author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. SUZANNE M. GORDON, CONSERVATRIX (ESTATE AND PERSON OF ESTHER RICHARDS)
    (AC 16154)
    Dupont, C. J., and Lavery and Landau, Js.

      Argued March 21
    officially released June 17, 1997

      Robert A. Nagy, assistant attorney general, with whom were Denise S. Mondell, assistant attorney general, and, on the brief, Richard Blumenlhal, attorney general, for the appellant (plaintiff).

      James P. Connolly, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, state of Connecticut, department of social services, appeals from the judgment of the trial court, reversing in part the approval by the Probate Court for the district of West Hartford of the periodic account filed by the defendant, Suzanne M. Gordon. On appeal, the plaintiff argues that the trial court improperly (1) remanded the case to the Probate Court, (2) concluded that a separate and distinct petition for additional fees for extraordinary services pursuant to General Statutes § 45a-594 (a) was not required, and (3) permitted the Probate Court judge to testify. The judgment of the trial court is affirmed in part and reversed in part.

The facts are not in dispute. The plaintiff petitioned the Probate Court to appoint a conservator for Esther Richards on the ground that she exhibited a high level of confusion and dementia. The Probate Court appointed the defendant to be the conservatrix of the estate and person of Richards on January 25, 1994. The defendant filed a fiduciary’s periodic accounting, pursuant to General Statutes § 45a-177 (a), in the Probate Court for the period of January 25, 1994, through January 24, 1995. The accounting reflected, inter alia, Richards’ income for the year and the defendant’s claimed fiduciary fee of $11,835, for her services as the conservatrix. The Probate Court scheduled a hearing to consider the accounting petition and sent notice of the hearing to the department of social services. No notice, however, was given to the commissioner of administrative services (commissioner) as required by § 45a-594 (a), and no separate and distinct petition seeking additional fees for the claimed extraordinary services was filed by the defendant. The Probate Court conducted a hearing on the claimed fiduciary fee and the overall accounting, and subsequently entered its order and decree approving the proposed periodic accounting.

The plaintiff appealed to the trial court, claiming that the Probate Court’s award of fees in excess of the § 45a-594 (a) fee limitation of 5 percent of the gross income to the estate was improper because no separate petition claiming additional fees for extraordinary services was filed by the conservatrix, and because the commissioner of administrative services was not given notice as required under the statute. The trial court, hearing the case de novo, concluded that a separate and distinct petition for additional fees for extraordinary services was not required. The trial court did conclude, however, that § 45a-594 (a) mandates that the Probate Court serve notice to the commissioner at least ten days before the hearing date. See footnote 2. The trial court further concluded that the notice requirement is mandatory, and the failure of the Probate Court to give such notice rises to the level of a jurisdictional defect. It sustained the appeal and remanded the case to the Probate Court for proper notice and a new hearing on the fiduciary fees. The plaintiff filed this appeal.

I

The plaintiff claims that the trial court improperly remanded the case to the Probate Court. The plaintiff argues that the trial court lacked jurisdiction to order a remand in these circumstances and that it was required to conduct proceedings de novo and enter a final, conclusive decision. The defendant argues that as a result of the lack of notice to the commissioner, the Probate Court lacked the jurisdiction to approve the periodic accounting, and, thus, the trial court also lacked jurisdiction to decide the appeal.

“An appeal from a Probate Court to the Superior Court is not an ordinary civil action. Slattery v. Woodin, 90 Conn. 48, 50-51, 96 A. 178 (1915); Silverstein’s Appeal from Probate, 13 Conn. App. 45, 52-53, 534 A.2d 1223 (1987). When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); Stevens’ Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969); Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504 (1922); Slattery v. Woodin, supra, 51; Wilson v. Warner, 84 Conn. 560, 564, 80 A. 718 (1911); Hewitt’s Appeal from Probate, 53 Conn. 24, 35, 1 A. 815 (1885); Davis’s Appeal from Probate, 39 Conn. 395, 400 (1872). In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court. Slattery v. Woodin, supra [51]; Tolles’s Appeal from Commissioners, 54 Conn. 521, 524, 9 A. 403 (1886); Silverstein’s Appeal from Probate, supra, 53.

“The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Satti v. Rago, supra, [186 Conn.] 364-65; Stevens’ Appeal, supra, [157 Conn.] 580-81; Hotchkiss’ Appeal, 89 Conn. 420, 432, 95 A. 26 (1915); Silverstein’s Appeal from Probate, supra, [13 Conn. App.] 54.” Kerin v. Stangle, 209 Conn. 260, 263-64, 550 A.2d 1069 (1988). Thereafter, upon “consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.” Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).

It is undisputed that the commissioner did not receive notice of the hearing as required by § 45a-594 (a). The trial court concluded, in its memorandum of decision, that the notice requirement is mandatory and the failure to give notice rises to the level of a jurisdictional defect. “It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. See Sears v. Terry, 26 Conn. 273, 284 [1857], Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute.” Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963). Thus, the trial court properly concluded that the Probate Court lacked jurisdiction to render its order and decree awarding fiduciary fees in excess of 5 percent of the annual gross income.

The issue is what is the consequence of this jurisdictional defect. The state argues, relying on Prince v. Sheffield, supra, 158 Conn. 286, that the trial court must render a final and conclusive order disposing of the matter before it, and, as a result, the trial court’s remand to the Probate Court was improper. In addition, the plaintiff argues that, absent notice to the commissioner, the defendant’s fiduciary fee is limited to the statutory maximum, i.e., 5 percent of the gross income of Richards’ estate during the preceding year. Conversely, the defendant argues that the trial court properly remanded the case to the Probate Court to give notice to the commissioner, to hold a hearing and to render a new order and decree. We agree with the defendant.

While the scope of the trial court’s jurisdiction over probate appeals has been expanded by Prince v. Sheffield, supra, 158 Conn. 286, and its progeny, it remains that some matters are properly remanded to the Probate Court for further proceedings. This includes instances where the Probate Court, due to its familiarity with the parties and the circumstances of the particular case, is vested with discretionary authority. See, e.g., General Statutes §§ 45a-175, 45a-177 and 45a-594; see also R. Folsom, Connecticut Estates Practice, Probate Litigation (1992) § 7:10, pp. 283-84.

In Satti v. Rago, supra, 186 Conn. 360, our Supreme Court entertained an appeal from a trial court order remanding the case to the Probate Court for purposes of a resale of the subject property where the fiduciary had failed to notify the plaintiff heir of a proposed sale. The Supreme Court reasoned that “[t]he power of the Probate Court to order the sale of such property is special and statutory and the authority must be strictly followed, otherwise the order of sale will be void.” Id., 365, citing Offredi v. Huhla, 135 Conn. 20, 23, 60 A.2d 779 (1948). The court concluded that the sale was invalid without proper notice to the plaintiff, a possible bidder, and affirmed the trial court’s remand of the case with direction to order another sale upon the giving of proper notice to all interested parties. In doing so, the Supreme Court approved of the trial court’s remand to the Probate Court “for a fresh start.”

Pursuant to § 45a-594 (a), the Probate Court is vested with the discretionary authority to determine the amount of a conservator’s compensation. Section 45a-594 (a) provides in relevant part that “[i]f extraordinaiy services are rendered by any conservator or guardian, the court of probate, upon petition and hearing, may authorize reasonable additional compensation. . . .” Further, the Probate Court, due to its familiarity with the parties and the specific facts of this case, can efficiently determine whether the defendant is entitled to additional compensation. Therefore, we conclude that the trial court properly remanded the case to the Probate Court so that the commissioner could be properly notified.

II

The plaintiff next argues that the trial court improperly concluded that a separate and distinct petition for additional fees for extraordinary services pursuant to § 45a-594 (a) was not required. We agree.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . . Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995). We look to the legislative history of a statute only if it is ambiguous. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). A statute does not become ambiguous because the parties argue its meaning differently. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 63, 578 A.2d 1054 (1990). The legislative intent is to be found, not in what the legislature intended to say, but in the meaning of what it did say. Lees v. Middlesex Ins. Co., 219 Conn. 644, 652, 594 A.2d 952 (1991). We must construe a statute without reference to whether we feel that it might be improved by adding to it or interpreting it differently. See Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn. App. 352, 355, 561 A.2d 981 (1989). It is our duty to apply the law, not to make it. Murray v. Lopes, 205 Conn. 27, 34, 529 A.2d 1302 (1987).” (Internal quotation marks omitted.) Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829, 832-33, 673 A.2d 1172, appeal dismissed, 239 Conn. 791, 686 A.2d 993 (1997) (certification improvidently granted).

The trial court concluded in its memorandum of decision that § 45a-594 (a) does not require a guardian or conservatrix to file a separate and distinct petition for additional fees when extraordinary services are claimed. The trial court found that, although the defendant’s filing of a periodic accounting pursuant to § 45a-177 (a) failed to describe the extraordinary services provided and the basis for the additional compensation requested, it satisfied the requirements of the statute.

Section 45a-594 (a) provides that compensation for guardians and conservators shall be based on the services rendered and “shall not exceed five per cent of the gross income to the estate during the period covered by any account. . . .” That statute further provides that if a guardian or conservator rendered extraordinary services, “the court of probate, upon petition and hearing, may authorize reasonable additional compensation. ...” (Emphasis added.) The language of § 45a-594 (a) is clear and unambiguous. We, therefore, assume that it expresses the intention of the legislature, and we need inquire no further. We conclude that § 45a-594 (a) requires that a guardian or conservator who claims a fee that exceeds the statutory maximum must file a separate petition setting forth the basis for the additional compensation. As a result, we reverse the trial court’s finding that the accounting satisfied § 45a-594 (a).

The judgment is reversed only as to its determination that a separate petition setting forth the basis for the additional compensation as mandated by § 45a-594 (a) was not required, and the case is remanded to the trial court with direction to render judgment remanding the case to the Probate Court for further proceedings; upon remand, the separate petition mandated by § 45a-594 (a) will be required before a new hearing on the fiduciary fee and accounting can be held.

In this opinion the other judges concurred.

         The accounting revealed that the estate had assets on hand for distribution of $85,287.43, and Richards’ income for the year totaled $45,464.34.

       General Statutes § 45a-594 (a) provides: “Compensation payable to the conservator or guardian of any person who is supported wholly or in part by the state in any humane institution, or who is receiving benefits under any of the state’s programs of public assistance, shall be based upon services rendered and shall not exceed five per cent of the gross income to the estate during the period covered by any account. The conservator or guardian shall be entitled to compensation of not less than fifty dollars for any accounting period continuing for at least a year. If extraordinary services are rendered by any conservator or guardian, the court of probate, upon petition and hearing, may authorize reasonable additional compensation. A copy of the petition and notice of hearing shall be lodged in the office of the Commissioner of Administrative Services in Hartford at least ten days before the hearing. No commission or compensation shall be allowed on any moneys or other assets received from a prior guardian or conservator nor upon any amount received from liquidation of loans or other investments.”

       General Statutes § 45a-186 (a) does provide an exception where a trial de novo is not required. Section 45a-186 provides in relevant part: “Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.” In the present case, no record was made before the Probate Court. The absence of a record required a trial de novo.

       Richards’ income for the year totaled $45,464.34, 5 percent of which is $2273.22.

       The defendant did not address this argument in her brief.

       The plaintiff also argues that the trial court improperly permitted the Probate Court judge to testify at the de novo trial in the Superior Court. Because we affirm the trial court’s judgment remanding the case to the Probate Court for further proceedings, we do not reach this issue.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    MARVIN CHASE v. STATE OF CONNECTICUT, DEPARTMENT OF MOTOR VEHICLES
    (AC 16114)
    Foti, Lavery and Spear, Js.

      Submitted on briefs March 6
    released June 24, 1997

      Brian W. Prucker and Robert Fitzgerald, filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Matthew B. Beizer and William J. McCullough, assistant attorneys general, filed a brief for the appellee (defendant).
   Opinion

SPEAR, J.

The issue in this workers’ compensation case is whether the plaintiffs notice of injury was sufficient to trigger the statutory twenty day period within which an employer may file a notice contesting liability for the claim. The commissioner ruled that the notice, sent to the “Department of Motor Vehicles” rather than to the “State of Connecticut, Department of Motor Vehicles” was insufficiently addressed to impose an obligation on the defendant to file a notice contesting liability within the twenty day period. The commissioner, therefore, denied the plaintiffs motion to preclude the defendant from contesting liability and, thereafter, dismissed the claim. The compensation review board (review board) affirmed the commissioner’s decision denying the motion to preclude, and this appeal followed.

The plaintiff asserts that the notice of injury was sufficiently addressed so that his employer, the state of Connecticut, had an opportunity to make a timely investigation of the claim. Therefore, the commissioner improperly denied the motion to preclude. The defendant asserts that the plaintiffs contention is contrary to the applicable precedent of the review board and is supported only by nonbinding dicta from a Supreme Court case. As alternative grounds for affirmance, the defendant contends that the motion to preclude was properly denied because (1) the claim here is not bona fide, (2) the alleged date or dates of injury were too vague and ambiguous to allow the timely investigation contemplated by the twenty day rule of General Statutes (Rev. to 1989) § 31-297 (b), and (3) the plaintiff did not provide evidence that established the sufficiency of his notice. We reverse the decision of the review board because we conclude that the notice of claim was sufficient to trigger the twenty day period.

The following facts are relevant to our resolution of this appeal. On July 19,1989, the plaintiff was employed by the state of Connecticut, department of motor vehicles (defendant). On July 26, 1989, the plaintiff mailed a notice of claim to the defendant. The notice was addressed to the “Department of Motor Vehicles” at 60 State Street in Wethersfield. It stated that the plaintiff “while in the employ of Department of Motor Vehicles at Norwich, CT, on the 19th day of July, 1989, or sometime prior thereto, sustained injuries arising out of and in the course of his . . . employment as follows . . . Repetitive Trauma/Repetitive Act and/or Trauma to Back, and Repetitive Trauma/Repetitive Act and/or Trauma to Left Knee.” The defendant received the notice of claim on July 28, 1989.

On September 1,1989, thirty-five days after it received the notice of claim, the defendant sent a notice contesting liability to the plaintiff and to the workers’ compensation district office. On September 26, 1990, the plaintiff filed a motion to preclude the defendant from contesting the compensability of his alleged injury because the defendant failed to comply with the twenty day time limit set forth in § 31-297 (b). The workers’ compensation commissioner denied his motion on September 13, 1991, because the notice failed to identify the defendant as “State of Connecticut, Department of Motor Vehicles.”

I

The purpose of the preclusion statute is to “ensure (1) that employers would bear’ the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.” Menzies v. Fisher, 165 Conn. 338, 343, 334 A.2d 452 (1973).

Before an employer’s obligation to respond is triggered, a plaintiff must first file a notice of claim. See General Statutes (Rev. to 1989) § 31-294. Until our Supreme Court decided Pereira v. State, 228 Conn. 535, 637 A.2d 392 (1995), the review board, in judging the sufficiency of a notice of claim, consistently adhered to a rule of strict compliance with § 31-294. See, e.g., Fuller v. Central Paving Co., 5 Conn. Workers’ Comp. Rev. Op. 92 (1988). In Pereira, however, our Supreme Court addressed, in dicta, the issue of what constitutes a sufficient notice of claim “to clarify a misconception on behalf of the review [board] regarding the standard by which the sufficiency of a notice of claim to trigger an employer’s obligation to respond under § 31-297 (b) should be judged. The rule of strict compliance adopted by the review [board] is not supported by either the plain language or the legislative history of § 31-297 (b). To the contrary, § 31-297 (b) is remedial legislation that should be liberally construed to accomplish its humanitarian purpose. . . . [I]t was enacted to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and to avoid unnecessary delay in the adjudication of workers’ claims. As a result, if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer.” (Citation omitted; emphasis added.) Pereira v. State, supra, 542-43 n.8.

After the Pereira decision, the review board retreated from its rule of strict compliance and adopted this relaxed standard. See Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 111 (1995). Although the relevant language in Pereira is dicta, we are disinclined to resolve the same issue on virtually identical facts contrary to such clear and persuasive guidance from our Supreme Court. We fail to discern how the addition of the words “State of Connecticut” would have added to the effectiveness of the notice here. The defendant’s notice contesting liability states that it knew of the injury on July 19, 1989, and it is undisputed that the department of motor vehicles received the plaintiffs notice on July 28, 1989. Indeed, in the notice contesting liability the defendant lists the name of the employer as “Motor Vehicles,” an even more cryptic description than the plaintiffs. The address of the employer is listed on the disclaimer as 60 State Street, the exact address that the plaintiff used.

Any lack of opportunity to investigate the claim apparently resulted from internal misdirection of the notice. Contrary to the defendant’s assertion, we do not read General Statutes (Rev. to 1989) § 31-294 as requiring a plaintiff to send notice to a legal agent for service or to some other person who “could reasonably be expected to handle this sort of notice.” Because the notice went to the same place to which it would have gone if “State of Connecticut” had been added to the address, the defendant had an opportunity to make a timely investigation of the claim. The notice contesting liability came too late and the defendant should have been precluded from contesting the compensability of the claim.

II

The defendant asserts as alternative grounds for affirmance that, even if we adopt the Pereira standard, the notice of claim was insufficient because (1) it failed to state a precise date on which the alleged injuries occurred, (2) the claim is not bona fide and (3) the plaintiff did not prove that his notice satisfied the Pereira standard. We find no merit in these contentions.

A

In his notice, the plaintiff alleged that he suffered a repetitive injury and trauma to his knee and back on or before July 19, 1989. The defendant was thus on notice that on or before that date the plaintiff sustained one or both types of injuries.

The notice of claim was sufficient to allow the defendant to investigate the claim of repetitive injury in a timely manner. A repetitive trauma, by definition, necessarily occurs over a period of time. See Quinn v. Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334 (1994). The review board has consistently held that where a notice of claim alleges a repetitive trauma, the lack of a precise date of injury is not fatal to a notice of claim. See id., 336.

The notice was also sufficient to enable the defendant to investigate the plaintiffs allegation that he incurred a traumatic injury on or before July 19, 1989. Unlike those cases in which a plaintiff alleges an inaccurate date of accidental injury; see, e.g., Simmons v. Bonhotel, 13 Conn. Workers’ Comp. Rev. Op. 234 (1995); Pickard v. Manchester Gardens Condominium Assn., Inc., 10 Conn. Workers’ Comp. Rev. Op. 216 (1992); in this case, the defendant does not claim that the date in the notice is inaccurate. Rather, it asserts that the notice of claim was insufficient because it was “impossible ... to focus its investigation on any particular time.” We are unpersuaded by the defendant’s assertion. If the results of the defendant’s investigation did not reveal an accidental injury on the precise date given in the notice, or in the several days prior thereto, the defendant reasonably could have disclaimed liability for the traumatic injury.

We conclude that the date in the notice of claim was sufficient to enable the defendant to make a timely investigation in order to determine whether to contest liability.

B

The defendant next asserts that the denial of the plaintiffs motion to preclude was proper because he is not a bona fide plaintiff. The merits of his case have been adjudicated and his case was dismissed. As such, the defendant asserts, “he should not be entitled to utilize the preclusion statute to validate his meritless claim.” We disagree.

The defendant cites no cases, and our research reveals none, where a subsequent finding on the merits was used to justify a denial of a motion to preclude. In making the determination of whether a motion to preclude should have been granted, we inquire into the sufficiency of the employee’s notice of claim and the timeliness and sufficiency of the employer’s notice contesting liability.

The defendant imports a mistaken notion into the language of Menzies v. Fisher, supra, 165 Conn. 343, in which our Supreme Court explained that one of the purposes of § 31-297 (b) was to “discourage arbitrary refusal of bona fide claims . . . .” The requirement in the statute that a contesting employer state “the specific grounds on which the right to compensation is contested” serves that purpose. General Statutes (Rev. to 1989) § 31-297 (b). The statute in no way authorizes a retrospective review of the merits of the claim in order to address the question of preclusion. If we were to adopt the defendant’s contention, the twenty day rale of § 31-297 (b) would be meaningless. A notice contesting liability would not be precluded, even if late, because the defendant would have a chance to contest the claim. If the defendant were to prevail, the claim, in hindsight, would not be considered bona fide. If the plaintiff were to prevail, the defendant would have had the opportunity fully to contest the claim, in contravention of the clear intent of the preclusion statute.

C

Finally, the defendant asserts that the plaintiff failed to provide sufficient evidence to support his claim that his notice of claim satisfied the Pereira standard. This claim is without merit.

The determination of whether the notice of claim in this case “is sufficient to allow the employer to make a timely investigation of the claim” is a question of law, not of fact. Pereira v. State, supra, 228 Conn. 542-43 n.8. In making this determination, we look within the four comers of the notice of claim. The plaintiff was not required to offer any evidence in support of his assertion that the notice of claim was sufficient to trigger his employer’s obligation to respond pursuant to § 31-297 (b).

The decision of the review board is reversed and the case is remanded with direction to sustain the plaintiffs appeal and to remand the matter to the commissioner with direction to grant the plaintiffs motion to preclude.

In this opinion the other judges concurred.

       At the time of the defendant’s injury, General Statutes (Rev. to 1989) § 31-297 (b) provided in relevant part: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury . . . and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to

        contest the employee’s right to receive compensation on any grounds . . . (Emphasis added.)

       After a hearing on the merits, the trial commissioner dismissed the claim after concluding that the plaintiff had failed to establish his alleged injuries with sufficient, credible evidence. On appeal, the plaintiff does not challenge the dismissal of his claim; rather, he challenges only the denial of his motion to preclude.

       Although the defendant did not file a preliminary statement of issues stating these claims as alternative grounds of affirmance; see Practice Book § 4013; we may still consider them as such. The plaintiff had the opportunity to address these claims in a reply brief, but chose not to do so. See In re Jennifer, 29 Conn. App. 689, 692, 617 A.2d 921 (1992).

       The plaintiff appealed that denial to the review board. After the review board affirmed the commissioner's decision, the plaintiff appealed to this court. On May 11, 1993, this court dismissed the plaintiffs appeal for lack of a final judgment.
      After this court’s dismissal, the merits of the plaintiffs claim was heard by the workers’ compensation commission. The commission dismissed his claim. The plaintiff appealed that decision to the review board, which affirmed the dismissal. This appeal followed.

       The first time the review board addressed the plaintiffs preclusion claim, it applied this rule of strict compliance.

       In Pereira, our Supreme Court indicated that where a plaintiff addressed a notice of claim to “Dept, of Children & Youth Services,” instead of using its proper name, “State of Connecticut, Department of Children and Youth Services,” the notice was sufficient to trigger the employer’s obligation to respond pursuant to § 31-297 (b). Similarly, in this case, the plaintiffs failure to address the notice to “State of Connecticut, Department of Motor Vehicles” in no way hindered the defendant’s ability to investigate the claim or caused it prejudice.

       At the time of the plaintiffs injury, General Statutes (Rev. to 1989) § 31-294 provided in relevant part: “Any employee who has sustained an ipjury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure .... No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of tire occupational disease, as the case may be ... . Such notice may be given to the employer or any commissioner and shall state, in simple Ianguage, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of tire occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. . . .”

       After he sent his notice of claim to his employer, the plaintiff abandoned his claim for repetitive trauma to his knee and proceeded only with the claim regarding his back.

       In its brief, the defendant points out that the trial commissioner found that the plaintiff reported an inaccurate date of injury to his doctor. It does not claim, however, that the injury did not occur on the specified date.

       General Statutes (Rev. to 1989) § 31-300 provides in relevant part: “In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. . . .”


author: O’CONNELL, J.

text:
    IN RE ELISABETH H. ET AL.

    (AC 15417)
    O’Connell, Foti and Hennessy, Js.

      Argued March 17
    officially released June 24, 1997

      William A. Snider, for the appellants (respondents).

      Patricia E. Naktenis, assistant attorney general, with whom, on the brief, were Richard Blumentha,l, attorney general, and Susan T. Pearlman, Linda Pearce Prestley and Gregory D’Auria, assistant attorneys general, and Charlotte Schmid, legal intern, for the appellee (petitioner).

      Sharon Wicks Dornfeld, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

O’CONNELL, J.

This is the respondent parents’ appeal from the judgment adjudicating their two minor daughters neglected, uncared for and abused and committing them to the custody of the department of children and families.

While the appeal was pending in this court, one daughter reached the age of majority and the second reached majority six days after the appellate hearing. At the request of the court, the parties addressed the question of whether the appeal is moot.

“An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Parrott v. Liquor Control Commission, 44 Conn. App. 745, 746, 692 A.2d 845 (1997).

Notwithstanding that the minors in this case have reached their majority and no order of this court can affect them, the respondents argue that the appeal is not moot because of collateral consequences.

The first claimed collateral consequence is that unless the trial court’s judgment is reversed, the respondents will not be eligible to become foster parents for five years. There is no foundation in the record to support this argument. There is no evidence that the respondents had applied to become foster parents and had been rejected nor is there any evidence that they had any intention of applying to become foster parents in the future. Additionally, the bar to foster parenthood arises from the order for temporary custody that had been entered and upheld by the trial court earlier in these proceedings. Regs., Conn. State Agencies § 17a-145-101 (o). Reversal of the trial court judgment sub judice in this appeal would not affect the order of temporary custody or any consequences therefrom.

The second claimed collateral consequence is that reversal would remove the respondents’ obligation to reimburse the state for support of one or both of their children. We do not agree. The respondents are responsible for the support of their children regardless of whether they have been committed to the custody of the department of children and families. General Statutes § 46b-130 provides that “[t]he parents of a minor child for whom care or support of any kind has been provided under the provisions of this chapter, shall be liable to reimburse the state for such care or support . . . .” The commissioner of children and families, pursuant to General Statutes § 17a-90 (b), is authorized to provide “protective services . . . for the care and protection of children other than those committed by the Superior Court whom he finds in need of such care and protection from the state . . . and [to collect] such sums as are determined to be owing and due from the parent of the noncommitted child . . . .” Additionally, the obligation to reimburse the state for support arose from the order of temporary custody, and reversal of the judgment before us on this appeal would not affect that order. Accordingly, reimbursement of support is not a collateral consequence of the trial court’s judgment.

Third, the respondents argue that the damage to their reputation resulting from the trial court judgment is sufficient to keep this appeal from becoming moot. They make this claim without reference to any legal authority. Moreover, they fail to understand the nature of the trial court’s judgment. It is not directed against them as parents, but rather is a finding that the children are neglected, homeless or abused. Furthermore, all juvenile proceedings are confidential and sealed. General Statutes § 46b-124 (a).

Finally, they argue that the appeal is not moot because the issues are capable of repetition, but may continue to evade review. See Grace Community Church v. Bethel, 30 Conn. App. 765, 769, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375, cert. denied, 510 U.S. 944, 114 S. Ct. 383, 126 L. Ed. 2d 332 (1993).

Although in the present case the minors reached majority before the appeal process was completed, it is unlikely that in every other case in which the same issues arise that the minors will reach majority before the trial court’s action can be reviewed. Loisel v. Rowe, 233 Conn. 370, 384, 660 A.2d 323 (1995). Accordingly, these issues may be reviewed in a future case that presents a proper case or controversy.

The respondents have not persuaded us that this appeal is not moot because of collateral consequences. “Mootness implicates the subject matter jurisdiction of this court. We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal.” Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988). This appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       Section 17a-145-101 (o) of the Regulations of Connecticut State Agencies provides in relevant part: “No license [to be a foster parent] shall be granted if, within five years of date of application for license, the provider . . . has had a child removed from his care or custody for reason of child abuse or neglect.”


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. DONALD WILLIAM MADORE
    (AC 16335)
    Landau, Freedman and Spallone, Js.

      Argued February 21
    officially released June 24, 1997

      Kenneth A. Leary, for the appellant (defendant).

      JohnP. Gravalec-Pannone, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A).

The defendant claims the trial court improperly (1) denied his motion in limine to exclude the testimony of a witness pertaining to prior uncharged misconduct, (2) admitted that testimony at trial, (3) denied his motion for a judgment of acquittal based on insufficiency of the evidence as to one of the counts of risk of injury to a child, and (4) permitted the victim, K, ■without objection, to review her written pretrial statement as part of her testimony during the presentation of the state’s case.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. The victim, K, at the time of the incidents was fourteen years of age. In December of 1994, K began to babysit for the child of her stepfather’s sister, M, with whom the defendant was living. When babysitting, K stayed overnight while the defendant and M went to work. When the defendant and M returned, K would be asleep on a couch in the living room.

On or about January 25 or 26, 1995, one or two days after her fourteenth birthday, K awakened to find that the defendant had placed her legs on his lap and was rubbing them. The defendant then moved his hands up toward K’s stomach area and placed his hand beneath the elastic waistband of K’s underpants. K did not say anything to M at the time, although M was home. K related this incident to her friend, L.

Several days later, the defendant again inappropriately touched and engaged in improper behavior toward K. The defendant rubbed K’s back and touched K’s legs, buttocks and vaginal area. He then rolled K over and started to rub K’s legs and stomach again and asked K if she knew what an orgasm was. K had never heard the term, and was told by the defendant that “it was like being in heaven.” The defendant asked K if she wanted one and she replied no. The defendant then pulled K on top of him and moved his lower body up and down against her lower body.

K did not tell M about this second incident because she thought the defendant was sorry for what he had done and she did not want to harm the relationship between the defendant and M. K did tell her friend, L, at school the next day.

K continued to babysit for M until March, 1995. She felt that the inappropriate touching by the defendant would not happen again and that she had control of the situation. The defendant continued to touch K inappropriately on occasion, however, by rubbing her near her breasts. K subsequently told her mother, M, another friend, her guidance counselor and the police what the defendant had done to her.

I

The defendant argues that, with regard to one of the counts against him involving risk of injury to a child in violation of § 53-21, the evidence was insufficient to support a conviction.

“We employ a two part analysis in reviewing the sufficiency of the evidence to sustain a criminal conviction. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Roy, 38 Conn. App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996); State v. Coleman, 35 Conn. App. 279, 293-94, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994).

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citation omitted; internal quotation marks omitted.) State v. Alford, 37 Conn. App. 180, 184, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995).

The jury was offered evidence that the defendant sat next to K while she was sleeping, placed her legs on his, began rubbing her legs, and placed his hands on K’s buttocks. The jury was entitled to believe the testimony of K regarding this behavior. It is “the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of witnesses.” (Internal quotation marks omitted.) State v. Roy, supra, 38 Conn. App. 489. “If evidence . . . should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” (Citation omitted; internal quotation marks omitted.) Id., 488.

Our review of the evidence in the light most favorable to sustaining the verdict satisfies us that, from the facts established and the reasonable inferences to be drawn therefrom, the jury reasonably could have concluded as it did.

II

Two of the defendant’s claims involve testimony regarding uncharged prior misconduct by the defendant toward a third person, Jane Doe. The defendant claims the trial court improperly (1) denied his motion in limine to exclude the testimony of a witness pertaining to prior uncharged misconduct, and (2) admitted that testimony at trial. These claims are subject to the same analysis and necessitate the same conclusion. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion in limine and admitting into evidence Doe’s testimony.

The following additional facts are necessary to resolve these claims. During the course of the trial, the court held a hearing outside the presence of the jury to determine whether the court should permit the state to introduce evidence of prior sexual misconduct committed by the defendant. At this hearing, the trial court heai'd the state’s offer of proof regarding Doe’s evidence indicating a pattern of conduct. Doe testified that she knew the defendant because he had lived with her and her mother from 1991 to 1994, first in Pennsylvania and later in Groton, Connecticut. She testified that, when they were living in Pennsylvania and she was thirteen and fourteen, the defendant touched her inappropriately. This inappropriate touching involved the defendant giving her back massages twice a week for about eight months. She testified that the defendant, in giving her back massages, would sometimes rub her buttocks and would sometimes move his hand inside her clothes. She testified that these incidents took place in the living room of their home while she was dressed. Because she did not want to hurt her mother, she did not tell her about these incidents. She testified further that, when they were living in Groton, the defendant told her that he sometimes watched her while she showered. She also testified that she did not know K. At the conclusion of the hearing and after oral arguments of counsel, the court found that the probative value of Doe’s testimony outweighed its prejudicial impact. The trial court instructed the jury on the relevancy of Doe’s testimony after she testified and again at the end of the trial.

“It is well settled that evidence of prior misconduct is admissible for the limited puiposes of showing intent, an element in the crime, identity, malice, motive or a system of criminal design.” State v. Taylor, 239 Conn. 481, 501, 687 A.2d 489 (1996); State v. Figueroa, 235 Conn. 145, 161-62, 665 A.2d 63 (1995); State v. Kulmac, 230 Conn. 43, 60-61, 664 A.2d 887 (1994); State v. Wild, 43 Conn. App. 458, 463, 684 A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). The test is two-pronged. “First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Internal quotation marks omitted.) State v. Kulmac, supra, 61; State v. Figueroa, supra, 162. “The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” State v. Figueroa, supra, 162; State v. Henry, 41 Conn. App. 169, 177, 674 A.2d 862 (1996); State v. Larkin, 38 Conn. App. 125, 132, 659 A.2d 1211, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). “We note that [bjecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Zoravali, 34 Conn. App. 428, 436, 641 A.2d 796, cert. denied, 230 Conn. 960, 644 A.2d 921 (1994); State v. Figueroa, supra, 162.

“The first prong of the test requires the trial court to determine if an exception applies to the evidence sought to be admitted.” State v. Kulmac, supra, 230 Conn. 61. As did the trial court in Kulmac, in the present case the trial court admitted the evidence that the defendant had inappropriately touched another young girl “because of its tendency to prove that the defendant possessed a common scheme to abuse young girls sexually. When evidence of other offenses is offered to show a common plan or design the marks which the uncharged and the charged offenses have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other.” (Internal quotation marks omitted.) Id. “It is apparent that the indicated inference does not arise, however, from the mere fact that the charged and uncharged offenses share certain marks of similarity, for it may be that the marks in question are of such common occurrence that they are shared not only by the charged crime and [the] defendant’s prior offenses, but also by numerous other crimes committed by persons other than the defendant. On the other hand, the inference need not depend upon one or more unique or nearly unique features common to the charged and uncharged offenses, for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together.” (Internal quotation marks omitted.) State v. Esposito, 192 Conn. 166, 172, 471 A.2d 949 (1984); State v. Jones, 205 Conn. 638, 661, 534 A.2d 1199 (1987). “In order to assess the defendant’s claim, we must examine the other crimes evidence and compare it to the charged offense.” State v. Jones, supra, 661; State v. Morowitz, 200 Conn. 440, 443, 512 A.2d 175 (1986).

Evidence of prior sex offenses committed against persons other than the prosecuting witness is admissible to show a common design or plan where the prior behavior (1) is not too remote in time, (2) is similar to the offense charged, and (3) is committed upon a person in some way similar to the prosecuting witness. State v. Kulmac, supra, 230 Conn. 61-62; State v. Esposito, supra, 192 Conn. 169-70. The courts of this state “are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than other crimes.” State v. Kulmac, supra, 62; see State v. Hauck, 172 Conn. 140, 145, 374 A.2d 150 (1976).

Temporal remoteness of a prior incident is rarely, standing alone, determinative of the admissibility of such evidence. Rather, it is one factor to be considered by the trial court. State v. Kulmac, supra, 230 Conn. 62 (only two years not too remote). We conclude that the trial court did not abuse its discretion in determining that evidence of behavior that occurred two to three years prior was sufficiently recent to have probative value.

The defendant also argues that the evidence of the prior misconduct was not sufficiently similar to the charged offenses. The alleged abuse of Doe, however, was similar to the charged offenses involving K in a number of respects. They were young girls between thirteen and fourteen years old. See State v. Wild, supra, 43 Conn. App. 464. In both cases, the defendant had a close relationship with a member of the victim’s family. See State v. Kulmac, supra, 230 Conn. 63; State v. Wild, supra, 459. In both cases, the defendant took advantage of his live-in relationship with that member of the victim’s family in several ways and benefited from the decisions of both victims not to reveal the incidents to preserve the relationships between the defendant and their respective relatives. Furthermore, Doe’s testimony that the defendant’s molestation of her began with back rubs resembled the testimony that K provided about her molestation. Doe’s and K’s back rubs began in the living room while they were clothed, and, in both incidents, the defendant placed his hands on the victim’s buttocks.

The trial court did more than simply determine that the evidence was admissible under an approved exception to the general rale. After the stated purpose of the evidence had been disclosed, the court heard testimony and oral arguments relating to the prior behavior before permitting the evidence to go to the jury. The trial court questioned the parties about the similarities between the defendant’s behavior toward Doe and K The court was presented with “sufficient mark[s] of similarity to justify the conclusion that it is at least a reasonable facsimile of the prior incident[s].” In re Jason S., 9 Conn. App. 98, 109, 516 A.2d 1352 (1986). We conclude that the trial court did not abuse its discretion when it found that the misconduct described by Doe was sufficiently similar to the conduct charged in the present case to be probative of a common scheme or design.

We next analyze whether the probative value of the evidence outweighed its prejudicial impact. See State v. Kulmac, supra, 230 Conn. 63; see also State v. Figueroa, supra, 235 Conn. 166-67. The considerable similarities between the defendant’s behavior toward K and the prior uncharged misconduct rendered the evidence highly probative. See State v. Figueroa, supra, 167. The trial court, before performing the required balancing test, heard an offer of proof and arguments of counsel. Aware of the potential for prejudicial impact, the trial court instructed the jury on the limited use of the evidence in order to minimize the prejudicial impact. See id., 166-67; State v. Wild, supra, 43 Conn. App. 464; State v. Larkin, supra, 38 Conn. App. 133; State v. Zoravali, supra, 34 Conn. App. 436; see State v. Brown, 199 Conn. 47, 57-58, 505 A.2d 1225 (1986); State v. Reddick, 33 Conn. App. 311, 328, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). The trial court, in the exercise of its discretion, after a full hearing, determined that the probative value of the evidence, indicating a system of criminal activity, outweighed its prejudicial tendency.

Given “the inherently imprecise nature of the balancing process and the limiting instructions given to the jury”; State v. Figueroa, supra, 235 Conn. 167-68; we conclude that the trial court did not abuse its discretion by denying the defendant’s motion in limine and admitting the evidence of prior misconduct.

Ill

The defendant also claims that the trial court improperly allowed the victim, K, to review her written pretrial statement as part of her testimony during the presentation of the state’s case and that this rose to the level of a due process violation. Since this evidentiary claim was not raised at trial, the defendant has requested a review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “[Rjobing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review.” (Citations omitted; internal quotation marks omitted.) State v. Teel, 42 Conn. App. 500, 504-505 n.5, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996); see also State v. Askew, 44 Conn. App. 280, 292, 688 A.2d 1346 (1997). We conclude that this unpreserved claim does not rise to the level of a constitutional violation and thus is not entitled to review.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of sexual assault in the second degree, General Statutes § 53a-71 (a) (1), and of one of three counts of risk of injury to a child, General Statutes § 53-21.

       General Statutes § 53-21 provides: “Injury or risk of injury to, orimpairing the morals of, children. Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child axe likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

       General Statutes § 53a-73a provides in relevant part: “Sexual assault in the fourth degree: Class A misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       This incident forms the basis for one of the alleged violations of General Statutes § 53-21, risk of ii\juiy to a child.

       This incident lasted ten to twenty-five minutes and formed the basis for the violation of General Statutes § 53a-73a (a) (1) (A), sexual assault in the fourth degree, and a violation of General Statutes § 53-21, risk of injury to a child.

        The court instructed the jury as follows: “Ladies and gentlemen, I want to caution you about the evidence you have just heard from this witness, [Doe], I permitted you to hear that evidence and for a limited purpose. That evidence is not to be used by you as evidence that the defendant had a propensity to commit the crimes with which he is charged in this case, or since he did this thing, if he did them, that [Doe] claims, that he must have committed the crimes alleged in this case. Now, remember the information charges this defendant with acts supposedly committed on [K]. He is not charged in this case with having done anything to [Doe]. I permitted you to hear this evidence about what [Doe] claims because of the claimed similarities between what [Doe] testified about and what [K] testified about. This is an issue. The issue of the similarities is an issue for you to determine and if you determine that the similarities are strong enough to be like a signature or a fingerprint, you know, you may use that in determining whether or not you believe that [K’s] account of what happened is true. On the other hand, if you, the jury, determine that the similarities are not strong enough, then you should completely disregard [Doe’s] testimony, and it should have no influence on your consideration of this case. I will talk to you further about the limited use, if any, of [Doe’s] testimony when I give you my final instructions.”

       The trial court’s final jury instruction included the following: “Now, in this case, you heard testimony from a witness, [Doe], wherein [Doe] testified about certain conduct which had occurred, according to [Doe], between her and the defendant. Now, that evidence from [Doe] cannot be used by you to show that the defendant had a propensity to commit a crime or since he had done that to [Doe], he must have done what is alleged here. That testimony from [Doe] may be used by you, but only for a limited purpose or no purpose. That evidence was admitted—or offered by the state, the state claiming that there are similarities between that conduct with [Doe] and the conduct on trial here with [K], The state claims that there were sufficient similarities in the conduct on [K] and the conduct on [Doe] that indicate that this was unique or a technique or a way, like a signature, like a fingerprint, of the way this defendant did these things. It’s up to you to determine whether or not you believe either testimony of [K] or [Doe], but it’s up to you to determine whether or not there is sufficient similarity in what supposedly was done with each of these people, to draw conclusions as to whether or not he—that helps you determine whether or not he did these things to [K], and it’s solely up to you. It’s entirely up to you. If you find there isn’t sufficient similarity here, then forget it, [Doe’s] testimony. But if you think there is sufficient similarity, and believe it, then you may use it to what extent you determine whether or not it’s something that helps you determine whether or not these things were done to [K], It’s up to you and you alone to determine whether or not there are sufficient similarities that it becomes of some assistance to you in determining whether or not these tilings were done as alleged on [K].”

       In addition to the previously mentioned similarities, we note the proba1 ive value of the defendant’s uncharged prior misconduct for another reason. The defendant, in his brief to this court, claimed that his behavior toward Doe may have been “innocent backrubs and shower viewing.” He also asks, rhetorically, regarding his actions toward K, whether there is evidencie “that he was doing anything more than waking her for school?” In light of the defendant’s claims, we note that common plan evidence may negate “a claim that specific conduct resulted from accident or inadvertence . . . .” State v. Esposito, supra, 192 Conn. 171.

       Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.


text:
    ROBERT DELBUONO, TRUSTEE, ET AL. v. BROWN BOAT WORKS, INC.
    (AC 15774)
    Heiman, Spear and Glass, Js.

      Argued October 29, 1996
    officially released June 24, 1997

      William F. Gallagher, with whom were Robert K. Marzik and, on the brief, Cynthia C. Bolt, for the appellant (defendant).

      Thomas P. Weldy, for the appellees (plaintiffs).
   Opinion

SPEAR, J.

This declaratory judgment action was brought to determine the littoral rights of the plaintiffs and the defendant, whose adjoining properties border the Housatonic River in Stratford. Central to the dispute is a row of piles driven by the defendant in the early 1960s that intrude into the water in front of the plaintiffs’ property. On appeal, the defendant claims that in determining the parties’ littoral boundary line the trial court improperly (1) failed to find an express agreement between the parties setting the littoral boundary along a line defined by the row of piles, (2) failed to find that the defendant’s longtime use and development of the disputed area of water established the littoral boundary line pursuant to the doctrine of equitable acquiescence, and (3) failed to select the proper headlands and terminus of the parties’ upland boundary line in employing the cove method to determine the littoral boundary line. We affirm the judgment of the trial court.

Before turning to the facts, we restate two established tenets concerning littoral rights and set out how the cove method is applied to resolve littoral boundary line disputes. First, the owner of land abutting the water owns to the mean high watermark and the public, i.e., the state, owns the property between the high and low watermarks on navigable water where the tide ebbs and flows. See Rochester v. Barney, 117 Conn. 462, 468-69, 169 A. 45 (1933). Second, “owners of adjoining upland have the exclusive, yet qualified, right and privilege to dig channels and wharf out from the owner’s land in a manner that does not interfere with free navigation.” Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 769, 646 A.2d 790 (1994). The plaintiffs claim that the row of piles and the defendant’s docks encroach on their littoral rights and interfere with their right and ability to extend wharfs from their property.

Where there is a dispute between adjoining landowners over their littoral rights and the relevant shoreline is concave, our courts employ the cove method to resolve the dispute. The court first selects two points on the opposite sides of the mouth of the cove (headlands) and draws a straight line between them. This line is referred to as the baseline or chord. A straight line is then drawn perpendicular from the chord to the parties’ boundary line at the high watermark. The perpendicular’ line is the littoral boundary line, and each party may exercise littoral rights on its side of the line. See Rochester v. Barney, supra, 117 Conn. 469-70.

The trial court found the following facts. The plaintiffs Robert DelBuono and Irene DelBuono, as trustees of the Robert DelBuono revocable trust, are the owners of land in Stratford on the west shore of the Housatonic River. The defendant, Brown Boat Works, Inc., is the owner of adjacent riverfront property south of the plaintiffs’ property. The boundary that separates the parties’ properties is 25.48 feet long and runs generally northeast to the mean high watermark.

The parties’ expert witnesses agreed that the shoreline is concave and that the cove method should be employed to determine the littoral boundary line between the properties. The headlands are the Stratford town dock to the south of the properties and the property of Stratford Marina to the north. The littoral boundary line is shown on the plaintiffs’ exhibit (see diagram following page) as bearing N 82 degrees 10’ 26”.

After establishing the littoral boundary line, the court issued a permanent injunction restraining the defendant from the construction, use or maintenance of piles,

bulkheads, piers or docks that encroach on or violate in any manner the littoral rights of the plaintiffs. This appeal followed.

I

THE CLAIMED AGREEMENT

A

The defendant first claims that the trial court improperly failed to find an express agreement concerning the parties’ littoral boundary line. We disagree.

The defendant bases its claims on the following evidence. On May 14, 1960, the defendant applied to the water resources commission (commission) for a permit to install a bulkhead on its property. On May 16, 1960, the plaintiff Robert DelBuono applied to the commission for a permit to construct a bulkhead on his property. The commission sent a letter to each party stating that it would take no action on either application until the parties resolved an apparent boundary dispute and agreed on the exercise of their respective littoral rights. A letter from Attorney John Bigley to the commission dated August 30, 1960, and signed by Robert DelBuono and Andrew J. Brown, then the proprietor of the defendant company, stated that “[t]he ambiguity regarding property lines [has] been satisfactorily cleared by my client and Mr. DelBuono.”

After receipt of the August 30, 1960 letter, the commission issued each party a permit to do the work described in each application. The defendant claims that the Bigley letter and the attached diagram constitute an agreement that sets the littoral boundary line between the parties as shown on a certain map designated “map of property for Andrew J. Brown, Stratford, Connecticut. August 25, 1958. No. 1127.” This map was recorded in the Stratford town clerk’s office on September 12,1958, and shows a line that the defendant claims is the littoral boundary line agreed to by the parties. The defendant further asserts that the commission would not have issued the permits if the parties had not agreed on the boundary line.

Resolution of the defendant’s claim requires us to examine the letter and diagram to determine whether they indeed constitute an agreement as to the littoral boundary line between the parties’ properties. “Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Bank of Boston Connecticut v. Schlessinger, 220 Conn. 152, 158, 595 A.2d 872 (1991). “The interpretation of a contract term that is not so clear as to render its interpretation a matter of law is a question of fact, subject to the clearly erroneous standard of review. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Citations omitted; internal quotation marks omitted.) Larson v. Jacobson, 38 Conn. App. 186, 189, 659 A.2d 753 (1995).

The letter and diagram on which the defendant relies do not contain definitive contract language and are not clear as to what, if anything, the parties agreed to with respect to the littoral boundary line. We thus review the question of the parties’ intent pursuant to the clearly erroneous standard.

The Bigley letter does not refer to a littoral boundary line, nor does the attached sketch clearly depict such a boundary line. Neither the letter nor the sketch refers to map 1127, which was recorded in 1958 and shows a line pursuant to which the defendant claimed “riparian rights.” We also note that the letter clearly states that the bulkhead depicted does not extend into the water. There was no evidence that the parties did anything more than agree that work on a certain shoreline bulkhead could be done on the properties in agreed areas.

We cannot say that the trial court’s refusal to find that the parties agreed on a littoral boundary line was clearly erroneous.

B

The defendant also claims that the trial court failed to enforce the agreement because it mistakenly believed that it was the responsibility of an appropriate government agency to establish the littoral boundary line and that such line could not be established by agreement of the parties. Because this claim presumes an agreement, such an error would be harmful to the defendant only if the trial court had found that an agreement did exist, but refused to enforce it because no government agency had approved the agreement or established a boundary line in reliance on it. Because the trial court did not find the existence of an agreement, even a mistaken belief by the trial court that government approval was necessary was harmless error.

Moreover, when examined in the context of the references to the parties’ establishing the boundary line by agreement, the court’s reference to government agencies makes its discussion ambiguous. We cannot determine whether the court required the defendant to prove an agreement between the parties and an acceptance of that agreement by a government agency, or whether the court believed that a government agency must establish the boundary line regardless of whether there was an agreement. We read an ambiguous record to support rather than to undermine the trial court judgment. DiNapoli v. Cooke, 43 Conn. App. 419, 425, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996); Albuquerque v. Albuquerque, 42 Conn. App. 284, 291, 679 A.2d 962 (1996).

II

THE ACQUIESCENCE CLAIM

The defendant claims that even if the trial court properly refused to find an express agreement as to the littoral boundary line, the plaintiffs’ acquiescence for over twenty years in the defendant’s use and development of the disputed area of water should be deemed to be acquiescence in the defendant’s claimed littoral boundary line. The defendant asserts that the plaintiffs should be estopped from pursuing their claim pursuant to the doctrine of equitable acquiescence. We are unpersuaded.

“The doctrine of recognition of and acquiescence in a boundary line is upheld by many authorities. It is sometimes referred to as acquiescence in, or as a practical location of, or as an implied agreement as to, a boundary. Considering all of the various jurisdictions in the United States, the doctrine is still in a chaotic condition .... Some of the authorities consider long acquiescence only as evidence of a boundary which may be contradicted. Other authorities say that an agreement may be inferred or presumed from such acquiescence. The doctrine seems to occupy a middle ground between adverse possession and estoppel in pais.” Annot., 69 A.L.R. 1431 (1930).

The defendant relies primarily on Lowndes v. Wicks, 69 Conn. 15, 30, 36 A. 1072 (1897), which defines the doctrine of equitable acquiescence as “quiescence under such circumstances that assent may be reasonably inferred from it. . . . Assent thus given is as irrevocable as if expressly stated . . . .” (Citation omitted.) In Lowndes, a waterfront landowner drove a row of piles that extended beyond the high watermark and angled in front of the adjoining landowner’s property. The Supreme Court noted that “[t]he row of piles which John H. Lowndes ran out . . . was a structure of a permanent and somewhat expensive character. For nearly two years it stood with the knowledge of the defendants or their grantors, and without objection. It was referred to as constituting a boundary in two of the deeds forming part of their chain of title. It was too late for them, after his conveyance to a third party of the narrow strip of land adjoining it on the north, to assert, for the first time, a paramount title, under which they could wharf out over this strip in such a way as to cut it off from access to the channel . . . .” Id., 29. Our Supreme Court affirmed the setting of the littoral boundary line along the row of piles and stated that “[t]he equitable doctrine of acquiescence applies in full force to this case.” Id., 30.

The defendant asserts that the following evidence supports its claim of acquiescence: (1) the defendant drove several piles that angled in front of the plaintiffs’ property in the early 1960s and those piles remain there to the present time, (2) the defendant installed docks in the midl970s that occupied part of the disputed area of water without objection by the plaintiffs, (3) the plaintiffs received notice of the defendant’s applications for permits to do work on the docks in 1975 and failed to object, even though the applications showed the defendant’s claimed littoral boundary line as depicted on map 1127, (4) the defendant withdrew his objection to a 1980 application for permits to do certain work on the docks, which application again showed the defendant’s claimed littoral boundary line as depicted on map 1127, (5) the plaintiff Robert DelBuono’s application to perform certain dredging operations was accompanied by a diagram of the plaintiffs’ claimed littoral area and that diagram implicitly recognized the defendant’s claimed rights by excluding the disputed area, (6) the plaintiffs implicitly recognized the defendant’s claim to the disputed area by extending a small wooden dock on their southeast property line only to the littoral boundary line claimed by the defendant as depicted on map 1127, (7) during earlier litigation between the plaintiffs and a contract purchaser of the plaintiffs’ property, the plaintiffs’ then attorney admitted that the disputed area belonged to the defendant, and (8) the plaintiffs’ attorney made the same admission during the trial of this case.

The trial court did not find facts or draw conclusions of law with respect to this claim, but it refused to adopt the claimed line pursuant to the alleged acquiescence of the plaintiffs. The defendant did not request an articulation, but asserts that the only conclusion that could be reached on the basis of the evidence before the trial court was that the doctrine of equitable acquiescence applies. The defendant asserts that the court’s failure to so find is clearly erroneous. We disagree.

The trial court had sound reasons for rejecting this claim. There was evidence that the plaintiff Robert DelBuono objected to the piles immediately after he first saw them and continued to object to the piles, the development of the docks and the defendant’s encroachment until the death of Andrew Brown, Sr., in 1979. Brown, Sr., was the principal of the defendant company from the time the piles were driven until his death. The defendant claims that Robert DelBuono was not credible for a number of reasons, but it is axiomatic that the trier of the facts is the sole judge of the credibility of witnesses. The trial court could reasonably have rejected the acquiescence claim on the basis of the testimony of Robert DelBuono. Such a rejection would preclude the application of Lowndes because in Lowndes there was no objection to the installation of the piles.

We also note that there were other reasons for the trial court to reject the evidence proffered by the defendant. With respect to the defendant’s 1975 and 1980 applications for permits to construct the docks and floats, Robert DelBuono testified that he did not object to the authorities because he consistently told Andrew Brown that the piles and docks intruded into his water space, but could remain in place until the time came when the matter of littoral rights between the parties would have to be resolved. Robert DelBuono testified that the application that the plaintiffs submitted as part of a dredging application delineated dredging only to the line claimed by the defendant because of the ongoing dispute and not because of acquiescence. With respect to the claimed admissions by the plaintiffs’ counsel, the zoning application, in which the claimed admission was supposedly made, was never introduced into evidence. Furthermore, the defendant does not cite to any transcript pages that show an admission by counsel and our review of the transcript reveals none.

We have found relatively few cases discussing the acquiescence doctrine in the context of a littoral boundary dispute. The following cases offer useful insights.

In Huguenot Yacht Club v. Lion, 43 Misc. 2d 141, 250 N.Y.S.2d 548 (1964), the court rejected a claim similar to the one the defendant makes here. The court determined that the plaintiff yacht club’s longtime use of the west side of its dock, a use that infringed on the adjoining owner’s littoral rights, did not give the plaintiff a right to use the west side of the dock. The defendant had the right to extend a wharf from his property and adjacent to the plaintiffs dock even though the wharf blocked the longstanding use by the plaintiff of the west side of its dock.

The plaintiff in Huguenot Yacht Club argued unsuccessfully that the littoral boundary line was not the upland boundary line extended, but a line drawn from a point where the seawalls in front of the respective properties met. Such aline would have included the west side of the dock as part of the plaintiffs littoral rights area. The court rejected this contention, stating that a 1930 agreement of the parties that the littoral boundary line was the upland boundary line extended was not changed by the location of the seawalls. The court also rejected the claim that the plaintiff acquired rights by its longstanding use of the west side of its dock.

Huguenot Yacht Club is instructive for the principle that once an upland owner, such as the plaintiffs here, desires to build a wharf or to exercise littoral rights, past intrusive usage for many years by the adjacent upland owner should not interfere with that right. Nor should the location of bulkheads change the littoral boundary line, just as the seawalls that were constructed in Huguenot Yacht Club did not change the littoral boundary.

In West Michigan Dock & Market Corp. v. Lakeland Investments, 210 Mich. App. 505, 534 N.W.2d 212 (1995), the Michigan Court of Appeals affirmed the trial court’s rejection of the defendant’s claim that it had acquired rights in an adjoining boat slip by acquiescence. The defendant and its predecessors had used the disputed boat slip on Lake Muskegon to dock vessels for approximately sixty years before a controversy erupted. The court stated that the evidence showed “that both the plaintiff and the defendant understood that the boat slip was on plaintiffs property and that defendant and its predecessor in interest used the slip with plaintiffs permission until 1989. Defendant’s use with plaintiffs permission of property that was acknowledged to belong to plaintiff could not, as a matter of law, entitle defendant to acquire property lights in the west forty feet of the slip by either adverse possession, prescriptive easement, or acquiescence.” (Emphasis added.) Id., 512. The Court of Appeals also affirmed the trial court’s order that the defendant pay $5000 to the plaintiff for the use of the slip or, in the alternative, remove any encroachment. This case is also instructive because it illustrates that long-standing permissive use does not necessarily give the user any littoral rights by acquiescence.

Neighboring landowners did object to a claimed encroachment on their littoral rights in Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841 (1927), but the objection came too late. The court denied the neighbors’ request for an order restraining the defendants from further work on the subject pier because large sums of money had already been expended on the erection of the pier and the neighbors were on sufficient notice of the proposed construction to have inteiposed a timely objection. Here, there was an immediate objection and the defendant introduced no evidence of the cost of constructing the encroaching piles and docks.

The defendant has not cited, nor have we found, any cases in which the doctrine of equitable acquiescence was applied in circumstances where a party immediately objected to an intrusion into the water in front of his property, yet permitted the intruding neighbor to use and develop the area for many years pursuant to a “license.” The fatal flaw in the defendant’s reliance on Lowndes v. Wickes, supra, 69 Conn. 15, is the evidence that Robert DelBuono objected immediately and often to the defendant’s intrusion and warned the defendant that there would be a day of reckoning eventually.

The defendant also claims that the trial court decision “inequitably deprives the defendant of approximately one-third of the docking facilities that have been used in its business for over twenty years.” The defendant cites Waterstreet Associates Ltd. Partnership v. Innopak Plastics Corp., supra, 230 Conn. 776, for the proposition that it is improper for a court to fashion a littoral boundary line that “creates a distribution that is so inconsistent with past development and so inequitable that it denies the defendant its essential rights to wharf out and to obtain access to deep water.” The trial court’s decision did not violate that principle.

Our review of the record discloses evidence that the defendant never obtained the proper permits to configure the docks that the plaintiffs claim encroach on their littoral rights area. Furthermore, the defendant proceeded to develop docks, floats and pilings with total disregard of the likelihood that they might have to be removed. The defendant introduced no evidence of the number of slips affected, the cost of installing the encroaching docks and slips, the percentage of its slips affected or how much it would cost to remove them. Nor did the defendant introduce any evidence as to what percentage of its income was produced by slip fees from the docks in the contested area.

We also note that the trial court established a littoral boundary line giving each party rights over an area “proportionate to its shoreline.” The plaintiffs introduced evidence that the boundary line claimed by the defendant would have given the defendant littoral rights over an area disproportionate to the extent of its shoreline property. “In apportioning [littoral] rights, the object to be kept in view is ... to secure to each lights appropriate to, and over an area proportioned in extent to, his shore lines.” (Internal quotation marks omitted.) Id. More importantly, the defendant was in no way prevented from building wharfs and obtaining access to deep water from docks in front of its own property. That access is the most important consideration in setting littoral boundary lines. Rochester v. Barney, supra, 117 Conn. 469.

On the basis of the evidence that was adduced, the trial court did not act inequitably in drawing the littoral boundary line. The trial court reasonably could have concluded that any business hardship to the defendant was self-created. We conclude that the trial court’s rejection of the defendant’s equitable acquiescence claim was not clearly erroneous.

Ill

APPLICATION OF THE COVE METHOD

The defendant finally claims that the trial court, although it properly selected the cove method to determine the boundary line, improperly selected the shore points (headlands) that were used to define the mouth of the cove and improperly failed to run the perpendicular to the end of the row of piles that it claimed constituted the upland boundary line as extended by agreement or acquiescence of the parties. This claim is without merit.

The plaintiffs’ expert witness testified that the chord of the applicable cove should be drawn between points at the Stratford Marina to the north and the Stratford town dock to the south. The defendant’s expert testified that the chord of the cove should be drawn between a point at the northeast comer of the plaintiffs’ property and the filled land area of the Stratford town dock. The defendant’s chord would produce a smaller cove. The plaintiffs’ expert testified that the littoral boundary line should be a perpendicular fine from the chord that he defined to the point where the parties’ common boundary met the mean high watermark. That littoral boundary would make the row of piles and several of the defendant’s docks encroachments on the plaintiffs’ littoral area. The defendant’s expert testified that the littoral boundary line should be a perpendicular line drawn from the chord that he used in defining the cove to the last of the line of five piles that angled to the north and were in front of the plaintiffs’ property. This line would give the defendant littoral rights in all but a small portion of the disputed area.

Where expert testimony conflicts, it becomes “the function of the trier of fact to determine credibility and, in doing so, it could believe all, some or none of the testimony of either expert.” (Internal quotation marks omitted.) Koennicke v. Maiorano, 43 Conn. App. 1, 14, 682 A.2d 1046 (1996); see also State v. Medina, 228 Conn. 281, 310, 636 A.2d 351 (1994). “The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by [the reviewing] court.” F. P. Carabillo Construction Co. v. Covenant Ins. Co., 172 Conn. 564, 566, 375 A.2d 1029 (1977). Findings based on such expert testimony will be disturbed only if the trial court abused its discretion. See Loewenberg v. Tiger Lee Construction Co., 1 Conn. App. 303, 308, 471 A.2d 665 (1984). With this standard in mind, we turn to the claims of the defendant.

The defendant asserts that the Stratford Marina should not have been used as the north headland because the chord defining the mouth of the cove would cross Ferry Creek, a navigable body of water that feeds into the Housatonic River. The use of such a headland, the defendant asserts, could impact on or cut off the littoral rights of property owners along Ferry Creek. The defendant offered no explanation as to how the division of littoral rights between the parties here with respect to their frontage on the Housatonic River could in any way affect the rights of property owners along Ferry Creek. Nor does the defendant cite any legal authority that would support such a proposition. The defendant also asserts that the headland at the Stratford Marina that was selected by the court was the remains of a wooden bulkhead. Such a bulkhead, the defendant claims, had neither the permanence nor the prominence to constitute a headland. The defendant also claims that the headland to the south, the Stratford town dock, was inappropriate because the dock is not a permanent structure.

The trial court credited the testimony of the plaintiffs’ expert with respect to the shape of the cove and the terminus of the upland boundary between the properties. In addition, the trial court could well have considered that the defendant’s expert was less credible than the plaintiffs’ because of the defense expert’s contradictory testimony in two earlier cases. Robert Reis, the defendant’s expert, conceded that he had given contradictory testimony in two cases involving Stonington Harbor. In one case, Reis opined that the relevant shoreline was straight. In the other case, he testified that the same relevant shoreline was concave, even though there had been no change in the shape of the shoreline in the interval between the cases.

As part of its last claim, the defendant asserts that the parties modified their upland boundary line to coincide with the line of piles that was driven by the defendant in the 1960s. The defendant contends that the last water-ward pile is the end of the upland boundary line as modified by the agreement in 1960 or acquiesced in over the years. The defendant makes essentially the same arguments in support of this claim as were made in support of the claims discussed in parts I and II of this opinion. We conclude that the trial court properly rejected this claim of modification of the upland boundary line for the reasons previously discussed in parts I and II of this opinion. We further conclude that the trial court did not abuse its discretion or rely on erroneous findings of fact in selecting the terminus of the parties upland boundary line.

The judgment is affirmed.

In this opinion the other judges concurred.

       The commission is now part of the department of environmental protection.

       In a letter dated July 11, 1960, Willis J. Snow of the commission stated to Andrew J. Brown, then the proprietor of the defendant company: “May we suggest that you and Mr. DelBuono come to some agreement concerning your common boundary in the exercise of your littoral or riparian rights. If such an agreement can be reached we shall be prepared to issue certificates for the respective pieces of work.” In a letter of the same date, to Robert DelBuono, Snow stated, “may we suggest that you and Mr. Brown endeavor to arrive at a mutual agreement with respect to your common boundaiy and the exercise of your respective littoral or riparian rights. As soon as such an agreement has been reached we shall complete 1he processing of your application.”

       The letter continues in pertinent part: “The confusion arose out of the enclosed diagram. You will note a red ‘X’ superimposed on the diagram. The bulkhead as set forth on this diagram is incorrect. The 84.0 feet located directly above the red ‘X’ shotild be 68.2 feet because the bulkhead does not extend into the water as the enclosed diagram indicates. The red ‘X’ indicates the end of Mr. Brown’s property. . . .”

       The court’s entire discussion of this issue is contained in the following: “In an attempt to claim the establishment of mutual boundaries by agreement, the defendant introduced various correspondences between the plaintiff, defendant and the state of Connecticut water resources commission, department, of environmental protection and the Department of the Army Corps of Engineers. The introduction of these letters was an effort, to establish that these state and federal agencies, by mutual agreement of the parties, had established the common boundary and the littoral rights of the plaintiff and the defendant. The defendant maintains that the plaintiff, through his conduct since the 1960s alleged agreement, acquiesced to the dimension and boundaries set forth on map 1127. Various permits from governmental agencies were introduced, authorizing bulkheads, floats, piers, ramps, etc. However, no evidence was introduced to clearly show that any governmental agency had established an upland boundary or a littoral boundary line between the plaintiff and the defendant.”

       While the trial court did not expressly find that the defendant had failed to prove the existence of an agreement, in finding that the littoral boundary line was other than the claimed agreed line, the trial court implicitly rejected the defendant’s claim. The defendant did not request an articulation on this issue from the trial court.

       The alleged failure of the trial court to make the subsidiary factual findings that are necessary to support a party’s claim is subject to the clearly erroneous standard of review. See Vezina v. Nautilus Pools, Inc., 27 Conn. App. 810, 817, 610 A.2d 1312 (1992); Ruwet-Sibley Equipment Corp. v. Stebbins, 15 Conn. App. 21, 26, 542 A.2d 1171, cert. dismissed, 209 Conn. 806, 548 A.2d 437 (1988).

       Although the trial court made no specific findings on the issue of equitable acquiescence, the court did note that it found credible Robert, DelBuono’s testimony that he told Andrew Brown, Sr., that the piles could remain in place even though they were on his property, subject to one or both properties being purchased for development in the future.

       We note that the defendant claims that the trial court’s statement that there was no dispute regarding the upland boundary was clearly erroneous. We read that statement in context to mean simply that the parties were not at issue as to the approximate twenty-live foot boundary line that was on dry land. The dispute was over the claimed extension of the upland boundary by the driving of the piles in front of the plaintiffs’ property.

       Robert DelBuono testified that he gave the defendant “license” to use the area.

       The north side of the plaintiffs’ property abuts Ferry Creek. Thus, the plaintiffs would have littoral rights on that side of their property. See Owen v. Hubbard, 260 Md. 146, 158, 271 A.2d 672 (1970), where the Maryland Court of Appeals held that “any property bounding on navigable waters of this State, whether it be by the front, side, or back line, has riparian rights.”

       The cases are Harboredge Development Corp. v. Renehan, Superior Court, judicial district of New London, Docket No. CV83-073363 (February 26, 1985), and Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., Superior Court, judicial district of New London, Docket No. CV8905095063 (September 14, 1993). The contradictory testimony is discussed in Water Street Associates Ltd. Partnerships. Innopak. Plastics Corp., supra, 230 Conn. 771-72.