearing on his health prior to the accident should be disclosed. That is especially true in the present case, where the defendant conceded negligence, leaving only the issue of damages before the jury. The court did not have a reasonable basis to deny the defendant’s request for a continuance. We conclude, therefore, that the court acted arbitrarily and abused its discretion in denying the motion for a continuance.

We must now determine whether the court’s abuse of discretion was harmful to the defendant. As we have stated, the court sought arguments from the defendant as to the probative value of the hepatitis evidence, denied the defendant additional time to comply with that request and then excluded the evidence as prejudicial. Although it is speculative as to whether the defendant would have uncovered anything concerning the impact of hepatitis on the plaintiffs life, he was never given the chance to make such a discovery. If the defendant had obtained a continuance, he would have had an opportunity to investigate the impact of the hepatitis on the plaintiff, as well as to consult with experts on that issue. Therefore, if the defendant had been given the opportunity to produce evidence that hepatitis had impaired the plaintiff in the past or would continue to plague him in the future, such evidence may have had an impact on the amount of the plaintiffs damages. We find that the defendant’s defense was prejudiced by the court’s abuse of discretion.

The judgment is reversed in part and the case is remanded for a new hearing in damages.

In this opinion the other judges concurred.

       Reynaldo Ramos, the driver of the vehicle that was occupied by Ramirez, originally was a plaintiff, but settled his claim during jury selection and thereafter withdrew the action. We therefore refer in this opinion to Ramirez as the plaintiff. Although Reynaldo Ramos and Benito Ramos, Jr., share the same surname, they are not related. The estate of Benito Ramos, Sr., also was named in the complaint as a defendant. The jury returned its verdict against Benito Ramos, Jr., only. We therefore refer in this opinion to Benito Ramos, Jr., as the defendant.

       Benito Ramos, Sr., who owned the automobile that was driven by the defendant, was not in the ear at the time of the accident. Ramos, Sr., died after the accident and, prior to trial, Anthony Santoro was appointed the administrator of the Ramos, Sr., estate.

       The defendant’s counsel stated: “I would have asked the witness questions regarding the effect of the hepatitis on his lifestyle . . . and the impact that this had on his basic enjoyment of life, and what his perception is of his prognosis. These are things that all relate to the condition that I didn’t know about until just over twenty-four hours ago. . . . [Wjhat I also would like to do ... is have an extension of time to continue the trial to get the expert evidence on that because I think it is . . . necessary for a complete understanding by the jury of the issues.”

       In Mercer, our Supreme Court described the voir dire of the jurors as follows: “Several volunteered that they believed that the issue was wholly irrelevant to the question of the defendant’s guilt. One juror expressed sympathy toward the defendant. . . . The remaining jurors stated that the defendant’s condition would not affect their judgment and that they were not concerned for their own health. The record thus discloses no evidence that the jurors who sat on the defendant’s case were prejudiced by the knowledge that he supposedly suffered from AIDS.” State v. Mercer, supra, 208 Conn. 62.

       The relevance of the plaintiffs health on the jury’s determination of damages was highlighted by the court’s charge to the jury, which stated in relevant part: “You will also consider the particular condition of strength, health and physical stamina of this particular plaintiff as bearing upon the probable duration of his life, whether longer or shorter than the average for a person of his age, as given in the expectancy table.”


author: BISHOP, J.

text:
    LINDA BEHRNS v. RONALD BEHRNS
    (AC 23611)
    Schaller, Dranginis and Bishop, Js.
    Argued September 19
    officially released November 25, 2003

      James H. Lee, for the appellant (plaintiff).

      Veronica E. Reich, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Linda Behms, appeals from the trial court’s denial of her motion for contempt in which she alleged that the defendant, Ronald Behms, had failed to pay alimony and child support in accordance with the terms of the marital dissolution judgment. The dispositive issue in this appeal is whether the trial court correctly construed the parties’ marital dissolution agreement, which was incorporated into the dissolution judgment, as self-executing. The plaintiff contends that the court improperly concluded that the agreement was self-executing. We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On November 12, 1986, the court rendered judgment dissolving the marriage of the parties. The judgment incorporated a written dissolution agreement, which is the subject of this appeal. Pursuant to the dissolution agreement and the subsequent judgment, the defendant was obligated to pay to the plaintiff $815 every other week as alimony and $325 every other week as child support. Both of those provisions were subject to reductions as outlined in the agreement. Relevant to this appeal is § 5.3 of the agreement, which sets forth a formula under which the payments may increase or decrease. Section 5.3 of the agreement states that “[a]ll the payments pursuant to [this section], shall increase or decrease, by an amount equal to the cost of living as measured by the Consumer Price Index [price index], or the percentage yearly increase or decrease in the [defendant’s] salary and wages, whichever is less

When the parties’ marriage was dissolved, the defendant was employed by the GTE Corporation. In 1990, however, the defendant lost his job. From 1990 forward, the defendant’s tax returns indicate that he has had no employment income. Since 1990, the defendant has only sporadically made alimony and child support payments. On April 10, 2001, the plaintiff filed a postjudgment motion for contempt in which she alleged that there was an arrearage of $56,237 in past due alimony and $36,750 in child support. Testimony was heard on July 8 and 9, 2002.

At the hearing, the defendant testified that upon losing his job in 1990 and without further employment, he understood the agreement to permit him, without recourse to the court, to reduce his alimony and child support payments to zero. The defendant interpreted the clause in § 5.3 of the agreement, “whichever is less,” to permit him to make no alimony or child support payments when he lost employment income, and he believed that he was not required to first seek a modification in court. The plaintiff, on the other hand, testified that she understood that portion of the agreement to obligate the defendant to continue paying child support and alimony in amounts reduced only by the percentage reduction in his employment earnings or the percentage reduction in the price index, whichever percentage reduction was less. On October 4,2002, the court denied the plaintiffs motion for contempt, finding that the dissolution agreement was self-executing and that under the terms of the agreement and the judgment, the defendant did not owe any alimony or child support. This appeal followed.

The plaintiff argues that it was an abuse of discretion by the court to deny her motion for contempt. Specifically, she argues that the agreement was not self-executing and that the defendant was required to seek an order modifying the judgment instead of unilaterally reducing the alimony and child support payments to zero. We agree.

We begin our analysis by addressing the appropriate standard of review. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order. To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . Here, the [plaintiffs] argument specifically attacks the factual findings that the court relied on to conclude that the [defendant] was not in contempt. Therefore, in addition to reviewing the propriety of the court’s decision as a general matter, we first review the trial court’s factual determinations. In so doing, we apply our clearly erroneous standard, which is the well settled standard for reviewing a trial court’s factual findings. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) Richards v. Richards, 78 Conn. App. 734, 741-42, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003).

The resolution of this appeal turns on the question of whether the dissolution agreement, and therefore the judgment, is self-executing. In answering that question, we are guided by the holding of our Supreme Court in Eldridge v. Eldridge, 244 Conn. 523, 710 A.2d 757 (1998). In Eldridge, our Supreme Court reiterated the general proposition that “court orders must be complied with until they are modified by a court or successfully challenged.” (Internal quotation marks omitted.) Id., 530. In Eldridge, our Supreme Court upheld that portion of the trial court’s determination that the dissolution decree was not self-executing. Id., 529-32. Subsequently, in Sablosky v. Sablosky, 258 Conn. 713, 720, 784 A.2d 890 (2001), relying on Eldridge, our Supreme Court stated that “where there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather then resort to self-help.” Later, in a non-family matter, our Supreme Court further elucidated the underlying basis of its decisions in Eldridge and Sablosky as follows: “Furthermore, although we concluded in Sablosky that the public policy in favor of encouraging parties to seek judicial resolution of ambiguous judgments rather than resort to self-help was particularly compelling in family cases; [id.] 720-21; nothing in that case suggests that the same policy is not a consideration in nonfamily cases.” AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 245-46, 796 A.2d 1164 (2002).

The underlying facts in Eldridge are particularly germane to our discussion. In Eldridge, the husband was obligated to pay periodic unallocated alimony and child support to his former wife. Eldridge v. Eldridge, supra, 244 Conn. 525. The agreement and judgment provided that in the event that the wife’s gross annual earnings exceeded $25,000, one half of the amount by which her earnings exceeded $25,000 would be deducted from the periodic unallocated alimony. Id. The Supreme Court upheld that portion of the trial court’s determination that this provision was not self-executing and that the husband was required to obtain court approval of any modification of the court’s financial orders. Id., 531-32. The principal enunciated in Eldridge and Sablosky that if the terms of an agreement are ambiguous, its provisions are not self-executing leads us to the conclusion that the agreement at hand, considerably less clear than the Eldridge agreement, is similarly not self-executing.

Section 5.3 of the agreement sets forth a complicated formula for determining an increase or decrease in the child support and alimony payments. Section 5.3 requires a calculation based on the percentage change in the price index and the defendant’s wages and salary. It is not clear from the language of § 5.3 whether that calculation is based on the base payment set forth in the rest of the agreement or whether the calculation is based on the previous year’s payment adjusted as per the formula. If the Eldridge formula, which was arguably clearer, was determined not to be self-executing, then this more complex provision cannot be self-executing.

An examination of the cases in which this court has found an order to be self-executing further convinces us that this order is not self-executing. See, e.g., Stein v. Stein, 49 Conn. App. 536, 540, 714 A.2d 1272 (1998) (provision that terminates alimony when plaintiff obtained full-time employment self-executing); DeMa-ria v. DeMaria, 47 Conn. App. 729, 734, 707 A.2d 741 (1998) (provision that terminates alimony upon cohabitation self-executing), rev’d on other grounds, 247 Conn. 715, 724 A.2d 1088 (1999). Unlike the agreement in this case, the reductions in payments in both Stein and DeMaria were contingent on definite and discemable events. In addition to the complicated mathematical computation, the agreement in this instance also contains an ambiguity in § 5.3 as to what the term “whichever is less” refers. The defendant testified that he interpreted the phrase to mean that he was required to pay whichever amount was less, and the plaintiff interpreted the language to mean that he was to increase or decrease his payments by the lesser of the percentage change in the price index or in his salary. Both parties attached a different meaning to the words in the agreement, thus, further complicating the potential for ready calculation. When there is an ambiguous term, we will not countenance one party’s interpreting the term and undertaking unilateral action to the detriment of the other party. In such a circumstance, the party seeking to alter payments must seek the assistance of the court. See Sablosky v. Sablosky, supra, 258 Conn. 720.

We conclude that the agreement was not self-executing and that the defendant was required, therefore, to have sought a modification of the agreement rather than resorting to self-help. In light of that conclusion, the court’s findings are clearly erroneous. Consequently, we conclude that it was an abuse of discretion to deny the plaintiffs postjudgment motion for contempt.

The judgment is reversed and the case is remanded with direction to conduct a new hearing on the plaintiffs motion for contempt.

In this opinion the other judges concurred.

       The plaintiff also claims that the court improperly construed the dissolution agreement and the judgment of dissolution to permit the elimination of child support, the court improperly refused to decide the plaintiffs motion for reargument and the court improperly interpreted the phrase “whichever is less” in the separation agreement. Because we conclude that the separation agreement is not self-executing, we do not reach those issues. We anticipate that on remand, the trial court will hear testimony and consider evidence in the process of determining the meaning and import of the palpably ambiguous language that the dissolution agreement contains.

       Upon the first child’s reaching the age of eighteen, the child support was to be reduced to $175 every other week, and on the other child’s reaching eighteen, the payments would cease. Upon cohabitation by the wife, the alimony would be eliminated, and the child support would be $250 every other week until all children reached the age of eighteen.

       The plaintiff also claimed that the defendant owed $2250 for the children’s insurance and unreimbursed medical and dental expenses. The denial of that claim is not presently before this court.


author: DRANGINIS, J.

text:
    BRIAN NIBLACK v. COMMISSIONER OF CORRECTION
    (AC 23580)
    Dranginis, West and McLachlan, Js.

      Submitted on briefs October 30
    officially released November 25, 2003

      Salvatore C. Adamo, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Nancy L. Chu-pak, assistant state’s attorney, and Linda N. Howe, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

DRANGINIS, J.

The petitioner, Brian Niblack, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that it was improper for the court to dismiss his amended petition by concluding (1) that he had defaulted procedurally and (2) that his guilty plea was knowing, intelligent and voluntary despite his claim that he was denied the right to effective assistance of counsel. In his principal brief to this court, the petitioner failed to address whether the habeas court abused its discretion in denying his petition for certification to appeal. We therefore dismiss the appeal.

The petitioner was sentenced to no more than fifty years in the custody of the respondent commissioner of correction (commissioner) for having committed a number of separate crimes in New Haven and Milford. The procedural path he has taken to reach this court is tortuous. We refer to the relevant facts found by the habeas court in its well researched and well reasoned memorandum of decision.

On October 16,1989, the petitioner sought to have his second defense attorney replaced because the attorney refused to file an interlocutory appeal from the petitioner’s second probable cause hearing on murder charges. The trial court denied the petitioner’s request, informing him that he could not file an appeal until after he was sentenced, which is the time judgment is rendered. On October 27, 1989, in the judicial district of New Haven, the petitioner pleaded guilty, pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of murder and one count of escape from custody. The petitioner’s Alford plea was made pursuant to a plea agreement, to wit, in return for pleading guilty, the petitioner would receive concurrent sentences for the murder and escape from custody charges, and for two charges of robbery in the first degree then pending against him in the judicial district of Ansonia-Milford. The petitioner subsequently pleaded guilty to the charges of robbery in the first degree. On December 15, 1989, in accordance with the plea agreement, the petitioner was given a total effective sentence not to exceed fifty years in the custody of the commissioner. Prior to sentencing, the petitioner did not file a motion to withdraw his guilty pleas.

The petitioner filed a direct appeal from his judgments of conviction. See State v. Niblack, 220 Conn. 270, 596 A.2d 407 (1991). In his direct appeal, the petitioner claimed that he was denied a valid probable cause hearing and that the trial court improperly accepted his guilty plea because it was not knowing, intelligent and voluntary for three reasons: The court had participated in the plea process and, thus, had coerced his Alford plea; there was no factual basis that he had acted with the requisite intent to commit murder; and the court failed to keep a promise made to him as part of the plea agreement. Id., 274-75. Our Supreme Court affirmed the petitioner’s convictions because (1) he had waived his right to appeal any nonjurisdictional irregularities in the probable cause hearing by entering a nonconditional plea of guilty; id., 275-77; and (2) at trial, he failed to raise any of the reasons for which he claimed that his plea was not knowing, intelligent and voluntary. Id., 277-78. Although the petitioner asked that his claim concerning his plea be reviewed pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), our Supreme Court concluded that his claims were not of constitutional magnitude and that he therefore had failed to meet the second prong of Golding, See State v. Niblack, supra, 281.

In July, 1996, the petitioner, acting pro se, filed a petition for a writ of habeas corpus, which later was consolidated with a petition he filed in December, 1996. The petitioner alleged that he had been denied the constitutional right to the effective assistance of counsel because counsel failed (1) to communicate in a manner so that the petitioner understood the consequences of his plea agreement, (2) to research the effect the petitioner’s plea agreement had on his right to appeal and (3) to advise him of the option of entering a conditional plea of nolo contendere.

In response to the amended petition, the commissioner asserted that the petitioner had failed to allege and to demonstrate both cause and prejudice arising from the failure to raise the constitutional claim in the trial court and on appeal. The petitioner replied that the procedural defaults at trial and on appeal were the result of ineffective assistance of counsel, governmental interference with his right to raise the issues and prosecutorial misconduct. With regard to the petitioner’s claim that he was denied the constitutional right to the effective assistance of counsel, the habeas court concluded that the petitioner had failed to sustain his burden to demonstrate both the cause of his failure to challenge the constitutionality of his guilty plea at trial and on appeal, and the prejudice that resulted therefrom.

More specifically, the court found that at the petitioner’s sentencing, his attorney had indicated to the trial court that the evidence the state would present at trial was overwhelming, although the petitioner claimed the shooting at issue was in self-defense. Furthermore, on direct appeal, the petitioner had attacked the probable cause hearing on three grounds, all of which were of an evidentiary nature. The court concluded, as a matter of law, that the petitioner had failed to demonstrate that there was a reasonable probability that he would prevail on any of his probable cause claims. With respect to the petitioner’s claim that his attorney had failed to advise him of his option to enter a conditional plea of nolo contendere, the court credited the testimony of his attorney, i.e., that the plea agreement with the state precluded the petitioner from entering a conditional plea.

The court also concluded that the petitioner had failed to show cause and prejudice as a result of the procedural default and denied the petition for a writ of habeas corpus. The petitioner filed a petition for certification to appeal to this court, which the habeas court denied, and the petitioner appealed to this court.

The commissioner, in his appellate brief, has argued that we should not reach the merits of the appeal because the petitioner, in his principal brief, failed to address the court’s denial of his petition for certification to appeal, which is a threshold issue. The petitioner, in his reply brief, however, addressed the denial of his petition for certification to appeal. The appellate courts of this state have often held that an appellant may not raise an issue for the first time in a reply brief. See State v. Wilson, 242 Conn. 605, 607-608 n.5, 700 A.2d 633 (1997); State v. Edward B., 72 Conn. App. 282, 302 n.12, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 276 (2002). An appellant’s claim must be framed in the original brief so that it can be “responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.” (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 164, 783 A.2d 1226 (2001). We decline to consider the argument concerning this matter in the petitioner’s reply brief. See Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 7-8, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002).

We conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right, and, further, that he has faded to sustain his threshold burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner was represented by three different attorneys during the course of the probable cause hearings, when he entered his guilty pleas, at sentencing and on appeal.

       The finding of probable cause to prosecute after the first hearing was vacated because the state failed to provide the petitioner with certain exculpatory evidence prior to the hearing.

       See North Carolina v. Alford, supra, 400 U.S. 25 (accused may consent voluntarily, knowingly, understandingly to imposition of prison sentence while refusing to admit participation in crime).

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). When a petitioner fails to make the required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).
      The United States Supreme Court stated in adopting the cause and prejudice standard that “[a] State’s procedural rules serve vital purposes at trial, on appeal, and on state collateral attack. . . . [Such rules afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant’s claim and to retry the defendant effectively if he prevails in his appeal. . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.” (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 490-91,106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).

       The court found that there was no evidence to support the petitioner’s claim of governmental interference and prosecutorial misconduct.

       Practice Book § 721, now § 39-27, provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows ... (4) The plea resulted from the denial of effective assistance of counsel

       “Our case law holds that [a] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of ineffective assistance.” (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 177, 786 A.2d 1171 (2001).