author: BEAR, J.

text:
    ROBERT J. CASSOTTO v. TIMOTHY THIBAULT
    (AC 32324)
    Lavine, Bear and Dupont, Js.
    Argued February 14
    officially released September 13, 2011

      John R. Williams, for the appellant (plaintiff).

      Nicole M. Rothgeb, with whom, on the brief, was Gregg D. Adler, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Robert J. Cassotto, appeals from the May 25, 2010 judgment of nonsuit rendered by the trial court on his amended complaint (third complaint), which alleged a cause of action for intentional infliction of emotional distress against the defendant, Timothy Thibault. The court rendered judgment after the plaintiff declined to revise his third complaint in accordance with the order of the court. On appeal, the plaintiff claims that the court “erred in holding that the individual paragraphs of the third complaint should be deleted because no one of them, alone, was ‘extreme and outrageous’ and in refusing to consider whether they met that test when read as an entire pattern of conduct.” We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On December 23,2008, the plaintiff commenced this action by service of process, alleging intentional infliction of emotional distress by the defendant, whom the plaintiff alleged to be an official in the labor union that represents both the plaintiff and the defendant (first complaint). On March 16,2009, the defendant filed a request to revise the first complaint, requesting, inter alia, that the plaintiff specify whether he was asserting more than one cause of action, that he separate his causes of action and that he provide the material facts on which he was basing his allegations. More specifically, the defendant requested in relevant part that the plaintiff provide the specific material facts on which he was basing the allegations contained in paragraphs 3, 5, 6 and 7, including the nature of the workplace violence of which the plaintiff complained, the names of the individuals who were subjecting the plaintiff to such workplace violence, the nature of the grievances the defendant allegedly refused to file on behalf of the plaintiff, the subject matter of the complaints the defendant was accused of not filing, the manner by which the defendant was alleged to have threatened and intimidated the plaintiff and the names of people present when the defendant allegedly “publicly ridiculed” the plaintiff. The plaintiff did not object to the request to revise, and, on May 11,2009, he filed a one count revised complaint (second complaint) in which he eliminated several of the allegations that had been contained in the first complaint, namely, the allegations contained in paragraphs 3, 5 and 7 of the first complaint. He revised and realleged paragraph 6 of the first complaint as paragraph 4 of the second complaint.

On May 28, 2009, the defendant filed a motion to strike the second complaint, on the ground that the plaintiffs single cause of action for intentional infliction of emotional distress as pleaded was legally insufficient. Oral argument was held on June 15,2009. On September 2, 2009, the court issued a memorandum of decision in which it granted the defendant’s motion to strike, stating that the allegations “simply cannot, as a matter of law, constitute behavior that is so outrageous and extreme as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Rather, the incidents complained of by the plaintiff are isolated, and occurred over the course of one and one-half years. Moreover, the demeaning statements made by the defendant occurred in the presence of an individual that the plaintiff did not, and still does not know, thereby detracting from the extreme and outrageous factor.”

On February 26, 2010, the plaintiff chose to replead by filing his third complaint, which set forth, inter alia, the same allegations that had been contained in the second complaint, which had been stricken as insufficient, and the same allegations that were present in the first complaint, which he had omitted from the second complaint. With the exception of one additional allegation in paragraph 9 that alleged, “[o]n or about August 1, 2008, the defendant physically assaulted the plaintiff, causing injury to the plaintiff’s back, pain and fear,” the third complaint is identical to the first complaint, which by virtue of the plaintiffs decision not to object to the defendant’s March 16,2009 request to revise, was ordered to be revised. See Practice Book § 10-37 (a) (“request shall be deemed to have been automatically granted by the judicial authority on the date of filing and shall be complied with by the party to whom it is directed within thirty days . . . unless . . . the party to whom it is directed shall file objection thereto”).

On March 11, 2010, the defendant filed another request to revise, this time directed at the third complaint. In this request to revise, the defendant sought the deletion of the allegations that previously had been stricken by the court by virtue of its granting the defendant’s motion to strike the second complaint, which now were realleged in paragraphs 4, 6 and 8 of the third complaint, arguing, inter alia, that “[b]ecause it has already been determined, as a matter of law, that [these] allegation[s] [do] not constitute extreme and outrageous conduct, [they] clearly [are] unnecessary, impertinent, immaterial and improper and must be deleted from the plaintiffs claim for intentional infliction of emotional distress.” Additionally, as he had done with the first complaint, the defendant again sought to have the plaintiff state the material facts on which he was basing many of the other allegations that were realleged in this third complaint.

The plaintiff objected to each of the defendant’s requests on various grounds, including that “it is proper to include the allegations of the previously stricken complaint, in addition to the new allegations, to determine whether the whole is extreme and outrageous.” (Emphasis in original.) Additionally, the plaintiff objected to the defendant’s request that the plaintiff set forth the material facts that support the remaining allegations on the ground that the additional material facts that the defendant was seeking were more appropriate for discovery than for the complaint. On April 23, 2010, the court overruled the plaintiffs objections without issuing a memorandum of decision. The plaintiff did not file a fourth complaint or any other pleading, and, on May 11, 2010, the defendant filed a motion for nonsuit, which, absent any objection by the plaintiff, was granted by the court on May 25, 2010. This appeal followed.

On appeal, the plaintiff claims that the court erred “in holding that the individual paragraphs of the amended complaint should be deleted because no one of them, alone, was ‘extreme and outrageous’ and in refusing to consider whether they met that test when read as an entire pattern of conduct.” The plaintiff argues that “the court picked away most of the factual allegations at an earlier stage of pleading by holding that, because those allegations standing alone had been deemed insufficiently ‘extreme and outrageous’ to state a claim, they could not be added to other factual claims but rather were deemed not to exist. Accordingly, the court ordered the plaintiff to remove them from his complaint by means of overruling objections to a request to revise.” We conclude that the plaintiff has failed to demonstrate that the court abused its discretion.

Although the plaintiff asserts that our standard of review in this case is plenary, following our Supreme Court’s decision in Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 276 n.ll, 943 A.2d 420 (2008), we conclude that the standard of review is abuse of discretion. “A trial court’s consideration of a request to revise and any objection thereto involves, inter alia, consideration of the factual allegations, the extent to which they are sufficiently precise or specific, and whether the allegations are unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper .... Practice Book § 10-35 (2). These considerations necessarily involve the trial court’s discretionary judgment.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 276 n. 11. “ As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue . . . is whether the trial court could have reasonably concluded as it did. . . . Further, [i]t is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial [court] to rule on an overlooked matter.” (Citation omitted; internal quotation marks omitted.) Id., 276. The court did not issue a memorandum of decision in this case, and the specific reasons for its rulings are not self-evident. Therefore, in order to agree with the plaintiffs claim, we would be required to speculate, which we cannot do; see In re Selena O., 104 Conn. App. 635, 644-45, 934 A.2d 860 (2007); about the basis for the court’s overruling the plaintiffs objections to the defendant’s March 11, 2010 request to revise. The lack of a proper basis in the record on which we may act is evident, especially in light of the plaintiffs repleading, verbatim, the exact allegations, with the exception of one new allegation, that previously were ordered revised after his failure to object to the defendant’s March 16, 2009 request to revise. Although we are aware of the specific grounds set forth in the defendant’s second request to revise and the objections offered thereto, we still are left to speculate as to why, specifically, the court overruled these objections. Accordingly, the plaintiff has failed to demonstrate that the court abused its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the plaintiffs first complaint, in which he was seeking compensatory and punitive damages in excess of $15,000, he set forth the following allegations:
      “1. The plaintiff is an adult citizen of the United States who resides in Winsted, Connecticut.
      “2. The defendant is an adult citizen of the United States who resides in Torrington, Connecticut.
      “3. On or about January 20, 2006, the defendant, who was an official of the plaintiffs labor union, refused to file or process a meritorious grievance on behalf of the plaintiff concerning workplace violence to which the plaintiff was being subjected.
      “4. On or about August 18, 2006, the defendant attempted to physically assault the plaintiff with a cart.
      “5. On or about September 14, 2007, the defendant, having become Chief Steward in the plaintiffs union, maliciously refused to file or process several meritorious grievances submitted by the plaintiff.
      “6. On or about September 20,2007, the defendant again refused to accept the plaintiffs complaints and called him ‘a fucking liar’ in the presence of others.
      “7. On or about January 10,2008, at their workplace, the defendant threatened the plaintiff and subjected him to physical intimidation.
      “8. On or about March 25, 2008, the defendant publicly ridiculed the plaintiff, stating that if the plaintiffs job responsibilities were taken away from him, ‘at least we’ll get some work done now!’
      “9. The conduct of the defendant described above was extreme and outrageous and was carried out with the knowledge and intention that it would cause the plaintiff to suffer emotional distress.
      “10. As a result, the plaintiff suffered severe emotional distress.”

       In the second complaint, the plaintiff alleged the following:
      “1. The plaintiff is an adult citizen of the United States who resides in Winsted, Connecticut.
      “2. The defendant is an adult citizen of the United States who resides in Torrington, Connecticut.
      “3. On or about August 18, 2006, the defendant attempted to physically assault the plaintiff with a cart.
      “4. On or about September 20, 2007, the defendant called the plaintiff ‘a fucking liar’ in the presence of third persons whose identities are not presently known to the plaintiff.
      “5. On or about March 25, 2008, the defendant publicly ridiculed the plaintiff in the presence of third persons whose identities are not presently known to the plaintiff, stating that if the plaintiffs job responsibilities were taken away from him, ‘at least we’ll get some work done now!’
      “6. The conduct of the defendant described above was extreme and outrageous and was carried out with the knowledge and intention that it would cause the plaintiff to suffer emotional distress.
      “7. As a result, the plaintiff suffered severe emotional distress.”

       There is nothing in the file to indicate why it took more than five months for the plaintiff to replead or why the defendant did not file a motion for judgment during that time. See Practice Book § 1044 (“[wjithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint . . . has been stricken, and the party whose pleading . . . has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint”).

         Specifically, the third complaint sets forth the following:
      “1. The plaintiff is an adult citizen of the United States who resides in Winsted, Connecticut.
      “2. The defendant is an adult citizen of the United States who resides in Torrington, Connecticut.
      “3. On or about January 20, 2006, the defendant, who was an official of the plaintiffs labor union, refused to file or process a meritorious grievance on behalf of the plaintiff concerning workplace violence to which the plaintiff was being subjected.
      “4. On or about August 18, 2006, the defendant attempted to physically assault the plaintiff with a cart.
      “5. On or about September 14, 2007, the defendant, having become Chief Steward in the plaintiffs union, maliciously refused to file or process several meritorious grievances submitted by the plaintiff.
      “6. On or about September 20,2007, the defendant again refused to accept the plaintiffs complaints and called him ‘a fucking liar’ in the presence of others.

        “7. On or about January 10,2008, at their workplace, the defendant threatened the plaintiff and subjected him to physical intimidation.
      “8. On or about March 25, 2008, the defendant publicly ridiculed the plaintiff, stating that if the plaintiffs job responsibilities were taken away from him, ‘at least we’ll get some work done now!’
      “9. On or about August 1, 2008, the defendant physically assaulted the plaintiff, causing injury to the plaintiffs back, pain and fear.
      “10. The conduct of the defendant described above was extreme and outrageous and was carried out with the knowledge and intention that it would cause the plaintiff to suffer emotional distress.
      “11. As a result, the plaintiff suffered severe emotional distress.”

       The court overruled seven of the ten objections and determined that no action was necessary on the three remaining objections.

       We find it particularly troublesome that, after declining to object to the defendant’s request that the plaintiff revise his first complaint by, inter alia, providing more detailed facts regarding the allegations set forth in those paragraphs, the plaintiff, instead, chose to eliminate those allegations from his second complaint only to reallege each and every one of them, verbatim, and thus unrevised, in his third complaint. If a request to revise is not objected to, it is deemed granted by the judicial authority. See Practice Book § 10-37 (a) (“request shall be deemed to have been automatically granted by the judicial authority . . . unless . . . the party to whom it is directed shall file objection thereto”). Here, although the requested revision was deemed granted, the plaintiff, in his third complaint, realleged, without any further specificity, the same allegations as he had in his first complaint.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    EDDIE RODRIGUEZ v. COMMISSIONER OF CORRECTION
    (AC 31539)
    Lavine, Robinson and Peters, Js.

      Argued May 31
    officially released September 13, 2011

      April E. Brodeur, special public defender, for the appellant (petitioner).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Eddie Rodriguez, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance due to an actual conflict of interest. We agree that the court abused its discretion in denying certification to appeal; nevertheless, we conclude that the court properly determined that the petitioner had failed to prove that his trial counsel rendered ineffective assistance. Accordingly, we affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. In connection with an incident involving the petitioner’s estranged girlfriend, which occurred in October, 1990, the petitioner was charged with burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) and 53a-59 (a) (1), robbery in the third degree in violation of General Statutes (Rev. to 1989) § 53a-136 (a), interfering with an officer in violation of General Statutes § 53a-167a (a) and carrying a dangerous weapon in violation of General Statutes § 53-206. On May 29,1991, attorney Frank Cannatelli filed an appearance on behalf of the petitioner.

Prior to representing the petitioner, Cannatelli had been charged with two counts of bribery of a witness in an unrelated case. Cannatelli pleaded not guilty to both charges and elected a jury trial. In October, 1991, a jury trial was conducted in Meriden. On October 29, 1991, the jury acquitted Cannatelli of both charges.

Jury selection for the petitioner’s criminal trial in New Haven commenced on November 26, 1991. On the first day of jury selection, the petitioner voiced concern to the trial court that Cannatelli’s recent criminal prosecution created a conflict of interest. After inquiring into the petitioner’s claim, the court was not persuaded that cause existed to delay the proceedings. Thereafter, a jury was selected and the presentation of evidence began on December 2,1991. The jury returned a verdict of guilty on all counts, and the petitioner was sentenced on March 6,1992, to a term of imprisonment of sixteen years, execution suspended after nine years, and five years of probation. The petitioner appealed from his conviction to this court, which affirmed the judgment. State v. Rodriguez, 61 Conn. App. 700, 767 A.2d 756 (2001).

In 2002, after he had commenced his probation, the petitioner was arrested and charged with violating the terms of his probation in violation of General Statutes § 53a-32. In 2003, the petitioner was found to have violated his probation, and the court sentenced him to serve the remaining seven years of his unexecuted sentence.

On December 16, 2008, the petitioner filed his second amended petition for a writ of habeas corpus, claiming that Cannatelli had rendered ineffective assistance due to an actual conflict of interest. The petitioner alleged that Cannatelli’s criminal prosecution shortly before the petitioner’s criminal trial had created an inherent conflict of interest that adversely affected Cannatelli’s ability to represent the petitioner in his criminal trial. In his pretrial brief, the petitioner explained that Cannatelli’s criminal prosecution constituted a conflict of interest because it prevented him from preparing for the petitioner’s criminal trial. Additionally, the petitioner contended that Cannatelli’s criminal prosecution constituted a conflict of interest pursuant to our Supreme Court’s decision in Phillips v. Warden, 220 Conn. 112, 595 A.2d 1356 (1991).

On April 29, 2009, the habeas court conducted an evidentiary hearing, at which Cannatelli, the petitioner and George Gray, an investigator with the office of the chief public defender, testified, and the court received exhibits. After considering the evidence, the court found that Cannatelli “was prepared and ‘ready to go to trial’ on [the petitioner’s] case.” The court also found that the media coverage of Cannatelli’s prosecution was minimal, and that Cannatelli, during voir dire in the petitioner’s criminal trial, had asked each venireperson generally whether he or she had any prior knowledge of Cannatelli and that no venireperson indicated that he or she had any such knowledge.

On the basis of these findings, the habeas court concluded that the petitioner had failed to establish that Cannatelli was actively representing conflicting interests at the time that he represented the petitioner. The court also concluded that the facts of the petitioner’s case did not establish a conflict of interest pursuant to Phillips v. Warden, supra, 220 Conn. 112. The court then denied the petitioner’s second amended petition. Subsequently, the petitioner filed a petition for certification to appeal, which the court denied on August 19, 2009. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the well established standard of review and legal principles that guide our resolution of the present appeal. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860,112 L. Ed. 2d 956 (1991). The required determination may be made on the basis of the record before the habeas court and applicable legal principles. See Simms v. Warden, supra, 617. If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Id., 612. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in Lozada and adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification.” (Citation omitted; internal quotation marks omitted.) Bewry v. Commissioner of Correction, 121 Conn. App. 259, 265-66, 994 A.2d 697, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010).

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 87 Conn. App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). “As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.” (Internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, “[t]he underlying right to conflict free representation is effective assistance of counsel.” State v. Rodriguez, supra, 61 Conn. App. 706.

“In a case of a claimed conflict of interest ... in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Phillips v. Warden, supra, 220 Conn. 132-33; Anderson v. Commissioner of Correction, 127 Conn. App. 538, 549, 15 A.3d 658, cert. granted on other grounds, 301 Conn. 921, 22 A.3d 1280 (2011). “Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel’s performance was deficient because of an actual conflict of interest, prejudice does not need to be established.” Zoilo v. Commissioner of Correction, 93 Conn. App. 755, 757, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006); see also Phillips v. Warden, supra, 133-34. Instead, “[w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties.” (Internal quotation marks omitted.) Phillips v. Warden, supra, 133; Anderson v. Commissioner of Correction, supra, 549; see Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“[prejudice is presumed ... if the [petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance” [internal quotation marks omitted]); State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (same), cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).

“On appellate review, the historical facts found by the habeas court may not be disturbed unless they were clearly erroneous .... When, as in this case, those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review.” (Citation omitted; internal quotation marks omitted.) Adorno v. Commissioner of Correction, supra, 66 Conn. App. 194.

On appeal, the petitioner claims that the habeas court abused its discretion in denying certification to appeal. The petitioner also claims that the habeas court improperly rejected his claim that Cannatelli rendered ineffective assistance due to an actual conflict of interest. Specifically, the petitioner claims that Cannatelli’s prosecution resulted in a conflict of interest pursuant to Phillips v. Warden, supra, 220 Conn. 112. Additionally, the petitioner claims that there was a conflict of interest because (1) Cannatelli’s prosecution prevented him from preparing properly for the petitioner’s criminal trial and (2) Cannatelli sought to protect his own reputation during voir dire.

I

The petitioner claims that Cannatelli’s prosecution created a conflict of interest pursuant to Phillips v. Warden, supra, 220 Conn. 112. Specifically, the petitioner argues that because Cannatelli was prosecuted in the same judicial district as the petitioner, there existed a constitutionally impermissible risk that the jury would identify the conduct of Cannatelli with the conduct of the petitioner and would impute the improprieties of Cannatelli to the petitioner. According to the petitioner, because of this constitutionally impermissible risk, it was a breach of the duty of loyalty, and thus a conflict of interest, for Cannatelli to represent the petitioner. Although we find that the habeas court abused its discretion in denying certification based on this claim, we nevertheless conclude that the claim fails on its merits.

We begin our analysis by undertaking a review of our Supreme Court’s decision in Phillips v. Warden, supra, 220 Conn. 112. In Phillips, the petitioner was convicted of sexual assault, unlawful restraint and burglary in connection with a violent attack against an elderly woman. Id., 114,116,140. Throughout his criminal trial, the petitioner was represented by Bernard L. Avcollie; id., 114; an attorney who “had been convicted of murdering his wife by strangling her to death, a crime of violence of the first order of seriousness . . . .” Id., 140. Avcollie had been tried and convicted in the same judicial district where the petitioner’s criminal trial took place, and he was appealing his conviction at the same time he was representing the petitioner. Id., 117, 122. In addition, Avcollie’s “indictment, trial and conviction, and the ensuing appeals . . . had been the subject of widespread publicity” in the judicial district for over seven years. Id., 140.

Following his conviction, the petitioner filed a petition for a writ of habeas corpus, alleging, inter alia, that he had been denied the effective assistance of trial counsel due to an actual conflict of interest. Id., 114, 116-17. On appeal from the habeas court’s judgment denying the petition for a writ of habeas corpus, the petitioner claimed before this court that “it was a violation of Avcollie’s duty of loyalty, and thus a conflict of interest, to represent the petitioner in the [same] judicial district [where Avcollie had been convicted of murder] because of the risk that the potential jurors would know of Avcollie’s murder conviction and hold it against the petitioner.” (Emphasis added.) Id., 128-29. This court disagreed, concluding that the representation did not constitute a conflict of interest. Id., 129-30.

On appeal from this court’s decision, our Supreme Court recognized that a conflict of interest may arise in “situations where the intrinsic situation of the lawyer, when viewed in the context of his Ghent’s cause, requires that he withdraw from representing the client because of the impermissible risk that the jury will identify his conduct with that of this client. . . . Thus, an attorney may be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 138-39.

Thereafter, our Supreme Court concluded that Avcollie’s representation of the petitioner created a conflict of interest, reasoning as follows: “Surely no other criminal defendant in the history of Connecticut jurisprudence— indeed, in the history of American jurisprudence—has ever had to face a jury in a trial for serious and violent criminal offenses, while represented by a convicted murderer, whose conviction was likely to have been known by the jurors, in the judicial district where both the murder and conviction took place, where both the murder and its ensuing legal aftermath had been widely reported in the press, and when the murderer was literally on his own way to prison. Surely, no other attorney in the history of Connecticut or American jurisprudence has ever brought with him to the criminal jury courtroom the potential for prejudice to his client that Avcollie brought to the . . . courtroom . . . [when he represented the petitioner]. Under these unique factual circumstances, we are constrained to conclude that there was a constitutionally impermissible risk that the petitioner’s jurors would identify Avcollie’s status as a convicted murderer with his Ghent’s status as an accused rapist, kidnapper and burglar, and that they would transfer to the petitioner the distaste or revulsion that they may have felt for his lawyer.” (Emphasis added.) Id., 140-41.

Turning to the petitioner’s substantive claim, we have been unable to locate any case in which either this court or our Supreme Court has addressed the issue of whether there was a constitutionally impermissible risk that the jury would identify the conduct of an attorney with his client and, consequently, impute the improprieties of the attorney to his client, when the attorney has been prosecuted but acquitted of a nonviolent and dissimilar crime in the same judicial district in which his client subsequently faced criminal prosecution. Because such a question has not yet been addressed by any appellate court of this state, we conclude that the ineffective assistance of counsel claim raised by the petitioner is adequate to deserve encouragement to proceed further. See Small v. Commissioner of Correction, 98 Conn. App. 389, 391-92, 909 A.2d 533 (2006) (concluding that claim deserved encouragement to proceed further when no appellate case had decided precise issues), aff'd, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). Therefore, we conclude that the habeas court abused its discretion in denying the petition for certification to appeal. See Lozada v. Deeds, supra, 498 U.S. 432; Simms v. Warden, supra, 230 Conn. 616.

Having determined that the habeas court abused its discretion in denying the petition for certification to appeal, we now consider whether the judgment of the habeas court should be reversed on the merits. The petitioner claims that the court improperly concluded that he was not deprived of the effective assistance of trial counsel due to an actual conflict of interest because there was a constitutionally impermissible risk that the jury would attribute the conduct of Cannatelli to the petitioner and would impute the improprieties of Cannatelli to the petitioner. According to the petitioner, such a constitutionally impermissible risk arose because Cannatelli was prosecuted in the same judicial district in which the petitioner subsequently faced criminal prosecution.

As our Supreme Court made clear in Phillips, however, it declined to establish a per se rule that a conflict of interest arises any time a lawyer who has been prosecuted or convicted of a crime subsequently represents a criminal defendant. Phillips v. Warden, 220 Conn. 142—43. Instead, as the court noted earlier in its opinion, and subsequently confirmed in its analysis, the determination of whether a conflict of interest exists must be made by considering “the facts of the particular case, viewed as of the time of counsel’s conduct.” (Internal quotation marks omitted.) Id., 134. Accordingly, we must undertake a careful consideration of the facts in the present case to determine whether a conflict of interest existed. See State v. Thompson, 118 Conn. App. 140, 150, 983 A.2d 20 (2009) (considering individual facts of case to determine whether conflict of interest existed pursuant to Phillips), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010).

After considering the facts, we cannot conclude that the petitioner has demonstrated that the constitutionally impermissible risk identified by our Supreme Court in Phillips existed in the present case. In reaching this conclusion, we acknowledge that the criminal prosecutions of both Cannatelli and the petitioner occurred in the same judicial district. We necessarily focus, however, on how the other facts in the present case differ markedly from the “unique factual circumstances” found in Phillips. Phillips v. Warden, supra, 220 Conn. 141.

First, unlike Avcollie, Cannatelli was acquitted prior to the petitioner’s criminal trial, and he did not have any appeals or other personal legal proceedings pending at the time of the petitioner’s criminal trial. Second, according to the habeas court’s factual findings, the media coverage of Cannatelli’s criminal case was “minimal” and therefore Cannatelli’s criminal case had a “much lower profile” than Avcollie’s criminal case, which “had been the subject of widespread publicity” for over seven years. Phillips v. Warden, supra, 220 Conn. 140. Third, in Phillips, Avcollie was prosecuted and convicted of “murdering his wife by strangling her to death, a crime of violence of the first order of seriousness, and the petitioner was charged with the crimes of sexual assault, unlawful restraint and burglary, arising out of a factual scenario of terrible violence against an elderly woman.” (Emphasis added.) Id. In the present case, however, the crimes with which Cannatelli was prosecuted (two counts of bribery of a witness) and the crimes with which the petitioner subsequently was prosecuted (burglary, attempt to commit assault, robbery, interfering with an officer and carrying a dangerous weapon) did not have the same overlap, either as to the circumstances in which they allegedly occurred or the type of charges. Finally, Cannatelli inquired as to whether any venireperson had any prior knowledge of him, whereas Avcollie never made any such inquiry, even though he “believed that most of the venirepersons knew of his murder conviction . . . .’’Id., 125. For these reasons, we conclude that the constitutionally impermissible risk identified by our Supreme Court in Phillips does not exist in the present case and, accordingly, the petitioner has failed to demonstrate a conflict of interest of constitutional magnitude. “To hold otherwise would overly expand the contours of the concept of a conflict of interest.” Adorno v. Commissioner of Correction, supra, 66 Conn. App. 195.

II

The petitioner next claims that Cannatelli was laboring under a conflict of interest because his criminal prosecution prevented him from preparing properly for the petitioner’s criminal trial. We are not persuaded.

“We have had occasion to point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction. . . . Cuyler v. Sullivan, [446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)]. To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party. ... A mere theoretical division of loyalties is not enough.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn. App. 584-85.

In his brief to this court, the petitioner offers only speculation as to the possibility that Cannatelli compromised the petitioner’s interests. He argues that in the weeks leading up to Cannatelli’s criminal trial, Cannatelli focused on his own trial to the exclusion of the petitioner’s criminal trial and, therefore, did not prepare properly for the petitioner’s criminal trial. The petitioner, however, has not pointed to a scintilla of evidence in the record to support his assertions or which indicates that Cannatelli did not undertake reasonable preparation for the petitioner’s criminal trial. In addition to not offering any evidence in support of his assertions, the petitioner has failed to undermine the habeas court’s factual finding that Cannatelli “was prepared and ‘ready to go to trial’ on [the petitioner’s] case.” Accordingly, the petitioner has failed to allege anything more than amere theoretical division of loyalties, which is insufficient to demonstrate an actual conflict of interest. See Santiago v. Commissioner of Correction, supra, 87 Conn. App. 585.

III

The petitioner finally claims that a conflict of interest existed because Cannatelli sought to protect his own reputation during voir dire. Specifically, the petitioner argues that Cannatelli would have asked the venirepersons more probing questions regarding his own prosecution had he not been concerned with protecting his own reputation “at the expense of the petitioner’s valuable right to individual, probing voir dire.” As the petitioner raises this claim for the first time on appeal, we decline to consider it.

“A petition for a writ of habeas corpus must set forth specific grounds for the issuance of the writ. Practice Book § 23-22 (1) specifically provides that the petition shall state the specific facts upon which each specific claim of illegal confinement is based and the relief requested .... A reviewing court will not consider claims not raised in the habeas petition or decided by the habeas court. . . . Appellate review of claims not raised before the habeas court would amount to an ambuscade of the [habeas] judge.” (Citations omitted; internal quotation marks omitted.) Henderson v. Commissioner of Correction, 129 Conn. App. 188, 197-98, 19 A.3d 705 (2011); see also Elsey v. Commissioner of Correction, 126 Conn. App. 144, 169-70, 10 A.3d 578 (“ [t]his court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding” [internal quotation marks omitted]), cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).

After reviewing the amended petition, we conclude that it fails to allege that Cannatelli had a conflict of interest and, consequently, rendered ineffective assistance, because he sought to protect his own integrity during voir dire at the expense of the rights or interests of the petitioner. Additionally, we have reviewed the pretrial briefs and transcript of the habeas trial but have found no mention of such a claim. Finally, the habeas court did not address this issue in its memorandum of decision. Accordingly, we decline to consider this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the petitioner’s term of incarceration expired in 2010, his appeal is not moot because he attacks the legality of his conviction, and he filed the second amended petition while in the custody of the respondent, the commissioner of correction. See, e.g., Haynes v. Bronson, 13 Conn. App. 708, 710-11, 539 A.2d 592 (1988).

       See Vazquez v. Commissioner of Correction, 123 Conn. App. 424, 425-26, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011).

       For a detailed account of the facts underlying these charges, see State v. Rodriguez, 61 Conn. App. 700, 702-704, 767 A.2d 756 (2001).

       Notably, in his direct appeal to this court, the petitioner claimed, inter alia, that the trial court had “improperly failed to conduct a hearing on the issue of inadequate representation, thus depriving [the petitioner] of his constitutional right to effective assistance of counsel.” State v. Rodriguez, 61 Conn. App. 700, 704, 767 A.2d 756 (2001). After considering the petitioner’s claim, this court concluded that the trial court had “not abuse [d] its discretion by failing to conduct a separate hearing as to a possible conflict of interest . . . .” Id., 709. Accordingly, this court rejected the petitioner’s claim.

       In her return to the petitioner’s second amended petition, the respondent, the commissioner of correction, alleged the special defenses of procedural default and res judicata. The habeas court rejected the respondent’s special defenses, and the respondent has not challenged those rulings on appeal.

       After reviewing the second amended petition, we conclude that the petitioner arguably raises this claim in subparagraphs (m) and (n) of paragraph nine.

       During the evidentiary hearing, the habeas court, pursuant to General Statutes § 51-344, took judicial notice of the fact that Meriden, the city in which Cannatelli was prosecuted, and New Haven, the city in which the petitioner’s criminal trial was held, are both in the judicial district of New Haven.

       Although we decline to consider this claim, we note that the petitioner has failed to point to any specific examples in the record to support his claim, relying instead on coryecture and speculation.


author: BISHOP, J.

text:
    CAROLINE HIRSCHFELD v. ROBERT B. MACHINIST
    (AC 31500)
    (AC 31562)
    Bishop, Bear and Pellegrino, Js.

      Argued June 2
    officially released September 13, 2011

      Joseph T. O ’Connor, for the appellant in AC 31500 and the cross appellant and appellee in AC 31562 (plaintiff).

      Kenneth J. Bartschi and Dana M. Hrelic, with whom, on the brief, were Arnold Rutkin and Melissa Needle, for the appellee in AC 31500 (defendant).

      Kenneth J. Bartschi and Dana M. Hrelic, with whom, on the brief, was Arnold Rutkin, for the appellant and cross appellee in AC 31562 (defendant).
   Opinion

BISHOP, J.

These two appeals arise out of various postjudgment proceedings stemming from the parties’ dissolution of marriage. In AC 31500, the plaintiff, Caroline Hirschfeld, claims that the trial court improperly (1) concluded that swimming pool expenses were “shelter expenses” in accordance with the parties’ separation agreement, (2) entered a postjudgment order dividing assets when it attributed to her expenses associated with a certain automobile, (3) denied her motion for an order regarding the division of assets without affording her a full evidentiary hearing and (4) denied her request for counsel fees without allowing her to inquire as to the defendant’s financial circumstances. In AC 31562, the defendant, Robert Machinist, claims that the trial court abused its discretion in reversing its previous order imposing a sanction on the plaintiff through which she had been precluded from testifying as to housekeeping expenses incurred since the marriage was dissolved. We affirm in part and reverse in part the judgment in AC 31500, and we affirm the judgment in AC 31562.

The marriage of the parties was dissolved on February 2, 2007. The parties had entered into a separation agreement, the terms of which were incorporated as part of the dissolution judgment. Since the date of the judgment, litigation between the parties has been incessant, with more than one hundred court filings. Because the claims on appeal have differing factual and procedural bases, we address each in turn.

I

AC 31500

A

The plaintiff first claims that the court improperly held her hable for expenses associated with the swimming pool at the marital property on the basis of its conclusion that those costs were “shelter expenses” within the meaning of the parties’ separation agreement. We disagree.

“It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is to be regarded and construed as a contract. . . . Accordingly, our review of a trial court’s interpretation of a separation agreement is guided by the general principles governing the construction of contracts. . . . A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. ... If a contract is unambiguous within its four comers, the determination of what the parties intended by their contractual commitments is a question of law. . . . When the language of a contract is ambiguous, [however] the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous. . . .

“Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion .... In contrast, an agreement is ambiguous when its language is reasonably susceptible of more than one interpretation.” (Citations omitted; internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 354-55, 999 A.2d 713 (2010).

Here, the parties agreed that the plaintiff would reside in the marital home in Greenwich until it was sold. Paragraph 6.5 of the separation agreement provides: “Until the earlier of the closing of title to any of the real estate to be sold, or the arrival of June 30, 2007, the [defendant] shall pay all ‘shelter expenses’ of ownership for each property as shown on his December 5, 2006 financial affidavit. Such expenses of ownership shall include the shelter expenses shown on the [defendant’s] financial affidavit of December 5, 2006.” Paragraph 6.6 provides that if the house had not been sold by June 30, 2007, the parties thereafter would share the shelter expenses equally until it was sold. Because the home had not been sold as of June 30, 2007, the parties began sharing the shelter expenses as of July 1, 2007. The defendant filed a motion seeking reimbursement of one half of the expenses associated with the pool and the plaintiff objected, claiming that those expenses did not constitute “shelter expenses” as contemplated by the separation agreement. In response, the court determined that the expenses associated with the swimming pool did constitute shelter expenses and, therefore, ordered the plaintiff to reimburse the defendant one half of those expenses incurred since July 1, 2007.

The term “shelter expenses” is not defined in the separation agreement; nor does it have a precise meaning independent of the parties’ separation agreement. The plaintiff argues that the expenses associated with the swimming pool are not shelter expenses because they were not listed on the defendant’s December 5, 2006 financial affidavit. The court, however, did not take such a narrow view of the language employed in the parties’ separation agreement, finding, instead, that the use of the words “shall include” was not intended to be an expression of limitation, but rather of illustration. On October 15, 2007, the court defined “shelter expenses” as expenses of ownership and concluded that expenses for housekeeping at the home constituted such an expense. Although the pool expenses may not have been listed on the defendant’s December 5, 2006 financial affidavit, we agree with the trial court that the phrase “shall include” in paragraph 6.5 of the separation agreement is not exclusive and that pool expenses associated with the home properly may be considered shelter expenses. Accordingly, we conclude that the court properly ordered the plaintiff to reimburse the defendant for her share of those expenses in accordance with the separation agreement.

B

The plaintiff next challenges the court’s judgment with respect to its order requiring her to reimburse the defendant for the expenses of a loan relating to a Chevrolet Suburban (Suburban). The plaintiff claims that the court’s order allocating that expense to her constituted an impermissible postjudgment distribution of assets. We agree.

“ [C] ourts have no inherent power to transfer property from one spouse to another; instead, that power must rest upon an enabling statute. . . . The court’s authority to transfer property appurtenant to a dissolution proceeding rests on [General Statutes] § 46b-81. That section provides in relevant part: At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . . General Statutes § 46b-81 (a). Accordingly, the court’s authority to divide the personal property of the parties, pursuant to § 46b-81, must be exercised, if at all, at the time that it renders judgment dissolving the marriage.” (Citation omitted; internal quotation marks omitted.) Rathblott v. Rathblott, 79 Conn. App. 812, 819, 832 A.2d 90 (2003).

Here, the parties’ separation agreement provided that each party was responsible for the debts in his or her own name. At the time of dissolution, the loan for the Suburban was only in the defendant’s name, and, therefore, was made the defendant’s responsibility by the terms of the judgment. Following the judgment, the defendant paid off the loan, transferred the vehicle to the plaintiff and then sought reimbursement for the amount of the loan from the plaintiff. On October 13, 2009, the court concluded that all of the bills associated with the Suburban should be the responsibility of the plaintiff, a ruling we find to be at variance with its order in the dissolution judgment that each party be responsible for the liabilities listed in his or her name. In shifting the responsibility for that liability from the defendant to the plaintiff, the court, in effect, modified the property division rendered at the time of the dissolution judgment. Because the court did not have the authority to make such a property distribution after the date of the dissolution judgment, the court’s judgment ordering the plaintiff to reimburse the defendant must be reversed.

C

The plaintiff also claims that the court improperly denied her motion for an order regarding the division of assets without affording her a full hearing. We agree.

The plaintiff filed a motion for an order requesting a division of assets, specifically, various stock options, passive investments and interests in certain limited partnerships, that the defendant was required to transfer to the plaintiff pursuant to their separation agreement. On August 4, 2009, there was a hearing on the plaintiffs motion during which she was permitted to examine the defendant at length regarding the various assets that were at issue. Throughout the course of that hearing, however, it became apparent that the plaintiff did not have the requisite information to support her motion, and that the proceedings were evolving into a quest for discovery. Consequently, the court told the plaintiff that it was marking her motion off so that she could get more information, potentially including expert testimony, to substantiate her claims regarding these assets. In light of the court’s representation that her motion simply was being marked off for that day, the plaintiff did not object. Thereafter, however, on August 24, 2009, without further proceedings or notice to the parties, the court denied the plaintiffs motion for an order regarding the division of these assets.

“A party has the right to present evidence within the acceptable rules supporting its theory of the case.” Morgera v. Chiappardi, 74 Conn. App. 442, 455, 813 A.2d 89 (2003). “Where a party is not afforded an opportunity to subject the factual determinations underlying the trial court's decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Internal quotation marks omitted.) Id., 455-56.

We believe that, under the circumstances of this case, the plaintiff improperly was not afforded a full evidentiary hearing on her motion. Although the plaintiff was permitted to present some evidence, she was denied the opportunity to fully pursue her claim by the court’s determination to end the hearing with an indication of its intent to mark off her motion for a division of assets. And although the apparent rationale for the court’s decision to mark her motion off, as gleaned from our reading of the transcript of the hearing, was that the plaintiff had not properly pursued the requisite discovery and that further discovery was necessary, the court indicated that she would be permitted to continue her presentation of evidence at a future date. Because the court made such a representation to her and the proceedings regarding the plaintiffs motion were terminated, the court incorrectly later denied the plaintiffs motion without giving her the opportunity reasonably to complete the evidentiary hearing. Accordingly, the court’s judgment denying the plaintiffs motion for an order regarding the division of assets must be reversed and the case must be remanded for a full evidentiary hearing on that motion.

D

The plaintiff finally claims that the court improperly denied her request for counsel fees. Specifically, she claims that, in denying her request for legal fees, the court improperly refused to require the defendant to file a financial affidavit or permit inquiry into his assets. We are not persuaded.

General Statutes § 46b-62 vests in the trial court the discretion to award attorney’s fees. “The criteria to be considered in determining whether an award of attorney’s fees is appropriate [are set forth in General Statutes § 46b-82 and] include the age, health, station, occupation, amount and sources of income, vocational skills, employability [and] estate and needs of each of the parties .... We review the court’s awarding of attorney’s fees under the abuse of discretion standard. . . . The ultimate issue in our review, therefore, is whether the court reasonably could have concluded as it did. . . . Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. ... An exception to th[is] rule . . . is that an award of attorney’s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine [the court’s] prior financial orders . . . .” (Citation omitted; internal quotation marks omitted.) Adamo v. Adamo, 123 Conn. App. 38, 53, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010).

The plaintiff sought counsel fees in connection with all postjudgment motions in the amount of $44,841.52. In support of that request, the plaintiff sought to have the defendant file a financial affidavit and she sought to inquire about an inheritance that the defendant received subsequent to the date of the dissolution judgment. The court did not permit that inquiry. The court found that each party had sufficient liquid assets and, accordingly, made them responsible for their respective counsel fees. On the basis of this finding, which the plaintiff does not challenge on appeal, and which is supported by the plaintiffs March 11,2009 financial affidavit showing more than $6.8 million in assets, we cannot conclude that the court abused its discretion in denying her request for counsel fees.

II

AC 31562

The defendant appeals from the judgment of the court reversing its prior order in which it sanctioned the plaintiff and precluded her from testifying as to housekeeping expenses for which she was seeking reimbursement from the defendant.

The plaintiff filed a motion for contempt against the defendant based on his failure to pay housekeeping expenses associated with the marital home. The defendant objected and moved to preclude the plaintiff from presenting any evidence as to those expenses because she had failed to comply with discovery requests pertaining to the motion. The plaintiff claimed that her failure to comply with the discovery requests was based on the fact that the requests were for checks or other documentary proof of payment of the housekeeping expenses, for which none existed. The plaintiff represented that none existed because she paid for those services in cash. Initially, the court granted the motion to preclude the plaintiff’s testimony. Upon further reflection, however, the court vacated its order preventing the plaintiff’s testimony.

“The court’s decision on whether to impose the sanction of excluding . . . testimony ... is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 233, 963 A.2d 943 (2009).

Although the court properly concluded that a failure to respond in any way to a discovery request cannot reasonably be deemed as compliance, even if no documentation exists, the court was within its province to determine that it would be fair to allow the plaintiff to testify as to the claimed expenses. Accordingly, we conclude that the court did not abuse its discretion in vacating its prior sanction order.

In AC 31500, the judgment is reversed with respect to the order granting the defendant’s motion for reimbursement for the loan expense associated with the Chevrolet Suburban and the case is remanded with direction to deny the defendant’s motion; the judgment is reversed with respect to the denial of the plaintiffs motion for an order regarding the division of assets and the case is remanded for further proceedings on that motion in accordance with this opinion; the judgment is affirmed in all other respects. In AC 31562, the judgment is affirmed.

In this opinion the other judges concurred.

       On March 9, 2011, this court dismissed the portions of the plaintiffs appeal in AC 31500 challenging the trial court’s orders to sell the parties’ real property.

       The plaintiff also appeals in AC 31500 and in her cross appeal in AC 31562 from the court’s order granting the defendant’s request for counsel fees. Because the court did not establish a specific amount to be paid by the plaintiff, there is no final judgment from which the plaintiff properly may appeal. See Sullivan v. Brown, 116 Conn. App. 660, 662-63, 975 A.2d 1289, cert. denied, 294 Conn. 914, 983 A.2d 852 (2009). Accordingly, this court does not have jurisdiction to address this issue.

       On that affidavit, expenses associated with the marital home included taxes, insurance, a security system, cable, telephone and Internet, landscaping, water, gas and electric, housekeeping and repairs and services.

       Specifically, the court stated: “The motion is going off today. The rest of this motion is going off today. We need to get our act together with regard to the exchange of information.”

       The plaintiff also filed a motion for contempt claiming that the defendant had failed to comply with discovery requests for information regarding those assets. The court denied the plaintiffs motion for contempt, finding that the defendant had substantially complied with the plaintiffs requests. The court also found that “for the most part, the assets in question are either without substantial value or cannot be transferred by the [defendant].” Neither of those findings has been challenged on appeal.

       In reaching this conclusion, we are not without appreciation that the objective of the trial court was to resolve as many of the parties’ multitudinous issues as was reasonably possible and that, in marking the matter off, it was clear to the court that the plaintiff was, in fact, unprepared to proceed on her motion to a conclusion on the assigned day.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter and sections 17b-743, 17b-744, 45a-257, 46b-l, 46b-6, 46b-212 to 46b-213v, inclusive, 47-14g, 51-348a and 52-362, the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”


author: PER CURIAM.

text:
    CAROLINE HIRSCHFELD v. ROBERT B. MACHINIST
    (AC 32818)
    Bishop, Bear and Pellegrino, Js.

      Argued June 2
    officially released September 13, 2011

      Kenneth A. Votre, for the appellant (plaintiff).

      Kenneth J. Bartschi, with whom were Dana M. Hrelic and, on the brief, Arnold Rutkin, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Caroline Hirschfeld, appeals from the judgment of the trial court granting the postjudgment motion for sanctions filed by the defendant, Robert B. Machinist, and ordering the plaintiff to pay to the defendant $71,475.10 in attorney’s fees. On appeal, the plaintiff claims that the award of attorney’s fees was improper because (1) the court was without subject matter jurisdiction, and (2) the court improperly imposed sanctions on the plaintiff for bad faith litigation conduct. We affirm the judgment of the trial court.

The plaintiff and the defendant had entered into a separation agreement (agreement) the terms of which the court incorporated by reference into the judgment dissolving their marriage on February 2, 2007. Paragraph 8.3 of the agreement provided: “Entire Agreement. The [hjusband and [w]ife have incorporated in this [agreement their entire understanding, and no oral statement or prior written matter extrinsic to this [agreement shall have any force or effect. The parties agree that each is not relying upon any representations other than those expressly set forth herein.” Paragraph 8.4 of the agreement provided an acknowledgment that the agreement had been fully explained to both parties, that it was a fair agreement, and that it contained the entire understanding of the parties. It further provided: “There are no representations, promises, warranties, covenants or undertakings other than those expressly set forth herein.”

On November 27, 2009, the defendant filed postjudgment motions for contempt and for sanctions against the plaintiff. The defendant alleged, in part, that despite the merger clause in the parties’ agreement, the plaintiff had instituted litigation against him in both New York and in Connecticut, in October, 2008, and October, 2009, respectively, seeking damages based on matters that had occurred prior to the agreement and which were barred because of the agreement. The defendant asked the court to find the plaintiff in contempt and to award attorney’s fees as a sanction for the alleged “improper and oppressive litigation conduct.” In an October 5, 2010 memorandum of decision, the court declined to find the plaintiff in contempt, but it found that the plaintiff had acted in bad faith in instituting the post-judgment actions and sanctioned the plaintiff by ordering her to pay to the defendant $71,475.10 in attorney’s fees. This appeal followed.

I

The plaintiff first claims that the court lacked subject matter jurisdiction “to award attorney’s fees for conduct in a New York lawsuit absent [a] violation of an order of the Connecticut court.” The plaintiff argues: “It is absolutely clear . . . that the court’s ‘inherent’ power to award attorney’s fees when the ‘losing party has acted in bad faith’ refers to inherent authority of the court to regulate conduct before the court, not before some other court. In this case, the only attorney’s fees awarded were those incurred defending a civil action pending entirely within . . . New York .... There simply is no jurisdictional basis for a Connecticut judge to enter an order of sanctions for conduct before a New York . . . judge. Nor was any conduct before the small claims court before the trial court here.” The defendant contends that the plaintiff is confusing authority to act with subject matter jurisdiction and that the court clearly had jurisdiction over the subject matter of his motion for sanctions. We agree with the defendant.

“There is a distinction between a court’s jurisdiction and its statutory authority to act. See 1 Restatement (Second), Judgments § 11 (1982). Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 88 Conn. App. 523, 527, 871 A.2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2007).

The defendant filed postjudgment motions for contempt and for sanctions, asking the court to find the plaintiff in contempt and to impose sanctions on the plaintiff for engaging in bad faith litigation. Pursuant to General Statutes § 46b-l: “Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage . . . and (17) all such other matters within the jurisdiction of the Superior Court concerning . . . family relations as may be determined by the judges of said court.” Clearly, the court had subject matter jurisdiction over the defendant’s post-judgment motion that sought, inter alia, sanctions for the plaintiffs violation of the terms of the dissolution judgment. See Roos v. Roos, 84 Conn. App. 415, 419, 853 A.2d 642 (court had subject matter jurisdiction to consider motion for contempt that alleged violation of original judgment), cert. denied, 271 Conn. 936, 861 A.2d 510 (2004).

II

The plaintiff next claims that the court improperly imposed sanctions on the plaintiff for her bad faith litigation conduct. She argues that the court failed to make the necessary findings required by Maris v. McGrath, 269 Conn. 834, 850 A.2d 133 (2004), before imposing sanctions, failed to apply the appropriate “formulation of the bad faith exception applying to nonlawyers” and failed to consider that the plaintiff had acted in reliance on the advice of counsel. We conclude that the court did not abuse its discretion in imposing sanctions on the plaintiff.

“[S]ubject to certain limitations, a trial court in this state has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated.” (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999). “To ensure . . . that fear of an award of attorneys’ fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of [the] lower courts. . . . Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. ... To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the court ... is the conduct of the party in instigating or maintaining the litigation.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. 845-46. “As applied to a party, rather than to his attorney, a claim is colorable, for purposes of the bad faith exception to the American rule, if a reasonable person, given his or her first hand knowledge of the underlying matter, could have concluded that the facts supporting the claim might have been established.” (Internal quotation marks omitted.) Id., 847.

Applying the standard set forth in Maris to the present case, we conclude that the trial court did not abuse its discretion in sanctioning the plaintiff. The court specifically found that the parties’ agreement contained a merger clause in which the parties agreed that there were no outstanding issues between them other than those set forth and resolved in that agreement. The court also found that, despite that agreement, the plaintiff subsequently brought an action in New York seeking to litigate a claim that was ten years old. The court also noted that the New York court found the action “to be without merit” and the New York court, in its decision, found the plaintiffs claim to be “meritless,” “outrageous,” “designed to harass” the defendant and that it “border[ed] on the frivolous.” Furthermore, the court noted that the plaintiff took no appeal from the New York decision. The court also found that the small claims action in this state was unsuccessful and that in that action the plaintiff also had requested relief based on facts that arose well before the agreement of the parties. The court further found that the plaintiffs actions in instituting both actions were taken in bad faith. On the basis of these findings, the court awarded reasonable attorney’s fees to the defendant. Having reviewed the record, we conclude that the court acted in accordance with Maris, and that it did not abuse its discretion in ordering sanctions against the plaintiff.

The judgment is affirmed.

       The New York case was dismissed after the court found that the lawsuit was “outrageous,” that it was “designed to harass” the defendant and that it “border[ed] on the frivolous.” Although the plaintiff filed a notice of appeal from the judgment of dismissal, she later chose not to file the appeal. The plaintiff also -withdrew the small claims action that had been filed in Connecticut.

       The defendant also argues that the plaintiff never raised before the trial court any claim that the court had no authority to act on this motion because it alleged conduct that had occurred in another jurisdiction. Our review of the record confirms this assertion.

       We need not decide whether the agreement actually contained a merger clause or the meaning of those paragraphs of the agreement because the plaintiff does not challenge this finding on appeal.

       The plaintiff does not challenge the reasonableness of the attorney’s fees.

       Insofar as the plaintiff argues that the court’s findings were not detailed sufficiently, our case law clearly directs that it is up to the plaintiff to request more detailed findings by means of an articulation. See Blum v. Blum, 109 Conn. App. 316, 331, 951 A.2d 587 (“[w]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly” [internal quotation marks omitted]), cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).