author: MIHALAKOS, J.

text:
    BANK OF AMERICA, FSB v. SALVATRICE FRANCO
    (AC 19508)
    Foti, Landau and Mihalakos, Js.

      Argued January 19
    officially released May 16, 2000

      Charles D. Houlihan, Jr., for the appellant (defendant).

      Thomas J. Farrell, for the appellee (substitute plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, Salvatrice Franco, appeals from the trial court’s judgment of strict foreclosure. On appeal, the defendant claims that the court improperly (1) granted summary judgment as to liability when there was insufficient evidence that the substitute plaintiff was the owner of the debt obligation and (2) rendered a judgment of strict foreclosure without competent evidence of debt. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The Bank of America, FSB (first plaintiff), commenced a foreclosure action against the owner of the premises, the defendant, on May 6, 1997. Twenty-three months after the commencement of the action, a judgment of strict foreclosure was rendered.

An amended complaint filed on July 1, 1997, alleged that the defendant gave a mortgage to Arbor National Mortgage, Inc., on February 10,1992. It was alleged that this mortgage was assigned to the first plaintiff by an instrument that was to be recorded on the Berlin land records. On September 15, 1997, the first plaintiff filed a second amended complaint, which alleged that the mortgage was assigned from Arbor National Mortgage, Inc., to Citibank, N.A., which assigned it to Security Pacific National Trust Company as trustee. The complaint further alleged that BankAmerica National Trust Company, Trustee (substitute plaintiff), was the successor in interest to Security Pacific National Trust Company. A motion then was filed to substitute BankAmerica National Trust Company, Trustee, as plaintiff.

An answer was filed by the defendant, in which she admitted the allegation contained in the first amended complaint that the note and mortgage were owned by the first plaintiff. The substitute plaintiff then filed a motion for summary judgment as to liability only. The defendant filed an objection, claiming that ownership of the mortgage and note were in dispute. The court granted summary judgment as to liability only.

The substitute plaintiff then reclaimed its motion for judgment of foreclosure and on May 15,1997, filed with its motion an affidavit of debt executed by Susan L. Hobbs, an assistant vice president of the first plaintiff, which is the servicing agent of the substitute plaintiff.

On April 5, 1999, the court, after a hearing, rendered judgment of strict foreclosure, set law days and found the debt to be $277,383.93 and the fair market value of the property to be $280,000. This appeal followed.

I

The defendant’s first claim is that the court improperly granted summary judgment as to liability because there was insufficient evidence for a finding that the substitute plaintiff was the owner of the mortgage. We disagree.

The second amended complaint alleged that the substitute plaintiff was the successor in interest to Security Pacific National Trust Company. The defendant filed an answer in which she admitted that the note and mortgage were owned by the first plaintiff. The substitute plaintiff continued to prosecute the action, despite the fact that the court records do not indicate that the motion to substitute BankAmerica National Trust Company, Trustee, as the plaintiff was ever granted. Notwithstanding the defendant’s admission as to the first plaintiff, she failed to deny specifically that the substitute plaintiff was the holder of the note and mortgage. This essentially acts as an admission in the pleadings that the substitute plaintiff is the correct party to this action as the holder of the note and mortgage. An admission in the pleadings is conclusive on the pleader, even if the plaintiff later disputes the allegation. Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977); see also Guiel v. Barnes, 100 Conn. 737, 747, 125 A. 91 (1924). The defendant’s failure to deny that the substitute plaintiff was the holder of the mortgage constituted an admission pursuant to Practice Book § 10-46. See Worden v. Francis, 153 Conn. 578, 584, 219 A.2d 442 (1996) (defendant’s failure to deny allegation in amended complaint constitutes admission). Practice Book § 10-46 provides that denial of delivery of an instrument must be specially pleaded.

Additionally, the substitute plaintiff filed two demands for disclosure of a defense and two motions for default for failure to disclose a defense. The defendant failed to respond to those motions. The court granted the motions for default. Because the defendant was defaulted for failure to disclose a defense, the defendant’s liability on the mortgage conclusively was determined. Bank of Boston Connecticut v. Moniz, 47 Conn. App. 234, 237, 702 A.2d 655 (1997), appeal dismissed, 247 Conn. 394, 720 A.2d 1111 (1998); Suffield Bank v. Berman, 25 Conn. App. 369, 373, 594 A.2d 493, cert. dismissed, 220 Conn. 913, 597 A.2d 339, cert. denied, 220 Conn. 914, 597 A.2d 340 (1991). “[F]or foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing. Suffield Bank v. Berman, [supra, 373], A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant. Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). . . . Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927 [cert. denied, 212 Conn. 802, 560 A.2d 984] (1989). . . . Voluntown v. Rytman, 27 Conn. App. 549, 557, 607 A.2d 896, cert. denied, 223 Conn. 913, 614 A.2d 831 (1992).” (Internal quotation marks omitted.) Bank of Boston Connecticut v. Moniz, supra, 237.

The record and pleadings do not reflect any attempt by the defendant to dispute the substitute plaintiffs claim to holder status, except that they contain a general, nonspecific objection to the motion for summary judgment. The defendant’s failure to follow the rules of practice by not filing a countervailing affidavit or requesting discovery when the substitute plaintiff claimed holder status and moved for summary judgment is fatal to this appeal. The defendant also failed to utilize the procedures available to her at trial and waited until this appeal to mount a defense. The defendant cannot ignore the rules of practice and raise the defenses on appeal. Connecticut National Bank v. N.E. Owen II, Inc., 22 Conn. App. 468, 473, 578 A.2d 655 (1990). We have held that in foreclosure cases “it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing.” (Internal quotation marks omitted.) Bank of Boston Connecticut v. Moniz, supra, 47 Conn. App. 237. The defendant’s failure to raise these defenses properly at trial precludes her from raising them on appeal.

II

The defendant’s second claim is that the court improperly rendered a judgment of strict foreclosure without competent evidence of debt. We disagree.

The defendant, in her brief, argues that the affidavit of debt did not identify the affiant’s relationship with the substitute plaintiff or identify the mortgage company as to which the affiant claimed knowledge, nor did it establish the affiant’s relationship to any party. Our standard of review of such claims is the clearly erroneous standard and not plenary review because the defendant’s challenge goes to the adequacy of the factual record. The judgment, thus, cannot be disturbed unless it can be established that the court’s factual finding was clearly erroneous. See SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 569, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998).

Once the court determined the defendant’s liability, the only issue to be determined at the judgment hearing was the amount of the debt and the terms of the judgment. Where a defendant fails to raise a defense as to the amount of the debt, the plaintiff may prove the debt by way of an affidavit pursuant to Practice Book § 23-18. Connecticut National Bank v. N.E. Owen II, Inc., supra, 22 Conn. App. 472.

The court ruled that the failure to raise any timely defenses was a bar to the defendant’s claim for an evidentiary hearing as to the amount of the debt. The court properly concluded that the affidavit constituted a sufficient basis to support its finding as to the amount of the debt. The affidavit asserted that the affiant was employed by the servicing agent for the substitute plaintiff, a relationship strong enough to establish a foundation for the affiant’s claims that she was familiar with the books and records regarding the defendant’s indebtedness. The affidavit also contained a breakdown of the items in the total debt and information demonstrating that no payments were made. We conclude that the court properly determined the amount of the debt.

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

In this opinion the other judges concurred.

       The trial court did not prepare a written memorandum of decision and did not sign the transcript of its oral decision, as required by Practice Book § 64-1. “The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). We have frequently declined to review claims where 1 he appellant has failed to provide the court with an adequate record for review. See id., 608-609. We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings. See Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993); Banthin v. Shoreline Plumbing & Heating Supply Corp., 30 Conn. App. 637, 640-41, 621 A.2d 769 (1993); cf. Centerbank v. Gross, 31 Conn. App. 38, 39, 622 A.2d 1066 (1993) (no review because unsigned transcript did not reveal basis of trial court’s factual conclusion). In this case, the defendant has filed the transcript and, although we do not encourage this practice, we will review her claim.

       Practice Book § 10-46 provides: “The defendant in the answer shall specially deny such allegations of the complaint as the defendant who intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally. Any defendant who intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative capacity, or as a corporation, or to controvert the execution or delivery of any written instrument or recognizance sued upon, shall deny the same in the answer specifically.”

       The issue may be joined by filing (1) a denial of the complaint, (2) a special defense or (3) a countervailing affidavit.

       Practice Book § 23-18 (a) provides: “In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the judicial authority the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.”


source: Caselaw Access Project

license: Public Domain

text:
    COMMISSIONER OF ADMINISTRATIVE SERVICES v. WILLIAM LEHERISSIER
    (AC 18465)
    Foti, Landau and Mihalakos, Js.
    Argued January 19
    officially released May 16, 2000

      Gary G. Williams, assistant attorney general, with whom were Edward F. Reynolds, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellant (plaintiff).

      Barry T. Pontolillo, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, the state of Connecticut, commissioner of administrative services, appeals from the judgment of the trial court denying the plaintiffs claim for reimbursement for public assistance payments made on behalf of the decedent, Sally Doran. The dispositive issue on appeal is whether the trial court improperly found that an agreement between Doran and her son, the defendant William LeHerissier, constituted an irrevocable funeral fund. We reverse the judgment of the trial court.

The trial court could have reasonably found the following facts. In 1988, Doran was placed in a convalescent home, at which time the plaintiff began making public assistance payments on her behalf. The payments continued until Doran died on April 18, 1994, and totaled $223,901.71. At the time of Doran’s death, her estate consisted solely of a NICOR stock certificate valued at $10,416.11. This stock certificate was in the possession of the defendant pursuant to a power of attorney. Prior to her death, Doran told the defendant that, upon her death, he was to liquidate the stock and pay for her funeral and other expenses attendant to her funeral and to remit the balance to the plaintiff.

Upon Doran’s death, the defendant liquidated the stock, paid for Doran’s funeral expenses in the amount of $4561.28 without the participation of a licensed funeral establishment, paid attorney’s fees in the amount of $646.77 and remitted the balance of $5208.06 to the plaintiff. An affidavit in lieu of administration was filed with the Meriden Probate Court, which authorized the sale of the stock, but did not issue any order of distribution. The defendant received nothing from his mother’s estate.

The plaintiff brought an action against the defendant for reimbursement of the payments, claiming that the defendant should have paid only $1200 for funeral expenses and the plaintiff should have received the remaining balance. The trial court found in favor of the defendant, and this appeal followed.

The plaintiff claims that the court improperly found that Doran created an irrevocable agreement with the defendant for the payment of her funeral expenses pursuant to General Statutes § 42-207. We agree.

It is the defendant’s contention that the delivery of the stock to him coupled with the granting of the power of attorney created an irrevocable funeral account pursuant to § 42-207. Our analysis of whether § 42-207 permits the creation of a private irrevocable trust agreement without the participation of a licensed funeral establishment is guided by well established principles of statutory construction. “Statutory construction is a question of law, and therefore our review is plenary.” Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1211 (1995). “[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.) State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996).

Section 42-207 provides for the creation of an irrevocable funeral contract that can be transferred from one funeral service establishment to another upon request by the beneficiary. Section 42-207 must be read in conjunction with General Statutes § 42-201, which provides in relevant part: “No person, firm or corporation shall enter into a funeral services contract to provide such services, property or merchandise unless such person, firm or corporation is licensed in accordance with the provisions of Chapter 385. ”

The trial court acknowledged, in its memorandum of decision, that the defendant’s claim is governed by § 42-207 but then, failing to address the issue, concluded that because the defendant thought he was in compliance with § 42-207, such an agreement had, in fact, been created. Merely thinking that he had acted in compliance with the statute, however, cannot obviate the intention of the statute. There must be compliance, and in this case compliance means that creation of an irrevocable contract must be with a licensed funeral establishment. To hold otherwise would render § 42-201 meaningless and permit avoidance of a funeral contract with a licensed funeral establishment.

No such contracts, formalities or prior payments were made with any licensed funeral establishment, and no irrevocable funeral services contract was entered into prior to the payment of public assistance, which began in 1988. Furthermore, Doran never created a legally valid prepaid irrevocable funeral account. Since neither Doran nor the defendant fulfilled the requirements of § 42-207, the trial court improperly found that the agreement between them constituted an irrevocable funeral fund.

The defendant maintains that, pursuant to § 42-207, he was authorized to pay up to $4800 for funeral expenses. Since an irrevocable funeral fund did not exist, General Statutes § 17b-84 applies. Section 17b-84 governs the amount that may be expended for funeral expenses for beneficiaries of state assistance. The statute permits “as an allowance toward the funeral and burial expenses” a sum not to exceed $1200. The defendant’s expenditure of $4561.28 exceeded the $1200 statutory limit by $3361.28, and the plaintiff is entitled to reimbursement in that amount.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff in the amount of $3361.28 plus interest, attorney’s fees and costs.

In this opinion the other judges concurred.

       The plaintiff raised three additional claims on appeal, namely, that the trial court (1) failed to find that the defendant exercised improper control and dominion over the assets of the legal representative estate of the decedent under a lapsed power of attorney (2) failed to find that the defendant committed conversion (3) improperly applied a standard of judicial equity to relieve the defendant of liability for his conduct. We need not address these issues because the defendant’s noncompliance with General Statutes § 42-207 is dispositive of this appeal.

       No evidence was adduced at trial as to the value of the stock prior to her death.

       General Statutes § 17b-84 provides in relevant part: “Upon the death of any beneficiary, under the state supplement . . . program the commissioner [of social services] shall order the payment a sum not to exceed . . . one thousand two hundred dollars . . . as an allowance toward the funeral and burial expenses of such deceased. . .

       General Statutes (Rev. to 1993) § 42-207 provides: “An irrevocable funeral contract may be entered into in which the amount held in escrow may be disbursed only upon the death of the beneficiary provided such a contract does not exceed [S4800] and that all interest accumulates to the escrow account and is also inaccessible to tire beneficiary. Such irrevocable funeral contracts may be transferred from one funeral service establishment to another upon request of the beneficiary. The purchase of an irrevocable funeral contract shall not preclude an individual from purchasing other funeral contracts that are revocable.”

       Since the contract is “irrevocable,” it is inaccessible to the beneficiary.

       Chapter 385 sets forth requirements and procedures regarding embalmers and funeral directors.

       Section 42-207 has since been amended to allow up to $5400 for funeral expenses.


author: LAVERY, J.

text:
    MARK BREINER v. STATE DENTAL COMMISSION ET AL.
    (AC 18981)
    O’Connell, C. J., and Lavery and Hennessy, Js.

    Argued February 15
    officially released May 16, 2000

      Jonathan J. Klein, for the appellant (plaintiff).

      Henry A. Saltón and Peter L. Brown, assistant attorneys general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The plaintiff, Mark Breiner, appeals from the judgment of the trial court dismissing an application for injunctive relief to enjoin an administrative proceeding brought against him by the defendant department of public health before the defendant state dental commission (commission). The plaintiff contends that the court improperly (1) denied his request for injunctive relief because exhaustion of administrative remedies would have been a futile exercise and (2) denied him the opportunity to ask certain questions of a witness. We affirm the judgment of the trial court.

The court found the following facts, which are relevant to this appeal: “The vortex out of which this case arises is the public controversy over continued use of mercury, a toxic substance, as an ingredient in dental fillings. Our state environmental regulations generally have recognized its highly toxic properties and monitor its use and disposal, yet it still remains the principal ingredient in what used to be known as silver amalgam utilized for filling teeth. The evidence before the court shows there are two professional schools of thought on the controversy. The American Dental Association position is that there is no persuasive evidence that amalgam use can cause bodily harm to patients or that removal of existing mercury fillings will improve health or cure illness. Others in an emerging holistic school of thought link use of toxic amalgams with health danger and specific ailments. The plaintiff falls into this second camp.

“The plaintiff, a licensed dentist in Connecticut, has practiced for almost three decades and is now the subject of a disciplinary proceeding before the state dental commission arising out of his views, conduct and professional advice about removal of mercury amalgam dental fillings. The commission consists of nine members appointed by the governor under General Statutes § 20-103a (a). Its membership consists of both dentists and nondentists. On January 17, 1997, the department of public health issued a statement of charges against the plaintiff pursuant to General Statutes § 20-114 in which it alleged that the plaintiff engaged in incompetent or fraudulent conduct by claiming that the removal of mercury amalgam fillings could alleviate symptoms of various medical conditions, specifically, amyotrophic lateral sclerosis, anemia and Hodgkin’s disease, and that these claims had been made to different patients in 1985, 1993 and 1994, respectively.

“The plaintiff has been the subject of complaints made by practicing dentists for several years. Some of these were made to the Connecticut State Dental Association, a professional association in which membership is voluntary but which maintains its own ethics council. Other complaints were made to the department of public health. The earliest complaints were not entertained by health department officials because of their recognition that there were two schools of professional thought on the issue. Later complaints and demands of Perry M. Opin, a Connecticut State Dental Association member, resulted in action by an employee of the department of public health, which resulted in the state dental commission, an official administrative adjudicative body, taking a position in favor of the American Dental Association view on the subject. Once that happened, in its quasi-prosecutorial rule, the health department generated a statement of charges against the plaintiff that must now be heard by the dental commission as an adjudicative official administrative agency.”

Once those charges were issued, the commission scheduled a hearing before a panel of the commission on January 26, 1998. The panel consisted of three members: William M. Bridgeford, Jr., a dentist and chairman of the panel; David W. Perkins, a dentist; and Carolyn Augur, a public member.

Perkins and Bridgeford are members of the American Dental Association (ADA). In 1986, the ADA adopted an advisory opinion under the standards of conduct regarding the removal of otherwise healthy fillings based on the alleged toxicity of the mercury component of the amalgam. 3In 1994, the commission held a business meeting. During the meeting, the participants approved a statement that the commission accepts the ADA position on the replacement of amalgams. The statement was adopted without a formal vote and with little debate.

The plaintiff filed a complaint for preliminary and permanent injunctive relief in the Superior Court on January 23,1998, alleging deprivation of procedural due process and free speech under the Connecticut and federal constitutions. The plaintiff alleges that he cannot receive a fair hearing because Perkins and Bridgeford are ADA members, consider themselves bound to follow ADA principles and will thus be unduly biased against the plaintiff. The plaintiff alleges that he cannot receive a fair hearing unless the reviewing panel has no ADA members. On October 7, 1998, the court denied the request for injunctive relief and dismissed the action. The plaintiff appealed to this court.

I

The plaintiff contends that the court improperly concluded that the plaintiff must exhaust available administrative proceedings before seeking injunctive relief in the Superior Court and improperly refused to apply the futility exception to the exhaustion doctrine. We disagree.

The court’s findings of fact are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996). “It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.” Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979). “The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review.” (Citations omitted; internal quotation marks omitted.) Johnson v. Dept. of Public Health, 48 Conn. App. 102, 111, 710 A.2d 176 (1998); see Pet v. Dept. of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988). In addition, a favorable outcome by the administrative adjudication may render judicial intervention unnecessary. Pet v. Dept. of Health Services, supra, 351.

Although important public policy considerations favor exhaustion of administrative remedies before permitting judicial review, a small number of exceptions are permitted for narrowly defined purposes. “One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate.” Mendillo v. Board of Education, 246 Conn. 456, 467, 717 A.2d 1177 (1998). It is futile to seek an administrative remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings. Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995). The plaintiffs preference for a particular remedy does not determine the adequacy of that remedy. “[A]n administrative remedy, in order to be adequate, need not comport with the plaintiff[’s] opinion of what a perfect remedy would be.” (Internal quotation marks omitted.) Savoy Laundry, Inc. v. Stratford, 32 Conn. App. 636, 642, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993).

A

We first address the plaintiffs claim that the testimony of Perkins and Bridgeford on the amalgam issue creates such bias against him that the administrative proceeding is an exercise in futility.

Agency bias is a ground for meeting the “futility” requirement. Clisham v. Board of Police Commissioners, 223 Conn. 354, 369, 613 A.2d 254 (1992). Absent countervailing proof, members of administrative bodies acting in an adjudicative capacity are presumed to be unbiased. Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 100, 596 A.2d 374 (1991). “[T]o prove bias as a ground for disqualification, the plaintiff must show more than an adjudicator’s announced previous position about law or policy .... He must make a showing that the adjudicator has prejudged adjudicative facts that are in dispute.” (Citations omitted; emphasis added; internal quotation marks omitted.) Clisham v. Board of Police Commissioners, supra, 362. The bias must be so prevalent that it is “too high to be constitutionally tolerable.” (Internal quotation marks omitted.) Id.

Perkins testified that he accepted the ADA’s position on mercury amalgams because the ADA has the best information available and is an expert source to rely on for dental standards. Perkins also testified that dentists should be bound by the ADA guidelines. Bridgeford testified that the ADA’s position probably has some basis. Bridgeford was aware that studies regarding the effect of mercury amalgams went “both ways.” Bridgeford also stated that by adopting the ADA position, the commission was attempting to reassure members of the public who are concerned about mercury based amalgams. Bridgeford farther stated that “the presence of silver amalgam alloy restorations in your mouth is not the [etiology] of disease.”

The mere fact that Perkins and Bridgeford have opinions regarding the appropriate standards of practice does not constitute bias, thereby making the administrafive process a futile exercise. Contrary to the plaintiffs assertions, the scientific validity of whether dental fillings that contain mercury are toxic and whether removing mercury fillings because of toxicity is appropriate are not adjudicative facts in this matter. Those issues are not inexorably tied to the facts of the plaintiffs individual case. See Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977). “Adjudicative facts . . . are unique to the individual case and require adjudication.” Broz v. Heckler, 711 F.2d 957, 959 n.1 (11th Cir. 1983). Whether fillings that contain mercury are toxic and should be removed are issues that pertain to the standards of practice of the dental profession. Standards of practice comment on the appropriate conduct of an entire profession, not just a particular individual. Accordingly, standards of practice in this case need not be treated as factual information contained in the record of an administrative proceeding. See General Statutes § 4-178 (6); Pet v. Dept. of Health Services, 228 Conn. 651, 666-67, 638 A.2d 6 (1994). As the United States Court of Appeals for the Second Circuit has noted: “[I]t is not improper for members of regulatory commissions to form views about law and policy on the basis of their prior adjudications of similar issues which may influence them in deciding later cases.” Rombough v. Federal Aviation Administration, 594 F.2d 893, 900 (2d Cir. 1979).

Indeed, taking a prior position on an issue related to a dispute does not disqualify a decision maker on grounds of bias and make the administrative proceeding futile. “[A] decisionmaker [is not] disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not capable of judging a particular controversy fairly on the basis of its own circumstances.” (Internal quotation marks omitted.) Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U.S. 482, 493, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976). For example, in Housing Authority v. Papandrea, 222 Conn. 414, 610 A.2d 637 (1992), the local housing authority sought to enjoin the defendant state housing commissioner from performing a rental assistance and housing voucher program in the town. Id., 416. The defendant moved to dismiss the plaintiff’s action in the Superior Court, claiming that the plaintiff had failed to exhaust available administrative remedies. Id. The plaintiff argued that it was futile to pursue administrative remedies before the commissioner because the commissioner already had commented publicly on the issue in a manner adverse to the plaintiff. Id., 428-30. Our Supreme Court disagreed and concluded that the fact that the commissioner indicated a contrary view on the matter does not absolve “the plaintiff of its obligation to pursue its administrative remedies in an effort to persuade the commissioner that his position was legally incorrect.” Id., 432; see also LaCroix v. Board of Education, 199 Conn. 70, 84-85, 505 A.2d 1233 (1986).

Every member of a profession is presumed to know the governing standards of practice. Altholtz v. Dental Commission, 4 Conn. App. 307, 315, 493 A.2d 917 (1985). Adopting the plaintiffs position would create the unusual result of making administrative adjudicators holding expertise in a given area more vulnerable to bias claims because of their prior conclusions in their chosen field. We agree with the trial court that the plaintiff has failed to exhaust his administrative remedies and has not carried his burden on the futility exception.

B

The plaintiffs second claim is that the 1986 ADA position on amalgam replacement and the commission’s 1994 adoption of that position sufficiently bind Bridgeford and Perkins such that an administrative hearing before them would be futile. We disagree.

Neither the ADA’s position nor the commission’s position binds Perkins or Bridgeford. In its memorandum of decision, the court discussed Bridgeford, who was present at the 1994 commission meeting where the 1986 ADA advisory opinion was adopted: “[Bridgeford] recalled a round table discussion at [the meeting] among the dentist members of the state dental commission in which the lay members did not participate. It lasted between three [and] five minutes. He now says [that] it was not the state dental commission’s intent to set up a rule or regulation and it was not a criteria. Instead, he saw it as a ‘circumstance that, if this would occur, you would have to look at what came before you and this would be one of the ways to evaluate as criteria whether or not this was appropriate or inappropriate, depending on the circumstances that the occasion was surrounded with.’ He did not recall any discussion by the dental commission members of the phrase ‘selves no medical purpose’ at the meeting at which the ADA position was adopted. He indicated by adoption of the ‘American Dental Association’s position’ that the commission was ‘open to reviewing this as part of any other ethical code in the conduct of dentistry as we needed to do on a case specific basis.’ ”

Furthermore, the 1994 position taken by the commission is, as a matter of law, no more than a mere “guideline” or “advisory opinion” and not a statute or regulation requiring compliance. “Where a rule has a substantial impact on the rights and obligations of parties who may appear before the agency in the future, it is a substantive rule, i.e., a ‘regulation’ requiring compliance with the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. (UAPA)].” Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 362, 417 A.2d 358 (1979). Where rules were not adopted and promulgated pursuant to the applicable provisions of the UAPA, they are considered invalid and of no effect. See id., 365.

In Salmon Brook Convalescent Home, Inc., the state commissioner on hospitals and health care denied arate increase requested by the convalescent home because it had violated certain compensation guidelines followed by the hospital commission. Id., 359-60. The court struck down those “guidelines” as illegal regulations because they were applied as substantive rules, but had been not submitted for adoption under required UAPA procedures of notice and comment. Id., 361-64.

In this case, we agree with the trial court’s conclusion that “[t]here has been no showing here that any commissioner has already determined to impose discipline even before hearing evidence in this case or has already decided that [the plaintiff] performed unnecessary or harmful procedures or himself advised them.” Bridgeford’s testimony reveals that adoption of the ADA advisory opinion was not intended as binding on hearing boards, nor was it intended to create a binding rule or regulation. If the commission intended to do so, it would be vulnerable to violating the requirements of the UAPA. See id., 368. The court properly concluded that the positions taken by the ADA and the commission do not bind Perkins and Bridgeford so as to render the plaintiffs administrative hearing a futile affair.

II

The plaintiff also claims that the court improperly prohibited him from asking certain questions of Perkins. We disagree.

The defendants filed a pretrial motion in limine opposing examination of Perkins and Bridgeford. The court heard argument and orally ruled that a limited scope of questioning was available to the plaintiff. Perkins testified at trial, a question was asked, and the court, sua sponte, enforced its prior ruling, stating that the question went beyond the area previously outlined.

The plaintiff was not permitted to ask Perkins how he applies the commission’s advisory opinion regarding mercury amalgams in his own practice. This inquiry raises Perkins’ personal views and his application of those views to his private practice. In essence, the plaintiff was attempting to make an inquiry into the personal mental processes of the decision maker, an inquiry that is well settled in our jurisprudence to be impermissible. Martone v. Lensink, 215 Conn. 49, 54, 574 A.2d 803 (1990); Hendersons. Dept. of Motor Vehicles, 202 Conn. 453, 459, 521 A.2d 1040 (1987). “[A]n adjudicating official may not ordinarily be subject to inquiry concerning the mental process used in reaching a decision.” (Internal quotation marks omitted.) Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 551, 636 A.2d 1360 (1994).

“Just as a judge cannot be subjected to such a scrutiny [of cross-examination], so the integrity of the administrative process must be equally protected.” (Internal quotation marks omitted.) Welch v. Zoning Board of Appeals, 158 Conn. 208, 215, 257 A.2d 795 (1969); see also United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941). The plaintiff urges us to allow inquiry into an adjudicator’s subjective impressions and personal applications of individual pieces of evidence. Such an inquiry, as a practical matter, would allow a litigant to challenge each factual determination of an adjudicator. Id. This could impair decision-making processes by agency adjudicators in that they would be less willing to explore and discuss all options available to them. See Walker v. NCNB National Bank of Florida, 810 F. Sup. 11, 12 (D.D.C. 1993); see also United States v. Morgan, supra, 422. Thus, the court correctly did not allow the plaintiffs inquiry.

The judgment is affirmed.

In this opinion the other judges concurred.

       The ADA advisory opinion states: “Based on available scientific data the ADA has determined through 1 he adoption of Resolution 42H-1986 . . . that the removal of amalgam restorations from the nonallergic patient for the alleged purpose of removing toxic substances from the body, when such treatment is performed solely at the recommendation or suggestion of the dentist, is improper and unethical.”

       The minutes of the meeting indicate that the following action was taken: “Replacement of Amalgams—The commission accepts the American Dental Association’s position on the replacement of amalgams, which is that it serves no medical purpose.”

       The court found that no evidence existed that Perkins or Bridgeford inspired the placement of this statement on the agenda or knew at the time that complaints had been made by other dentists about the plaintiff.

       The plaintiff in his brief and at oral argument refers to Bridgeford’s stated phrase as “etiology of disease,” although the transcript records the spoken phrase as “ideology of disease.” “Etiology,” defined as the cause of a disease or a disorder, is probably the word used by Bridgeford. The word “ideology,” defined as “a systematic body of concepts esp. about human life or culture”; Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993); is likely the result of a transcriber’s error.

       The exact scope of the permitted inquiries as decided by the trial court is not in our record.


author: O’CONNELL, C. J.

text:
    BRENDEN P. LEYDON v. TOWN OF GREENWICH ET AL.
    (AC 18628)
    O’Connell, C. J., and Lavery and Mihalakos, Js.

      Argued November 29, 1999
    officially released May 16, 2000

      Brenden P. Leydon, pro se, the appellant (plaintiff).

      Ralph G. Elliot, for the appellees (named defendant et al).

      MarkR. Kravitz, with whom was Suzanne E. Wachsstock, for the appellee (defendant The Lucas Point Association, Inc.).

      Philip D. Tegeler, Jody L. Yetzer and Martin B. Margulies filed a brief for the Connecticut Civil Liberties Union as amicus curiae.

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The plaintiff, Brenden P. Leydon, appeals from the judgment of the trial court denying his request for declaratory and injunctive relief from an ordinance of the named defendant, the town of Greenwich (town), which he contends discriminates against noninhabitants of the town as to access to its public parks and public beaches. The plaintiff claims that the court improperly determined that the ordinance does not violate public policy or the public trust doctrine. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The town owns and operates a 147 acre park known as Greenwich Point Park (park), which includes a beach area (beach) on Long Island Sound. The town’s authority to maintain the park is derived from 18 Spec. Acts 103, No. 124 (1919), as amended by 27 Spec. Acts 60, No. 71, § 9 (1955) (we will refer to the 1919 special act, as amended by the 1955 special act, as the act). The only road access to the park is over land owned by the defendant The Lucas Point Association, Inc. (association), which in 1945 granted an easement to the town that allowed public access to the park.

The plaintiff, who is not a resident of the town, sought access to the park, but he was denied entry because he could not satisfy a town ordinance that allows only residents or their duly authorized guests to enter the park. The ordinance, contained in the Greenwich municipal code, creates residency restrictions for all of the town’s public parks and public beaches.* ****

Thereafter, the plaintiff filed this action requesting injunctive and declaratory relief. His amended complaint alleged that the town “holds the [p]ark in trust for the use of the general public. . . . [and the ordinance is] void as violative of the public trust” and “void as violative of the public policy of . . . Connecticut as set forth in its ... common law, which guarantees access to municipally held parks and beaches for all citizens.”

After an evidentiary hearing, the court ruled that “[t]he plaintiff . . . has not provided the court with any authority which even remotely suggests that Connecticut applies the New Jersey public trust doctrine* * to its common law. . . . [T]he court [therefore] rejects, as applicable to the present case, the plaintiffs public trust arguments. . . .

“The public policy that was violated by the town, according to the plaintiff, is a well known public policy in . . . Connecticut . . . that all public parks are open to the public at large. The plaintiff, however, [has] not provide[d] the court with any binding authority which suggests that such a public policy exists as applied to the present case. . . .

“[T]he court finds that the plaintiff has not met his burden of proof beyond a reasonable doubt that the Greenwich ordinance [is] invalid.” (Emphasis added; internal quotation marks omitted.)

I

The plaintiff claims that the court improperly declined to apply the public trust doctrine to the facts of this case and improperly determined that there was insufficient evidence to establish that the ordinance violates the public trust doctrine or the public policy of this state. The town counters that the ordinance violates neither public policy nor the public trust doctrine, and that the public trust doctrine is inapplicable here because it does not exist in Connecticut. The town further asserts, alternatively, that the legislature abolished the doctrine, as to the town, through the act. We agree with the plaintiff and reverse the judgment of the trial court.

Our analysis begins with a discussion of our standard of review. Whether the public trust doctrine should have been applied to the facts of this case is an issue of law subject to de novo review. As to the claim of sufficiency of evidence, we review the proceedings of the trial court and “reverse or modify the decision of the trial court ... if we determine that ... its decision is . . . erroneous in law.” (Internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn. App. 98, 109-10, 734 A.2d 575, cert. granted on other grounds, 250 Conn. 926, 738 A.2d 658 (1999).

To resolve the plaintiffs claim, we address three questions of law. We must determine whether (1) the public trust doctrine exists in this state to the extent propounded by the plaintiff, (2) the court improperly declined to apply the doctrine to the facts of this case and (3) the court improperly concluded that the plaintiff failed to produce evidence sufficient to establish that the ordinance violates public policy or the public trust doctrine.

A

The plaintiff claims that because he is a resident of this state he is entitled to access to the park, including the beach area, regardless of the fact that he is not a resident of the town. We agree.

For almost two centuries, our Supreme Court has discussed the concept that land held by a municipality as a public park or public beach is held for the use of the general public and not solely for use by the residents of the municipality. See Hayden v. Noyes, 5 Conn. 391, 397 (1824) (invalidating town bylaw restricting use of common fishery to town inhabitants); Merwin v. Wheeler, 41 Conn. 14, 24 (1874) (public beach open to common use of public); Hartford v. Maslen, 76 Conn. 599, 611, 57 A. 740 (1904) (authority of municipality to control public parks derived from legislature and municipality holds public parks for use by general public); Dawson v. Orange, 78 Conn. 96, 119, 61 A. 101 (1905) (public beach held for use by general public); Orange v. Resnick, 94 Conn. 573, 581, 109 A. 864 (1920) (general public has right to access waterfront by crossing public park); Conners v. New Haven, 101 Conn. 191, 194, 125 A. 375 (1924) (land held by municipality as public park inures to benefit of general public); Epstein v. New Haven, 104 Conn. 283, 284, 132 A. 467 (1926) (control of public parks belongs to state and municipalities managing them act as agencies exercising authority delegated by state); Winchester v. Cox, 129 Conn. 106, 111, 26 A.2d 592 (1942) (land given to municipality for use as park held in trust by municipality as trustee for public); Fenwick v. Old Saybrook, 133 Conn. 22, 29-30, 47 A.2d 849 (1946) (park held for use by general public); Hiland v. Ives, 154 Conn. 683, 690, 228 A.2d 502 (1967) (legislative authority necessary for municipality to own, maintain park for benefit of public as whole, and municipality may not devote park to inconsistent use); Torrington v. Coles, 155 Conn. 199, 201, 230 A.2d 550 (1967) (municipality holds land used for public park not for sole use of inhabitants of municipality but for use of general public); Stradmore Development Corp. v. Commissioners, 164 Conn. 548, 551, 324 A.2d 919 (1973) (lands held by municipality as park are for benefit of people of Connecticut at large); Luce v. West Haven, 238 Conn. 687, 691, 680 A.2d 259 (1996) (Berdon, J., concurring) (municipal property within public domain). These cases clearly reflect that land held by a municipality as a public park or public beach is for the benefit of all residents of this state. We refer to this right as the public trust doctrine, and hold that it does not allow a municipality to discriminate between its residents and nonresidents with regard to access to a public park or public beach.

B

Having determined the scope of the public trust doctrine as it exists in Connecticut, we must next decide whether the court improperly declined to apply the doctrine to the facts of this case. The plaintiff argues that it was improper for the court to decline to apply the doctrine here, whereas the defendants assert that the doctrine is inapplicable in this case because the legislature abolished the doctrine, as to the town, through the act. We agree with the plaintiff.

Although the town contends that the act is beyond our scope of review because the plaintiff has not challenged its validity, we are compelled nevertheless to review the scope of the act because the town has made it an issue.* Because the plaintiff has not challenged the validity of the act, we will assume, without deciding, that the act is constitutionally valid. United Illuminating Co. v. New Haven, 179 Conn. 627, 641, 427 A.2d 830 (“a presumption of constitutionality . . . attaches to a statutory enactment”), appeal dismissed, 449 U.S. 801, 101 S. Ct. 45, 66 L. Ed. 2d 5 (1980). Thus, we need determine only whether the town’s reading of the act— i.e., that the legislature abrogated the common law-public trust doctrine through its passage—is correct. We begin our analysis of the act by noting that statutory construction is a question of law, and our review, therefore, is plenary. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Although the legislature may eliminate a common-law right by statute, the courts will not lightly impute such an intent to the legislature. Munroe v. Great American Ins. Co., 234 Conn. 182, 187, 661 A.2d 581 (1995). We do not read statutes to depart from the common law without a clear indication of legislative intent to do so. Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994). A statute should not be construed as altering the common law unless the intent to do so is fairly expressed in the statute. Gore v. People’s Savings Bank, 235 Conn. 360, 382, 665 A.2d 1341 (1995); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 573, 522 A.2d 763 (1987); State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982).

We must presume that the legislature passed the act in view of the existing law and intended it to be read with it so as to make one consistent body of law. Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 8, 680 A.2d 964 (1996). We must further presume that the legislature did not intend to abridge or modify the common law, a presumption that can be overcome only if the legislative intent to do so is clearly, plainly and unambiguously expressed. Alvarez v. New Haven Register, Inc., 249 Conn. 709, 715, 735 A.2d 306 (1999). Therefore, absent such an affirmative statement to the contrary, the legislature did not intend to change the existing commonlaw doctrine. In re Ralph M., 211 Conn. 289, 300, 559 A.2d 179 (1989).

In construing the act, we must determine and effectuate the intent of the legislature in enacting the legislation. See State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996); Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). To determine legislative intent, we first look to the words of the act itself and then, if appropriate, to the legislative history and circumstances surrounding its enactment, to the public policy behind the act, and to its relationship with other legislation and common-law principles controlling the same general subject matter. Alvarez v. New Haven Register, Inc., supra, 249 Conn. 714-15; Rivera v. Double A Transportation, Inc., 248 Conn. 21, 25, 727 A.2d 204 (1999).

If the language of the statute is unambiguous, we should not look beyond its words. Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981). “A statute does not become ambiguous merely because the parties contend for different meanings.” (Internal quotation marks omitted.) Glastonbury Co. v. Gillies, 209 Conn. 175, 180, 550 A.2d 8 (1988).

The act at issue, as amended, is clear and unambiguous. It provides in relevant part: “The town of Greenwich may establish, maintain and conduct public parks . . . [and] bathing beaches . . '. and may acquire . . . land and property necessary thereto . . . for the use of the inhabitants of said town. . . . [The town] may enact ordinances governing the use by said inhabitants of such parks . . . [and] bathing beaches . . . [and the] ordinances may provide for the imposition of a fine . . . for any violation thereof. ...”

The act specifies that the town is authorized to maintain “public parks . . . [and] beaches,” (emphasis added) but nothing in its language indicates that the legislature intended the town to maintain parks and beaches for the benefit of only its residents. The town argues unsuccessfully that the accompanying language, “for the use of the inhabitants of [Greenwich],” prohibits the town from maintaining parks and beaches for the benefit of anyone other than town residents.

This interpretation is contrary to both Connecticut law and the act’s language. The language of the act does not expressly limit use of the public beach to residents only, as the town argues. Rather, the language clarifies that the town’s parks and beaches are intended to exist for the benefit of the public, including the town’s residents. The legislature did not define the term “bathing beaches” or specify that it intended the town’s beaches to be nonpublic. It also did not define the term “use” or specify that it intended that term to mean “exclusive use,” which it could have done by placing the word “sole” or “exclusive” immediately prior to the word “use.” Moreover, the town acknowledges that the park is a public park and that the beach is a public beach, and previously we discussed that public parks and public beaches exist for the benefit of the residents of the entire state. See Hayden v. Noyes, supra, 5 Conn. 397; Merwin v. Wheeler, supra, 41 Conn. 24; Hartford v. Maslen, supra, 76 Conn. 611; Dawson, v. Orange, supra, 78 Conn. 119; Conners v. New Haven, supra, 101 Conn. 194-95; Epstein v. New Haven, supra, 104 Conn. 284; Winchester v. Cox, supra, 129 Conn. 111; Fenwick v. Old Saybrook, supra, 133 Conn. 29-30; Hiland v. Ives, supra, 154 Conn. 690; Torrington v. Coles, supra, 155 Conn. 201; Stradmore Development Corp. v. Commissioners, supra, 164 Conn. 551; Luce v. West Haven, supra, 238 Conn. 691 (Berdon, J., concurring).

If the legislature intended the town’s bathing beaches to be either nonpublic or for the sole use of the town’s residents, or both, the legislature could have so stated. Certainly, the legislature is capable of providing explicit language when that is its intent, and here there is no explicit language abrogating the public trust doctrine. Because the act is devoid of such explicit language, we will not presume that the legislature intended it to operate in derogation of the doctrine. See Glastonbury Co. v. Gillies, supra, 209 Conn. 179 (court may not read into statutes provisions not clearly stated therein); Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988) (court may not impute to legislation language not clearly intended); Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986) (legislature’s intent derived “not in what it meant to say, but in what it did say”). We should not read into clearly expressed legislation an intent that does not find expression in its words. Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979); Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975). Because the legislature did not intend to modify the public trust doctrine through passage of the act, the principles of justice on which the common law is founded should be perpetuated. See Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 291-92, 627 A.2d 1288 (1993).

Because we are persuaded that the language of the act is clear and unambiguous, and that nothing in its language expressly overrides the public trust doctrine, we may not examine the act’s legislative history, the circumstances surrounding its enactment or the policy it was intended to implement. Caldor, Inc. v. Heffernan, supra, 183 Conn. 571. Accordingly, we conclude that the act did not abrogate the public trust doctrine and that the doctrine, therefore, should have been applied to the facts of this case.

C

Having concluded that it was improper as a matter of law for the court to decline to apply the public trust doctrine to the facts of this case, we next address whether the court improperly concluded that the plaintiff failed to satisfy his burden of proving that the ordinance violates public policy and the public trust doctrine. We hold that the plaintiff satisfied his burden of proving beyond a reasonable doubt that the portions of the ordinance limiting access to the park and beach to only the town’s inhabitants are void as violative of public policy and the public trust doctrine.

We begin with the assumption that the ordinance is valid. See Pollio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995). The ordinance is valid, however, only to the extent that it is consistent with the power delegated to the town through the legislature’s passage of the act. See Smith v. Zoning Board of Appeals, 227 Conn. 71, 82, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994), citing Bishop v. Board of Zoning Appeals, 133 Conn. 614, 619, 53 A.2d 659 (1947) (“ordinance must rest primarily upon the enabling act and must not go beyond the power delegated by it” [emphasis added]). The town may not enlarge a grant of power from the legislature. Baker v. Norwalk, 152 Conn. 312, 318-19, 206 A.2d 428 (1965).

Portions of the ordinance exceed the power granted to the town in the enabling legislation, and the offensive portions of the ordinance are, therefore, invalid. As we discussed previously, the town is required to allow state residents the same access to its public beaches and public parks as it offers to its residents. The ordinance, however, discriminates against state residents who are not town residents as to access to its public beaches and public parks because it provides that uonly inhabitants of the Town may enter, remain upon or use [the town’s] parks .... [and] public beaches.” (Emphasis added.) This language, as well as all other language in the ordinance discriminating against residents of this state who are not inhabitants of the town, violates public policy and the public trust doctrine and is, therefore, invalid.

The court was presented with evidence that the public trust doctrine and the public policy of this state render the town’s ordinance invalid. On the basis of our analysis of the impact of those doctrines on the facts of this case, we hold that the court could not reasonably have concluded that the plaintiff failed to establish beyond a reasonable doubt that the ordinance is invalid. Accordingly, we conclude, as a matter of law, that the plaintiff sustained his burden of proving beyond a reasonable doubt that the ordinance is invalid.

II

We will next address the concerns of the association. The association argues that the easement it granted to the town in 1945 will be overburdened if this court grants the relief requested by the plaintiff. It also asserts that opening the beach to nonresidents will have a negative environmental impact on the park and the surrounding property. The association finally asserts that its private property interest in the access road “trumps” any rights the plaintiff may have to access the park.

As to the first issue, the court found unpersuasive the association’s argument that the easement would be overburdened. The court found, inter alia, that because the right-of-way already is at maximum capacity on many occasions during summer months, the burden on the easement “cannot increase [because it] is already burdened to the maximum extent possible.” This ruling was not clearly erroneous in light of the facts found by the court and was based on a correct application of the law to those facts. We therefore agree with the court’s ruling as to that issue.

As to the second issue, the court found that if the park is “open to the public without restriction, there would be a significant negative environmental effect on the [park] and the surrounding area.” The court, however, did not rule on this issue, concluding that “ [w]hether this type of environmental concern can override certain constitutional rights is an issue saved for another day.” Accordingly, we do not reach this issue.

As to the third issue, the court found that “the [association] has proved . . . that the easement [was granted] with the intention that only [town] residents (and their guests) use the easement.” The court did not reach the issue of the effect of this intention on the plaintiffs claims. Moreover, the plaintiff argues that because the association did not raise the issue of the infringement of constitutionally guaranteed property rights in the trial court or request an articulation on this point, that claim can not be reviewed by this court. We agree with the reasons set forth by the plaintiff. Additionally, because the trial court did not reach this claim, we do not reach it.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff.

In this opinion the other judges concurred.

       The other defendants in this action are the board of selectmen of the town of Greenwich; John B. Margenot, Jr., a former first selectman of the town of Greenwich; and The Lucas Point Association, Inc., which owns real property that provides the only access to Greenwich Point Park, which is the subject of this action.

       The plaintiff raises several other claims that we do not address because our resolution of this claim is dispositive of the appeal.

       In its memorandum of decision, the court referred to the park and the beach together as the “point.” We use the term park to refer to the entire park, including the beach area, and use the term beach to refer only to the beach portion of the park.

       Special Act No. 124 (1919) provides: “The town of Greenwich may establish, maintain and conduct public parks, playgrounds, bathing beaches and recreation places, together with such means of transportation thereto as may be necessary or desirable, and may acquire by purchase or lease or otherwise, land and properly necessary thereto, and may equip said parks, playgrounds, bathing beaches and recreation places with all necessary buildings and equipment for the use of the inhabitants of said town. Said public parks, playgrounds, bathing beaches and recreation places and their appurtenances shall be under the direction of the selectmen of said town and such moneys as shall be required for the aforesaid purposes shall be appropriated in the same manner as is provided for the other appropriations for the expenses of said town by the act changing the form of government of said town, approved July 20,1909. The money appropriated for any deficiency in maintaining and conducting parks, playgrounds, bathing beaches, recreation places and means of transportation shall be raised by taxation. Appropriations for cost of land or permanent improvements shall be met by taxation or the issuance of bonds as the town may elect.” 18 Spec. Acts 103, No. 124 (1919).
      Section 9 of Special Act No. 71 (1955) provides: “The second sentence of number 124 of the special acts of 1919 is amended to read as follows: Said public parks, playgrounds, bathing beaches and recreation places and their appurtenances shall be managed by the chief administrative officer under the supervision and control of the selectmen of said town, and said selectmen may enact ordinances governing the use by said inhabitants of such parks, playgrounds, bathing beaches and recreation places together with means of transportation thereto, and governing the conduct of said inhabitants thereon, which ordinances may provide for the imposition of a fine not exceeding twenty-five dollars for any violation thereof. Such moneys as shall be required for the aforesaid purposes shall be appropriated in the same manner as is provided for other appropriations for the expenses of said town.” 27 Spec. Acts 60, No. 71, § 9 (1955).

       The ordinance provides in relevant part: “[Sec. 7-30] ... In accordance with No. 124 of the Special Acts of 1919, as amended, and recognizing that public parks . . . have been acquired . . . for the use of the inhabitants of the Town . . . only inhabitants of the Town may enter, remain upon or use [the town's] parks ....
      “[Sec. 7-36] . . . [RJecognizing tha1 public beaches . . . have been acquired . . . for the use of the inhabitants of the Town . . . cmly inhabitants of the Town may enter, remain upon or use public beaches . . . except for guests of inhabitants of the Town ....
      “[Sec. 7-37] . . . Beach passes may be obtained by inhabitants of the Town ....
      “[Sec. 7-38] ... No person shall enter upon . . . any beach without a duly issued beach pass ....
      “[Sec. 7-39] . . [Ejach family of inhabitants . . . may obtain admittance of not more than eight (8) guests on any one day to any Town owned beach . . . provided such guests are actually visiting with said family’s residence and . . . [the inhabitant] accompan[ies] said guests and remains with them at the facility. . . .
      “[Sec. 7-56] ... A. Any person violating any of the provisions of [the] ordinance shall be subject to a fine not to exceed twenty-five ($25.00) for each offense. . . .
      “C. Any person obtaining a beach pass ... or the admission of a guest by the making of a false statement under oath shall have any and all rights or privileges to (1) Use the parks or beaches . . . suspended for a period of one year . . . .” (Emphasis added.)

       The New Jersey Supreme Court has held: “[W]here the upland sand area is owned by a municipality . . . and dedicated to public beach purposes . . . the public trust doctrine dictates that the beach . . . must be open to all . . . [and municipalities] may not discriminate in any respect between their residents and non-residents.” Neptune City v. Avon-by-the-Sea, 61 N.J. 296, 308-10, 294 A.2d 47 (1972).

       The defendants claim that our Supreme Court has expressly considered and rejected the notion that the Connecticut public trust doctrine encompasses dry sand beaches, such as the beach at issue here. They assert, relying on Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153 (1981), that our public trust doctrine extends only to navigable waterways and the lands beneath them between the high and low tide marks.
      The court in Leabo, however, neither expressly considered nor rejected the application of our public trust doctrine to dry sand beaches. In fact, the Leabo court stated that “while other jurisdictions have recognized public access to the dry sand beaches, they have done so on theories which do not apply to the present case.” (Emphasis added.) Id., 618. Furthermore, Leabo concerned “public access to . . . [a] privately owned dry sand area”; (emphasis added) id., 617; whereas this case concerns public access to a public beach and park, both of which are owned by a municipality. Our Supreme Court also has determined that the public has a “right ... to reach the water front by crossing a public park.” Orange v. Resnick, 94 Conn. 573, 581, 109 A. 864 (1920).

       The defendants attempt to distinguish the public park “trust” doctrine from the public trust doctrine and argue that neither confers on the plaintiff the right to access the park. According to the defendants, the public park “trust” doctrine applies only to parks and not to beaches, and the public trust doctrine is not applicable to dry sand beaches. In light of the cases cited herein, we conclude, to the contrary, that both doctrines confer upon the plaintiff the right to access the beach, and that the public park trust doctrine confers upon him the right to access the park, including the beach area of the park. To avoid confusion between these two doctrines, however, we refer to the doctrines, collectively, as the “public trust doctrine.”

       We do not address whether a violation of the public trust doctrine would occur if the town were to charge a nominally higher fee to nonresidents than town residents for access to the park and beach because that issue is not before us. Accordingly, although we hold that the public trust doctrine prohibits the town from discriminating against nonresidents as to access to the park and beach, we reserve for another day the issue of whether it is permissible under the doctrine for the town to add a de minimis surcharge to the entrance fee charged to nonresidents.

       The town argues that because the plaintiff did not challenge the validity of the act or demonstrate at trial that the act is incompatible with the public trust doctrine, those issues may not be considered by this court on appeal. This argument is fallacious because the town itself has brought the scope of the act into question by using it as a basis for the proposition that the town ordinance does not violate the public trust doctrine.

       The town argues that because the legislature alone determines whether and the extent to which a municipality may establish or conduct public parks, the act overrides the public trust doctrine. The town’s reliance on Baker v. Norwalk, 152 Conn. 312, 314-15, 206 A.2d 428 (1965), for this proposition is misplaced, however, because the language cited in Baker stands for the proposition that a municipality may exercise only those powers that are expressly granted to it or are necessary to carry out its objects and purposes, and the powers granted in Baker by the legislature to the city of Norwalk in Ihe act at issue in that case and necessitated by that act are entirely consistent with the common-law doctrine. Id., 316-19.

       The ordinance refers to the park as a “public park” and to the beach as a “public beach.” The town, in its brief, refers to the beach as a “public beach.” We agree that the park and beach are properly characterized as “public.”

         Pollio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995) (“presumption of validity is accorded to municipal ordinances [and] invalidity [must be] established beyond a reasonable doubt”).


text:
    BRENDEN P. LEYDON v. TOWN OF GREENWICH ET AL.
    (AC 18709)
    O’Connell, C. J., and Lavery and Mihalakos, Js.

      Argued November 29, 1999
    officially released May 16, 2000

      Peter A. Thalheim, pro se, the appellant.

      Gregory T. D’Auria, assistant attorney general, with whom, on the brief, was Carolyn K. Querijero, assistant attorney general, for the appellee (Richard Blumenthal, attorney general).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

Peter A. Thalheim attempts to appeal from the trial court’s order to show cause and the court’s imposition of sanctions against him in the underlying matter, Leydon v. Greenwich, 57 Conn. App. 712, 750 A.2d 1122 (2000). Because the appellant was not a party to that action, this court lacks jurisdiction, and the appeal is dismissed.

The following facts and procedural history are relevant to our resolution of this appeal. In April, 1995, Brenden P. Leydon filed an amended complaint challenging an ordinance of the defendant town of Greenwich (town) that restricts use of its public parks and public beaches to residents of the town. On August 30, 1995, the trial court ordered that notice be published inviting interested parties to apply to the court to be made parties to that action. The court’s order required Leydon to publish the notice prior to September 29, 1995, in the Greenwich Time newspaper and further stated that any person desiring to be made a party to the action must apply within twenty-one days of the publication date. Thalheim did not move to intervene to become a party.

The court heard the underlying case in early 1998 with final arguments scheduled for March 26, 1998. On March 23, 1998, the trial judge received, by hand delivery through the clerk’s office, a twenty-three page “Amicus Memorandum of Law In Opposition Of Relief Claimed By Plaintiff,” signed by Thalheim. Although the appellant is an attorney admitted to the practice of law in this state, his brief did not identify him as purporting to represent any party in the action, nor did it represent that he had filed an appearance in the case or had been granted permission to file an amicus curiae brief. On March 26,1998, the court discussed the receipt of the brief with the attorneys in the case. The consensus was that the court should not read the brief, and it did not do so.

On July 8, 1998, the court rendered judgment for the defendants in the underlying action and on July 22, 1998, issued an order to the appellant to appear and show cause why he should not be sanctioned for filing an amicus curiae brief without following the rules of practice. The court held that an amicus curiae brief could not be filed without first obtaining permission from the court. At the July 22,1998 show cause hearing, the court ordered Thalheim to read the Connecticut Practice Book, to listen to audiocassettes available from the Connecticut Bar Association pertaining to civil practice and procedure in Connecticut courts, and to certify to the court within four months that he had listened to the tapes and read the entire Connecticut Practice Book, including the rules concerning professional conduct.

Thalheim attempts to appeal from the court’s imposition of the sanction and raises eleven issues for our consideration. The appeal is dismissed.

We commence our analysis by noting that this is not a separate and distinct proceeding, but one brought within the framework of the underlying Leydon v. Greenwich case. Appeals from the Superior Court to this court are governed by General Statutes § 52-263, which expressly provides that appeals may be taken by an aggrieved party.

After this appeal was fully briefed, our Supreme Court decided State v. Salmon, 250 Conn. 147, 167, 735 A.2d 333 (1999) (en banc), in which the court clarified that only an actual party to the underlying action may file an appeal. Salmon was a criminal case in which a bondsman was attempting to appeal from the trial court’s denial of his motions for rebate of a forfeited bond and release from the bond. Id., 151. Salmon controls our decision here. Because Thalheim was not a party to the underlying action, he has no right of appellate review pursuant to § 52-263. Accordingly, the present attempted appeal is not proper and must be dismissed.

The appeal is dismissed.

In this opinion the other judges concurred.

       The court stated: “I have not decided yet what I am doing about the improperly filed amicus curiae brief, but I intend to do something. I will definitely not read it, but I have a lawyer who has not requested permission to file an amicus curiae, and I think it needs to be addressed. So, at some point, I will do that, probably after I render [a] decision.”

       Thalheim disagrees with the court. In view of our disposition of this matter, we do not reach this issue.

       General Statutes § 52-263 provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the Superior Court... if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment of the court. . . .”


author: HENNESSY, J.

text:
    HOUSING AUTHORITY OF THE CITY OF NORWALK v. VALERIE DAVIS ET AL.
    (AC 18464)
    Schaller, Hennessy and Daly, Js.
    Argued January 18
    officially released May 23, 2000

      William B. Westcott, for the appellants (defendants).

      Donna M. Latturulo, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendants, Valerie Davis, Shonda Davis and Hosan Davis, appeal from the judgment granting possession of the leased premises in which they were residing to the plaintiff, the housing authority of the city of Norwalk, in a summary process action. On appeal, the defendants claim that the trial court improperly held that (1) conduct occurring off the defendants’ rental premises was sufficient for a finding of serious nuisance under General Statutes § 47a-15 (D) and (2) possession of marijuana with intent to sell was sufficient to constitute a serious nuisance under § 47a-15 (D). Because we determine that the defendants’ claims are moot, however, we do not reach these issues and dismiss the appeal for lack of subject matter jurisdiction.

The relevant factual and procedural background follows. The plaintiff brought a three count summary process action against the defendants, alleging that they (1) either used, sold or possessed illegal drugs near their rental premises in violation of their public housing lease, (2) engaged in conduct that constituted ordinary nuisance in violation of General Statutes § 47a-32 and (3) engaged in conduct that was a serious nuisance in violation of § 47a-15 (D). The defendants filed an answer and a special defense alleging that they cured the alleged violation of the lease.

On May 21, 1998, the court rendered judgment of immediate possession in favor of the plaintiff on the first count, which alleged breach of the lease, and on the third count, which alleged serious nuisance, and in favor of the defendants on the second count, which alleged nuisance. The defendants now appeal, challenging the decision of the court on the serious nuisance count. The plaintiff claims that this court lacks jurisdiction because the defendants’ claims are moot. We agree.

“Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996).

The plaintiff contends that the present appeal is moot because we can grant the defendants no practical relief. If this court were to reverse the trial court’s judgment on the third count of the plaintiffs complaint, the judgment for the plaintiff on the first count would remain in effect. No practical relief, therefore, can follow from this appeal. See In re David L., 54 Conn. App. 185, 192-93, 733 A.2d 897 (1999). Because the defendants’ claims are moot, we dismiss the appeal for lack of subject matter jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       In their preliminary statement of issues, the defendants claimed, among other things, that the court improperly found that the defendants breached their public housing lease. The defendants, however, did not brief this issue. Thus, we consider it to be abandoned. See Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991). We are aware that the original notice of judgment from the trial court did not reflect that the judgment was based on breach of lease as well as serious nuisance. We also are aware that a corrected notice stating that the judgment was based on both of those grounds was not issued until after 1he defendants filed their brief. We nonetheless conclude that Ihe trial court’s oral findings were adequate to inform the defendants that the plaintiff prevailed on both bases.
      The court stated that “[djespite the good advice and the help that the mother gave, the son defied his own mother. I am not thoroughly impressed that [Ilosan] Davis has seen the error of his ways. Clearly ... by his own admission he sold drags.” It went on to conclude that “there was no cure in evidence presented. The court finds the issue in favor of the plaintiff on the grounds of serious nuisance. Certainly, the court cannot find the issues for the plaintiff on the second count. . . . [S]o the judgment is going to enter in favor of the plaintiff for possession of the premises.”

       In so concluding, we find no exception to permit review of the defendants’ claims. See, e.g., Conetta v. Stamford, 246 Conn. 281, 295, 715 A.2d 756 (1998) (reviewing issue despite mootness where issue “ ‘capable of repetition, yet evading review’ ”). Because the defendants are tenants in a public housing project, adverse collateral consequences may flow from the judgment of eviction. See Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993). Such potential adverse consequences have been held to defeat a claim of mootness. Id., 766. In this case, however, any such adverse collateral consequences would not be avoided even if we were to review and reverse the judgment as to the serious nuisance issue because, as noted in the body of our opinion, the defendants failed to challenge the court’s finding of breach of lease.


author: PER CURIAM.

text:
    JAMES DIGGS v. COMMISSIONER OF CORRECTION
    (AC 19465)
    O’Connell, C. J., and Landau and Daly, Js.

    Argued January 27
    officially released May 23, 2000

      Vicki H. Hutchinson, special public defender, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, was Jonathan C.

      Benedict, state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The petitioner, James Diggs, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The sole issue raised on appeal is that “[t]he habeas court erred when it denied the petition for writ of habeas corpus.” Following a review of the record and briefs and after hearing the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. Accordingly, we affirm the judgment of the habeas court.

The record discloses that the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) on November 9, 1989. The conviction was affirmed in State v. Diggs, 219 Conn. 295, 592 A.2d 949 (1991). The petitioner then filed the present petition for a writ of habeas corpus.

The habeas court’s dismissal of the petitioner’s petition was predicated on a factual review of the petitioner’s claim. “This court does not retry the case or evaluate the credibility of the witnesses. . . . 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.” (Citation omitted; 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).

In a thoughtful and comprehensive memorandum of decision, the habeas court analyzed the petitioner’s claims and the law applicable thereto. Diggs v. Commissioner of Correction, 46 Conn. Sup. 344, 750 A.2d 1161 (1999). Because the habeas court’s memorandum of decision fully addresses the sole issue raised in this appeal, we adopt it as a proper statement of the facts and the applicable law. It would serve no useful purpose for us to repeat the discussion contained therein. See Scott v. Salinas, 57 Conn. App. 649, 749 A.2d 1228 (2000). We conclude that the habeas court had before it sufficient evidence to find as it did.

The judgment is affirmed.


author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. ANDREW L. LAMOTHE
    (AC 17812)
    Foti, Mihalakos and Zarella, Js.
    Argued January 26
    officially released May 23, 2000

      Joseph A. Moniz, with whom was Mario R. Borelli, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Andrew L. LaMothe, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 and one count of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. On appeal, the defendant claims that (1) his due process rights were violated by the state’s inability to provide a more specific date on which the alleged crimes occurred and (2) there was insufficient evidence to support his conviction beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant were neighbors. The victim, who was bom on June 22,1981, was approximately five years younger than the defendant. The defendant began visiting the victim’s house when he was eighteen years old. Although the defendant ostensibly visited to spend time with the victim’s brother and friends, he spent most of his time with the victim.

The victim’s mother noticed the attention that the defendant was paying to her daughter and told him that he was no longer welcome at their house. During this period of time, the defendant and the victim periodically talked on the telephone. On a few occasions, at the end of their conversations, the defendant would ask the victim to meet him outside her house late at night. On several occasions, the victim agreed to do so, but after the victim snuck out of her house she discovered that the defendant was not there to meet her.

In June, 1994, before the victim’s thirteenth birthday, the defendant asked her to meet him outside her house at 1:30 a.m. The victim snuck out of her house, met the defendant, walked with him to his house and went to his bedroom. The defendant and the victim proceeded to have sexual intercourse. The victim began crying and told the defendant that it hurt and she was going to scream. The defendant threatened to put a sock in her mouth to keep her quiet. Afterward, at approximately 3:30 a.m., the defendant walked the victim home. During this and subsequent encounters, the victim thought she was in love with the defendant.

On the following Monday, the victim told one of her Mends that she had had sex with the defendant. The defendant also told one of his friends, in June or July, 1994, about the sexual encounter. Subsequently, the defendant’s friend asked the victim whether it was true that she had had sex with the defendant. The victim became embarrassed and angry, and told the defendant’s friend that she hated him because he knew about what had happened.

The defendant and the victim did not talk again until September, 1994, when they resumed talking on the telephone. The defendant asked the victim to meet him again at 1:30 a.m. one Saturday morning, and she agreed to do so. They met and had sexual intercourse at the defendant’s house at approximately 3:30 a.m.

One evening in December, 1994, the defendant went to the victim’s house at approximately 7 p.m. and asked her to come to his house. The victim’s parents were not home. The victim and the defendant went to his house and had sex for the third time. The victim told her friend about this encounter as well. On April 13, 1995, the victim told Daniel Gottschall, a physician who examined her, that she had had sexual intercourse with a nineteen year old man.

I

The defendant first claims that the court improperly denied his motion for a new trial. The defendant claims that his due process rights were violated when the state failed to specify the dates on which the offenses occurred, thereby limiting his ability to present an alibi defense. We decline to review this claim because the defendant did not properly preserve this issue for appeal.

The following additional facts are necessary for a resolution of this issue. The state filed an information dated August 29,1995, charging the defendant with one count of sexual assault in the first degree “on or about 6/94, 9/94 and 12/94”; two counts of sexual assault in the second degree “on or about 6/94, 9/94 and 12/94”; and three counts of risk of injury to a child “on or about 6/94, 9/94 and 12/94.” On June 23, 1995, a substitute information was filed, charging the defendant with one count of sexual assault in the first degree “on or about 6/94”; two counts of sexual assault in the second degree “on or about 9/94” and “on or about 12/94”; and three counts of risk of injury to a child “on or about 6/94,” “9/94” and “12/94.”

On August 29,1995, the state filed a demand for notice of an alibi. On September 8, 1995, the defendant filed a response, stating that the demand filed by the state was “too vague as to when the alleged offense or offenses were to have been committed” to allow him to “determine if he has an alibi” defense. Additionally, the defendant in his response sought an order from the court “relieving him of such compliance until a more specific time, date and place is stated by the prosecuting authority.” The record does not reflect any action by the court on this request. On September 10, 1995, the state filed another substitute information.

Significantly, the record reflects that the defendant’s trial counsel neither filed a motion for a bill of particulars pursuant to Practice Book §§ 41-20 and 41-21 nor moved to dismiss the information pursuant to Practice Book §§ 41-8 through 41-11. A request for a bill of particulars is the appropriate procedural mechanism for the defendant “to obtain a more precise statement of the offense charged in the information in order to prepare a defense.” (Internal quotation marks omitted.) State v. Flanders, 214 Conn. 493, 503, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). Practice Book § 41-21 provides in relevant part that “[t]he judicial authority shall order that a bill of particulars disclose information sufficient to enable the defendant to prepare the defense, including but not being limited to reasonable notice of the crime charged and the date, time, and place of its commission.” Failure by the defendant to utilize these pretrial motions constituted a waiver. Practice Book § 41-4. Furthermore, “[bjecause the defendant’s claim did not allege an error made in the course of the trial, a motion for a new trial pursuant to [Practice Book § 42-53] was not the proper vehicle by which to pursue the claim.” State v. Synakorn, 239 Conn. 427, 435, 685 A.2d 1123 (1996).

The defendant, therefore, did not properly raise or preserve this issue for appeal. Because our review is limited to matters in the record, we will not address issues not decided by the trial court. Practice Book § 60-5; State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) (“[o]nly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court”).

The defendant also has not sought to raise a claim of entitlement to the extraordinary review provided under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). We therefore decline to review this unpreserved claim.

II

The defendant claims next that the evidence presented at trial was insufficient to support the jury’s finding of guilt under §§ 53a-70 (a) (2), 53a-71 and 53-21. We disagree.

“In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

The defendant claims that the victim’s version of the events “confounds common sense and logic” and is “utterly implausible. ” It is the province of the jury, however, to draw reasonable and logical inferences from the facts found. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). “We do not sit as the [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” Id. We conclude that the cumulative effect of the evidence was sufficient to allow the jury to find beyond a reasonable doubt that the defendant did, in fact, commit the crimes charged.

The defendant also claims that his due process rights were violated because the state did not present sufficient evidence for the jury to find that the victim was younger than thirteen at the time that sexual intercourse occurred. The defendant, however, ignores the victim’s testimony that the first encounter took place in June, 1994, prior to her thirteenth birthday.

In this case, the jury reasonably could have concluded that the defendant and the victim engaged in sexual intercourse on three separate occasions. Additionally, the jury reasonably could have found that on the first of those three occasions, the victim was not yet thirteen years old. In addition to the testimony of the victim, the state presented constancy of accusation witnesses as well as the testimony of the defendant’s friend, who testified that the defendant admitted to having sex with the victim.

The credibility of the witnesses is for the jury to determine. See State v. Santiago, 245 Conn. 301, 318, 715 A.2d 1 (1998). The jury may “draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) States v. Berger, 249 Conn. 218, 224, 733 A.2d 156 (1999). As previously noted, our function is to determine from the record whether the jury reasonably could conclude, from the facts it found and the inferences reasonably drawn from them, viewed in a light most favorable to the state, whether the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Ingram, supra, 43 Conn. App. 809. We conclude that there was sufficient evidence from which the jury reasonably could have found the defendant guilty of all charges beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Although the defendant included the issue of lack of specificity in his written motion for a new trial, he did not pursue this issue at oral argument on the motion, and the trial court did not rule on it.