author: HARPER, J. LAVINE, J.,

text:
    RHONDA M. MARCHESI v. BOARD OF SELECTMEN OF THE TOWN OF LYME ET AL.
    (AC 29999)
    Harper, Lavine and Mihalakos, Js.

      Argued November 17, 2010
    officially released August 30, 2011

      Kenneth M. McKeever, town attorney, for the appellants (named defendant et al.).

      Harry B. Heller, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendants in this administrative appeal, the board of selectmen of the town of Lyme (board) and the town of Lyme (town), appeal from the summary judgment rendered by the trial court in favor of the plaintiff, Rhonda M. Marchesi. The defendants claim that the court improperly (1) concluded that the parties were entitled to a trial de novo, (2) concluded that the board had exceeded its authority by determining that a highway existed on the plaintiffs property, (3) determined that there were no issues of material fact to preclude the granting of summary judgment and (4) made a finding of fact unsupported by the evidence. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. Brockway Ferry Road is a highway located near the shore of the Connecticut River in Lyme. The plaintiff owns real property, improved with a single family residence, on Brockway Ferry Road. In 2006, several other proprietors of real property abutting Brockway Ferry Road filed a petition, pursuant to General Statutes § 13a-39, requesting that the board define the boundaries of Brockway Ferry Road, particularly at its western end, in the area of the plaintiffs property. The board considered documentary and testimonial evidence and held hearings related to the petition. In October, 2006, the board published notice of its memorandum of decision in which it “made a determination of the boundary and terminus of Brockway Ferry Road at its western end as it runs along and into the Connecticut River.” Essentially, the board concluded that Brockway Ferry Road extended through and across the plaintiffs property, past the then existing western terminus of the highway.

Thereafter, the plaintiff brought an administrative appeal, pursuant to General Statutes § 13a-40, in the Superior Court. The plaintiff asserted that the board’s decision introduced a public highway through and across her property, lessened the value of her property and negatively affected her use and enjoyment of her property. The plaintiff raised several claims related to the board’s jurisdiction. Additionally, the plaintiff claimed that the board had acted illegally, arbitrarily and in abuse of its discretion. The gist of the complaint was that, rather than defining the width of an existing public highway, the board extended the length of said highway at its western terminus.

In June, 2007, the plaintiff moved for summary judgment. The defendants opposed the motion, arguing, in part, that the plaintiff was not entitled to move for summary judgment in an administrative appeal. In its May 20, 2008 memorandum of decision, the court granted the plaintiffs motion for summary judgment. The court concluded that it was entitled to consider the appeal in a trial de novo and, therefore, that the motion for summary judgment procedurally was appropriate. Thereafter, the court concluded that the plaintiff was entitled to judgment, as a matter of law, because the board exceeded the scope of its statutory authority by determining the length of Brockway Ferry Road, rather than its width. This appeal followed.

I

First, the defendants claim that, in concluding that summary judgment procedurally was proper in this case, the court improperly determined that the parties were entitled to a trial de novo. We disagree.

The defendants argued before the trial court that the plaintiff was not entitled to a trial de novo but, rather, the court was limited to determining whether substantial evidence supported the board’s decision. The court’s determination rests, to a large extent, on its interpretation of § 13a-40. “[I]ssues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . 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 that 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.” (Internal quotation marks omitted.) In re A.R., 123 Conn. App. 336, 339, 1 A.3d 1184 (2010).

Section 13a-40 provides in relevant part: “Any person aggrieved by [the decision of town selectmen in defining highway bounds pursuant to § 13a-39] may appeal to the superior court for the judicial district where such highway is situated within ten days after notice of such decision has been given, which appeal shall be in writing, containing a brief statement of the facts and reasons of appeal .... Said court may review the doings of such selectmen, examine the questions in issue by itself or by a committee, confirm, change or set aside the doings of such selectmen, and make such orders in the premises, including orders as to costs, as it finds to be equitable. The clerk of said court shall cause a certified copy of the final decree of said court to be recorded in the records of the town in which such highway is located, and, if such decree changes the bounds defined and established by the decision of such selectmen, the bounds defined and established by such decree shall be the bounds of such highway.” (Emphasis added.)

Nothing in the plain language of the statute governing an appeal from the decision of the board limits the authority of the Superior Court in its review of the board’s determination. Rather, the language of the statute unambiguously states that the court, examining the issues by itself, may change or set aside the decision of the board and make such orders in the premises as it finds to be equitable. Unlike the defendants, we do not interpret the statute in such a manner that it precludes the court from conducting a trial de novo. Furthermore, the defendants have not presented this court with persuasive authority to the contrary. Subsequent to the filing of an administrative appeal in which the parties are entitled to a judgment de novo, the appeal shall “follow the same course of pleading as that followed in ordinary civil actions . . . .” Practice Book § 14-7 (d) (5). This course of pleading encompasses the motion for summary judgment. See Practice Book § 17-44.

II

Second, the defendants claim that the court improperly concluded that the board had exceeded its authority by determining that a highway existed on the plaintiffs property. We disagree.

A determination of the board’s authority requires that we interpret § 13a-39. In part I of this opinion, we set forth the principles guiding our review. Section 13a-39 provides in relevant part: “Whenever the boundaries of any highway have been lost or become uncertain, the selectmen of any town in which such highway is located, upon the written application of any of the proprietors of land adjoining such highway, may cause to be made a map of such highway, showing the fences and bounds as actually existing, and the bounds as claimed by adjoining proprietors, and shall also cause to be placed on such map such lines as in their jurisdiction coincide with the lines of the highway as originally laid down. . . . Such selectmen . . . upon reaching a decision, shall cause the same to be published . . . and a notice of the same to be sent to all known adjoining proprietors. Such decision shall specifically define the line of such highway and the bounds thereof and shall be recorded in the records of the town in which such highway is located, and the lines and bounds so defined and established shall be the bounds of such highway unless changed by the Superior Court upon appeal from such decision of the selectmen.”

The defendants argue that the legislature conferred authority on the board to “determine the line of the highway and the bounds thereof which, by definition and common sense, include both the width and the length of Brockway Ferry Road.” They argue that “§ 13a-39 sets forth the legislature’s enumerated due process procedures for the public to know the width and length of all or a portion of a highway where the lines and bounds have become lost or uncertain. It. . . requires the board to establish the lines of the highway and the bounds thereof, that is, its boundary, border or limits and the courses and distances to its terminus.”

We begin our analysis with the text of the statute. It provides that proprietors of land adjoining a highway may apply to the board for a determination “[w]henever the boundaries of [the] highway have been lost or become uncertain . . . .” General Statutes § 13a-39. The statute confers the authority to define “the line of [a] highway and the bounds thereof . . . .” General Statutes § 13a-39. Although the legislature did not define the key terms in the statute, we may look to the ordinary usage of the language in affording it its plain meaning. See Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 200-201, 3 A.3d 56 (2010) (noting that words and phrases not defined in statutes should be construed according to their commonly approved usage and that it is appropriate to look to common understanding of terms as expressed in dictionary).

A “boundary” is defined as “something that indicates bounds or limits; a limiting or bounding line.” Random House Webster’s Unabridged Dictionary (2d Ed. 2001). A “line” is defined as “a limit defining one estate from another, the outline or boundary of a piece of real estate.” Id. It is also defined as “[a] demarcation, border or limit.” Black’s Law Dictionary (6th Ed. 1990). A “bound” is defined as a “limit or boundary,” “something that limits, confines or restrains” or “land within boundary lines.” Random House Webster’s Unabridged Dictionary, supra. A “bound” also is defined as something that “denotes a limit or boundary, or a line enclosing or marking off a tract of land.” Black’s Law Dictionary, supra.

All of these key terms, read in context, plainly convey that the board is authorized to define the geographical limits of a highway when such limits have become lost or uncertain. There is nothing in the statutory language under review that suggests authority to declare that a highway exists where a highway, in any shape or form, does not currently exist. The statutory language is limited in its scope, it confers the authority to describe the extent of highway land and, consequently, its relationship to abutting land. To construe the statute as suggested by the defendants would contravene its plain meaning.

Our interpretation of § 13a-39 is bolstered by this court’s interpretation of it in Hamann v. Newtown, 14 Conn. App. 521, 541 A.2d 899 (1988). In Hamann, this court concluded that § 13a-39 did not confer authority on the board of selectmen of the town of Newtown to determine the legal status of an existing highway but merely the boundaries of such highway. Id., 524. The court stated: “A statutory proceeding for the survey and platting of an existing road does not operate to establish the road. Its purpose is merely to ascertain the courses and distances of one claimed already to be established. It estops the public from claiming that the road runs on a line different from that of the survey.” (Internal quotation marks omitted.) Id. Also, the court reasoned that “[t]he purpose of § 13a-39 is to settle the uncertain width of a highway for the benefit of adjoining property owners.” Id.

For the foregoing reasons, we conclude that § 13a-39 did not confer authority to define a highway where one did not exist but merely the geographical limits of an existing highway. Accordingly, we agree with the court that the board acted in excess of its authority and reject the defendants’ claim.

Ill

Third, the defendants claim that the court improperly determined that there were no issues of material fact to preclude the granting of summary judgment in the plaintiffs favor. We disagree.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

In their analysis of this issue, the defendants essentially reargue the merits of their first claim, that the court’s role in reviewing the board’s decision was limited to determining if the board’s decision was supported by substantial evidence. We already have rejected that claim in part I of this opinion. The defendants state that the court could not substitute its discretion for that of the board. They argue that § 13a-40 does not “vest in the Superior Court the authority to find the lost or uncertain boundaries of a highway, which authority the legislature has vested in the board pursuant to § 13a-39.” These arguments are confounding in light of the fact that the court’s decision rested entirely on its legal determination that the board had exceeded its authority. The defendants have not attempted to demonstrate that any disputed issues of fact existed, let alone that they were material to the court’s legal determination that the plaintiff was entitled to judgment. Accordingly, we are not persuaded by this claim.

IV

Finally, the defendants claim that the court improperly made a finding of fact when it stated, in the fact section of its memorandum of decision, that the board “conclude [ed] that the road ran through and over [the] plaintiffs property, cutting off [the] plaintiffs access to the Connecticut River." (Emphasis added.) The defendants argue: “The plaintiff made no claim, and there was no evidence from which . . . the trial court could conclude that the board’s decision cut off her access to the Connecticut River. The lines and boundaries of Brockway Ferry Road as found run to and through the river. As an abutting property owner and member of the public at large, the plaintiff has, as a matter of law, both the private easement of access and the public easement of travel.” The defendants invite us to conclude that the trial court’s finding of fact concerning the plaintiffs access to the Connecticut River was clearly erroneous.

The claim suffers from two principal flaws. First, in reviewing a decision to grant summary judgment, this court does not review findings of fact. This is because the trial court is not called on to make any findings of fact in ruling on a motion for summary judgment. See Sherman v. Ronco, supra, 294 Conn. 553-54. We recognize that the court used the heading “facts” in its memorandum of decision in setting forth the factual and procedural history of the case, but we view the use of such terminology in light of the procedural posture of the case. From our review of the memorandum of decision and the record of the proceedings, it appears that the material facts on which the court based its decision were not in dispute. Second, even were we to accept as true the defendants’ argument that the issue of the plaintiffs access to the Connecticut River was a disputed issue of fact and that the court improperly had resolved the factual issue, there is no basis to conclude that the court’s finding in this regard affected its decision. The court, in rendering summary judgment, did not rely on any finding concerning the plaintiffs access to the Connecticut River but, rather, on the undisputed fact that the board had defined the highway at issue beyond its existing western terminus, concluding that it ran “through and over the plaintiffs property.” The defendants do not attempt to persuade us otherwise. Accordingly, the defendants have not demonstrated that reversible error exists with regard to this claim.

The judgment is affirmed.

In this opinion MIHALAKOS, J., concurred.

LAVINE, J.,

concurring in part and dissenting in part. I join in part I of the majority opinion but respectfully dissent as to the remainder of the opinion because I construe General Statutes § 13a-39, which permits the selectmen of a town to “define the line of such highway and the bounds thereof,” to mean that the selectmen may determine both the width and the length of an existing highway, not just the width as the majority concludes. I therefore would reverse the judgment of the trial court.

I generally agree with the recitation of facts in the majority opinion. I believe the following procedural facts also are relevant. Certain proprietors of land adjoining Brockway Ferry Road sent the following request to the defendant board of selectmen of the town of Lyme (selectmen) by letter dated January 30, 2006: “We the undersigned proprietors of land adjoining Brockway’s Ferry Road hereby formally request that the Selectmen of the Town of Lyme take the steps necessary to define the bounds of Brockway’s Ferry Road and such other steps deemed necessary to remove any and all uncertainties regarding the road’s location as required by Sec. 13a-39 of the Connecticut General Statutes. We are further requesting that detailed attention be given to the western end of our road as this is the portion of the highway that has been the subject of much dispute for the past several years.”

Section 13a-39 provides in relevant part: “Whenever the boundaries of any highway have been lost or become uncertain, the selectmen of any town in which such highway is located, upon the written application of any of the proprietors of land adjoining such highway, may cause to be made a map of such highway . . . and shall also cause to be placed on such map such lines as in their judgment coincide with the lines of the highway as originally laid down. . . . Such selectmen . . . upon reaching a decision, shall cause the same to be published .... Such decision shall specifically define the line of such highway and the bounds thereof . . . and the lines and bounds so defined and established shall be the bounds of such highway unless changed by the Superior Court . . . .” (Emphasis added.)

I agree with the majority that the resolution of the defendants’ appeal turns on the construction of § 13a-39 and whether the court properly granted the plaintiffs motion for summary judgment. The construction of a statute and the determination of whether the court properly granted a motion for summary judgment both raise questions of law and are therefore subject to plenary review. See respectively Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009), and SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 294, 977 A.2d 189 (2009). A motion for summary judgment shall be rendered if the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In this instance the court granted the plaintiffs motion for summary judgment on the basis of its conclusion that § 13a-39 permits the selectmen to determine only the width of a highway. I disagree with that construction of the statute and, therefore, conclude that the court improperly granted the plaintiffs motion for summary judgment as a matter of law.

“Statutes must be interpreted to give meaning to their plain language and to provide a unified body of law.” U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn. App. 205, 214, 545 A.2d 565 (1988). “[A] court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein.” (Internal quotation marks omitted.) Genesky v. East Lyme, 275 Conn. 246, 268, 881 A.2d 114 (2005).

Analysis of the words in the statute, as it relates to this case, makes two things immediately apparent: there is nothing whatsoever in the statute that confines selectmen to determining only the width of a highway. The word “width” does not even appear in the statute, nor does the word “length,” for that matter. The “width” restriction was imported into the statute by this court in its decision in Hamann v. Newtown, 14 Conn. App. 521, 524, 541 A.2d 899 (1988), interpreting Appeal of St. John’s Church, 83 Conn. 101, 105, 75 A. 89 (1910). As will be discussed, I believe that adherence to the restriction created in Hamann, in the context of this case, is not warranted.

Moreover, the statute requires selectmen to undertake their task in the context of making a map of the highway and placing on the map such “lines” as coincide with the original lines. It further requires the selectmen to “define the line of such highway and the bounds thereof’ and provides that the “lines and bounds so defined and established shall be the bounds of such highway unless changed by the Superior Court . . . .” General Statutes § 13a-39. Nothing in this language suggests that the selectmen are to be limited to defining only a portion of a highway—e.g., the width—at the expense of defining the highway in its entirety as would be ordinarily understood and expected.

Research discloses that § 13a-39 is an old statute, having previously been codified as General Statutes (1902 Rev.) § 2083, and that it permits the selectmen of a town to determine the boundaries of a highway that have become lost or uncertain. Appeal of St. John’s Church, supra, 83 Conn. 101, concerned the “original layout of Strait’s Turnpike ... by the General Assembly in November, 1796 . . . [which] provided for a road from the courthouse in New Haven to the courthouse in Litchfield, passing through the town of Watertown . . . .” Id., 102. “The 1796 layout was run by means of a compass, and was described by courses and distances having reference to certain monuments .... Prior to April, 1908, the actual boundaries had become lost or uncertain.” (Emphasis added.) Id., 103. In 1908, “pursuant to the provisions of § 2083 . . . certain proprietors of land adjoining this highway applied to the selectmen of Watertown to [reestablish] the boundary lines of this highway.” Id. “The line of the original 1796 survey was made on the east side of the highway. It is now impossible to locate that line by following the courses and distances given in the original report, because of the change in the magnetic north and the lack of original monuments referred to in the survey. The width, general direction, and length of courses of the highway and ownership of adjoining property, as set forth in the survey of 1796, were the only portions of that survey which were or might be of assistance to the selectmen . . . .” (Emphasis added.) Id., 103-104.

Admittedly, the majority of the few reported cases decided under the statute generally concern requests by adjacent property owners that the selectmen determine whether the boundary of the highway encroaches on their properties. The trial court noted this purpose when it quoted Hamann v. Newtown, supra, 14 Conn. App. 524, stating, “[t]he purpose of [§] 13a-39 is to settle the uncertain width of a highway for the benefit of adjoining property owners.” That quote is accurate as far as it goes, but it must be understood in the context of that case, in which only the width of the highway was in dispute. Moreover, the language from Hamann is followed a citation to Appeal of St. John’s Church. As previously noted, Appeal of St. John’s Church addressed § 2083, now § 13a-39, in the context of the boundaries of a highway, noting that they encompass both its length and width—although neither the word “length” nor “width” are used—as the opinion mentions courses and distances, specifically. Moreover, a highway is not one dimensional in nature. After all, Strait’s Turnpike ran from New Haven to Litchfield. See Appeal of St. John’s Church, supra, 83 Conn. 102.

As for the plaintiffs contention that the selectmen had no authority to determine the end point of Brock-way Ferry Road, that contention is at odds with the facts of Hamann v. Newtown, supra, 14 Conn. App. 521. In that case, the Hamanns were owners “of land in Newtown which is crossed by a road known as Kale Davis.” Id., 522. The Hamanns applied, pursuant to § 13a-39, “to the board [of selectmen of the town of Newtown] for a determination of the boundaries of Kale Davis [R]oad, which boundaries the [Hamanns] alleged had become lost or uncertain. Following a hearing, the board issued a resolution which established the boundaries to be as depicted on a certain survey map, and which concluded that the portion of Kale Davis [R]oad which crosses the [Hamanns’] property is a private road rather than a town highway.” Id., 522-23. The Hamanns appealed to the trial court. The trial court concluded that the board lacked the authority to establish the legal status of a road. Id., 523. This court affirmed the judgment of the trial court. Id., 526. There was no claim in that case that the board lacked the authority to determine the length or direction of Kale Davis Road over the Hamanns’ land, just whether it could determine its legal status under § 13a-39. I therefore conclude that the majority’s reliance on Hamann for the proposition that § 13a-39 necessarily prevents selectmen from determining the length of a highway is mistaken.

This conclusion is further supported by the tenets of statutory construction that “[statutes must be interpreted to give meaning to their plain language and to provide a unified body of law”; (emphasis added) U.S. Vision, Inc. v. Board of Examiners for Opticians, supra, 15 Conn. App. 214; and that we must “construe a statute in a manner that will not thwart its intended purpose . . . .” (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 686, 986 A.2d 290 (2010). Section 13a-39 falls within chapter 238 of our General Statutes, which is entitled “Highway Construction and Maintenance.” General Statutes § 13a-41 also falls within that chapter.

Section 13a-41, entitled “Bounds of new highways to be marked and recorded,” provides in relevant part: “Whenever a new highway has been laid out by authority of any town or city, such highway shall be marked or defined in the following manner: At the beginning and termination by stones, steel or iron bounds on each side, and a stone, steel or iron bound at each angle or deflection between the beginning and termination. . . .” (Emphasis added.) If the bounds in § 13a-41 include the beginning and termination of a highway, there is no reason to suppose that the lines and bounds mentioned in § 13a-39 do not also include the beginning and end. Moreover, as noted, § 13a-39 provides that “the selectmen of any town . . . may cause to be made a map of such highway . . . .” It stands to reason that a map of a highway within a town would include its entirety from beginning to end. “The obvious purpose of [§ 13a-39] was to afford proprietors the opportunity to see, from an inspection of the map, the relation the bounds claimed by the adjoining proprietors bore to the actual fences and bounds and the lines of the highway as originally laid out.” Hartford Trust Co. v. West Hartford, 84 Conn. 646, 651, 81 A. 244 (1911).

This point addresses the allegation in the plaintiffs complaint that she did not petition the selectmen to determine the bounds of Brockway Ferry Road adjoining her property. In their petition to the selectmen, the defendant proprietors of adjoining land claimed that the boundaries of the western terminus of Brockway Ferry Road had become lost or uncertain. If a highway is public, it is to be available to the public. No property owner should be permitted to ban the public, including neighbors, from traversing a public highway that crosses his or her land because he or she has not asked that the lost or uncertain boundaries be determined pursuant to § 13a-39.

For all the reasons stated, I conclude that the court improperly sustained the plaintiffs appeal. I would reverse the judgment of the trial court and remand the matter for further proceedings.

       In addition to the board and the town, who are referred to collectively as “the defendants” in this opinion, where appropriate, the plaintiff named the Lyme Land Conservation Trust, Inc., and several of her a<Jjoining property owners (Russell K. Shaffer; Leslie V. Shaffer; Curtis D. Deane; Richard W. Sutton; William Sutton, Jr.; Kenneth C. Hall; Brigit Ann Brodldn; Michael David Speirs; William A. Lieber; Carolyn D. Lieber; Ambrose C. Clark; Amy Day Kahn; Jane Dunn Wamester; Robert H. Sutton; Eleanor B. Sutton; John David Sutton; John David Sutton, Sr.; John David Sutton, Jr.; James A. Behrendt; Elizabeth Putnam; John J. Gorman HI; David J. Frankel and Elizabeth C. Frankel) as defendants. These additional defendants are not parties to this appeal.

       Because we reject the claims raised by the defendants, we do not address the alternate grounds for affirmance raised by the plaintiff in her brief.

       The subject highway also is referred to as Brockway’s Ferry Road throughout the record and the parties’ briefs. In this opinion, we retain the trial court’s designation of the highway.

       The letter is signed by Curtis D. Deane, William A. Lieber, Carolyn D. Lieber, David Sutton, Barbara Bennett, Richard Sutton, Wendy Sutton, Jane Dunn Wamester, Cyrus Murphy, Bridgett Brodkin, Russell K. Shaffer, Leslie Shaffer, Eleanor Sutton and Robert H. Sutton.

       The plaintiff does not challenge the factual findings of the selectmen, only the authority they had to make the findings as to the boundaries of Brockway Ferry Road.

       See Hartford Trust Co. v. West Hartford, 84 Conn. 646, 81 A. 244 (1911) (action to restrain town from taking strip of land for highway use); Appeal of St. John’s Church, supra, 83 Conn. 103 (reestablishment of boundaries through Watertown); Kent v. Pratt, 73 Conn. 573, 48 A. 418 (1901).

        Appeal of St. John’s Church also is significant because our Supreme Court concluded that “[i]t is evident that the purpose of these sections of the General Statutes is to furnish an easy and convenient method of defining bounds of highways which shall have been lost or become uncertain.
      “[General Statutes (1902 Rev.) §] 2084 [now § 13a-40] indicates the method of taking an appeal from the decision of the selectmen to the Superior Court. This section makes provision for the review of the doings of the selectmen by the Superior Court, which is authorized to confirm, change, or set aside the action of the selectmen. Apparently the remedy afforded by this statute is appropriate for the purposes of this case.
      “The appellant’s contention, that the purpose for which the application was brought could not be legally attained under § 2083, because the original bounds of this highway cannot be found or ascertained, is fully answered by the finding and judgment of the court.” Appeal of St. John’s Church, supra, 83 Conn. 106.

       Despite her allegation that she did not petition the selectmen to determine the bounds of Brockway Ferry Road, the plaintiff also alleged that “[t]he . . . Town of Lyme Board of Selectmen, lacks jurisdiction to make a decision defining the bounds for Brockway Ferry Road . . . through and across the Plaintiffs property due to the fact that, in the public hearing held before the. . . Selectmen, the plaintiff . . . placed in issue (i) whether or not Brockway Ferry Road . . . ever extended through and across the Plaintiffs property and (ii) in the event that Brockway Ferry Road . . . ever did extend through and across the Plaintiffs property, whether or not it had been abandoned by a long period of nonuse. The resolution of the issue of the status of Brockway Ferry Road ... as a municipal highway is a condition precedent to a definition of highway lines pursuant to ... § 13a-39, and is beyond the jurisdiction of the . . . Selectmen.”
      Review of the record reveals that, pursuant to the research commissioned from Boundaries, LLC, by the selectmen, Brockway Ferry Road was created sometime between 1744 and 1784 by the town. A petition submitted by William Brockway and others stated in part, “the subscribers all of Lyme ... are all dwelling in the North Society or Third Parish in said Lyme and near that ferry called Brockway Ferry and about three miles distant from said parish meeting house to which we cannot travel without trespassing on the enclosures of many of our neighbors for want of a highway from said meeting house to said ferry, which would be very convenient for us and absolutely necessary not only for your petitioners but for all travelers which use said ferry.”
      “The public use for the purpose of travel rarely corresponds precisely with the boundaries of highways as fixed by the record of their layout. The fact that the highway has not been occupied and worked to its whole width for a considerable period will not extinguish the rights of the public to the parcels not so occupied or worked. This road as an entirety had been laid out and opened, and has constantly been in use, for more than one hundred years, and it cannot be curtailed in its width by the encroachments of acjjoming proprietors without unmistakable evidence of abandonment upon the part of the town.” Appeal of St. John’s Church, supra, 83 Conn. 105.

       See footnote 1 of the majority opinion.

       Because I conclude that the court improperly granted the plaintiffs motion for summary judgment, I do not address the defendants’ third and fourth claims.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    FRANK MARMO v. PEGGY MARMO
    (AC 31894)
    Bishop, Lavine and Bobinson, Js.
    Argued May 23
    officially released August 30, 2011

      Helen Allen, with whom, on the brief, was Dyan Kozaczka, for the appellant (defendant).

      Christopher G. Winans, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, Peggy Marmo, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Frank Marmo. On appeal, the defendant claims that the court improperly (1) awarded her time limited alimony and (2) entered an order regarding the sale of the marital home that contradicts other orders of the court. We affirm the judgment of the trial court.

In its June 16,2009 memorandum of decision dissolving the parties’ marriage, the court made the following findings that are relevant to the issue on appeal. The parties were married on August 8, 1992, and all four of their children were bom on November 9, 1995. At the time of dissolution, the plaintiff had been employed as a special agent by the Federal Bureau of Investigation (FBI) since 1995 and the defendant was employed by the Newtown board of education. As a result of the plaintiff’s advancement in his employment, the parties have moved several times from Connecticut to Virginia to the New York City area and back to Connecticut. During one fourteen month period, the plaintiff commuted between his assignment in Washington, D.C., and the parties’ home in Connecticut on weekends.

The court found that differences between the parties arose early in their marriage. After the birth of the quadruplets, the plaintiff became “stressed out” by the responsibilities of work and family. In January, 1997, the plaintiff, “like a gentleman,” talked to the defendant about his problems and told her that he thought his health was being impaired. The defendant ignored him and stated, “all you are to me is a paycheck.” The plaintiff left home for three days but returned because of the children. Moreover, the court found that, in addition to the differences in their personalities, the parties have encountered financial and emotional stresses that have strained the marriage. The court dissolved the marriage of the parties on the ground of irretrievable breakdown.

Pursuant to the court’s orders, the parties have joint legal custody of their children until the children graduate from high school or they attain the age of eighteen, whichever occurs later. The defendant has primary physical custody of the children, and the plaintiff has reasonable and flexible visitation with them. The plaintiff was ordered to pay the defendant child support until their children reach the age of eighteen or graduate from high school, whichever occurs later. The plaintiff also was ordered to obtain life insurance, naming the defendant and the children equal beneficiaries as long as he has an obligation to provide financial support to them. The plaintiff was ordered to pay the defendant $825 weekly in periodic alimony until June 1, 2013.

The parties own two pieces of real property in New-town. The court ordered the parties to sell the property at Boulder Creek immediately and share in the profit or loss from the sale. The parties are to continue to own jointly the marital residence at Valley Field Road North, where the defendant and children will reside until the property is sold or three months after the children reach the age of eighteen or graduate from high school, whichever occurs later. The defendant was ordered to pay the ordinary and necessary expenses of the household.

After the court rendered judgment, the defendant filed a motion for articulation, pursuant to Practice Book § 11-11, requesting that the court explain its reason for the “short duration of the alimony,” among other things. The plaintiff objected to the motion for articulation, arguing that the defendant was seeking to relitigate the case. The court denied the defendant’s request to articulate the basis of its time limited alimony award. The defendant also filed a motion for articulation pursuant to Practice Book § 66-5 in which she asked the court to articulate the legal and factual basis for ordering time limited alimony, among other things. The court denied that specific request for articulation. The defendant did not file a motion for review pursuant to Practice Book § 66-6.

On appeal, the defendant claims the court abused its discretion by awarding her time limited alimony without stating its reasons therefor. We disagree.

“This court has repeated on many occasions that a trial court has broad discretion in domestic relations cases. . . . Because of the opportunity for the trial court to observe the parties, great weight is given its judgment with respect to financial awards. ... As a reviewing court, we are limited to determining whether the trial court abused its discretion in making those awards. . . . For us to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Wolfburg v. Wolfburg, 27 Conn. App. 396, 398, 606 A.2d 48 (1992).

General Statutes § 46b-82 (a) provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall . . . consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .” “There is no additional requirement that the court specifically state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor.” Rivnak v. Rivnak, 99 Conn. App. 326, 331, 913 A.2d 1096 (2007).

“The traditional purpose of alimony is to meet one’s continuing duty to support. . . . [C]ourts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient.” (Citations omitted; internal quotation marks omitted.) Roach v. Roach, 20 Conn. App. 500, 506, 568 A.2d 1037 (1990). “[Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. ... A time limited alimony award generally is for rehabilitative purposes but other reasons may also support this type of alimony award.” (Citation omitted; internal quotation marks omitted.) Ippolito v. Ippolito, 28 Conn. App. 745, 752, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992). “Another valid purpose for time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary. ... In Wolfburg [v. Wolfburg, supra, 27 Conn. App. 402] our review of the record revealed that the time limited alimony award was found to provide interim support until the minor child reached the age of majority. .. . This constituted a valid purpose for an award of time limited alimony. Other future events that may require interim support through an award of time limited alimony include occurrences such as a bond maturation, trust disbursement, or mortgage maturation.” (Citations omitted; internal quotation marks omitted.) Ippolito v. Ippolito, supra, 752-53.

“The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand.” (Internal quotation marks omitted.) Mathis v. Mathis, 30 Conn. App. 292, 293-94, 620 A.2d 174 (1993).

The record here reveals that the defendant testified to the following facts at trial. At the time of the parties’ marriage, the defendant was thirty years old, owned a condominium and was employed as the computer department manager of a third party administrator of insurance benefits. She was earning $32,000 a year when she left that position in 1995 due to her pregnancy. The defendant also testified that she could not go back into the computer field without additional training due to advances in the field. When the parties lived in Tuxedo, New York, the defendant obtained certification to become a yoga instructor and started a business in 2003. The business was successful, but not lucrative.

At the time of trial, the defendant testified that she was employed by the Newtown board of education, working with computers twenty-seven hours a week in the children’s school. She was earning $12.42 an hour and preferred the part-time employment because it coincided with the children’s school schedule. In addition, the defendant was completing a bachelor’s degree to enable her to obtain teacher certification. She expected to complete her degree in December, 2009, and obtain certification two years later. The defendant plans to teach computer technology or technology integration in an elementary or middle school. The defendant also testified that she wanted the parties jointly to own the Valley Field Road North house until the children were out of high school when the house would be sold.

On the basis of this record, we cannot conclude that the court abused its discretion by awarding the defendant four years of alimony. Within four years, the defendant, a person with a background in the computer field, expects to complete her bachelor’s degree and obtain teacher certification. She already was working in the school system on a part-time basis. She intends to pursue full-time employment in an elementary or middle school. Moreover, the quadruplets, who were thirteen at the time of the dissolution, are expected to graduate from high school in four years and to turn eighteen soon thereafter. Those milestones, pursuant to orders of the court, call for the parties to sell the Valley Field Road North house. The four year, time limited alimony awarded by the court meets the purpose of helping the defendant rehabilitate and become self-sufficient. See Ippolito v. Ippolito, supra, 28 Conn. App. 752. Moreover, its end coincides with the quadruplets graduating from high school and reaching the age of majority. See id., 752-53.

On appeal, the defendant has argued that the court’s award of time limited alimony is contrary to the teachings of Ippolito v. Ippolito, supra, 28 Conn. App. 745. Ippolito is factually distinct in that there was no factual basis in the record to support the court’s award of time limited alimony. The wife in Ippolito “lacked any special skills or training that could assist her in obtaining employment.” Id., 752. The wife “was found to have been dependent on the [husband] for all her expenses during the marriage. There is no evidence in the record as to how an award of periodic alimony will assist the [wife] to become employed so that she can support herself without assistance from the [husband]. There is no indication as to what training will enable the [wife] to become self-sufficient.” Id. The record here indicates that four years of alimony will provide the defendant with time to complete her undergraduate education and obtain teacher certification. The defendant was working part-time for the Newtown board of education. Within two years, she should have the credentials she needs to procure full-time employment. We therefore conclude that the court did not abuse its discretion by awarding the defendant time limited alimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time of oral argument in this court, the parties stipulated that they had an agreement with regard to the second issue. We therefore do not address it.

       At the time of dissolution in 2009, the parties’ children were thirteen years old.

       Cartus Relocation Corporation (Cartus) placed liens on both properties when the parties failed to pay an equity advance for which the FBI later determined the plaintiff was ineligible. Cartus brought an action against the parties, which was settled by agreement.

       During final argument after the presentation of evidence, counsel for the plaintiff argued that alimony should end after the children leave the house and the house is sold. The defendant did not offer a counterargument.


author: ESPINOSA, J.

text:
    STATE OF CONNECTICUT v. RAQUANN TYRONE DAVIS
    (AC 32084)
    Alvord, Espinosa and Pellegrino, Js.

      Argued April 20
    officially released August 30, 2011

      Glenn W. Falk, special public defender, for the appellant (defendant).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Charles M. Stango, senior assistant state’s attorney, for the appellee (state).
   Opinion

ESPINOSA, J.

The jury reasonably could have found the following facts. Sometime after 10 p.m. on July 12,2008, the defendant, Thaddeus Lowery and Brian Backman were passengers in an automobile being operated by Gerard Jones. Jones drove to a deli in West Haven, spoke with two other men there and then walked toward the victim, Dayshon Caple, who was standing near a restaurant that was close by. Jones, who was acquainted with the victim, discussed obtaining marijuana from him. Following their conversation, Jones and the victim, who believed that Jones had offered him a ride home in exchange for marijuana, approached Jones’ automobile. The defendant and Lowery exited the automobile. The defendant brandished a revolver that he held close to the victim’s chest and Lowery brandished a shotgun that he pointed at the victim’s head. The victim, perceiving that he was about to be robbed, told the men that he did not “have anything.” The defendant cocked the hammer on his revolver and asked the victim, “you think we playin’?” Thereafter, the defendant and Lowery searched the victim’s clothing and stole his cellular telephone, a quantity of marijuana in his possession and his wallet that contained approximately $40. Jones stood nearby while these events unfolded. After the defendant, Lowery and Jones got back into their automobile with the victim’s possessions and drove away, the victim fled to a nearby gas station where he called family members for assistance. Later, Jones provided information concerning these events to the police.

The defendant claims that the court, in its instructions concerning robbery in the first degree, improperly instructed the jury that it could find the defendant guilty on the basis of a theory of liability that was not set forth in the state’s information. Specifically, the defendant argues that the court instructed the jury that he could be found guilty of the crime if it found that the other elements of the crime had been proven and that any person participating in the commission of the crime possessed a firearm. The defendant relies on the fact that the state, in count one of its long form information, alleged that “during the commission of the crime [the defendant] was armed with what he represented by his words or conduct to be a firearm . . . .” The defendant acknowledges that he did not preserve this claim for appellate review and seeks review under the doctrine set forth in 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.” (Emphasis in original.) Id. Golding's first two prongs focus on the reviewability of the claim while the third and fourth prongs focus on the merits of the claim, namely, whether the defendant is entitled to a new trial. See, e.g., State v. Michael A., 297 Conn. 808, 817, 1 A.3d 46 (2010).

There does not appear to be any dispute that the record, which contains the full transcript of the relevant trial court proceedings, is adequate to review the present claim. Nor is there any dispute that the claim is of constitutional magnitude, as the defendant claims that the court, by virtue of its instruction to the jury concerning robbery, violated his right to fair notice of the charges against him as afforded by article first, § 8, of the Connecticut constitution and the sixth amendment to the United States constitution. The state urges us to conclude that the defendant cannot prevail under Golding because he implicitly waived any claim related to the instructional language underlying his claim. “A defendant in a criminal prosecution may waive one or more of his fundamental rights. ... In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial.” (Citations omitted; internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 478, 915 A.2d 872 (2007). “The rationale for declining to review jury instruction claims when the instructional error was induced or the claim was implicitly waived is precisely the same: [T]o allow [a] defendant to seek reversal [after] ... his trial strategy has failed would amount to allowing him to . . . ambush the state [and the trial court] with that claim on appeal.” (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 470, 10 A.3d 942 (2011).

In Kitchens, our Supreme Court reexamined and clarified Connecticut law concerning the doctrine of implied waiver in the context of jury instruction claims. Id., 473-85. The court explained that implicitly waived claims fall into three broad categories. Id., 475. The first category includes “cases in which courts have found that the defense expressly acknowledged and agreed by words or conduct to the instruction challenged on appeal.” Id. The second category includes cases in which “there was no on-the-record discussion of the challenged jury instruction but the defense acquiesced in, or failed to object to, the instruction as given, and engaged in other trial conduct consistent with the acceptance of the instruction.” Id., 477. Finally, the third category includes cases in which “the defense failed to take exception to, and acquiesced in, the jury instructions following one or more opportunities to review them.” Id., 480.

The claim at issue in Kitchens fell into this third category of implicit waiver claims. With regard to such claims, the Supreme Court explained: “[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” Id., 482-83. Ultimately, the court in Kitchens reviewed the unique facts surrounding the instructional language challenged on appeal and concluded that the defendant had implicitly waived his right to raise the instructional issue. Id., 498-500.

Having set forth the relevant legal principles, we turn to the unique circumstances surrounding the instructional language at issue in the present case. Our careful review of the record reflects that, by means of a long form information, the state alleged that the defendant committed the crime of robbery in the first degree and the crime of conspiracy to commit robbery in the first degree. On January 4, 2010, the defendant filed six written requests to charge covering different instructions. Although one of these requests to charge bore the title “Defendant’s Request to Charge: Robbery First Degree,” neither this request nor any other submitted by the defendant covered the elements of robbery in the first degree. On January 4, 2010, the state filed a written request to charge that, among other topics, covered the elements of robbery in the first degree. Following the portion of the request to charge that covered the elements of robbery in the first degree, the state cited to “Section 6.4-1 Connecticut Selected Jury Instructions.”

On January 5,2010, immediately after the state rested, the court held a charge conference with the attorneys in this case. The following is an excerpt from the colloquy that took place dining the conference:

“The Court: I have received the robbery charge [filed by the state], which is the standard charge. I intend to give the robbery [charge] in essence, maybe not exactly, but the robbery charge will be given. The usual charges, the function of the court and the jury, proof beyond a reasonable doubt, burden of proof, circumstantial and direct evidence, they will be given. I’ve the request for conspiracy. Counsel . . . that’s your charge, conspiracy? Yes?
“[The Prosecutor]: Use the state’s conspiracy charge, Your Honor?
“The Court: Yes.
“[The Prosecutor]: Yes.
“The Court: Counsel, any objection to the conspiracy charge as presented by —
“[Defense Counsel]: Your Honor, I have not seen a charge submitted by the state. I . . . could have left it in my office, but I haven’t had time to review it. Is it the standard charge? It’s robbery?
“[The Prosecutor]: Throughout the computer. I’m not very fair.
“The Court: Right off the cyberspace.
“[Defense Counsel]: Based upon [the prosecutor’s] representation, Your Honor, there’s no objection.
“The Court: It’s conspiracy. You’ve offered, while we’re on the subject, accomplice testimony. You wish to be heard?
“[Defense Counsel]: No, Your Honor. I believe that’s the standard charge.
“[The Prosecutor]: I have nothing to add to that, Your Honor.
“The Court: Any objection to the court giving that charge?
“[The Prosecutor]: No, I think that’s [the] status of the law, Your Honor.
“The Court: All right. Any other request that has been offered that I am not discussing? I think that’s about robbery. Defendant’s request for prior convictions or misconduct of witnesses. I intend to give them that charge. May come in tomorrow regarding credibility. That’s one. Accomplice testimony, the motion in limine, we’ll reserve that. Is that correct, counsel, regarding [the defendant]?
“[The Prosecutor]: Yes, Your Honor. Yes.
“The Court: Defendant’s request to charge, option not to testify. We’ll reserve that. I have [the defendant’s requested] robbery [instruction] which also includes [an instruction concerning] the credibility of witnesses, which I intend to give . . . and maybe add more. Request to charge, testimony of police. That’s given. We have no expert testimony here and, so, I need to adopt the larceny charge and then we are completed. Anything else that I’m missing?”

Thereafter, the defendant’s attorney made an oral motion for a judgment of acquittal. After hearing argument concerning the motion, the court denied it. Following its ruling, the court asked counsel, “anything else?” The state replied in the negative and the defendant’s counsel did not raise any additional matters for consideration.

The next day, January 6, 2010, the court addressed counsel, noting that it had received a written motion for a judgment of acquittal from the defendant. After stating that the motion was denied, the court stated, “[a]nything else before the jury comes out?” The defendant’s attorney replied, “[n]o, Your Honor.” Following closing arguments, the court delivered its charge to the jury. After it instructed the jury as to the elements of the offenses at issue, the court excused the jury for a recess. The court, addressing counsel, stated: “[T]hat completes the substantive charge. Any comments? Anything I need to correct now? Think about it.” Following the morning recess, the court asked counsel: “Anything I need to add or detract?” The defendant’s attorney replied, “I have nothing, Your Honor.” After the court delivered the remainder of its charge, the defendant’s attorney did not raise any objection related to the court’s robbery instruction.

The defendant acknowledges that, at trial, the prosecutor represented that his request to charge incorporated language from the criminal jury instructions found on the judicial branch website. The defendant does not assert that his trial counsel was not provided with a copy of the state’s written request to charge. Further, the defendant acknowledges that his trial attorney represented to the court that there was no objection to such requested robbery instruction. There is no dispute that the state’s request to charge for robbery in the first degree in violation of § 53a-134 (a) (4) mirrored the standard criminal jury instruction in all material respects. There is no dispute, and we conclude, that for purposes of the present claim, the court’s robbery instruction was identical to that requested by the state. In arguing that he, nonetheless, did not waive the present claim, the defendant asserts: (1) after the court referred to the state’s requested robbery instruction, it stated that it might not deliver the exact same instruction to the jury; (2) the court did not provide counsel with a written copy of its proposed jury instructions, and the first time that the defendant heard the robbery instruction was when the court delivered its charge to the jury; (3) the court did not bring to the attention of counsel the fact that it intended to expand upon the theory of criminal liability set forth in the information; (4) after the court delivered the instruction at issue, the defendant’s attorney merely stated that he had “nothing” to bring to the court’s attention and did not expressly agree with the robbery instruction; and (5) “[a]fter the trial court gave the oral instruction, there was no personal colloquy with the defendant.” We are not persuaded by these arguments.

As a preliminary matter, the fact that the court, in discussing the state’s requested robbery instruction, stated that it might not use the state’s exact language is of no consequence to our analysis. Plainly, the court stated that it intended to deliver “in essence” the state’s requested robbery instruction. Afforded its reasonable interpretation, this statement conveyed that the court intended to deliver an instruction that mirrored the state’s instruction in all material respects. As discussed previously, this, in fact, occurred.

The defendant asserts that the court did not provide counsel with a copy of its proposed jury instructions, but that the defendant heard the robbery instruction for the first time when the court delivered its charge to the jury. Although the defendant is correct in that the court did not physically deliver to counsel written copies of its proposed charge, this fact does not lead us to conclude that the rationale of Kitchens is inapplicable to the facts at hand. In describing the class of implicitly waived claims in which defense counsel acquiesced in a challenged instruction following one or more opportunities to review such instruction, the Supreme Court in Kitchens referred to scenarios in which a trial court has “provid[ed] counsel with a copy of the proposed jury instructions” and has “ailow[ed] a meaningful opportunity for their review.” State v. Kitchens, supra, 299 Conn. 482-83. The court in Kitchens did not describe any particular method by which the court, in such a scenario, must provide its proposed instructions to counsel. The court’s analysis strongly suggests that, for there to be an implied waiver, the court must provide such instructions in a written form rather than orally. Id., 485 (highlighting “opportunity to review the charge in writing”).

Although a trial court is not required to provide the parties with a copy of its proposed jury instructions, it may do so effectively by distributing a written document setting forth such instructions. Nonetheless, based upon our careful review of Kitchens, we do not conclude that the distribution of a written document containing its proposed jury charge is the only means by which a court may provide counsel with its proposed charge such that counsel may conduct a meaningful review of the charge. As the courts, attorneys and parties adapt to an increasingly paperless court system, we expect that trial courts will utilize methods of conveying proposed instructions which take advantage of technological advances and deemphasize the written page. In our view, the dispositive factor is whether the court has provided counsel with an opportunity to conduct a meaningful review of its proposed charge so that “the defendant may be deemed to have knowledge of any potential flaws therein . . . .” Id., 483. An opportunity for review necessarily entails that the court convey the substance of its charge in such a manner that the parties may review proposed instructional language, but we do not inteipret Kitchens to require that the court provide such opportunity by any particular means.

Here, at the charge conference, the prosecutor and the court referred to the robbery instruction set forth in the state’s written request to charge. The prosecutor represented that his proposed instructions concerning the offenses were the same as those posted on the judicial branch website, a fact that the court confirmed. The court stated that, in terms of substance, it intended to deliver that instruction. Immediately after hearing these representations, the defendant’s counsel informed the court that the defendant did not object to the requested instruction. Although he indicated that he had yet to review the state’s written request to charge, the defendant’s counsel did not state that he was unfamiliar with the requested instruction or that he was unable to review such instruction. Rather, at a juncture in the proceedings when the content of the court’s instruction was under consideration, the defendant’s attorney gave every indication that he was familiar with the instruction at issue and that he did not object to its inclusion in the charge. The court did not deliver its instruction until the next day of trial. At this later time, the defendant’s attorney did not inform the court that he was unable to locate or to review the proposed instruction referred to the prior day. Under these circumstances, we conclude that by referring to the robbery instruction set forth in the state’s written request to charge—which was materially similar to that posted on the judicial branch website—the court provided the defendant with its proposed jury instruction such that the defendant had a meaningful opportunity to review it well in advance of the court delivering the charge.

The defendant argues that the court did not otherwise bring to the attention of counsel the fact that it intended to expand upon the theory of criminal liability set forth in the information. This argument is not persuasive because, by stating that it intended to instruct the jury in accordance with the robbery instruction set forth in the state’s request to charge, it adequately apprised counsel of the principles of criminal liability that it intended to, and did, convey to the jury.

Further, the defendant argues that he did not waive the claim because, after the court delivered the instruction at issue, his attorney merely stated that he did not have anything to bring to the court’s attention, but did not expressly agree with the robbery instruction. By this argument, the defendant appears to suggest that because he did not request or otherwise expressly refer to and expressly approve the specific instructional language at issue, he did not implicitly waive any objection to it. The court in Kitchens, however, rejected this legal proposition, reasoning that the grounds upon which a court may find implied waiver may be greater than those required for a finding of induced error. Id., 469-70. Here, after the court afforded counsel a meaningful opportunity to review the substance of its robbery instruction and after the court delivered its charge to the jury, the defendant’s attorney affirmatively stated that he did not have any objection to the charge. Under these circumstances, the conduct of the defendant’s attorney constituted an implicit waiver of any objection to the instructional language challenged on appeal.

Finally, in arguing that he did not implicitly waive the present claim, the defendant relies on the fact that “[a]fter the trial court gave the oral instruction, there was no personal colloquy with the defendant.” In this regard, the defendant suggests that this court should not conclude that the defendant implicitly waived the claim because the trial court directed its inquiries concerning the content of the charge to the defendant’s attorney, rather than to the defendant personally. This argument is not persuasive either. In Kitchens, our Supreme Court stated that issues concerning the content of jury instructions are among the matters of trial management entrusted to a defendant’s attorney and that “among the rights that may be waived by the action of counsel in a criminal proceeding is the right of a defendant to proper jury instructions.” State v. Kitchens, supra, 299 Conn. 467. The court did not have a duty to engage the defendant in a dialogue concerning the content of its charge, but properly addressed such matters to the defendant’s attorney. Furthermore, in crafting its charge, the court properly relied on the representations and conduct of the defendant’s counsel. “Absent some indication to the contrary, a court is entitled to rely on counsel’s representations on behalf of his or her client.” State v. Stewart, 64 Conn. App. 340, 349-50, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001).

Having conducted a careful review of the circumstances in the present case, we conclude that the defendant waived the present claim related to the court’s robbery instruction. By stating that it would deliver, in substance, the robbery instruction requested by the state—an instruction that the state and court represented was taken from the judicial branch website— the court afforded the defendant an opportunity to review its proposed robbery instruction. Moreover, the court afforded the defendant a meaningful opportunity for review in that the court did not deliver its charge until the following day. At the time of the charging conference, the defendant’s attorney indicated that he did not object to the instructions filed by the state. Following inquiries by the court related to the legal sufficiency of the charge, the defendant’s attorney did not take exception to the charge delivered to the jury. Under these circumstances, we conclude that the defendant acquiesced in the instruction given and, thus, implicitly waived the present claim. Accordingly, the defendant cannot prevail under Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       Following the jury’s verdict, the defendant pleaded guilty under the Alford doctrine; see North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a) (1) (A), as charged in a part B information. The court imposed a total effective sentence of fourteen years imprisonment, followed by six years of special parole.

       Contrary to the victim’s testimony, Jones, who testified on behalf of the state concerning the events of July 12, 2008, testified that the defendant was the assailant who had pointed a shotgun at the victim’s head during the robbery. Additionally, Jones testified that he had entered into a plea agreement with the state and that, with regard to the charges pending against him in connection with the robbery of the victim, he expected to receive consideration at the time of sentencing in exchange for his trial testimony.

       This request to charge filed by the defendant covered the manner in which the jury must evaluate the credibility of the witnesses.

       As relevant to the claim raised on appeal, the state’s request to charge included the following language: “[A] person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery or of immediate flight therefrom, he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”
      Also, the request to charge stated in relevant part: “The second element is that in the course of the commission of the robbery or immediate flight from the crime, the defendant or another participant in the crime displayed or threatened the use of what he represented by words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. . . .
      “If any person who participated in the crime displayed or threatened the use of what he represented by words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm while in immediate flight from the crime, then all participants in the robbery would be just as guilty of first degree robbery as if they had themselves actually done so.”

       Because the record does not reflect that the defendant’s attorney voiced any concerns related to the statement, “I’m not very fair,” the statement does not affect our waiver analysis.

       As relevant to the claim raised on appeal, the court instructed the jury in relevant part that one of the elements of the crime, to be proven beyond a reasonable doubt by the state, was “that in the course of the commission of robbery or immediate flight therefrom, the defendant or another participant in the crime displayed or threatened the use of what he represented by words or conduct to be a pistol, revolver, shotgun or other firearm. . . .
      “If any person participating in the crime displayed or threatened the use of what he represented by words or conduct to be a pistol, revolver, shotgun or other firearm while in immediate flight from the crime, then all the participants in the robbery would be just as guilty of first degree robbery as if they had themselves actually done so.”