author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. LORI C. LANAGAN
    (AC 29693)
    Flynn, C. J., and Harper and Mihalakos, Js.

      Argued October 26, 2009
    officially released January 19, 2010

      Martha Hansen, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Nicole I. Christie, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Lori C. Lanagan, appeals from the judgments of the trial court revoking her probation and committing her to the custody of the commissioner of correction for three years, execution suspended after twenty-five months. The defendant claims that (1) the court improperly denied her motion for judgments of acquittal, (2) the court’s finding that she had violated her probation was not supported by sufficient evidence and (3) the court improperly refused to hear evidence relating to her violation of the condition of probation that she cooperate with the department of children and families (department). We affirm the judgments of the trial court.

The court found the following facts. In 2006, the defendant was convicted, under three separate criminal docket numbers, of threatening in the second degree in violation of General Statutes § 53a-62, criminal mischief in the second degree in violation of General Statutes § 53a-116 and criminal violation of a protective order in violation of General Statutes § 53a-223. The court, Sullivan, J., sentenced the defendant to a total effective term of three years of incarceration, execution suspended after thirty days, and two and one-half years of probation. Among the defendant’s conditions of probation was the standard condition that she not violate any criminal law of Connecticut or the United States, as well as special conditions, which included that the defendant (1) not assault, threaten or harass Larry Rekas and (2) cooperate with the department.

During her probationary period, the defendant twice was arrested, on February 6 and 14, 2007, following reports of domestic disturbances at Rekas’ house. In the February 6, 2007 incident, the defendant was charged with disorderly conduct in violation of General Statutes § 53a-182. The court found that the defendant intentionally kicked Rekas in the leg, causing him physical injury. In the February 14 incident, the defendant again was charged with disorderly conduct and criminal violation of a protective order. In that incident, the court found that the defendant intentionally pushed Rekas down a flight of stairs in the garage of his home, causing him physical injury.

Also, during her probationary period, the defendant failed to comply with the department’s recommendation that she participate in alcohol, domestic violence and mental health treatment. The defendant did not fulfill the department’s requirement that she attend the Rushford Treatment Center. According to the court, the defendant did not take the counseling seriously, continued to abuse alcohol and was discharged from the treatment center for unsuccessful participation. In February, 2007, the defendant refused to undergo additional alcohol treatment, despite a request by the department. Further, the defendant refused inpatient treatment at Blue Hills Treatment Center, and she also refused to engage in domestic violence counseling. Finally, the defendant refused to give the department her address, which it needed to ensure that the defendant was not residing with her mother and her children.

The defendant’s probation officer, Joseph Gulick, prepared and issued three arrest warrant affidavits for the charges of violation of probation. The defendant subsequently was arrested and charged with violating the terms of her probation in violation of General Statutes § 53a-32. The state alleged in three separate long form informations that the defendant had violated her probation in six different ways.

On December 21 and 27, 2007, the court, Swords, J., conducted a violation of probation hearing, which, during the adjudicative phase, included testimony from Gulick, Rekas, state police Trooper Ryan Luther, who responded during the February 6 incident, and Melissa Gautier, a department supervisor. The court found by a preponderance of the evidence that the defendant had committed the criminal acts underlying her arrests and that she had failed to follow the treatment plan recommended by the department. On these grounds, the court found that the defendant had violated the conditions of her probation. In the dispositional phase of the probation hearing, the court determined that the beneficial purposes of probation would not be served by offering the defendant further probationary services due to her multiple failures to comply with the conditions of probation. The court revoked the defendant’s probation and sentenced her to a total effective term of three years of incarceration, execution suspended after twenty-five months, followed by probation for twenty-two months. The defendant subsequently appealed to this court. In this appeal, the defendant challenges the court’s findings at the adjudicative phase of the probation revocation hearing. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that the court improperly denied her motion for judgments of acquittal. In that motion, she argued that, insofar as the state alleged that she had failed to cooperate with the department, the evidence was insufficient. On appeal, the defendant argues that the court based its decision that she failed to cooperate with the department on unreliable hearsay. We disagree.

Although the defendant characterizes her claim in terms of evidentiary sufficiency, it is, in essence, a claim that the court improperly relied on hearsay testimony. In considering the defendant’s precise claim, we note that “the rules of evidence do not apply to probation proceedings.” State v. Quinones, 92 Conn. App. 389, 392, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006); see also Conn. Code Evid. § 1-1 (d) (4). “It is well settled that probation proceedings are informal and that strict rules of evidence do not apply to them. . . . Hearsay evidence may be admitted in a probation revocation hearing if it is relevant, reliable and probative.” (Citation omitted.) State v. Verdolini, 76 Conn. App. 466, 471, 819 A.2d 901 (2003). At the same time, “[t]he process ... is not so flexible as to be completely unrestrained; there must be some indication that the information presented to the court is responsible and has some minimal indicia of reliability.” State v. Young, 63 Conn. App. 794, 800, 778 A.2d 1015, cert. denied, 258 Conn. 903, 782 A.2d 140 (2001).

Gautier testified as a representative of the department regarding the steps it took to treat the defendant’s ongoing substance abuse problems. Gautier specifically testified that the defendant failed to complete alcohol abuse counseling at the Rushford Treatment Center, refused treatment at Blue Hills Treatment Center and refused domestic abuse counseling. Although much of the evidence presented by Gautier was hearsay, the court nevertheless properly found that “that hearsay was nonetheless reliable and probative in that it was information gleaned solely from [the department’s] files, which . . . Gautier had with her and consulted on numerous occasions during her testimony.” Our careful review of the record, as well as the arguments advanced by the defendant, does not lead us to conclude that the court improperly admitted the testimony at issue.

II

Next, the defendant claims that there was insufficient evidence to sustain the court’s finding that she had violated her probation. According to the defendant, the majority of the state’s evidence was hearsay or based on inconsistent testimony. We disagree and conclude that the testimony was sufficient for the court to find that the defendant violated her probation.

As a preliminary matter, we set forth the legal principles and the standard of review pertinent to our discussion. “[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked.” (Internal quotation marks omitted.) State v. Fowler, 102 Conn. App. 154, 165, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007). “Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185, 842 A.2d 567 (2004).

The defendant’s claim in this case pertains to the first component of the revocation hearing, the adjudicative phase. “In a probation revocation proceeding, the state bears the burden of proving by a fair preponderance of the evidence that the defendant violated the terms of [her] probation.” (Internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 79, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003). “As a reviewing court, we may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Durant, 94 Conn. App. 219, 224, 892 A.2d 302 (2006), aff'd, 281 Conn. 548, 916 A.2d 2 (2007).

We conclude that there was sufficient evidence for the court to find that the defendant violated her probation by engaging in criminal conduct on February 6 and 14, 2007. At the defendant’s probation hearing, Rekas testified extensively about the incidents that led to the defendant’s disorderly conduct arrests. Rekas detailed the confrontations that led to the defendant kicking him in the leg on February 6, 2007, and pushing him down a staircase on February 14, 2007. Although the defendant testified that those incidents never occurred, the court clearly credited the testimony of Rekas and rejected the testimony of the defendant. In addition to the fact that the defendant violated state law, which constituted a violation of the standard condition of probation, we also recognize that the defendant does not challenge the court’s findings that her actions on February 6 and 14, 2007, violated the special condition of probation that she not assault, threaten or harass Rekas.

In essence, the defendant’s sufficiency of the evidence claim is more or less a challenge to the court’s determinations of witnesses’ credibility. Although the defendant couches her argument in terms of insufficiency of the evidence, she confuses the issues of sufficiency and credibility. “As the sole finder of fact in the probation revocation proceeding . . . the court was entitled to arrive at its own conclusion regarding the witnesses’ credibility and what weight to afford their testimony.” State v. Gauthier, 73 Conn. App. 781, 787, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003). Because the weight to be given to the credibility of a witness is within the sole province of the trier of fact and will not be reviewed on appeal; Sanders v. Dias, 108 Conn. App. 283, 294, 947 A.2d 1026 (2008); we cannot say that the court’s decision was clearly erroneous.

We conclude, therefore, that the court had before it sufficient evidence to support its finding, by a fair preponderance of the evidence, that the defendant violated the conditions of her probation that she not commit a crime or assault, threaten or harass Rekas.

Ill

Finally, the defendant argues that the court improperly refused to hear evidence relating to the validity of the condition of probation that she cooperate with the department. We decline to address this claim.

We acknowledge that a violation of any one condition of probation would suffice to serve as a basis for revoking the defendant’s probation. “Our law does not require the state to prove that all conditions alleged were violated; it is sufficient to prove that one was violated.” State v. Widlak, 74 Conn. App. 364, 370, 812 A.2d 134 (2002) , cert. denied, 264 Conn. 902, 823 A.2d 1222 (2003) ; see also State v. Payne, 88 Conn. App. 656, 660, 870 A.2d 1159, cert. denied, 274 Conn. 903, 876 A.2d 13 (2005). It is clear that the court had sufficient evidence to determine that the two incidents involving Rekas constituted probation violations. Thus, even if we were to assume, arguendo, that there was insufficient evidence for the court to find that the defendant failed to comply with the conditions set by the department, the trial court properly still would have found that the defendant violated her probation.

The gravamen of the defendant’s claim is that the court refused to hear evidence challenging the validity of the term of probation that the defendant cooperate with the department. We conclude that, because the court properly found by a fair preponderance of the evidence that the defendant violated the standard condition of probation that she not engage in criminal activity, as well as the first special condition of her probation concerning Rekas, we need not address the defendant’s claim regarding her compliance with the department. The defendant has challenged only the court’s finding in the adjudicative phase of her probation revocation hearing, and, thus, it would serve no useful purpose to consider whether the court improperly precluded the defendant from eliciting testimony to challenge the validity of the condition of probation requiring her to cooperate with the department.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person . . .

       General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation ... the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation

       The defendant refers to a discrepancy in Rekas’ testimony to claim that his version of the events is not believable, and, thus, the court could not have found a violation of probation by a preponderance of the evidence. Pertaining to the February 6, 2007 incident, Luther testified that Rekas told him that Rekas was kicked in the left calf by the defendant, while Rekas testified at the probation hearing that the defendant had kicked him in the back of his right leg. Nevertheless, the court was justified in determining that the defendant used physical force against Rekas in a sufficient manner to constitute disorderly conduct.

       Judge Swords specifically stated in her findings of fact that “[t]he court further finds that the defendant’s claim that she did not kick . . . Rekas on February 6 to be not credible” and that “[t]he defendant’s claim that she did not push . . . Rekas down the stairs is not credible.”


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    MONIQUE TOBET v. MICHAEL TOBET
    (AC 30173)
    Graendel, Lavine and Dupont, Js.
    Submitted on briefs September 23, 2009
    officially released January 26, 2010

      Sheila K. Rosenstein filed a brief for the appellant (plaintiff).

      James H. Lee filed a brief for the appellee (defendant).
   Opinion

LAVINE, J.

This postdissolution proceeding concerns the obligation of a parent to make financial contributions to the college education expenses of the parties’ child, pursuant to the parties’ separation agreement. The plaintiff, Monique Tobet, appeals from the judgment of the trial court denying her motion to allocate college expenses between the parties by enforcing the parties’ separation agreement, which was incorporated in the judgment of dissolution. On appeal, the plaintiff claims that the court erred when it (1) denied her motion requesting an allocation of college expenses based on a specific provision in the judgment of dissolution and (2) found the cost of one year of education at a particular university for which no evidence was presented. We agree with both claims and reverse the judgment of the trial court.

The following procedural history is relevant to our resolution of this appeal. The plaintiff and the defendant, Michael Tobet, were married in 1988 and are the parents of two daughters, one bom in 1990 and the other bom in 1994. In 2003, the plaintiff sought a judgment of dissolution. In granting the dissolution on July 7, 2004, the court, B. Fischer, J., incorporated the parties’ separation agreement into its judgment. Article seven of the agreement is entitled “College Education Expenses” and states in relevant part: “1. The parties will endeavor to provide the children with a four year under-graduate college education at a fully accredited institution of higher learning, including such schools as may be locally available. The parties shall be responsible for the cost of each child’s college expenses, including but not limited to tuition, books, and room and board, but in no event shall either party be liable for more than his or her share of the cost of tuition and board charged at the University of Connecticut at Storrs, for that academic year, unless the parties agree, in writing, to pay for a more expensive school. The parties shall share the above expenses proportionately to their incomes. . . .

“2. Prior to the disbursement of any funds for college educational costs, any funds that the children may have shall be exhausted. The parties also agree that the minor children shall apply for and obtain all scholarships, grants, loans and subsidies as may be available.”

On April 18, 2008, the plaintiff filed a motion for modification. Although the motion is entitled motion for modification, it is, in essence, a motion for allocation of the parties’ respective shares of their older daughter’s college education expenses, and we treat it as such. See Ocwen Federal Bank, FSB v. Charles, 95 Conn. App. 315, 320 n.7, 898 A.2d 197 (substance of motion governs its outcome, rather than how it is characterized in title by movant), cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). The parties appeared pro se before the court, Hon. Howard T. Owens, Jr., judge trial referee, on July 17, 2008, for a hearing. The plaintiff, after being sworn in, made the following representation of facts to the court.

The parties’ older daughter is an outstanding student. She plays four musical instruments and was the salutatorian of her high school graduating class of 261 students. The older daughter applied to and was accepted for admission by Haverford College, where the annual cost is $51,000. Haverford College awarded the older daughter a financial aid package of $36,000. The plaintiff represented that the older daughter had obtained summer employment to earn funds for her college education. The plaintiff further represented that the defendant did not think that he should be responsible for the older daughter’s college expenses. The plaintiff asked the court to review the parties’ financial affidavits and to apportion their share of the $10,000 needed to finance their older daughter’s education, noting that the sum is considerably less than the annual cost of tuition and board at the University of Connecticut at Storrs.

The defendant, after being sworn in, represented to the court that he had no relationship with his older daughter but that he did complete the financial aid form required of noncustodial parents. He claimed that he had no discussion with his older daughter about her college choices and did not know of them until he received notification from financial aid services. His stated reason for not agreeing to pay his share of the cost of his older daughter’s college education was that “it’s the principle of the thing here.”

After reviewing the parties’ separation agreement and the parties’ financial information, the court issued the following ruling from the bench. “First of all, I’ve looked at the agreement very carefully, and the agreement provides that the parties shall be responsible for the cost of each child’s college expenses, including but not limited to, tuition, books and room and board. But in no event shall—no event shall either party be liable for more than his or her share of the cost of tuition and board charged at the University of Connecticut at Storrs for that academic year, which is roughly $16,000 or $17,000. So, the answer is, the way this agreement is drafted and the way this is presented, neither of the parties is responsible for anything in excess of $16,000. The child is responsible.

“I can only say to you that the—I would think that with a school like Haverford, that’s such a quality university, that my advice would be to split it $5000-$5000, whatever you’re going to do. But based on this agreement, I cannot order that. All I can order you is, it seems to me—I know you’ve had your troubles, [defendant], with your kids and so forth like that, but $5000 a year for Haverford is something that you should really give some serious thought to. That’s all I can say. The motion is denied . . . .” The plaintiff appealed.

I

The plaintiffs first claim is that the court erred when it denied the plaintiffs motion for an allocation of the older daughter’s college expenses. We agree.

The court did not explain the rationale for its decision in denying the plaintiffs motion for an allocation of the older daughter’s college expenses. Our resolution of the plaintiffs appeal, however, turns on the construction of the parties’ separation agreement. See Histen v. Histen, 98 Conn. App. 729, 732, 911 A.2d 348 (2006). “[I]t is familiar law that a marital dissolution agreement is a contract. . . . Thus, in reviewing it, we are guided by the law that the interpretation of a contract may either be a question of law or fact, depending on whether the language of the contract is clear and unambiguous.” (Citation omitted.) Medvey v. Medvey, 83 Conn. App. 567, 571, 850 A.2d 1092 (2004). “When the language of the agreement is clear and unambiguous, its meaning is a question of law subject to plenary review. . . . When the agreement at issue is ambiguous, however, its meaning is a question of fact, and the court’s interpretation thereof will not be disturbed on appeal unless it is clearly erroneous.” (Citation omitted.) Histen v. Histen, supra, 733.

“[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.” (Internal quotation marks omitted.) Sutherland v. Sutherland, 107 Conn. App. 1, 5-6, 944 A.2d 395 (2008).

The language of the separation agreement at issue is: “The parties shall be responsible for the cost of each child’s college expenses, including but not limited to tuition, books, and room and board, but in no event shall either party be liable for more than his or her share of the cost of tuition and board charged at the University of Connecticut at Storrs, for that academic year . . . .” (Emphasis added.) On the basis of our review of the language, we conclude that it is clear and unambiguous as a matter of law. Pursuant to their agreement, the parties agreed to pay the cost of their children’s college education, but the amount they each agreed to pay “proportionately to their incomes” is not to exceed the cost of attending the University of Connecticut at Storrs. The agreement does not limit the cost of the children’s education, it merely limits the amount of that cost that the parties are to pay. Moreover, the agreement does not require the parties’ children to attend the University of Connecticut at Storrs; it merely uses the cost of tuition and board at the University of Connecticut at Storrs as a reference point. Our conclusion is supported by the first sentence of article seven of the separation agreement, which states, “[t]he parties will endeavor to provide the children with a four year under-graduate education at a fully accredited institution of higher learning, including such schools as may be locally available.” See Taylor v. Taylor, 117 Conn. App. 229, 232, 978 A.2d 538 (construction of contract to ascertain intent of parties question of law when agreement unambiguous within four comers of instrument), cert. denied, 294 Conn. 915, 983 A.2d 852 (2009).

In this case, the plaintiff presented evidence that the cost of their older daughter’s attending Haverford College was $51,000 and that the daughter had been awarded a financial aid package of $36,000. The plaintiff represented that the parties’ older daughter needed an additional $10,000 to pay for one year at Haverford College; the defendant did not dispute that amount. Although there was no evidence as to the cost of tuition and board at the University of Connecticut at Storrs; see part II of this opinion; the corut believed the cost to be $16,000 or $17,000 per year, an amount greater than $10,000. We conclude, therefore, that the court erroneously denied the plaintiffs motion to allocate the parties’ respective shares of the cost of their older daughter’s college education at Haverford College. The case must be remanded for the court to make the necessary factual findings and to determine the parties’ proportionate share of the cost of their older daughter’s college education.

II

The plaintiffs second claim is that the court erroneously found that the cost of the annual tuition and board at the University of Connecticut at Storrs is $16,000 or $17,000 because there is no evidence in the record to support that finding. We agree.

“Appellate review of a trial court’s finding of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . .” (Internal quotation marks omitted.) Buehler v. Buehler, 117 Conn. App. 304, 317-18, 978 A.2d 1141 (2009). Our review of the transcript reveals that no evidence as to the cost of the annual tuition and board at the University of Connecticut at Storrs was presented to the court. The court’s finding, therefore, is clearly erroneous.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The parties were represented by counsel in the dissolution proceedings.

       The separation agreement, article seven, further provides in relevant part: “3. The [parties] shall consult with each other regarding the children’s proposed college education, the choice of schools and the anticipated cost of such education. No expense for such college education shall be incurred without consent of either party and consent shall not be unreasonably withheld. In determining the reasonableness of withholding such consent, the particular child’s academic abilities and aptitude, the cost of the specific college in question in relation to other colleges, the financial capability of the [parties] and the attitude and personal behavior of the child shall be appropriate and proper considerations.”

       The record is unclear whether the older daughter’s financial aid package was worth $36,000 or $38,000. The transcript contains both figures. For purposes of this appeal, the difference is not relevant.

       The plaintiff has not provided this court with a memorandum of decision or a signed transcript of the court’s oral decision. See Practice Book §§ 61-10 and 64-1. She, however, has provided us with an unsigned transcript of the proceeding. “On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions.” In re Anthony E., 96 Conn. App. 414, 417, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006). In view of the plaintiffs claims on appeal and our review of the unsigned transcript, we conclude that we have an adequate record for review.

       The plaintiff incorrectly filed a motion for articulation of the court’s decision in the trial court. See Practice Book § 66-5. Thereafter, the plaintiff filed a motion for permission to file late a motion for articulation in this court. This court denied the motion for permission to file late a motion for articulation.


author: PETERS, J.

text:
    JEAN-GUY LALLIER v. ZONING BOARD OF APPEALS OF THE TOWN OF STAFFORD ET AL.
    (AC 30408)
    Bishop, DiPentima and Peters, Js.

      Argued October 19, 2009
    officially released January 26, 2010

      Edward Muska, for the appellants (defendants).

      John H. Parks, for the appellee (plaintiff).
   Opinion

PETERS, J.

This case concerns the authority of a zoning board of appeals to reexamine the merits of an earlier order of a planning and zoning commission that had approved a landowner’s plan to improve his property for agricultural purposes by large scale removal of gravel from the property. The trial court upheld the landowner’s appeal, filed pursuant to General Statutes § 8-8, from the decision of the zoning board of appeals enforcing a cease and desist order forbidding him from pursuing a commercial sale of his gravel, and the zoning enforcement officer, the town and the zoning board of appeals have filed an appeal. They maintain that the court improperly concluded that (1) the underlying approval of the planning and zoning commission could not be collaterally attacked in a cease and desist order and (2) the agricultural operation of the plaintiffs land that was approved by the commission authorized the plaintiff to sell his gravel. We affirm the judgment of the trial court.

On June 13, 2007, the plaintiff, Jean-Guy Lallier, filed an appeal in the Superior Court from a decision of the defendant zoning board of appeals of the town of Stafford (zoning board) upholding a cease and desist order issued by the defendant Wendell Avery, the Stafford zoning enforcement officer, that restrained the plaintiff from removing gravel from his property at 257 Old Monson Road. The court rendered judgment sustaining the plaintiffs appeal. After obtaining certification to appeal, the defendants have appealed to this court.

The court’s memorandum of decision recites the undisputed factual and procedural background of the defendants’ appeal. On June 13, 2006, the planning and zoning commission of the town of Stafford (zoning commission) unanimously approved the plaintiffs request to remove 200,000 yards of earth material from approximately fourteen acres of his property located at 257 Old Monson Road in order to create hayfields and pastureland. Finding the proposed earth removal to be incidental to an agricultural operation as detailed in the plaintiffs engineer-designed site plan, the zoning commission approved his request without requiring him to apply for a special permit. The only condition attached to the zoning commission’s approval was a requirement that the plaintiff obtain permission from the town inland wetlands commission to move the excavated earth material through the designated wetland area of his property.

On November 15, 2006, the plaintiff obtained the required approval from the inland wetlands commission. That commission implicitly permitted him to move earth material through the wetland area of his property by approving his application “to widen his driveway to twenty-four feet to support the truck traffic for removal of 200,000 [yards] of material.”

No appeal was filed challenging the actions taken by the zoning commission or the inland wetlands commission granting the plaintiff the right to remove gravel from his property. The plaintiff thereafter expended substantial time and money improving his property to facilitate the removal of gravel.

On April 25, 2007, responding to concerns expressed by the plaintiffs neighbors about the impact of removing 200,000 yards of gravel from the plaintiffs property, the zoning commission decided that “the scope of the work being conducted has changed from an agricultural use to an earth removal operation, and is therefore outside the scope of the original approval.” Accordingly, the zoning commission instructed the zoning enforcement officer to issue a cease and desist order to the plaintiff. The plaintiff unsuccessfully appealed from the order of the zoning enforcement officer to the zoning board. On June 7, 2007, without stating the reason for its decision, the zoning board unanimously upheld the cease and desist order. The plaintiff then filed a timely appeal in the Superior Court.

Sustaining the plaintiffs appeal, the court came to two central conclusions adverse to the defendants. The court held that (1) the zoning commission did not have the authority to reconsider the merits of its June 13, 2006, approval of the plaintiffs land use plan once the time for appealing from that approval had expired and (2) the zoning board’s decision to affirm the zoning commission’s ruling that the plaintiff had exceeded the scope of the authority conferred on him by the original approval was not supported by substantial evidence in the record. The defendants have challenged both rulings. We are not persuaded.* ***

I

LEGALITY OF THE JUNE 13, 2006 ORDER OF THE ZONING COMMISSION

In their brief to the trial court, the defendants argued that the authority conferred on the plaintiff by the zoning commission’s June 13, 2006 approval of his application for the agricultural operation on his property did not encompass authorization for the commercial sale of his gravel. They argued that the plaintiff could not rely on this approval because (1) the zoning commission should have required the plaintiff to apply for a special use permit, which requires a public hearing and a sign on the premises, and (2) the zoning commission should have found that the plaintiffs proposed use of the property was not “agricultural.” The plaintiff argued to the contrary.

The court declined to address the merits of the defendant’s attack on the lawfulness of the June 13, 2006 approval. Relying on the undisputed fact that no appeal had been taken from that approval, it stated that “[t]he issue before the court is framed by the cease and desist order issued to the plaintiff . . . .’’It noted, furthermore, that, because General Statutes § 8-28 requires publication of a zoning commission’s decision within fifteen days, the commission “only had fifteen days in which to reconsider its decision . . . [and] could not have legally reconsidered its decision ... by issuing a cease and desist order approximately ten months later.” In the context of this latter statement, the court observed that “[t]here is no evidence in the record concerning the publication of the June 13, 2006 decision

In their appeal to this court, the defendants renew their challenges to the validity of the June 13, 2006 decision of the zoning commission. Because these challenges raise questions of law, their claims are entitled to plenary review in this court. Gibbons v. Historic District Commission, 285 Conn. 755, 761, 941 A.2d 917 (2008).

For two independent reasons, the defendants claim that the merits of the zoning commission’s approval of the plaintiffs application are reviewable by this court because that approval was void. They maintain that the decision of the zoning commission may be collaterally attacked because the commission (1) failed to publish its decision in violation of General Statutes § 8-3 (d) and (2) exceeded its statutory authority in rendering its decision. We are not persuaded by either claim.

A

Concededly, numerous Connecticut cases hold that to protect a disaffected party’s right of appeal, a zoning commission’s failure to publish notice of its decision as required by General Statutes § 8-28 is a jurisdictional defect that makes the commission’s decision void. Wilson v. Planning & Zoning Commission, 260 Conn. 399, 405, 796 A.2d 1187 (2002); Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 387, 311 A.2d 77 (1972). The defendants argue that those precedents govern this case because, as the court noted in its memorandum of decision, the record does not establish the publication of the zoning commission’s June 13, 2006 decision.

The defendants’ argument assumes, however, that failure to publish notice is established by showing a failure to include a notice of publication in the return of record. They cite no authority for this proposition. Indeed, Cardoza v. Zoning Commission, 211 Conn. 78, 85, 557 A.2d 545 (1989), is directly to the contrary. In Cardoza, our Supreme Court, although recognizing the general principle requiring publication of notice, held that “the failure to allege the fact and date of publication is . . . not a jurisdictional defect . . . .” (Emphasis added.) Id. In light of that holding, we conclude that the absence from the record of a copy of the notice and the date of publication of the commission’s decision does not render that decision void.

B

Alternatively, the defendants argue that the court should have addressed the merits of their claim that the June 13,2006 decision improperly granted the plaintiff a conditional approval of his agricultural plan because, in their view, the zoning commission had no authority to grant such an approval. They cite Cristofaro v. Burlington, 217 Conn. 103, 584 A.2d 1168 (1991), and Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 545 A.2d 530 (1988), for the proposition that Connecticut courts, characterizing such claims as jurisdictional, have authorized an indirect review of their merits in an appeal from a cease and desist order.

The defendants fail to acknowledge, however, that our Supreme Court more recently has held that, as a general rule, litigation about the merits of a cease and desist order does not permit a collateral attack on the validity of the underlying zoning decision that was not challenged at the time that it was made, even if the collateral attack is on jurisdictional grounds. “In Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992), [our Supreme Court] reaffirmed and applied the general rule that one may not institute a collateral action challenging the decision of a zoning authority. [It] stated that the rule requiring interested parties to challenge zoning decisions in a timely manner rest[s] in large part ... on the need for stability in land use planning and the need for justified reliance by all interested parties—the interested property owner, any interested neighbors and the town— on the decisions of the zoning authorities.” (Internal quotation marks omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 767, 806 A.2d 1020 (2002). Although our Supreme Court also has noted a collateral attack may be justified in “exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy,” the defendants have not endeavored to make such a showing in this case. (Internal quotation marks omitted.) Id., 768.

In light of these more recent Supreme Court precedents, the trial court in the present case properly declined to address the merits of the defendants’ disagreement with the zoning commission’s June 13, 2006 approval of the plaintiffs agricultural proposal. It follows that the defendants cannot succeed in their claim that the plaintiffs development of his property was improper, from the outset, because he failed to apply for a special use permit.

II

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CEASE AND DESIST ORDER

The defendants’ alternate claim for reversal of the judgment of the trial court challenges the propriety of the court’s conclusion that the evidence of record before the zoning board did not support the board’s decision that the plaintiffs proposed sale of 200,000 yards of earth material from his property was improper because the plaintiff had expanded the use of his property “in such a manner as to bring it outside the scope of the original approval.” We disagree with this claim as well.

Because the zoning board did not articulate the findings on which it based its cease and desist order, the court properly searched the record to ascertain the basis for the board’s decision. See Protect Hamden/ North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544-45, 600 A.2d 757 (1991). Furthermore, the court properly acknowledged that its review of the board’s decision to uphold the cease and desist order was limited to a determination of whether the record contained substantial evidence to support that order. See Hei-thaus v. Planning & Zoning Commission, 258 Conn. 205, 223-24, 779 A.2d 750 (2001). Notwithstanding this deferential standard, the court sustained the plaintiffs appeal.

The standard of review for our consideration of a trial court’s determination that a zoning board’s order had no evidentiary support in the record is well established. Our obligation, like that of the trial court, is “to search the record for a basis upon which to uphold the [zoning board’s] decision.” Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 545.

At the outset, we note that, in their appeal to this court, the defendants have bifurcated their disagreement with the trial court by arguing that the evidence presented to the zoning board demonstrated that the plaintiff improperly (1) was conducting a commercial earth removal operation without a special use permit and (2) had expanded the use approved by the zoning commission from an agricultural operation to a commercial earth removal operation. We are not persuaded that the record supports such a bifurcation. As the plaintiff reminds us, at the zoning board hearing, the zoning enforcement officer acknowledged that the zoning commission’s June 13, 2006 decision determined that “the [plaintiffs] use was an agricultural use and did not require the submittal of a formal site plan application.” We agree with the plaintiff that this acknowledgment is inconsistent with the defendants’ present claim that the plaintiff was required to submit an application for a special use permit. Like the trial court, we will therefore limit our examination of the factual basis for the plaintiffs appeal to an inquiry into whether the evidence before the zoning board established that the plaintiff had expanded his operation of his property beyond the scope of the agricultural operation that was authorized in 2006.

The court undertook its examination of the record before the zoning board by comparing the terms of the zoning commission’s approval of the plaintiffs earth removal request with the evidence of record that was adduced to support the cease and desist order. Without challenging the propriety of the court’s inquiry, the defendants challenge the validity of the court’s determination that this comparison did not establish a basis for the zoning board’s cease and desist order.

The court first noted that the zoning commission’s June 13, 2006 approval placed no restrictions on the plaintiffs removal of 200,000 yards of earth material from his property other than requiring him to obtain permission from the inland wetlands commission to move this material through the wetland area of his property and prohibiting him from crushing the material on site. The site plan clearly indicated the existing gradations in the property and the future gradations to be achieved thereafter. The plan depicted the soil erosion controls to be implemented and the phases of the removal. The inland wetlands commission’s subsequent approval expressly authorized the plaintiffs proposal to move these 200,000 yards of earth material through the wetland area of his property. Recognizing the implications of such an extensive removal of earth material, the inland wetlands commission expressly approved the plaintiffs application to widen his driveway by twenty-four feet to support the anticipated truck traffic.

After receiving these regulatory approvals, the plaintiff followed the site plan by installing the requisite soil erosion controls on his property, such as the silt fencing and a retention pond, and by beginning phase one. The plaintiffs conduct was entirely consistent with his avowed intention to remove the earth material from his property to create pastureland for his horses.

The defendants nonetheless maintain that the extent of the plaintiffs gravel removal operations demonstrates that, rather than engaging in an activity incidental to an agricultural operation, the plaintiff was engaged in conducting a commercial earth removal operation for which he did not have the requisite permit.

The defendants cite evidence that the plaintiff had (1) widened his driveway, (2) contracted to sell the removed earth material to a road construction company and (3) applied for a rock crushing permit. However, in light of the wetland commission’s express approval of the widening of the plaintiffs driveway and the commission’s denial of the plaintiffs application for a rock crusher, the centerpiece of the board’s case against the plaintiff, at trial and in this appeal, is the proposed sale of the excavated earth materials to a commercial buyer.

Addressing this central issue, the court determined that the plaintiff had not exceeded the scope of the zoning commission’s approval by hiring a commercial contractor to perform the removal of the exact amount of earth material that had been contemplated from the outset. The defendants cannot complain, and do not argue, that the amount of earth material to be removed from the plaintiffs property exceeded the 200,000 yards originally approved for removal. The court held that the existence of a temporary commercial aspect to the plaintiffs endeavor to create pastureland and hay fields on his property did not by itself indicate that the plaintiffs use had changed from an agricultural earth removal operation incidental to agricultural use to a commercial earth removal operation. See Viggiano v. Cocchiola, Superior Court, judicial district of Waterbury, Docket Nos. CV-02-0172243 and CV-02-0170152 (September 12, 2002) (holding sale of excavated material to be incidental to excavation allowed pursuant to approved site plan).

The defendants argue nonetheless that, whatever the history of the plaintiffs land use approval might be, the zoning board retained the authority to decide that the scope of the local disruption engendered by the removal of 200,000 yards of material for sale to a commercial contractor was too great to be characterized as an authorized incidental aspect of the plaintiffs agricultural operation. We are not persuaded.

The defendants’ analysis founders in this court, as it did in the trial court, on their failure to acknowledge the scope of the approvals that the plaintiff obtained from the zoning commission and the inland wetlands commission. Those approvals fully disclosed the plaintiffs intent to turn his property into grazing lands for his horses by removing the precise amount of gravel that he now proposes to remove and to sell. To this day, there is no claim that the plaintiffs submissions were in any factual respect inaccurate or misleading. There is similarly no claim that either commission, directly or indirectly, limited the manner in which the plaintiff might dispose of his gravel. The defendants have provided no evidentiary support for their implicit contention that removal of this gravel by means of a sale to a commercial buyer is more disruptive to the plaintiffs neighbors than any other form of removal would be.

It may well be that activities with such a potential for adverse community consequences should not have been given blanket approval by the two commissions charged with such oversight. The remedy for improper approvals, if indeed they were improper, was a timely appeal. As the trial court held, the time for that has long passed.

In sum, we affirm the judgment of the trial court that (1) the zoning board did not have the authority to enter a cease and desist order that sought collaterally to challenge the propriety of unappealed approvals obtained by the plaintiff from the zoning commission and the inland wetlands commission and (2) the record before the zoning board did not support its determination that the plaintiffs proposed sale of his gravel to a commercial buyer exceeded the scope of the approvals for the removal of excavated earth material that the plaintiff previously had obtained from the zoning commission and the inland wetlands commission.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals . . . .”

       In the course of the discussion before the zoning board, the zoning enforcement officer acknowledged that the zoning commission’s June, 2006 decision approving the plaintiffs request was procedurally proper.

       In the defendants’ brief in the trial court, they conceded that “the . . . zoning commission may have acted in such a way as to lead the plaintiff to believe he could remove 200,000 [yards] of material from the property without an earth removal permit. Furthermore, we can concede that he changed his position in reliance therefor.” They nonetheless faulted the plaintiff for not having exercised due diligence because he failed to undertake an independent inquiry into the earth removal requirements of the Stafford zoning regulations.

         The cease and desist order provided: “(1) The [cjommission has determined that the increased truck traffic associated with the removal of gravel from your site is hazardous to traffic traveling along the Old Monson [Road]; and

        “(2) The [cjommission has further determined that the scope of the work being conducted has changed from an agricultural use to an earth removal operation, and is therefore outside the scope of the original approval.
      “Therefore, as a result of the foregoing, I am issuing you this [c]ease and [djesist [o]rder, and I am hereby ordering you to immediately discontinue the removal of any gravel from your property on Old Monson [Road].
      “The [c] ommission has indicated that in order to continue with the removal of any gravel from the property you will have to apply for an earth removal permit. This cease and desist order shall remain in effect until an earth removal permit has been granted by the [c]ommission.”

       The plaintiff did not file a cross appeal to challenge the court’s rulings that were adverse to him. In these rulings, the court rejected the plaintiffs claims that the zoning board (1) was required to state the reasons for its decision on the record, (2) had no authority to issue a cease and desist order in this case and (3) had illegally and arbitrarily applied a different standard to his case than that applied to his neighbors’ cases.

       General Statutes § 8-28 provides: “Notice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Any appeal from an action or decision of a planning commission shall be taken pursuant to the provision of section 8-8.”

       General Statutes § 8-3 (d) provides in relevant part: “Zoning regulations or boundaries or changes therein shall become effective at such time as is fixed by the zoning commission, provided a copy of such regulation, boundary or change shall be filed in the office of the town . . . clerk . . . and notice of the decision of such commission shall have been published in a newspaper having a substantial circulation in the municipality before such effective date.”

       No argument of failure to publish the notice of the zoning commission’s decision was raised before the trial court. Accordingly, the trial court made no finding as to when and if notice was published. Our appellate review is limited to facts of record. Solano v. Calegari, 108 Conn. App. 731, 742, 949 A.2d 1257, cert, denied, 289 Conn. 943, 959 A.2d 1010 (2008).

       For an example of a case meeting the Supreme Court’s “very high standard,” see Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 150-51, 763 A.2d 1011 (2001) (violation of public policy against restraints on alienation).

       The day following this approval, the zoning enforcement officer wrote to the inland wetlands commission to inquire whether this approval “took into consideration the large gravel operation that [the plaintiff] proposed to the . . . [c]ommission.” The letter specifically referenced “the 200,000 yards of gravel to be trucked off site through his driveway.”

       The court observed that there was no evidence that the plaintiff had performed any rock crushing on site.


author: SCHALLER, J.

text:
    CHARLES J. BARANOWSKI, JR. v. SAFECO INSURANCE COMPANY OF AMERICA ET AL.
    (AC 30003)
    Beach, Robinson and Schaller, Js.

      Argued September 21, 2009
    officially released January 26, 2010

      Eddi Z. Zyko, for the appellant (plaintiff).

      Joseph T. Sweeney, with whom, on the brief, was Brian J. Gedicks, for the appellee (defendant Sundel & Milford, Inc.).
   Opinion

SCHALLER, J.

The plaintiff, Charles J. Baranowski, Jr., appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant Sun-del & Milford, Inc. On appeal, the plaintiff claims that the court improperly (1) declined to instruct the jury that expert testimony was not required to apply the law and (2) granted the defendant’s motion to preclude the testimony of an expert witness. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. In March, 1998, the plaintiff met with Kathy Milford, an agent of the defendant, to procure personal automobile insurance. Milford explained to the plaintiff each type of coverage available and the limit amounts. Milford discussed with the plaintiff uninsured and underinsured motorist coverage, including underinsured motorist conversion coverage. Underinsured motorist conversion coverage is a type of underinsured motorist coverage. See General Statutes § 38a-336a. “This option, which is available for an additional premium to consumers who wish to purchase it in lieu of standard underin-sured motorist coverage under § 38a-336, provides enhanced protection to victims of underinsured motorists . . . .” Florestal v. Government Employees Ins. Co., 236 Conn. 299, 307, 673 A.2d 474 (1996) “[Unlike] coverage under § 38a-336, it is activated when the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person.” (Internal quotation marks omitted.) Id. In contrast to traditional underinsured motorist coverage, underinsured motorist conversion coverage is not reduced by the amount of any payment received by or on behalf of the tortfeasor or a third party. Compare General Statutes §§ 38a-336 (b) to 38a-336a (c). The plaintiff elected the standard underinsured motorist coverage with bodily injury liability of $100,000 for each person and $300,000 for each accident. Milford then prepared an insurance application form with the coverages the plaintiff elected. The plaintiff and Milford signed the insurance application, which then was submitted to Safeco Insurance Company of America (Safeco Insurance). Safeco Insurance issued an automobile insurance policy pursuant to the application. The plaintiffs insurance policy automatically renewed every six months. Milford testified that she did not discuss underinsured motorist conversion coverage with the plaintiff after the initial meeting.

On February 3, 2001, the plaintiff was involved in an automobile accident. In his complaint, the plaintiff alleged that he sustained injuries and other damages exceeding $500,000. The driver of the vehicle who caused the accident (tortfeasor) was insured by Travelers Property Casualty (Travelers). The plaintiff recovered $50,000 from the tortfeasor’s insurance carrier for the injuries he sustained. The plaintiff then submitted a claim to Safeco Insurance to collect on the underin-sured motorist coverage provided by his policy. The plaintiff did not have underinsured motorist conversion coverage. Safeco Insurance ultimately paid the plaintiff $35,000 on the underinsured motorist claim. Thereafter, the plaintiff brought an action against the defendant, claiming negligence and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The action was based on allegations that the defendant failed to offer underinsured motorist conversion coverage to the plaintiff or to ensure that he knowingly rejected it after being fully and fairly informed.

I

The plaintiff first claims that the court improperly declined to instruct the jury that expert testimony was not required for the jury to determine whether the defendant complied with § 38a-336a in offering the plaintiff underinsured motorist conversion coverage. Specifically, the plaintiff argues that the court improperly declined to adopt his proposed instruction that “[ujnderinsured motorist conversion coverage is a relatively straightforward inquiry that is not manifestly beyond the ken of the average trier of fact.” We disagree.

“We first set forth the well established standard of review for a challenge to the propriety of a jury instruction. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [W]e must determine whether the jury instructions gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 23-24, 961 A.2d 1016 (2009).

The plaintiff argues that the court should have instructed the jury as follows: “Expert testimony is required only when a disputed matter is manifestly beyond the ken of the average trier of fact, be it judge or jury. . . . The issues before the court involved . . . § 38a-336a. Underinsured motorist conversion coverage, and the defendant’s compliance therewith. This statute requires that [e]ach insurer licensed to write automobile liability insurance in this state shall offer, for an additional premium, underinsured motorist conversion coverage with limits in accordance with [§] 38a-336. Whether the defendant in fact complied with that requirement is a relatively straightforward inquiry that is not manifestly beyond the ken of the average trier of fact.”

The plaintiff argues he was entitled to this jury instruction pursuant to Michalski v. Hinz, 100 Conn. App. 389, 404-405, 918 A.2d 964 (2007). The plaintiffs reliance on Michalski is misplaced. In Michalski, the defendant challenged on appeal the trial court’s denial of his motion for a directed verdict. Id., 404. He argued on appeal that “the plaintiffs could not establish aprima facie case of negligence without the aid of expert testimony.” Id. The issues before the court in Michalski involved boating regulations and the defendant’s compliance therewith. Id. Specifically, the question was whether “our boating regulations require the sounding of a horn when two vessels are approaching in a head-on situation.” Id., 404-405. This court, in response to the defendant’s argument, stated that “[ejxpert testimony is required only when a disputed matter is ‘manifestly beyond the ken of the average trier of fact, be it judge or jury.’ ” Id., 404.

In the present case, the plaintiff has failed to explain why, on the facts of this case, he is entitled to such an instruction. Additionally, the court instructed the jurors that they were the sole triers of fact and that no testimony was binding on them. Absent evidence to the contrary, a jury is presumed to have followed the court’s instruction. See State v. Banks, 117 Conn. App. 102, 119, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1091 (2009). Furthermore, the plaintiff has not put forth any reason that the jury instructions given did not provide “the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues.” (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., supra, 112 Conn. App. 23. Accordingly, we conclude that the court did not abuse its discretion when it declined to give the plaintiffs requested charge.

II

The plaintiff next claims that the court improperly granted the defendant’s motion to preclude the testimony of his expert witness. Specifically, the plaintiff contends that the court improperly concluded that a licensed insurance agent who was not employed full-time as an insurance agent in Connecticut at the time the plaintiff applied for insurance was per se unqualified to give an opinion as to the standard of care applicable to licensed insurance agents in Connecticut at that time. We disagree.

The following additional facts are relevant to our resolution of the plaintiffs claim. Prior to trial, the plaintiff disclosed to the defendant a proposed expert witness, Kim Fiertz, who would testify as to how personal lines automobile insurance should be sold in Connecticut and how to document the selling of such insurance. Specifically, Fiertz was expected to testify that an agent should use a checklist when completing an application for automobile insurance and that the checklist should include whether the applicant had an opportunity to consider applying for certain coverage. By motion in limine, the defendant sought to preclude Fiertz from testifying on the ground that she was not qualified as an expert. Specifically, the defendant claimed, and the court found, that Fiertz did not know the standard of care applicable to licensed insurance agents in Connecticut in 1998.

During the hearing on the motion in limine, Fiertz testified that after she graduated from college, she completed the American Institute for Chartered Property Casualty Underwriter program. In 1980, Fiertz received her New York license to sell insurance. In 1990, Fiertz got a license to sell insurance in Connecticut as a nonresident. In 2001, Fiertz moved to Connecticut and converted her license to a resident license. She continued to work for an insurance agency based in New York. All the New York agencies Fiertz worked with used checklists to review client coverages. Fiertz admitted she had no knowledge as to how any Connecticut insurance agency might have dealt with this issue. Fiertz also testified that in New York, insurance agents routinely, on at least an annual basis, review coverages with the client and recommend upgrades. Fiertz admitted that she had no personal knowledge of the annual review standard being followed by any independent insurance agents in Connecticut.

From 1995 to 1997, Fiertz participated in insurance continuing education programs in New York. She testified that she was familiar with “idiosyncrasies” in Connecticut because of the continuing education courses. New York and Connecticut have reciprocity with respect to continuing education. Fiertz did not know whether Connecticut required continuing education before 2001. She further could not indicate whether the classes she took in New York specifically dealt with selling automobile insurance in Connecticut or dealt with Connecticut law.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. ... It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.” (Citations omitted; internal quotation marks omitted.) State v. Banks, supra, 117 Conn. App. 115-16; see also Conn. Code Evid. § 7-2.

The plaintiff contends that the court improperly concluded that a licensed insurance agent who was not employed full-time as an insurance agent in Connecticut at the time the plaintiff applied for insurance was per se unqualified to give an opinion as to the standard of care applicable to licensed insurance agents in Connecticut at that time.* The plaintiffs argument is based on the court’s statement: “Fiertz, who I do think could qualify as an expert, but not as an expert of what happened in the state of Connecticut in this particular field in 1998 . . . .” The record supports the court’s finding that Fiertz was precluded from testifying because she in fact did not know the applicable standard of care of insurance agents in Connecticut during the relevant time frame. We agree with the plaintiff that an expert’s “knowledge may be drawn from reading alone, from experience alone, or from both.” (Internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 806, 601 A.2d 1013 (1992). The plaintiff has failed to show, however, that Flertz acquired sufficient knowledge, either from reading, experience or course work, of the applicable standard of care in Connecticut in 1998. The record is clear that the court did not abuse its discretion in making this finding. Accordingly, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       Safeco Insurance Company of America also was named as a defendant in the plaintiffs complaint, but the plaintiff withdrew his claims against it prior to trial and it is not a party to this appeal. Accordingly, we refer in this opinion to Sundel & Milford, Inc., as the defendant.

       In the defendant’s answer, it admitted that it had a duty to offer underinsured motorist conversion coverage and it had a “duty to explain the coverage which was being offered in order to enable [the plaintiff] to make a knowing choice to purchase or reject purchasing that offered coverage.”

       General Statutes § 38a-336a entitled “Underinsured motorist conversion coverage,” provides: “(a) Each insurer licensed to write automobile liability insurance in this state shall offer, for an additional premium, underinsured motorist conversion coverage with limits in accordance with section 38a-336. The purchase of such underinsured motorist conversion coverage shall be in lieu of underinsured motorist coverage pursuant to section 38a-336.
      “(b) Such coverage shall provide for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of underinsured motor vehicles.
      “(c) Each insurer shall be obligated to pay to the insured, up to the limits of the policy’s underinsured motorist conversion coverage, after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements. If the insured purchases such underinsured motorist conversion coverage, then in no event shall the underinsured motorist coverage be reduced on account of any payment by or on behalf of the tortfeasor or by any third party.
      “(d) The selection of coverage under this section shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured.
      “(e) For purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person.
      “(f) The provisions of this section shall apply to all new and renewal policies issued on or after January 1, 1994.”
      This statute includes amendments pursuant to Public Acts 1994, No. 94-243, §§ 5 and 6.

       In the plaintiffs statement of issues, he states that “the court erred in failing to use [the] plaintiffs written supplemental request to charge (Docket Entry Number [146.00]).” The only issue briefed from the plaintiffs supplemental request to charge (docket entry number 146.00) is whether the court erred in declining to instruct the jury that an expert witness is not required to decide the issue. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) State v. Holloway, 117 Conn. App. 798, 819 n.14, 982 A.2d 231 (2009). We therefore decline to review any other portion of the plaintiffs written supplemental request to charge (docket entry number 147.00) because it was briefed inadequately.

       In the court’s instructions to the jury regarding expert witnesses, the court stated: “[Ejxpert witnesses are allowed to give their opinions. Ordinarily, a witness cannot give an opinion about saying anything but, rather, is limited to testimony as to the facts in that witness’ personal knowledge. The experts in this case have given opinions. However, the fact that these witnesses may qualify as experts does not mean that you have to accept their opinions. You can accept their opinions or reject them. . . . You may believe all, some or none of the testimony ol' an expert, witness. In other words, an expert’s testimony is subject to your review like that of any other witness.”

       The plaintiff also claims that this court should adopt a national standard of care in evaluating the qualifications of an insurance agent. The plaintiff raises this claim for the first time in his reply brief in response to the defendant’s characterization of his arguments in his original brief. “It is well established . . . that [cjlaims . . . are unreviewable when raised for the first time in a reply brief. . . . Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” (Internal quotation marks omitted.) SS-II v. Bridge Street Associates, 293 Conn. 287, 302, 977 A.2d 189 (2009). Accordingly, we decline to review this claim.

       The court gave Fiertz the opportunity to examine the insurance application, and Fiertz testified that if she had been writing this insurance application, she would have had a checklist that included all of the coverages being offered. Specifically, Fiertz faulted the defendant because “there [was] no indication on this application whether they saw or discussed uninsured motorist coverage or not.” The application did not indicate whether the plaintiff was offered and refused undermsured motorist conversion coverage.

       The court specifically asked Fiertz whether she could testify as to the proper procedures in an agency in Connecticut when interviewing or reviewing a client’s automobile insurance needs. Fiertz responded: “I did run a New York City agency, and we had many Connecticut clients, and the procedures that we followed were really national procedures, sort of dictated by consultants, as well as by our—carriers and by course work that I had taken. So, I can clearly describe the proper procedures.”

       Specifically, in response to a question of how Fiertz gained her knowledge about the practices for selling insurance in Connecticut, she testified: “Common insurance practices are common in every state, so by taking continuing education, by going to seminars, by taking [classes with the American Institute for Chartered Property Casualty Underwriters], I acquired the knowledge of the proper procedure for selling insurance and that’s applicable not just to New York, New Jersey, Connecticut, California, Florida, wherever else I had sold insurance over my career.”

       Section 7-2 of the Connecticut Code of Evidence provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

       We note that the plaintiffs reliance on Grondin v. Curi, 262 Conn. 637, 817 A.2d 61 (2003), for this proposition is misplaced. In Grondin, the issue before the court was “whether the trial court properly concluded that an expert witness, testifying about the applicable standard of care in a medical malpractice action, must be board certified at the time of the alleged malpractice in order to qualify as a ‘similar health care provider’ under General Statutes § 52-184c (c) and (d).” Id., 638. The court reasoned that the statute does not require board certified experts to have gained their knowledge by any particular method, such as from practice or experience, nor at any particular time. Furthermore, the court stated that “the fundamental requirement [is] that an expert testifying about the standard of care must know what that standard of care is in a particular situation. . . . Medical expert witnesses have long been permitted to acquire their knowledge of the applicable standard of care via study as well as by experience.” (Citation omitted.) Id., 656. The court concluded that “§ 52-184c (d) does not, as a matter of law, preclude a board certified physician, otherwise knowledgeable as to the applicable standard of care, from testifying as an expert similar health care provider, solely because the physician was not board certified at the time of the alleged malpractice.” (Internal quotation marks omitted.) Id., 657. Insurance is a highly regulated industry by state, so the standard of care varies from state to state. On the contrary, medical care has moved from a statewide standard of care to a national standard of care, free of geographic limitations. Id., 652 n.16.

       The court further stated: “But the standard of care, I guess, has to be that ordinarily possessed and exercised by the professional insurance agents in Connecticut in like circumstances during the relevant time frame, and that maybe after she became a full-time broker, resident broker here, but even—maybe even that—maybe from then on, but certainly not in 1998 as a nonresident broker who did not know the standards of skill, care and diligence ordinarily possessed and exercised by professional insurance agents in Connecticut.”

       The following colloquy occurred between the court, counsel and Fiertz:
      “ [The Defendant’s Counsel]: But basically, if you’re going to let her contaminate this jury with her beliefs as to what the standards should be rather than what they are in Connecticut, I’m afraid this may turn out to be a misadventure. I’m suggesting] to Your Honor and I’m asking Your Honor to consider the fact, she has admitted she has no knowledge to what’s in fact done. . . .
      “She has knowledge of what has been taught in courses, but she doesn’t have knowledge of what’s actually done. It’s a difference between what is taught and what is practiced, and therein lies the difference and the standards that our Connecticut court system have established are the standards of skill, care and diligence ordinarily possessed and ordinarily exercised by like professionals and like circumstances.
      “Now, she knows what she has been told in courses—this is the way it should be. What it should be and what is actually being done are not necessarily the same, and to allow her to testify in front of this jury, I think, would contaminate the whole decision-making process here, and I ask Your Honor to reflect on that, and—not to allow her to testify because I think it can contaminate. We know that national standards do not apply in the insurance industry. . . .

        “The Court: [Plaintiffs counsel], how do you get around this. You heard it all. . . .
      “[The Plaintiffs Counsel]: Well, Your Honor, first off, it’s bald misstatement about lacking knowledge. She has—that knowledge is based upon a recognized source through continuing education. That continuing education is required—
      “The Court: No, that started in 2001, so don’t bring up that.
      “[The Plaintiffs Counsel]: Well—well, Your Honor, she had continuing education in—in New York, also.
      “The Court: That has nothing to do with Connecticut.
      “[The Plaintiffs Counsel]: Well, she testified just the opposite, Your Honor, She testified that—that it did have a great deal to do with Connecticut. She did testify that, and—
      “The Court: Yes, what’s that, ma’am? What is he talking about? You had continuing education in New York?
      “[The Witness]: I—I had continuing education in New York to maintain my New York license.
      “The Court: Right.
      “[The Witness]: And those courses were attended by—by—
      “The Court: Well, I don’t care about that. No. I’m just saying what—what’s that [to] do with Connecticut?
      “[The Witness]: What did it have—I think—
      “The Court: You don’t know.
      “[The Witness]: I’m—I’m not sure.
      “The Court: All right. Thank you.
      “[The Witness]: I’m not exact—
      “The Court: Thank you.
      “[The Plaintiffs Counsel]: Well, didn’t you, in those continuing educations back in the 90s in New York have subject matter that dealt with selling automobile insurance in Connecticut?
      “The Court: She never testified to that.
      “[The Witness]: It—I—I don’t know. I don’t recall.
      “[The Plaintiffs Counsel]: Dealing with Connecticut law?
      “[The Witness]: I don’t—that I don’t recall—
      “[The Plaintiffs Counsel]: Okay.
      “[The Witness]:—specifically, no.
      “[The Plaintiffs Counsel]: Okay.
      “The Court: All right. So, I guess I’m not going to be able to let her testify. . . . I don’t see how I can allow it, counsel.”


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. OSCAR L. ANDERSON
    (AC 30388)
    Flynn, C. X, and Lavine and Beach, Js.
    Argued December 11, 2009
    officially released January 26, 2010

      Oscar L. Anderson, pro se, the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were John A. Connelly and Gail P. Hardy, state’s attorneys, and Kevin C. Doyle, senior assistant state’s attorney, for the appel-lee (state).
   Opinion

FLYNN, C. J.

The self-represented defendant, Oscar L. Anderson, appeals pro se from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the probationary period attached to his sentence for his conviction on the charge of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (1) is illegal. Specifically, he claims that the court could not impose any period of probation in addition to imposing the maximum sentence on that charge and that, in imposing a ten year suspended sentence and ten years probation, the court in essence gave him a total effective sentence of twenty years on the risk of injuiy charge. Although the defendant misunderstands the total effective sentence imposed, in that the effective sentence is not twenty years, in exercising our plenary review, we agree with the state’s concession that the defendant lawfully could not be sentenced to more than ten years imprisonment and five years probation on the risk of injury charge. After reviewing the relevant statutory scheme, we conclude that the defendant’s sentence is illegal, and, accordingly, we reverse the judgment of the trial court.

The relevant facts and procedural history are as follows. The defendant was charged in a three count long form information with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of § 53-21 (a) (1). After being tried by a jury, the defendant was convicted of one count of sexual assault and risk of injury to a child. The court, Hartmere, J., sentenced the defendant to a term of eighteen years incarceration on the sexual assault charge and to a consecutive term of ten years, execution suspended, with ten years probation, on the risk of injury charge. Following the affirmance of his conviction on direct appeal; see State v. Anderson, 86 Conn. App. 854, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005); the defendant filed a motion to correct an illegal sentence, claiming that his sentence on the risk of injury charge exceeded the statutory maximum sentence. He argued that the maximum sentence permitted on the risk of injury charge was ten years and a $500 fine. He disputed that the court could sentence him to ten years probation in addition to his suspended sentence. The defendant requested and was granted appointed counsel pursuant to State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007), but, after reviewing the defendant’s claim, counsel concluded that it was without merit, and the court permitted counsel to withdraw from the matter. The defendant requested the appointment of a second attorney to conduct another Casiano review, but the court denied his request, and the defendant proceeded to represent himself. After a hearing on the defendant’s motion to correct an illegal sentence, the court, Fasano, J., denied the motion, concluding that the defendant’s sentence was not illegal. This appeal followed.

The defendant challenges his sentence only on the risk of injury charge, arguing that it exceeds the statutory maximum because if he were to violate his probation, he would be facing the entire unexecuted portion of the ten year sentence and that, therefore, it has the effect of a twenty year sentence. Thus, he argues that the court could not sentence him to a period of probation in addition to the ten year maximum penalty on the charge. The state concedes on appeal that the sentence is illegal, not as the defendant claims, but because the maximum probationary period set forth by statute is five years in addition to the period of imprisonment. Reviewing the sentence and the relevant statutes, we conclude that the defendant’s sentence violates General Statutes (Rev. to 2001) § 53a-29 (d) because the maximum length of a probationary term for the class C felony of risk of injury to a child, in violation of § 53-21 (a) (1), is five years, not the ten year probationary term that was imposed. Accordingly, the defendant’s sentence is illegal, and we reverse the court’s judgment and remand the case for resentencing.

“Practice Book § 43-22, which provides the trial court with [the] authority [to correct an illegal sentence], provides that [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner. An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . [Our Supreme Court] previously ha[s] noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court.” (Citation omitted; internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 534, 902 A.2d 1058 (2006), on appeal after remand, 292 Conn. 417, 973 A.2d 74 (2009).

In this case, the defendant filed a motion to correct an illegal sentence, claiming that his sentence on the risk of injury charge exceeded the statutory maximum permissible sentence. Although a claim that the trial court improperly denied a defendant’s motion to correct an illegal sentence ordinarily is reviewed pursuant to the abuse of discretion standard, in the present case, the defendant’s claim presents a question of statutory interpretation; accordingly, our review is plenary. See id.

The following statutes are relevant to our review. General Statutes (Rev. to 2001) § 53-21 (a) 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 (Rev. to 2001) § 53a-35a provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ... (6) for a class C felony, a term not less than one year nor more than ten years . . . .”

General Statutes (Rev. to 2001) § 53a-29 (a) permits a trial court to sentence an individual “to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.” Subsection (d) of General Statutes (Rev. to 2001) § 53a-29 provides in relevant part: “The period of probation . . . shall be as follows: (1) For a felony, except as provided in subsection (e) of this section, not more than five years . . . .” Subsection (e) of General Statutes (Rev. to 2001) § 53a-29 provides in relevant part: “The period of probation . . . shall not be less than ten years nor more than thirty-five years for conviction of a violation of subdivision (2) of section 53-21. . . .”

In the present case, the defendant was charged and convicted, inter alia, of a violation of § 53-21 (a) (1); he was neither charged nor convicted of a violation of § 53-21 (a) (2). Accordingly, pursuant to § 53a-29 (d) (1), the maximum period of probation was not more than five years on the § 53-21 (a) (1) conviction. The defendant’s ten year probationary period on the charge of risk of injury under subdivision (1) of subsection (a) of § 53-21 exceeds the statutory maximum permissible probationary period and is illegal. The case, therefore, must be remanded for resentencing.

“[W]hen a case involving multiple convictions is remanded for resentencing, the trial court is limited by the confines of the original sentence in accordance with the aggregate package theory set forth in State v. Raucci, [21 Conn. App. 557, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990)], and later adopted by [our Supreme Court] in State v. Miranda, [260 Conn. 93,127-30, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002)]. In Miranda, [our Supreme Court] recognized that the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety. More significantly, the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court’s sentencing intent. State v. Miranda, supra, 129, quoting State v. Raucci, supra, 562. Accordingly, the [resentencing] court’s power under these circumstances is limited by its original sentencing intent as expressed by the original total effective sentence .... It may, therefore, simply eliminate the sentence previously imposed for the vacated conviction, and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the sentence for the vacated conviction. The guiding principle is that the court may resentence the defendant to achieve a rational, coherent [sentence] in light of the remaining convictions, as long as the revised total effective sentence does not exceed the original.” (Internal quotation marks omitted.) State v. Tabone, 292 Conn. 417, 427-28, 973 A.2d 74 (2009).

On remand, the court may resentence the defendant solely on the risk of injury charge to the same ten year suspended sentence with any period of probation of five years or less, or, under the aggregate package theory, the court may restructure the defendant’s sentence on both of the charges in order to effectuate its original sentencing intent.

The judgment is reversed and the case is remanded for resentencing in accordance with law.

In this opinion the other judges concurred.

       The defendant was acquitted of the remaining charge of sexual assault in the first degree.