author: PELLEGRINO, J.

text:
    ALISON NOLAN ET AL. v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (AC 19213)
    Foti, Mihalakos and Pellegrino, Js.
    Argued June 5
    officially released September 19, 2000

      Deborah L. Bradley, for the appellant (defendant).

      Max F. Brunswick, with whom were Christian L. DiPentima and, on the brief, Herbert Watstein, for the appellees (plaintiffs).
   Opinion

PELLEGRINO, J.

The defendant, Nationwide Mutual Insurance Company, appeals from the judgment rendered following a jury trial in favor of the plaintiffs, Alison Nolan and Gary Nolan, in this action to recover underinsured motorist benefits for personal injuries arising from an automobile accident. The defendant claims that the trial court improperly commented on the evidence to the jury. We agree with the defendant and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On June 13, 1992, Alison was in an automobile accident in which she claimed that she injured her left knee on the dashboard of the vehicle in which she was driving. Shortly after the accident, Alison was transported to a hospital emergency room for treatment. The emergency room report contained no notes of Alison striking her knee, nor were any X rays taken of her knee. She did, however, have a small laceration of her knee that was treated.

During the two year and five month period following the accident, Alison did not seek treatment for her claimed knee injury. Thereafter, in 1994 and 1995, she was treated for a left knee condition and had three arthroscopic surgeries. In 1995, the plaintiffs brought this action against the defendant, their insurer, seeking damages under the underinsured and uninsured motorist provisions of their insurance contract with the defendant.

Alison’s orthopedic physician testified that the knee injury was causally connected to the 1992 accident. The defendant’s expert physician performed an examination of Alison before and after the surgeries. The expert testified that the knee injury was not caused by the 1992 accident.

At trial, the defendant did not contest either the liability of the tortfeasor, Steve Dionne, or the question of coverage. The contested issues concerned only the question of proximate cause of the claimed injuries, particularly, whether Alison’s knee injury and subsequent surgeries were causally related to the accident.

After the jury began its deliberations following the conclusion of the court’s initial instructions, it submitted a question to the court regarding whether it was the jury’s responsibility to determine that the motor vehicle accident was the primary cause of the present injury or a contributory factor to Alison’s injury. The court responded to that question by rereading its charge on proximate cause. The court then asked the jury whether its question was answered. At least one member of the jury responded that it had not been answered, at which point the court stated: “I am departing from the [jury] charge here. . . . The question is were the three surgeries proximately caused by the accident and the answer, if you find, and I am not telling you to find this because that is up to you .... I am not telling you that these surgeries came about as a result of the accident, but ... if you find that the surgeries came about as a result of the injuries sustained in the accident ....

“Now you have to make that finding. I am giving you my opinion which you do not—I am allowed to comment on the evidence, so I am going a little further than I did on the charge. You do not have to take my opinion, you can disregard it if you wish to, but it seems to me that the accident was the proximate cause of the initial injuries, and also the three surgeries were proximately caused by the motor vehicle accident. . . . It is clear to me anyway that if you didn’t have the motor vehicle accident, there would be no injuries .... [W]hat other cause was there of the injury other than the motor vehicle accident?”

A juror then stated: “Pre-existing condition perhaps.” The court responded by stating: “What we have is— the only evidence that I’ve heard is that she injured herself. The thing that comes to mind is the knee because of the softball. She claims she was fully recovered from that and there is no indication anywhere that she suffered a permanent disability, so you have to, therefore, assume that there was no permanent disability, condition existing as to her knee prior to this accident. Therefore, the entire 15 percent disability would be as a result of this accident.”

The court further stated: “The surgeries are another issue, at least in my opinion, because they stem from this accident .... There is no indication of a prior permanency, at least there has been no testimony to it, so you have to assume that there wasn’t any percentage of disability which would mean the whole 15 percent would be as a result of this accident.”

The jury was then excused, and the defendant objected to the court’s comments, stating: “You essentially told the jury that there was a causal relationship between this accident and the need for the surgeries. . . . The issue which I argued to the jury was the causal relationship between this accident and any condition in 1994 that then required her to have surgery. You just took the issue from the jury. You told them that there was a causal relationship in your opinion between the accident and the need for the surgeries. You’ve essentially directed a verdict on that issue. . . . You said that in your opinion, the motor vehicle accident was the proximate cause of the injuries and the surgeries. ... I take an exception to that portion of the charge that you just gave.”

The judge, thereafter, called the jury back into the courtroom and issued a curative instruction. The court stated in relevant part: “I’ve indicated my opinion .... You’re fully entitled to disagree with that opinion. I am not instructing you that you must decide this case in accordance with my opinion. I’ve given you my opinion, but—and there is a right and duty under the case law of the court to comment upon the evidence, which is what I thought I was doing . . . .”

The jury awarded the plaintiffs damages in the amount of $175,000, which included $32,142.39 in economic damages and $142,857.61 in noneconomic damages.

The sole issue on appeal is whether the court’s comments to the jury in response to a question it had submitted were improper, thus depriving the defendant of a fair trial. We agree with the defendant that the court’s comments improperly influenced the jury.

The defendant argued to the trial court, and also on appeal, that the opinion the trial judge expressed to the jury, that is, that the accident was the proximate cause if the injuries and the surgeries, essentially decided the issue for the jury. The defendant asserts that the plaintiffs failed to prove by a fair preponderance of the evidence that the surgeries were causally connected to the accident because there was a gap in treatment for two and one-half years, and that the jury, therefore, must have accepted the court’s opinion of causation. The plaintiffs argue that the court made it clear that its opinion was not binding on the jurors and that the court’s curative instruction was sufficient to overcome any undue influence that the court’s opinion may have had on the jurors. We agree with the defendant that it was improper for the court to express an opinion as to a critical element of the plaintiffs’ claim and that, in so doing, it deprived the defendant of a fair trial.

The jury’s role is well defined. “It is the province of the jury to resolve the facts and determine the credibility of the testimony.” State v. Dumlao, 3 Conn. App. 607, 615, 491 A.2d 404 (1985). “It is the jury’s right and duty to consider the evidence presented at trial and to draw reasonable inferences from that evidence. . . . The jury may accept or reject the testimony of any witness . . . and determines the weight to be given the evidence.” (Citations omitted.) State v. Cooley, 24 Conn. App. 489, 490-91, 589 A.2d 377, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). Proximate cause is a question of fact that is also within the province of the jury. “Conclusions of proximate cause are to be drawn by the jury and not by the court.” (Internal quotation marks omitted.) Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). Although the juiy is the factfinder and it is within the jury’s exclusive domain to decide issues on the basis of the facts that it finds, such as the issue of proximate cause, it is permissible for the court to make reference to the evidence. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989) (trial court has broad discretion to comment on evidence). It is certainly proper and in some instances the duty of the judge in a jury trial to comment on the evidence. State v. Delgado, 247 Conn. 616, 628, 725 A.2d 306 (1999) (“ ‘[a] trial court often has not only the right, but also the duty to comment on the evidence’ ”). “The purpose of marshaling the evidence by the trial judge is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Citation omitted; internal quotation marks omitted.) Id., 628-29. The trial court’s comments, however, must be neutral and unbiased so as not to influence the jury in any way from fulfilling its exclusive factfinding function.

The judge has an obligation to be neutral and unbiased because of the obvious position of influence that the judge has in a given case. “The trial judge occupies a unique position in the trial of a case. He is not a neutral observer of a forensic contest. His primary obligation is to see that justice is done. And yet in discharging this obligation he must remain fair and dispassionate, eschewing the role of an advocate. While he may indicate to the jury ... his opinion ... he must leave that question open to the jury. . . . [H]e should, in his instructions to the jury make it clear that his opinion was for their consideration but was not binding upon them. . . . [T]he judge must be most circumspect in what he says and does lest, inadvertently, his observations or his conduct prejudice the jury against one of the litigants. Ordinarily the jury have great respect for the trial judge and it is not difficult to understand how readily they are influenced by any suggestion coming from him, whether the suggestion be by word or by conduct.” (Citation omitted; internal quotation marks omitted.) Miller v. Drouin, 183 Conn 189, 192, 438 A.2d 863 (1981).

Because of the unique role of the trial judge and the potential he or she may have to exert influence over the jury, we must examine, in this case, whether the comments made by the trial judge were within permissible bounds. Our Supreme Court has given us some guidance. In a case in which the trial court’s instructions virtually eliminated the jury’s consideration of other relevant evidence, our Supreme Court found that the judge impermissibly invaded the jury’s function. Ladd v. Burdge, 132 Conn 296, 299-300, 43 A.2d 752 (1945). That case involved the issue of undue influence in a will contest where the trial court, in its instructions, stated that “the only evidence” that the jury had before it as to that issue concerned the circumstances immediately attached to the execution of the will, thereby eliminating from the jury’s consideration other relevant evidence. Our Supreme Court found that the court “practically told the jury how to decide disputed issues of fact and thus exceeded its power of comment on the evidence.” Id., 299.

In the present case, the trial court went a step further and told the jury how to decide the issue of proximate cause. We agree with the defendant that the opinion offered by the trial court so influenced the jury that it was unfairly persuaded to ignore any evidence tending to disprove causation, including consideration of other injuries and the fact that there was a two and one-half year period between the accident and any treatment of Alison’s knee. The opinion offered by the trial judge was prejudicial and deprived the defendant of a fair trial, and the curative instruction was not sufficient to overcome that prejudice. The damage was done once the seed was implanted in the jury’s mind and damage control at that point was ineffective.

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

In this opinion the other judges concurred.

       The plaintiff Alison Nolan, a minor, brought this action by and through her mother and next friend, Wendy Nolan. The plaintiff Gary Nolan, Alison’s father, also alleged a claim for damages.

       The question submitted by the jury was a foEows: “[I]s it our responsibEity to determine that the [motor vehicle accident] is the primary cause of injury today or is it a contributory factor to her injury?”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DANA INVESTMENT CORPORATION v. RICHARD SCHLESINGER ET AL.
    (AC 19314)
    Foti, Schaller and Peters, Js.
    Argued June 13
    officially released September 26, 2000

      Howard A. Lawrence, for the appellant (substitute plaintiff).

      Francis G. Pennarola, with whom, on the brief, was JohnB. Grant, Jr., for the appellees (defendant Crystal Bay Development, LLC, et al.).
   Opinion

PER CURIAM.

The substitute plaintiff, Quik-Power International Corporation, appeals from the judgment rendered by the trial court in this action to quiet title in favor of the defendant Crystal Bay Development, LLC. The plaintiff claims that the facts found by the trial court are clearly erroneous. We have fully reviewed the record and conclude that the facts found are adequately supported by the record, and that the trial court did not apply an improper rule of law. The issues regarding the underlying factual disputes were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. Dana Investment Corp. v. Schlesinger, 46 Conn. Sup. 527, 759 A.2d 161 (1998). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It could serve no useful purpose for us to repeat the discussion contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

“ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)].” (Internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “The function of this court on appeal is limited to determining whether the decision of the trial court is clearly err oneous. Practice Book § 4061 [now § 60-5]; State v. Spigarolo, 210 Conn. 359, 374-75, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).” State v. Alterisi, 47 Conn. App. 199, 204, 702 A.2d 651 (1997). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Con necticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997). We conclude, therefore, that the trial court’s findings of fact are not clearly erroneous.

The judgment is affirmed.

       Quik-Power International Corporation was substituted as plaintiff as an assignee of the named plaintiff Dana Investment Corporation.

       The defendants are Richard Schlesinger, William Weinstein, Mark David Associates, Crystal Bay Development, LLC, Poughkeepsie Savings Bank (Poughkeepsie), Pond View Village, LLC (Pond View), Bridgeport Oral and Maxillofacial Profit Sharing Plan (Bridgeport), Federal Deposit Insurance Corporation and Crystal Bay Limited Partnership. The trial court rendered judgment quieting title to the subject property in Crystal Bay Development LLC, subject to the mortgages in favor of Poughkeepsie, Pond View and Bridgeport.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. JIMMY CASTRO
    (AC 17410)
    Spear, Mihalakos and Zarella, Js.
    Argued February 28
    officially released September 26, 2000

      Richard Callahan, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Jimmy Castro, appeals from the judgment of conviction, rendered after a trial to the court, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21. He claims that the court improperly (1) failed to state whether it applied the standard of proof of beyond a reasonable doubt to assess the victim’s credibility where the victim’s testimony was the only evidence of the crimes, (2) failed to review the evidence from the victim with care and caution and (3) allowed prosecutorial misconduct by permitting the prosecutor to provide her own testimony through statements inserted into her cross-examination of a defense witness. We affirm the judgment of the trial court.

The court found the following facts. The defendant engaged in anal intercourse with the victim, a minor child, between October, 1992, and March, 1995, and, at the relevant times, the victim was under thirteen years of age. The defendant is twenty-two years older than the victim. The court found, beyond a reasonable doubt, that the defendant was guilty of two counts of sexual assault in the first degree and two counts of risk of injury to a child. This appeal followed.

I

The defendant’s first claim has two aspects. First, he asserts that where the state’s case turns on evidence from one witness, to convict a defendant the trier must find that the witness is credible beyond a reasonable doubt. Second, he asserts that because the court did not state the standard of proof that it used in assessing the victim’s credibility, the case must be remanded for a new trial. Neither claim was ever presented to the trial court.

We are not required to review claims that were not distmctlyxaisedattñal.BellAtlanticMobile, Inc. v.Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000); see also Practice Book § 60-5. The defendant does not seek review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 60-5. We, therefore, decline to review this claim.

II

The defendant’s second claim is that the court improperly failed to review the evidence given by the victim with care and caution. This is, in essence, nothing more than a claim that the evidence was insufficient to support his convictions. To support this claim, the defendant attacks the credibility of the victim and points out the strengths of the testimony presented by the defense.

It is axiomatic that this court does not assess the credibility of witnesses. It is not necessary for us to review the various inconsistencies and contradictions in the evidence as alleged by the defendant. “Such credibility issues are typical grist for the [trier of fact’s] mill.” State v. Smith, 46 Conn. App. 321, 326, 699 A.2d 262 (1997). We conclude that this claim is without merit.

Ill

The defendant’s final claim is that the prosecutor engaged in misconduct by providing her own testimony through statements that she made while cross-examining a defense witness. Specifically, he claims that during the cross-examination of a defense witness, the prosecutor assumed facts in her questioning that were not part of the evidence and, by doing so, expressed her personal opinion that the defense witness was not testi-lying truthfully. The defendant refers to seven pages of transcript in which the prosecutor, during her cross-examination of a defense witness, allegedly framed her questions in such a way that she appeared to be testifying that she and an investigator had had a conversation with the witness on a previous occasion and that the witness had given her information that was inconsistent with his testimony in court. The defendant did not object to the questions at trial and seeks review of his unpreserved claim of prosecutorial misconduct pursuant to State v. Golding, supra, 213 Conn. 239-40.

Even if we were to assume that the questions were improper, the defendant has not carried his burden of showing “a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotations marks omitted.) State v. Steed, 54 Conn. App. 543, 547-48, 736 A.2d 918 (1999). The questions were all couched in terms of whether the witness remembered telling certain things to the prosecutor or the investigator that related to the victim’s claim that the witness also had sexually assaulted the victim. This claim by the victim was not crucial to the state’s case against the defendant. We conclude that there was no misconduct, and the defendant was not denied a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: SCHALLER, J.

text:
    R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD
    (AC 19234)
    Schaller, Spear and Zarella, Js.
    Argued May 10
    officially released September 26, 2000

      Robert A. Fuller, with whom was Raymond F. Ross, for the appellants (plaintiffs).

      J. Allen Kerr, Jr., for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiffs, R & R Pool & Patio, Inc., Mitchell Ross, David Ross and Philip Ross, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning board of appeals of the town of Ridgefield sustaining the Ridgefield zoning enforcement officer’s issuance of a cease and desist order against certain retail sales on the plaintiffs’ property. On appeal, the plaintiffs claim that the trial court improperly (1) failed to conclude that they were denied due process of law by the zoning enforcement officer and the defendant, (2) failed to sustain their appeal when the cease and desist order was illegal, unauthorized and an abuse of discretion, (3) failed to determine that the court’s decision in a companion site plan case made the plaintiffs’ subsequent site plan application unnecessary and moot, (4) concluded that the defendant’s decision was adequately supported by the record, (5) failed to consider whether the defendant’s assigned grounds for sustaining the cease and desist order were pertinent to the considerations that the defendant and the court were required to apply and (6) failed to conclude that the defendant’s decision was unreasonable, arbitrary and illegal. The plaintiffs also claim that the court’s decision in the companion site plan case precluded the defendant under the doctrines of collateral estoppel and res judi-cata from claiming that the plaintiffs were violating the terms of the variance. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiffs own property located at 975 Ethan Allen Highway in Ridgefield (property). The property is located in a B-2 zone in which retail uses are not permitted under the Ridgefield zoning regulations. In July, 1990, a tenant of the property at the time, Richard Amatulli, doing business as Classics of Ridgefield, obtained site plan approval to conduct a wholesale oriental rug operation on the property, a permitted use in the zone. On November 5,1990, the defendant granted Amatulli’s application for a variance to conduct retail sales on the property (Amatulli variance). The defendant limited the variance with the following language: “This action permits wholesale and retail sales to be conducted from the [property], unrestricted as to type of customer or hours of operation, but restricted as to the products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art.”

In 1993, the then owners of the property, Diane Green, Alvin G. Farans and Neil Farans, applied for a variance to remove the restrictions and to allow full retail use of the property. The application was denied by the defendant on June 21, 1993, and no appeal was taken therefrom.

On July 2, 1993, the owners, through their attorney, Melvin J. Silverman, and on behalf of their new tenant, R & R Pool, filed an application for site plan approval with the Ridgefield planning director proposing the use of the property for “warehouse, office and retail sale of fine outdoor furniture.” In a letter, which was part of the application, Silverman stated that the owners wanted to “lease the premises to a seller of fine furniture [R & R Pool], albeit of the type which is used generally out of doors.” By letter dated September 24, 1993, the planning director informed Silverman that the application was denied and stated three reasons for such denial: “(1) The business you are planning to operate, with the merchandise you are planning to sell, is not the ‘fine furniture’ contemplated by the Zoning Board of Appeals in its decision on Nov. 5, 1990, in appeal no. 90-099 [the Amatulli variance]; (2) the business you are proposing to operate, with the merchandise you are proposing to sell, was specifically denied a variance to do so by the Zoning Board of Appeals at its June 21, 1993 meeting of appeal no. 93-014 . . . and (3) retail sales is not a permitted use in a B-2 Zone.” The owners and R & R Pool appealed to the defendant (site plan case), and the defendant sustained the planning director’s decision by way of a memorandum of decision dated February 14, 1994.

The memorandum of decision contained several reasons for the denial. The reasons relevant to this appeal follow. “The Planning Director was correct in his determination that the proposed use for the premises was not in accordance with the variance previously granted [the Amatulli variance],

“The variance in question was granted in order to allow the use of the property for the sale of oriental rugs and fine furniture. A variance was needed because retail sales are not allowed in the zone in question

* * *

“While ‘fine furniture’ was not specifically described, the variance would be read in its entirety as having an inherent unity of decision. The applicant for that variance presented his request as a unitary operation with the sale of furniture as an adjunct to the sale of oriental rugs and of the same quality as would often involve the services of an interior decorator. The appellant in the matter now before the board seeks to have the meaning of the term ‘fine furniture’ used to include mass produced, outdoor furniture, arguing that it is in fact ‘fine furniture.’ This is not the kind of product that was presented to the board when the variance was requested, and it is not the kind of product that was considered by the board when the variance was granted.

“The kinds of product that were considered were ones that, like oriental rugs, are not stock items, are made by hand, and if they do not deteriorate physically, are expected to appreciate in value with the passage of time. Outdoor furniture simply does not fit this definition.”

On February 24, 1994, the owners and R & R Pool appealed to the Superior Court alleging that the defendant’s decision was arbitrary, illegal and an abuse of discretion. The court dismissed the action for lack of standing on the ground that R & R Pool was not the applicant for the site plan approval. The owners and R & R Pool appealed to this court following our grant of certification. In R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 574, 684 A.2d 1207 (1996), this court reversed the trial court as to its determination regarding standing and remanded the case for a determination of the merits. On remand, the court, Stodolink, J., sustained the appeal of the owners and R & R Pool. In so doing, the court found, inter alia, that the record contained “no factual evidence to support the board’s conclusion that the . . . furniture is not the ‘fine furniture’ contemplated by the [Ama-tulli] variance.”

During the pendency of the site plan case in Superior Court, the plaintiffs, on July 27, 1995, applied to the planning director for site plan approval for the “retail and wholesale sales of oriental mgs, fine furniture and ait.” An accompanying statement of proposed use explained that “[t]he property will be used in accordance with the [Amatulli variance]” and that the furniture to be sold would be “of good quality and the higher-end products. It will be the type of quality of fine furniture which is sold in the better furniture stores in the United States. None of the furniture will be of the plastic type which is generally found in discount stores.”

Pursuant to the planning director’s request for clarification of the use, Raymond Ross, the attorney for the plaintiffs, by letter dated August 15, 1995, stated that “R & R [Pool] will have the same limited retail sales of ‘oriental rugs, fine furniture and art’ which were previously sold by [Amatulli] under the terms of the [Amatulli] variance. The furniture will be of similar kind and nature to that which was sold by [Amatulli] and falls within the terms of the variance. The products will be of the high-end quality, well styled and upscale products which were previously sold. The products will be customarily used by consumers in such rooms of a home as a den or a dining room. The sale of these furniture items are often made with the assistance of an interior decorator or designer. . . . There will be no plastic furniture, no mass produced assembly line type of furniture, and no athletic equipment such as swingsets.”

On August 23, 1995, the planning director issued site plan approval to the plaintiffs subject to the condition that “the limited retail sales will be exactly as permitted and described in the grant of [the Amatulli variance] and further defined in [the defendant’s February 14, 1994 memorandum of decision sustaining the planning director’s denial of the application for site plan approval in the site plan case].”

In September, 1995, the plaintiffs began retail sales of furniture on the property. On December 29, 1995, the Ridgefield zoning enforcement officer issued a cease and desist order to the plaintiffs ordering that they remedy or discontinue (1) conducting retail sales in a B-2 zone, (2) retail sales not allowed under the Amatulli variance and (3) retail sales not presented during the site plan process and sales that specifically violate the conditions of the plaintiffs’ site plan approval.

On January 5, 1996, the plaintiffs appealed the cease and desist order to the defendant. On April 29, 1996, after a hearing, the defendant sustained the decision of the zoning enforcement officer to issue the cease and desist order. The relevant portions of the defendant’s memorandum of decision follow. “The applicant applied for Site Plan Approval for one use, and after receiving it, he put the property to another use. . . . Much has been made of the words ‘fine furniture,’ but such analysis by the applicant is based on wrenching the words from the context in which they were originally used. When the decision [on the-Amatulh variance] was made in November, 1990 . . . the phrase ‘oriental rugs, fine furniture and art’ was used because it had a specific meaning when taken as a whole. The type of merchandise offered for sale at this location is to be hand crafted, one-of-a-kind, and expected to appreciate in value over the years. The outdoor furniture . . . offered for sale at [the property] does not meet the aforementioned criteria. . . . [T]he variance as it now exists was never intended to support the use of the property for the sale of ‘fine furniture’ as its primary use.

“The sole purpose for which the property can be used at retail is the sale of ‘oriental rugs, fine furniture and art’ when such use is an adjunct to the use of the property as a wholesale location. There is no question that the property had had a number of uses over the years, but there has never been a variance in place that would allow the use of the property as a retail store when such use is not as [an] accessory and part-time use to a wholesale operation.”

On May 2,1996, the plaintiffs appealed to the Superior Court from the decision of the defendant sustaining the zoning enforcement officer’s cease and desist order. The court, Stodolink, J., heard the appeal contemporaneously with the appeal in the site plan case. As we have set forth, the court sustained the plaintiffs’ appeal in the site plan case. In a memorandum of decision dated on the same day as the memorandum of decision in the site plan case, the court dismissed the plaintiffs’ appeal from the defendant’s decision sustaining the zoning enforcement officer’s issuance of the cease and desist order.

The plaintiffs argued to the court that the defendant’s decision was arbitrary and illegal in that (1) the Amatulli variance runs with the land and the defendant may not modify it, (2) the term “fine furniture” is vague and involves a matter of personal taste, (3) the plaintiffs were denied substantive due process because they were not informed which items were not “fine furniture” and (4) the defendant’s decision does not coincide with its discussion on the matter. The court noted that the defendant cited three reasons for its decision, that its standard of review is whether the defendant’s denial of the plaintiffs’ appeal is reasonably supported by the record and that if the record reasonably supports any of the reasons, then the court must dismiss the plaintiffs’ appeal. The court concluded that the defendant’s first reason, that the plaintiffs “applied for site plan approval for one use, and after receiving it, [they] put the property to another use,” was reasonably supported by the record.

The court cited the “assurance” made by Ross during the application process that there would “be no plastic furniture, no mass produced assembly line type of furniture, and no athletic equipment such as swingsets” sold on the property. In light of this “assurance,” the court also noted the presence in the record of “nine photographs of chairs and other furniture that appear to be ‘mass produced assembly line furniture.’ ” The court concluded that the defendant’s first reason was reasonably supported by the record and dismissed the plaintiffs’ appeal. On January 13, 1999, this court granted the plaintiffs’ petition for certification to appeal and this appeal followed. Additional facts will be set forth where necessary.

We begin by examining the court’s decision in the site plan case to determine how it bears on the disposition of this appeal. In its memorandum of decision in the site plan case, the court noted that the defendant’s fourth reason for denying the plaintiffs’ appeal from the denial of their original site plan application was that the plaintiffs’ furniture was not the “fine furniture” envisioned by the defendant when it had granted the Amatulli variance. In concluding that the defendant’s fourth reason was arbitrary and unreasonable, the court made the following relevant findings. “The transcript [of the hearing on the Amatulli variance] is twenty-two pages long, but ‘fine furniture’ was mentioned expressly only once. . . . Virtually all of the discussion focused on Ama-tulli’s oriental rug business.” “The record does not demonstrate that the [defendant] offered any definitions, or any ascertainable guidelines or standards, upon which a subsequent owner or lessor of the subject property could have reasonably relied upon when selling furniture from the property.” “[T]he [defendant] never defined the term ‘fine furniture’ when it granted Ama-tulli the variance. [The court finds that the defendant’s] statement that the plaintiffs’ furniture was not the ‘kind of product that was presented to the [defendant] when the variance was requested, and is not the kind of product that was considered by the [defendant] when the variance was granted,’ to be misleading. The record reflects that Amatulli presented nothing pertaining to furniture during his hearing, and that [the defendant] focused almost exclusively on Amatulli’s oriental rugs.” “The record indicates that the [defendant] relied on its own subjective beliefs in its determination that the plaintiffs’ furniture did not comport with the variance.” “[T]he record reflects that the town’s regulations do not define the term ‘fine furniture.’ ”

We conclude that these findings and the court’s conclusion make clear that the court determined that the Amatulli variance could not be construed to limit the kind of furniture sold on the property. The defendant did not appeal from the court’s judgment.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. . . . Milford v. Andresakis, 52 Conn. App. 454, 460-61, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. . . . Dowling v. Finley Associates, Inc., [248 Conn. 364, 374, 727 A.2d 1245 (1999)]. . . . Pitchell v. Williams, 55 Conn. App. 571, 577-78, 739 A.2d 726 (1999).

“The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 460-61, 736 A.2d 811 (1999). Collateral estoppel . . . presents a question of law that we review de novo. Linden Condominium Assn., Inc. v.McKenna, 247 Conn. 575, 596, 726 A.2d 502 (1999) .” (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 706-707, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000) .

We conclude that the court’s determination with respect to the scope of the term “fine furniture” as it appears on the Amatulli variance is to be given preclu-sive effect in this action and, as such, directs our review of the court’s contemporaneous decision concerning the zoning enforcement officer’s issuance of the cease and desist order. Each of the elements of collateral estoppel is satisfied here. The issue of what constitutes “fine furniture” was part and parcel of both actions. The record reveals that the plaintiff and the defendant were both parties to the site plan case. The defendant had the opportunity to litigate the issue regarding “fine furniture” before the Superior Court, a court of competent jurisdiction, and that the court’s judgment is now final. Finally, as is shown by the court’s comprehensive memorandum of decision, the court’s decision in the site plan case regarding the issue of “fine furniture” was necessary to its judgment.

The defendant’s failure to appeal from the judgment in the site plan case compels the result that in this appeal, “fine furniture,” as it appears in the Amatulli variance, does not mean something “finer” than ordinary furniture. It light of this, we turn to our review of the decision that is the subject of the present appeal.

“In reviewing the actions of a zoning board of appeals we note that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision. . . . In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board’s decision, not for the contentions of the applicant.” (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). If “a zoning authority has stated the reasons for its actions, the reviewing court ought to examine the assigned grounds to determine whether they are reasonably supported by the record and pertinent to the considerations the authority was required to apply pursuant to the zoning regulations.” Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444-45, 418 A.2d 82 (1979).

As the court noted, the defendant stated three reasons for sustaining the zoning enforcement officer’s issuance of the cease and desist order. We will address each in turn.

The defendant’s first stated reason is that the plaintiffs “applied for site plan approval for one use, and after receiving it, [they] put the property to another use.” The plaintiffs’ site plan application described the intended use as the “[s]ame use as [the] variance granted to [Amatulli]” and, further, “retail and wholesale sales of oriental rugs, fine furniture and art.” The planning director granted the application with four conditions, only one being relevant here, which was that “the limited retail sales will be exactly as permitted and described in the [defendant’s grant of the Amatulli variance] and further defined in [the defendant’s memorandum of decision in the site plan case sustaining the planning director’s denial of the site plan application].”

The Amatulli variance allows for the wholesale and retail sales of “oriental rugs, fine furniture and art.” The trial court held in the site plan case that the words “fine furniture,” as they appear in the Amatulli variance, do not limit the kind of furniture sold on the property, and, therefore, the plaintiffs’ sale of furniture on the property is not in derogation of the description contained in the Amatulli variance and cannot be the basis for the cease and desist order. As to the defendant’s memorandum of decision in the site plan case, the portion thereof pertaining to the scope of the phrase “fine furniture” was determined by the Superior Court to be nonlimiting as to the furniture sold. The court’s decision was not challenged and has preclusive effect in this appeal. Therefore, the defendant’s discussion of “fine furniture” in its memorandum of decision cannot be the basis for the cease and desist order here.

After receiving the site plan application, the planning director requested that Ross clarify the use. Ross responded by letter, stating, inter alia, that “[t]here will be no plastic furniture, no mass produced assembly line type of furniture and no athletic equipment such as swingsets” sold on the property. This language is the gravamen of the defendant’s first reason. We hold that these subsequent representations by Ross do not limit the plaintiffs’ use of the property. “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations.” General Statutes § 8-3 (g). General Statutes § 8-6 (b) provides in relevant part that a “variance . . . shall run with the land . . . .” The plaintiffs were entitled to the rights of the Amatulli variance, the exercise of which they applied for. These rights include the retail sales of furniture. The planning director was required by law to grant the plaintiffs’ application insofar as it requested the use of the property consistent with the Amatulli variance, and the postapplication language of Ross cannot limit the rights of the plaintiffs. We, therefore, cannot accept the defendant’s first stated reason as having adequate support in the record.

The defendant’s second reason is that the “current use of the property does not conform to the [Amatulli variance].” As we have shown, the plaintiffs’ use with respect to the retail sale of furniture does conform with the Amatulli variance as it has come to be defined, and the defendant’s contrary assertion cannot find support in the record.

The defendant’s third and final stated reason attempts to define “fíne furniture” and states that the furniture sold, for which the plaintiffs were given the cease and desist order, does not fit its definition. Again, it is the court’s definition of fíne furniture that guides us here and, on the basis of that definition, the plaintiffs were not acting contrary to their rights under the Amatulli variance in selling the furniture in question. Accordingly, the defendant’s third stated reason is improper.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.

In this opinion the other judges concurred.

       R & R Pool and Home, Inc., is the predecessor to the plaintiff in this appeal, R & R Pool & Patio, Inc. For clarity, we hereafter refer to both R & R Pool & Home, Inc., and R & R Pool & Patio, Inc., as R & R Pool.

       The individual plaintiffs are the principals of the plaintiff R & R Pool.

       While the site plan case was pending, the owners executed and delivered a warranty deed conveying title to the property to the plaintiffs.

       On April 6,1999, we granted the plaintiffs’ motion to take judicial notice of that case in this appeal.

       The site plan application stated that R & R Pool would be selling fine furniture, “albeit it of the type which is generally used out of doors.”


author: MIHALAKOS, J.

text:
    IN RE QUANITRA M. ET AL.

    (AC 19790)
    Lavery, C. J., and Mihalakos and Pellegrino, Js.

      Argued May 30
    officially released September 26, 2000

      Arnold V. Amore II, for the appellant (respondent mother).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Stephen P. Hanchuruck, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

MIHALAKOS, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to three of her four minor children. On appeal, the respondent claims that the court improperly (1) determined that the petitioner, the commissioner of children and families (commissioner), need not, in the dispositional phase of a termination proceeding, prove by clear and convincing evidence the seven factors set forth in General Statutes (Rev. to 1997) § 17a-112 (e), now (d), prior to a finding by the court that it is in the best interests of the children to have the respondent’s parental rights terminated and (2) found that there was sufficient evidence to terminate her parental rights in the dispositional phase after determining that the seven factors set forth in § 17a-112 (e) are merely guidelines that need not be proven by clear and convincing evidence. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. On May 14, 1994, the New Haven police department contacted the department of children and families (department) to report that the respondent, an individual with a substance abuse problem and a criminal record, had left her children with a caretaker on May 12, 1994, and failed to return for them. On May 14, 1994, the commissioner instituted a ninety-six hour hold on the children and placed them in foster homes. On May 18, 1994, the commissioner filed petitions in New Haven Juvenile Court, alleging neglect as to all four children. Orders for temporary custody were obtained on May 29, 1994. On August 3, 1994, the four children were committed to the commissioner as neglected, and a dispositional order was entered committing them to the custody of the commissioner for an eighteen month period. On August 12, 1994, a hearing took place, but the respondent, whose whereabouts were unknown on the date of the hearing, did not appear and the court did not order expectations. On January 13,1995, the respondent attended an administrative case review (review) with the department’s social workers. At the review, the respondent received a copy of a treatment plan outlining the steps that she needed to take to help secure the return of her children. The steps included (1) keeping appointments with the department, (2) keeping the department apprised of her whereabouts, (3) remaining drug free and (4) securing an apartment. The only expectation that the respondent complied with was the securing of an apartment.

Between July, 1995, and February, 1996, a department social worker made seven appointments for substance abuse evaluations with the respondent, which she failed to attend. On October 31, 1995, the respondent tested positive for cocaine after undergoing a substance abuse evaluation at Connecticut Mental Health Center’s substance abuse treatment unit. At that time, it was recommended that the respondent pursue outpatient substance abuse treatment, which she failed to do.

On February 21, 1996, the respondent underwent another substance abuse evaluation. At that time, it was determined that she had abused cannabis and cocaine, and that she exhibited antisocial personality traits. It was recommended that the respondent attend a substance treatment program, which, once again, she did not pursue. From February 21, 1996, until March 26, 1997, the respondent failed to attend several substance treatment evaluations. On March 26, 1997, the respondent was seen at the APT Foundation central treatment unit of New Haven for substance abuse evaluation, where it was determined that she had abused cocaine. On April 1, 1997, she was given an appointment for admission, but her case was closed on April 26, 1997, for failure to attend.

On August 29, 1997, the respondent entered an inpatient treatment program at Connecticut Valley Hospital (hospital) and was released on October 10, 1997, after completing a forty-five day program. Following her release, the hospital recommended that she participate in Multicultural Ambulatory Addiction Services (services), an outpatient treatment program. The respondent, however, failed to follow through with those services.

On May 11, 1998, pursuant to General Statutes (Rev. to 1997) § 17a-112 (c),the commissioner filed termination of parental rights petitions with regard to the three youngest children, the respondent’s son and two of her daughters. The petitions alleged that all three children had been abandoned by the respondent and that she had failed to achieve sufficient personal rehabilitation as would encourage the belief that within a reasonable time, considering the children’s ages and needs, she could assume a responsible position in their lives. The petitions as to two of the children recited that they had been denied the care, guidance or control necessary to their physical, educational or moral well-being. The petition as to the third child alleged that there was no ongoing parent-child relationship.

On April 15, 1998, weekly visitation of the respondent’s four children was ordered by the department. The respondent, however, rarely took advantage of the visits arranged by the department, and her infrequent visits with her children proved to be ineffective. Bruce Freedman, a licensed psychologist, observed the respondent interact with the three youngest children and described her behavior during the visits as inappropriate. Freedman subsequently conducted a psychological evaluation of the children and the respondent, examining the issue of reunification and the best interests of the children. Freedman testified that the respondent had not addressed her substance abuse problem and that she was at high risk for a relapse. He testified that she had psychological problems, such as impulse control, which the respondent had failed to acknowledge and address. He concluded that reunification with her children would not be appropriate at that time.

On December 29, 1998, and on January 5, February 3, April 7 and April 26, 1999, termination proceedings were held. On April 26, 1999, in an oral ruling from the bench, the court terminated the respondent’s parental rights, finding by clear and convincing evidence that she had failed to achieve sufficient personal rehabilitation as would encourage the belief that within a reasonable time, considering the children’s ages and needs, she could assume a responsible position in their lives. This appeal followed.

I

The respondent first claims that the court improperly determined that the commissioner, in the dispositional phase, need not prove by clear and convincing evidence the seven factors set forth in § 17a-112 (e) prior to a finding by the court that it is in the best interests of the children to have the respondent’s parental rights terminated. We disagree.

“Under § 17a-112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the four grounds for termination of parental rights set forth in § 17a-112 (b) exists by clear and convincing evidence. The commissioner ... in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. . . . Section [17a-112 (b)] carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. . . . One of the four predicates for the termination of parental rights under § 17a-112 (b) covers the situation in which, over an extended period of time, the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child .... General Statutes § 17a-112 (b) (2).

“If the trial court determines that a statutory ground for termination exists, then it proceeds to the disposi-tional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. When the petitions in this case were filed, [General Statutes (Rev. to 1997) § 17a-112 (e)] required that the trial court, in determining whether to terminate parental rights, consider and . . . make written findings regarding seven separate factors . . . .” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 688-89, 741 A.2d 873 (1999).

Whether the commissioner is required to prove by clear and convincing evidence the seven factors set forth in § 17a-112 (e) prior to the court’s finding that it is in the best interests of the children to have the respondent’s parental rights terminated “is a matter of statutory interpretation, which is a matter of law, requiring plenary review. ... In interpreting statutes, our analysis is guided by well established principles of statutory construction. [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id., 690.

The seven factors set forth in § 17a-112 (e) serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered. See In re Christine F., 6 Conn. App. 360, 369, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). General Statutes § 17a-112 (e) provides in relevant part that “in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding” those seven factors. As a result, there is no requirement that each factor be proven by clear and convincing evidence.

In In re Eden F., supra, 250 Conn. 690-91, our Supreme Court held that “pursuant to § 17a-112 (b), the trial court was authorized to terminate parental rights upon a showing, by clear and convincing evidence, first, that one or more of the four scenarios set forth in § 17a-112 (b) had been proven, and second, that the termination of parental rights was in the best interest of the child. Although § 17a-112 (d) (1) and (2) [formerly § 17-112 (e) (1) and (2)] mandated that the trial court make written findings regarding the timeliness, nature, extent and reasonableness of the efforts made to reunify parent and child, § 17a-112 contained nothing to indicate that any such finding was a prerequisite to the termination of parental rights. Thus, when the petitions in this case were filed, the factors to be considered under § 17a-112 (d) [formerly § 17a-112 (e)] served only to guide the trial court in making its ultimate decision whether to grant the termination petition. . . . Thus, the fact that the legislature [had interpolated] objective guidelines into the open-ended fact-oriented statutes which govern [parental termination] disputes . . . should not be construed as a predetermined weighing of evidence ... by the legislature. Where . . . the record reveals that the trial court’s ultimate conclusions [regarding termination of parental rights] are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding . . . .” (Citations omitted; internal quotation marks omitted.) The court thus properly determined that the commissioner, in the dispositional phase, need not prove by clear and convincing evidence the seven factors set forth in § 17a-112 (e) prior to a finding by the court that it is in the best interests of the children to have the respondent’s parental rights terminated.

II

The respondent’s next claim is that the court’s finding that there was sufficient evidence to terminate her parental lights in the dispositional phase was improper in light of that court’s determination that the seven factors set forth in § 17a-112 (e) are merely guidelines that need not be proven by clear and convincing evidence. The respondent claims that the court should not have determined that there was sufficient evidence to support its conclusion that termination was in the best interests of the children in view of evidence that two of the children, the two girls, had bonded with her. In effect, she claims that there is an inconsistency in the court’s reasoning such that the order of termination was improper because there was evidence of bonding. We do not agree.

“Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. . . . The probative force of conflicting evidence is for the trier to determine.” (Citations omitted; internal quotation marks omitted.) Jones v. Ippoliti, 52 Conn. App. 199, 206-207, 727 A.2d 713 (1999). “[W]e must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [court’s] verdict . . . .” (Citation omitted; internal quotation marks omitted.) Gilbert v. Middlesex Hospital, 58 Conn. App. 731, 736, 755 A.2d 903 (2000).

In this case, the respondent alludes to expert testimony from Freedman, a licensed psychologist, and from Christine Smith, a licensed clinical social worker, who had been treating two of the respondent’s daughters for the past few years. Both experts acknowledged that bonds exist between the respondent and the two girls. Despite the finding of bonding, both experts concluded that bonding was not a sufficient reason to find that termination was not in the best interests of the children.

In In re Christine F., supra, 6 Conn. App. 369, this court considered the factors set forth in General Statutes § 17-43a (d), the predecessor to § 17-112 (e), and also found that a loving relationship existed between the mother and child. In that case, the mother argued that the evidence of this loving relationship had not been given proper weight and should have precluded a finding that termination was in the child’s best interest. Id. We went on to state that “[w]here, as here, the record reveals that the trial court’s ultimate conclusions are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding . . . .” (Internal quotation marks omitted.) Id., 369-70.

Here, the court’s ultimate conclusion was supported by sufficient evidence. Freedman concluded that termination was in the best interests of the children, given their need for permanency and stability. Freedman described the relationship between the respondent and her children as an unhealthy one in which the children had to take care of the respondent due to her serious substance abuse problems. Additionally, both experts agreed that the best situation for the children would be for them to be placed in a secure, stable and permanent home with limited, supervised, monitored visitation and contact with the respondent. Finally, there was evidence showing that the respondent had left her children with a caretaker without returning for them, and that she repeatedly missed visitation with her children and went as long as five months between visits. We therefore conclude that there was sufficient evidence for the court to terminate the parental rights of the respondent.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of each of the children’s fathers also were terminated. Only the respondent mother has appealed, and we refer to her in this opinion as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 (e), now (d), provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       On January 14, 1995, the respondent was arrested on charges that included burglary and failure to appear. On April 20, 1995, she was arrested on charges of assault. In November, 1995, she was arrested and extradited to North Carolina in connection with violation of parole. On May 3, 1998, the respondent was arrested and incarcerated on charges that included burglary, risk of injury and reckless endangerment.

       These commitments were subsequently extended on January 16, 1996, August 20, 1997, and August 14, 1998.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a [termination] petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) that termination is in the best interest of the child, and (3) . . . (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . .


author: HENNESSY, J.

text:
    LEROY J. YOUNG v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
    (AC 18202)
    Lavery, Landau and Hennessy, Js.

      Argued October 25, 1999
    officially released September 26, 2000

      Walter Bansley, with whom, on the brief, was Roger Sullivan, for the appellant (plaintiff).

      Frederick L. Murolo, with whom were Karen T. Gerber and, on the brief, Marc J. Ubaldi, for the appel-lee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, LeRoy J. Young, appeals from the decision of the trial court denying his motion for summary judgment and sustaining the objection to the plaintiffs motion for summary judgment by the defendant, Metropolitan Property and Casualty Insurance Company. The plaintiff claims that the trial court improperly denied his motion for summary judgment on the basis of its finding that there was no privity between the defendant and Continental Insurance Company (Continental). The defendant, in turn, contends that this appeal should be dismissed because the trial court’s denial of summary judgment in this case is not a final judgment from which an appeal may be taken. We affirm the trial court’s denial of the plaintiffs motion for summary judgment.

The court found the following facts. On September 12, 1991, the plaintiff, while driving an automobile owned and insured by his employer, was involved in an accident. The vehicle the plaintiff was driving was insured by Continental, which, under its policy, provided $1 million in underinsured-uninsured motorist benefits. The plaintiff, at the time of the accident, maintained an insurance policy with the defendant for two vehicles that he owned. The defendant’s policy provides underinsured-uninsured coverage of $100,000 per vehicle and, due to intrapolicy stacking allowed at the time of the accident where as here a separate premium is paid for each of the two vehicles, avails the plaintiff a total of $200,000 in excess coverage. The Continental policy is primary pursuant to the parties’ insurance contracts and the then existing underinsured-uninsured law. The tortfeasor had $100,000 in liability insurance coverage that was paid to the plaintiff.

The plaintiff, whose damages exceeded the policy limits recovered from the tortfeasor and the amount available pursuant to the underinsured motorist coverage provision of the Continental policy, filed a complaint against the defendant, seeking to recover the aggregate of the uninsured-underinsured policy coverage on each of the automobiles covered by the defendant. The plaintiff, pursuant to the terms of the Continental policy, also initiated arbitration proceedings against Continental to recover underinsured benefits. Although the defendant’s policy did not have an arbitration provision, the plaintiff, by letter, on three separate occasions, invited the defendant to join in the arbitration. The defendant declined.

The arbitration proceeding between the plaintiff and Continental produced a finding and award of damages in the amount of $1,150,000, which, because of setoffs and credits, was reduced to $762,850. As a result of the arbitration panel decision, the plaintiff filed his motion for summary judgment against the defendant, arguing that because of intrapolicy stacking, the defendant, as an excess carrier, is required to provide him with under-insured motorist coverage; that the setoffs and credits decided by the arbitration panel were correctly allo-caled to the primary insurer Continental; and that the defendant is collaterally estopped from contesting the arbitration award as to damages.

The court denied the plaintiffs motion for summary judgment. The trial court found that, as a matter of law, because there is no privity between the defendant and Continental, the defendant is not collaterally estopped from contesting the decision of the arbitration panel. This appeal followed.

We begin by stating our standard of review on appeal. “The standard of review for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998); Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997); see Practice Book § 384, now Practice Book (1998 Rev.) § 17-49.” (Internal quotation marks omitted.) Levine v. Advest, Inc., 244 Conn. 732, 743, 714 A.2d 649 (1998).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving parly is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment [against the plaintiff] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

As a preliminary matter we must decide whether this appeal should be dismissed for lack of a final judgment. The defendant raised this issue previously in its motion to dismiss the plaintiffs appeal, which motion this court denied on June 3, 1998.

“The denial of a motion for summary judgment is not ordinarily appealable because it is not a final judgment. See Connecticut National Bank v. Rytman, 241 Conn. 24, 34, 694 A.2d 1246 (1997).” Milford v. Andresakis, 52 Conn. App. 454, 455 n.l, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999). Our Supreme Court has held, however, that an appeal may be taken from the denial of a motion for summary judgment when such motion raises the defense of collateral estoppel. Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 194-95, 544 A.2d 604 (1988). The court viewed the defense of collateral estoppel as “a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits.” Id., 195. In the present case, the plaintiffs motion for summary judgment is founded on a claim of offensive, as opposed to defensive, collateral estoppel. Nonetheless, we can see no reason why an immediate appeal may not also be taken from the denial of such a motion. For purposes of our jurisdiction to entertain this appeal, we view the distinction between offensive and defensive collateral estoppel as inconsequential. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303 n.19, 596 A.2d 414 (1991). If the plaintiff is correct that the defendant is bound by the decision of the arbitration panel with regard to the question of damages, it would be unfair to require the plaintiff to expend its resources relitigating this issue. See Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, supra, 194. Appellate review in this case is therefore appropriate.

The plaintiffs primary argument is that the defendant should be collaterally estopped from contesting the decision of the arbitration panel because it is in privity with Continental. “ ‘The [doctrine] of . . . collateral estoppel protects] the finality of judicial determinations, conserve[s] the time of the court, and prevents] wasteful relitigation. . . . Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.’ Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 [(1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989)]; see also State v. Ellis, 197 Conn. 436, 462-67, 497 A.2d 974 (1985); In re Juvenile Appeal (83-DE), 190 Conn. 310, 313-18, 460 A.2d 1277 (1983); Gennarini Construction Co. v. Messina Painting & Decorating Co., 15 Conn. App. 504, 509-10, 545 A.2d 579 (1988).” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). “ [C] ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991). Weiss v. Statewide Greivance Committee, 227 Conn. 802, 818, 633 A.2d 282 (1993). . . . [T]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. Aetna Casualty & Surety Co. v. Jones, [supra, 220 Conn. 297], Crochiere v. Board of Education, [227 Conn. 333, 345, 630 A.2d 1027 (1993)].” (Internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997). Issue preclusion, or collateral estoppel “ ‘express [es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.’ State v. Ellis, [supra, 465].” Mazziotti v. Allstate Ins. Co., supra, 813.

In this case, to extend the concept of collateral estop-pel to preclude the defendant from contesting the arbitration award, we must determine whether privity exists between the defendant and Continental. “Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party. State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987); P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983); State v. Wilson, 180 Conn. 481, 486, 429 A.2d 931 (1980). While it is commonly recognized that privity is difficult to define, the concept exists to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding. State v. Fritz, supra, 173.” (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 303-304. “There is no prevailing definition of privity to be followed automatically in every case. It is not a matter of form or rigid labels; rather it is a matter of substance. In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion. Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 868, 675 A.2d 441 (1996).” Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 813-14.

This is a case where although both Continental and the defendant are interested in the same question and in proving or disproving the same set of facts, each has, by separate and distinct contracts, chosen the process to determine those facts using its own preferred method. “The commonality of interest in ‘proving or disproving the same facts’ is not enough to establish privity. State v. Fritz, supra, 204 Conn. 173.” Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 817. Continental, through its separate and distinct contract with the plaintiff, chose to settle its disputes by arbitration. On the other hand, the defendant, in its contract with the plaintiff, chose not to bind itself to settle claims through arbitration and, in this case, wants to exercise its contract right to litigate the claim.

The defendant’s rights and those of Continental arise from separate contracts, each with its own provision specifying the forum for dispute resolution. Therefore, there can be no privity because the same legal rights are not involved. Clearly, the defendant’s rights cannot be unilaterally usurped by the plaintiff by the mere invitation to participate in arbitration when its contract provides it the right to litigate its claims. By arguing that the defendant was invited to participate in the arbitration and that' its decision to decline that invitation, based on its contract rights, should expose it to liability from which it is collaterally estopped from contesting, urges us to disregard the contractual rights for which one party bargained.

“Arbitration is a creature of contract and without a contractual agreement to arbitrate there can be no arbitration. John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981), and cases cited therein. Even though it is the policy of the law to favor settlement of disputes by arbitration; Board of Education v. Waterbury Teachers’ Assn., 174 Conn. 123, 126, 384 A.2d 350 (1977); arbitration agreements are to be strictly construed and such agreements should not be extended by implication. School Authority v. Bogar & Bink, 261 Pa. Super. 350, 353, 396 A.2d 433 (1978). Accordingly, the basis for arbitration in a particular case is to be found in the written agreement between the parties. McCaffrey v. United Aircraft Corporation, 147 Conn. 139, 142, 157 A.2d 920, cert. denied, 363 U.S. 854, 80 S. Ct. 1636, 4 L. Ed. 2d 1736 (1960). Persons thus cannot compel arbitration of a disagreement between or among parties who have not contracted to arbitrate that disagreement between or among themselves. School Authority v. Bogar & Bink, supra, 354.” Wesleyan University v. Rissil Construction Associates, Inc., 1 Conn. App. 351, 354-55, 472 A.2d 23, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). The defendant neither signed the Continental contract, nor assented to arbitration pursuant to it. It cannot, therefore, be bound by the decision of the arbitration panel.

In addition to the differences in forum for dispute resolution between the defendant and Continental, the obligations of each are also different under their respective contracts. To collect under Continental’s contract, the plaintiff must prove the amount of liability and that a third party is underinsured and legally liable. See Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 367-68, 641 A.2d 783 (1994). The defendant is an excess carrier, and therefore its contract obligations are triggered only when the claimant’s loss exceeded the policy limits of the primary insurer, Continental. See Aetna Casualty & Surety Co. v. CNA Ins. Co., 221 Conn. 779, 784, 606 A.2d 990 (1992); Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 453, 370 A.2d 1006 (1976). The disparity in contractual obligations further suggests that Continental cannot fully and fairly litigate the defendant’s legal interests, and thus there is no privity.

The plaintiff further argues that he should not be compelled to incur the considerable expense of presenting his claim more than once to reach his underin-sured motorist coverage. This is no reason, however, to undo a contract, into which the plaintiff freely entered, that specifically grants the defendant the right to litigate its claims.

“[ W]e recognize the ‘crowning consideration’ in collateral estoppel cases and the basic requirement of privity—that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of collateral estoppel is not inequitable. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306. A trial in which one party contests a claim against another should be held to estop a third person only when it is realistic to say that the third person was fully protected in the first trial. State v. Fritz, supra, 204 Conn. 173.” Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 818-19.

The plaintiff claims that the defendant’s interests were represented and protected adequately because Continental’s exposure was $1 million while the defendant’s was only $200,000. The plaintiff, however, cannot dispute that Continental had no incentive to reduce the amount of damages, once it was established that the plaintiffs damages exceeded $1 million, its maximum exposure. In this case, the arbitration panel did, in fact, produce an award of damages in the amount of $1,150,000. Furthermore, as discussed previously, the rights for which the defendant contracted with regar d to the forum it chose to settle disputes would not be “fully protected” if it is forced to join in the arbitration.

Finally, the plaintiff cites Russo v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. 94-0123171 (December 16, 1997) (21 Conn. L. Rptr. 140), for the proposition that privity exists between the defendant and Continental. The factual situation is analogous to the present case. In Russo, the plaintiff was involved in an automobile accident with an uninsured driver, and the plaintiff made a claim for benefits for his injuries with Aetna Casualty and Surety Company (Aetna), which was submitted to binding arbitration. The arbitrators held that the plaintiffs own negligence was greater than 50 percent and thus found for Aetna. Russo v. Aetna Casualty & Surety Co., Superior Court, judicial district of Waterbury, Docket No. 92-112129S (July 9, 1993) (9 Conn. L. Rptr. 417). On appeal, the arbitrators’ decision was affirmed. See Russo v. Aetna Casualty & Surety Co., 34 Conn. App. 904, 641 A.2d 153 (1994). The plaintiff then brought an action against the defendant carrier Allstate Insurance Company (Allstate) for his injuries arising from the same accident. Russo v. Allstate Ins. Co., supra, 21 Conn. L. Rptr. 140. Allstate filed a motion for summary judgment on the ground that the plaintiffs action was barred by collateral estoppel; id., 140; and the trial court agreed and granted Allstate’s motion for summary judgment. Id., 141.

In Russo, however, the case was not decided on the basis of privity between the insurance carriers and therefore can not be used to support that proposition. Allstate raised the doctrine of collateral estoppel defensively to prevent the plaintiff from getting a second opportunity to litigate the same issue. “The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. In re Juvenile Appeal (83-DE), supra, [190 Conn.] 318.” (Emphasis added; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 296. The plaintiff in Russo had a full and fair opportunity to litigate his claim. He was adequately afforded an opportunity to make his case, which he, in fact, appealed to this court. Therefore, it was fair to preclude him, on the basis of the accepted public policy reason behind collateral estoppel, from relitigating the same issue with a second party. In contrast, the plaintiff in the present case attempts to assert collateral estoppel offensively. In Russo, the defendant, which had not participated in the prior action, sought to preclude the plaintiff, who had participated in the prior action, from relitigating an issue decided against the plaintiff. Here, the plaintiff seeks to preclude a defendant that did not participate in the prior proceedings from litigating an issue decided in the plaintiffs favor. In this case, the party that would be foreclosed from challenging facts already decided never had its full and fair opportunity to litigate the issue itself because it was neither a party to the first action, nor was it in privity with the original party. Consequently, absent privity between Continental and the defendant, it can not be said that the defendant was afforded a full and fair opportunity to litigate its claim.

The dispositive distinction in this case is not that offensive, rather than defensive, collateral estoppel was raised, but that there is no privity between the party that had the opportunity to litigate the issue of liability and the party that the plaintiff seeks to preclude from relitigating that issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant filed its own motion for summary judgment and objection to the plaintiffs motion for summary judgment. The defendant claimed that “there are no genuine issues as to any material facts and the . . . defendant is entitled to judgment as a matter of law based upon the fact that the plaintiff has failed to exhaust the coverage of the primary uninsuredunderinsured insurance coverage and therefore has no viable uninsuredunderinsured motorist claim against [the defendant]. Additionally, the defendant is not collaterally estopped from litigating any of the underlying facts surrounding the automobile accident giving rise to this claim.” The trial court, in its memorandum of decision and judgment purported to grant the defendant’s motion for summary judgment on the issue of collateral estoppel. The court was, however, essentially sustaining the defendant’s objection to the plaintiffs motion for summary judgment.

       The defendant also contends that the trial court was correct in denying the plaintiffs motion for summary judgment because 1he defendant has a constitutional right to a jury trial. Because we agree with the trial court that no privity exists between Continental, the insurer of the vehicle being operated by the plaintiff, and the defendant, we need not address this alternate ground.

       Stacking is no longer allowed pursuant to the enactment of No. 93-297, § 1, of the 1993 Public Acts, now codified as General Statutes § 38a-336 (d).