author: ALVORD, J.

text:
    CHARLES GREEN v. COMMISSIONER OF CORRECTION
    (AC 29040)
    Lavine, Beach and Alvord, Js.
    Argued November 19, 2009
    officially released February 16, 2010

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ALVORD, J.

The petitioner, Charles Green, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he was not deprived of the effective assistance of trial counsel. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. Following a 1998 jury trial, the petitioner was convicted of murder as an accessory, conspiracy to commit murder and criminal possession of a pistol or revolver. Following a direct appeal, this court reversed in part the trial court’s judgment, upholding the petitioner’s conviction of murder as an accessory and criminal possession of a pistol or revolver but setting aside his conviction of conspiracy to commit murder on the ground of insufficient evidence. State v. Green, 62 Conn. App. 217, 247-48, 774 A.2d 157 (2001). Our Supreme Court granted certification to appeal and affirmed the judgment of this court. State v. Green, 261 Conn. 653, 804 A.2d 810 (2002).

The Supreme Court, quoting from the opinion of the Appellate Court, set forth the following facts that the jury reasonably could have found. “Tyrese Jenkins, Hopeton Wiggan, David D., Kenny Cloud and Brucie B. were members of a gang [known as the Island Brothers] named after a housing [complex] located in the Fair Haven section of New Haven. On October 7, 1996, at approximately 11:15 p.m., [Jenkins, Wiggan, David D., Cloud and Brucie B.] went to [another] housing [complex], also located in New Haven and referred to as the ghetto, to settle [an apparent] dispute with the [petitioner] [and some of his companions] ....

“Cloud stayed in the car, while Jenkins, Wiggan, David D. and Brucie B., with guns at their sides, went looking for the [petitioner]. The four men entered the housing [complex] through a hole in a fence and, as they approached, they noticed the [petitioner] along with three others, namely, Duane Clark, [Bobby Cook] and Ryan Baldwin, standing and talking near a green electrical box. When the [petitioner] and the others saw the gang members approaching, Clark exclaimed, Shoot the motherfucker, and a gunfight ensued.

“When the first shots were fired, Wiggan and Brucie B. ran for cover behind a dumpster. Jenkins ran diagonally across a parking lot located in the [housing] complex. Both sides exchanged a barrage of gunfire. As Wiggan, Brucie B. and Jenkins retreated from the complex, Jenkins was shot in the leg. Jenkins hobbled quickly away . . . but another bullet struck him and he collapsed. Wiggan and Brucie B. went back into the complex and found Jenkins sitting up against a wall. [Wiggan and Brucie B.] picked up Jenkins and carried him to the car. Cloud, David D., Brucie B. and Wiggan took Jenkins to Yale-New Haven Hospital, where he died from his injuries.

“Leroy Townsend . . . witnessed the beginning of the disturbance as he stood near the electrical box, smoking marijuana. At trial, Townsend testified that he had heard Clark say, Shoot the motherfucker, and that he saw the [petitioner] shoot Jenkins.” (Internal quotation marks omitted.) Id., 657-58.

On June 6, 2006, the petitioner filed his fifth amended habeas corpus petition, alleging that his trial counsel, Patricia Buck Wolf and Linda Stambovsky, provided ineffective assistance because they (1) failed to raise a claim of self-defense on his behalf, (2) pursued a weak alibi defense at trial, (3) failed to cross-examine Townsend adequately about the effect of his marijuana use on his ability to perceive and to recall the events on the night in question and (4) failed to introduce expert testimony regarding the effect of Townsend’s marijuana use on his ability to make accurate observations. The court denied the petition, concluding that the petitioner failed to establish deficient performance with respect to claim three and that he failed to demonstrate that he had been prejudiced by the alleged ineffective assistance set forth in claims one, two and four. After the court granted his petition for certification to appeal, the petitioner filed the present appeal challenging those determinations.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . .

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ....

“Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Internal quotation marks omitted.) Necaise v. Commissioner of Correction, 112 Conn. App. 817, 820-21, 964 A.2d 562, cert. denied, 292 Conn. 911, 973 A.2d 660 (2009).

I

The petitioner’s first claim is that the court improperly concluded that the failure of his trial counsel to assert a claim of self-defense at trial did not constitute ineffective assistance. Specifically, he argues that such a defense was supported by the facts of the case and that it would not have been inconsistent with his alibi defense. Because the petitioner was charged as an accessory, and not as the principal, he claims that he did not have to be physically present at the time the shooting took place and that it would not be inconsistent to argue to the jury that he was at the apartment of Latania Baldwin when Jenkins was shot and that the shooter acted in self-defense.

At the habeas trial, Wolf and Stambovsky both testified that the petitioner initially and consistently told them that he was watching television with his Mend, Ryan Baldwin, in the apartment of Latania Baldwin, Ryan’s sister, at the time Jenkins was shot and killed. Her apartment was at the same complex where the shooting occurred, and the petitioner stated that he and the others in the apartment had heard the gunshots. The petitioner told Wolf and Stambovsky that Bobby Cook also could verify his whereabouts that night and that Cook, Latania Baldwin and Ryan Baldwin would be willing to testify on his behalf at trial. Wolf further testified that she believed that the petitioner had a strong alibi defense, that she saw no support from her investigation to make a claim of self-defense and that she thought it would have been confusing to the jury to assert a self-defense claim because it was directly contrary to the petitioner’s version of the events. Stam-bovsky testified that she had interviewed the alibi witnesses and found them to be credible and articulate, that their recitations of the events of that evening were consistent and that she did not believe that the facts supported a claim of self-defense.

In its memorandum of decision, the habeas court concluded that the petitioner failed to prove that there was a reasonable probability that the result of the trial would have been different if a claim of self-defense had been made on his behalf. The court did not address whether trial counsel’s failure to raise a claim of self-defense constituted deficient performance because of its determination that the petitioner failed to satisfy the prejudice prong of Strickland. We agree with the court’s determination.

The petitioner claims that he did not shoot Jenkins but that the shooter would have been entitled to assert a claim of self-defense because Jenkins and his group were visibly armed and were approaching the group in “the ghetto.” He argues that if the shooter, as the principal, could not be convicted of murder because he had a valid self-defense claim, then the petitioner, as an accessory, likewise could not be convicted of that charge. If, as the petitioner claims, he was not present when the shooting occurred, the identity of the shooter is unknown.

“Under General Statutes § 53a-19 (a), a person can, under appropriate circumstances, justifiably exercise repeated deadly force if he reasonably believes both that his attacker is using or about to use deadly force against him and that deadly force is necessary to repel such attack. . . . The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” (Citation omitted; internal quotation marks omitted.) State v. Carter, 232 Conn. 537, 546, 656 A.2d 657 (1995). Because the petitioner claims that he is not the shooter, it is the shooter’s belief that is at issue. The shooter, however, is unidentified, and there was and could not be any evidence as to what the shooter believed at the time he saw Jenkins and his group approaching the shooter and his group. Accordingly, the habeas court correctly concluded that the petitioner failed to prove that if such a defense had been raised, the result of the trial would have been different.

II

The petitioner next claims that trial counsel rendered ineffective assistance by presenting a weak alibi defense. He argues that it was an objectively unreasonable trial strategy to present an alibi defense because two of the alibi witnesses already had refused to testify, invoking their fifth amendment rights against self-incrimination, before Latania Baldwin, the remaining alibi witness, was called to testify. The petitioner argues that trial counsel knew that Latania Baldwin had given a prior inconsistent statement to the police as to his whereabouts on the night in question and that, under those circumstances, the alibi defense was so weak that counsel should not have presented it at trial.

We agree with the habeas court’s determination that the petitioner has failed to satisfy the prejudice prong of Strickland with respect to this claim. As previously discussed, the petitioner did not have a viable self-defense claim. His alibi defense, initially believed to be a strong one by Wolf and Stambovsky, ultimately proved to be ineffective. Although Latania Baldwin attempted to explain the discrepancy in her statements, the jury obviously did not credit the explanation. Nevertheless, the petitioner has failed to demonstrate that the results of the trial would have been different if no alibi defense had been presented.

Ill

The petitioner next claims that his trial counsel rendered ineffective assistance because they failed to cross-examine Townsend adequately about the effect of his marijuana use on his ability to perceive and to recall the events of the evening of October 7, 1996. The petitioner argues that such questioning was essential because Townsend was the only eyewitness who testified that he saw the petitioner shoot Jenkins. Townsend admitted that he had smoked five marijuana cigarettes at the crime scene shortly before the shooting commenced between the two groups. Because there had been no inquiries as to the effect of ingesting this drug, the trial court had determined that it was appropriate to give an instruction, sua sponte, that the jury was not to speculate as to the effect of the marijuana on Townsend.

At the habeas trial, Wolf testified that she did not question Townsend on the effect of his marijuana smoking because she did not know what his response would have been. She was adamant that “[y]ou never ask a question you don’t know the answer to.” Wolf testified that she believed it was best to let the jury draw its own conclusions about the marijuana use instead of asking Townsend that question and risking a response from him that he was not impaired. Stambovsky testified that she recollected the jury’s reaction to Townsend’s testimony about smoking the five marijuana cigarettes and perceived that the jurors were “rather shocked.” Given the jurors’ reaction, Stambovsky believed that the marijuana use was “damning evidence” and that it would not have been wise to followup with a question regarding its effect when trial counsel did not know what Townsend’s response would have been. Ultimately, Stambovsky testified that she believed that the jury, relying on its common sense, could draw its own inferences as to the effect of the marijuana use on Townsend’s mental state.

In its memorandum of decision, the habeas court concluded that this claim of the petitioner failed because he did not demonstrate that trial counsel’s performance was deficient or that he had been prejudiced by the failure to pursue that line of questioning. “There is no evidence before this court establishing what Townsend would have said if he had been cross-examined on the effect of the marijuana on his ability to perceive or to recall the details of the shooting. It is total speculation to assume that his answers would have caused the trial judge not to give the erroneous instruction, or that his answers would have further damaged his credibility, or that his answers would have cured what the petitioner claims was an inadequate factual basis for appellate review.

“Trial counsel made the tactical decision not to cross-examine Townsend on the effect of the marijuana on him, and [Wolf] testified at the habeas trial as to the reasons why she made that decision. This decision is presumed to have been sound trial strategy. The petitioner has failed, under all the circumstances, to overcome that presumption and therefore has failed to prove deficient performance by trial counsel in this regard. In addition, in view of the absence from the record of the evidence that would have been produced if the desired cross-examination had been conducted, the petitioner has failed to prove that he has been prejudiced by the lack of such cross-examination.”

We agree with the reasoning of the habeas court and conclude that the petitioner failed to satisfy the performance prong and the prejudice prong of Strickland.

IV

The petitioner’s final claim is that his trial counsel rendered ineffective assistance because they failed to engage the services of an expert to testify as to the effect of the marijuana use on Townsend’s ability to perceive and to recollect accurately the details of the shooting. In support of that claim, the petitioner offered the testimony of Bruce Rounsaville, a medical doctor and drug abuse researcher, at the habeas trial. In response to the petitioner’s hypothetical question describing Townsend’s marijuana use, Rounsaville opined that such use would have had a negative impact on that person’s perception and memory. Rounsaville further testified that he did not believe that the effect of marijuana on a person’s ability to perceive and to recollect was within the common knowledge of the average person.

The habeas court concluded that the petitioner had not established that he was prejudiced by the failure of his trial counsel to present the type of evidence that had been offered by Rounsaville at the habeas proceeding. The court was not persuaded that the result of the trial would have been different. As noted by the court: “It is not necessary in this memorandum to refer to the extensive attack that was made at trial on Townsend’s credibility by both the petitioner’s trial counsel and Clark’s trial counsel. The Supreme Court, in finding that the erroneous instruction of the trial court, in removing from the jury its consideration of the effect on Townsend of his marijuana use was harmless, set forth the evidence which tended to impeach the credibility of Townsend. . . . The petitioner has failed to prove that, had the jury heard the additional evidence of the effect of marijuana use, the totality of the evidence would have been such that Townsend’s credibility would have been so impeached that it is reasonably probable that the result of the criminal trial would have been different.” (Citations omitted.) We agree with the reasoning of the habeas court and conclude that the petitioner failed to satisfy the prejudice prong of Strickland.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record does not reveal the surnames of David D. and Brucie B.

       Stambovsky was Wolfs associate. For this case, Stambovsky did most of the investigation and interviewed potential defense witnesses. Both counsel attended pretrial conferences, drafted motions and prepared for trial. At trial, Stambovsky usually conducted direct examination of the defense witnesses and Wolf cross-examined the state’s witnesses.

       On appeal, the petitioner additionally claims that the performance of trial counsel was deficient because they failed to object to the court’s charge instructing the jury not to speculate as to the effect of Townsend’s use of marijuana on his credibility, and they failed to question Townsend extensively on his three prior felony convictions. Although those claims were raised in his amended habeas petition, the habeas court did not address them, and the petitioner did not file a motion for articulation seeking to have the habeas court address those omissions. Additionally, the petitioner claims that his “prior . . . claims of ineffective assistance cumulatively constitute ineffective assistance of counsel.” That claim was not raised in his amended habeas petition.

        We decline to consider those additional claims. “[T]his court is not bound to consider any claimed error unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Shelton v. Commissioner of Correction, 116 Conn. App. 867, 873, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009).

       The petitioner claims that there was testimony at trial that indicated that the shooting was gang related and that Jenkins and his group were armed and entered “the ghetto” through a hole in the fence late in the evening to settle a dispute with the petitioner. Under those circumstances, the petitioner argues that Jenkins and his group could be considered the initial aggressors because they were visibly armed and were approaching the petitioner and his group. See State v. Carter, 232 Conn. 537, 546, 656 A.2d 657 (1995).

       General Statutes § 53a-19 (a) provides in relevant part: “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       The petitioner was tried together with Clark, who had been charged with the same offenses as the petitioner. In State v. Clark, 260 Conn. 813, 820, 824-26, 801 A.2d 718 (2002), our Supreme Court determined that that instruction was improper because the jury was entitled to consider the effect of Townsend’s marijuana use on his credibility. Nevertheless, the court concluded that the improper instruction was merely an evidentiary impropriety and harmless. Id., 830.

       As noted in State v. Clark, 260 Conn. 813, 816-17, 801 A.2d 718 (2002), “Townsend’s credibility was attacked ... in a variety of ways. He admitted that he had not come forward with his story until several weeks after the shooting when officers from the New Haven police department arrested him for a traffic violation. He also admitted to having three felony convictions on his record. Townsend testified that on the night of the shooting, he [had gone] to the housing [complex at which Jenkins was shot] to purchase marijuana, although [he also testified] that he went there with the marijuana already in his pocket. He testified that at some point he purchased six bags of ‘weed,’ although he was unable to remember where he had purchased it. Townsend acknowledged that, shortly before the shooting, he had smoked five marijuana cigarettes, with perhaps a ten or fifteen minute interlude between each cigarette. During his interview with the police, however, Townsend placed himself at the scene for only approximately fifteen minutes prior to the shooting. . . .
      “Additionally, [Townsend was] cross-examined . . . regarding the following inconsistencies in his story. Townsend admitted that, although he previously had testified that he had observed Jenkins get shot, he actually did not witness the shooting because he had run from the scene as soon as the shots were fired. He told the police that he had seen the [petitioner] arguing with [Jenkins] just before the shooting, but then testified that he had not seen any such argument and only heard about it later. Townsend also had told the police that the shooting took place in a certain tunnel in the housing [complex], but later testified that it took place on the street. Moreover, Townsend’s testimony was inconsistent on the issue of whether [Jenkins] and his friends were armed, sometimes [testifying] that they had guns and, at other times, testifying that they did not. Finally, Sherry Heyward, Townsend’s second cousin, testified that she had known Townsend for twenty-five years, had lived with him on occasion, and that he was a ‘pathological liar.’ ”

       There is case law to the contrary. In State v. Clark, 260 Conn. 813, 820, 824-25, 801 A.2d 718 (2002), our Supreme Court stated: “The unfortunate prevalence of marijuana use, coupled with the substantial effort to educate all segments of the public regarding its dangers, underscores the reality that the likely effects of smoking five marijuana cigarettes in a short period of time before an incident are within the ken of the average juror.”

       See footnote 6 of this opinion.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    JESSE PORTO v. TIMOTHY F. SULLIVAN, CONSERVATOR (ESTATE AND PERSON OF JOHN PORTO)
    (AC 30631)
    DiPentima, Graendel and Peters, Js.

      Argued November 16, 2009
    officially released February 16, 2010

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

      Daniel J. Mahaney, with whom was Timothy F. Sullivan, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Jesse Porto, appeals from the judgment of the Superior Court dismissing his appeal from the decree of the Probate Court for the district of Waterbury approving the final accounting of the estate of John Porto. Specifically, the plaintiff claims that the Superior Court improperly (1) determined that his appeal was untimely pursuant to General Statutes § 45a-187 (a) and (2) denied his motion for reargument. We disagree and, accordingly, affirm the judgment of the Superior Court.

The record reveals the following factual and procedural history. The plaintiff is the son of John Porto. The Probate Court named the plaintiff as conservator of John Porto. On January 5,2001, the defendant, attorney Timothy F. Sullivan, replaced the plaintiff as conservator by order of the Probate Court. The defendant subsequently submitted to the Probate Court an application to sell John Porto’s real property located in Middlebury. The purpose of the sale was to obtain money to pay for John Porto’s care at a convalescent home. Following a series of hearings in October, November and December, 2001, the sale was approved and completed on December 11, 2001. No appeal was taken from the sale of the property.

On October 8, 2004, the Probate Court approved the final accounting of the estate of John Porto. The Probate Court specifically found that, with respect to the sale of the real property, “proper notice was given to all parties and due hearing was had on the application to sell.” The plaintiff moved to appeal to the Superior Court, and the Probate Court issued a decree allowing the appeal on October 22, 2004. The plaintiff then filed his appeal to the Superior Court on November 10, 2004.

In his appeal, the plaintiff claimed that the real estate sale was invalid “because there was insufficient cause shown for the Probate Court to approve the sale; no hearing was held on the application, and, in the alternative, if a hearing was conducted, it was invalid; the plaintiff did not receive notice regarding the hearing prior to the hearing; and he did not receive notice regarding the court’s approval of the application.”

On March 11, 2005, pursuant to Practice Book § 10-31, the defendant moved to dismiss the plaintiffs appeal on the basis of untimeliness pursuant to § 45a-187. Three days later, the plaintiff filed an objection. On September 7, 2005, the court, Matasavage, J., issued a memorandum of decision denying the defendant’s motion to dismiss. The court reasoned: “Notwithstanding the issues dealing with the sale of the property, it is clear that the plaintiff has disputed the final accounting regarding the value of [John Porto’s] horse business, the use and occupancy of his realty, the furniture, equipment and assets. Because the plaintiffs appeal challenges the specific aspects of the decree approving the final accounting that were not subject to prior orders of the Probate Court, it is timely under § 45-187, in that the plaintiff filed his motion to appeal within thirty days of the date of the decree.”

Following the court’s denial of his motion, the defendant filed an answer on October 26, 2005. He raised the special defense that the plaintiffs appeal was untimely under § 45a-187. The plaintiff unsuccessfully moved to strike the defendant’s special defense. The appeal was then heard in June, 2008.

On June 18, 2008, the court, Hon. Joseph T. Gormley, judge trial referee, issued an oral decision dismissing the appeal. The court stated that it had heard no evidence relating to the accounting. With respect to the sale of the property, the court concluded that the appeal was untimely pursuant to § 45a-187 and dismissed the appeal. The plaintiff then appealed to this court. Additional facts will be set forth as needed.

I

The plaintiff claims that the Superior Court improperly determined that his appeal was untimely pursuant to § 45a-187 (a). Specifically, he argues that his appeal of the sale of John Porto’s real property was filed timely following the Probate Court’s decree accepting the final accounting. We are not persuaded.

“The standard of review for a motion to dismiss is well settled. A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.) Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008). Our review, therefore, is plenary. Corneroli v. D’Amico, 116 Conn. App. 59, 62, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009). The plaintiffs claim also requires interpretation of the relevant statutory framework.

General Statutes § 45a-186 (a) provides in relevant part that “[a]ny person aggrieved by any order, denial or decree of a court of probate . . . may . . . appeal therefrom to the Superior Court . . . .” Section § 45a-187 sets forth the time frame in which such appeal must be commenced. “An appeal under section 45a-186 by persons of the age of majority who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section. If such persons have no notice to be present and are not present, or have not been given notice of their right to request a hearing, such appeal shall be taken within twelve months . . . .” General Statutes § 45a-187 (a); see, e.g., In re Michaela Lee R., 253 Conn. 570, 605-606, 756 A.2d 214 (2000).

“Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken. ... It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute. . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power. . . . The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations.” (Citations omitted; internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963). “The right to appeal from a decree of the Probate Court is purely statutory . . . and the requirements fixed by statute for taking and prosecuting the appeal must be met.” (Citation omitted.) Bergin v. Bergin, 3 Conn. App. 566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985); see State v. Goggin, 208 Conn. 606, 615, 546 A.2d 250 (1988); Satti v. Rago, 186 Conn. 360, 364, 441 A.2d 615 (1982). The failure to appeal timely from the decision or decree of the Probate Court warrants the dismissal of the appeal. Greg C. ’s Appeal from Probate, 46 Conn. Sup. 232, 234-35, 744 A.2d 961 (1998), aff'd, 56 Conn. App. 439, 744 A.2d 914, cert. denied, 253 Conn. 901, 753 A.2d 936 (2000).

The sale of the property was completed on December 11, 2001. The plaintiffs appeal, filed on November 10, 2004, is, on its face, untimely pursuant to § 45a-187 (a), which requires that such an appeal be taken within thirty days if the appealing party had legal notice or was present at the hearing, or within twelve months if the appealing party was not given notice or was not present. The plaintiffs appeal was not filed until nearly three years after the sale had been completed. Simply put, under either time frame, the plaintiffs appeal was untimely.

Last, we note that the plaintiffs reliance on Kron v. Thelen, 178 Conn. 189, 423 A.2d 857 (1979), and Molleur v. Perkins, 82 Conn. App. 468, 844 A.2d 916, cert. denied, 270 Conn. 912, 853 A.2d 527 (2004), is unavailing. In both of those cases, the actions of the Probate Court caused an untimely appeal. Specifically, in Kron, the Probate Court erroneously informed the plaintiffs counsel that no action had been taken on an accounting, resulting in the plaintiffs late appeal. See Kron v. Thelen, supra, 190-91. In Molleur, the Probate Court failed to perform promptly its required duty. Molleur v. Perkins, supra, 471. The present case, therefore, is distinguishable from Kron and Molleur, as there was no affirmative act by the Probate Court that directly caused the plaintiff to file an untimely appeal from the sale of the real estate.

We conclude that the plaintiffs appeal from the sale of the property was untimely pursuant to § 45a-187. Accordingly, the court properly rendered judgment dismissing the appeal.

II

The plaintiff also claims that the court improperly denied his motion to reargue. Specifically, he argues that Judge Agati, acting as the administrative judge, improperly concluded that Judge Gormley, having resigned as a judge trial referee, could not consider the motion for reargument and denied the motion. The plaintiff further claims that this ruling violated General Statutes § 51-183g.

“We review the court’s ruling for abuse of discretion. . . . [A] s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did. ... In addition, where a motion is addressed to the discretion of the court, the burden of proving an abuse of that discretion rests with the appellant.” (Citation omitted; internal quotation marks omitted.) Gibbs v. Spinner, 103 Conn. App. 502, 507, 930 A.2d 53 (2007).

Judge Agati, acting as the administrative judge, stated on the record that Judge Gormley had resigned as a judge trial referee and therefore was not available to hear the plaintiffs motion. There is nothing in the record to suggest otherwise. We conclude that his denial of the motion on this basis does not constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its decision dismissing the plaintiffs appeal, the court stated that something needed to be done “quickly and drastically” or there would have been “no way to pay for the care” of John Porto.

       We note that the plaintiff has not provided us with a transcript of the evidentiary proceeding before Judge Gormley. The only transcript presented for our review is that of the oral decision.

       “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. General Statutes § l-2z.” (Internal quotation marks omitted.) Corneroli v. D’Amico, supra, 116 Conn. App. 62.

       The plaintiff directed us at oral argument to our Supreme Court’s decision in Kochuk v. Labaha, 126 Conn. 324, 10 A.2d 755 (1940). The issue in that case was whether the defendant bank had breached its duty to the plaintiff while acting as conservator. Id., 325. The bank had been informed by the Probate Court that the only property of the plaintiff was a small bank account. Id., 326. The plaintiff, however, also owned an interest in real and personal property relating to a farming venture. Id. This interest was sold to his business partner. Id., 327. The plaintiff claimed that the sale of his interest in real estate was invalid because no sufficient cause or notice was shown. Our Supreme Court suggested that such arguments “might have been raised by objection to the account. . . . That was the time to question the propriety of the sale.” (Citation omitted; emphasis added.) Id., 330.
      The issue before our Supreme Court in Kochuk was not the timeliness of an appeal from an order or decree of the Probate Court pursuant to § 45a-187, but whether a conservator had breached its duty to a ward. Accordingly, the court’s statement regarding the sale of property was dicta. “Dictum is generally defined as ‘[a]n expression in an opinion which is not necessary to support the decision reached by the court. ... A statement in an opinion with respect to a matter which is not an issue necessary for decision.’ (Citation omitted.) Ballentine’s Law Dictionary (3d Ed. 1969). Our Supreme Court has instructed that dicta have no precedential value. See St. George v. Gordon, 264 Conn. 538, 547 n.10, 825 A.2d 90 (2003).” State
        v. Torres, 85 Conn. App. 303, 320, 858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179 (2004).

       The plaintiff relies specifically on the following language from Kron: “We have held that it is a principle of natural justice of universal obligation, that before the rights of an individual be bound by a judicial sentence he shall have notice ... of the proceedings against him. . . . Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses.” (Citation omitted; internal quotation marks omitted.) Kron v. Thelen, supra, 178 Conn. 193.

       General Statutes § 51-183g provides: “Any judge of the Superior Court may, after ceasing to hold office as such judge, settle and dispose of all matters relating to appeal cases, as well as any other unfinished matters pertaining to causes theretofore tried by him, as if he were still such judge. ” The clear language of this statute indicates that it applies to judges of the Superior Court and not to judge trial referees who have resigned.


text:
    MARK PINARD v. DANDY LIONS, LLC, ET AL. DANDY LIONS, LLC, ET AL. v. MARK PINARD
    (AC 30581)
    Bishop, DiPentima and Peters, Js.

      Argued November 30, 2009
    officially released February 16, 2010

      Scott R. Chadwick, for the appellant (plaintiff in the first case, defendant in the second case).

      Mark S. Shipman, with whom, was C. Scott Schwefel, for the appellees (defendants in the first case, plaintiffs in the second case).
   Opinion

DiPENTIMA, J.

In this appeal, arising out of a commercial lease dispute, we address the question of whether an unwritten agreement to arbitrate made in open court complies with General Statutes § 52-408. We conclude that it does not. The plaintiff, Mark Pinard, appeals from the judgments of the trial court denying his application to confirm an arbitration award and granting the application of the defendants, Dandy Lions, LLC, Sally Tyszka and Mark Tyszkato vacate the arbitration award. Specifically, he claims that the court improperly concluded that the parties’ arbitration agreement was unenforceable because it was not in writing. We affirm the judgments of the trial court.

The following facts and procedural history in this protracted litigation are not in dispute. On June 19, 1998, Dandy Lions, LLC, entered into a lease agreement with Donald B. Werner for 29-35 Poquonock Avenue in Windsor. The lease contained no provision relating to arbitration. Subsequently, Werner died, and the plaintiff became the executor of his estate. The plaintiff later became the owner of the property and the landlord under the lease agreement with the defendants. Litigation began between the parties in June, 2004, when the plaintiff filed an application for a prejudgment remedy against the defendants, alleging, inter alia, breach of the lease agreement. On November 2, 2005, the plaintiff filed an amended complaint, alleging, inter alia, breach of contract, replevin, conversion, negligence, recklessness, fraudulent conveyance and misrepresentation. Subsequently, on January 30, 2006, the defendants filed an answer and counterclaim.

On October 19,2007, a hearing was held before Judge Wiese. The court considered pretrial matters, including the withdrawal of the defendants’ counterclaim and the plaintiffs motion to cite in a party defendant and then took a recess. Upon returning from the recess, the plaintiffs attorney stated on the record that the parties had agreed to proceed with a “mediation” that would be “informal in nature,” during which the parties would each take time to present briefly their case to Judge Wiese in chambers. The plaintiffs attorney stated that “upon hearing the presentations and reviewing the documentation, [Judge Wiese] may issue a decision that would be binding upon the parties with the understanding that it would be final in nature.” The defendants withdrew the counterclaim and agreed with the plaintiffs proposal, adding that the decision could act “just as an agreement to mediate or arbitrate would result in an arbitrator’s decision or a stipulation, [and] if that was not honored, there would be a right to . . . seek to enforce that in court.” Judge Wiese, speaking as the court, suggested that his off the record decision be treated as an arbitration award and briefly canvassed all parties.* ** All parties orally consented to this proposal. The parties determined farther details and conducted the arbitration in chambers and off the record.

On November 5, 2007, Judge Wiese, in his capacity as an arbitrator, issued an arbitrator’s ruling, finding in favor of the plaintiff on counts one, two, four and six through nine, and awarding him a total of $44,846.41. On November 16, 2007, the plaintiff filed an application to confirm the arbitration award with the Superior Court. On December 4, 2007, the defendants, in a separate action, filed an application to vacate or to correct the arbitration award on the ground that the arbitrator exceeded his powers and, thus, a final determination on the subject matter submitted was not properly made. On December 24, 2007, the defendants filed a motion for clarification. On January 9,2008, Judge Wiese filed a response to the motion that briefly explained his ruling.

On November 18, 2008, the corut, Graham, J., denied the application to confirm the award in the first case and granted the application to vacate the award in the second case. In its memorandum of decision, the court determined that the applicable law requires that “arbitration awards be vacated if the parties have not created a written agreement before submitting the dispute to arbitration. Here, there was no such written agreement, nor have the parties established a written agreement through proof of separate writings. The parties submitted correspondence to the arbitrator only after the arbitration occurred, and that was inadequate in describing the parties’ rights.” This appeal followed.

We first set forth the proper standard of review. Whether or not an agreement to arbitrate made in open court on the record satisfies the requirement under § 52-408 that an arbitration agreement be in writing is a question of statutory interpretation, over which our review is plenary. See Sastrom v. Psychiatric Security Review Board, 291 Conn. 307, 316, 968 A.2d 396 (2009). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine the meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Id.

“Typically, judicial review of arbitration awards is narrow in scope because we favor arbitration as an alternative method of dispute resolution. . . . When questions of arbitrability impheating the existence of an agreement to arbitrate arise, however, we are presented with a question of law over which our review is de novo. . . .

“It is weh established that [arbitration is a creature of contract. ... [A] person can be compehed to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do. . . . Because arbitration is based on a contractual relationship, a party who has not consented cannot be forced to arbitrate a dispute. . . . Moreover, even if the parties to a dispute agree to arbitrate, [i]t is the province of the parties to set the limits of the authority of the arbitrators, and the parties will be bound by the limits they have fixed. . . . Accordingly, because an arbitrator’s jurisdiction is rooted in the agreement of the parties ... a party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate.” (Citations omitted; emphasis in original; internal quotation marks omitted.) MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 386-87, 926 A.2d 1035 (2007).

The plaintiff argues that the trial transcript establishes a written arbitration agreement, or, alternatively, that the totality of the circumstances, including the actions of the parties, such as voluntary participation in the arbitration and correspondence with the arbitrator subsequent to the arbitration, demonstrates that a valid and enforceable arbitration agreement exists.

Under § 52-408, “[a]n agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy ... or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit . . . shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”

Our Supreme Court’s decision in Bennett v. Meader, 208 Conn. 352, 545 A.2d 553 (1988), guides our determination. In Bennett, our Supreme Court stated unequivocally that “an agreement to arbitrate must meet the requirements of the arbitration statute, including the requirement that the agreement be in writing, or it is invalid. This principle is supported by the language and organization of the statute, case law and commentary on the subject, and policy considerations.” Id., 364. The court further explained that “it is clear . . . that only written agreements to arbitrate are valid. Oral agreements are not included, implicitly or explicitly, in the [statutory] description of valid arbitration agreements.” Id., 359.

Here, the parties requested an “informal mediation” by the court and later agreed orally when the court suggested that Judge Wiese’s informal decision act as an arbitration award. The plaintiff claims that because the agreement to arbitrate is on the record and was “memorialized in an official court transcript and can obviously be read by any reviewing authority, ” the statutory requirement for an arbitration agreement to be in writing is satisfied. We do not agree. The policy considerations surrounding the requirement that an arbitration agreement be in writing are not limited to proving the existence of an agreement. “It is likely that the parties’ understanding of a purported oral agreement to arbitrate will differ. The content of the agreement would then have to be determined by the court and this would not be as efficient or as easy as establishing the existence and content of a written agreement. The process of proving an oral agreement would not foster the stated purpose of arbitration of avoiding the formalities, delay, expense and vexation of ordinary litigation.” (Internal quotation marks omitted.) Bennett v. Meader, supra, 208 Conn. 362-63. Also, “requiring a written agreement to arbitrate . . . encourages the parties to devise a written submission, which will clarify the rights of the parties for the purposes of both arbitration and judicial review.” Id., 364. Most significantly, § 52-408 plainly and unambiguously states that an agreement to arbitrate must be in writing, and the agreement here was not.

The parties in this case did not create, sign or submit a written arbitration agreement. The oral agreement found in the court transcript does not fulfill the requirements of an arbitration agreement under our statutory scheme. Therefore, pursuant to § 52-408, the arbitration award could not be confirmed. The court properly granted the application to vacate the arbitration award.

The judgments are affirmed.

In this opinion the other judges concurred.

       We note that the plaintiff filed his application to confirm the award in Docket No. CV-07-4034047-S, in which the defendants thereafter filed a motion to vacate the award. Later, however, the defendants commenced a separate action, Docket No. CV-07-4034311-S, in which they filed an application to vacate the award. The cases were consolidated for trial. For convenience, we refer in this opinion to Pinard as the plaintiff, and to Dandy Lions, LLC, and the Tyszkas as the defendants.

       Although counsel used the term “mediation,” a fair reading of the record suggests that counsel intended to have an arbitration and not a facilitated negotiation.

       The following colloquy occurred:
      “[The Plaintiffs Counsel]: Perhaps we could treat the court’s decision as an award and, if it is not abided by, that one parly or the other could seek its confirmation at the Superior Court so that then it would become a judgment and so on? Or am I overly complicating it?
      “The Court: Confirming an arbitration award.
      “[The Plaintiffs Counsel]: Yes.
      “The Court: Well, how do you do it in a normal circumstance? As a personal injury case? You go to attorney X, you’ve agreed you’re going to have a high-low binding, how do you do it then?
      “[The Defendants’ Counsel]: You get an arbitrator’s decision and, if it’s not honored, there is an expedited procedure where you seek to confirm the award in the court and have it turned into a judgment.
      “The Court: Well, why can’t this be the same thing? And then the case is withdrawn.
      “[The Defendants’ Counsel]: Right.
      “The Court: In a personal ipjury case, you withdraw it and you do your arbitration and you enforce in that way. So, why couldn’t that be the procedure here?

        “[The Defendants’ Counsel]: That would be fine.
      “The Court: This is a money damage case, this is not a summary process case.
      “[The Defendants’ Counsel]: I think that would work, right. Right. No, that would work.
      “The Court: I think that’s the way to do it.
      “[The Plaintiff’s Counsel]: Yes, Your Honor, plaintiff would agree to that framework, sure.
      “The Court: Yes.
      “[The Defendants’ Counsel]: Yes, we would agree.
      “The Court: Now, do the parties know what we’re talking about here? I want to make sure everybody knows what we’re talking about.
      “[The Plaintiffs Counsel]: Why don’t you stand up and identify yourself for the record.
      “[The] Plaintiff: Mark Pinard.
      “[The Defendants’ Counsel]: Yeah, can you guys stand up and identify?
      “[The Defendant Sally Tyszka]: Yeah.
      “[The] Plaintiff: Yes, I understand.
      “The Court: Yes, sir? Do you understand that, what I’m being asked to do and the rights that you’re giving up?
      “[The] Plaintiff: Yes.
      “The Court: Yes. Okay, and this is something you want to do?
      “[The] Plaintiff: Yes.
      “The Court: All right. And yes, ma’am?
      “[The Defendant Sally Tyszka]: Yes, I agree, as well.
      “[The Defendants’ Counsel]: And Mr. Tyszka, also?
      “[The Defendant Mark Tyszka]: Yes, I agree.
      “The Court: Well, why don’t we do this. Are you prepared to start now? Would you want to start now? How long do you anticipate this would take?
      “[The Plaintiffs Counsel]: In keeping with the spirit of the agreement, I’d try to keep it as brief as possible. Perhaps we start out with approximately a half hour each to make our presentation to the judge and then leave it to Your Honor as to whether you think you need any more from us at that point.
      “The Court: Would I be permitted to ask questions as it’s being presented to me?
      “[The Plaintiffs Counsel]: I would encourage it.
      “[The Defendants’ Counsel]: Sure.
      “The Court: Just like if a witness was here on the [witness] stand I could ask questions, I could ask questions of the attorney?
      “[The Defendants’ Counsel]: Absolutely.”

       Because we agree with the court that there was no written agreement to arbitrate as required under § 52-408, we need not reach the question of whether a trial judge may act, in a pending case, as an arbitrator.


text:
    CONSERVATION COMMISSION OF THE TOWN OF FAIRFIELD v. RED 11, LLC
    (AC 30212)
    DiPentima, Graendel and Laveiy, Js.

      Argued October 22, 2009
    officially released February 16, 2010

      J. Christopher Rooney, with whom was Anne D. Peterson, for the appellant (defendant).

      Noel R. Newman, for the appellee (named plaintiff).

      Edward V. O’Hanlan, with whom, on the brief, was Thomas J. Donlon, for the appellee (intervening plaintiff Wilmington Trust Company).
   Opinion

DiPENTIMA, J.

In Red 11, LLC v. Conservation Commission, 117 Conn. App. 630, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009), this court answered the question of whether a conservation commission properly had issued a cease and desist order prohibiting a property owner from conducting certain activities in wetlands. We concluded that the owner’s activities did not fall within the farming exception to wetlands regulation and therefore required a permit. We now face the question of whether the court properly issued a permanent injunction prohibiting the property owner from engaging in those activities and ordering injunctive relief. The defendant property owner, Red 11, LLC, appeals from the judgment of the trial court rendered in favor of the plaintiff, the conservation commission of the town of Fairfield (commission). On appeal, the defendant claims that (1) the court improperly issued the injunctive relief because the commission lacked jurisdiction over the property, (2) the doctrine of municipal estoppel precluded the commission from ordering restoration of the property and (3) the court abused its discretion by issuing the permanent injunction. We affirm the judgment of the trial court.

We previously set forth the following facts. “On May 11, 2001, Salvatore K. DiNardo obtained an eighteen acre parcel of land located at 1159 Redding Road in Fairfield. DiNardo then conveyed title to the [defendant], a limited liability company of which DiNardo is the managing member and principal. The property contains three distinct wetlands and watercourse areas: the Redding Road area, the vernal pool and the Rider’s Lane area. In September, 2001, Edward Jones, a wetlands compliance officer, issued a cease and desist order advising DiNardo to stop activities on the property that were impacting wetlands and watercourses.

“The commission held a show cause violation hearing on September 20, 2001, at which DiNardo stated that he intended to create a farm on the property. Pursuant to [General Statutes] § 22a-40 (a) (1) and § 4.1.a of the Fairfield inland wetlands and watercourses regulations (Fairfield regulations), farming activities in wetlands and watercourses are permitted expressly as of right. The commission continued the matter for one month to afford DiNardo time to submit a plan of his proposed activities pursuant to § 4.4 of the Fairfield regulations.

“The matter returned to the commission on October 18, 2001. Raymond Rizio, an attorney, appeared on behalf of the [defendant] and DiNardo. Rizio emphasized that the property would be used as a farm. He further represented that although he did not agree that the commission had the authority to condition such requirements, the [defendant] would install silt fencing and mulch around the disturbed areas to stabilize the land. Rizio further stated that if the [defendant] decided to pursue installation of a culvert and weir, it would return at a future date to seek approval from the commission. Rizio also agreed that, upon notice, the [defendant] would make the property available for inspection.

“The commission issued a declaratory ruling that ‘the proposed farming activities, as set forth in the plan submitted by . . . DiNardo, excluding those areas where a culvert and weir are to be installed, were allowed as of right, and did not require a wetland permit, and the vernal pool cannot be filled in.’ The commission also removed the cease and desist order with ‘the request that the property owner honor the stipulations made this evening, including the stipulation whereby he agreed to install silt fencing to stabilize the area.’ On October 22, 2001, the commission sent a letter to DiNardo detailing the terms of its decision.

“By a letter dated July 2, 2003, Marisa Anastasio, a wetlands compliance officer, issued another cease and desist order to the [defendant]. This letter acknowledged the October, 2001 declaratory ruling but alleged that the [defendant] had engaged in filling, piping, draining and excavating regulated wetlands and watercourses without a permit in violation of various sections of the Fairfield regulations. It also alleged that the [defendant’s] representatives had denied access to the property so that observations of the property had been undertaken from adjacent properties and by helicopter surveillance.

“The commission held a hearing on August 7, 2003. Following Anastasio’s presentation, representatives for the [defendant] countered that the actions were permissible as farming activity. The commission found that the violations on the site, such as filling, draining and piping of regulated wetlands and watercourses, had and continue to have a significant and adverse impact on regulated wetlands and watercourses on and off the property. Accordingly, the commission sustained the cease and desist order dated July 2, 2003.

“The [defendant] filed an appeal to the Superior Court, arguing that the commission improperly sustained the cease and desist order. The [defendant] also argued that the commission violated its right to due process by denying it the ability to rebut the evidence and legal argument presented by the intervenors, Wilmington Trust Company (Wilmington) and James Cas-erta and Diane Casería. On December 15, 2003, the court ordered the matter remanded to the commission to allow the [defendant] the opportunity to present rebuttal evidence. The commission opened the rebuttal hearing on March 4,2004, and continued the matter until March 25, 2004. The commission modified its earlier findings with respect to a perimeter stone wall, but otherwise continued the existing cease and desist order on March 29, 2004. The [defendant] then filed a second appeal to the Superior Court claiming that the commission acted arbitrarily, capriciously, unlawfully and in abuse of its discretion by sustaining the March 29, 2004 cease and desist order.

“Anastasio issued a third cease and desist letter, dated June 16, 2004, as a result of violations ‘existing on [the defendant’s] property above and beyond those violations listed in the [March 29, 2004 cease and desist order].’ Specifically, the letter alleged that the following activities had occurred on the [defendant’s] property: (1) the use of wetlands soil for grading along the western part of the property; (2) the filling and grading of wetlands on the western part of the property; (3) excavation of wetland soil for the creation of a ditch through the Redding Road areas, resulting in additional drainage and diversion of water into the storm sewer pipe system; (4) discharge of silted water and mud as a result of the failure to install sedimentation and erosion controls; (5) the removal of additional vegetation; (6) grading throughout the property using wetlands soils; and (7) earth moving of large wetlands soil stockpile near the Redding Road areas. This letter further indicated that on May 6, 2004, the [defendant] had agreed to submit a performance bond and confirm an environmental site monitor and that these obligations had not been met.

“After a hearing, the commission adopted the proposed findings of fact set forth in Anastasio’s letter, added certain requirements to the proposed corrective measures and affirmed the violations as listed in the June 16, 2004 letter. The [defendant] filed a third appeal to the Superior Court, again arguing that the commission acted arbitrarily, capriciously, unlawfully and in an abuse of its discretion in issuing the July 2, 2004 cease and desist order.

“The court consolidated the three appeals and issued three memoranda of decision on April 4, 2007, dismissing the plaintiffs appeals. With respect to the first two appeals, stemming from the July, 2003 and March, 2004 cease and desist orders, the court determined that the record supported the conclusion that regulated activities, such as the filling, draining and piping of the wetlands and watercourses had occurred on the property without a required permit. The court further concluded that these activities did not fall within the farming exception set forth in § 22a-40 and § 4.1 of the Fairfield regulations. As to the July, 2004 cease and desist order, the court stated that the record supported the commission’s determination that regulated activities, ‘such as earth moving, excavating, filling, grading, draining and vegetation removal had occurred on the property despite the imposition of the March 29, 2004 cease and desist order. In addition, the record evidence indicates that ongoing work continued on the property during May and June, 2004, and [that] no site monitor confirmation or performance bond had been submitted, despite the representation made at the May 6, 2004 site visit.’ ” Red 11, LLC v. Conservation Commission, supra, 117 Conn. App. 633-37.

During the events described previously, the commission filed a verified complaint on August 5,2004, seeking a temporary and permanent injunction prohibiting and restraining the defendant from undertaking any further construction activities at 1159 Redding Road and from any further violations of the General Statutes and Fair-field regulations. Soon thereafter, Wilmington successfully moved to intervene as a plaintiff. On August 15, 2006, the commission and Wilmington filed a four count amended complaint. The first count, filed by the commission alone, alleged that the defendant continually had violated the cease and desist orders. In addition to the injunctive relief, the commission also requested an order that any violations be corrected or removed and an assessment of civil penalties pursuant to General Statutes § 22-44 (b). The remaining three counts, filed by Wilmington, sought similar relief, as well as damages and costs.

On April 4,2007, following a hearing, the court issued a memorandum of decision. It imposed a temporary injunction prohibiting the defendant from any further construction activities at 1159 Redding Road and from any further violations of the General Statutes or the Fairfield regulations. It also ordered that a subsequent evidentiary hearing would be held to determine the restoration of the site, civil penalties, costs, fees, expenses and attorney’s fees.

Following the evidentiary hearing, the court issued a second memorandum of decision on July 25, 2008. It rejected the defendant’s restoration plan that called for “the creation of a cranberry bog and [the] installation of an extensive piping system.” Specifically, it stated that “[t]he court does not consider this a restoration plan.” The court concluded that the plan described through the testimony of Robert Jontos represented a legitimate restoration plan for the damage. The court also awarded civil penalties in the amount of $25,000. The court additionally awarded attorney’s fees to the town of Fairfield and Wilmington in an amount to be determined later. Finally, the court permanently restrained and enjoined the defendant from any further violation of the General Statutes, the Fairfield regulations or the cease and desist orders that were the subject of the underlying litigation and detailed in our prior opinion. This appeal followed.

I

The defendant first claims that the court improperly issued a temporary or permanent injunction because the commission lacked jurisdiction over the property. Specifically, it argues that because the commission had issued a declaratory ruling in October, 2001, that the defendant’s proposed farming activities were exempt from regulation under the Inland Wetlands and Watercourses Act; General Statutes §§ 22a-36 through 22a-45; the commission had no jurisdiction over the property. As a result, the defendant maintains that the commission had no basis to seek, and the court had no basis to grant, iiyunctive relief for a regulatory violation. Finally, the defendant contends that its activity fell within the statutory farming exemption to wetlands regulation and not within the five limitation exceptions to that exemption.

In our earlier decision, we considered and rejected these claims by the defendant in the present appeal. Red 11, LLC v. Conservation Commission, supra, 117 Conn. App. 638-47. For the reasons set forth in that opinion, we conclude that the commission had jurisdiction over the property and had a basis to seek injunctive relief.

II

The defendant next claims that the doctrine of municipal estoppel precluded the commission from ordering the restoration of the property. Specifically, it argues that as a result of the October, 2001 declaratory ruling, the commission was estopped from seeking restoration of the property. We decline to address this claim on the basis of an inadequate record.

“The standards governing the application of equitable estoppel are well established. There are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . [I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.” (Citation omitted; internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 757-58, 945 A.2d 936 (2008); see also Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 246-47, 662 A.2d 1179 (1995). Our Supreme Court has cautioned that the doctrine of municipal estoppel should be invoked only with great caution, and, therefore, a substantial burden of proof is imposed on the party who seeks to do so. Cortese v. Planning & Zoning Board of Appeals, 274 Conn. 411, 418, 876 A.2d 540 (2005); see also Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982) (municipal estoppel applied with great caution, only when resulting violation has been unjustifiably induced by agent having authority in such matters and when special circumstances make it highly inequitable or oppressive to enforce the regulations).

This court has recognized that “[a] claim of municipal estoppel is . . . inherently fact bound.” Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn. App. 561, 576, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003). “The party claiming estoppel . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) O’Connor v. Waterbury, supra, 286 Conn. 758.

In the present case, the memorandum of decision did not address or discuss the claim of municipal estoppel. The defendant invoked Practice Book § 66-5 and filed a motion for articulation of the court’s decision. The motion sought, inter alia, an articulation of why the commission was not estopped from obtaining a permanent injunction due to the 2001 declaratory ruling. The court denied the motion, and the defendant filed no motion for review of that decision.

“Practice Book § 66-7 provides in relevant part: Any party aggrieved by the action of the trial judge as regards . . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper.” (Internal quotation marks omitted.) McCook v. Whitebirch Construction, LLC, 117 Conn. App. 320, 332, 978 A.2d 1150, cert. denied, 294 Conn. 932, 987 A.2d 1029 (2009); see also Rivnak v. Rivnak, 99 Conn. App. 326, 334-35, 913 A.2d 1096 (2007). “[P]roper utilization of the motion for articulation [and the motion for review] serves to dispel . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The burden of securing an adequate record for appellate review of an issue . . . rests with the . . . appellant. . . . Because it is the . . . appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the . . . appellant should have remedied.” (Internal quotation marks omitted.) Phillips v. Phillips, 101 Conn. App. 65, 71-72 n.l, 922 A.2d 1100 (2007); see also Ramondetta v. Amenta, 97 Conn. App. 151, 168, 903 A.2d 232 (2006).

In the present case, the defendant failed to seek further review following the denial of its motion for articulation. We are left with a record that is inadequate to review the defendant’s claim of municipal estoppel.

Ill

The defendant’s final claim is that the court abused its discretion by issuing the permanent injunction. Specifically, the defendant argues that the court improperly ordered, as injunctive relief, a costly restoration plan that failed to consider the equities of the case. We are not persuaded.

The following additional facts are necessary for the resolution of the defendant’s claim. Jontos testified that he had been retained by the defendant to develop a restoration plan for the Redding Road wetlands. This plan encompassed sedimentation and erosion control, a storm water management plan, and a wetland nursery plan. The court accepted the plan described by Jontos, subject to certain modifications.

On appeal, the defendant claims that the court abused its discretion by adopting Jontos’ proposal as the restoration plan. It maintains that the plan presented at the permanent injunction hearing by David Cameron offered a less expensive option. The Cameron plan used a cranberry bog, built on one third to one half of the Redding Road wetlands, to replicate the functions of the wetlands that had been damaged by the defendant’s activities. It also contained a pump system to remove water when necessary from the Redding Road wetland to the vernal pool.

“A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 148, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006).

The authority for the injunctive relief in the present case does not originate from the common law. General Statutes § 22a-44 (b) provides in relevant part: “The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. . . .’’In our jurisprudence, this distinction is significant. “[W]here a statute authorizes a municipality or public entity to seek an injunction in order to enforce compliance with a local zoning ordinance, but says nothing about the injury caused, the municipality is not required to show irreparable harm or unavailability of an adequate remedy at law before obtaining an injunction; rather, all that must be shown is a violation of the ordinance.” (Internal quotation marks omitted.) Greenwich v. Kristoff, 2 Conn. App. 515, 521, 481 A.2d 77, cert. denied, 194 Conn. 807, 483 A.2d 275 (1984); see also Conservation Commission v. Price, 193 Conn. 414, 429-30, 479 A.2d 187 (1984); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 41:6, p. 453. Nevertheless, the trial court is not “mechanically obligated to grant an injunction for every violation of law. . . . Put another way, we do not view the statutory grant of jurisdiction as destroying the discretion of a trial court in every case . . . .” (Citations omitted; internal quotation marks omitted.) Conservation Commission v. Price, supra, 430; see also Monroe v. Renz, 46 Conn. App. 5, 15, 698 A.2d 328 (1997).

The court heard evidence that construction of the cranberry bog would require a substantial amount of nonwetlands soil to be brought onto the property. One of the defendant’s witnesses, Kenneth J. Wagner, stated that the Cameron plan would restore the function of wetlands but described it as “unusual” in that it partially was an agricultural use. He further acknowledged that this agricultural feature would be “of interest” to the defendant. Last, Wagner stated that the cranberry bog would not serve as restoration but, rather, a combination of rehabilitation and mitigation.

On the basis of the foregoing, we cannot conclude that the court abused its discretion in determining that creation of the cranberry bog did not constitute a restoration plan. We are mindful of the court’s finding that the activities of the defendant, including excavation and removal of wetlands soils, natural stones and boulders, coupled with the installation of a piping system, effectively destroyed the function of the wetlands. This conduct, in the words of the court, was “egregious, serious and resulted in significant injury to the wetland[s] resources of the state of Connecticut. This injury was made much worse by the defendant’s refusal to comply with multiple cease and desist orders .... The defendant continued to carry on with its regulated activities despite the issuance of cease and desist orders, demonstrating a lack of respect for the zoning commission’s authority.” Additionally, the defendant’s actions “ignored and defeated” the legislative intent of wetlands regulation. The court further found that restoration was possible, and that the purpose of said restoration was “to put the property back into the condition it was before the violations.” It also found that the cranberry bog was not a restoration. It is axiomatic that the credibility of witnesses is the sole province of the trial court. See, e.g., Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 233, 939 A.2d 541 (2008); Pollio v. Conservation Commission, 32 Conn. App. 109, 115, 628 A.2d 20 (1993).

It is clear from our review of the record that the court weighed the equities of the situation in ordering the injunctive relief to achieve restoration of the property. Specifically, it considered the actions and course of conduct of the defendant in causing the harm to the wetlands, as well as the various proposals of restoration. The court, after hearing evidence, credited the Jontos plan as the appropriate approach to restore the wetlands on the defendant’s property. Similarly, it rejected the Cameron plan. We conclude that the injunc-tive relief order by the court did not constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, Wilmington brought count two pursuant to General Statutes § 22a-44, count three pursuant to General Statutes § 22a-16 and count four as a common-law trespass action.

       Although the amount of attorney’s fees has yet to be determined, we have jurisdiction to consider the defendant’s appeal because the judgment on the merits constitutes a final judgment. See Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988).

       General Statutes § 22a-40 (a) provides in relevant part that “[t]he following operations and uses shall be permitted in wetlands and watercourses as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming . . . .”

       General Statutes § 22a-32 provides in relevant part that “[n]o regulated activity shall be conducted upon any wetlands without a permit. . . .”

       General Statutes § 22a-40 (a) (1) provides in relevant part: “The provisions of [the farming exemption] shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale . . . .”

       At oral argument before this court, counsel for the defendant acknowledged that, given our earlier decision, several of its claims had been determined and that only the issues of municipal estoppel and the propriety of the irvjunctive relief remained.

       The defendant also argued that there was no evidence presented that it had violated § 22a-40 (a) (1). As noted in part I of this opinion, we conclusively addressed that claim in our earlier opinion. See Red 11, LLC v. Conservation Commission, supra, 117 Conn. App. 630.

       These modifications were the removal of the existing piping system, the replacement of nonwetiands soils with certain wetlands soils and the conditional installation of a weir only upon approval by the commission.

       During cross-examination, Cameron estimated the cost of his plan to be $114,730 while the Jontos plan would be approximately $300,000.