author: LAVINE, J.

text:
    ED CONSTRUCTION, INC. v. CNA INSURANCE COMPANY ET AL.
    (AC 31476)
    Lavine, Beach and Robinson, Js.

      Argued March 21
    officially released July 26, 2011

      Robert J. Sciglimpaglia, Jr., for the appellant (plaintiff).

      Sean M. Nourie, for the appellee (named defendant).

      Marisa F. Schafer, with whom, on the brief, was James T. Baldwin, for the appellee (defendant Ramiro Rodriguez).
   Opinion

LAVINE, J.

The plaintiff, ED Construction, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, denying its claim for a declaratory judgment against the defendants, CNA Insurance Company (CNA) and Ramiro Rodriguez. The plaintiff sought a declaratory judgment concerning the interpretation of a workers’ compensation insurance policy (policy) that it purchased from CNA. On appeal, the plaintiff makes a number of claims concerning the court’s judgment. These claims fairly can be summarized as follows: (1) the court improperly determined that the policy permitted CNA to calculate and collect the final premium prior to the end of the policy period and that CNA could cancel the policy so long as it provided notice to the plaintiff at least ten days prior to the date of cancellation, (2) the court made an erroneous factual finding when it concluded that CNA did not breach the insurance policy and (3) the court erred in determining that CNA properly responded to the plaintiffs March 3, 2003 letter concerning the increased premium and that the plaintiff failed to appeal the premium increase and the audit of its policy by CNA. We disagree with the plaintiff, and, accordingly, affirm the judgment of the trial court.

The following facts were stipulated to by the parties and accepted by the court. Ed Devingo is the owner and president of the plaintiff. On August 26, 2002, Devingo met with Diane H. Silfen of the Haehl Agency, Inc., for the purpose of applying for workers’ compensation insurance coverage for the plaintiff through the assigned risk market. During this meeting, Devingo and Silfen completed and signed an “ACORD 130 worker’s compensation application form” and “ACORD 133 worker’s compensation insurance plan/assigned risk section form.” Devingo indicated on the application that the plaintiff had one employee and that it provided carpentry services. Silfen estimated the premium for the plaintiffs policy to be $750, which was immediately paid by the plaintiff.

The National Council on Compensation Insurance, Inc. (council), assigned coverage of the plaintiff to CNA via a randomized assignment process from a pool of participating insurance companies. On September 20, 2002, the council issued a workers’ compensation and employer’s liability policy binder to the plaintiff, which had an effective date of August 27, 2002.

On October 28, 2002, after the policy period had commenced, CNA requested a detailed list of the plaintiffs business operations and current certificates of insurance for all of its subcontractors. On December 18, 2002, CNA ordered a preliminary audit of the plaintiffs policy because the plaintiffs certificates of insurance failed to indicate current workers’ compensation coverage for the listed subcontractors and because the plaintiff submitted “forms for exclusion of coverage by workers’ compensation law” for individuals who appeared to be employees. On January 6, 2003, the preliminary audit was assigned to Suzanne Delvento, an employee in CNA’s audit department. On February 10, 2003, Delvento completed the audit survey and found that all of the workers whom the plaintiff had paid during the policy period had signed a sole proprietor exclusion form and were all carrying only general liability insurance. Delvento also found that the plaintiff performed roofing services rather than caipentry services.

On February 15,2003, Delvento completed apremium audit analyst notification, which noted that the plaintiffs estimated exposure of $1500 within the carpentry class was incorrect. The plaintiffs exposure was increased to $114,802 pursuant to the roofing rate class. CNA also notified the plaintiff that its payroll was underestimated on its application and that the premium now reflected the new annualized payroll. On February 21, 2003, CNA issued a bill to the Haehl Agency, Inc., that reflected a premium due of $51,718 by March 23, 2003.

On March 3,2003, Silfen faxed a letter to CNA, stating that “[t]his letter is to appeal the enclosed $51,718 bill. The insured has no employees at all, how can he have a payroll of $114,802?” Stephanie Spellman, one of CNA’s employees, responded to Silfen’s letter on March 10, 2003, and explained the procedures that needed to be followed in order to place the audit in dispute. Specifically, Spellman wrote to Silfen that “[i]f insured wishes to dispute they need to provide proper documentation to show subs are independent. They need to fax [documentation] to audit dispute unit . . . .” She further stated that if “audit put in dispute, then billing will be suspended.”

On March 27, 2003, CNA issued a notice of cancellation for nonpayment of premium and notified the plaintiff that the policy cancellation would take effect on April 11, 2003, and that the plaintiff still owed the additional premium of $51,718. CNA did not receive any additional payments from the plaintiff and cancelled the policy on April 11, 2003. On June 13, 2003, CNA received a letter from Robert Vogler on behalf of the plaintiff, disputing the audit and requesting an abatement of the additional audit billing. On June 14, 2003, Rodriguez sustained “catastrophic injuries” while performing roofing services on behalf of the plaintiff and filed a claim for workers’ compensation benefits.

During the pendency of Rodriguez’ claim, on January 23, 2006, the plaintiff initiated this action, seeking a judgment declaring that the policy covered the injuries sustained by Rodriguez, and that CNA either defend the plaintiff against Rodriguez’ claim or pay the plaintiff for all future costs and attorney’s fees in defending itself against the claim and award payment to the plaintiff for any costs and attorney’s fees already expended in defending itself against the claim. In its memorandum of decision, the court addressed the plaintiffs complaint in three parts.

In part one, the court noted that “[t]he gravamen of this action is whether the insurance policy entered into between the plaintiff and [CNA] was in effect at the time of the alleged injury such that coverage was mandatory.” The court concluded that the unambiguous language of the policy contemplates cancellation of the contract by either party prior to the end of the policy term. The court further concluded that pursuant to part five of the policy, the plaintiff was required to pay all premiums when due and that CNA properly could increase the premium prior to the completion of the policy period.

In the second part of its decision, the court addressed the plaintiffs claim that CNA failed to act on its appeal regarding the increased premium pursuant to the policy. The court noted that the plaintiff sent CNA a letter in response to the premium increase resulting from the audit. The court, however, also noted that CNA explained to the plaintiff the procedures that needed to be followed in order to place the audit in dispute but that the plaintiff did not even attempt to comply with those procedures.

Finally, the court addressed the plaintiffs claim that public policy dictates that cancellation of an assigned risk workers’ compensation policy during the period of the policy defies the humanitarian purposes of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The court concluded that CNA was entitled to cancel the policy for nonpayment of premium under both the policy’s terms and council guidelines. The court also noted that the plaintiff did not cite any authority supporting its claims that the humanitarian purpose of the act prohibits cancellation.

Accordingly, the court concluded that CNA properly cancelled the plaintiffs insurance policy prior to the events of June 14, 2003, the day on which Rodriguez sustained catastrophic injuries, and, therefore, that CNA was under no obligation to defend the plaintiff against Rodriguez’ claim or pay for any expenses incurred by the plaintiff in defending itself against the claim. This appeal followed.

Practice Book § 17-55 provides: “A declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations; (2) There is an actual bona ñde and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”

“The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29 and Practice Book § [17-55], is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties. . . . [Declaratory relief is a mere procedural device by which various types of substantive claims may be vindicated. . . .

“Implicit in these principles is the notion that a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit. . . . To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions . . . and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist.” (Citations omitted; internal quotation marks omitted.) Bysiewicz v. DiNardo, 298 Conn. 748, 756-57, 6 A.3d 726 (2010).

I

The plaintiff first claims that the court improperly determined that (1) the policy could be cancelled so long as notice was provided to the plaintiff at least ten days prior to the date of cancellation, and (2) the final premium for the policy could be calculated and made due prior to the end of the policy period. We disagree.

The following portions of the policy are relevant to our resolution of the plaintiffs claim. Part five of the policy, which relates to premiums, provides:

“B. [Classifications:] Item 4 of the Information Page shows the rate and premium basis for certain business or work classifications. These classifications were assigned based on an estimate of the exposures you would have during the policy period. If your actual exposures are not properly described by those classifications, we will assign proper classifications, rates and premium basis by endorsement to this policy. . . .
“D. [Premium Payments:] You will pay all premium when due. You will pay the premium even if part or all of a workers compensation law is not valid.
“E. [Final Premium:] . . . The final premium will be determined after this policy ends by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy. If the final premium is more than the premium you paid to us, you must pay us the balance. ... If policy is canceled, final premium will be determined in the following way unless our manuals provide otherwise: 1. If we cancel, final premium will be calculated pro rata based on the time this policy was in force. Final premium will not be less than the pro rata share of the minimum premium. . . .
“G. [Audit:] You will let us examine and audit all your records that relate to this policy. ... We may conduct the audits during regular business hours during the policy period and within three years after the policy period ends. Information developed by audit will be used to determine final premium.”

Section D of part six of the policy provides: “Cancelation ... 2. We may cancel this policy. We must mail or deliver to you not less than ten days advance written notice stating when the cancelation is to take effect. Mailing that notice to you at your mailing address shown in Item 1 of the Information Page will be sufficient to prove notice.”

“ [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Internal quotation marks omitted.) Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004). More specifically, “[t]he [i]nteipretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy. . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. ... A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous. . . . Moreover, [t]he provisions of the policy issued by the defendant cannot be construed in a vacuum. . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy.” (Internal quotation marks omitted.) Community Renewal Team, Inc. v. United States Liability Ins. Co., 128 Conn. App. 174, 178, 17 A.3d 88, cert. denied, 301 Conn. 918, 21 A.3d 463 (2011).

The plaintiff first claims that the court improperly determined that the policy could be cancelled so long as notice was provided to the plaintiff at least ten days prior to the date of cancellation. We disagree and conclude that the language of part six, § D, of the policy is unambiguous and permits cancellation of the policy by CNA at any time so long as it provides “not less than ten days advance written notice stating when the cancelation is to take effect.”

In its brief to this court, the plaintiff notes that part six of the policy contains a conformity clause. This clause provides: “Any of these provisions that conflict with a law that controls the cancelation of the insurance in this policy is changed by this statement to comply with the law.” The plaintiff also cites the Connecticut workers’ compensation insurance plan (plan) applicable to assigned risk policies. Section III, part two, of the plan provides: “If, after the issuance of a policy, the assigned carrier determines that an employer is not entitled to insurance, or has failed to comply with reasonable health, safety, and loss control requirements, or has violated any of the terms and conditions under which the insurance was issued, and after providing opportunity for cure, the assigned carrier shall initiate cancellation . . . .” Finally, the plaintiff also cites the conformity clause of part one of the policy, which provides in relevant part: “Terms of this insurance that conflict with the workers compensation law are changed by this statement to conform to that law.”

With reference to these provisions, the plaintiff baldly asserts that “[c]learly, the trial judge erred in ruling that cancellation by the insurer by simply providing ten day notice in this matter was incorrect” and that insurer cancellation based on nonpayment of a premium is in violation of the clear policy language. We conclude, however, that the court did not err in interpreting the policy. As noted, the unambiguous language of the policy allows for the cancellation of the policy by CNA so long as notice is provided to the plaintiff ten days prior to the date of cancellation. The plaintiff has not provided us with any provisions of the policy or any cases that suggest there are any limitations, other than the notice requirement, on when or under what circumstances the policy can be cancelled by CNA. Also, although the plaintiff cites the conformity clauses of parts one and six of the policy, it does not identify any laws that conflict with the provisions of the policy or the plan that would require the cancellation provisions of the policy to be modified.

The plaintiff alternatively argues that because cancellation of the policy violated the humanitarian purpose of our act the court improperly concluded that CNA could cancel the policy. Specifically, the plaintiff claims that “[gjiven the humanitarian purpose of the workers’ compensation system and the assigned risk program, it only makes sense, and good public policy, to require premium adjustments to be done after a policy ends so not to interrupt coverage in the event of an injury due to the nonpayment of a premium within the policy term.” We are not persuaded.

The plaintiff does not cite any authority that supports the proposition that the cancellation of an insurance policy during the policy period, as provided in the policy, violates the humanitarian purposes of the act. The only case cited by the plaintiff concerning this claim provides the well recognized standard that courts should interpret the act broadly to accomplish its humanitarian purpose; see Suprenant v. New Britain, 28 Conn. App. 754, 759, 611 A.2d 941 (1992); a proposition with which we fully agree.

Additionally, to conclude that the cancellation of a policy would violate the humanitarian purposes of the act would contradict the act’s own language, which contemplates the cancellation of insurance policies. See, e.g., General Statutes § 31-348 (“[t]he cancellation of any policy so written and reported shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman [of the workers’ compensation commission]”). Accordingly, we conclude that the court’s conclusion that the policy could be cancelled is not at odds with the humanitarian purposes of the act.

The plaintiff next claims that the court improperly concluded that the final premium for the policy could be calculated and made due prior to the end of the policy period. Specifically, the plaintiff argues that pursuant to part five, § E, the final premium could not be determined until after the policy ended by using the actual, not the estimated, premium basis and the proper classifications.

We conclude that, although the policy indicates that final premiums -will be determined after the policy ends, it nonetheless contemplates changes in the premium during the policy period. We also agree with the court’s conclusion that the policy permits the collection of the increased premium during the policy period. As noted, part five, § B, of the policy provides that the business or work classifications for the policy were assigned based on an estimate of the exposures the plaintiff would have during the policy period. It further provides that if actual exposures are not properly described by those classifications, CNA will assign proper classifications, rates and premium basis by endorsement to the policy. The policy, therefore, permits a change in premium during the policy period if the exposures of the insured are not accurately estimated when the initial premium amount is calculated.

Finally, part five, § D, unambiguously requires payment of a premium when it is due. This section also was amended via endorsement to provide that the due date for audit and retrospective premiums is the date of the billing. We conclude, therefore, that the policy permits the collection of an increased premium during the policy period.

II

The plaintiff next claims that the court made an erroneous factual finding when it concluded that CNA did not breach the insurance policy. We again disagree with the plaintiff.

“Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Aaron Manor, Inc. v. Irving, 126 Conn. App. 646, 653, 12 A.3d 584, cert. granted on other grounds, 301 Conn. 908, 19 A.3d 178 (2011).

The plaintiff argues that the court’s conclusion that CNA did not breach the policy was clearly erroneous because, in reaching this conclusion, the court relied on the assigned risk supplement (supplement) rather than the language of the policy itself. We conclude that the plaintiffs claim is without merit and that the court properly determined that CNA did not breach the policy.

We previously concluded in part I of this opinion that part six, § D, of the policy permitted CNA to cancel the policy so long as it provided the plaintiff with notice at least ten days prior to the date of cancellation. We also concluded that, pursuant to part five, §§ B and D, of the policy, CNA was permitted to assign proper classifications, rates and premium basis by endorsement to the policy and collect an increased premium during the policy period.

As noted, CNA issued a notice of cancellation for nonpayment of premium on March 27,2003, and notified the plaintiff that the policy cancellation would take effect on April 11, 2003. CNA did not receive any additional payments from the plaintiff concerning the increased premium and cancelled the policy on April 11, 2003.

As to the premium increase, Devingo indicated in the plaintiffs policy application that the plaintiff engaged in the business of providing carpentry services and only had one employee. CNA later completed a premium audit, which noted that the plaintiffs estimated exposure within the carpentry rate class was incorrect, and adjusted the plaintiffs premium to include exposure as paid with the roofing class. The audit also revealed that the plaintiff had more than one employee and that its previous annualized payroll was incorrect. CNA then issued a bill that reflected an endorsement to the policy resulting in an additional premium due of $51,718 by March 23, 2003.

These facts were stipulated to by the parties and accepted by the court. Also, the policy, the supplement, the results of the audit and the notice of cancellation were admitted as exhibits at trial, as well as the bill for the increased premium. We conclude, therefore, that there was evidence in the record that supported the court’s conclusion that CNA could properly increase the policy premium during the policy period and could properly collect the premium during the policy period. There also was evidence in the record that CNA complied with the cancellation provisions of the policy before cancelling the policy on April 11, 2003. Accordingly, the court’s finding that CNA did not breach the policy was not clearly erroneous.

Ill

In its final claim, the plaintiff argues that the court erred in determining that CNA properly responded to its March 3, 2003 letter concerning the increased premium and that the plaintiff failed to appeal the premium increase and the audit under the policy. We note that the court never made a finding as to whether the plaintiff appealed the premium increase; therefore, we will only address the plaintiffs claim as it relates to the appeal of the audit. In doing so, we conclude that the court’s findings that CNA properly acted upon the plaintiffs March 3, 2003 letter and that the plaintiff failed to initiate the audit dispute procedure were not clearly erroneous.

Our review of the audit dispute procedures under the policy is de novo. See Galgano v. Metropolitan Property & Casualty Ins. Co., supra, 267 Conn. 519. Our review of whether CNA properly complied with the audit dispute procedure and whether the plaintiff initiated the dispute procedure, however, is a question of fact and falls under the clearly erroneous standard of review. See Burns v. Quinnipiac University, 120 Conn. App. 311, 322, 991 A.2d 666 (degree of compliance by parties to contract is question of fact), cert. denied, 297 Conn. 906, 995 A.2d 634 (2010). As noted “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . .” (Internal quotation marks omitted.) Aaron Manor, Inc. v. Irving, supra, 126 Conn. App. 653.

At trial, the plaintiff argued that CNA failed to act on the plaintiffs appeal regarding the increase in premium. The court was not persuaded by this claim and concluded that CNA “provided the plaintiff with information apprising it of the necessary procedure to put the audit in dispute and suspend the billing until the appeal occurred. . . . The plaintiff makes no argument that it even attempted to follow the audit dispute procedure that was incorporated within the CNA letter.” (Citation omitted.)

The policy does not contain any provisions relating to disputes concerning the audit procedure. The supplement, which, along with the plan, governs the policy, does provide, however, that “[i]f an insured disputes an audit, the carrier shall contact the insured and resolve issues concerning the accuracy of the audit within forty-five (45) days from the date of receipt of written notice of the dispute. The dispute should be concluded either by revising the audit billing, or by written notice to the insured that the original audit is accurate.”

We conclude that there was sufficient evidence in the record to support the court’s conclusion that CNA responded sufficiently to the plaintiffs letter. We also conclude that there was sufficient evidence in the record to support the court’s conclusion that the plaintiff did not properly dispute the audit. As noted, on March 3, 2003, Silfen faxed a letter to CNA on behalf of the plaintiff, stating that “[t]his letter is to appeal the enclosed $51,718 bill. The insured has no employees at all, how can he have a payroll of $114,802?” Spellman responded to Silfen’s letter on March 10, 2003, and stated that “[i]f insured wishes to dispute they need to provide proper documentation to show subs are independent. They need to fax [documentation] to audit dispute unit . . . .” Spellman further stated that if “audit put in dispute, then billing will be suspended.” These facts were stipulated to by the parties and presented to the court, and Silfen’s letter to CNA and Spell-man’s response were entered as an exhibit at trial.

Spellman responded to the plaintiffs letter within seven days of receiving it, providing the plaintiff with instructions on how to put the audit in dispute. Spell-man also included her telephone number in her response and directed the plaintiff to contact her if it had any questions. The plaintiff stipulated to the fact that it took no further action in regard to the audit until June 13, 2003, after the policy had been cancelled.

Although the supplement provides that CNA must resolve issues concerning the accuracy of the audit within forty-five days from the date of receipt of written notice, “the general rule with respect to compliance with contract terms ... is not one of strict compliance, but substantial compliance.” (Internal quotation marks omitted.) Pack 2000, Inc. v. Cushman, 126 Conn. App. 339, 348-49, 11 A.3d 181, cert. granted on other grounds, 301 Conn. 907, 19 A.3d 177 (2011). CNA did initiate the process to resolve the plaintiffs issue concerning the audit; however, the plaintiff made no attempt to comply with CNA’s request for supporting documentation and did not take any further action concerning the audit until after the policy was cancelled. Furthermore, the supplement requires that the plaintiff cooperate fully with CNA and provide all information requested by CNA for auditing and underwriting purposes. The plaintiff did not cooperate with CNA’s request for information and cannot now claim that it properly disputed the audit when it ignored CNA’s explicit instructions on how to initiate the dispute procedure and suspend billing.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also sought payment of all past attorney’s fees and costs expended in defending a workers’ compensation claim initiated by Rodriguez.

       The plaintiff enumerates thirteen issues under seven separate headings in its brief to this court. “This court often has noted that such a multiplicity of issues can foreclose the appellant’s opportunity to provide afully reasoned discussion of the pivotal issues on appeal. ... As our Supreme Court has observed: Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases.” (Citation omitted; internal quotation marks omitted.) LeBlanc v. New England Raceway, LLC, 116 Conn. App. 267, 280 n.4, 976 A.2d 750 (2009). “Multiplicity hints at lack of confidence in any one [issue] .... [MJultiplying assignments of error will dilute and weaken a good case and will not save a bad one. . . . Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 740 n.14, 805 A.2d 76 (2002).

       Employers who are unable to obtain workers’ compensation insurance coverage through the voluntary insurance market must apply for coverage through the assigned risk market.

       The council is the plan administrator for the Connecticut workers’ compensation insurance plan.

       CNA used the remuneration the plaintiff paid to Rodriguez and three other individuals, among other factors, to recalculate the annual estimated premium.

       Rodriguez subsequently filed a workers’ compensation claim alleging that he was an employee of the plaintiff at the time of his injuries. Over the course of two years, the workers’ compensation commissioner (commissioner) held nine formal hearings concerning Rodriguez’ claim. Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 719, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011). On January 10, 2008, the commissioner dismissed Rodriguez’ claim because Rodriguez was not the plaintiffs employee but rather a subcontractor. Id., 722, 724. On May 11, 2009, the workers’ compensation review board (board) issued a memorandum of decision affirming the commissioner’s dismissal of Rodriguez’ claim. Id., 724. Rodriguez appealed the board’s decision to this court, which affirmed the dismissal of his claim. Id., 733.

       Specifically, the court concluded: “[CNA] provided the plaintiff with information apprising it of the necessary procedure to put the audit in dispute and suspend the billing until the appeal occurred. . . . The plaintiff malees no argument that it even attempted to follow the audit dispute procedure that was incorporated within the CNA letter. Instead, the plaintiff waited until June 13, 2003, more than three months later, to respond to the March 10, 2003 letter. . . . Even then, the plaintiff did not dispute the audit by the means instructed in the March 10, 2003 letter.” (Citations omitted.)

       Our courts consistently have concluded that the act “is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation.” (Internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132, 150, 982 A.2d 157 (2009).

       Section D was amended by endorsement to include the following: “The due date for audit and retrospective premiums is the date of the billing.”

       Assigned risk insurance policies that are issued in Connecticut are governed by, among other things, the plan.

       The plaintiff also claims that CNA “clearly intended to cancel the plaintiffs coverage once it received [a] claim from Jesus Hernandez, and, thus, wrongfully instituted the audit procedure to effectuate cancellation.” This claim is unsupported by the facts. CNA contracted with Travelers Insurance Company (Travelers) to service the policy. On December 18, 2002, CNA ordered the audit of the plaintiffs policy; however, it was not until January 7, 2003, that counsel for the plaintiff notified Travelers that Hernandez had sustained an injury while performing roofing services for the plaintiff.

       The plaintiff further claims that the court improperly concluded that part five, § D, of the policy applies to part five, §§ E and G. As noted, part five, § E, concerns final premiums, and part five, § G, concerns audits. We, however, already have concluded that CNA properly increased the premium pursuant to part five, § B, and, therefore, the plaintiff was obligated to pay the new premium by the due date. Accordingly, we need not decide whether part five, § D, applies to part five, §§ E and G.

       The plaintiff makes a separate claim that the court “committed plain error by holding that [CNA] was justified in charging Ramiro Rodriguez’ remuneration as an employee as part of the $51,000 premium acjjustment and then using that premium adjustment as a basis to cancel the policy . ...” We note that the court never made such a finding as to what remuneration CNA was justified in charging. We, therefore, construe this claim as a challenge of the court’s conclusion that “[t]he audit recalculated premium based on a determination of employees entitled to coverage, as opposed to excluded independent contractors as the plaintiff has claimed, was therefore permissible.”
      The plaintiff argues under this section that it had the right to appeal CNA’s decision that Rodriguez was an employee and subsequent decision to increase the premium based on the results of the audit. Pursuant to the policy, the plaintiff did have a right to challenge the results of the audit; however, as we already have concluded, it failed to properly place the audit in dispute.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    BARBARA MCKECHNIE v. DENNIS MCKECHNIE
    (AC 31498)
    DiPentima, C. X, and Espinosa and West, Js.
    Argued April 25
    officially released July 26, 2011

      Samuel V. Schoonmaker TV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellant (plaintiff).

      Charles D. Ray, with whom was Matthew A. Weiner, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

In this marital dissolution appeal, the plaintiff, Barbara McKechnie, challenges the order of the trial court awarding sole legal custody of the two minor children to the defendant, Dennis McKechnie. On appeal, the plaintiff argues that (1) the court improperly applied General Statutes § 46b-56 (c) (12), (2) § 46b-56 (c) (12) is unconstitutionally vague and (3) the court abused its discretion in awarding sole legal custody to the defendant. We are not persuaded and, accordingly, affirm the judgment of the trial court.

The following procedural history and facts set forth by the trial court in its oral decision are relevant to this appeal. On October 5, 2006, the plaintiff commenced this dissolution action. In both the complaint and the defendant’s cross complaint, each party requested joint legal custody of the minor children. On August 3, 2007, the defendant moved to modify the pendente lite custody and parenting plan and sought sole legal custody of the minor children. In her proposed orders, the plaintiff again sought joint legal custody. Both the defendant and Bonnie L. Amendola, the attorney for the minor children, requested that the court award sole legal custody to the defendant. Following a trial, the court rendered judgment dissolving the marriage on June 23, 2009.

After noting that it had reviewed and applied the relevant statutory criteria, the court dissolved the marriage of the parties and awarded sole legal custody of the minor children to the defendant. The court further ordered that the children were to reside primarily with the defendant and that he was to seek the plaintiffs input and opinion on all substantial nonemergency issues relating to the minor children. After receiving such input within forty-eight hours, the defendant was to make the decision that he believed to be in the best interests of the children.

The court explicitly discussed the statutory criteria of § 46b-56 (c) (12), which provides: “In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to . . . the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child . . . .” The court stated: “I want to be perfectly clear about [§ 46b-56 (c) (12)], about the mental and physical health of all individuals, except that the disability shall in and of itself not be determinative of custody. It’s not. First of all, I don’t know what disability there is or isn’t. We’ve been banting those words about, but I don’t have very good evidence about any of this. So all I can do is observe the behavior.

“And it is not—-let’s assume for a moment it is a disability. It is not the disability in and of itself. I’m not finding against [the plaintiff] in terms of her particular wishes or plan because she is bipolar or because she has a thought disorder [such as attention deficit hyperactivity disorder].”

The plaintiff appealed and subsequently filed a motion for articulation on May 6, 2010. She sought an articulation of the following issues: (1) whether the court applied the civil preponderance of the evidence standard when it determined that sole legal custody was in the best interests of the minor children; (2) whether the court found by a preponderance of the evidence that sole legal custody was in the best interests of the minor children; (3) whether the court found that the plaintiff has a disability, including, but not limited to, attention deficit hyperactivity disorder; and (4) whether the court considered accommodations, if any, that enabled the plaintiff to participate in and benefit from the court proceedings and participate in legal custody of the minor children. On May 17, 2010, the court answered in the affirmative to the first two issues set forth in the motion for articulation, and denied the motion with respect to the latter two. The plaintiff, pursuant to Practice Book § 66-6, filed a motion for review with this court. On July 28, 2010, the plaintiffs motion for review was granted, but the relief requested was denied.

I

The plaintiff first claims that the court improperly applied § 46b-56 (c) (12). Specifically, she argues that once the court considered her mental health as a factor in determining which party would be awarded legal custody of the minor children, it was required to consider whether accommodations for her disability would have enabled her to retain custody. The defendant responds, inter alia, that we should decline to review this claim because it was not raised before the trial court. We agree with the defendant.

“It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (issue not reviewed because not raised at trial). This court will review claims not raised at trial only in extraordinary circumstances. See Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988). . . . [See also] Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by court below are not properly before appellate tribunal); 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).” (Citation omitted; internal quotation marks omitted.) W. v. W., 248 Conn. 487, 505-506, 728 A.2d 1076 (1999).

We have reviewed the transcript and are unable to find any references regarding the issue of accommodations. As we frequently have stated, “[f]or this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party . . . .” (Internal quotation marks omitted.) Adamo v. Adamo, 123 Conn. App. 38, 46-47, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010); see also Noonan v. Noonan, 122 Conn. App. 184, 190, 988 A.2d 231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010); Corrarino v. Corrarino, 121 Conn. App. 22, 30, 993 A.2d 486 (2010). Additionally, we note that in Logan v. Logan, 96 Conn. App. 842, 845-46, 902 A.2d 666 (2006), we declined to review a party’s claim raised for the first time on appeal that the trial court improperly failed to provide him with accommodations according to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., during court proceedings. Accordingly, we decline to review this claim.

II

The plaintiff next claims that § 46b-56 (c) (12) is unconstitutionally vague. Specifically, she argues that unless the term “disability” is read in accordance with the definition set forth by federal law in the ADA; see 42 U.S.C. § 12102 (1), then § 46b-56 (c) (12) is vague and impossible to apply. The defendant argues, inter alia, that § 46b-56 (c) (12) provides the required notice because it contains a core meaning. We agree.

At the outset, we note that this claim was not raised below and that the plaintiff seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. . . . The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Citation omitted; emphasis added; internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 531, 4 A.3d 288 (2010). We agree that the record is adequate for review and that the plaintiffs claim is of constitutional magnitude. We conclude, however, that the claim fails under the third prong of Golding.

“Section 46b-56 (c) directs the court, when making any order regarding the custody, care, education, visitation and support of children, to consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of [sixteen enumerated] factors .... The court is not required to assign any weight to any of the factors that it considers.” (Internal quotation marks omitted.) Lederle v. Spivey, 113 Conn. App. 177, 187, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).

We note that the court expressly made no finding of disability and then stated that even if it did, a finding of disability played no part in the court’s decision to award sole custody to the defendant as a result of that disability. Despite suggestions in her briefs of an implicit finding of a disability, the plaintiff has not directly challenged the express factual finding by the court. Thus, we are bound by the court’s findings. We also are mindful that in termination of parental rights cases, this court had rejected claims that the ADA provides a defense or creates special obligations. See In re Brendan C., 89 Conn. App. 511, 526, 874 A.2d 826, cert. denied, 274 Conn. 917, 879 A.2d 893, cert. denied, 275 Conn. 910, 882 A.2d 669 (2005); In re Antony B., 54 Conn. App. 463, 472-73, 735 A.2d 893 (1999). Specifically, we reasoned that a termination proceeding is “not a service, program or activity under the ADA.” (Internal quotation marks omitted.) In re Antony B., supra, 472.

We now turn to the specifics of the plaintiff s constitutional claim. “Courts have derived the void for vagueness doctrine from the constitutional guarantee of due process.” (Internal quotation marks omitted.) State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 757, 529 A.2d 1276 (1987). “It is well settled that, [i]n the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. ... A judicial holding that a legislative [a]ct is unconstitutional is one of very grave concern. We ought not, and will not, declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: It is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the [a]ct unless its invalidity is, in our judgment, beyond a reasonable doubt. . . . When a litigant claims that a law is vague on its face, this court will examine the challenged statute to see if it is impermissibly vague in all of its applications. A statute that is impermissibly vague in all its applications is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. . . . Such a provision simply has no core. . . . Put another way, a determination that the statute is not vague with respect to at least one application will defeat [the plaintiffs’] facial challenge. This burden is augmented by our strong presumption, noted above, in favor of the statute’s constitutionality.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 320-21, 732 A.2d 144 (1999); see also Packer v. Board of Education, 246 Conn. 89, 113-14, 717 A.2d 117 (1998). We also note that “[cjivil statutes must be definite in their meaning and application, but may survive a vagueness challenge by a lesser degree of specificity than in criminal statutes.” (Internal quotation marks omitted.) State Management Assn. of Connecticut, Inc. v. O’Neill, supra, 757.

The defendant argues that while § 46b-56 (c) permits a trial court to consider many factors in reaching its determination of custody, its central focus or core meaning is whether the custody arrangement is in the best interests of the child. Our case law makes it abundantly clear that the best interests of a child control the custody determination. “It is statutorily incumbent upon a court entering orders concerning custody or visitation or a modification of such order to be guided by the best interests of the child.” (Internal quotation marks omitted.) Stahl v. Bayliss, 98 Conn. App. 63, 68, 907 A.2d 139, cert. denied, 280 Conn. 945, 912 A.2d 477 (2006); see also Reza v. Leyasi, 95 Conn. App. 562, 567, 897 A.2d 679 (2006) (controlling principle in determination respecting custody is that court guided by best interests of child); Gina M. G. v. William C., 77 Conn. App. 582, 587-88, 823 A.2d 1274 (2003) (regarding custody determination, court graded by best interests of child, including child’s interests in sustained growth, development, well-being, continuity and stability of environment). Thus, as a whole, the core meaning of § 46b-56 (c) is a determination of orders premised on the best interests of the child.

With regard to a custody determination, our legislature has provided courts with a variety of factors that may be considered. One factor is the mental and physical health of all individuals involved. General Statutes § 46b-56 (c) (12). The core of subdivision (12) is clear: No matter what disability, or health issue, a person may have, the court is free to consider that fact when making a custody determination, so long as that disability is not determinative. As a corollary, a court may use a disability as a determinative factor if it is in the child’s best interests to do so. As a result of the core meaning of § 46b-56 (c) (12), and the statute as a whole, the plaintiffs constitutional challenge fails under the third prong of Golding.

Ill

The plaintiffs final claim is that the court abused its discretion in awarding sole legal custody of the minor children to the defendant. Specifically, she presents a variety of claims regarding the court’s decision to award sole custody to the defendant. We are not persuaded.

“Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . Further, [t]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.” (Citations omitted; internal quotation marks omitted.) Taylor v. Taylor, 119 Conn. App. 817, 821, 990 A.2d 882 (2010).

The plaintiff again argues that the court improperly awarded sole custody to the defendant as a result of her disability. As we previously have stated, the court made an explicit finding that the plaintiff did not have a disability and, in the alternative, even if she did, that factor was not the basis for its custody award. The plaintiff also contends that a custody evaluation conducted during the course of the trial was flawed. This claim ignores the fact that the plaintiffs trial counsel agreed to this procedure. “Actions that are induced by a party ordinarily cannot be grounds for error [on appeal].” (Internal quotation marks omitted.) Martin v. Martin, 101 Conn. App. 106, 120 n.7, 920 A.2d 340 (2007). With respect to the remaining claims regarding the court’s custody order, after a thorough review of the record and the relevant statutory facts, we conclude that the plaintiff has failed to establish an abuse of discretion by the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-56 (a) provides in relevant part: “Subject to the provisions of section 46b-56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. ...”

       General Statutes § 46b-56a (a) provides: “For the purposes of this section, ‘joint custody’ means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. The court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody.”

       We note that on January 11, 2011, Amendola filed a statement adopting and incorporating by reference the position of the defendant in its entirety as set forth in the defendant’s brief. See Practice Book § 67-13.

       See 42 U.S.C. § 12101 etseq. “The ADA provides: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.” (Internal quotation marks omitted.) In re Brendan C., 89 Conn. App. 511, 526, 874 A.2d 826, cert. denied, 274 Conn. 917, 879 A.2d 893, cert. denied, 275 Conn. 910, 882 A.2d 669 (2005).

       “The term ‘disability’ means, with respect to an individual—(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102 (1).

       “The factors set forth in General Statutes § 46b-56 (c) are: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b.” (Internal quotation marks omitted.) Lederle v. Spivey, 113 Conn. App. 177, 187 n.12, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).

       The defendant directs our attention to sibling authority rejecting claims that the ADA applies in the context of custody determinations. In Curry v. McDaniel, 37 So. 3d 1225, 1233 (Miss. App. 2010), the Mississippi Court of Appeals noted that it had found “no persuasive authority which supports the proposition that the ADA applies or was intended to apply to child-custody determinations.” The court reasoned that a custody determination was not a service, program or activity contemplated by the ADA, and that it was the best interests of the child that controlled the custody determination. Id. Similarly, in Arneson v. Arneson, 670 N.W.2d 904, 911 (S.D. 2003), the Supreme Court of South Dakota rejected an extension of the ADA into a judicial custody determination.


author: PETERS, J.

text:
    WALGREEN EASTERN COMPANY, INC. v. ZONING BOARD OF APPEALS OF THE TOWN OF FAIRFIELD WALGREEN EASTERN COMPANY, INC. v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD
    (AC 31497)
    DiPentima, C. J., and Lavine and Peters, Js.

      Argued April 26
    officially released August 2, 2011

      John F. Fallon, for the appellant (plaintiff).

      Richard H. Saxl, for the appellees (defendants in each case).

      Joel Z. Green, for the appellees (defendant Jeffrey Rowe et al. in both cases).
   Opinion

PETERS, J.

This zoning appeal concerns the unsuccessful effort of a real estate lessee to open a pharmacy on property that previously had been used as a grocery store. Although the lessee planned to make only interior changes to the property, local zoning authorities refused to authorize the lessee’s proposed change of use. The lessee challenges the validity of the procedural decision of the town zoning board of appeals that it was required to apply for a certificate of zoning compliance and the validity of the substantive decision of the town zoning commission that it was not entitled to such a certificate. We affirm the judgments of the trial court dismissing the lessee’s appeals.

On July 23,2007, the plaintiff, Walgreen Eastern Company, Inc., filed a complaint alleging that the defendant town plan and zoning commission of the town of Fair-field (zoning commission) improperly had denied the plaintiffs application for a certificate of zoning compliance. In accordance with a motion filed by the plaintiff, this complaint was consolidated with the plaintiffs appeal from a prior adverse decision of the defendant zoning board of appeals of the town of Fairfield (zoning board) that the plaintiff was required to apply for a certificate of zoning compliance from the zoning commission. After an evidentiary hearing, the trial court, Tobin, J., dismissed both appeals and denied the plaintiffs motion to reargue. The plaintiff has appealed.

The opinion of the court describes the underlying undisputed facts. The plaintiff is the lessee of premises located partially in a Fairfield Neighborhood Designed Business District and partially in a Fairfield Residence District A. The site, which includes a building and an adjacent parking lot, formerly was used as a supermarket. The plaintiffs proposed use of the site does not involve any additions or exterior alterations to the building or the site. Its status as lessee established its aggrievement to pursue both appeals.

I

The plaintiffs appeal from the zoning board challenges the validity of the board’s decision that, because the plaintiffs proposed use of the leasehold represented a change in the use of the property, it was required to apply to the zoning commission for a certificate of zoning compliance. The court dismissed this appeal because of the plaintiffs failure to comply with General Statutes § 8-6 (a) (1). That statute empowers zoning boards of appeals to “hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of . . . any . . . regulation adopted under the provisions of this chapter . . . .” (Emphasis added.) After an evidentiary hearing, the court found that the plaintiff had failed to establish, either in the record or by its evidence, that Fairfield’s zoning enforcement officer had made any decision that could have been appealed to the zoning board. Accordingly, the court dismissed the plaintiffs appeal. The plaintiffs appeal to this court challenges the validity of this ruling.

The determination of whether the action of a zoning enforcement officer qualifies as a decision appealable under § 8-6 depends on the particular facts and circumstances of each case. Holt v. Zoning Board of Appeals, 114 Conn. App. 13, 20, 968 A.2d 946 (2009). In this case, the plaintiff argues, in the alternative, that the record shows that the requisite decision was either (1) made inferentially by the designated zoning enforcement officer or (2) made expressly by Fairfield’s zoning administrator acting as the zoning enforcement officer. We are not persuaded.

The plaintiff concedes that Peter Marsala, the designated zoning enforcement officer, did not expressly decide that the plaintiff was required to file an application for a certificate of zoning compliance. It represents, however, that the record shows that Marsala was present at the hearing of the plaintiffs appeal to the zoning board. Because, at that hearing, Marsala did not dispute the plaintiffs representation that it had been advised to file such an application, the plaintiff maintains that Marsala acquiesced in the advice that the plaintiff had received. We are not persuaded that it was clearly erroneous for the court to decline to draw any inference from Marsala’s silence. If any common-law principle is applicable, it is that silence is not acceptance.

Alternatively, the plaintiff represents that James Wendt, Fairfield’s zoning administrator, in fact was charged with the enforcement of the Fairfield zoning regulations and that his order directing the plaintiff to obtain a certificate of zoning compliance conferred jurisdiction on the zoning board to hear the plaintiffs appeal. We do not disagree, in principle, with the plaintiffs contention that appeals under § 8-6 may be taken from decisions made by someone other than the designated zoning enforcement officer, if that other person in fact exercised, and was authorized to exercise, the relevant authority. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 8:6, p. 222. The record in this case, however, contains no such findings. We are not empowered to fill this evidentiary gap.

Accordingly, we conclude that, on the record before it, the court properly found that the plaintiff had failed to establish the requisite factual predicate for its appeal from the zoning board. We therefore affirm the court’s dismissal of this appeal.

II

The plaintiff’s appeal from the zoning commission challenges the validity of its denial of the plaintiffs application for a certificate of zoning compliance. The court addressed and rejected the plaintiffs claims that its proposed use of the leased property (1) did not represent a change in the use of the property and (2) was a permitted use under § 12.5.1 of the Fairfield zoning regulations. Furthermore, the court found that the plaintiff had failed procedurally to pursue a prior motion to introduce evidence of an allegedly inconsistent prior administrative approval of a CVS pharmacy that also was located in a neighborhood design business district. Finally, the court denied the plaintiffs motion for reargument. The plaintiff asks us to overturn each of these adverse determinations. We are not persuaded to do so.

The underlying facts are undisputed. The plaintiffs application for a certificate of zoning compliance asked for approval of a change in the use of the site from “food market” to “pharmacy.” The application noted that the plaintiff proposed no modifications to the site plan and only interior alterations to the building. After a public hearing, the zoning commission denied the plaintiff’s application for three reasons:

“1. The proposed use does not comply with the purpose of the Neighborhood Designed Business District as outlined in Section 12.5 of the Regulations.
“2. The proposed use does not comply with Section 12.5.1 in that it is not a permitted retail use.
“3. The proposed use does not comply with Section 25.7.7 in that it is not of such a character as to harmonize with the neighborhood and to preserve and protect property values in the neighborhood.”

Judicial assessment of the propriety of the zoning commission’s decision is governed by a well established standard of review. “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [conclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached. ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board. ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008). When a zoning commission has issued “a formal, official, collective statement of reasons for [its] action[s],” the scope of our review is limited to determining “whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.” Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).

The plaintiffs appeal from the court’s dismissal of its appeal from the zoning commission’s decision challenges the validity of the court’s judgment upholding the commission’s finding that the plaintiffs proposed use of its property as a pharmacy was not a permitted use under the applicable provisions of the Fairfield zoning regulations governing neighborhood designed business districts. The plaintiff maintains that (1) the conversion of the leased property from its prior use as a grocery store to its contemplated use as a pharmacy was not a “change in use” for zoning purposes, (2) the record clearly establishes that the items it proposes to sell at the leased premises fall within the terms of the regulation, (3) the court’s contrary holding is inconsistent with the zoning commission’s prior approval of a CVS pharmacy in the same business district and (4) the court’s decision is inconsistent with the decision of our Supreme Court in Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 920 A.2d 1000 (2007). Our review of the court’s careful and detailed analysis of these claims persuades us that the plaintiff cannot prevail on any of these contentions.

A

The court rejected the plaintiffs argument on the issue of “change in use” on procedural grounds. That issue was implicated in the decision of the zoning board when it held that, because of the differences between the operation of a grocery store and a pharmacy, the plaintiff was required to apply for a certificate of compliance from the zoning commission. Having upheld the decision of the zoning board, the court held that the plaintiff was not entitled to revisit the issue of “change of use” in its appeal from the decision of the zoning commission. We agree.

B

At the hearing before the zoning commission and at trial, the plaintiff emphasized that the uses expressly permitted by § 12.5.1 of the zoning regulations include both drugs and gifts, and that the gifts category would authorize its proposed sale of items, such as electronics, that were not otherwise specified in the regulation. Furthermore, the plaintiff represented that only 5 percent of its contemplated revenues and only 4.9 percent of its linear shelf space would reflect the sale of products not listed in the regulation. We agree with the court that these factual representations do not establish that the zoning commission’s decision was unreasonable, arbitrary or illegal.

C

The court also disagreed with the plaintiffs argument that prior zoning commission approval of a CVS pharmacy in the plaintiffs zoning district required the commission to approve the plaintiffs request for permission to utilize its property for the same purpose. The court held that the plaintiff had failed to establish the necessary procedural underpinnings for this contention. We agree with the court.

The court noted that the record of the zoning commission proceedings in this case did not contain any materials relating to the CVS pharmacy approval. Furthermore, it observed that the plaintiff had failed to pursue a similar earlier motion that it had filed, pursuant to General Statutes § 8-8 (k), to supplement the record in the zoning appeal. Although that motion had been denied by the court, Radcliffe, J., the denial had been “[without] prejudice to the right to review if consolidated with [the zoning commission] appeal.” The court found that (1) no parallel motion had been filed in the plaintiffs appeal from the decision of the zoning commission and (2) the matter had not been raised again by the plaintiff after the two appeals were consolidated, on its own motion, on June 10, 2008.

The plaintiff has not challenged the accuracy of the court’s description of the existing state of the record. It has not suggested that it was proceduraily foreclosed from filing a further motion to supplement the record. The conclusion is therefore inescapable that the plaintiff failed to establish the evidentiary foundation for the CVS pharmacy comparison on which its argument relied.

D

The plaintiffs alternate contention, based on the decision of our Supreme Court in Alvord Investment, LLC v. Zoning Board of Appeals, supra, 282 Conn. 393, is that the zoning commission was required to approve its application because, as a matter of law, the plaintiff s contemplated sales of items that were not expressly authorized by § 12.5.1 of the regulations represented legitimate accessory uses of the plaintiffs property. We agree with the court that Alvord Investment, LLC, does not control this case.

In Alvord Investment, LLC, our Supreme Court upheld the decision of a zoning enforcement officer that a supermarket containing a bakery, a pharmacy and a bank properly could be classified as “ ‘Food Shops, Retail,’ ” a permitted use of the property. Id., 417. The plaintiffs presented evidence that over 90 percent of the proposed development would be dedicated to the intended main use of the facility as a retail food shop and that less than 7 percent of the store would be devoted to “certain accessory uses . . . that are customarily incidental to the main use.” (Internal quotation marks omitted.) Id. The court noted that the applicable Stamford zoning regulations did not define “ ‘Food Shops, Retail.’ ” Id. It further observed that the zoning enforcement officer’s ruling was supported by evidence of a pattern of past practice interpreting “ ‘Food Shops Retail.’ ” Id., 418.

The court appropriately distinguished Alvord Investment, LLC, on two grounds. First, instead of the regulatory vacuum that our Supreme Court noted in Alvord Investment, LLC, in this case, Fairfield’s zoning regulations comprehensively regulate designed business districts, such as the district in which the plaintiffs leasehold is located. These regulations do not authorize any accessory or incidental uses. Second, the court held that, in the absence of evidence in the record of a prior inconsistent zoning commission ruling, the plaintiff had failed to document a pattern of past practice similar to that on which the Supreme Court based its relief in Alvord Investment, LLC.

The plaintiff has not challenged the accuracy of the court’s analysis of the applicable Fairfield zoning regulations. It has not disputed the court’s finding about the state of the record before the zoning commission. Furthermore, even if we were to disagree with that finding, which we do not, it is questionable whether a single facially inconsistent decision by the zoning commission would have sufficed to establish a “pattern of practice.” It is clear, therefore, that the plaintiff has offered no persuasive support for its contention that the court improperly failed to follow our Supreme Court’s holding in Alvord Investment, LLC.

Ill

The plaintiffs final argument is that the court improperly denied its motion to reargue in which it sought a further opportunity to establish that the decision of the zoning commission in this case was inconsistent with the commission’s prior approval of a CVS pharmacy in the same business district as that in which the plaintiffs property is located. The plaintiff proposed that the file before the zoning commission be supplemented by documents from the zoning commission’s files regarding the CVS pharmacy application, including the notice of its decision granting the approval and the notice of its filing on the Fairfield land records. In addition, the plaintiff sought permission to offer additional legal authority in support of its contention that the zoning commission should reconsider its adverse decision in light of the information and evidence pertaining to the prior CVS pharmacy approval. The motion was opposed by the zoning board and the zoning commission.

“[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... [A] motion to reargue ... is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.” (Internal quotation marks omitted.) Chartouni v. DeJesus, 107 Conn. App. 127, 129, 944 A.2d 393, cert. denied, 288 Conn. 902, 952 A.2d 809 (2008). Our review of the denial of a motion to reargue is limited to ascertaining whether the court’s decision was an abuse of its discretion. Valentine v. LaBow, 95 Conn. App. 436, 451, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

In its memorandum of decision denying the plaintiffs motion, the court reiterated its finding that the plaintiff had failed to avail itself of the procedural opportunity for supplementing the record that Judge Radcliffe had left open at the conclusion of the plaintiffs zoning commission appeal. The court found that (1) no parallel motion had been filed in the plaintiffs appeal from the decision of the zoning commission and (2) the matter was not raised again by the plaintiff after the two appeals were consolidated, on its own motion, on June 10, 2008.

The plaintiffs appeal to this court does not challenge the accuracy of this procedural history. It maintains instead that Judge Radcliffe’s order was self-executing once the plaintiffs two appeals were consolidated. The plaintiff cites no authority in support of this argument, and we know of none.

We note, moreover, that the court’s denial of the motion to reargue was based on persuasive substantive as well as procedural grounds. The court observed that, although the plaintiffs brief in support of its appeals from the zoning board and the zoning commission had referred to the zoning commission’s prior approval of the CVS pharmacy application, the brief was essentially conclusory in its argument. As far as the present record shows, in its statements before the zoning commission and before the court, the plaintiff repeatedly cited the action taken on the CVS pharmacy application without presenting a factual comparison between the merchandise for sale at the approved CVS pharmacy and the merchandise that the plaintiff proposed to sell at its place of business.

The plaintiffs appeal to this court does not address the trial court’s serious procedural and substantive grounds for denying it the relief it seeks. To this day, it has not offered even a cursory description of the nature of the business conducted by the CVS pharmacy that the zoning commission had earlier approved. Instead, the plaintiff faults the trial court for failing to undertake an “equitable disposition of this appeal and the proper resolution of an issue regarding constitutional questions involving selective enforcement and equal protection.” Constitutional principles cannot, by themselves, fill the factual gaps in the plaintiffs case.

On the record before us, we conclude that the trial court properly dismissed both of the plaintiffs appeals. As comprehensively documented in the careful opinion of the court, in each appeal, the plaintiff failed to establish a factual predicate for its principal argument. In the appeal from the zoning board, the plaintiff failed to present a definitive ruling by the zoning enforcement officer. In the appeal from the zoning commission, the plaintiff failed to present probative evidence of an inconsistent pattern of Fairfield zoning approvals.

The judgments are affirmed.

In this opinion the other judges concurred.

       Jeffrey Rowe and Barbara Rowe, owners of neighboring property, and The Stratford Village Association were added as party defendants in both actions.

       The decision of the zoning commission referred to two sections of the Fairfield zoning regulations. Section 12.5 of the Fairfield zoning regulations, entitled “Neighborhood Designed Business District,” provides: “The purpose of this district is to provide local neighborhoods with needed and desirable convenience goods and services in a manner which will not be detrimental to the surrounding residential areas. The uses permitted in this zone shall be limited to those which primarily serve the local neighborhood and are consistent with the purpose for which this district was designed.” Section 12.5.1 of the Fairfield zoning regulations, entitled “Permitted Uses in the Neighborhood Designed Business District,” provides: “Retail uses limited to: antiques, art supplies, books, clothing, drugs, dry goods, flowers, furniture, interior decorating, garden and farm supplies, gifts, groceries, fruits, vegetables, meats, sandwiches, hardware, shoe repair, stationery, periodicals and toilet articles, pets and related supplies.”