author: SHELDON, J.

text:
    MICHAEL T.
      v. COMMISSIONER OF CORRECTION
    (AC 30046)
    Gruendel, Sheldon and Peters, Js.

      Argued February 14
    officially released July 9, 2013

      Frederick W. Fawcett, former supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Cornelius P. Kelly, senior assistant state’s attorney, and Gerard P. Eisenman, former senior assistant state’s attorney, for the appellant (respondent).

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellee (petitioner).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the petitioner’s full name or to identify the victim or others through whom the victim’s identity may be ascertained.

   Opinion

SHELDON, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting, in part, the amended petition of the petitioner, Michael T., for a writ of habeas corpus on the ground that his trial counsel had rendered ineffective assistance by failing, inter alia, to present expert testimony to challenge the state’s presentation of incriminatory expert evidence on psychological issues relating to the child victim’s credibility. The dispositive issue in this appeal is whether the failure of the petitioner’s trial counsel to present expert evidence on this subject constituted deficient representation under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for assessing ineffective assistance of counsel claims pursuant to the sixth amendment to the United States constitution. We affirm the judgment of the habeas court.

On February 9, 2007, the petitioner filed an amended three count petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel and actual innocence with respect to his convictions of sexual assault in the first degree in violation of General Statutes (Rev. to 2001) § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (2). The respondent filed a denial and a special defense alleging that the petitioner had procedurally defaulted by failing to pursue his claim of ineffective assistance of counsel in a previous petition for a writ of habeas corpus. After an evidentiary hearing, the habeas court rejected the respondent’s special defense and the petitioner’s claim of actual innocence, but granted the petition with respect to the petitioner’s allegation of ineffective assistance of trial counsel. The habeas court found that the petitioner’s trial counsel had been ineffective in failing to present expert testimony to challenge both the state’s presentation of incriminatory expert evidence on medical issues relating to the child’s symptomatology and psychological issues relating to the reliability of the child’s disclosure of sexual abuse. The habeas court concluded that trial counsel's failure to present such expert evidence had been prejudicial to the petitioner and, therefore, rendered judgment in his favor.

The respondent appealed to this court, which affirmed the judgment of the habeas court insofar as it rested on trial counsel's failure to challenge effectively the state’s inculpatory medical testimony. The respondent then appealed to our Supreme Court. Our Supreme Court reversed the judgment of this court under the second prong of Strickland, holding that the petitioner was not prejudiced by any alleged deficient performance of his trial counsel because his trial counsel, by means of his cross-examination of the state’s experts and his closing argument to the jury, established that trichomonas could be contracted through nonsex-uai means—the information about which a subject matter expert would have testified. Michael T. v. Commissioner of Correction, 307 Conn. 84, 102, 52 A.3d 655 (2012). Our Supreme Court thus held that, “[o]n the basis of the record before [it], [it could not] conclude that there is a reasonable probability that the outcome of the criminal trial would have been different if additional testimony on the same topic had been presented.” Id., 103. Accordingly, it remanded the matter to this court for a determination as to whether the petitioner’s trial counsel provided ineffective assistance by failing to call an expert to testify regarding psychological issues relating to the reliability of the child’s disclosure of sexual abuse. Id., 103-104.

The factual basis underlying the petitioner’s criminal conviction is described in this court’s decision affirming the habeas court’s judgment. Michael T. v. Commissioner of Correction, 122 Conn. App. 416, 418-21, 999 A.2d 818 (2010), rev’d, 307 Conn. 84, 52 A.3d 655 (2012). “In 2002, when the child was four years old, she was living at home with her mother, her older brothers and the petitioner. At the end of May, 2002, after the child complained of vaginal pain, her mother took her to a clinic in Bridgeport, where testing disclosed that the child was infected with trichomonas. . . .

“Because the pediatric clinic nurse who assisted in the examination suspected that the child had been sexually abused, she properly reported the incident to the department of children and families (department). When subsequently questioned by a departmental investigative social worker assigned to the case, the child stated that no one had ever touched her private parts. A subsequent inquiry by a pediatric nurse practitioner affiliated with the child sexual abuse evaluation program at Yale-New Haven Hospital elicited the same response, that nothing had happened to her. . . .

“In fight of the child’s infection, everyone in the child’s family was asked to be tested for trichomonas. Only the child’s mother tested positive for the disease. The petitioner, who had moved out of the family home in the interim, did not keep a scheduled appointment for testing. . . .

“Approximately one year later, after attending a ‘good touch-bad touch’ presentation in her kindergarten class, the child told her mother that the petitioner had touched her inappropriately. She testified to the same effect at his trial. . . .

“At the criminal trial, the state presented expert witnesses on two subjects, trichomonas and the reliability of children’s statements. Four expert witnesses who were questioned about trichomonas testified that it was a condition that was sexually transmitted. To explain the delay in the child’s reporting that someone had touched her inappropriately, an expert witness who was a school psychologist and forensic interviewer testified that, because a four year old child could not be expected to have knowledge of sexual activity, she would not know that she had been abused until she learned what abuse was. . . . Trial counsel challenged this expert testimony only by cross-examination of the state’s witnesses.

“The petitioner was the only defense witness to testify at his trial. He denied having sexually abused the child. Defense counsel, in his closing argument to the jury, argued for acquittal either because trichomonas could be transmitted nonsexually or because the state had not proven penetration. The jury found the petitioner guilty of sexual assault in the first degree and risk of injury to a child. . . .

“The principal witness at the habeas hearing was Suzanne M. Sgroi, a physician who is an adjunct professor at St. Joseph College in West Hartford, the director of the St. Joseph College Institute for Child Sexual Abuse Intervention for the treatment of child sexual abuse and the executive director of New England Clinical Associates, an organization that works with child abuse trauma. Without objection by the respondent, Sgroi was found to be qualified as an expert in child sexual abuse and venereal disease. Furthermore, the respondent did not challenge the admissibility of any of her testimony.” (Citations omitted.) Id., 418-21.

The habeas court found that Sgroi’s testimony identifying “mistakes, flaws and omissions” in the petitioner’s criminal trial was highly credible. Sgroi testified that there were a variety of problems in the way the child was interviewed in this case by her mother and the professionals who were investigating the complaint of sexual abuse. Sgroi stated that, in her professional opinion, the investigation in the present case was flawed because it was conducted in an accusatory atmosphere in which the reliability of the child’s disclosure that the petitioner had sexually abused her was tainted by repetitive interviewing.

Sgroi testified that the entire investigation, which eventually led to the disclosure of sexual abuse, was based on the false premise “that since [the child] had a sexually transmitted disease, a male must have [penetrated her], which in turn created an accusatory context for all of the interviewing.” Sgroi testified that from the moment the child was diagnosed with trichomonas, Josette Bou-Khalil, the physician who made that diagnosis, “set the tone for the entire investigation of suspected sexual abuse of [the child] not just by making her mandated report of suspected child abuse to the [department], which she was required by law to do, but also by saying definitively there is only one way this little girl could have acquired this infection.”

When the child was four and one-half years old, she was initially questioned by her mother and Cynthia Pfeiffer, a department investigative social worker. Sgroi testified that research has shown that children under five years of age are particularly susceptible to leading and contaminating interview approaches and often have developmental barriers for providing the detailed and contextual information that enhances the credibility of their reports. Sgroi further testified that the child’s reported difficulties with verbal comprehension, speech, and “positions and spatial relations” tended to make her a less competent reporter than other children of the same age. Sgroi testified that these developmental delays made the child even more susceptible to leading and contaminating interview approaches.

Sgroi also testified that because multiple interviews were conducted in this case, there was an increased chance for contamination of the child’s reports. On May 31,2002, it was assumed that the child had been sexually abused because she had a trichomonas infection and she was questioned extensively by Pfeiffer on that date. Pfeiffer testified at the criminal trial that, in her initial interview with the child, she asked the child specifically whether she had been sexually touched by the petitioner or her brothers. Sgroi testified at the habeas trial that such closed-ended, leading questions that name a particular suspected perpetrator can make it difficult for a child to disagree with what the adult says and, therefore, can contaminate the recollections and statements of a child of this young age.

The department records reveal that the child’s mother questioned the child multiple times between May 29, 2002, and June 3, 2002, until a department worker told her to stop and warned her that such repetitive questioning could taint a subsequent disclosure. Sgroi testified that such contamination can be an unintended byproduct of repeated interviews by anxious parents. She testified that: “One of the things that we know is that when children are interviewed over and over again about supposedly remembered events, each succeeding interview can create an unintended rehearsal effect. The more the child is asked to remember the story of this event that is under investigation, the more questions that are asked, perhaps leading and contaminating questions, the greater the rehearsal effect.” Sgroi explained that “ [r] esearch has shown that most children who are reporting personal life events, after the first or second time they report them to somebody, begin reporting in response to questions, in response to investigative interviews, begin reporting not only from their actual memory of something that happened, but also from a mental script or story, if you will, that has been built up in the mind, that is an amalgamation or combination of recollections of things that actually happened, recollections [of] what I, the child, said when somebody questioned me about it, recollections of what somebody told me must have happened or suggested must have happened, things that the child has overheard grownups talking about, perhaps not addressed to the child, grownups talking about to each other in the child’s presence.” Sgroi reiterated that in the present case, the child’s young age and developmental delays made her more susceptible to such contamination than an older child with normal cognitive development.

Sgroi also testified that a spontaneous disclosure of sexual abuse by a young child tends to have a higher index of credibility than a disclosure elicited by a person who might be considered to have a vested interest in the outcome of the complaint. She testified that a spontaneous disclosure by a child is less likely to be influenced by suggestible interviewing approaches. In the present case, the child’s mother testified at the criminal trial that in April, 2003, nearly a year after the child was diagnosed with trichomonas, she allowed the child to attend a school-sponsored good touch-bad touch presentation and then “waited a day or two . . . and . . . sat down to talk to her and see if that would maybe help her open up and it did.” The child’s mother testified that she “asked [the child] to tell [her] about the [good touch-bad touch] program.” During the course of that conversation, the child mentioned the petitioner and “started talking about the good touch-bad touch and then the part she was leaving out [the mother] added in, as far as private areas.” Sgroi testified that the child’s report was not spontaneous and the decision of the child’s mother to “add in” the suggestion that the petitioner had touched the child’s private areas was a contaminating interviewing approach that influenced the reliability of the child’s disclosure.

Sgroi further testified that there were a variety of problems in the way the April 16, 2003 forensic interview of the child was conducted. Sgroi testified that although the interviewer properly used open-ended questioning techniques throughout the interview, she failed to address and resolve several contradictions contained in the child’s report of sexual abuse. For instance, the child stated repeatedly that the petitioner had abused her “yesterday.” Sgroi testified that, on the basis of her review of the interview video, the child displayed little or no capacity to differentiate between the recent past and the more distant past. Sgroi also testified that, at several points during the session, the child recited what sounded like a rehearsed litany of complaints. Sgroi testified that because the child already had been questioned multiple times, a rehearsal effect had been introduced by repeated questioning. Sgroi testified that, in her expert opinion, the problems associated with the child’s responses should have been addressed either at the April 16, 2003 interview or in a follow-up session.

Sgroi also testified that the child’s testimony at the petitioner’s criminal trial reflected extensive preparation. By the time of her testimony, the child had undergone three investigations for sexual abuse, each involving multiple interviews by her mother and various professional interviewers. During her testimony at trial, the child was able to give very little information about the alleged sexual assault. The child also testified that she never had been alone with the petitioner and that she had not attended kindergarten or a good touch-bad touch presentation. Although she stated that the petitioner’s “thing” had gone inside her body, she stated that she could not feel it inside her body. According to Sgroi, without the benefit of explanation and clarification by a defense expert, she believed it would be very difficult for the jury to discern how all of the possible complicating and contaminating factors could have affected the victim’s reports and trial testimony.

“In addition to relying on Sgroi’s testimony, the habeas court also found persuasive the testimony of attorney Michael Blanchard about the use of expert witnesses to assist the defense in a criminal trial. Blanchard testified that the proper preparation for a criminal trial involving charges of sexually assaulting a minor, in particular when the defendant denies the charges and will proceed to trial, necessitates the utilization of an expert witness both for trial preparation and during the trial itself. In his view, such required evidence was exemplified by Sgroi’s testimony . . . challenging the manner in which the child had been interviewed.

“In her posttrial brief, the respondent did not challenge the propriety or the accuracy of the expert testimony presented by the petitioner. She argued only that the issues identified by the experts at the habeas hearing had been adequately brought to the attention of the trial jury by trial counsel’s cross-examination of the state’s lay and expert witnesses.

“The habeas court concluded, however, that trial counsel’s failure to call an expert witness in the petitioner’s criminal trial constituted ineffective assistance of counsel that had been prejudicial to the petitioner. The court faulted trial counsel for failing to utilize a subject matter expert during the criminal trial to inform the jury about issues relating to the . . . reliability of the belated disclosure of an assault by the child.

“The respondent’s appeal challenges only the legal conclusions of the habeas court. We begin by setting forth our standard of review. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, supra, 122 Conn. App. 421-22.

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, 127 Conn. App. 662, 668, 14 A.3d 1066, cert. denied, 301 Conn. 913, 19 A.3d 1259 (2011). “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.) Josephs. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

The respondent advances three arguments in support of her claim that, as a matter of law, the habeas court should not have faulted trial counsel for failing to present expert evidence to inform the jury about the reliability of the child’s disclosure of sexual abuse by the petitioner. First, the respondent claims that trial counsel’s cross-examination of the state’s witnesses at trial sufficiently informed the jury about the psychological issues relating to a child’s disclosure of sexual abuse. Second, the respondent claims that there is no evidence in the record to support Sgroi’s testimony that the child was developmentally challenged or that the child’s mother and the other interviewers contaminated the child’s report of sexual abuse. Third, the respondent questions the extent to which Sgroi’s testimony would have been admissible at the petitioner’s criminal trial. Additionally, the respondent questions the validity of the habeas court’s determination that the petitioner was prejudiced by the identified omissions in his trial representation.

The respondent first claims that trial counsel’s cross-examination of the state’s witnesses sufficiently informed the jury about the issues raised in Sgroi’s testimony that the child’s mother and the professionals who were investigating the complaint of sexual abuse created an accusatory atmosphere. We disagree. The habeas court expressly found that the failure to utilize a subject matter expert during the criminal trial on the issue of the reliability of the child’s disclosure constituted deficient performance under the circumstances of the present case. In support of its conclusion, the habeas court relied on this court’s dictum in Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 76, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), that under certain circumstances, such as those involving the sexual abuse of children, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel. The habeas court also cited with approval Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005), cert. denied sub nom. Artus v. Gersten, 547 U.S. 1191, 126 S. Ct. 2882, 165 L. Ed. 2d 894 (2006), in which the court observed that “[i]n sexual abuse cases, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel. . . . This is particularly so where the prosecution’s case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony.” (Citations omitted.) Id.

In support of the respondent’s argument that the habeas court improperly relied on Sgroi’s testimony regarding the effect of an accusatory atmosphere on the reliability of the child’s disclosure of sexual abuse, the respondent merely contends that the habeas court’s conclusion “discounts [the state’s witness’] testimony.” This argument lacks merit and fails to provide a basis for rejecting the habeas court’s judgment. On the basis of our review of the record, we conclude that trial counsel failed to elicit any information regarding the psychological issues related to a child’s disclosure of sexual abuse that were raised by Sgroi’s testimony at the habeas trial.

Although onr Supreme Court “has never adopted a bright line rule that an expert witness for the defense is necessary in every sexual assault case”; Michael T. v. Commissioner of Correction, supra, 307 Conn. 100-101; we conclude that, under the facts of the present case, the habeas court properly determined that the failure of the petitioner’s trial counsel to utilize an expert witness constituted deficient performance.

Regarding the respondent’s second ground for reversal, the respondent claims that the habeas court improperly credited Sgroi’s testimony that the child’s mother and the other interviewers contaminated the child’s disclosure of sexual abuse by engaging in repeated questioning of the child in an accusatory atmosphere and that such contamination was exacerbated by the child’s developmental difficulties. The respondent argues that there is no evidence in the record to support Sgroi’s testimony concerning such issues. We disagree.

The record reveals that before the child reported the alleged abuse at the forensic interview on April 16, 2003, she had been questioned on at least six separate occasions. Indeed, on June 3, 2002, after the child had already been asked on multiple occasions whether anyone had touched her, a department worker had to warn the child’s mother to refrain from questioning her further to avoid tainting any subsequent disclosure. Pfeif-fer testified at the petitioner’s criminal trial that, using closed-ended questions, she asked the child whether specific people, including the petitioner, ever had touched her private parts. On June 11, 2002, after questioning the child at length about what led to her infection of trichomonas, Pfeiffer subsequently reported the child’s difficulties with numbers, colors, verbal comprehension, speech, and positions and spatial relations. On June 26,2002, during an examination at Yale-New Haven Hospital, a nurse practitioner asked the child whether she had been sexually abused and told the child that, “the reason why [the nurse] was seeing her was because there was a concern about how [the child contracted] trichomonas [because it] is a sexually transmitted disease primarily, and so [the nurse] asked her about, you know, anybody touching her anywhere.” Accordingly, the respondent’s contention that “there is no concrete evidence before this court concerning the nature of any interviews of [the child]” lacks merit. The habeas court had ample evidence from which it could conclude that trial counsel should have presented expert testimony on the reliability of a disclosure of sexual abuse by a developmentally delayed child elicited after multiple interviews that were conducted in an accusatory context, and that by failing to do so, trial counsel’s performance was deficient.

Turning to the respondent’s third basis for reversal, she argues that Sgroi’s testimony would not have been admissible at the petitioner’s criminal trial. At the habeas trial, the respondent did not question Sgroi’s professional credentials or challenge the admissibility of her testimony. When Blanchard testified that Sgroi’s testimony would have provided critical information to the jury based on her expertise in the psychological issues related to a child’s disclosure of sexual abuse, the respondent did not question whether that testimony would have been admissible at trial. Consequently, the habeas court was not asked to address the admissibility of Sgroi’s testimony in a criminal proceeding. “We do not entertain claims not raised before the habeas court but raised for the first time on appeal.” Bertotti v. Commissioner of Correction, 136 Conn. App. 398, 404, 44 A.3d 892, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).

Nevertheless, we note that, “[i]n cases that involve allegations of sexual abuse of children, [our Supreme Court has] held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. . . . Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child. ... It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim’s claims are truthful. ... In this regard, we have found expert testimony stating that a victim’s behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse.” (Emphasis omitted; internal quotation marks omitted.) State v. Robles, 103 Conn. App. 383, 403, 930 A.2d 27, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007). Here, Sgroi testified as to the factors that affect the reliability of a child’s disclosure of sexual abuse. She did not proffer an opinion regarding the ultimate determination as to whether the child was a credible witness. Accordingly, we decline to overturn the judgment of the habeas court on this basis.

Finally, although a habeas court may deny a petition for habeas corpus on the basis of the petitioner’s failure to demonstrate prejudice from the errors of trial counsel; see Gooden v. Commissioner of Correction, supra, 127 Conn. App. 668; the respondent has failed to present an argument why, in the present case, the habeas court improperly found prejudice to have been established. In addressing the prejudice prong of Strickland, the habeas court cited with approval Pavel v. Hollins, 261 F.3d 210, 226 (2d Cir. 2001), in which the court stated that, if the evidence presented at trial is relatively weak, the “confidence in the judgment of conviction . . . may be undermine [d] ... by a relatively smaller quantity of prejudice than might ordinarily suffice.” (Internal quotation marks omitted.) Id. The habeas court determined that its “confidence in the outcome of the proceeding has been undermined, especially due to the mistakes, flaws and omissions underscored by Dr. Sgroi’s expert testimony. Here, the conviction is not supported by overwhelming evidence of guilt.”

In reaching its conclusion that trial counsel rendered ineffective assistance, the habeas court credited the testimony of Blanchard that Sgroi’s testimony at the habeas trial covered information that was not presented to the jury at the criminal trial. Specifically, trial counsel failed to present information on the effects of (1) an accusatory atmosphere, (2) repeated questioning and the possibility of a rehearsal effect, (3) the child’s developmental delay, and (4) the problems associated with the April 16, 2003 interview. Accordingly, on the basis of the evidence in the record, we conclude that there is a reasonable probability that the outcome of the criminal trial would have been different if such testimony had been presented to the jury. We further conclude, therefore, that the habeas court properly determined that trial counsel’s ineffectiveness prejudiced the petitioner.

The judgment is affirmed.

In this opinion the other judges concurred.

       The judgment of the habeas court was the subject of a previous appeal in Michael T. v. Commissioner of Correction, 122 Conn. App. 416, 999 A.2d 818 (2010), rev’d, 307 Conn. 84, 52 A.3d 655 (2012). In that case, this court affirmed the judgment of the habeas court solely on the basis of the habeas court’s alternate conclusion that the petitioner’s trial counsel had rendered ineffective assistance by failing to present expert testimony to challenge the state’s presentation of incriminatory expert evidence on medical issues relating to the child victim’s symptomatology. That decision was overturned by our Supreme Court, which remanded the case to this court for consideration of the respondent’s remaining claims. Michael T. v. Commissioner of Correction, 307 Conn. 84, 103-104, 52 A.3d 655 (2012).

       “Trichomonas is a parasitic protozoa that can infect the urinary tract or prostate of males and the vagina or urinary tract of females.” Michael T. v. Commissioner of Correction, supra, 122 Conn. App. 419 n.5.

       The state’s ease included the testimony of Sanjeev Rao, a medical doctor, who stated categorically that “the disease had only been documented to be transmitted through a deposition of semen.” Michael T. v. Commissioner of Correction, supra, 122 Conn. App. 419 n.6.

       “The court declined to address trial counsel’s pretrial and investigative efforts because there was an inadequate record, as a result of trial counsel’s death prior to the habeas hearing.” Michael T. v. Commissioner of Correction, supra, 122 Conn. App. 422 n.7.

       “The respondent’s brief states: ‘The habeas court’s historical fact determinations are not erroneous.’ ” Michael T. v. Commissioner of Correction, supra, 122 Conn. App. 422 n.8.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    ANTHONY SANTOS v. ZONING BOARD OF APPEALS OF THE TOWN OF STRATFORD ET AL.
    (AC 31814)
    DiPentima, C. J., and Sheldon and Schaller, Js.

      Argued March 18
    officially released July 9, 2013

      Ian Angus Cole, for the appellant (plaintiff).

      James Cresswell, for the appellees (defendants).
   Opinion

SCHALLER, J.

The dispositive issue in this appeal is whether there is evidence in the record to support the trial court’s finding that the plaintiff, Anthony Santos, waived the provisions of General Statutes § 51-183b by executing more than one agreement to extend the time for the court to render judgment. We conclude that the court’s finding of waiver was clearly erroneous and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs appeal. The plaintiff purchased property located in the town of Stratford (town) at a tax auction. Subsequently, the plaintiff brought an action against the defendants, the town and the zoning board of appeals of the town. The plaintiff alleged that by refusing to issue two minor variances, the defendants permanently and substantially interfered with his use and enjoyment of the land amounting to a taking of the property without just compensation. The plaintiff also alleged that the town was unjustly enriched by the amount of money it received from the plaintiff from the purchase of the land. This matter was tried to the court and evidence was presented on December 16 and 16,2005, and the parties filed posttrial briefs in February, 2006.

Because the court had not yet rendered judgment, in August, 2007, the parties signed and filed a written consent to an extension of time for the court to render a decision, up to and including November 12, 2007. The relevant language of the extension provided as follows: “The parties are willing to grant the court a limited extension of time within which to render a decision, up to and including Monday, November 12, 2007. Nothing herein shall be construed as consent to an extension of time beyond November 12, 2007, or as a waiver of the provisions of [§] 51-183b if the trial court renders a decision after November 12,2007, and it is [the] express intent of the parties at the time of the execution hereof that this extension of time is a final extension of time and does not extend the jurisdiction of the court to render a decision after November 12, 2007.” (Emphasis in original.) On January 6,2009, the court still not having rendered judgment, the parties agreed to a second extension of time for the court to render a decision. The extension was signed by parties’ attorneys and extended the time for the court to render a decision up to and including April 6, 2009. The January, 2009 extension was substantively identical to first extension, filed in August, 2007, with the exception of the relevant dates.

On May 27, 2009, after the April 6, 2009 deadline stipulated in the parties’ second extension, the trial court rendered judgment in favor of the defendants. The plaintiff filed a motion to set aside the judgment and for a new trial on May 29, 2009, on the ground that the judgment was untimely; the defendants filed an objection thereto on August 12, 2009. On December 10, 2009, the court denied the plaintiffs motion and this appeal followed. In the interim, the court granted the plaintiffs motion for articulation on March 13, 2012, and issued an articulation in which it stated: “By their multiple extensions of time, the parties have waived the provisions of § 51-183b . . . .” The court subsequently denied the plaintiffs motion to clarify or refine its articulation dated March 13, 2012.

On appeal, the plaintiff asserts that the court erred in denying his motion to set aside the judgment and for a new trial. The plaintiff specifically argues that he did not permanently waive the 120 day requirement of § 51-183b by agreeing to two extensions of time by which the court must render judgment. We agree with the plaintiff and conclude that the trial court’s finding of waiver was clearly erroneous.

We first set forth the standard of review and legal principles that will guide our analysis. Our Supreme Court has held that “the defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. . . . Even after the expiration of the time period within which a judge has power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void.” (Citation omitted; internal quotation marks omitted.) Foote v. Commissioner of Correction, 125 Conn. App. 296, 300-301, 8 A.3d 524 (2010); see also Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). “If a party seasonably objects [to the late judgment], the judgment is voided.” Cowles v. Cowles, 71 Conn. App. 24, 26, 799 A.2d 1119 (2002).

Section 51-183b provides in relevant part that “[a]ny judge of the Superior Court . . . shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.” “The one hundred twenty day period begins to run from the date that the parties file posttrial briefs or other material that the court finds necessary for a well reasoned decision.” Cowles v. Cowles, supra, 71 Conn. App. 26. “Whether conduct constitutes a waiver is a question of fact. . . . Our review therefore is limited to whether the judgment is clearly erroneous or contrary to law.” (Internal quotation marks omitted.) Foote v. Commissioner, supra, 125 Conn. App. 302.

The court erroneously concluded that the plaintiff had waived the provisions of § 51-183b by executing multiple agreements to extend the period for the court to render judgment. In so holding, we find Cowles persuasive. In Cowles, the parties executed an agreement extending the period for the court to render judgment. Cowles v. Cowles, supra, 71 Conn. App. 25. The trial court issued its memorandum of decision after that time period expired under the mistaken belief that it was accommodating the plaintiff, and the plaintiff objected by filing a motion to reargue. Id. This court declared the trial court’s judgment void, concluding that the plaintiff did not consent to the judgment past the stipulated extension date and had seasonably objected to the untimely judgment by filing a motion to reargue approximately one month after the court issued its decision. Id., 26-27.

Although the parties in the present case executed two extensions, the agreements, as in Cowles, set forth a specific date beyond which their consent to a late judgment would not extend. In fact, both of these agreements expressly provided that the extension was limited to the stipulated date set forth therein, nothing within the agreement should be construed to grant further extension beyond the stipulated date, and the agreement would not serve as a waiver of the parties’ rights under § 51-183b should the court issue its decision beyond the stipulated date. The defendants cannot point us to any authority that multiple extensions alone are a proper basis for concluding that the parties waived the provisions of § 51-183b or that the additional extension renders this case so distinguishable from Cowles that its holding is inapplicable. Furthermore, as in Cowles, the plaintiff seasonably objected to the court’s judgment by filing a motion to set aside the judgment and for a new trial two days after the court issued its untimely decision. See id., 26-27 (objection seasonable when motion filed one month after late judgment rendered). Accordingly, the court’s late judgment, rendered after the stipulated date in the parties’ second extension, is voidable. For the foregoing reasons, we conclude that the court’s finding of waiver on the ground that the plaintiff agreed to multiple extensions was clearly erroneous and further conclude that the court improperly denied the plaintiffs motion to set aside the judgment and for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendants also argue that the plaintiffs conduct supports a finding that he waived the provisions of § 51-183b. Specifically, they assert that by agreeing to two extensions that delayed the time to render judgment by over 900 days past the statutory deadline, the plaintiff implicitly waived his statutory rights. Although the defendants correctly assert that a party’s conduct may constitute an implicit waiver, the record is bare of any indication that the court considered this argument or based its ruling upon this ground. In its articulation, the court stated only that the multiple extensions constituted a waiver and declined to articulate further. Accordingly, our analysis is limited to the ground upon which the trial court based its ruling, and we therefore decline to address this issue.

       Because our resolution of this issue is dispositive, we decline to address the plaintiffs remaining claims that pertain to the merits of the trial court’s decision.


author: PER CURIAM.

text:
    ERIC KENNEDY v. COMMISSIONER OF CORRECTION
    (AC 33330)
    DiPentima, C. J., and Lavine and Dupont, Js.
    Argued April 16
    officially released July 9, 2013

      Edward G. McAnaney, assigned counsel, for the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Eric Kennedy, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus and claims that the habeas court abused its discretion in denying his petition for certification to appeal. The court concluded that the petitioner had failed to demonstrate that the trial attorney who had represented him on the underlying charges as enumerated in his habeas petition rendered ineffective assistance of counsel by failing (1) to advise him adequately of the consequences of his plea agreement as to the maximum sentence to be imposed and (2) to research adequately the length of sentences imposed in comparable cases charging other defendants with crimes involving “shaken baby syndrome.” We dismiss the appeal.

The following procedural history is relevant to this appeal. The most recent charges brought against the petitioner that are at issue in this appeal were the result of a January 8, 2004 incident in which the state charged the petitioner with inflicting head injuries upon his son, a healthy ten month old infant, causing the child to be permanently disabled. On September 2, 2005, the petitioner pleaded guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of assault in the first degree in violation of General Statutes § 53a-59a (a) (3) and one count of risk of injury to a child in violation of General Statutes § 53-21. The sentencing agreement was for a maximum sentence of twenty-five years incarceration, execution suspended after twenty years, followed by five years probation, with a minimum sentence of twenty years incarceration, execution suspended after fifteen years, followed by five years probation. The trial court sentenced the petitioner to twenty years incarceration, execution suspended after fifteen years, followed by five years of probation for the assault in the first degree conviction, and five years incarceration for the risk of injury to a child conviction to be served consecutively to the sentence imposed on the assault conviction. All remaining counts not arising from the January 8, 2004 injury to the petitioner’s son were nolled.

On November 13, 2009, the petitioner filed an amended petition for a writ of habeas corpus, claiming that the attorney representing him when he entered his plea agreement, Michael Moscowitz, had provided ineffective assistance of counsel by failing, inter alia: (1) to interview potential exculpatory witnesses, (2) to research and investigate the range of sentences imposed in cases that were similar to the petitioner’s case and (3) to object to or inform the petitioner of the entry of nolles in connection with other pending charges against him that were unrelated to his son’s injuries. On March 4, 2010, following a trial on the merits, the habeas court rejected all counts of the petition. The habeas court subsequently denied the petitioner’s petition for certification to appeal.

On appeal to this court, the petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal that court’s finding that Moscowitz’ representation during the plea negotiations and entry of the petitioner’s plea agreement was ineffective because (1) he did not inform the petitioner that he would be required to serve between twenty and twenty-five years in prison and (2) he did not adequately research sentences issued in similar cases. We are not persuaded.

“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Crawley v. Commissioner of Correction, 141 Conn. App. 660, 664, 62 A.3d 1138 (2013).

“[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2062, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 62, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing 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. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. ... In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition.” (Emphasis in original; internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn. App. 778, 782-83, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

The petitioner first claims that he would not have pleaded guilty had he known that his plea agreement carried a possible maximum sentence of twenty-five years incarceration, rather than a maximum of ten years. At the habeas trial, the petitioner testified to this effect. Moscowitz, however, testified that he had discussed with the petitioner the plea agreement and the possible sentencing range that the trial court might impose, up to and including a maximum sentence of twenty-five years. Moscowitz also denied that a sentence of ten years incarceration was ever discussed with the petitioner. The habeas court found Moscowitz to be a more credible witness, and determined, on the basis of this and other evidence presented at the habeas trial, that the petitioner had been advised adequately concerning the possible sentence accompanying his plea agreement. Thus, the habeas court found that the petitioner’s claim of deficient performance failed due to the habeas court’s credibility determinations. “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony.” (Internal quotation marks omitted.) Josephs v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). Accordingly, because the habeas court determined that Moscowitz’ testimony was credible, we defer to that court’s finding and agree that the petitioner was adequately advised of the possible sentence that might result from his plea agreement.

The petitioner next claims that Moscowitz’ representation was deficient because he did not adequately research the duration of sentences received by defendants in similar “shaken baby” cases. He argues that, as a result, he pleaded guilty on the basis of Moscowitz’ “gross misadvice” regarding the “likely range of sentences” that he faced. The petitioner, however, fails to demonstrate how such an absence of research on this topic amounted to deficient performance or that he would have changed his pleas on the basis of any such comparison.

Sentencing in Connecticut “is an individualized procedure in which the court has the grave responsibility to determine and impose, within applicable statutory limits, the appropriate punishment for a particular defendant.” (Internal quotation marks omitted.) State v. Fuller, 56 Conn. App. 592, 624, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). It has been well established by both the United States Supreme Court and our Supreme Court that there is no due process liberty interest or other constitutional right to the type of proportionality review that the petitioner claims was required by Moscowitz in this case. See Pulley v. Harris, 465 U.S. 37, 43-51, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984) (proportionality review not constitutional requirement even when death sentence imposed); State v. Rupar, 293 Conn. 489, 504-505, 978 A.2d 502 (2009) (“there can be no liberty interest implicit in the fourteenth amendment [to the United States constitution] in receiving a sentence within the authorized range that is ‘proportionate’ to that of similarly situated offenders”).

Moscowitz, therefore, had no legal obligation to research comparable sentences in similar cases. Moreover, the petitioner has not cited any cases that demonstrate that his sentence was grossly disproportionate in comparison to the sentences of other defendants who were convicted of crimes involving “shaken baby syndrome,” nor does he claim that his sentence was actually disproportionate. Thus, we conclude that because Moscowitz’ performance was not deficient in regard to this claim, the habeas court’s conclusion was not in error.

Because we conclude that Moscowitz’ representation was not deficient with respect to the petitioner’s claims, we do not reach the prejudice prong of Strickland, namely, whether but for counsel’s deficient performance the petitioner would not have pleaded guilty, but would have proceeded to trial. See Hall v. Commissioner of Correction, supra, 124 Conn. App. 782-83. Accordingly, we conclude that the habeas court’s resolution of the issues is not debatable among jurists of reason, that a court could not resolve the issues in a different manner, and that the questions raised do not deserve encouragement to proceed further. See Crawley v. Commissioner of Correction, supra, 141 Conn. App. 664. The habeas court, therefore, did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       The amended habeas petition asserts that the petitioner was named as a defendant in charges filed on various dates, charging him with two counts of assault in the first degree, eight counts of risk of injury to a child, four counts of reckless endangerment, one count of robbery in the third degree, one count of threatening in the second degree, one count of disorderly conduct, two counts of criminal trespass and two counts of criminal violation of a protective order.

       The petitioner claimed, in this tragic “shaken baby syndrome” case, that his son fell out of his crib and that the petitioner shook him to revive him after the fall. At his hearing on the amended petition for a writ of habeas corpus, the petitioner maintained, as he had throughout the proceedings concerning this incident, that he was not trying to injure his son, but to revive him. The court acknowledged that such testimony of the petitioner might indicate remorse but did not amount to admitting responsibility for the child’s injuries. At sentencing, the trial court was aware that the child’s pediatrician would testify that from the child’s birth, the petitioner was affectionate and loving, but that other physicians would testify that the injuries of the child could not have occurred from falling two feet from a bed in the maimer described by the petitioner.

       The petitioner’s total effective sentence is twenty-five years incarceration, execution suspended after twenty years, followed by five years probation.

       On appeal, the petitioner does not challenge the habeas court’s finding that Moscowitz’ representation was not deficient with respect to the trial court’s entry of nolles, as part of the plea agreement, for the petitioner’s unrelated, pending charges. In its decision denying the habeas petition, the habeas court characterized that claim as a “nonissue,” because, even if Moscowitz’ performance in failing to inform the petitioner of the nolles was deficient, he suffered no prejudice as a result because he “never got prosecuted on them.” As a nolle prosequi is “functionally equivalent to a dismissal without prejudice”; (emphasis omitted) State v. Smith, 289 Conn. 598, 612, 960 A.2d 993 (2008); we agree that the petitioner was not prejudiced by the entry of nolles on the remaining charges against him.

       Evidence presented at the habeas trial demonstrated that at his plea hearing, the petitioner acknowledged that he understood that his plea agreement provided for the previously mentioned sentencing range and that he had agreed to plead guilty to such a lengthy sentence so that “people [would not] be put through the pain of a trial,” and not, as he now contends, because he was unaware of the possible sentence that could accompany his plea agreement.

       The petitioner further claims that because Moscowitz did not properly advise him about the possible range of sentences that could result from his plea agreement, his plea agreement was not knowing, intelligent and voluntary, and was, therefore, in violation of his constitutional right to due process. Because we affirm the habeas court’s finding that Moscowitz did discuss the sentence ramifications of his plea agreement with the petitioner, we need not address this claim.

       In reviewing the petitioner’s sentence at his request, the sentence review division of the Superior Court concluded that, “[t]aking into consideration the petitioner’s background as well as the serious nature of the instant offense, the sentence imposed is appropriate and not disproportionate.” State v. Kennedy, Superior Court, judicial district of New Haven, Docket No. CR-04-28889 (April 30, 2009).

       We note that there is a conflict in the current case law regarding the proper standard for determining prejudice in claims of ineffective assistance of counsel in connection with the decision to plead guilty, as articulated in Hill v. Lockhart, supra, 474 U.S. 52, and Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995). There is an appeal pending in our Supreme Court, Brown v. Commissioner of Correction, Docket No. SC 18859, which addresses this issue. That case was transferred to our Supreme Court on September 29,2011, and is the petitioner’s appeal from the habeas court’s denial of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. See Brown v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV-09-4003026-S (March 8, 2010). Because we dismiss the present appeal on the ground that the habeas court properly found that Moscowitz did not render ineffective assistance, we need not address this conflict.


text:
    FILOMENA REES v. ELLEN J. VILLANO ET AL.
    (AC 34753)
    DiPentima, C. J., and Alvord and Harper, Js.
    Argued May 28
    officially released July 9, 2013

      Peter R. Stark, with whom, on the brief, was Edward S. Noble III, for the appellants (defendants).

      David C. Pite, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendants Ellen J. Villano and Anthony Villano appeal from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff Filomena Rees. On appeal, the defendants claim that the court improperly precluded them from presenting an expert witness. After reviewing the record and appellate briefs, we conclude that the defendants’ claim is without merit and that the court properly rendered a judgment of strict foreclosure in favor of the plaintiff.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    JOHN GIROLAMETTI, JR. v. RIZZO CORPORATION
    (AC 34547)
    Lavine, Alvord and Bear, Js.

      Argued May 23
    officially released July 9, 2013

      Michael J. Bamaby, for the appellant (plaintiff).

      Daniel J. Krisch, with whom, on the brief, was Alfred A. DiVincentis, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, John Girolametti, Jr., appeals from the judgment of the trial court dismissing his application to vacate an arbitration award issued in favor of the defendant, Rizzo Corporation, on the ground that it was not filed within thirty days of the notification of the arbitration award as required by General Statutes § 52-420 (b). On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction over his application because the statutory time limitation for filing his application was extended by the defendant’s having filed a motion with the arbitrator to modify the award, and his application properly was filed within thirty days of the issuance of the modified award. We affirm the judgment of the trial court.

In ruling on the defendant’s motion to dismiss, the court issued a memorandum of decision that concisely and thoughtfully states the facts and the applicable law. See Girolametti v. Rizzo Corp., 52 Conn. Supp. 592, 77 A.3d 217 (2012). After examining the record and the briefs and considering the arguments of the parties on appeal, we are persuaded that the court correctly determined that it lacked subject matter jurisdiction over the plaintiffs application. We, therefore, adopt the court’s thorough and well reasoned memorandum of decision as the proper statement of the relevant facts, issues and applicable law. See id. No useful purpose would be served by repeating that discussion here. See, e.g., Council 4, AFSCME, AFL-CIO v. State Ethics Commission, 304 Conn. 672, 673, 41 A.3d 656 (2012); Tuite v. Hospital of Central Connecticut, 141 Conn. App. 573, 575, 61 A.3d 1187 (2013).

The judgment is affirmed.

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”


author: DiPENTIMA, C. J.

text:
    LUCAS B. STONE ET AL. v. NORMAN A. PATTIS ET AL.
    (AC 33546)
    DiPentima, C. J., and Gruendel and Alvord, Js.

      Argued January 9
    officially released July 16, 2013

      Joan L. Zygmunt, self-represented, with whom, on the brief, was Lucas B. Stone, self-represented, the appellants (plaintiffs).

      David R. Makarewicz, for the appellees (defendants John J. Radshaw III et al.).
   Opinion

DiPENTIMA, C. J.

The plaintiffs, Lucas B. Stone and Joan L. Zygmunt, appeal from the judgment of the trial court granting the motions to strike and dismiss filed by the defendants, Thomas R. Gerarde, John J. Radshaw III, and Howd & Ludorf, LLC (Howd defendants). On appeal, the plaintiffs claim that (1) judge trial referees were involved improperly in their case, and (2) the court erred in (a) determining that the Howd defendants filed an appropriate motion to strike and ruling in their favor, (b) eliminating claims in the plaintiffs’ third amended complaint and denying their right to file a fourth amended complaint, and (c) granting the Howd defendants’ motion to dismiss the fourth amended complaint. We disagree that there was any impropriety in the judge trial referee involvement or that the court erred in any of the alleged ways and affirm the court’s decisions to strike and dismiss respectively.

The following facts and procedural history are pertinent to this appeal. The plaintiffs engaged Norman A. Pattis and the Law Offices of Norman A. Pattis, LLC (Pattis defendants), as counsel in their lawsuit filed in federal court against the town of Westport in 2003 (federal action). The Howd defendants were retained as counsel by the town of Westport. During the pen-dency of the federal action, the plaintiffs became dissatisfied with Pattis’ representation, and they filed a grievance with the federal grievance committee. Pattis withdrew his appearance in the federal action, and the plaintiffs proceeded self-represented until they finally withdrew the federal action. At time of the federal action and before Pattis’ withdrawal, the Howd defendants hired Christy Doyle, who formerly had been an associate at Williams and Pattis, LLC. The plaintiffs commenced the present action claiming damages arising out of these facts, but they have not alleged that Doyle had knowledge of the federal action while working for Williams and Pattis, LLC, or that she was involved with the federal action after being hired by the Howd defendants.

In May, 2009, the plaintiffs filed a fifteen count complaint against the Pattis defendants and the Howd defendants (original complaint). The plaintiffs alleged breach of contract, breach of fiduciary duty, fraud, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., negligent infliction of emotional distress, and malpractice against the Pattis defendants, and alleged tortious interference with a fiduciary relationship, abuse of process, fraud, breach of fiduciary duty, CUTPA violations, and negligent infliction of emotional distress against the Howd defendants, and alleged conspiracy as to all defendants. A flurry of filings followed. The Howd defendants moved to strike the counts directed at them in the original complaint, and argued the motion, but the court marked the motion off after the plaintiffs filed a substitute complaint in October, 2009 (substitute complaint). The Howd defendants then filed a motion to reargue their motion to strike. The court, Adams, J., denied the motion to reargue, and the Howd defendants filed a motion to strike the counts directed at them in the substitute complaint in January, 2010. The court heard argument, and on April 16, 2010, the court, Brazzel-Massaro, J., issued a memorandum of decision striking the counts alleging conspiracy, tortious interference with a fiduciary relationship, abuse of process, fraud, breach of fiduciary duty and violations of CUPTA from the substitute complaint. Count fifteen, alleging negligent infliction of emotional distress, remained.

In April, 2010, the plaintiffs filed a second amended complaint, in which they added four new counts against the Howd defendants: violation of General Statutes § 53a-521, fraudulent nondisclosure of a conflict of interest and two violations of CUTPA. The plaintiffs also amended count fifteen of their substitute complaint in their second amended complaint. The Howd defendants moved to strike these counts from the second amended complaint on the ground that these counts constituted an improper amendment to the substitute complaint in violation of Practice Book § 10-60, but their argument was continued by the court because one of the plaintiffs, Stone, was not present at oral argument. Before argument on the motion to strike could be heard, the plaintiffs filed a third amended complaint. The Howd defendants filed a request to revise the third amended complaint, on the ground that the counts alleging a violation of § 53a-521, fraudulent nondisclosure of a conflict of interest and two violations of CUTPA were improper amendments to the substitute complaint. They also sought to reinstate count fifteen, alleging negligent infliction of emotional distress, as it had been pleaded in the substitute complaint because that count had survived their motion to strike. The court, Wenzel, J., overruled the plaintiffs’ objections to the requested revisions. In September, 2010, the plaintiffs filed a fourth amended complaint in which only count fifteen was directed at the Howd defendants. Subsequently, in October, 2010, the Howd defendants filed a motion to dismiss count fifteen of the fourth amended complaint on the ground that the court lacked subject matter jurisdiction because they have immunity from the plaintiffs’ claim of negligent infliction of emotional distress. The plaintiffs requested leave to amend the fourth amended complaint, but their request was denied in December, 2010. The plaintiffs nevertheless filed a fifth amended complaint seven days later. On April 6, 2011, the court, Blawie, J., granted the Howd defendants’ motion to dismiss count fifteen of the fourth amended complaint. This appeal followed.

I

We turn first to the plaintiffs’ claim on appeal that judge trial referees improperly were involved in this case. The plaintiffs argue specifically that the Superior Court has no power to refer any matter to a referee unless all parties consent and they did not consent. We disagree that their consent was necessary forjudge trial referees to participate in their case.

Throughout the course of this extensive litigation, judge trial referees presided over pretrial matters. The plaintiffs primarily argue that Hon. Kevin Tierney, judge trial referee, did not have jurisdiction to issue the January 11, 2010 order stating that all defendants’ motions to strike be argued together. Further, the plaintiffs argue that Hon. A. William Mottolese, judge trial referee, should have recused himself, as Hon. Kevin Tierney, judge trial referee, had done at the plaintiffs’ request. Throughout the extensive motion practice of this case, Hon. Kevin Tierney and Hon. A. William Mottolese, judge trial referees, decided a number of motions. The last decision made by a judge trial referee in this matter was in August, 2010. The motions to strike and dismiss that are the subject of this appeal were decided by Judges Brazzel-Massaro and Blawie, respectively, neither of whom are judge trial referees.

“[A] referee is not a judge of the [S]uperior [C]ourt or the [C]ourt of [Cjommon [P]leas but is sui generis, [and] sits as a special tribunal. . . . The [judge trial] referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts. On the contrary . . . [judge trial] referees serve the very practical purpose of relieving [t]he court’s crowded dockets.” (Citations omitted; internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 430, 696 A.2d 1254 (1997). General Statutes § 52-434 (a) (1) provides in relevant part: “The Superior Court may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to a judge trial referee who shall have and exercise the powers of the Superior Court in respect to trial, judgment and appeal in the case . . . .” (Emphasis added.) Practice Book § 19-3 specifically states in relevant part: “The court may also refer to a judge trial referee any motion for summary judgment and any other pretrial matter in any civil nonjury or jury case.” (Emphasis added.) In the present case, the decisions made by judge trial referees were exclusively pretrial decisions. The Howd defendants filed a jury claim on March 19, 2012, and Judge Brazzel-Massaro issued a case management order to close the pleadings by June 29, 2012. Because all of the motions that were decided by judge trial referees were decided before the pleadings were closed, consent was not required under § 52-434 (a). See also Girard v. Weiss, 43 Conn. App. 397, 407, 682 A.2d 1078 (“the absence of a consent requirement in the provisions of [Practice Book § 19-3] regarding the referral of pretrial matters to trial referees, in contrast to the express mandate for such consent contained in the provisions of ... § 52-434 [a] [1] and Practice Book § [19-3] regarding the referral of civil jury cases in which the issues have been closed and in which the trial referee is to exercise the powers of the Superior Court in respect to trial, judgment and appeal, indicates that no such consent is necessary for the referral of pretrial matters”), cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). Accordingly, we determine that the plaintiffs’ consent was not required at any stage of their litigation prior to June 29, 2012, and reject the claim of improper judge trial referee involvement.

II

The plaintiffs next claim that the court erred in considering the Howd defendants’ motion to strike the substitute complaint and in granting that motion. Specifically, the plaintiffs argue that the court should have decided the Howd defendants’ motion to strike the original complaint and that, even considering the substitute complaint, the court erred in determining that, as the opposing party in the federal action, the plaintiffs could not sue opposing counsel for actions in the federal action. We disagree.

A

We first turn to the plaintiffs’ claim that the court erred in considering the Howd defendants’ motion to strike the substitute complaint. The plaintiffs argue that their due process rights were violated because the court should have rendered its decision on the Howd defendants’ motion to strike the original complaint. We disagree.

Pursuant to Practice Book § 10-61, when a pleading is amended, the adverse party may plead to the amended pleading. See Danzig v. PDPA, Inc., 125 Conn. App. 254, 262, 11 A.3d 153 (2010), cert. denied, 300 Conn. 920, 14 A.3d 1005 (2011), cert. denied sub nom. Dadi v. Danzig, 564 U.S. 1044, 131 S. Ct. 3077, 180 L. Ed. 2d 899 (2011). The plaintiffs claim that their due process rights were violated by the court’s decision to consider the Howd defendants’ motion to strike the substitute complaint, and emphasize that they “put a lot of effort into the Objection and Memorandum of Law in opposition to [the Howd] Defendants’ Motion to Strike the original complaint.” This argument is belied by the fact that the plaintiffs themselves noted in their objection to the Howd defendants’ motion to reargue that the Howd defendants’ “pleading and oral argument should ... be regarded as applicable to the amended pleading.” The Howd defendants were entitled to file a motion to strike the plaintiffs’ substitute complaint pursuant to Practice Book § 10-61. Thus, the court did not err in deciding the Howd defendants’ motion to strike the substitute complaint without deciding the motion to strike the original complaint.

B

The plaintiffs next claim that the court erred in granting the Howd defendants’ motion to strike the counts alleging conspiracy, tortious interference with a fiduciary relationship, fraud, breach of fiduciary duty, CUTPA violations, and abuse of process from the substitute complaint (stricken counts). The plaintiffs argue that Judge Brazzel-Massaro (1) ignored certain issues raised in the plaintiffs’ briefs and (2) improperly concluded that they had not adequately pleaded the stricken counts. We conclude that the plaintiffs’ arguments are unpersuasive.

“A motion to strike attacks the legal sufficiency of the allegations in a pleading. ... In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. . . . Because a motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court, our review of the court’s ruling [on a motion to strike] is plenary.” (Internal quotation marks omitted.) Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013).

1

The plaintiffs claim that they were denied due process because the court ignored the conflict of interest issues raised by the plaintiffs in their memoranda in opposition to the Howd defendants’ motion to strike and allowed the Howd defendants to present a speaking motion. We disagree.

The purpose of a motion to strike hearing is to determine whether a party has pleaded facts sufficient to support a cause of action. Kumah v. Brown, supra, 307 Conn. 626. A trial court does not make factual findings at such a hearing. Id. In striking the count of breach of fiduciary duty, the court stated: “The plaintiffs claim that the fiduciary duty by opposing counsel arises out of the fact that Doyle was an attorney at [the Pattis defendants] and then switched to [the Howd defendants] while [the federal action] was still in progress. The plaintiffs fail to allege, however, that Doyle was in any way involved in the case on either side. This coincidence, absent more specific allegations, is too attenuated to give rise to a fiduciary duty between the plaintiffs and the defendants. Moreover, rules of professional responsibility do not give rise to a civil cause of action for the plaintiffs. There is no duty, there cannot be a breach of such duty . . . .” On the basis of our review of the pleadings, memoranda, and the court’s decision, we conclude that the court properly considered the plaintiffs’ arguments and the allegations in their complaint in its decision. Accordingly, we reject the plaintiffs’ procedural due process claim.

2

The plaintiffs also claim that the court erred in determining that they had failed to plead sufficiently the claims alleged in the stricken counts against the Howd defendants. Specifically, the plaintiffs argue that the court should not have relied on the Howd defendants’ immunity from suit by an opponent because the Howd defendants “colluded” with the Pattis defendants in the federal action and therefore exceeded the bounds of zealous representation, thereby eliminating their immunity.

In their challenge to the court’s ruling on the motion to strike, the plaintiffs do not address the legal sufficiency of each stricken count in their briefs. Instead, the plaintiffs rely solely on their argument that the Howd defendants’ hiring of Doyle created a conflict of interest and that such a conflict supports all of their claims as alleged in their substitute complaint.

“[D]etermining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy. ... A central dimension of the attorney-client relationship is the attorney’s duty of [e]ntire devotion to the interest of the client. . . . This obligation would be undermined were an attorney to be held liable to third parties.” (Internal quotation marks omitted.) Clukey v. Sweeney, 112 Conn. App. 534, 543, 963 A.2d 711 (2009); see also Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 727, 627 A.2d 374 (1993). “Courts have refrained from imposing liability when such liability had the potential of interfering with the ethical obligations owed by an attorney to his or her client.” Krawczyk v. Stingle, 208 Conn. 239, 246, 543 A.2d 733 (1988). “As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services.” Id., 244. Further, as discussed previously in this opinion, the plaintiffs do not allege facts to support the claim that Doyle at any time was involved with the federal action either as an employee of the Pattis defendants or of the Howd defendants. Without adequate briefing by the plaintiffs to persuade us to decide otherwise, we decline to review the court’s judgment striking the plaintiffs’ claims of conspiracy, tortious interference with a fiduciary relationship, fraud, breach of fiduciary duty and CUTPA violations from their substitute complaint.

The plaintiffs do briefly address the legal sufficiency of their count alleging abuse of process. They argue that the court ignored the plaintiffs’ allegations that the Howd defendants “enlisted several Westport police officers to repeatedly contact a subpoenaed witness.”

In Connecticut “an attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process. In permitting such a cause of action, we must, however, take care not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues.” (Internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 495, 529 A.2d 171 (1987). “An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . .” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 494. “[T]he addition of [the word] primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.” (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn. App. 63, 77, 918 A.2d 889 (2007), aff'd, 286 Conn. 548, 944 A.2d 329 (2008).

The plaintiffs allege that the Howd defendants conspired with the Pattis defendants regarding subpoenaed witnesses and notices of depositions and mail receipts. They do not, however, plead any specific conduct by the Howd defendants sufficient to support a cause of action for abuse of process. “[Although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.” (Emphasis added; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 100 Conn. App. 78. Although the plaintiffs generally allege fraudulent behavior, they do not allege specific injury or how the conduct by the Howd defendants was intended to cause them specific injury necessary for setting forth a claim of abuse of process. The court therefore did not err in striking the count alleging abuse of process.

Ill

The plaintiffs next claim that the court erred in overruling their objections to the Howd defendants’ request to revise and, consequently, in eliminating counts from the plaintiffs’ third amended complaint. Specifically, the plaintiffs argue that counts from a complaint can only be removed by a motion to strike, and that the court therefore erred in removing such claims by allowing the Howd defendants’ request to revise. We disagree with this inteipretation of our rules of practice.

“A trial court’s consideration of a request to revise and any objection thereto involves, inter alia, consideration of the factual allegations, the extent to which they are sufficiently precise or specific, and whether the allegations are unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper .... These considerations necessarily involve the trial court’s discretionary judgment. ... As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue ... is whether the trial court could have reasonably concluded as it did.” (Citations omitted; internal quotation marks omitted.) Cassotto v. Thibault, 131 Conn. App. 328, 335, 27 A.3d 399 (2011).

Practice Book § 10-35 states in relevant part: “Whenever a party desires to obtain ... (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading ... or (4) any other appropriate correction in an adverse party’s pleading, the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.” The plaintiffs argue that “there is nothing in Practice Book Rule § 10-35 regarding Request to Revise that allows for the deletion of entire counts of a complaint.” This claim is contrary to the language of Practice Book § 10-35, as the section specifically states that a request to revise is the appropriate method for the “deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations.”

Further, the plaintiffs argue that Practice Book § 10-44 allows them to file an amended complaint that adds new counts and allegations without the court’s leave. The plaintiffs misconstrue Practice Book § 10-44, which states in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading.” Practice Book § 10-44 grants the power to amend the portion of a complaint that has been stricken, not the power to revise a complaint entirely. See W. Horton & K. Knox, 1 Connecticut Practice Series: Procedure in Civil Matters (2011 Ed.) § 10-44, p. 547 (“Repleading after a motion to strike is limited to those areas which were stricken. . . . Additional pleadings, such as new actions, must be added under a request to amend [Citation omitted.]); see also East Greylock, LLC v. OBC Associates, Inc., Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-04-4002173 (May 4, 2007) (43 Conn. L. Rptr. 396) (“[e]ven though the pleading has been stricken, only the defective portion of the pleading is affected and, as provided by [Practice Book §] 10-44 . . . that part may be amended within fifteen days after the motion is granted” [internal quotation marks omitted]). Practice Book § 10-44 does not permit the plaintiffs to add new counts in subsequent amended complaints following the court’s decision striking the substitute complaint in accordance with our rules of practice. The court was within its discretion in overruling the plaintiffs’ objections to the Howd defendants’ request to revise, thereby removing the new counts alleged in the third amended complaint that were not contained in the substitute complaint.

IV

Finally, the plaintiffs claim that the court erred by dismissing count fifteen of their fourth amended complaint. Specifically, the plaintiffs argue that the court erred in dismissing their claim of negligent infliction of emotional distress on the merits. The Howd defendants argue that the immunity encompassing their communications during the federal action deprives the court of subject matter jurisdiction over the plaintiffs’ allegations in this count. We agree with the Howd defendants.

“[A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. ... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). “[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).

In the fifteenth count of the fourth amended complaint, the plaintiffs alleged that the Howd defendants inflicted emotional distress on the plaintiffs by conspiring with the Pattis defendants not to disclose Doyle’s hiring, subpoenaing witnesses unduly, failing to call witnesses and not disclosing the reasons for such failure to the court. The plaintiffs claim further that the Howd defendants “should have realized that their repeated conduct of deception, unfairness and negligence against [the plaintiffs] involved an unreasonable risk of causing emotional distress . . . [and] as a result of the aforesaid misconduct of the defendants herein . . . the plaintiffs have suffered and continue to suffer damages.”

The Howd defendants moved to dismiss the plaintiffs’ claim of negligent infliction of emotional distress on the ground that the trial court lacked subject matter jurisdiction because they have absolute immunity from the plaintiffs’ claims. See Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005) (“[t]he doctrine of sovereign immunity implicates subject matter jurisdiction, and is therefore a proper basis for a granting of a motion to dismiss” [internal quotation marks omitted]); Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005) (“the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state”). They argue that the plaintiffs’ claims are precluded by immunity because the Howd defendants were acting within the context of the federal action and for the benefit of their client. “At common law, communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature. . . . Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition.” (Citation omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, supra, 787-88. Even communications that are preliminary to a proposed judicial proceeding are absolutely privileged if they bear some relation to the proceeding. See 3 Restatement (Second), Torts § 588, p. 250 (1977).

In ruling on the motion to dismiss, the court, Blawie, J., concluded that “[t]here is no doubt . . . that the [federal action], and [the Howd defendants’] concomitant defense of that lawsuit, constituted a formal judicial proceeding. It is also clear that any grievance proceedings against a member of the bar such as were instituted here by the plaintiffs, either at the federal, state, and/or local level, fall squarely within the category of quasi-judicial proceedings.” The court noted that the privilege enjoyed by those involved injudicial proceedings derives from the public interest where “[witnesses and parties to judicial proceedings must be permitted to speak freely ... if the judicial process is to function.” (Internal quotation marks omitted.)

On appeal, the only claim we consider is negligent infliction of emotional distress. Although the plaintiffs claimed abuse of process in their substitute complaint, that count was properly stricken, and thus the plaintiffs’ allegations as to Doyle’s hiring and the question of a conflict of interest are extraneous to their remaining claim of negligent infliction of emotional distress. The question of litigation privilege with respect to negligent infliction of emotional distress is an issue of first impression. A recent decision from our Supreme Court is instructive in its elucidation of the history and application of immunity during judicial proceedings. In Simms v. Seaman, 308 Conn. 523, 546, 69 A.3d 880 (2013), the court clarified that a party is shielded from suit stemming from “conduct while representing or advocating for a client during a judicial proceeding that was brought for a proper purpose.” Id. In determining the scope of such immunity, the court differentiated between claims that challenge the “underlying purpose of the litigation [from those that challenge] an attorney’s role as advocate . . . .’’Id. Although the plaintiffs in the present case claim that their negligent infliction of emotional distress claim stems from their abuse of process claim, the substance of their allegations are based on actions taken and communications made by the Howd defendants during their defense of the town of Westport during the federal action. Thus, following the delineation set forth in Simms, their claim challenges the Howd defendants in their capacity as advocates for the town of Westport. Simms warns against suits “which could expose attorneys to harassing and expensive litigation, would be likely to inhibit their freedom in making good faith evidentiary decisions and representations and, therefore, negatively affect their ability to act as zealous advocates for their clients.” Id., 551.

The plaintiffs’ allegations of various conspiracies with the Pattis defendants regarding the subpoenaing of witnesses, erroneous statements of fact to the federal court, and improper discussions with the Westport police department regarding subpoenaed witnesses are all, as the court correctly characterized, communications made within the context of a judicial proceeding, namely the federal action, rendering the Howd defendants absolutely immune from suit by the plaintiffs for any such communications. Further, “[t]he burden [is] upon the pleaders to make such averments that the material facts [alleged in a complaint] should appear with reasonable certainty .... Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . But essential allegations may not be supplied by conjecture or remote implication.” (Internal quotation marks omitted.) Daley v. Wesleyan University, 63 Conn. App. 119, 127, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001); see also Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). We conclude, therefore, after reviewing the multitude of arguments the plaintiffs advance, that the allegations supporting their claim of negligent infliction of emotional distress are based on communications protected by absolute immunity from suit. See Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 787 (“[a]t common law, communications uttered or published in the coruse of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy” [internal quotation marks omitted]). The court did not err in granting the Howd defendants’ motion to dismiss count fifteen of the fourth amended complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also named Norman A. Pattis and the Law Offices of Norman A. Pattis, LLC, as defendants in this case. The issues in this appeal solely pertain to the Howd defendants.

       It is difficult to identify the nature and extent of the plaintiffs’ claims as set forth in their briefs. We have addressed the claims to the extent that they are analyzed. See Paoletta v. Anchor Beef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238 (“[f]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs” [internal quotation marks omitted]), cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

       Williams and Pattis, LLC, a predecessor entity of the Pattis defendants, is not named in the present action.

       In their substitute complaint, the plaintiffs allege that: “When we filed a motion pro se to disqualify [the Pattis defendants] on May 15, 2006, and also filed grievances with the Federal Grievance Committee against their individual attorneys, Attorney Doyle and Defendants Radshaw and Gerarde submitted false affidavits dated May 5, and June 21, 2006, that at the time of Doyle’s hiring by Howd & Ludorf Attorney Gerarde had called John Williams of Williams and Pattis, LLC, and wrote him a letter stating that Attorney Doyle would never be involved in any matter at Howd & Ludorf that she was involved in or had knowledge of while at Williams and Pattis. Subsequently, Mr. Williams in a letter to the State Bar Grievance Committee dated September 29, 2007, denied having knowledge of our case or of any such letter or agreement with Mr. Gerarde.” Despite these allegations, plaintiffs fail to allege that Doyle did have knowledge of or work on the federal action at any time.

       Although the court overruled the plaintiffs’ objections to the Howd defendants’ request to revise the third amended complaint, which contained an amended count fifteen, the plaintiffs filed a fourth amended complaint with a differently amended count fifteen, to which the Howd defendants directed their motion to dismiss.

       “A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved .... It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose . . . rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Bruno v. Bruno, 132 Conn. App. 339, 350, 31 A.3d 860 (2011).

       Although the plaintiffs raise other issues with the procedural aspects of the Howd defendants’ motion to strike, we find their claims inadequately briefed, and we therefore decline to reach their merits.

       The plaintiffs’ claim of untimely filing as to the Howd defendants’ motion to strike is without merit. Pursuant to Practice Book § 10-61, the Howd defendants were entitled to file a pleading on the plaintiffs’ substitute complaint. This claim is essentially addressed in part IIA of this opinion.

       The plaintiffs claimed the same $400,000 damages in each of their tort claims against the Howd defendants. They do not allege from where they derived this calculation of damages, and they do not allege what portion of such damages is relevant to their abuse of process claim.

       The plaintiffs also argue that they were denied the right to amend their complaint pursuant to General Statutes §§ 52-128 and 52-130. Specifically, the plaintiffs claim that the court erred when it sustained the Howd defendants’ objection to the plaintiffs’ request for leave to amend the third amended complaint and when it sustained the Pattis defendants’ objection to the plaintiffs’ request to amend the fourth amended complaint. The Howd defendants argue that the plaintiffs have inadequately briefed this claim, as they have not provided the correct statutory provisions or a description of the court’s procedures giving rise to error. We agree with the Howd defendants and therefore decline to reach the merits of the plaintiffs’ argument on this claim.