text:
    HOST AMERICA CORPORATION v. DEBRA RAMSEY ET AL.
    (AC 28488)
    Gruendel, Lavine and Pellegrino, Js.

      Argued March 10
    officially released May 20, 2008

      David A. Ryan, Jr., with whom, on the brief, was Heather L. Bannister, for the appellant (plaintiff).

      Robert A. Richardson, with whom, on the brief, was Joseph D. Garrison, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The plaintiff, Host America Corporation, appeals from the judgment of the trial court denying it injunctive relief from arbitrating a breach of contract claim filed with the American Arbitration Association by the defendants, Debra Ramsey and Anne Ramsey. The plaintiff claims that the court abused its discretion when it denied its request for injunctive relief because it improperly (1) found that the secondary evidence produced by the defendants was sufficient to prove the former existence, present unavailability and contents of the defendants’ employment agreements, (2) found that Geoffrey Ramsey, the former chief executive officer of the plaintiff corporation, had the apparent authority to enter into employment agreements with the defendants on behalf of the plaintiff, and (3) shifted the burden of proof to the plaintiff to prove that the defendants’ employment agreements were not executed validly and failed to make a finding regarding the validity of the agreements. We affirm the judgment of the trial court.

The plaintiff is a corporation in the business of providing food service and energy management services. The defendants are former employees of the plaintiff who worked for it from its inception in 1986. Anne Ramsey was the human resources director, a member of the plaintiffs board of directors and the sister of the plaintiffs founder and former chief executive officer, Geoffrey Ramsey. Debra Ramsey was an administrative assistant and is Geoffrey Ramsey’s wife.

In early 2003, the plaintiff entered into negotiations to acquire GlobalNet Energy Investors, Inc. (GlobalNet), a Texas company engaged in energy management services. Geoffrey Ramsey feared that GlobalNet shareholders might gain control and decide to move the company to Texas, which he and the defendants were unwilling to do. After discussing his concern with David Murphy, the then chief financial officer and current chief executive officer of the plaintiff, Geoffrey Ramsey decided that he, the defendants and Murphy should have employment agreements. Geoffrey Ramsey contacted the plaintiffs attorney, John Wills, and Wills referred him to another attorney in his firm, Michael Belo, who would be able to assist him in creating the employment agreements. Belo drafted the agreements and e-mailed the final versions to Anne Ramsey on January 22, 2004. The agreements for Geoffrey Ramsey and Murphy contained a signature line for each of them individually and one for Thomas Eagan, the compensation committee chairman, on behalf of the board of directors. The defendants’ agreements also had signature lines for each of them individually, but instead of having a signature line for Eagan, their agreements had a signature fine for Geoffrey Ramsey. In addition, the defendants’ agreements each contained an arbitration clause.

At some point in March, 2004, the compensation committee of the plaintiffs board of directors met informally in Geoffrey Ramsey’s office. The compensation committee consisted of Geoffrey Ramsey, Eagan and John D’Antona. Eagan reviewed the agreements for Murphy, Geoffrey Ramsey and Anne Ramsey. He approved Murphy’s and Geoffrey Ramsey’s agreements but stated that he believed that Anne Ramsey’s agreement was “very liberal” and “too rich,” given her position. He further stated that he could not recommend it to the board and that he was “tabling” it. He did, however, convey to Geoffrey Ramsey and Anne Ramsey that Anne Ramsey’s agreement would be revisited at a later date. The agreements for Geoffrey Ramsey and Murphy were reviewed and approved by the board on March 30, 2004. Although the board was never presented with the agreements for either of the defendants, the defendants and Geoffrey Ramsey testified that they executed the agreements sometime in March, 2004, and that Geoffrey Ramsey had signed them on behalf of the plaintiff, as the defendants’ agreements provided. After being executed, the defendants’ agreements were placed in Geoffrey Ramsey’s desk drawer. On August 30, 2005, the board of directors held a meeting, the result of which was the suspension of Geoffrey Ramsey’s employment. He was also prohibited from entering the plaintiffs premises.

In early November, 2005, Debra Ramsey, at the request of Geoffrey Ramsey, entered his office in order to retrieve a computer disk from his desk. She discovered that the desk’s contents, including her and Anne Ramsey’s employment agreements, were missing. When he learned that the agreements were missing, Geoffrey Ramsey suggested that they replace them by printing copies and signing them. The replacement agreements were signed on or about November 10,2005. On November 9, 2005, after speaking with someone from the plaintiffs law firm, Murphy learned that the defendants had employment agreements. At some point, he asked Anne Ramsey about the agreements, and she confirmed that she and Debra Ramsey had existing employment agreements with the company. Following that conversation, Anne Ramsey presented Murphy with the replacement agreements. The plaintiff, thereafter, through its board, conducted an investigation into the validity of the employment agreements. On November 23, 2005, the defendants’ employment was terminated.

In December, 2005, the defendants filed a claim for arbitration with the American Arbitration Association against the plaintiff, alleging breach of contract. In response, the plaintiff brought an action in the Superior Court seeking an injunction in order to prevent the matter from going to arbitration because, it alleged, it would be irreparably harmed if forced to arbitrate the defendants’ claims in accordance with employment agreements to which it did not believe it was bound. Specifically, the plaintiff claimed that the employment agreements were entered into fraudulently and without the authority and or knowledge of the plaintiffs board of directors. In addition, the plaintiff claimed that it had no adequate remedy at law. The defendants moved to dismiss the injunction action and argued that the arbitrator, not the court, should decide whether a valid arbitration agreement existed. The court denied the defendants’ motion to dismiss and held that the court, not the arbitrator, should determine whether the employment agreements were valid. The court then held a hearing on the application for permanent injunction, which was subsequently denied. From that judgment, the plaintiff appeals.

“[T]he governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction [are]: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Internal quotation marks omitted.) Kelo v. New London, 268 Conn. 1, 89, 843 A.2d 500 (2004), aff'd, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005).

I

The plaintiff first claims that the court abused its discretion in denying its application for injunctive relief because the court’s finding that the defendants proved the former existence, present unavailability and contents of the defendants’ employment agreements through secondary evidence is clearly erroneous. “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. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling. ” (Internal quotation marks omitted.) Barber v. Skip Barber Racing School, LLC, 106 Conn. App. 59, 66, 940 A.2d 878 (2008).

In Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 573, 518 A.2d 928 (1986), our Supreme Court set forth the quantum of proof required when secondary evidence is produced in lieu of the original document: “Such a party must demonstrate both (a) the former existence and the present unavailability of the missing document, and (b) the contents of the missing document.” Id. Furthermore, the court concluded that application of these principles to the circumstances of a given case involves nothing more than the resolution of disputed questions of facts. Id., 575.

In the present case, the court found that the defendants met their twofold burden. In so determining, the court found that the defendants submitted into evidence an e-mail from the attorney who prepared the agreements, indicating that the agreements existed and were final, that Eagan testified as to having reviewed Anne Ramsey’s agreement in March, 2004, and that both the defendants and Geoffrey Ramsey testified that they executed the agreements in March, 2004. In addition, the court heard testimony that the agreements were placed in Geoffrey Ramsey’s desk and were there as of August 30, 2005, but that after Geoffrey Ramsey’s employment was suspended and his desk cleaned out, the agreements could not be found. Furthermore, the plaintiff submitted to the court the employment agreements given to it by Anne Ramsey in November, 2005, and the defendants submitted an e-mail from their attorney that contained the “final” version of the agreements as prepared in March, 2004. Although there were slight differences between the e-mail and the replacement agreements, the court found that they were nearly identical, and the court was satisfied that the evidence was sufficient to show the content of the lost agreements. On the basis of all the evidence before it, the court found that the defendants had met their burden to prove the former existence, present unavailability and contents of the original agreements. Because there was evidence before the court on which it could base its findings, the findings were not clearly erroneous.

II

The plaintiff next claims that the court abused its discretion in denying its application for injunctive relief because the court’s finding that Geoffrey Ramsey had apparent authority to bind the plaintiff to the terms of the defendants’ employment agreements was clearly erroneous. We disagree.

“Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. . . . Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action.” (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn. App. 832, 838-39 n.8, 890 A.2d 622 (2006). Because “[i]t is well settled that [t]he nature and extent of an agent’s authority is a question of fact for the trier”; (internal quotation marks omitted) id., 839; the court’s determination that Geoffrey Ramsey had apparent authority to bind the plaintiff must stand if there is any evidence in the record to support it.

In its memorandum of decision, the court found that Geoffrey Ramsey was accustomed to signing employment agreements without prior or subsequent approval of the board, that the board had acquiesced in such conduct and that the defendants were familiar with those practices. On the basis of this course of dealing, the court determined that the defendants were justified in believing that Geoffrey Ramsey had authority to execute their agreements. In addition, the court found that an attorney from the plaintiffs law firm prepared the defendants’ agreements, as well as Murphy’s and Geoffrey Ramsey’s agreements. In doing so, the attorney provided a signature line only for Geoffrey Ramsey on behalf of the company for the defendants’ agreements, whereas the attorney provided a signature line requiring board approval for Geoffrey Ramsey’s and Murphy’s agreements. The court found that counsel’s indication that Geoffrey Ramsey had authority to sign the defendants’ agreements without board approval provided further grounds for reliance by the defendants that Geoffrey Ramsey was authorized to execute their agreements. Furthermore, the court found that even though corporate presidency does not necessarily confer inherent authority to commit the corporation, corporation presidents are often “clothed with authority to enter into employment contracts,” a fact that further supports the defendants’ reasonable belief that Geoffrey Ramsey had the authority to act on behalf of the company. Moreover, the court found that there was nothing extraordinary or unusual about the agreements that would make it unreasonable for the defendants to believe that Geoffrey Ramsey had the authority to bind the plaintiff. As there was evidence in the record from which the court could conclude that Geoffrey Ramsey had signed employment agreements in the past, that the board had acquiesced in this behavior and that the defendants reasonably believed he had authority to sign their employment agreements, the court’s finding that Geoffrey Ramsey had apparent authority to sign the agreements was not clearly erroneous.

Ill

Last, the plaintiff claims that in denying its application for injunctive relief, the court improperly shifted the burden of proof to the plaintiff to establish a negative, that the employment agreements were not validly executed in March, 2004. In addition, the plaintiff claims that the court abused its discretion in denying the plaintiffs application for an injunction because the court failed to determine whether the agreements were executed and binding on the plaintiff.

In an injunction action, “[t]he party seeking the injunction must prove his own case and adduce whatever proof is necessary to show the existence of the conditions or circumstances upon which he bases the right to and necessity for injunctive relief, and he must establish his right thereto by a preponderance of the evidence.” 42 Am. Jur. 2d, Injunctions § 287 (1969). The overall burden, therefore, was on the plaintiff to prove by a preponderance of the evidence that it would be irreparably harmed. In determining whether the plaintiff had met its burden, the court had to make preliminary determinations, including whether the secondary evidence presented to the court was sufficient to establish the former existence, present unavailability and contents of the defendants’ employment agreements and whether the agreements were executed validly in March, 2004. Contrary to the plaintiffs assertion, the burden was placed on the defendants to prove these preliminary matters.

In accordance with Connecticut Bank & Trust Co. v. Wilcox, supra, 201 Conn. 573, it was the defendants’ burden to prove that the secondary evidence presented to the court was sufficient to establish the former existence, present unavailability and contents of the missing agreements. The court found that the defendants had met their burden and, in so finding, also found that the defendants and Geoffrey Ramsey had signed the agreements in March, 2004. After determining that the agreements existed and were signed by the defendants and Geoffrey Ramsey, the court next had to determine whether Geoffrey Ramsey had the authority to bind the plaintiff through his signature. The defendants presented evidence of Geoffrey Ramsey’s apparent authority to bind the plaintiff, and the court credited the evidence. The court, therefore, contrary to the plaintiffs assertion, found that the agreements were executed in March, 2004, and binding on the plaintiff. Because the plaintiff was bound by the defendants’ agreements, and because the agreements contained an arbitration clause, the court ultimately concluded that the plaintiff had failed to meet its burden to prove it would be irreparably harmed if forced to arbitrate the defendants’ claims. Having already concluded that the court’s findings are not clearly erroneous, we ultimately conclude that the court did not abuse its discretion in determining that because the plaintiff was bound to the defendants’ agreements, it would not be irreparably harmed from arbitrating the defendants’ claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Geoffrey Ramsey was not a party to this action. As such, he is not a party to this appeal.

       Murphy testified that he had moved the contents of Geoffrey Ramsey’s desk to his home during the first week of September, 2005, and that after going through the materials, he did not discover the defendants’ employment agreements.

       The court did not reach the plaintiffs claim of fraud.

       The plaintiff argues that the court’s finding that the secondary evidence was sufficient to prove the contents of the original agreements was clearly erroneous because the replacement agreements differed from the original agreements. The court heard testimony regarding the differences between the original agreements and the replacement agreements, credited that testimony and was satisfied that it was able to discern the contents of the original agreements from all the evidence that was presented to it. Because the court’s finding is supported by the record, it was not clearly erroneous.

       The plaintiff also argues that the court improperly found that the agreements existed and were unavailable because it failed to find that the defendants diligently searched for the missing agreements. We disagree. The court found that the defendants’ employment agreements were placed in Geoffrey Ramsey’s desk, that the employment agreements were in his desk as of the time he was suspended from his employment and prevented from returning to his office, that the agreements were not in the desk after Murphy removed its contents and that Murphy searched through the removed contents and could not find the employment agreements. To the extent that the plaintiff argues that the court did not explicitly characterize the search for the missing agreements as diligent, it should have filed a motion for articulation in accordance with Practice Book § 66-5. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).
      In addition, the plaintiff argues that Anne Ramsey’s failure to include her and Debra Ramsey’s employment agreements in the company’s filing in accordance with the Securities and Exchange Commission form 10-KSB was evidence that the employment agreements did not exist. The court, however, did not make such a finding. In contrast, the court found that Anne Ramsey did not include her and Debra Ramsey’s agreements in the plaintiffs 10-KSB filing because their contracts involved less than $100,000 annually, and she reasonably believed that the disclosure requirements for the 10-KSB filing did not apply to employment agreements involving less than $100,000 annually. The court, as the finder of fact, was free to make this determination, and it is not for this court to retry the facts or pass on the credibility of witnesses. See Reichenbach v. Kraska Enterprises, LLC, 105 Conn. App. 461, 476, 938 A.2d 1238 (2008).

       Although we disagree and conclude that the court made this finding, we note that if the plaintiff believed that the court failed to make a finding necessary to the judgment, it had an obligation to file a motion for articulation in accordance with Practice Book § 66-5.


source: Caselaw Access Project

author: LAVERY, J. LAVINE, J.,

license: Public Domain

text:
    DURKIN VILLAGE PLAINVILLE, LLC v. ZONING BOARD OF APPEALS OF THE TOWN OF PLAINVILLE ET AL.
    (AC 28362)
    DiPentima, Lavine and Lavery, Js.

      Argued January 2
    officially released May 20, 2008

      David A. Estabrook, with whom, on the brief, were Robert A. Ziegler, Jeffrey M. Knickerbocker and Leslee B. Hill, for the appellant (plaintiff).

      Robert A. Michalik, for the appellee (named defendant).

      William T. Barrante, for the appellee (defendant Jennifer Bartiss-Earley).
   Opinion

LAVERY, J.

The plaintiff, Durkin Village Plainville, LLC, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant zoning board of appeals of the town of Plainville (board) granting the application of the defendant Jennifer Bartiss-Earley for a rear yard and side yard variance to permit reconstruction of an existing swimming pool and deck. On appeal, the plaintiff claims that it was improper for the court to uphold the decision of the board that a variance was warranted due to a claimed hardship on Bartiss-Earley. We conclude that the finding of a hardship was improper and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. In 2002, Bartiss-Earley purchased real property at 74 South Washington Street in the town of Plainville. At the time of this purchase, the property had a single-family residence with an attached deck and pool. The deck and pool had been constructed in 1994 by the predecessor in title under a permit by the town using a 1986 “mortgage survey” prepared by a registered land surveyor. A more accurate A-2 classified survey was completed for Bartiss-Earley in September, 2003, about one year after she had purchased the property. The A-2 survey indicated that the pool and deck were not in conformance with the zoning requirements. The property is in the R-ll zone. The town of Plainville’s zoning regulations require that in an R-ll zone, a lot must be a minimum of 11,000 square feet, with ten foot side yard and thirty foot rear yard setbacks. The pool at issue is located five feet from the side yard and nineteen feet from the rear yard, and a portion of the deck is only twenty-six feet from the rear boundary.

On October 26, 2005, Bartiss-Earley applied for a variance to allow the nonconforming side and rear yard setbacks and to rebuild and to maintain the aboveground pool and the attached deck. A public hearing was held on November 14, 2005. At the public hearing, Bartiss-Earley asserted that she wanted to keep “everything the exact same footprint and just replace it . . . .” She claimed a hardship because the town had granted a permit for the construction of the pool in 1994, so she stated that she should be allowed to keep the pool and deck as they existed at that time, and to repair or to replace them so they would not be in disrepair. She further claimed that she was “suffering” as a result of the building permit that was issued on the basis of the incorrect mortgage survey. Although Bartiss-Earley presented to the board the accurate survey with markings to indicate how much of the deck and pool are nonconforming, her purpose was to show only how her deck and pool would be altered if she had to comply with the rear and side yard setbacks.

The plaintiffs counsel attended this public hearing to oppose the granting of a variance. Particularly, the plaintiff argued that a finding of a hardship is necessary for the granting of a variance but that the hardship must be something that affects her land because of some “peculiar characteristic” or “topographical condition . . . .” The plaintiff offered to the board the site plan that previously had been approved by the board for the land surrounding Bartiss-Earley’s parcel. This site plan shows that a road and a sidewalk were to be constructed adjacent to Bartiss-Earley’s side boundaiy and that they would be legitimately constructed near her pool. The plaintiff further argued that this was a self-created hardship that did not justify the granting of a variance.

Once the public had been allowed the chance to speak regarding the application, one member of the board seconded the motion of another member to bring the application to the table. The following colloquy then took place among three of the board members:

“Peter Autunno, Jr.: Any further discussion? [Board member Gail Pugliese], comments?
“Ms. Pugliese: Yes, I do feel that she has a hardship. She bought this property under, I don’t know what you call it, false information, regarding the pool, thinking, and the fact that thinking it was conforming, that there was a permit taken out regardless of whether it was several years ago or not, this is a hardship that she unfortunately bought into. I understand . . . the development, but there’s going to be a twenty foot barrier between the sidewalk and the back of her property. Twenty feet is, you know, quite a distance. I don’t see any problem. I feel that she should be granted her request.
“Mr. Autunno: Mr. Bonola, any further comments?
“[Board member Robert] Bonola: I agree with the comments made, in addition to looking at the photographs here that you can’t naturally see from the street, this looks like it’s pretty well closed and, again, I don’t think this is going to be any problem. Anybody going up and down this proposed new area, you’re looking through the bushes . . . and I think whatever construction is going on there, currently, in my opinion, is the one causing the problem here. Yes, she bought this . . . knowing that the proper distances at the time were correct and she’s here trying to correct that situation, so going forward for her, life will be a lot simpler. So, I see no problem with granting this request.”

The three other members of the board stated that they agreed with the comments made. The board then voted unanimously to approve the application.

The plaintiff appealed from the board’s decision to the Superior Court, claiming that the board acted illegally, arbitrarily, without discretion and in abuse of the discretion vested in it by finding a hardship. In the court’s memorandum of decision, it held that the board failed to state on the record its reasons for granting the variance and therefore determined that it must search the record for a basis of the board’s decision. The court found that the board had substantial evidence that the variance would not substantially affect the comprehensive plan because the variance did not seek a change of use for the property. The court also found that the hardship was not self-created because it arose from conditions beyond the control of Bartiss-Earley and that the board was not persuaded that the deck and pool could have been reconstructed to be in conformance with the regulations. Ultimately, the court concluded that the board did not act unreasonably, arbitrarily or illegally and dismissed the appeal.

Following that decision, the plaintiff filed a motion for articulation, which the court denied. The plaintiff then filed the present appeal after this court granted its petition for certification. Additional facts will be set forth as necessary.

The plaintiff claims that the court’s determination that the board properly found a hardship was in error because there was no evidence presented to justify a finding of hardship sufficient to grant a variance. Bartiss-Earley argues that the board did not abuse its discretion in finding a hardship and that the regulations affect her property in a manner different from how they affect the properties of others. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

To begin our analysis, we identify the standard of review and certain legal principles that guide our resolution of the issues before us. “Our standard of review when considering an appeal from the judgment of a court regarding the decision of a zoning board to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board’s act was not arbitrary, illegal or an abuse of discretion. . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.” (Internal quotation marks omitted.) Hoffer v. Zoning Board of Appeals, 64 Conn. App. 39, 41, 779 A.2d 214 (2001); see also Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-206, 658 A.2d 559 (1995).

The board, in fact, collectively stated its reasons for its decision as included previously. “Where a zoning [commission] has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . . The [board’s action] must be sustained if even one of the stated reasons is sufficient to support it. . . . [This] principle . . . applies where the [commission] has rendered a formal, official, collective statement of reasons for its action. . . . Thus, where a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision.” (Citation omitted; internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994); see also Kaufman v. Zoning Commission, 232 Conn. 122, 142-43, 653 A.2d 798 (1995); Horace v. Zoning Board of Appeals, 85 Conn. App. 162 n.4, 855 A.2d 1044 (2004); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.8, pp. 175-76.

A variance has been defined as the “authority granted to [an] owner to use his property in a manner forbidden by the zoning regulations.” (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996). Our Supreme Court has cautioned that “the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised. . . . [U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted. . . . The power to authorize a variance is only granted for relief in specific and exceptional instances.” (Citations omitted; internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991); see also Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 548, 684 A.2d 735 (1996).

Section 1300 of the Plainville zoning regulations cites General Statutes § 8-6 (a) and specifies that the board has the “powers and duties . . . [t]o determine and vary the application of these Zoning Regulations, solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is located, a literal enforcement of these Regulations would result in exceptional difficulty or unusual hardship. Any such variance to these Zoning Regulations shall be in harmony with their general purpose and intent, and shall be made with due consideration of conserving the public health, safety, convenience, welfare and property values.” Plainville Zoning Regs., § 1300.

It is well established that “[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.” (Internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn. App. 327, 330, 834 A.2d 801 (2003). “Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . .” (Citation omitted.) Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965). Additionally, we have stated that “[p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance. . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.” (Citations omitted; internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 564, 736 A.2d 167 (1999), rev’d on other grounds, 255 Conn. 143, 763 A.2d 1011 (2001); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 137. “[T]he hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.” Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978). The long-standing law in Connecticut is that “[w]here the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. Where, however, the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance.” Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482, 440 A.2d 183 (1981), citing Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300-301, 429 A.2d 883 (1980). In this case, there is no new zoning ordinance. The nonconformity at issue was created by the predecessor in title.

In her application for a variance, Bartiss-Earley claimed a hardship because a permit had been issued in 1994 for the pool and deck, and a variance would allow the pool and deck to be rebuilt in its present dimensions or improved and repaired in the future. At the public hearing, Bartiss-Earley stated: “I feel that this is definitely a hardship to me, as there was a prior permit that was issued for this under false pretenses. I would like to make sure that the pool and deck do conform to the regulations, which is why I am here, to apply for the variance.” When asked if in the future if she planned to make the deck “a little bit shorter to conform?” Bartiss-Earley responded, “Well, my plans were to keep everything the exact same footprint and just replace it, not to change it, extend it any farther . . . .” She further stated: “I feel that it is a hardship to me because the town already granted a permit for that in 1994, so, if it was granted in 1994, then why should I not be grandfathered to [be] allow[ed] to continue to have that since it’s existing, that it’s my right as a property owner to maintain that for the surrounding neighbors not to have to look at something that is in disrepair, and currently the deck is in disrepair?” During this public hearing, the plaintiff pointed out that Bartiss-Earley had not presented evidence of a hardship because she did not demonstrate that her land was different from anyone else’s land. Bartiss-Earley made no further comments.

The claimed hardship arises from the improperly granted building permit in 1994 that was based on the inaccurate mortgage survey presented by Bartiss-Earley’s predecessor in title. Our courts “have never held that such an administrative error creates a legal hardship . . . .” Bloom v. Zoning Board of Appeals, supra, 233 Conn. 211. Bartiss-Earley ultimately failed to meet her burden to show how her property was uniquely situated so that application of the regulations to the property created an unusual hardship. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9:3, p. 189. She failed to show that there was no way for her to reconstruct a pool and deck on her property to conform with the regulations, and she also failed to show that her predecessor in title did not create the nonconformity. Because Bartiss-Earley failed to demonstrate a legally cognizable hardship, the board acted improperly in granting the variance. We therefore sustain the plaintiffs appeal.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion DiPENTIMA, J., concurred.

LAVINE, J.,

concurring. I agree with the decision reached by the majority, but I write separately to clarify the hardship claimed by the defendant Jennifer Bartiss-Earley. I also believe that Osborne v. Zoning Board of Appeals, 41 Conn. App. 351, 675 A.2d 917 (1996), should not be relied on in the analysis of the claims in this appeal.

Some of the facts cited by the majority deserve amplification to place the hardship claimed by Bartiss-Earley in perspective. The photographs of the swimming pool in the record demonstrate that the swimming pool is an aboveground pool, not one built in the ground. In her application for a hearing, Bartiss-Earley requested a variance for an existing pool and deck. In response to the question regarding the specific hardship claimed, she wrote: “[A] permit was issued for the pool [and] deck in 1994 despite the fact that they did not conform to the side and rear yard requirements. A variance would allow the deck to be rebuilt in its present dimensions with respect to the rear yard and for future improvements/repairs to the pool with respect to the rear and side yard.” During the hearing, Bartiss-Earley expressed her opinion that she was faced with a hardship because a 1994 building permit “was issued for this under false pretenses.” Members of the defendant zoning board of appeals of the town of Plainville (board) asked Bartiss-Earley to clarify why the variance was being requested at that time. When informed that Bartiss-Earley was seeking the variance to repair the existing deck, members of the board explained that if they granted a variance pursuant to her application of October 26,2005, she would have to apply for a building permit to repair or to replace the swimming pool within six months or she would have to return at a later time to request a variance to repair or to replace the pool. The board granted the application for the variance on the ground that the nonconformity “is a hardship that she unfortunately bought into.” Although the result seems somewhat harsh at first blush, I agree with the majority that under the controlling law, Bartiss-Earley’s reliance on the 1994 building permit is not a hardship for which a variance should be granted.*

In their briefs, the parties cite and offer various arguments with respect to a 1996 decision of this court, Osborne v. Zoning Board of Appeals, supra, 41 Conn. App. 351.1 respectfully disagree with the reasoning of Osborne and the manner in which the majority here seeks to distinguish it. See footnote 4 of the majority opinion. The general rule in Connecticut is that a variance will not be granted if the hardship is self-created, including hardships created by the applicant’s predecessor in title. As I construe the history of this rule, I believe that it is founded in the law of agency. The independent contract doctrine, relied on in Osborne, has its roots in employment and insurance, not zoning, law. Moreover, a surveyor is a professional, one who is required to pass rigorous examinations and to obtain a license from the state.

The hardship rule as related to zoning variances has been a consistent part of our jurisprudence as far back as 1931. “Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of practical difficulty or unnecessary hardship. Financial considerations alone . . . cannot govern the action of the board. They are bound to take a broader view than the apparent monetary distress of the owner. Otherwise, there would be no occasion for any zoning law.” (Internal quotation marks omitted.) Thayer v. Board of Appeals, 114 Conn. 15, 22, 157 A. 273 (1931); see also Devaney v. Board of Zoning Appeals, 132 Conn. 537, 542, 45 A.2d 828 (1946). “Where the basis upon which the claim of hardship rests is financial in nature, there rarely can be justification for a variance. . . . [T]he hardship, if such it may be called, did not originate in the ordinance. The defendants have brought it on themselves.” (Citations omitted.) Celentano v. Zoning Board of Appeals, 136 Conn. 584, 587, 73 A.2d 101 (1950).

“By its very definition, a variance is granted with respect to a particular piece of property; it can be enjoyed not only by the present owner but by all subsequent owners. ... It follows then that a variance is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted to a certain parcel of realty without regard to ownership. It is for this reason that the rule is well established that the financial loss or the potential of financial advantage to the applicant is not the proper basis for a variance.” (Citation omitted.) Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972).

A factual situation somewhat similar to the one here was presented in Misuk v. Zoning Board of Appeals, 138 Conn. 477, 86 A.2d 180 (1952). In that case, the property owner sought to construct a house with an attached garage on a lot in Meriden. Id., 478. “Preparatory to actual construction, [the property owner] and his contractor laid out that part of the foundation which was farthest away from the plaintiffs property. In doing so, they measured from apipe, set in the ground, erroneously assumed by them to mark the southerly boundary of the lot. As a matter of fact, the correct boundary was a few feet farther to the south.” Id., 478-79. Our Supreme Court concluded that the zoning board improperly had granted a variance, stating: “It must be borne in mind that the predicament which arose did not originate in the ordinance or in other conditions beyond the control of the [property owner].” Id., 481.

In Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 229 A.2d 356 (1967), our Supreme Court had occasion to decide a case in which a dwelling house was constructed within the setback. “The variance was sought on the grounds that the position of the house on lot 19 was due to an error made either by the surveyor or by the foundation contractor employed by the corporation . . . .” Id., 42. The court concluded that “any present hardship in the situation is due to the property owner’s own error, or the error of those employed by the owner, and does not arise from the application of the zoning regulations themselves.” (Emphasis added.) Id., 43. This conclusion by our Supreme Court brings me to my disagreement with Osborne v. Zoning Board of Appeals, supra, 41 Conn. App. 351.

In Osborne, this court reversed the denial of a zoning variance where the foundation of a dwelling house in Guilford had been placed within the setback. This court concluded that the surveyor, who was blamed for the error, was an independent contractor. “The surveyor testified before the board that he was retained by the architect, and not by the defendant property owner, to mark the offset for the building, and that the surveyor incorrectly placed one of the stakes 0.6 of a foot, seven inches, closer to the west boundary than it should have been. The architect also testified that because of the ‘tightness’ of the lot, he, not the defendant [property owner], took the precaution of hiring the surveyor to set comer stakes before construction. Nowhere does it appear in the record that the surveyor was other than an independent contractor or that the surveyor was retained by the defendant.” (Emphasis in original.) Id., 354. In my view, the court’s reasoning in Osborne is unpersuasive. Irrespective of who hired the surveyor, the architect was the property owner’s agent, and so, derivatively, was the surveyor.

This court offered in further support of its conclusion that the owner of the Guilford property was not bound by the surveyor’s mistake and that there was no evidence that “the surveyor was other than an independent contractor in control of his own means and methods of work, except to the result of his work; Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995) . . . .” (Internal quotation marks omitted.) Osborne v. Zoning Board of Appeals, supra, 41 Conn. App. 355. Tianti was an action brought by the commissioner of labor pursuant to General Statutes § 31-72 on behalf of two of the defendant’s real estate agents for unpaid commissions. Tianti v. William Raveis Real Estate, Inc., supra, 694. Tianti relied on the definition of an independent contractor from cases concerning malpractice insurance; see Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990); and unemployment compensation pursuant to General Statutes § 31-270. See Latimer v. Administrator, 216 Conn. 237, 248, 579 A.2d 497 (1990). Tianti and the cases cited therein arise out of employment and insurance law. The situation with regard to a real property owner who engages a surveyor to perform a task is not an employment situation to which employment and insurance law pertains.

Moreover, a property owner may hire, retain or enter into a contract with a surveyor to perform a particular service, much the same way that the property owner may hire, retain or enter into a contract with a builder to construct a fixture on the land. See Highland Park, Inc. v. Zoning Board of Appeals, supra, 155 Conn. 43. Both the surveyor and the builder in all likelihood possess skills the property owner does not have, and their work must be self-directed. A surveyor is a professional subject to regulations of the profession and the laws of this state. See General Statutes § 20-299 (2). As such, a surveyor generally will not be under the control of the landowner who engages him or her. Although a surveyor may go about doing the survey according to his or her own methods, he or she nonetheless was employed by the owner of real property. See General Statutes § 20-299 (2). If the owner of property relies on the surveyor’s work, he or she ratifies the work, and the property owner and his or her successors in title should not be permitted to disavow errors in the survey, if any, on the ground that the surveyor was an independent contractor.

For these reasons, I believe the reasoning informing the Osborne decision is questionable and that it should not be relied on in the analysis of the claims on appeal. Otherwise, I concur in the opinion of the majority.

       The plaintiff is the owner of land abutting the subject property.

       The category of a mortgage survey does not exist in the applicable code for Connecticut land surveyors and the survey itself does not claim to be as accurate as any of the categorized surveys within the code. Connecticut Association of Land Surveyors, LLC, Code of Recommended Practice for Standards of Accuracy of Surveys and Maps, 1977. The certification on this survey states that “this map is substantially correct, the structure is located as shown, and unless otherwise noted, does not violate the zoning regulations of the town of Plainville, Connecticut.”

       Sections 20-300b-2 and 20-300b-ll (b) of the Standards for Surveys and Maps in the State of Connecticut, describes the type of surveys and the accuracy required for each classification. Connecticut Association of Land Surveyors, LLC, Standards for Surveys and Maps in the State of Connecticut, 1999, available at http://www.ctsurveyor.com/conn-code.htm (accessed 4/ 28/08). Earlier codes have described the A-2 survey as a “type of survey to be used in areas where density and other factors warrant a moderate degree of accuracy.” Connecticut Association of Land Surveyors, LLC, Recommended Standards For Surveys and Maps in the State of Connecticut, 1984. There are a variety of other survey types with less degrees of accuracy than an A-2 survey. Standards For Surveys and Maps in the State of Connecticut, supra, § 20-300b-ll (b). The mortgage survey appears to be one of these less accurate types.

       Bartiss-Earley further claims that the situation presented a hardship that was created by her predecessor in title under the authority of a building permit that had been issued in reliance on an incorrect mortgage survey. She claims that the surveyor was an independent surveyor commissioned by a bank and, therefore, under Osborne v. Zoning Board of Appeals, 41 Conn. App. 351, 675 A.2d 917 (1996), she did not create the hardship and should be granted relief in the form of a variance. Initially, we note that recent case law holds that, at least in a boundary dispute, a purchaser could be found contributorily negligent for failing to obtain a current survey of a property before purchasing it. See Kramer v. Petisi, 285 Conn. 674, 940 A.2d 800 (2008). In Kramer, as in the present case, the surveys relied on by the purchasers were completed prior to the addition of fixtures to the property.
      Beyond that, this case is distinguishable from Osborne. To begin, prior to the surveyor error in Osborne, there was already a nonconforming lot and, after the surveyor error, the nonconformity was decreased. More importantly, there was evidence presented in Osborne that the surveyor was an independent contractor and, therefore, the homeowner had very little control over his “means and methods of work . . . .” (Citation omitted.) Osborne v. Zoning Board of Appeals, supra, 41 Conn. App. 355. In the present case, the record is devoid of any indication of what kind of relationship existed between the surveyor and the predecessor in title. What further distinguishes the case here is that there was testimony in Osborne about the tightness of the lot and the inability to alter the nonconformity. Id., 354. Bartiss-Earley did not present any evidence that it was impossible to move the deck and pool to be in conformance with the zoning regulations.

       After this comment, a board member went on to explain that under the regulations, Bartiss-Earley could repair the nonconforming part of the deck and the pool without a variance but that if she took the deck and pool out completely without a variance, she would have to conform the newly built deck and pool to the regulations.

       Reference is made to a 1986 mortgage survey, which is purported to be the survey used when the prior owner of the property applied for the building permit to construct the deck and pool in 1994. The registered land surveyor certified with respect to the map to the mortgagee bank and the title insurance company that “this map is substantially correct, the structure is located as shown, and unless otherwise noted, does not violate the zoning regulations of the town of Plainville.” As the majority makes clear in footnote 2, there are different categories of surveys. See, e.g., Kramer v. Petisi, 285 Conn. 674, 683-84, 940 A.2d 800 (2008) (comparative negligence applied to claim of negligent misrepresentation where purchaser failed to obtain new survey).

       At the hearing Bartiss-Earley represented in part, “I’m requesting this variance to allow me in the future to replace or repair the pool, as it probably over time will need replacement or repair, as well as to, in the near future, replace the existing deck with the existing footprints as they are depicted on the map provided to you.” The map submitted by Bartiss-Earley demonstrates that remedying the nonconformity might be described more accurately as an inconvenience than a hardship if the above the ground pool needs to be replaced.


author: Per Curiam.

text:
    JAMES SERVELLO v. COMMISSIONER OF CORRECTION
    (AC 28104)
    DiPentima, Beach and Lavery, Js.
    Argued February 14
    officially released April 15, 2008
   Per Curiam.

The judgment is affirmed.


text:
    TRINITY UNITED METHODIST CHURCH v. JENNIFER L. CLEAVER
    (AC 28326)
    Bishop, Robinson and Freedman, Js.
    Argued February 19
    officially released April 15, 2008
   Per Curiam.

The judgment is affirmed.


text:
    IRVING ORTIZ v. COMMISSIONER OF CORRECTION
    (AC 27495)
    Bishop, Harper and Peters, Js.
    Argued March 11
    officially released April 15, 2008
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JUAN VASQUEZ
    (AC 28144)
    Flynn, C. J., and DiPentima and Lavery, Js.
    Argued March 19
    officially released April 15, 2008
   Per Curiam.

The judgments are affirmed.


text:
    KEITH CARPENTER v. COMMISSIONER OF CORRECTION
    (AC 27844)
    Bishop, Beach and Borden, Js.
    Argued March 18
    officially released April 15, 2008
   Per Curiam.

The judgment is affirmed.


text:
    EFRAIN CRUZ v. COMMISSIONER OF CORRECTION
    (AC 28054)
    Bishop, Gruendel and Borden, Js.
    Argued March 20
    officially released April 22, 2008
   Per Curiam.

The judgment is affirmed.


text:
    NANCY WEINSTEIN v. LUKE A. WEINSTEIN
    (AC 28236)
    Bishop, Graendel and Beach, Js.
    Argued March 20
    officially released April 22, 2008
   Per Curiam.

The appeal is dismissed as moot.


text:
    WILLIAM D. PIERCE v. COMMISSIONER OF CORRECTION
    (AC 28127)
    Harper, Robinson and Peters, Js.
    Argued March 24
    officially released April 22, 2008
   Per Curiam.

The appeal is dismissed.


text:
    JOSEPH C. HALIK v. MICHAEL DE FILIPPO ET AL.
    (AC 27656)
    Gruendel, Harper and Peters, Js.
    Argued March 24
    officially released April 22, 2008
   Per Curiam.

The judgment is affirmed.


text:
    ALLEN CONSTRUCTION, INC. v. BARBARA CABANILLA ET AL.
    (AC 28103)
    McLachlan, Harper and Lavery, Js.
    Argued March 20
    officially released April 22, 2008
   Per Curiam.

The judgment is affirmed.


text:
    CECELIA LEBBY v. CITY OF NEW BRITAIN ET AL.
    (AC 29079)
    Flynn, C. J., and DiPentima and Harper, Js.
    Submitted on briefs March 31
    officially released April 29, 2008
   Per Curiam.

The judgment is affirmed.


text:
    PAUL DADDONA v. MELISSA PEACOCK, EXECUTOR (ESTATE OF PHILLIP B. SWAIM), ET AL.
    (AC 28643)
    Flynn, C. X, and DiPentima and Harper, Js.
    Submitted on briefs March 31
    officially released April 29, 2008
   Per Curiam.

The judgment is affirmed.


text:
    J. WILLIAM GAGNE, JR. v. ENRICO VACCARO
    (AC 28009)
    Bishop, McLachlan and Harper, Js.
    Argued March 25
    officially released April 29, 2008
   Per Curiam.

The judgment is affirmed.


text:
    DANIEL WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 28292)
    Flynn, C. J., and McLachlan and Pellegrino, Js.
    Submitted on briefs March 31
    officially released April 29, 2008
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. RAYMOND APONTE
    (AC 28585)
    DiPentima, Beach and West, Js.
    Argued March 27
    officially released April 29, 2008
   Per Curiam.

The judgment is affirmed.


author: HARPER, J.

text:
    JOHN CABRAL v. COMMISSIONER OF CORRECTION
    (AC 27929)
    Bishop, McLachlan and Harper, Js.

      Argued January 10
    officially released May 27, 2008

      Mary Boehlert, special public defender, for the appellant (petitioner).

      Stephen M. Carney, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, John Cabral, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus in which he alleged that he was denied the effective assistance of trial counsel. The petitioner claims that the court improperly determined that (1) trial counsel’s failure to present testimony from him at a suppression hearing was not prejudicial to him and (2) trial counsel’s failure to object to the admissibility of certain evidence at trial was not an instance of deficient representation. We affirm the judgment of the habeas court.

In 2000, a juiy found the petitioner guilty of conspiracy to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 53a-48 and 2 la-278 (b) as well as attempt to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 53a-49 (a) (1) and 2 la-278 (b). The trial court rendered judgment in accordance with the verdict and sentenced the petitioner to a total effective term of imprisonment of eight years, suspended after six years, and five years probation.

The petitioner brought a direct appeal to this court, and this court reversed the judgment of conviction and remanded the case for a new trial. State v. Cabral, 75 Conn. App. 304, 815 A.2d 1234 (2003), rev’d, 275 Conn. 514, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005). After our Supreme Court granted the state’s petition for certification to appeal, our Supreme Court reversed the judgment of this court and upheld the judgment of conviction. State v. Cabral, 275 Conn. 514, 517,881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005).

Our Supreme Court summarized the facts that the jury reasonably could have found on the basis of the evidence presented at trial: “In 1995, the [petitioner] met David Levarge, who lived next door to the [petitioner’s] mother-in-law. The [petitioner and Levarge] became friends and routinely socialized. In or about 1997, the [petitioner] introduced Levarge to his friend, Robert Anderson, and the three men became friends.

“In early October, 1998, Anderson approached the [petitioner] to purchase some marijuana, but the [petitioner] said he had none. Anderson then told the [petitioner] that he knew someone named ‘Pete’ from California from whom he could buy marijuana. Subsequently, Anderson ordered three pounds of marijuana from Pete for which he and the [petitioner] agreed to pay $3000. They also decided to have the marijuana delivered to Levarge’s house because the [petitioner] did not want the police to trace the marijuana to his house.

“Sometime in mid-October, 1998, Anderson learned from the [petitioner] and Levarge that the marijuana had not yet arrived. Anderson contacted Pete, who informed him that the marijuana had been shipped to and received at the address provided. Pete asked for telephone numbers for the [petitioner] and Levarge.

“On October 28, 1998, Levarge, who did not testify at trial, went to the state police barracks in Montville and spoke to Trooper Robert Bardelli. From there, the two men proceeded to Levarge’s home. When they arrived, the telephone rang. The answering machine picked up, and a voice said that Levarge ‘had better show up with the package he was supposed to have.’

“Shortly thereafter, Levarge climbed into a crawl space in his home and retrieved three pounds of marijuana, which he handed to Bardelli. Bardelli notified his supervisor and assembled a team of officers to come to Levarge’s home where they formulated a course of action. Bardelli requested that Levarge make a telephone call to Anderson. In that conversation, which was monitored and recorded by the state police, Levarge told Anderson that he now had the marijuana. He also explained that he had not been home to receive the shipment because he had taken his son to a physician and that he had told that to the [petitioner]. He told Anderson that he would leave the package in the backseat of his son’s car and that Anderson should have the [petitioner] pick it up.

“On that same day, at approximately 7:30 p.m., the police fabricated a package and placed it in Levarge’s son’s vehicle, which was parked at Levarge’s residence. At approximately 8:45 p.m., the [petitioner] appeared and retrieved the package from the vehicle. As the [petitioner] began to depart, the police left their surveillance locations, announced their presence, converged on the [petitioner] and arrested him. Bardelli testified that he read the [petitioner] his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), at the time of his arrest.

“The police then drove the [petitioner] to a gasoline station approximately five minutes from Levarge’s house. While in the police cruiser at the gasoline station, the [petitioner] told the police that Anderson had sent him to pick up the [marijuana]. When the police asked him to put his statement in writing, he declined and stated that he wanted to consult with an attorney.” (Internal quotation marks omitted.) State v. Cabral, supra, 275 Conn. 518-19.

In 2002, while awaiting the disposition of his direct appeal, the petitioner brought an amended petition for a writ of habeas corpus. The petitioner alleged that his confinement was illegal because his trial counsel, John O’Brien, rendered ineffective assistance in many ways and thereby violated his due process right to a fair trial. Relevant to the claims raised on appeal, the petitioner alleged that O’Brien improperly “failed to present the testimony of witnesses with exculpatory testimony at pre-trial motions and trial, including but not limited to testimony of [the] [petitioner or others relative to [his] [m]otionto [s]uppress [evidence] dated June 28, 2000.” The petitioner also alleged that O’Brien improperly “failed to properly object to hearsay evidence . . . .” The respondent, the commissioner of correction, denied that the petitioner’s confinement was illegal and, with regard to the petitioner’s specific claims of ineffective assistance, left the petitioner to his proof.

Following a hearing, during which the court received evidence including testimony from the petitioner and O’Brien, the court issued a memorandum of decision denying the petition. The court subsequently granted the petition for certification to appeal; see General Statutes § 52-470 (b); and this appeal followed.

Before turning to the two claims raised in this appeal, we first set forth the applicable principles of law and the legal standard that govern our review. “In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” U.S. Const., amend. VI. “It has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn. App. 738, 741-42, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008).

“Turning to the prejudice component of the Strickland test, “[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. ... A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. ... [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” (Citation omitted; internal quotation marks omitted.) Woods v. Commissioner of Correction, 85 Conn. App. 544, 550, 857 A.2d 986, cert. denied, 272 Conn. 903, 863 A.2d 696 (2004).

“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.” (Citation omitted; internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007). “Although a habeas court’s findings of fact are reviewed under a clearly erroneous standard of review, questions of law are subject to plenary review.” Tyson v. Commissioner of Correction, 261 Conn. 806, 816, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S. Ct. 1914, 155 L. Ed. 2d 836 (2003).

I

The petitioner first claims that after properly determining that O’Brien was ineffective by failing to present his testimony during a suppression hearing, the habeas court improperly concluded that he failed to demonstrate that O’Brien’s deficient representation in this regard was a basis on which to grant his petition. We disagree.

At the petitioner’s criminal trial, O’Brien moved to suppress the statement that the petitioner made to police shortly after he had been taken into custody on October 28, 1998. This statement was the petitioner’s admission that Anderson had sent him to Levarge’s residence to pick up marijuana. The statement was admitted into evidence during the petitioner’s criminal trial. The habeas court found that “[t]he principal issue on the motion to suppress was whether or not the petitioner was advised of his Miranda rights and, if he was so advised, whether his statement was given before or after the advisement.” The court thereafter made the following findings concerning what transpired during the hearing on the motion to suppress and O’Brien’s representation of the petitioner therein: “The only people who were present at the time [of the petitioner’s arrest] were three police officers and the petitioner. These were the only parties who could testify on the issue [concerning the admissibility of the petitioner’s admission at the time of his arrest].

“The only person who testified during the suppression hearing was Trooper Bardelli. The petitioner was not called to testify. During the habeas trial, attorney O’Brien did not recall whether or not he had called the petitioner to testify at the hearing. From the trial transcript and the judge’s decision denying the motion to suppress, it is clear that [the petitioner] did not testify.

“Trooper Bardelli testified that he advised the petitioner of his rights at the time of his arrest and that the incriminating statement was made by the petitioner after he had been so advised. The petitioner was then asked if he would put his statement in writing. When he declined to do so and stated that he wished to consult with an attorney, no further questions were asked. Trooper Bardelli also testified that the petitioner was again formally advised of his Miranda rights later at the police station and that a memorandum indicating the time of this advisement was made. The officer stated that this second advisement was standard procedure. The subsequent testimony of the other officers [during the trial] was consistent with Bardelli’s testimony at the suppression hearing. It would not have been in the petitioner’s best interest to have called the officers to testify on his behalf.

“No reason has been advanced by [O’Brien] as to why the petitioner was not called to testify at the suppression hearing. As the trial court stated in its memorandum of decision during the motion to suppress: ‘Although [the petitioner] could have done so with impunity, he did not testify at the suppression hearing.’

“Bardelli’s testimony was not challenged or impugned in any way. By not testifying at the suppression hearing, the petitioner forfeited whatever chance he might have had to suppress the statement. [During the habeas proceeding, O’Brien] offered no reason for his failure to present his client’s version as to what took place at the time of his arrest. It must be concluded that this failure to call his client to testify at the suppression hearing constituted ineffective assistance of counsel.”

The court thereafter made the following findings and conclusions concerning the prejudice, if any, that inured to the petitioner as a result of O’Brien’s failure to call him as a witness during the suppression hearing: “[At his criminal trial] the petitioner testified on his own behalf at the conclusion of the state’s case. His testimony, as it applies to his statement to the police, was that he was going to Anderson’s home to watch a fight on television and that Anderson had called him and asked him to pick up a bag at Levarge’s house [and described] where it could be found. The petitioner stated that he assumed the bag contained salsa and tomatoes. He testified that he had never tried to obtain marijuana and was not under the impression that marijuana was in the package he picked up.

“It was further stated by the petitioner that he was not advised of his rights at the time of his arrest and that he had never before seen Trooper Bardelli in his whole life. His testimony was that he informed the officers [at the scene that] he was there to pick up salsa and tomatoes.

“[At his criminal trial] the petitioner’s testimony was countered by the testimony of Officers Cote Floyd, Charles Flynn, Sergeants Jeffrey Hotsky and James Morin of the Connecticut state police. The testimony of all of these officers confirmed Bardelli’s presence at the scene when the petitioner was arrested. Officer Floyd’s testimony also confirmed that Bardelli informed the petitioner of his Miranda rights at the time of arrest.

“Presumably, if the petitioner had testified at the suppression hearing, his testimony would have been substantially the same as his [trial] testimony. This testimony was that he had never seen Bardelli before and was not advised of his rights at the time of his arrest. Where all of the evidence concerning the admissibility of the statements came before the judge, it is difficult to see how the petitioner was prejudiced by his attorney’s not calling him to testify at the suppression hearing. Certainly, the trial judge, if he had been convinced that the petitioner’s version of the event was true and that he had not been properly advised by Bardelli prior to [making] his statement, would have been constrained to rectify the situation so that the ends of justice would prevail.

“There was also a question as to how incriminating the statement was. All of the evidence indicates that the petitioner picked up a package that was in the parked car. In his initial testimony [at the suppression hearing], Bardelli stated that the petitioner’s statement was that he ‘just picked up a package for Mr. Anderson.’ This was not consistent with the petitioner’s testimony [at trial]. In his subsequent testimony [at trial], Bardelli stated that the petitioner used the word ‘marijuana,’ rather than package. Attorney O’Brien was able to cross-examine the officer on this point and present to the jury the inconsistency of the officer’s testimony concerning the statement that the petitioner made.

“Considering all of the evidence, it appears unlikely that the motion to suppress would have been granted even if the petitioner [had] testified [at the suppression hearing]. However, if the motion had been granted and the petitioner’s statement was not allowed into evidence, the state still had a strong case, which, in all likelihood, would have resulted in the same verdict of guilty. Considering all of the [previously discussed] factors, it must be concluded that the petitioner has failed to prove that he suffered any prejudice because he did not testify at the suppression hearing.”

The petitioner challenges the habeas court’s conclusion that even if the trial court had excluded his statement, the outcome of the trial likely would have been the same. To this end, the petitioner attempts to persuade us that, without using this statement, the state would have been unable to demonstrate that he was part of any conspiracy. The petitioner discounts the other evidence on which the state relied to demonstrate that a conspiracy existed. For these reasons, the petitioner claims that the habeas court “erred when it erroneously found [that] the petitioner was not prejudiced by the ineffectiveness of his attorney.”

The petitioner’s analysis is faulty in that it overlooks the gist of the habeas court’s decision with regard to this issue. The court devoted much of its analysis to explaining why the petitioner’s testimony at the suppression hearing likely would have had no effect on the trial court’s denial of the motion to suppress. The court also went on to observe that because the petitioner testified in his defense at trial, the trial court had an opportunity to hear his testimony concerning the circumstances of his statement to the police and to exclude his statement if the court determined that it was obtained in contravention of his rights, as had been alleged in the motion to suppress. Additionally, the habeas court, in the latter part of its analysis, stated that the state had a strong case absent the evidence at issue.

On the basis of the habeas court’s findings and our review of the record, we conclude that the court reasonably and logically determined that it was very unlikely that the petitioner’s testimony concerning his version of the circumstances surrounding his statement, which the petitioner acknowledges was revealed in substance during his testimony at the criminal trial, would have affected the trial court’s ruling on the motion to suppress. The testimony elicited at trial reflects that the state had strong evidence corroborating Bardelli’s testimony that the petitioner made the statement at issue after being advised of his rights. The record also reflects that after the petitioner testified concerning his recollection of these events, the trial court did not revisit the issue raised in the motion to suppress. Thus, not only did five witnesses contradict the petitioner’s testimony, but the court did not revisit the issue raised in the motion to suppress so as to indicate that it deemed the petitioner’s version of events to be credible.

The petitioner cannot overcome the initial burden of demonstrating that it was likely that O’Brien’s ineffectiveness affected the court’s ruling on his motion to suppress. He also cannot overcome the burden of demonstrating that even if such a showing had been made, the court’s adverse ruling likely affected the guilty verdict reached by the jury. We agree with the habeas court’s assessment of the overall strength of the state’s case. In the absence of the petitioner’s admission as to his criminal purpose in obtaining the package from Levarge’s automobile, the other evidence presented by the state strongly supported the guilty verdict. In short, the state presented compelling circumstantial evidence with regard to the petitioner’s presence at Levarge’s automobile on the evening of October 28, 1998. This evidence tended to demonstrate that the petitioner was a conspirator in a drug related enterprise. Even had the court suppressed the incriminating statement that he made to the police, it is highly unlikely that the petitioner’s defense, which was that he was merely obtaining salsa and tomatoes from Levarge’s automobile, would have fared any better in the eyes of the jury.

For these reasons, we conclude that the court properly determined that the petitioner had not demonstrated that there was a reasonable probability that, but for O’Brien’s failure to call him as a witness during the suppression hearing, the result of the trial would have been different.

II

The petitioner next claims that the court improperly failed to conclude that O’Brien rendered ineffective assistance in failing to object to the admissibility of certain evidence on hearsay grounds. We disagree.

Our Supreme Court’s recitation of the following relevant facts and procedural history from the petitioner’s trial is useful to our resolution of the petitioner’s claim: “One of the offenses with which the [petitioner] was charged was conspiracy to. possess more than one kilogram of marijuana with the intent to sell. The information alleged that the [petitioner] had committed the following two overt acts in furtherance of the conspiracy: (1) ‘[the petitioner] arranged with . . . Anderson to have marijuana delivered to the home of . . . Levarge’; and (2) ‘[he later] went to [Levarge’s] home . . . to pick up marijuana for the purpose of delivering it to . . . Anderson . . . .’

“[T]he evidence adduced at trial established that, after Levarge approached Bardelli with information regarding the package of marijuana, the police arranged for Levarge to make a telephone call to Anderson. In that call, which the police tape-recorded, Levarge notified Anderson that the shipment had arrived, and Anderson agreed to send the [petitioner] to pick up the package of marijuana from a vehicle that was parked outside Levarge’s home. The state notified the [petitioner] that it intended to introduce into evidence the tape recording of the conversation between Levarge and Anderson.

“The [petitioner] objected to the state’s use of that tape recording. In particular, the [petitioner] claimed that, because Levarge was acting as an agent of the police when he telephoned Anderson, he was not a coconspirator within the meaning of this state’s conspiracy statute. See General Statutes § 53a-48 (a). In support of his contention, the [petitioner] relied on State v. Grullon, 212 Conn. 195, 198-99, 203, 562 A.2d 481 (1989), in which this court held that an accused cannot be guilty of conspiracy unless the state has proven beyond a reasonable doubt that the accused conspired with a person other than a police informant or agent. The [petitioner] asserted that, because Levarge was acting as an agent of the police prior to placing the telephone call to Anderson, he was ‘contaminated’ when he made that call. The [petitioner] further asserted that that ‘contamination flow[ed] downward from Levarge to Anderson,’ and ‘across to both [the petitioner] and Anderson,’ with the result that the tape-recorded conversation could not be used to establish the existence of a conspiracy between Anderson and the [petitioner], apparently because the conspiracy was no longer ongoing once Levarge had agreed to cooperate and to place the telephone call. The trial court [overruled] the [petitioner’s] objection and permitted the state to introduce the tape recording into evidence.” State v. Cabral, supra, 275 Conn. 528-30. The petitioner did not object on hearsay grounds to the state’s use of the tape-recorded conversation; id., 529 n.10; but also argued that the tape was unduly prejudicial in that it contained “certain expletives that were part of the conversation.” Id., 530 n.ll.

The petitioner argued before the habeas court that O’Brien was ineffective in that he did not object on hearsay grounds to the tape recording. The habeas court noted that O’Brien had objected to the tape recording on the ground that Grullon prohibited its admission. The habeas court also noted that when the petitioner, in his direct appeal, challenged the trial court’s admission of the tape on that ground, this court agreed and reversed the judgment of conviction, in part, on that basis. See State v. Cabral, supra, 75 Conn. App. 317. The habeas court reasoned: “While it is true that attorney O’Brien did not raise the hearsay issue before the trial court, he did object to the admissibility [of the tape] on proper legal grounds, which were upheld by the Appellate Court. It cannot, then, be found that the attorney was deficient in the performance of his duties with respect to the admission of the tape into evidence.”

In his direct appeal to this court, the petitioner claimed that the tape-recorded conversation was inadmissible because Levarge’s statements did not fall within any recognized hearsay exception. State v. Cabral, supra, 75 Conn. App. 316. This court reasoned that, under Grullon, Levarge was not a member of a conspiracy when police recorded his conversation with Anderson and, thus, statements by Levarge within the tape-recorded conversation did not fall within the coconspirator exception to the hearsay rule, Conn. Code Evid. § 8-3 (1) (D). State v. Cabral, supra, 316. After concluding that the trial court improperly admitted the evidence, this court further concluded that the petitioner demonstrated that the court’s ruling was not harmless but “undermined confidence in the fairness of the verdict.” Id., 318.

Our Supreme Court determined that this court improvidently had reviewed and afforded relief on the basis of the hearsay claim because O’Brien had not raised a hearsay objection before the trial court. State v. Cabral, supra, 275 Conn. 531. The court declined to review this nonconstitutional claim. Id.

The petitioner now claims that O’Brien’s failure to raise the hearsay objection at trial amounted to ineffective assistance and that such conduct prejudiced him both at trial and during the appeal process. The petitioner argues: “If O’Brien had articulated a proper legal objection to the inclusion of the tapes, there is the likelihood that the trial court would have recognized the inappropriateness of admitting the tapes, and the jury would not have had the conversation between Levarge and Anderson to consider. It would have been highly likely then that the state could not have met its burden of proving the petitioner’s guilt beyond a reasonable doubt.”

As set forth previously, our Supreme Court discussed the nature of the objections raised by O’Brien at trial. The court rejected the petitioner’s claim that the tape was unduly prejudicial. State v. Cabral, supra, 275 Conn. 531 n.13. The court also rejected the claim raised under Grullon, noting that “the state was not seeking to establish a conspiracy between Levarge and the [petitioner] but, rather, between Anderson and the [petitioner].” Id. As evidenced by this ruling, the court determined that Levarge’s statements on the tape recording did not render the evidence inadmissible.

The court’s reasoning guides our analysis of the hearsay claim on which the petitioner bases this claim. It is undisputed that the tape recording at issue included statements made by Levarge and Anderson that concerned and furthered the alleged ongoing conspiracy involving the petitioner. The petitioner argues that the statements constituted inadmissible hearsay and that the coconspirator exception to the hearsay rule did not apply. “A statement that is being offered against a party and is . . . (D) a statement by a coconspirator of a party while the conspiracy is ongoing and in furtherance of the conspiracy” is not excluded by the hearsay rule. Conn. Code Evid. § 8-3 (1). As our Supreme Court noted in rejecting the petitioner’s claim raised solely under Grullon, the state properly introduced the tape recording seeking to establish a conspiracy between Anderson and the petitioner. State v. Cabral, supra, 275 Conn. 531 n.13. Regardless of whether Levarge was a coconspirator at the time that the police recorded the conversation at issue, the taped conversation made it more likely than not that the petitioner and Anderson were coconspirators as the state alleged. Anderson’s statements in furtherance of the alleged ongoing conspiracy with the petitioner were the statements of the petitioner’s coconspirator and, thus, were admissible under the coconspirator exception to the hearsay rule. Even if we assume that Levarge was not a coconspirator at the time the tape recording was made and that his statements were not otherwise admissible, his statements during the taped two party telephone conversation were nonetheless admissible, as the state argues, because they provided necessary context for the finder of fact fairly to consider and to evaluate Anderson’s statements. See Conn. Code Evid. § 1-5 (a).

The record reflects that O’Brien strenuously challenged the admissibility of the tape recording on two distinct grounds. Even if we assume arguendo that O’Brien was deficient in failing to raise a hearsay objection, we conclude that the petitioner is unable to demonstrate that O’Brien’s failure in this regard caused him any prejudice. The tape recording was admissible under our rules of evidence. Accordingly, the petitioner’s ineffective assistance claim fails under Strickland’s second prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 1-5 (a) of the Connecticut Code of Evidence provides: “Contemporaneous introduction by proponent. When a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it.”
      “ ‘Statement,’ as used in this subsection, includes written, recorded and oral statements. Because the other part of the statement is introduced for the purpose of placing the first part into context, the other part need not be independently admissible.” Conn. Code Evid. § 1-5 (a), commentary.