text:
    PUTNAM PARK ASSOCIATES v. FAHNESTOCK AND COMPANY, INC.
    (AC 21789)
    Schaller, Flynn and West, Js.

      Argued June 4 —
    officially released October 15, 2002

      James A. Fulton, for the appellant-appellee (defendant).

      William J. O’Sullivan, with whom, on the brief, was Gale S. Dwyer, for the appellee-appellant (plaintiff).
   Opinion

FLYNN, J.

This is an appeal from a judgment awarding $31,413.27 in liquidated damages to the plaintiff, Putnam Park Associates, for breach of a written lease contract by the defendant, Fahnestock and Company, Inc.. The trial court found that the defendant, who was the tenant under the lease, had breached its duty to pay “additional rent,” over and above a base level of rent, to cover certain variable “excess expenses.” The defendant claims that the trial court improperly (1) refused to hold that the plaintiffs allegations in its complaint were insufficient to sustain the judgment, (2) found that the plaintiff had provided statements to the defendant detailing the additional rent due within the time frame required in the lease and (3) found that the statements provided were certified in accordance with the provisions of the lease. The plaintiff cross appeals from that part of the court’s judgment that denied the plaintiffs request for interest, late charges and attorney’s fees and costs. The plaintiff claims that (1) the court’s denial of interest and late charges was clearly erroneous, and (2) the trial court abused its discretion when it denied the plaintiff’s request for attorney’s fees and costs. We affirm that part of the judgment awarding damages for the defendant’s breach of the additional rent terms of the lease. We reverse that part of the judgment denying the plaintiffs request for interest, late charges and attorney’s fees and costs.

The following undisputed facts and procedural history are relevant to our resolution of these appeals. The defendant is a corporation that leased the second floor of a commercial building from the plaintiff for a five year term from November 25, 1987, through November 24, 1992. Pursuant to the written lease agreement for a Wethersfield office building, the defendant agreed to pay the lessor, the plaintiff, as additional rent its proportional share of the cost of certain real estate property taxes to the town of Wethersfield and certain other operating expenses, all as more particularly set forth in the rider to the lease agreement, which states in relevant part as follows:

“(d) (i) On or before March 1 of each calendar year (or as soon thereafter as is practical), Landlord shall deliver to Tenant a statement, certified by a partner of Landlord, of Tenant’s proportionate share of Excess Expenses for the preceding year. If Tenant’s proportionate share of the actual Excess Expenses for the preceding year exceeds the aggregate of the estimated monthly payments made by Tenant during such year, Tenant shall within ten (10) days of the receipt of such statement, tender to Landlord an amount equal to such excess as Additional Rent.”

This dispute arises because the plaintiff did not bill the defendant until September of 1994 for the additional rent for the years 1990, 1991 and 1992. The five year lease between the parties had expired by its terms in November of 1992.

In count one of its two count complaint, the plaintiff claimed that for a period of three years, the defendant breached its contractual duty to pay “additional rent” to the plaintiff to cover variable “excess expenses,” which included a share of the real estate taxes and operating expenses of the real property subject to the lease. The plaintiffs second count sounded in quantum meruit and was not addressed by the court.

In its answer, the defendant denied any current obligation to furnish the plaintiff with additional rent under the lease. The defendant advanced several special defenses. First, the defendant claimed that the plaintiff failed to follow the procedures described in the lease for obtaining additional rent. Specifically, paragraph (d) (i) of the rider to the lease stated: “On or before March 1 of each calendar year (or as soon thereafter as is practical), [the plaintiff] Landlord shall deliver to [the defendant] Tenant a statement, certified by a partner of Landlord, of Tenant’s proportionate share of Excess Expenses for the preceding year.” The defendant alleged that those procedures constituted a condition precedent to recovering additional rent. The defendant also claimed that the plaintiff waived its right to collect additional rent and that it was barred from recovering additional rent by the applicable statute of limitations and the doctrine of laches. The defendant also claimed that the plaintiff was not entitled to recover damages under its second count, which sounded in quantum meruit. Finally, the defendant alleged that it had surrendered the leased premises in 1992 and that any obligation to furnish additional rent terminated at that time.

The court found that the plaintiffs procedures for billing additional rent did not constitute the failure of a condition precedent to recovering additional rent. Although the plaintiff did not provide statements detailing the amount of additional rent due for the calendar years 1990,1991 and 1992 until September 12,1994, the court found that this delay was “commercially understandable.” In its memorandum of decision, the court found that the litigants had established “an atmosphere in which late statements would be tolerated” through the course of the parties’ performance. For the years 1989 and 1990, the defendant paid without objection invoices for additional rent that were sent to the defendant after the time permitted in the additional rent provisions of the lease. The plaintiff alerted the defendant that it had been embroiled in a dispute with its mortgagee concerning the proper amount of additional rent, which explained the delay in providing the statements. The court also noted that the lease provisions governing the procedure for obtaining additional rent contained flexible language and that the lease did not indicate that “time was of the essence.” Paragraph (d) (i) of the rider to the lease stated: “On or before March 1 of each calendar year (or as soon thereafter as is practical), [the plaintiff] Landlord shall deliver to [the defendant] Tenant a statement . . . .” (Emphasis added.) The court found that the plaintiff had sufficiently performed its duty to provide certified statements because a partner of the plaintiff, P. Christopher Henney, had “written and signed” the letter accompanying the statements.

The court awar ded damages of $31,413.27, reflecting the amount of additional rent originally invoiced to the defendant for 1990, 1991 and 1992. The court did not award any damages for interest, late charges or attorney’s fees and costs because it found that the defendant had raised and proven equitable claims, including laches, that should bar recovery of such damages. The present appeal and cross appeal followed. Further facts and procedural history will be set forth where necessary.

I

We first address the defendant’s claim that the plaintiff is not entitled to judgment because it did not plead in its complaint that it complied with the terms of the lease. The defendant claims that alease is like any other contract and that to succeed in a breach of contract claim, a plaintiff must plead in his complaint that he has performed his obligations under the terms of the agreement. The defendant cited Sortito v. Prudential Ins. Co., 108 Conn. 163, 167, 142 A. 808 (1928), and New Haven Metal & Heating Supply Co. v. Flanagan, 6 Conn. Sup. 488, 490 (1938), as purportedly supporting this proposition.

The trial court never decided the pleading issue in its memorandum of decision. It did not do so because when it inquired of the defendant’s counsel during post-trial argument whether he was requesting the court to decide the case on that technical basis after a full trial, the defendant’s counsel answered, “No.” The defendant never moved for an articulation or rectification from the trial judge. Appellants bear the burden of furnishing this court with an adequate record to review their claims. Practice Book § 61-10; 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 386. Absent a clear record of the factual and legal basis underlying the trial court’s resolution of an issue, we are unable to afford review. Accordingly, where the appellant claims that the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation or rectification; Practice Book § 66-5; or this court will not review the claim. See CB Commercial/Hampshire, LLC v. Security Mutual Life Ins. Co., 61 Conn. App. 144, 149-50, 763 A.2d 32 (2000), cert. denied, 255 Conn. 940, 767 A.2d 1211 (2001). That is the case with regard to this claim. See Hunter’s Ambulance Service, Inc. v. Shernow, 70 Conn. App. 96, 113, 798 A.2d 991 (2002).

Further, the defendant has not cited any authority standing for the proposition that an issue not decided by the trial judge may be reviewed on appeal, where that issue was not decided at trial because the defendant conceded to the trial judge that it need not be decided. We therefore decline to review this claim.

II

The defendant next claims that the 1990, 1991 and 1992 statements billing additional rent under the lease were delivered in breach of paragraph (d) (i) of the lease rider requiring that these statements be delivered on or before March 1 of each calendar year or as soon thereafter as is practical. The court found that “a statement sufficient to meet the terms of paragraph (d) (i) was presented to the defendant as soon after the March 1 date as ‘practical.’ ” It based this finding on several other subordinate findings. First, the parties were “sophisticated in dealing with leases and additional rent clauses of the kind involved in this case.” Second, there had been a course of performance by the parties of late statements for the additional rent for years 1989 and 1990 and in which the additional rent was paid without question, and this course of performance established an atmosphere in which the court found “late statements would be tolerated.” Third, time was not specified to be of the essence in the agreement. Finally, the court noted that the defendant had been aware of ongoing disputes that the plaintiff had with its mortgage lenders. These disputes arose out of an assignment of rentals. The court found that the credibility of the plaintiffs explanation was unchallenged and was commercially understandable. It also found that the defendant was not prejudiced in any way and that the billings made were made as soon as practical.

“[0]ur resolution of the [plaintiffs] claim is guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 686, 697 A.2d 1137 (1997). Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Levine v. Massey, 232 Conn. 272, [277-78], 654 A.2d 737 (1995); see Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn. App. 546, 662 A.2d 153 (1995); Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 158, 595 A.2d 872 (1991); Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981).” (Internal quotation marks omitted.) Pesino v. Atlantic Bank of New York, 244 Conn. 85, 91-92, 709 A.2d 540 (1998).

“When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct .... Practice Book § 4061 [now§ 60-5]; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).” (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 236, 737 A.2d 383 (1999). Under the circumstances of this case, because the trial court did not rely solely on the written agreement but took into account the surrounding circumstances, we apply the clearly erroneous standard to the court’s fact-finding.

The defendant argues that the phrase “as soon as is practical” should mean “feasible,” citing the Alabama case of Occidental Life Ins. Co. of Calif. v. Huff, 43 Ala. App. 61, 63, 179 So. 2d 771 (1965), or, in the alternative, “that which is possible of reasonable performance.” (Internal quotation marks omitted.) Greene v. Valdese, 306 N.C. 79, 84, 291 S.E.2d 630 (1982). It cites Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 6, 118 A.2d 463 (1955), for its agreement with the proposition that “[i]n construing [a lease] . . . [t]he intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument . . . .”

We first examine the pertinent lease language. The lease states that “[o]n or before March 1 of each calendar year (or as soon thereafter as is practical) Landlord shall deliver to Tenant a statement, certified by a partner of Landlord, of Tenant’s proportionate share of Excess Expenses for the preceding year.” Clearly, the language itself does not set out March 1 of each year as a termination date for performance since it provides in the disjunctive that billing may occur on another date if the March 1 date was not practical. Nor does the lease language fix an outside date for performance of the billing notification as to excess rent, stating only that it is to occur as soon as practical.

The court found that one of the surrounding circumstances was that the defendant had tolerated late billings for additional rent for the years 1988 and 1989. The defendant asks us to categorize this as a waiver rather than a course of performance. The court did not do so in its judgment, nor will we. The course of performance the parties followed over the years is strong evidence that the parties did not interpret the lease language “as soon as is practical” in the draconian manner the defendant now urges. See 2 Restatement (Second), Contracts § 202 (4) (1981) (“[w]here an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement”); see also 11 S. Williston, Contracts (4th Ed. Lord 1999) § 32:14, pp. 491-501 (“Practical Intexpretation or Construction— Given that the purpose of judicial interpretation is to ascertain the parties’ intentions, the parties’ own practical interpretation of the contract — how they actually acted, thereby giving meaning to their contract during the course of performing it — can be an important aid to the court. . . . Courts . . . give great weight to the parties’ . . . practical interpretation . . . unless it is contrary to the plain meaning of the contract . . . .”).

Just as the term “reasonable time” for performance of a contract is ordinarily a question of fact for the trier of fact, so too it was a question of fact for the trial court to determine whether the plaintiff delivered the statements in question “as soon as is practical.”

“Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time. Texas Co. v. Crown Petroleum Corporation, 137 Conn. 217, 227, 75 A.2d 499 [1950]; Santoro v. Mack, 108 Conn. 683, [689-90], 145 A. 273 [1929]. Benassi v.Harris, 147 Conn. 451, 458, 162 A.2d 521 (1960); see also Central New Haven Development Corporation v. La Crepe, Inc., 177 Conn. 212, 216, 413 A.2d 840 (1979). What is a reasonable length of time is ordinarily a question of fact for the trier. International Tool & Gauge Co. v. Borg, 145 Conn. 644, 648, 145 A.2d 750 [1958]; Loomis v. Norman Printers Supply Co., 81 Conn. 343, 347, 71 A. 358 [1908]. Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (1960). . . . Martin v. Martin’s News Service, Inc., 9 Conn. App. 304, 308-309, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987).” (Internal quotation marks omitted.) Schlicher v. Schwartz, 58 Conn. App. 80, 86, 752 A.2d 517 (2000).

“The standard of review with respect to a court’s findings of fact is the clearly erroneous standard. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).” (Internal quotation marks omitted.) Schlicher v. Schwartz, supra, 58 Conn. App. 87.

The court, in addition to the way the parties acted on billing and payment of the 1988 and 1989 additional rental payments, had other evidence of surrounding circumstances supporting its conclusion that the 1990, 1991 and 1992 payments had been made as soon as practical.

First, the plaintiff had made an assignment of rentals to its mortgagee. Where income producing property is financed by a first mortgage, a typical lender will demand that as part of the required documentation for the loan that the borrower assign the rentals to it as additional security for repayment of the principal and interest due. The court found that the defendant had notice of that dispute about whether additional rent had to be remitted to the mortgagee or could be retained by the plaintiffs. The court found that the negotiations between the mortgagee and the plaintiff were commercially understandable and that because of the delay caused by this dispute, the unchallenged reasons given by the plaintiff for the delay were circumstances that made the billing “as soon as [was] practical.” Had the plaintiffs mortgagee declared a default in the mortgage note and deed and then accelerated payment of principal or commenced foreclosure by virtue of the plaintiff having earlier billed the 1990, 1991 and 1992 additional expenses but then failed to remit all of them to the mortgagee, the practical consequences to the plaintiff, if not to the defendant and any other tenants, would have been enormous. We therefore do not find the court’s factual findings clearly erroneous in light of the evidence and pleadings of record. There is evidence to support all of the court’s findings and, after review, we are not left with the definite and firm conviction that a mistake has been made. We therefore conclude that this argument lacks merit.

Ill

Finally, the defendant claims that the plaintiff failed to comply with its obligation to deliver “certified statements” to the plaintiff. The operative lease language provided in pertinent part that: “Landlord shall deliver to Tenant a statement, certified by a partner of Landlord, of Tenant’s proportionate share of Excess Expenses for the preceding year.” Acting by P. Christopher Henney, general partner, on September 12, 1994, the plaintiff sent to the defendant at its 110 Wall Street, New York, office the following signed communication for each of the invoices for the three years in question, which the defendant maintains satisfies the certification requirement. “Pursuant to your lease with Putnam Park Associates for office space in Wethersfield, Connecticut, enclosed please find invoices for the ‘Additional Rent’ due. We apologize for the delay, but because of lengthy litigation with our first mortgagee, a defunct and government-entangled savings and loan, it has been impossible for us to issue these invoices until now. Under the terms of the lease payment is to be made within 10 days.

“Should you have any questions about that which is enclosed, please do not hesitate calling us.”

We note that both parties, which the court found were “sophisticated,” chose not to further define the term “certified” in their lease agreement.

On appeal, the defendant claims that Henney’s signed communication did not suffice to meet contractual certification requirements. It points out that the three pages of attached invoices for the additional rent were not signed.

The amounts of additional rent billed to the defendant were $10,685.85 for the year 1990, $10,879.57 for the year 1991 and $9847.85 for the year 1992.

The court found that “[t]he statements, accompanied by letters from Mr. Henney, a partner of the plaintiff, were sufficient to meet the ‘certified’ requirement of paragraph (d) (i) because even though the exhibits of the letters introduced into evidence were unsigned filed copies, Mr. Henney clearly testified that he had written and signed these letters.”

The court found that Henney was a partner, as the contract required, and that the letter enclosing the certifications had been signed. The question before us on appeal is whether the court properly determined that the signed communication that was sent satisfied the “certified” requirement of the parties.

The plaintiff did not simply send a bill. The invoices were accompanied by a signed letter. It identified invoices for “Additional Rent” due. It explained the delay. It demanded that “under the terms of the lease payment is to be made within 10 days,” which is an unequivocal statement by the plaintiff that the respective billings were what the defendant owed under the lease.

One of the dictionary definitions of certify which the defendant briefs is “to present in formal communication, esp. in a document under hand or seal as . . . being as represented.” We cannot say that the court’s findings were clearly erroneous under those definitions.

The defendant also cites the case of Lake v. Motor Vehicles Division, 133 Or. App. 550, 554, 892 P.2d 1025, review denied, 321 Or. 246 (1995), as authority for its contention that “to certify” has been defined as the equivalent of “to warrant” and that an allegation of a certification asserts that more than a mere representation was made. Here the signed letter is more than a mere representation; it states that payment of the invoices is due “[ujnder terms of the lease.” This can only mean that the writer claimed a contractual right to the moneys billed since the lease obligated the tenant to pay and gave the landlord the right to receive only the tenant’s aliquot portion of excess expense sums incurred. It identifies the “invoices.” The invoice documents themselves detail all of the common expenses and how the plaintiff arrived at the defendant’s 1.72 percent share of them.

Under all of these circumstances, we do not conclude that the court’s factual findings were clearly erroneous.

IV

The plaintiff has cross appealed, claiming that (1) the trial court’s decision to deny the plaintiffs request for interest and late charges was clearly erroneous and (2) that the trial court abused its discretion in denying the plaintiffs request for attorney’s fees and late charges.

At the time of trial, the amount of interest claimed was $13,570.53, and the total of late charges was $1570.66.

On appeal, the plaintiff claims that court’s failure to award interest and penalties provided for in the lease was contrary to §§ 33b and 5 of the lease and that therefore the court’s decision is clearly erroneous. It seeks reversal of that decision and a remand to the trial court for further proceedings to determine the proper allowance.

The court held that “the defendant has raised several equitable defenses, including laches, which is sufficient, in view of all the circumstances, to negate the claims of the plaintiff for interest, late charges and legal fees.”

The plaintiff in its cross appeal cites Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 415, 456 A.2d 325 (1983). In Pacelli, the trial court gave no reason for not awarding attorney’s fees provided in a note which was being collected by litigation, whereas here the court did give reasons. We nonetheless conclude that the reasoning in Pacelli is both persuasive and pertinent because it rests on the concept of the legal instrument’s provisions being a whole of which the interest and collection portions are an integral part. In Pacelli, our Supreme Court stated: “We know of no principle whereby the amount due upon a note which has been found to be valid may be reduced because of conduct of the holder which has been found to be reprehensible but not violative of the legal rights of the maker. The provision for a reasonable attorney’s fee was an integral part of the note and, like any other clause determining the amount due, could not be disregarded. Having decided that the note was valid, the [trial] court had no choice but to allow a reasonable attorney’s fee as part of the debt.” Id. We agree with the plaintiff that in light of the clear terms of the agreement, once the court found that the plaintiff was entitled to payment of the additional rent under the lease and that the defendant had not been prejudiced in any way by delay, reasonable attorney’s fees, late charges running from the date ten days after the September 12, 1994 date of the invoice and interest from that date were due. As with the note in Pacelli, the phrases describing the plaintiffs right to interest, attorney’s fees and late charges were an integral part of the lease instrument. If no award to reflect these liquidated damages were made, the plaintiff would not be made whole.

On the defendant’s appeal, the judgment is affirmed. On the plaintiffs cross appeal, the judgment is reversed as to the refusal to award interest, attorney’s fees and late charges and the case is remanded for further proceedings to determine the proper amount of interest, attorney’s fees and late charges.

In this opinion the other judges concurred.

       Neither the special defense regarding quantum meruit, which the court did not decide, nor the claim that by surrender the obligation to furnish additional rent terminated are subjects of this appeal.

       The full colloquy between the court and defense counsel was as follows:
      “[Defendant’s Counsel]: ... A plaintiff is required to both plead and prove when he sues under a lease that he performed his obligations under the lease. That’s not pleaded anywhere in this complaint. It’s not pleaded in the specific terms. It’s not pleaded in the general terms.
      “The Court: You don’t want me to dispose of the case on such a technicality, do you, counsel?
      “[Defandant’s Counsel]: No. I’m just saying — I’m going to get into the proof now. But it’s both a requirement of pleading and proof, and at least cases in the history of the state of Connecticut had disposed of a case on that ground, so I give them to Your Honor for what they’re worth.”

       We note that although the court referenced 1999, it clearly meant 1989 in the context in which this date appears.

         The defendant quoted from Webster’s Third New International Dictionary.

       Section 33b of the lease agreement states: “Any costs or expenses incurred by Landlord, including reasonable attorneys’ fees, involved in collecting or endeavoring to collect the Rent or any part thereof or enforcing or endeavoring to enforce any rights against Tenant, including the rights set forth in this Section 33, or curing or endeavoring to cure any default of tenant, under or in connection with this Lease, or pursuant to law, including any such cost, expense or disbursement involved in instituting and prosecuting summary proceedings, shall bear interest at the highest rate permitted by law from the date such cost or expense is incurred or disbursement made, until reimbursement to Landlord by Tenant, and shall be due and payable within ten (10) days of Landlord’s demand therefore, as Additional Rent.”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SHANNON ROGELSTAD
    (AC 21493)
    Poti, Mihalakos and Dranginis, Js.

      Argued April 22 —
    officially released October 15, 2002

      Jon L. Schoenhorn, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James R. Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Shannon Rogelstad, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (l) and assault in the third degree in violation of General Statutes § 53a-61. On appeal, the defendant claims that the trial court improperly (1) restricted her right to confront and to cross-examine witnesses, (2) denied her the right to present a defense, (3) allowed the prosecutor to engage in prosecutorial misconduct and (4) refused to consider her motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 22,1999, the defendant stabbed the victim, her nine year old son, Erik Gilbert (Erik), in the back with a pair of opened scissors. The stabbing resulted in two superficial puncture wounds to Erik’s lower back. Following the stabbing, the defendant cleaned and dressed the wound. Within the next day or two, Erik went swimming and reported the incident to his day care provider and then to his father, Wayne Gilbert (Wayne). A police investigation followed.

In a long form information, the defendant was charged with risk of injury to a child in violation of § 53-21 (1) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The trial commenced on March 15, 2000, at which Erik testified that he was wounded while playing on a slide at a local McDonald’s restaurant. The jury returned a verdict of guilty as to the first count and a verdict of guilty of the lesser included offense of assault in the third degree on the second count. The defendant was sentenced to three years imprisonment, execution suspended, and three years probation with special conditions. On March 28, 2000, the defendant renewed her previous oral motion for a judgment of acquittal and for a new trial. On June 9, 2000, the defendant filed a motion for a new trial on the basis of newly discovered evidence. The trial court issued its memorandum of decision denying the defendant’s motion for a new trial on December 7, 2000. This appeal followed.

I

The defendant first argues that the court unfairly restricted her right to confront and to cross-examine witnesses. Specifically, she claims that the denial of her efforts to explore the matter of the influence that her ex-husband exerted on Erik and the investigation constituted a deprivation of the right to confront and to cross-examine witnesses under the constitution of Connecticut and the United States constitution. In addition, she argues that the court improperly denied her the right to present a defense by prohibiting evidence concerning Wayne’s statements and efforts to deprive her of custody of her son. Because both claims implicate the defendant’s rights under the sixth amendment to the United States constitution, we will address them together.

The defendant concedes that she did not argue before the court that her sixth amendment rights were violated. She now seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review and the issues raised involve a fundamental right, we will review the defendant’s claim under Golding. See State v. Wegman, 70 Conn. App. 171, 190, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). The defendant, however, cannot prevail under the third prong of Golding because she has failed to establish that a constitutional violation clearly exists and that it clearly deprived her of a fair trial.

“The sixth amendment to the United States constitution guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him.” State v. Valentine, 255 Conn. 61, 70, 762 A.2d 1278 (2000). “The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 753, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002). “Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [cjlause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis in original; internal quotation marks omitted.) State v. Price, 61 Conn. App. 417, 428, 767 A.2d 107, cert. denied, 255 Conn. 947, 769 A.2d 64 (2001).

“[T]o comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Wegman, supra, 70 Conn. App. 187.

Again, the confrontation clause does not guarantee a defendant’s right to engage in unfettered cross-examination. See State v. Valentine, supra, 255 Conn. 71. Only relevant evidence may be elicited through cross-examination. See id. “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial. . . . The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Citations omitted; internal quotation marks omitted.) Id., 69-70.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 305-306, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). “It is not logical relevance alone, however, that secures the admission of evidence. Logically relevant evidence must also be legally relevant . . . that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 260-61, 593 A.2d 96 (1991).

We first address whether the defendant has successfully established that a constitutional violation clearly exists and clearly deprived her of a fair trial with regard to her cross-examination of Erik. Defense counsel posited, inter alia, to Erik: “Did your father encourage you to pursue this complaint against your mother?” The prosecutor objected to this line of questioning, and the court sustained the objection. The defendant now argues that because “the entire case against the defendant was dependent upon Erik’s out-of-court statements, in the face of [her and Erik’s] categorical denials in court, the need to demonstrate [Wayne’s] motives and influence were paramount. Instead, the court precluded the only evidence showing that Erik was influenced and encouraged to make false allegations against his mother by her hostile and vindictive ex-husband.” This argument is misplaced.

During her cross-examination of Erik, the defendant attempted to show Wayne’s motives and influence. Neither Wayne’s motives, nor his influences, were at issue in this case. Thus, such testimony and evidence, if admitted, would have created a side issue that would have distracted the jury from the issue of whether the defendant stabbed her son with apair of scissors. Therefore, the court properly excluded the testimony as irrelevant.

In addition, the defendant fully delved into Erik’s motives and credibility during cross-examination. After categorically denying that his mother had stabbed him, Erik admitted to having changed his story several times. For example, Erik testified that he went to day care the next day, and “she saw the scab and I was really mad at my mom then for ripping [a flag he had made for her], and I said that my mom stabbed me because I was mad.” At one point, he told his physician that he had walked three miles to his day care that day. Erik also testified that he told the police that his mother had stabbed him twice with the open scissors, yet there were only two puncture wounds.

Because the proffered cross-examination was irrelevant and Erik’s motives were explored thoroughly through proper questioning, the defendant’s right to cross-examination was not unduly hampered. We conclude that the court’s exclusion of the line of questioning regarding Wayne’s motives was proper and did not unfairly restrict the defendant’s right to confront the witnesses against her. Therefore, the defendant’s claim fails to satisfy the third prong of Golding.

We now turn to whether the court’s preclusion of any testimony regarding Wayne’s hostility toward the defendant denied her the right to present a defense. The defendant argues that “[i]t is clear in this case that the court determined that the only defense that would be permitted was limited to events surrounding the manner in which Erik received his injury, and the court would permit no evidence demonstrating that her ex-husband was a vindictive and manipulative man who would use his mentally ill son to make false accusations against her.” At trial, the defendant proffered evidence that Wayne was the president of the union that represented the Hamden police department, and was contesting custody and child support payments to the defendant. The line of questioning was either precluded or stricken from the record.

As we have previously stated, the court has wide discretion to determine the relevancy and scope of cross-examination, and we will not disturb the court’s ruling absent a clear abuse of that discretion. See State v. Valentine, supra, 255 Conn. 69-70. In addition, the proffering party must establish the relevancy of the proffered testimony. See id.

The court precluded the defendant’s testimony regarding her relationship with Wayne and the attendant divorce. The court ruled: “We’re not trying any divorce, however contentious it may or may not have been, I don’t know. That’s not relevant.” We reiterate that the admission of such testimony would create a side issue that would unduly distract the jury from deciding whether the defendant had stabbed her son and was, therefore, irrelevant. Because neither the divorce nor Wayne’s hostility toward the defendant had any bearing on whether the defendant stabbed her son, the court properly precluded the evidence.

Whether Wayne manipulated Erik into concocting the story that his mother had stabbed him relates directly to Erik’s credibility, not to whether the defendant stabbed him. Credibility is within the sole province of the fact finder. The jury found that Erik’s testimony at trial was not credible and found that the defendant, indeed, had stabbed her son in the back with a pair of scissors. It is not for this court to second-guess that determination. Therefore, the defendant’s first two claims fail to satisfy the third prong of Golding.

II

The defendant next claims that the court improperly allowed the prosecutor to engage in misconduct during closing argument. Specifically, she argues that the prosecutor improperly vouched for or attacked the credibility of witnesses, injected unproven facts and made personal attacks on defense counsel. We are not persuaded.

The defendant concedes that she did not properly preserve her claim for appeal. Once again, she seeks review under State v. Golding, supra, 213 Conn. 239-40. “It is well established that [w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Perry, 58 Conn. App. 65, 69, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000). We now review the closing arguments to determine if a pattern of misconduct existed or if the conduct was so egregious as to infringe on the defendant’s right to a fair trial.

“[P]rosecutorial misconduct can occur in the course of closing argument. . . . When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 336, 746 A.2d 761 (2000). “Nevertheless, [i]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered .... Ultimately, therefore, the proper scope of closing ar gument lies within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Id., 337.

“We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 90-91, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).

“A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. . . . By reason of his [or her] office, [the prosecutor] usually exercises great influence upon jurors. [The prosecutor’s] conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he [or she] should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury has no right to consider.” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 701-702, 793 A.2d 226 (2002). Our review of the transcripts in this case reveals that the defendant has failed to carry her burden in establishing a violation that would satisfy the requirements of Golding or plain error review.

The defendant first argues that the “prosecutor commented directly on the credibility of the state’s chief witness and offered his personal opinion about the lack of merit to the defendant’s theory of defense.” We agree with the defendant that the prosecutor improperly stated his opinion regarding the credibility of the witnesses when, directly after discussing the credibility of the testimony, he stated, “I don’t think so.” This clearly improper remark was, however, made only twice during the entire trial. Because it was fairly isolated, and was not part of an egregious pattern of misconduct, the defendant falls short of meeting her burden. See State v. Perry, supra, 58 Conn. App. 70-71.

The defendant next argues that the prosecutor included in his summation facts not in evidence. We disagree.

“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. ... [A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 717. “Our case law reflects the expectation that jurors will not only weigh conflicting evidence and resolve issues of credibility as they resolve factual issues, but also that they will consider evidence on the basis of their common sense. Jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Guadalupe, 66 Conn. App. 819, 826, 786 A.2d 494 (2001), cert. denied, 259 Conn. 907, 789 A.2d 996 (2002).

We conclude that the prosecutor’s comments regarding divorce were merely an appeal to the jury’s common sense and life experiences. Therefore, the prosecutor’s comments regarding divorce were not improper.

The defendant’s next contention regarding the prosecutor’s summation is that the prosecutor waged a personal attack against defense counsel. Specifically, she argues that the prosecutor “indirectly called [counsel] a liar and coward, and the state dismissed his admonishment not to feel sorry for his client as ‘bunk’ while simultaneously suggesting that defense counsel’s motives were improper.”

“The parameters of the term zealous advocacy are also well settled. The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 713.

“[T]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 358, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). “It does not follow [however] that every use of rhetorical language or device is improper. . . . The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 310, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001).

Although we do not condone the prosecutor’s comments directed at defense counsel, we cannot conclude that the comments rose to a level such that they deprived the defendant of a fair trial. We, therefore, decline to review the defendant’s claims pursuant to Golding.

The defendant’s final argument is that the prosecutor, while referring to Erik’s written and signed statement to the police, improperly commented that “its based upon [the fact that] the court has found the reliability of such a statement.” We disagree. The statement was admitted pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

Pursuant to State v. Whelan, supra, 200 Conn. 753, a prior inconsistent statement is admissible for substantive purposes, rather than only for impeachment purposes, if the following four requirements are met: “(1) the statement must be in writing; (2) the statement must be signed by the declarant; (3) the declarant must possess personal knowledge of the facts contained therein; and (4) the declarant must testify at trial and be subject to cross-examination.” State v. Meehan, 260 Conn. 372, 376 n.6, 796 A.2d 1191 (2002). “Although the requirement that prior statements be written and signed by the declarant is not an absolute guaranty of reliability, it does provide significant assurance of an accurate rendition of the statement and that the declarant realized it would be relied upon.” State v. Whelan, supra, 754. Viewing the prosecutor’s remark in its entirety, it is clear that he was merely stating why the statement was admissible and why the jury could use it for substantive purposes. Such argument is not improper.

As a final matter, we review whether the prosecutor’s conduct caused substantial prejudice to the defendant. In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, we consider several factors. “Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 262-63, 780 A.2d 53 (2001).

Our review of the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so egregious that it infringed on the defendant’s right to a fair trial. The improper comments made by the prosecutor were infrequent and were not severe in nature. In addition, some of the prosecutor’s comments were in direct response to the defendant’s closing argument. Furthermore, the state presented overwhelming evidence against the defendant. On the basis of our review of the record, we conclude that the defendant has failed to demonstrate that she was deprived of a fair trial, and, therefore, her claim fails to satisfy the third prong of Golding.

III

The defendant’s final claim is that the court abused its discretion when it refused to consider her motion for a new trial. Specifically, she argues that the court improperly concluded that it lacked subject matter jurisdiction because she failed to bring a separate action in accordance with General Statutes § 52-270. We conclude, albeit on ground different from those on which the trial court relied, that the court properly dismissed the defendant’s motion for a new trial.

This court has previously noted that failure to properly bring a petition for anew trial implicates the court’s subject matter jurisdiction. See, e.g., State v. Servello, 14 Conn. App. 88, 101-102, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988). Our Supreme Court has since clarified the distinction between a trial court’s “jurisdiction” and its “authority to act” in Amodio v. Amodio, 247 Conn. 724, 727-29, 724 A.2d 1084 (1999) (explaining distinction between “jurisdiction” and “authority to act”), Kim v. Magnotta, 249 Conn. 94, 101-102, 733 A.2d 809 (1999) (statutory limitation on motions to open judgments contained in General Statutes § 52-212a not jurisdictional), and Cantoni v. Xerox Corp., 251 Conn. 153, 161-62, 740 A.2d 796 (1999) (challenge alleging tribunal's action misconstrues its statutory authority is claim of statutory construction not jurisdictional).

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Citations omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 304-305, 610 A.2d 1147 (1992), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994). “Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action.” (Internal quotation marks omitted.) O’Bryan v. O’Bryan, 67 Conn. App. 51, 53, 787 A.2d 15 (2001), cert. granted on other grounds, 259 Conn. 911, 789 A.2d 995 (2002).

“Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” (Internal quotation marks omitted.) Id., 54. Furthermore, this court indulges every presumption in favor of jurisdiction. See id., 53-54.

Section 52-270 confers jurisdiction on the Superior Court to hear a defendant’s claim for a new trial on the basis of newly discovered evidence. Practice Book § 42-55 implements the statutory right conferred on the defendant by General Statutes § 52-270. “Practice Book rules do not ordinarily define subject matter jurisdiction. General Statutes § 51-14 (a) authorizes the judges of the Superior Court to promulgate rules regulating pleading, practice and procedure in judicial proceedings .... Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts.” (Emphasis added; internal quotation marks omitted.) State v. Carey, supra, 222 Conn. 307.

Our Supreme Court has observed that there may not be any examples of rules of practice governing criminal matters that affect subject matter jurisdiction. Id. “Even if a . . . Practice Book rule must be strictly construed and is mandatory, compliance with its requirements does not necessarily become a prerequisite to a court’s subject matter jurisdiction.” Id., 310; see also State v. Myers, 242 Conn. 125, 139 n.17, 698 A.2d 823 (1997); LoSacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989) (rule of practice not being constitutional or statutory mandate cannot be jurisdictional); Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 581, 706 A.2d 989 (prosecutor’s failure to sign information, as required by rule of practice, not jurisdictional), cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Moreover, our rules of practice “reflect the courts’ authority to prescribe rules to regulate their proceedings and facilitate the administration of justice as they deem necessary.” (Internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 495, 733 A.2d 835 (1999). Therefore, our role is to determine whether the court properly exercised its authority to act. See Amodio v. Amodio, supra, 247 Conn. 731.

“It is well established that to obtain a new trial on the ground of newly discovered evidence, a defendant must bring a petition under Practice Book § 42-55 . . . .” State v. Legrande, 60 Conn. App. 408, 419, 759 A.2d 1027 (2000), cert. denied, 255 Conn. 925, 767 A.2d 99 (2001). Practice Book § 42-55 provides that “[a] request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. The judicial authority may grant the petition even though an appeal is pending.” A petition for a new trial properly is “instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding.” State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980). “[A] different standard of review applies in these two separate procedures for seeking a new trial. To obtain a new trial through a [Practice Book § 42-55] petition, a defendant must overcome a ‘strict standard’ including a requirement that the newly discovered evidence be likely to produce a different result in a new trial.” State v. Jones, 205 Conn. 723, 729, 535 A.2d 808 (1988).

In the present case, the defendant filed a supplemental motion for new trial on November 16, 2000. The defendant neglected to serve a writ of summons and complaint in accordance with § 52-270, but merely filed the motion in the criminal case, pursuant to Practice Book §§ 42-53 and 42-55 and General Statutes § 52-270. In its detailed memorandum of decision dated December 7, 2000, the court dismissed the motion for lack of subject matter jurisdiction because the defendant did not institute a separate action in accordance with Practice Book § 42-55 and General Statutes § 52-270. We conclude that the defendant’s failure to bring her claim in accordance with Practice Book § 42-55 did not deprive the court of subject matter jurisdiction. We further conclude that the court properly dismissed the defendant’s improper motion because it lacked authority to consider it under our rules of practice.

Relying on State v. Roberson, 62 Conn. App. 422, 771 A.2d 224 (2001), and State v. Myers, supra, 242 Conn. 135, the defendant argues that “the state waived any objection by acquiescing in the procedure, and the trial court never suggested until its ruling that the procedure was inadequate to preserve the record.” In Myers, the defendant filed a motion for a new trial pursuant to Practice Book § 902, now § 42-53. The state argued that “the defendant’s claim of juror bias was initiated through a procedurally defective petition for a new trial.” State v. Myers, supra, 134. Our Supreme Court noted that the motion “clearly [did] not meet the requirements of a petition for a new trial because it too was filed within the confines of the criminal case.” (Emphasis added.) Id., 135. The court further held that “the issue of juror bias was properly before the trial court in the motion for a new trial brought prior to judgment and pursuant to Practice Book § 902 [now § 42-53].” State v. Myers, supra, 139. In the present case, the defendant based her motion solely on newly discovered evidence, a claim that must be brought by means of a petition for a new trial pursuant to Practice Book § 42-55. Therefore, Myers offers no support for the proposition for which it is offered by the defendant.

In Roberson, the defendant filed a motion for a new trial on the basis of newly discovered evidence. State v. Roberson, supra, 62 Conn. App. 425. The trial court conducted a hearing and decided the motion on the merits. Id. This court affirmed the judgment of the trial court and recognized, in a footnote, that the “trial court noted in its memorandum of decision that ‘[t]he state has waived any objection to the trial court deciding this motion for a new trial under the applicable tests regarding newly discovered evidence.’ ” Id., 424 n.4. The defendant relies on this footnote to support her argument that the state waived any objection when it acquiesced in the procedure.

We disagree with the defendant’s interpretation of Roberson. In Roberson, the issue of whether the motion was properly before the trial court was not before this court. It was not a part of the statement of the issues, nor was it argued or briefed on appeal. This court does not generally review such issues; see Martin v. Liberty Bank, 46 Conn. App. 559, 563 &n.3, 699 A.2d 305 (1997); because it would deprive the parties of an opportunity to present argument regarding those issues. See also Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994). Although we can review a claim when it rises to the level of plain error, this type of review is “reserved for extraordinary circumstances and situations in which the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Martin v. Liberty Bank, supra, 562 n.2. In Roberson, the result would have been the same whether this court dismissed the appeal for lack of subject matter jurisdiction or affirmed the trial court’s denial of the defendant’s motion for a new trial. Therefore, it did not undermine the fairness and integrity of and public confidence in the judicial proceedings.

As a final matter, we clarify our previous decisions characterizing the failure to bring a petition for a new trial on the basis of newly discovered evidence as depriving the court of subject matter jurisdiction. In accordance w'úhAmodio and its progeny, we recognize that a party’s failure to comply with our rules of practice implicates the courts’ authority to act. Furthermore, we express our opinion that the trial court should not exercise its authority in cases such as this where a party fails properly to serve a writ of summons and complaint on the adverse party in accordance with Practice Book § 42-55.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “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 are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       General Statutes § 53a-61 (a) provides: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       Shortly before the incident, the defendant and Wayne finalized a contentious divorce. The dissolution action was not a part of the record.

       Because the defendant has failed to present an independent state constitutional analysis, we limit our review to her federal constitutional claim. See State v. DeJesus, 260 Conn. 466, 480 n.11, 797 A.2d 1101 (2002).

       Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial 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.” (Emphasis in original.) Id. “In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 240.

       The defendant also seeks plain error review pursuant to Practice Book § 60-5. “The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Smith, 70 Conn. App. 393, 397 n.3, 797 A.2d 1190, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002). Because the defendant has neglected to analyze her plain error claim, she has failed to demonstrate a manifest injustice.

       The prosecutor made the foEowing comments to which the defendant now objects: “We went to McDonald’s, and this is Ingrid [Rogelstad-Howe, Erik’s sister] testifying, I was with him there, he never mentioned being hurt, I was watching him, I never saw him being hurt, and, in fact, when I tried to teE him that it was time to leave, it took [me] fifteen minutes to coax him to get out of the play area. He was having that much fun. Having that much fun. Having that much fun after a wound that he was stabbed in the back and it was bleeding. I don’t think that is credible. . . . [S\he’s going to let her son go over [to her ex-husband] with these wounds in his back without any explanation to this guy, this guy that supposedly is terrible. I don’t think so ... .

      * * *

        “And, Mr. Gilbert orchestrating this, I think you can see right through that .... Erik has been with his father for quite some time now, but it’s his father that brought it to the police’s attention about his changing his story. This guy was such a .. . Machiavellian . . . you think Erik can come in here and testify the way he did? I don’t think so." (Emphasis added.)

       The prosecutor made the following comments to which the defendant now objects: “[Erik’s] parents are divorced. By all accounts, this was a terrible divorce. And Erik unfortunately was exposed to some of that or all of that between his parents over the years before they got divorced and even afterward. I don’t dispute that one iota. It’s terrible that children have to go through that, and shame on anybody that allows a child to go through that, both parties. But that’s not the issue in this case. The issue isn’t the divorce or the animosity that Erik’s parents have against each other; the issue is what happened on that day.
      “This is becoming, perhaps, more serious than [Erik] thought his telling the truth was going to be. What happened, ladies and gentlemen, is Erik, I’m sure, loves his mother. He was nine years old at the time. I’m sure he still loves his mother. No matter how dysfunctional families in our society may be, children want to be normal, children want to keep the family together. The children want to have a relationship with both parents, whether they’re married or not and, unfortunately for Erik, they’re not in this case, but he . . . doesn’t want anything bad to happen to his mother.
      “I’m not a psychologist, ladies and gentlemen. It has been over seventeen years since I’ve been a social worker. But use your common sense as to what those folks are saying and what value that is.” (Emphasis added.)

       Although we do not believe that the prosecutor should have referred to his prior experience as a social worker, it was an isolated comment.

       The prosecutor made the following comments to which the defendant now objects: “This isn’t a divorce. I’m going to tell you . . . I’m not part of that, thank God I’m not a part of that. I’m going to assume that [defense counsel] is 100 percent true that this is a terrible thing, divorce. But that’s not what this case is about, and don’t believe that for one minute. And [defense counsel\ can get up here and rant and rave about someone being a coward for not taking the [witness] stand. Who is the coward for not putting him on the [witness] stand to get out legitimate evidence if, in fact, there was any? [Defense counsel] is an attorney, he knows what he is doing, he did that for a reason, so he can get up here and just tell you tad tales, to coin a phrase that Erik said when he was on the [witness] stand. Let me get up there and give them a tall tale about what’s going on in some other courtroom at some other time where Mr. Wayne Gilbert is some sort of Machiavellian presence in dictating what the Hamden police department does. . . . He doesn’t want you to be sympathetic for her. Bunk. Bunk. Bring up everything that he just said about the financial strain and emotional ptvblems, you know, having to hire him. That’s exactly what he’s trying to use, is sympathy ....’’ (Emphasis added.)

         The prosecutor made the following comments to which the defendant now objects: “So, that statement is not only allowed in for you to see that there was some other different version given, that can be allowed in for you, if you so choose, to determine that as substantive evidence not just . . . somehow impacting on Erik’s testimony in court, but for substantive purposes, and it’s based upon what the court has found the reliability of such a statement. [Erik] also gave all those other statements to people, none of those were sworn to and signed by him, so those don’t come in for substantive purposes only, but for you folks to decide which is going to truly be more accurate, the statement to the police department that [Erik] told Detective [Pamela] Glasso on August 3 or what Erik said here in court in front of his mother in front of this courtroom.” (Emphasis added.)

       Although the following list is not exclusive, those cases include State v. Arroyo, 67 Conn. App. 154, 786 A.2d 1124 (2001); Cadle Co. v. Ginsburg, 51 Conn. App. 392, 721 A.2d 1246 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999); Waterworks v. Audet, 29 Conn. App. 722, 617 A.2d 932 (1992); State v. Smith, 15 Conn. App. 502, 545 A.2d 1150 (1988); In re Clifton B., 15 Conn. App. 367, 544 A.2d 666 (1988); and State v. Servello, supra, 14 Conn. App. 88.

       We do so recognizing the fact that the defendant has three years from the judgment within which to bring her petition for a new trial on the basis of newly discovered evidence in accordance with General Statutes § 52-270 as implemented by Practice Book § 42-55. See General Statutes § 52-582.