author: GRUENDEL, J.

text:
    CHARLES RAY JONES v. CONNECTICUT MEDICAL EXAMINING BOARD
    (AC 31675)
    DiPentima, C. J., and Bishop and Gruendel, Js.

      Argued April 20
    officially released June 21, 2011

      Elliott B. Pollack, with whom were Bonnie L. Heiple and, on the brief, Michael Kurs, for the appellant (plaintiff).

      Tanya Feliciano DeMattia, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Charles Ray Jones, M.D., appeals from the judgment of the Superior Court sustaining in part his appeal from the decision of the defendant, the Connecticut medical examining board. In this appeal, the plaintiff contends that (1) the defendant violated his right to due process by disciplining him on a basis that was not set forth in the statement of charges presented by the department of public health (department), (2) the bias of a member of the medical hearing panel deprived him of his due process right to an impartial tribunal and (3) the court improperly concluded that the preponderance of the evidence standard of proof governs revocation proceedings before the defendant. We affirm the judgment of the Superior Court.

The record reveals the following relevant facts. The plaintiff is a physician and surgeon licensed to practice medicine in Connecticut. The defendant is a state agency within the meaning of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. On August 29, 2005, the department presented the defendant with a statement of charges against the plaintiffs license pursuant to General Statutes (Rev. to 2005) § 19a-17 and General Statutes § 20-13c. The two counts contained therein alleged that the plaintiff violated the applicable standard of care in various respects in his treatment of two minor children.

As the court found in its memorandum of decision, a three member medical hearing panel; see General Statutes (Rev. to 2005) § 20-8a (c); comprised of two physicians and one layperson thereafter “conducted eleven days of hearings over a fourteen month period. The [defendant] then reviewed the panel’s proposed decision and, in a December 18, 2007 memorandum of decision, made the following findings. The plaintiff holds a Connecticut physician and surgeon license. On or about December 17, 2003, the plaintiff consulted by telephone with the mother of minor children S and E, who were living in Nevada. At that time, the plaintiff diagnosed E as having gestational Lyme disease. The plaintiff took several other actions prior to first examining the children on May 21, 2004. On January 5, 2004, the plaintiff prescribed Doxycycline for E’s Lyme disease. On March 18, 2004, the plaintiff prescribed Zithromax for S. On March 26, 2004, the plaintiff made recommendations to the principal of S’s school for S’s education based on a provisional diagnosis of late stage Lyme disease.

“At the May 21, 2004 examination, the plaintiff wrote a diagnosis for E of possible gestational Lyme disease. The plaintiff treated both children with a continuous prescription of Amoxicillin until March, 2005, and then continuously with Omnicef. After the May 21, 2004 exam[ination], the plaintiff did not examine the children until April 11, 2005, nor did he make any arrangements for another physician to monitor their medication. At the April 11, 2005 examination, the plaintiff ordered a series of tests for Lyme disease, including the Western Blot tests, and other pathogens. All tests were negative except, in the case of S, for ‘Mycoplasma fermetans and a weakly positive titer for Streptococcus A antibodies’ and, in the case of E, a positive antibody finding for Epstein-Barr Virus.

“The [defendant] found that the plaintiff violated the standard of care for both children in that he (1) prescribed an antibiotic to a patient he did not know and had never examined; (2) prescribed antibiotics for nearly a year without repeat examinations and without any arrangement with another physician to monitor the patient for the side effects of long-term antibiotic therapy; and (3) diagnosed a disease in both children when the exposure risk was extremely low, the medical history was nonspecific, the signs and symptoms were nonspecific, and the laboratory tests were negative. In addition, in the case of S, the [defendant] found that the plaintiff violated the standard of care by making an educational recommendation for a child he did not know and had never examined. The [defendant] also found, without specifying whether it was a violation of the standard of care, that the plaintiff failed to reconsider the diagnosis of Lyme disease for S and E in light of the negative Western Blot tests obtained in April, 2005.

“As a result of these findings, the [defendant] ordered a reprimand, imposed fines totaling $10,000, and placed the plaintiff on probation for two years. In addition, the [defendant] required the appointment of a physician monitor to conduct regular reviews of the plaintiffs patient records and meetings with the plaintiff. . . . On January 2,2008, the plaintiff filed a motion for reconsideration alleging that a member of the panel . . . John Senechal [a physician], was biased against the plaintiff. The [defendant] denied the motion in a brief ruling stating principally that the alleged bias did not relate to the findings and conclusions in the memorandum of decision.” (Citation omitted.)

The plaintiff subsequently commenced an administrative appeal of that decision in the Superior Court. Following a hearing, the court determined that the record lacked substantial evidence to support the defendant’s findings that the plaintiff diagnosed E with gestational Lyme disease during a telephone consultation on December 17, 2003, and that the plaintiffs care for E deviated from the applicable standard of care in prescribing an antibiotic to a patient that he did not know and never had examined. The court affirmed the decision of the defendant in all other respects and remanded the matter to the defendant for further proceedings pursuant to General Statutes § 4-183 (j). From that judgment, the plaintiff appeals.

I

The plaintiff first claims that the defendant violated his right to due process by disciplining him on a basis that was not set forth in the statement of charges presented to it by the department. We disagree.

The standard of review governing administrative agency rulings is well established. “Judicial review of an administrative decision is a creature of statute . . . and [§ 4-183 Q)] permits modification or reversal of an agency’s decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error or law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . . We have stated that not all procedural irregularities require a reviewing court to set aside an administrative decision .... The complaining party has the burden of demonstrating that its substantial rights were prejudiced by the error.” (Citations omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 787-88, 855 A.2d 174 (2004).

A

Before addressing the merits of the plaintiffs due process claim, we first must ascertain the analytical basis thereof. In his appellate brief, the plaintiff identifies no statutory basis underlying the claim and instead devotes his discussion to decisional law exclusively, whereas the defendant maintains that the pertinent notice requirements governing the claim are those contained in General Statutes § 4-177 (b), rather than General Statutes § 4-182 (c). On the record before us, we disagree with the defendant.

Our Supreme Court has emphasized “the difference between the notice requirements pertaining to the issuance of a license, which mandate only ‘a short and plain statement of the matters asserted’; General Statutes § 4-177 (b) (4); and the notice requirements relating to the revocation of a license, which mandate ‘notice ... of facts or conduct’ warranting revocation of the license. General Statutes § 4-182 (c).” Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. 810. Procedurally, notice under § 4-182 (c) is a precursor to the subsequent notice required by § 4-177 (b). “Section 4-182 (c) requires an agency to give a licensee, prior to the institution of agency proceedings, written notice of conduct warranting the revocation of its license and an opportunity to show compliance with all of the legal requirements for the retention of the license.” (Emphasis added.) Id., 801. By contrast, § 4-177 requires an agency to “give the licensee notice of a formal revocation proceeding . . . .” Id., 812. Specifically, § 4-177 (b) requires that notice of a contested hearing include the following: “(1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted. ...” As this court recently held, “notice of the formal revocation hearings, after institution of the agency proceedings, must comply with § 4-177, not § 4-182 (c).” (Emphasis in original.) Spitz v. Board of Examiners of Psychologists, 127 Conn. App. 108, 116 n.11, 12 A.3d 1080 (2011).

The critical question, then, is precisely what notice was provided to the plaintiff. It is undisputed that the first communication to the plaintiff contained in the record before us is the department’s statement of charges dated August 29,2005. The statement of charges did not articulate “a short and plain statement of the matters asserted”; General Statutes § 4-177 (b) (4); but instead contained a detailed description of the facts and conduct alleged to give rise to a violation of § 20-13c, as required by § 4-182 (c). Moreover, the statement of charges did not provide the plaintiff with notice of either “the time, place, and nature of the hearing” or “the legal authority and jurisdiction under which the hearing is to be held,” as required by § 4-177 (b) (1) and (2). Thus, the statement of charges on its face comports with the notice requirements of § 4-182 (c), rather than § 4-177 (b).

In addition, the defendant in its December 18, 2007 memorandum of decision expressly found that “[o]n October 13, 2005, a notice of hearing was sent via certified mail and first class mail to the [plaintiff], scheduling a hearing for December 1,2005. ” That finding indicates that the defendant provided the plaintiff with notice of the formal revocation proceedings subsequent to the issuance of written notice of the conduct warranting the revocation of his license contained in the statement of charges. In light of that undisputed procedural history, we conclude that the statement of charges does not qualify as notice of the formal revocation hearing under § 4-177 (b). Instead, the plaintiffs claim concerning the adequacy of the notice provided in the statement of charges properly is evaluated under the rubric of § 4-182 (c). Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. 812.

B

As our Supreme Court has explained, “due process requires that the notice [pursuant to § 4-182 (c)] must advise the party of the facts or conduct alleged to be in violation of the law and must fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law. . . . [T]he notice of charges against a practitioner to which he is to answer before the board should state them with sufficient particularity so that he may be fairly apprised of the nature of the offense with which he is charged.” (Citations omitted; internal quotation marks omitted.) Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 535, 560 A.2d 403 (1989).

The plaintiffs claim centers on the defendant’s finding that he violated the applicable standard of care by “diagnosing a disease in a very low risk patient, with nonspecific history, nonspecific signs and symptoms, and negative laboratory tests.” In paragraphs 5 (d) and (e) of the statement of charges, the department alleged that the plaintiff “diagnosed Lyme disease when S’s history did not support the diagnosis” and that he “made a diagnosis of Lyme disease . . . when the patient’s laboratory tests were negative and his signs and symptoms were nonspecific.” Likewise, paragraphs 10 (c) and (d) allege that the plaintiff “based his diagnosis of Lyme disease when E’s history did not support the diagnosis” and that he “made a diagnosis of Lyme disease . . . when the patient’s laboratory tests were negative and her signs and symptoms were nonspecific.” We concur with the court’s assessment that “[t]he findings by the [defendant] of a violation of standard of care track these allegations closely except for the fact that the [defendant] also found that the plaintiff had made the diagnosis ‘when the exposure risk was extremely low.’ ”

Thus, the only variance we perceive is that between the aforementioned charges and the defendant’s finding that the plaintiff diagnosed a disease in the children when,- inter alia, their exposure risk was extremely low. Because the plaintiff “can claim no relief from the court unless he can show that he was substantially prejudiced” by that variance; Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. 536; our inquiry is into whether he has met that burden.

The plaintiff submits that the variance between the statement of charges and the defendant’s finding prejudiced his ability to mount a defense thereto. Specifically, he argues that, absent the variance, he could have defended himself on the basis that he properly diagnosed an infectious disease in the patient. Yet that is precisely the defense that was offered in the administrative proceeding below. The court found that the plaintiff in the hearing before the defendant “disputed continuously” the conclusion that he improperly diagnosed an infectious disease in the children. The record before us contains ample evidence substantiating that finding. It includes fifty detailed exhibits introduced by the plaintiff totaling 944 pages and numerous hearing transcripts over the course of twelve days in which the plaintiff presented a vigorous defense. Most significantly, the record demonstrates that the plaintiff himself introduced evidence on the issue of the children’s risk of exposure. For example, on March 23, 2006, the plaintiff testified that since the children’s mother “had a history of probable Lyme disease . . . her children . . . had the possibility of gestational exposure and breast milk exposure to the Lyme bacteria . . . .” The plaintiff also testified that the “children had exposure to ticks, not only in Nevada but also on a camping trip that they had taken . . . where both of the children had documented tick attachments . . . .” Because the plaintiff offered evidence on the children’s risk of exposure in an attempt to demonstrate that he properly had diagnosed an infectious disease in them, he cannot complain of a lack of notice that the defendant would evaluate that consideration. See Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 94, 596 A.2d 374 (1991). We therefore conclude that the plaintiff has not established that he was substantially prejudiced by the slight variance between the statement of charges and the defendant’s findings.

II

The plaintiff next claims that the bias of a member of the medical hearing panel deprived him of a fair administrative proceeding. He maintains that Senechal, a pediatrician who served on the panel during the revocation hearing, possessed a profound bias against physicians who treat chronic Lyme disease. That bias, the plaintiff contends, violated his due process right to an impartial tribunal. We do not agree.

Certain well established principles guide our analysis of the plaintiffs claim. “At the core of due process is the requirement for an impartial tribunal. . . . Due process demands . . . the existence of impartiality on the part of those who function in judicial or quasi-judicial capacities. ... It has been generally recognized, however, that due process does not require that members of administrative agencies adhere in all respects to the exalted standards of impartiality applicable to the judiciary. . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator. . . . A presumption of impartialify attends administrative determinations, and the burden of establishing a disqualifying interest on the part of an adjudicator rests upon the one seeking disqualification. ... To overcome the presumption, the plaintiff in this case must demonstrate actual bias, rather than mere potential bias, of the [panel] members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.” (Citations omitted; internal quotation marks omitted.) Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990); see also Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009) (plaintiff has burden of establishing disqualifying interest).

Our Supreme Court has held that to prove bias, the plaintiff “must make a showing that the [panel member] has prejudged adjudicative facts that are in dispute. ... A tribunal is not impartial if it is biased with respect to the factual issues to be decided at the hearing. . . . The test for disqualification has been succinctly stated as being whether a disinterested observer may conclude that [the panel member] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.” (Citations omitted; internal quotation marks omitted.) Clisham v. Board of Police Commissioners, 223 Conn. 354, 362, 613 A.2d 254 (1992). “The mere fact that [panel members] have opinions regarding the appropriate standards of practice does not constitute bias . . . .” Breiner v. State Dental Commission, 57 Conn. App. 700, 706, 750 A.2d 1111 (2000).

In addition, we note that “[a] determination of the existence or absence of actual bias is a finding of fact.” (Internal quotation marks omitted.) Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, supra, 291 Conn. 263. It is axiomatic that “[t]his court will not reverse the factual findings of the trial court unless they are clearly erroneous.” Solomon v. Connecticut Medical Examining Board, 85 Conn. App. 854, 865, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003).

The following additional facts are relevant to the plaintiffs claim. After commencing this administrative appeal in the Superior Court, the plaintiff filed a motion for an evidentiary hearing on the issue of Senechal’s alleged bias, which the court granted. At that hearing, the plaintiff offered the testimony of Tracy Will and Blake Will, whose seventeen year old son was seen on two occasions by Senechai in 2007; the defendant submitted the testimony of Senechai. As the court found in its memorandum of decision: “Tracy and Blake Will testified, in sum, that when Senechal, a pediatrician, had treated their son in 2007 for symptoms diagnosed by another doctor as Lyme disease, Senechal had made coarse remarks about doctors who treat Lyme disease, calling them, among other things, quacks and charlatans. Senechal testified that he did not remember using the terms ‘quacks’ and ‘charlatans.’ He acknowledged mentioning in a critical vein that some doctors not specializing in infectious disease or even some non-physicians were treating Lyme disease. He contended that it has never been proven that there is such a condition as chronic Lyme disease. Nonetheless, he maintained that he had not prejudged any of the issues in the case, which was ongoing at the time of his examination of the Wills’ son. Senechal explained that, in his view, the administrative hearing was not about Lyme disease but rather whether the plaintiff had conducted a ‘good faith examination.’ The court reconciles the competing testimony by concluding that Senechal made intemperate remarks about the treatment of Lyme disease but focused on [doctors] who were not specialists in infectious disease.”

Discussion of Senechal’s opinion that it has not “been proven that there is such a condition as chronic Lyme disease” obscures the precise issue before us. “[A] decisionmaker [is not] disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not capable of judging a particular controversy fairly on the basis of its own circumstances.” (Internal quotation marks omitted.) Breiner v. State Dental Commission, supra, 57 Conn. App. 707, citing Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U.S. 482, 493, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976).

Rather, as the court observed, the “ultimate question” in evaluating the plaintiffs allegation of bias is whether Senechal had “prejudged adjudicative facts that [were] in dispute” and were to be decided at the hearing. Clisham v. Board of Police Commissioners, supra, 223 Conn. 362. Despite the plaintiffs protestations to the contrary, this case is not about the diagnosis of chronic Lyme disease—it is about the plaintiffs diagnosis and treatment of an infectious disease in two children whom he had not examined. We concur with the assessment of the court that “the [defendant’s] findings that the plaintiff violated the standard of care do not address the appropriate method of diagnosing and treating Lyme disease. In fact, the statement of violations of the standard of care does not even mention Lyme disease. . . . Rather, the [defendant] found that the plaintiff had violated general standards of medical care by prescribing antibiotics and making educational recommendations without examining the patient, prescribing long-term antibiotic therapy without arranging to have another physician monitor the patient, and diagnosing a disease when the exposure risk was low, the medical history, signs, and symptoms were nonspecific, and the laboratory tests were negative. These standards would presumably apply to virtually any physician in any specialty. Thus, the fact that Senechal may have had hardened views about the practice of some people treating Lyme disease would not necessarily reveal any bias as to whether the plaintiff had violated the general standards of medical care at issue in this case.” (Citation omitted.)

To overcome the presumption of impartiality; Rado v. Board of Education, supra, 216 Conn. 556; it was incumbent on the plaintiff to demonstrate that Senechal had prejudged adjudicative facts in dispute. In its memorandum of decision, the court found that “there is no evidence that Senechal had prejudged the issues in this case. The record reveals no instance in which Senechal had expressed any views about the plaintiff or how the plaintiff practiced medicine. There is also no evidence that Senechal had made any outside statements or harbored any preconceived notion about whether the plaintiff had violated general medical standards of care, which was the critical issue in this case. In fact, the findings reveal that, on a number of points, the board agreed with the plaintiff on the historical facts or with his arguments that he did not violate the standard of care.” On our review of the record, we agree. Accordingly, the court’s finding that the plaintiff failed to demonstrate actual bias on the part of Senechal is not clearly erroneous.

Ill

The plaintiffs final claim is that the court improperly concluded that the preponderance of the evidence standard of proof governs revocation proceedings before the defendant. He renews his argument before the Superior Court that “[gjiven the similarity between attorney and physician disciplinary cases and the fact that the clear and convincing standard is applicable to attorney cases, the same standard should be applied in physician cases.”

The plaintiffs contention ignores the fact that attorney discipline proceedings, unlike the present matter, are not governed by the UAPA. The statewide grievance committee “is an arm of the court, and is not a body in which the legislature has reposed general powers of administration of a particular state program with which it has been given statutory authority to act for the state in the implementation of that program.” (Internal quotation marks omitted.) Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526, 576 A.2d 532 (1990). It “patently is not an administrative agency as defined in ... § 4-166 (1) of our UAPA.” Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 609-10, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007).

In contrast, the defendant is an administrative agency within the meaning of the UAPA. Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 619, 613 A.2d 739 (1992). In Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 821, 955 A.2d 15 (2008), our Supreme Court held that “[i]nthe absence of state legislation prescribing an applicable standard of proof . . . the preponderance of the evidence standard is the appropriate standard of proof in administrative proceedings” under the UAPA. In this appeal, we have neither been presented with nor found any statutory authority requiring the clear and convincing standard of proof to be applied in revocation proceedings before the defendant.

It is axiomatic that this court, as an intermediate body, is “bound by Supreme Court precedent and [is] unable to modify it ... . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Citation omitted; internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). Proper regard for this court’s role as an intermediate appellate tribunal precludes our reconsideration of the aforementioned precedent of this state’s highest court. In light of that precedent, the plaintiffs claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) § 19a-17 provides in relevant part: “(a) Each board or commission established under chapters 369 to 376, inclusive, 378 to 381, inclusive, and 383 to 388, inclusive, and the Department of Public Health with respect to professions under its jurisdiction which have no board or commission may take any of the following actions, singly or in combination, based on conduct which occurred prior or subsequent to the issuance of a permit or a license upon finding the existence of good cause: (1) Revoke a practitioner’s license or permit; (2) Suspend a practitioner’s license or permit; (3) Censure a practitioner or permittee; (4) Issue a letter of reprimand to a practitioner or permittee; (5) Place a practitioner or permittee on probationary status and require the practitioner or permittee to: (A) Report regularly to such board, commission or department upon the matters which are the basis of probation; (B) Limit practice to those areas prescribed by such board, commission or department; (C) Continue or renew professional education until a satisfactory degree of skill has been attained in those areas which are the basis for the probation; (6) Assess a civil penalty of up to ten thousand dollars ....
      “(e) As used in this section, the term ‘license’ shall be deemed to include the following authorizations relative to the practice of any profession listed in subsection (a) of this section: (1) Licensure by the Department of Public Health; (2) certification by the Department of Public Health; and (3) certification by a national certification body. . . .”

       General Statutes § 20-13c provides in relevant part: “The board is authorized to restrict, suspend or revoke the license or limit the right to practice of a physician or take any other action in accordance with section 19a-17, for any of the following reasons ... (4) illegal, incompetent or negligent conduct in the practice of medicine; (5) possession, use, prescription for use, or distribution of controlled substances or legend drugs, except for therapeutic or other medically proper purposes . . . .”
      Although § 20-13c has been amended since the time the statement of charges was presented; see Public Acts 2005, No. 05-275, § 21; the changes, including the redesignation of a certain subsection, are not relevant to this appeal. We refer herein to the current revision of the statute.

       In both the administrative proceeding before the defendant and the appeal before the Superior Court, the parties and the court preserved the confidentiality of the minor children’s identities. We do the same in this appeal.

       In hearing the plaintiffs appeal from the decision of the defendant, the Superior Court acts as an appellate body. See AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 244 n.12, 796 A.2d 1164 (2002).

       Our Supreme Court has held that a remand pursuant to § 4-183 (j) is a final judgment for purposes of appeal. See Hogan v. Dept. of Children & Families, 290 Conn. 545, 557-58, 964 A.2d 1213 (2009).

       General Statutes § 4-177 (b), which governs contested cases generally, provides in relevant part: “The notice [of the hearing] shall be in writing and shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted. . . .”
      General Statutes § 4-182 (c) provides in relevant part: “No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. . . .”

       The record before us does not contain a copy of the October 13, 2005 notice of hearing. Although the defendant’s December 18,2007 memorandum of decision states that said notice was introduced as “Board [exhibit] 2,” the return of record provided by the defendant indicates that this exhibit was “omitted by stipulation of [the] parties pursuant to ... § 4-183 (g).” We thus credit the defendant’s uncontroverted factual finding that it provided the plaintiff with a formal notice of the scheduled hearing on October 13, 2005, approximately one and one-half months after the department first presented the defendant with a statement of charges against the plaintiffs license.

       It is undisputed that Senechal was not a member of the defendant and thus did not vote on the adoption of the panel’s proposed decision by the defendant.

       In their sworn testimony, Tracy Will and Blake Will acknowledged that, months after their two encounters with Senechai, they attended the plaintiffs revocation hearing before the defendant on December 18, 2007, “in support of’ the plaintiff. Tracy Will also testified that her son later became a patient of the plaintiff.

       Senechal’s precise testimony on that point was as follows: “The [plaintiffs revocation] hearing . . . had to do with his responsibilities in the care of a patient vis-a-vis treating over the phone, treating without examination, taking someone out of school—out of a school district 3000 miles away without even examining a patient. ... I was asked as a member of the panel just to address the issue, the charges at hand. And I felt that I and the other panel members and the [defendant] just looked at those charges. All the Lyme stuff was almost a smokescreen that really didn’t, in my opinion, didn’t belong in the case because that’s what the case was not—truly the charge wasn’t about Lyme disease, the charge was about whether [the plaintiff] treated over the phone, whether his records were complete, whether ... he called people 3000 miles away and gave a diagnosis over the phone without... a full, fair and what they call in other states, a good faith examination.”

       In so concluding, the court recognized that the preponderance of the evidence standard applies in federal administrative proceedings. Goldstar Medical Services, Inc. v. Dept. of Social Services, supra, 288 Conn. 819; accord Jones for Jones v. Chater, 101 F.3d 509, 512 (7th Cir. 1996) (“preponderance of the evidence ... is the default standard in . . . administrative proceedings”); Collins Securities Corp. v. Securities & Exchange Commission, 562 F.2d 820, 823 (D.C. Cir. 1977) (traditional standard oí proof in federal administrative proceeding is preponderance standard). Notably, the United States Supreme Court expressly has “upheld use of the preponderance standard” in administrative proceedings in which “[t]he sanctions imposed . . . included an order permanently barring an individual from practicing his profession.” Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S. Ct. 683, 74 L. Ed. 2d 548 (1983), citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 101 S. Ct. 999, 67 L. Ed. 2d 69 (1981).


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    AHMAAD LANE v. COMMISSIONER OF CORRECTION
    (AC 32006)
    Graendel, Robinson and Pellegrino, Js.
    Argued March 22
    officially released June 21, 2011

      Brian J. Woolf, with whom were Michael A. Roussos and Kyle D. Macci, for the appellant (petitioner).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Ahmaad Lane, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel, TaShun Bowden-Lewis, rendered ineffective assistance in advising him whether to accept a plea offer from the state. We dismiss the appeal.

The petitioner was the defendant in a case, State v. Lane, 101 Conn. App. 540, 922 A.2d 1107, cert. denied, 283 Conn. 910, 928 A.2d 538 (2007), in which he was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). Those charges arose from an altercation wherein the petitioner shot the victim, Vincent Zappone, in front of the victim’s mother and another witness, Moses Rosario. The victim and witnesses knew the petitioner and identified him as the shooter. After a jury trial, the petitioner was convicted of the aforementioned charges and sentenced to a total effective term of twelve years incarceration followed by six years of special parole.

On appeal, the petitioner argued before this court that the trial court improperly denied his Batson challenge during jury selection by allowing the state to use peremptory challenges for two potential minority jurors, and for dismissing the only chosen minority juror because she failed to arrive at court for the start of trial. The petitioner also argued that the trial court improperly admitted evidence of the victim’s out-of-court identification of the petitioner from a photographic array. This court rejected both arguments and affirmed the judgment of the trial court. See id., 548-54.

On October 16, 2008, the petitioner filed a petition for a writ of habeas corpus. On October 6, 2009, the petitioner filed an amended petition, and the habeas court conducted a hearing on his amended petition. In his petition, the petitioner alleged that his trial counsel had rendered ineffective assistance by failing to (1) conduct an adequate pretrial investigation, (2) explain meaningfully to the petitioner the state’s plea offer and the potential consequences of being found guilty and (3) challenge effectively the state’s peremptory challenges and the dismissal of a minority juror. At the habeas trial, the court heard testimony from the petitioner, Bowden-Lewis and Conrad Seifert, an attorney who gave expert testimony as to the adequacy of BowdenLewis’ representation. On November 24, 2009, by memorandum of decision, the court rejected the petitioner’s claims, concluding that Bowden-Lewis had rendered effective assistance in her representation of the petitioner. The court also concluded that the petitioner suffered no prejudice through Bowden-Lewis’ representation because the petitioner adamantly denied committing the crime and had refused to plead guilty under any circumstances. On February 4, 2010, the habeas court denied the petitioner’s petition for certification to appeal. This appeal followed.

We initially set forth the well established standard of review and principles of law underlying the petitioner’s claims. “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. ... 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. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . . 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.

“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 . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed. . . .

“According to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a petitioner alleging ineffective assistance of counsel must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Citations omitted; emphasis in original; 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 petitioner claims that Bowden-Lewis rendered ineffective assistance by failing to advise him to accept a plea offer and, more specifically, by suggesting that the petitioner had a “fifty-fifty chance” of prevailing at trial. We conclude that, although Bowden-Lewis improperly advised the petitioner that he had a 50 percent chance of prevailing, her deficient performance did not prejudice the petitioner.

At the petitioner’s habeas trial, Bowden-Lewis testified that, prior to the petitioner’s rejection of the state’s final plea offer, she advised him that he had a 50 percent chance of prevailing at trial. In fact, she testified that she advises all of her clients that they have a 50 percent chance of prevailing at trial, regardless of the state’s evidence, because “you never know what a jury is going to do, whether you have a good case or a bad case.” We conclude that transmitting the plea offer to the petitioner, coupled with her estimate as to his probable success at trial, did not constitute an adequate explanation of the offer.

At the petitioner’s habeas trial, Seifert, who had reviewed the entire file in the petitioner’s underlying criminal case, testified that the case was overwhelmingly in favor of the state: “[T]he [petitioner] was misled into thinking he had a [50 percent] chance ... in a case with three eyewitnesses feet away from the shooter, two of whom—possibly the shooting victim himself maybe saw him earlier th[at] day in an elevator, but two of whom for weeks on end claim they saw [an individual] who they identified as [the petitioner] on the premises . . . [at] this apartment building. So it’s a very strong case.” Seifert also testified that, given the weight of the evidence, Bowden-Lewis’ failure to recommend that the petitioner take the state’s plea offer constituted deficient performance. On the basis of our review of the record before us, we conclude that Bow-den-Lewis’ performance in advising the petitioner that he had a 50 percent chance of success based on the overwhelming evidence against him fell below an objective standard of reasonableness.

For the petitioner to prevail, however, he must also show that “he would have accepted the [plea] offer and that the court would have rendered judgment in accordance with that offer.” Sanders v. Commissioner of Correction, 83 Conn. App. 543, 552, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). We agree with the habeas court that the petitioner failed to establish prejudice under Strickland. Based on the evidence before the habeas court, the petitioner had adamantly denied committing the crime and had refused to plead guilty under any circumstances. Although the petitioner testified at his habeas trial that even though he was innocent, he nevertheless would have “jumped on” the offer had it been explained to him properly, it was within the purview of the habeas court to disbelieve the petitioner’s self-serving testimony.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Douros v. Commissioner of Correction, 111 Conn. App. 525, 528-29, 959 A.2d 1041 (2008). Based on our review of the record and the habeas court’s findings, we cannot conclude that the petitioner would have accepted the state’s plea offer or that the court would have rendered judgment in accordance with that offer. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

         Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       The petitioner also presented the testimony of a witness who had given the police a statement the night of the shooting. That testimony, however, related to the petitioner’s first habeas claim, which is not at issue in this appeal.

       We also note that Bowden-Lewis’ custom of advising all clients facing trial by jury, regardless of the evidence, that they have a 50 percent chance of prevailing is questionable.


author: PER CURIAM.

text:
    JACKIE M. SELBY ET AL. v. THE BUILDING GROUP, INC., ET AL.
    (AC 32090)
    DiPentima, C. J., and Bishop and Gruendel, Js.

      Argued April 20
    officially released June 21, 2011

      Steven J. Selby, for the appellants (plaintiffs).

      Daniel W. Moger, Jr., for the appellee (arbitrator Peter L. Truebner).
   Opinion

PER CURIAM.

The plaintiffs, Steven J. Selby and Jackie M. Selby, appeal from the judgment of the trial court denying their motion to recover arbitration fees. The sole issue raised in this appeal is whether the trial court has jurisdiction to order a nonparty, court-appointed arbitrator to return fees that the plaintiffs had paid to him. We conclude that it does not and, accordingly, affirm the judgment of the trial court.

The pertinent facts are not in dispute. The plaintiffs commenced the underlying action against the defendants after a dispute arose between the parties in relation to a contract for the construction and purchase of a new home. Pursuant to General Statutes §§ 52-410 and 52-411, and in accordance with the terms of the contract between the parties, the court ordered the defendants to participate in arbitration and appointed attorney Peter L. Truebner as arbitrator. Arbitration took place in July, 2008, and on November 17, 2008, the arbitrator issued his decision awarding the plaintiffs damages of $ 11,416.90. The plaintiffs paid the arbitrator $ 2500 in fees. Thereafter, the plaintiffs filed a motion to confirm the arbitrator’s award, to which the defendants filed an objection claiming that the arbitrator’s award was of no legal effect because it was issued beyond the time limit set forth in General Statutes § 52-416 (a). The court concluded that it could not enforce the award because the arbitrator’s award was of no legal effect pursuant to § 52-416 (a). Ultimately, however, the defendants were defaulted, and, after a hearing in damages, the court rendered judgment for the plaintiffs in the amount of $19,786.68.

Prior to judgment, the plaintiffs filed a motion to recover arbitration fees seeking to have the court issue an order compelling Truebner to return the $ 2500 fee they had paid to him. The plaintiffs argued that they were entitled to recover this fee because Truebner had failed to follow the court order appointing him as arbitrator, which required him to “issue a ruling that will be binding on the parties as set forth in paragraph 17 (8) (b) of the [c]ontract.” (Internal quotation marks omitted.) Truebner filed an objection to this motion arguing, inter alia, that the trial court lacked jurisdiction to entertain the plaintiffs’ claim against a nonparty to the action. The court denied the plaintiffs’ motion, reasoning that “[t]he court appointed arbitrator Truebner pursuant to § 52-411. Accordingly, in the words of the statute, the arbitrator acted under the agreement ‘with the same force and effect as if he had been specifically named . . . therein.’ Therefore, the arbitrator is not a party to this proceeding, nor is he an arm of the court. Compensation of the arbitrator is governed by the agreement. The court has no jurisdiction over the arbitrator because he is not a party.” The plaintiffs then filed this appeal, and we ordered, sua sponte, that the arbitrator be made a party to the appeal.

The plaintiffs claim that the court improperly denied its motion to recover arbitration fees because it erroneously concluded that it lacked jurisdiction over the arbitrator. Specifically, the plaintiffs argue that if a court has jurisdiction to appoint an arbitrator and order the parties to pay his fees, it must also have jurisdiction to resolve any dispute over the arbitrator’s fees. We disagree.

A challenge to the jurisdiction of the trial court presents a question of law over which our review is plenary. Rossman v. Morasco, 115 Conn. App. 234, 260, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009). “The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it. . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding.” (Emphasis added; internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 721-22, 826 A.2d 107 (2003). “It is axiomatic that a court does not have personal jurisdiction over a nonparty. If a court lacks jurisdiction over a person . . . the court has no authority to award a judgment against that person . . . .” (Internal quotation marks omitted.) Rossman v. Morasco, supra, 261; see East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368, 373, 561 A.2d 1388 (1989) (“a court cannot render a judgment enforceable against a nonparty”).

We agree with the first part of the plaintiffs’ argument that the court did have jurisdiction to order the plaintiffs and the defendants to arbitrate their dispute pursuant to § 52-410 and then to appoint an arbitrator pursuant to § 52-411. The arbitrator, however, was not named as a party in the action before the court, and therefore the court had no authority to issue an order requiring the arbitrator to disgorge the fees that the plaintiffs had paid to him. The cases cited by the plaintiffs are inapposite. In State v. Salmon, 250 Conn. 147, 150-51, 735 A.2d 333 (1999), as in State v. Marro, 68 Conn. App. 849, 851-52, 795 A.2d 555 (2002), the nonparty surety of a bail bond had filed in the trial court a motion for partial rebate of the forfeited bond under General Statutes § 54-65a (b). That section explicitly provides the nonparty surety of a bail bond with such relief. The plaintiffs in the present appeal have no statutory right to recover fees paid to a nonparty arbitrator.

The judgment is affirmed.

       The defendants in the underlying action are not parties to this appeal.

       The plaintiffs claim that they paid this amount to the arbitrator, and the arbitrator does not dispute this claim. Moreover, the claim is supported by statements made by Steven Selby in an affidavit that he filed with the trial court.

       General Statutes § 52-416 (a) provides in relevant part: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed .... An award made after that time shall have no legal effect . . . .”

       General Statutes § 54-65a (b) provides: “Whenever an arrested person, whose bond has been forfeited, is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited, the surety on such bond shall be entitled to a rebate of that portion of the forfeited amount as may be fixed by the court or as may be established by a schedule adopted by rule of the judges of the court.”


author: BEACH, J.

text:
    IN RE KIARA R.
    (AC 32709)
    DiPentima, C. J., and Beach and Flynn, Js.
    Argued April 19
    officially released June 21, 2011

      Anne Louise Blanchard, with whom were Bet Gailor and, on the brief, Melanie Starks, for the appellant (respondent mother).

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

BEACH, J.

The respondent mother appeals from the decision of the trial court not to rule on a portion of an emergency motion she had filed to restore, inter alia, her unsupervised visitation with her minor daughter but, rather, to refer the matter for an administrative hearing. The respondent claims that the court erred in (1) failing to hold an evidentiary hearing pursuant to General Statutes § 46b-129 (k) (1) and Practice Book § 35a-14 (f) after the petitioner, the commissioner of children and families, terminated her unsupervised visitation provided for in a permanency plan and (2) declining to exercise primary jurisdiction over the respondent’s emergency motion to restore unsupervised visitation. For the reasons that follow, we dismiss the appeal as moot.

The record reflects the following. In 2006, the petitioner filed a petition alleging that the respondent’s minor daughter, Kiara, was neglected. On January 17, 2007, the court found Kiara to be neglected and ordered a period of protective supervision, wherein Kiara was to reside with the respondent. At a hearing on April 29, 2008, the court granted the petitioner’s motion to open and to modify the disposition of protective supervision to commitment and ordered that Kiara be committed to the care and custody of the petitioner as of May 8, 2009, On May 5, 2010, the court approved the petitioner’s permanency plan to revoke commitment and to reunite Kiara with the respondent. On September 2, 2010, the respondent filed a motion to revoke commitment. On September 17, 2010, the respondent filed a motion for emergency relief, asking that the court order the petitioner to restore unsupervised visitation and family therapy sessions, both of which the petitioner had terminated. On September 29, 2010, the court heard argument on the motion for emergency relief. The court ordered that counseling resume but stated that it would not issue orders regarding visitation. It suggested that if the respondent wished to pursue the issue of restoring unsupervised visitation, she should request an administrative hearing with the department of children and families (department) pursuant to General Statutes § 17a-15 (c). On November 5, 2010, the respondent filed the present appeal. The respondent argues that, in the circumstances of this case, the court was required to decide the visitation issue rather than referring it to an administrative agency.

On April 5, 2011, the petitioner filed a motion with this court to dismiss the respondent’s appeal as moot. In its motion, the petitioner suggested that this appeal is moot because on March 31, 2011, subsequent to the filing of the appeal, the trial court granted the respondent’s motion to revoke commitment, thereby returning Kiara to the respondent’s care, although under protective supervision. At oral argument before this court, the parties addressed the issue of mootness and the claims on appeal. We conclude, and both the petitioner and the respondent agree, that the trial court’s granting of the respondent’s motion to revoke commitment renders this appeal moot. We cannot afford practical relief on the issue of visitation because Kiara now resides with the respondent. The respondent argues, however, in her objection to the petitioner’s motion to dismiss, that her otherwise moot appeal is eligible for resolution under the “capable of repetition yet evading review” exception to the mootness doctrine. Because the petitioner’s motion concerns our subject matter jurisdiction over the appeal, we must address the motion as a threshold issue.

“Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.” (Internal quotation marks omitted.) New Image Contractors, LLC v. Village at Mariner’s Point Ltd. Partnership, 86 Conn. App. 692, 698, 862 A.2d 832 (2004). “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... 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.” (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754, 826 A.2d 156 (2003).

“An otherwise moot question may qualify for review under the well established ‘capable of repetition, yet evading review’ exception to the mootness doctrine. See Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). In Loisel, our Supreme Court set forth three requirements that an otherwise moot question must satisfy in order to qualify for review under this exception. ‘First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.’ Id., 382-83.” In re Priscilla A., 122 Conn. App. 832, 836, 2 A.3d 24 (2010).

We begin our analysis with the first requirement of Loisel. “The first element in the analysis pertains to the length of the challenged action. . . . The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing five controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome. ... [A] party typically satisfies this prong if there exists a functionally insurmountable time [constraint] ... or the challenged action had an intrinsically limited lifespan.” (Citations omitted; internal quotation marks omitted.) Id., 836-37.

The respondent argues that the first Loisel requirement is satisfied because the statutory framework imposes a functionally insurmountable time constraint on parents who appeal decisions in relation to their children’s court approved permanency plans. In support of her argument, she highlights the following statutes and rule of practice. Pursuant to § 46b-129 (k) (1), the petitioner is required to file a motion for review of a permanency plan within nine months after the placement of the child into care, and subsequent permanency hearings must be held not less frequently than every twelve months while the child remains in the petitioner’s care. Any party opposing the permanency plan must file a motion in opposition not later than thirty days after the filing of the motion for review and the court must hold evidentiary hearings on any contested motion for review of a plan not later than ninety days after the filing of the motion. Pursuant to § 46b-129 (k) (1) and Practice Book § 35a-14 (f), the petitioner may move to modify a court approved permanency plan at any time within the twelve month period, and under § 46b-129 (m), the petitioner, a parent, or the child’s attorney may file a motion to revoke commitment at any time but not more often than once every six months. A permanency plan that contains visitation provisions is subject, then, to frequent reviews and potential revisions. The respondent contends, therefore, that she and other parents who file motions and request hearings relating to the permanency plan and who are dissatisfied with a court’s referring the matter to the department and file an appeal, are substantially likely to have their appeals rendered moot by a later order.

There are, then, time requirements regarding the relevant motions and hearings. These time requirements, however, do not demonstrate that the action on which the respondent bases her appeal is of inherently limited duration. On appeal, the respondent claims that the court erred (1) in declining to hold an evidentiary hearing or to issue any orders regarding the portion of her emergency motion in which she requested that the court order the petitioner to restore her unsupervised visitation with Kiara consistent with the permanency plan and (2) in declining to exercise primary jurisdiction over her emergency motion. The respondent’s claims became moot when the court granted her motion to revoke commitment, thereby returning Kiara to her care under protective supervision. There is nothing to suggest that the statutory time requirements providing for review of permanency plans necessarily render decisions regarding primary jurisdiction moot. In addition, it is not strongly likely that other parents in a similar situation who file motions, request hearings and appeal the court’s rulings regarding their requests will, in a substantial majority of cases, have their appeals rendered moot by a further order of the court.

Case law is instructive as to what types of actions have an inherently limited duration such that they evade relief by appeal. The analysis is quite straightforward where the action in question is by its own terms of limited duration. For example, in Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 957 A.2d 821 (2008), a parent attempted to contest his obligation, on constitutional grounds, to attend a parenting education program. Id., 364-65. The parent was obligated by Practice Book § 25-5 (a) (6) to comply within sixty days of the return day. Id., 365. The Supreme Court explained that, within that time frame, an appeal could not be held in time to afford relief, and the first Loisel factor was thus satisfied. Id., 367-69; see also In re Steven M., supra, 264 Conn. 754-56 (order necessarily in effect for less than eighteen months); Kennedy v. Putman, 97 Conn. App. 815, 820, 905 A.2d 1280 (2006) (temporary restraining order necessarily of short duration).

The case at hand is different. To whatever extent the court’s decision not to issue an order with respect to visitation and, instead, to refer the matter to the department is of limited duration, it is so not because of an inherent limitation in the effect of the decision, but, rather, because of the effect of other factors upon it. That is to say, the court’s decision is effective, in the sense that an appeal could afford practical relief, so long as a court order does not supersede the department’s action. There is nothing that necessarily terminates the efficacy of the court’s decision at any particular time.

Several factually similar situations have been reviewed on appeal. In In re Justin F., 116 Conn. App. 83, 976 A.2d 707, cert. dismissed, 292 Conn. 913, 973 A.2d 660, cert. denied, 293 Conn. 914, 978 A.2d 1109 (2009) , cert. denied sub nom. Albright-Lazzari v. Connecticut, 559 U.S. 912, 130 S. Ct. 1298, 175 L. Ed. 2d 1087 (2010) , the parents claimed that the court improperly “ceded to the department the responsibility to determine visitation in accordance with the best interests of the [children] . . . .” Id., 108-109. This court noted that General Statutes § 17a-10a directs the department to prepare a plan of treatment, including visitation as frequent as reasonably possible. Id., 109. If a parent of a committed child disagrees with any of the provisions of the department’s plan, then § 17a-15 (d) entitles such an aggrieved parent, after a hearing, to pursue an appeal pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. Id. Although this court rejected the parents’ claim on the merits, it considered the merits—the claim that referral to the department was improper had not been rendered moot by other superseding court orders. Id., 108-10.

In re Candace H., 63 Conn. App. 493, 776 A.2d 1180 (2001) , appeal dismissed, 259 Conn. 523, 790 A.2d 1164 (2002) , presented another interlocutory appeal from an order regarding visitation. There, the respondent mother contested the trial court’s order declining to allow visitation with her minor child. Id., 494. This court heard and rejected the mother’s appeal on the merits. Id., 498-502. The trial court also ordered, however, that visitation with the child be determined by the child’s aunt and uncle and the department. Id., 503. This court held, on the merits, that the delegation of authority to the relatives and the department was improper. Id., 504. The Supreme Court, on petition by the department, certified the question whether this court properly concluded that it was impermissible to delegate the visitation determination to the department. In re Candace H., 257 Conn. 907, 777 A.2d 686 (2001). While the appeal was pending, the mother voluntarily relinquished her parental rights, thus rendering the appeal moot. In re Candace H., 259 Conn. 523, 526, 790 A.2d 1164 (2002). The Supreme Court unambiguously held that “the issue presently before the court is not capable of repetition, yet evading review and, therefore, does not qualify for review under the exception to the mootness doctrine as enunciated in Loisel . . . .” Id., 526-27. This holding would appear to control the disposition of the matter at hand.

Finally, the question of whether a particular ruling is substantially likely to evade review may depend at least in part on how broadly the ruling is defined. In In re Priscilla A., supra, 122 Conn. App. 833, the respondent juvenile appealed from a ruling of the trial court extending her delinquency commitment for an additional six months. The extension was ordered by a judge trial referee. The respondent’s position was that the judge trial referee was not capable of acting without the consent of all the parties. Id. While the appeal was pending, the commitment expired, rendering the matter moot. Id., 835. The issue, moreover, did not evade review. Although the commitment in question may have been of such limited duration that review was unlikely in the normal course of events, the issue presented was not the actual commitment but, rather, the ability of the judge trial referee to act. See id., 838. This issue could arise in a variety of contexts. Therefore, this court concluded that there was no support “for the proposition that all juvenile matters assigned to judge trial referees are by their very nature of so limited a duration that a substantial majority of cases challenging their validity will become moot before appellate litigation can be concluded. A fundamental requirement for the application of the mootness exception ... is that the challenged action is strongly likely to evade appellate review in future cases.” (Emphasis in original.) Id., 838-39.

In the case at hand, the issue arises in the context of the court’s decision with respect to the emergency motion to restore unsupervised visitation, but the real issue is the ability of the court to refer matters to the department for disposition by an administrative hearing. The pertinent statute, § 17a-15 (c), provides for department hearings for virtually every aspect of the permanency plan. There has been no showing that all aspects of the plan are of such inherently short duration that effective review is unlikely.

Of course, it should be noted that the issue in this matter would not have been moot if the court had not granted the respondent’s motion to revoke commitment shortly after this appeal was filed. Although not dispositive in itself, the fact that this matter became moot because of an extraneous factor that did not occur of necessity militates against a holding that the issue is likely to evade review.

In failing to establish that the substantial majority of cases presenting the dispositive issue evade review, the respondent has foundered on the first requirement of the exception to the mootness doctrine. See In re Forrest B., 109 Conn. App. 772, 776, 953 A.2d 887 (2008). Accordingly, we reject the respondent’s claim that the capable of repetition, yet evading review exception applies to her appeal. We must grant the petitioner’s motion to dismiss the appeal for lack of subject matter jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       The respondent father is not a party to this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       Prior to September 2, 2010, the respondent was permitted both supervised and unsupervised visits with Kiara. Supervised visits remained intact after the September 29, 2010 hearing.

       The Supreme Court also vacated the judgment of this court regarding the propriety of the delegation of the visitation determination to the department. In re Candace H., supra, 259 Conn. 527.


author: BEAR, J.

text:
    W. JAMES RICE v. HOUSING AUTHORITY OF THE CITY OF MERIDEN ET AL.
    (AC 31236)
    Robinson, Bear and West, Js.

      Argued October 27, 2010
    officially released June 28, 2011

      Leon M. Rosenblatt, for the appellant (plaintiff).

      Barry T. Pontolillo, for the appellee (defendant Barry T. Pontolillo).
   Opinion

BEAR, J.

The plaintiff, W. James Rice, appeals from the judgment of the trial court setting aside the verdict of the jury and rendering judgment in favor of the defendant Barry T. Pontolillo. On appeal, the plaintiff claims that the court abused its legal discretion by improperly setting aside the jury verdict in favor of the plaintiff on his claim against the defendant for tortious interference with contractual and beneficial relations. Specifically, the plaintiff asks us to determine: “Did the trial court err in holding that the jury could not reasonably have decided that Barry T. Pontolillo’s actions were a contributing proximate cause of Rice’s termination from the Meriden Housing Authority?” To answer this question, it is necessary for us to review all of the testimony and other evidence placed before the jury at trial. However, notwithstanding the requirements of our rules and the experience of the plaintiffs counsel, counsel did not file with his appellate brief either the written or electronic versions of the trial transcripts, both of which are necessary to provide an adequate record for our review in this appeal, nor did he take any steps after the filing of his brief or after oral argument, and prior to this opinion, to seek to obtain late permission to supplement the record before us. Therefore, although the plaintiffs claim as presented in his brief and at oral argument may be colorable, because the record is inadequate for our review, we are unable to determine whether the evidence supports his arguments. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our conclusion. The jury found in favor of the plaintiff on his claim for tortious interference with contractual and beneficial relations against the defendant, and it awarded the plaintiff $671,036 in damages. The jury also awarded $1 in emotional distress damages and stated on the verdict form that an award of punitive damages was warranted. In response to the verdict, the defendant filed a motion for a “directed verdict, to set aside the verdict, or to grant a new trial.” By memorandum of decision filed March 27, 2009, the court granted the defendant’s motion to set aside the verdict, holding that the defendant did not cause or bring about the plaintiffs job loss. This appeal followed.

After the parties filed their appellate briefs and the case was argued before this court, the panel, upon receiving the appellate record from our clerk’s office, determined that there were no transcripts in the record. After contacting the appellate clerk’s office, this court discovered that the plaintiffs counsel had filed a statement with our clerk’s office stating that it was not necessary for him to file a transcript order form, JD-ES-38, in accordance with Practice Book § 63-8 (a) because he already had obtained a transcript and would be filing that transcript himself. The plaintiffs counsel failed, however, to file a paper or electronic transcript of the proceedings before the trial court when he filed his appellate brief in April, 2010, in violation of Practice Book § 63-8 (e) (1) (“appellant is required, either before or simultaneously with the filing of the appellant’s brief, to file with the appellate clerk one unmarked, nonretumable copy of the transcript”). At this court’s request, the appellate clerk’s office notified counsel of his failure to adhere to our rules of practice. On December 30, 2010, counsel delivered seventeen volumes of the paper transcript to the appellate clerk’s office but did not file an electronic version of the transcript as required by Practice Book § 63-8A.

Upon receiving notice that the plaintiffs counsel had filed the paper transcripts, the defendant, on January 7, 2011, moved to strike them as untimely, citing in part to Practice Book § 61-10. In response to the defendant’s motion to strike the transcripts, the plaintiffs counsel filed an untimely “response,” in which counsel merely stated that he “simply did what the court instructed him to do—to bring in and deposit copies of the trial transcript.” The plaintiffs counsel did not offer any objection to the motion to strike and provided no explanation as to why the transcript was not timely filed, why he failed to comply with the rules and why he did not ask that we excuse his failure to do so. As a result, we granted the defendant’s motion to strike the transcripts.

“In reviewing a trial court’s decision to set aside a jury verdict, we must consider the evidence in the light most favorable to the party who succeeded before the jury. . . . While an appellate court must give great weight to a trial court’s decision to set aside a verdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. Great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason. However, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury.” (Internal quotation marks omitted.) Nuzzo v. Nathan, 123 Conn. App. 114, 118, 1 A.3d 267 (2010), quoting Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417, 425, 780 A.2d 967, cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002). “[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion . . . .” (Internal quotation marks omitted.) Id., 118-19.

After thoroughly reviewing the briefs, arguments and the record properly before us, we conclude that we are unable to determine the merits of the plaintiffs claim without the benefit of the transcripts of the proceedings, there being no way in their absence for us to examine fully the evidence that was before the jury in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant, the housing authority of the city of Meriden, is not a party to this appeal. Several other parties also were named as defendants but were removed prior to trial and are not relevant to this appeal. Consequently, we refer to Pontolillo as the defendant.

       Practice Book § 63-8 (a) provides in relevant part: “[T]he appellant shall . . . order . . . from the official reporter a transcript and an electronic version of a transcript of the parts of the proceedings not already on file which the appellant deems necessary for the proper presentation of the appeal. . . .”

       Practice Book § 63-8A provides in relevant part: “(a) Any party ordering a transcript of evidence as part of an appeal, a writ of error, or a motion for review shall, at the same time, order from the court reporter an electronic version of the transcript. If the party already has the transcript to be submitted to the court, the party shall order an electronic version of the transcript within the period specified by these rules for the ordering of a transcript.
      We note that on his statement that it was not necessary for him to file a transcript order form, the plaintiffs counsel stated that the Meriden housing authority would be filing an electronic version of the transcript of the proceedings in its separate appeal and that, therefore, we would have both types of transcripts available for review in this appeal. The Meriden housing authority, however, withdrew its appeal, and no transcript, electronic or paper, was filed in that case.

       The failure of the plaintiffs counsel to file the transcript in a timely manner would have been deemed waived had the defendant’s counsel not objected to the untimely filing via the motion to strike. See LaReau v. Reincke, 158 Conn. 486, 493-94, 264 A.2d 576 (1969).

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”