author: SCHALLER, J.

text:
    716 WINDSOR STREET ASSOCIATES, LLC v. CATHOLIC CHARITIES/CATHOLIC FAMILY SERVICES, INC.
    (AC 24094)
    Schaller, Bishop and McLachlan, Js.

      Argued January 6 —
    officially released March 23, 2004

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellant (plaintiff).

      Robert G. Clemente, with whom, on the brief, was Lorinda S. Coon, for the appellee (defendant).
   Opinion

SCHALLER, J.

In this breach of contract action, the plaintiff, 716 Windsor Street Associates, LLC, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Catholic Charities/Catholic Family Services, Inc. On appeal, the plaintiff claims that the court improperly concluded that (1) the plaintiff did not substantially complete required repair work, which was a condition precedent to the commencement of the parties’ lease, and (2) as a matter of law, the repair work was not substantially completed where the plaintiffs contractor had certified its completion. We affirm the judgment of the trial court.

The court found the following facts that are relevant to the plaintiffs appeal. The plaintiff and the defendant signed a thirty-six month lease for the subject premises. The anticipated commencement date of the lease was July 1, 2000. Exhibit C of the lease set forth a timetable for the completion of the plaintiffs work. Exhibit C contained nine items to be completed by the landlord, seven of which were “delay items” that had to be completed by the commencement date. The lease provided in relevant part that the landlord’s work “shall be deemed completed . . . [by] the date on which Landlord’s Work is substantially complete and ready for occupancy as certified by Landlord’s architect or contractor, with the exception of the Non-Delay items.” The lease further provided in relevant part that the commencement date begins when “the Premises are deemed ready for occupancy and are available to Tenant and Tenant’s acceptance of such completion.”

The lease contained a cancellation provision for the defendant to terminate the lease agreement if the work was not completed by July 1, 2000. It provided that the “[t]enant may elect to cancel this Lease at any time thereafter while the Landlord’s Work is not completed by giving written notice to Landlord of such cancellation, which notice shall be effective forty-five (45) days after Landlord’s Work, in which event such notice of cancellation shall be rendered null and void .... Tenant’s right to cancel the lease pursuant to this Section shall be Tenant’s sole remedy at law or in equity for Landlord’s failure to complete the Landlord’s work

The plaintiff signed a repair proposal with its contractor, Imagineers, LLC (Imagineers), that was contingent on the defendant’s signing the lease agreement. Nine days prior to the signing of the lease, the plaintiff crossed out the repair work for the concrete block wall on its repair agreement with Imagineers. The plaintiff subsequently entered into the lease with the defendant with the provision for the concrete block wall still included. Imagineers was not aware of all the required provisions contained in the lease between the defendant and the plaintiff.

In July, 2000, the defendant expressed its concerns to the plaintiff that the work had not been completed and that there were outstanding safety and regulatory issues. On August 22,2000, the defendant issued a notice of cancellation of the lease agreement. The plaintiff received the notice by August 24, 2000. The forty-five day cure period in the lease gave the plaintiff until October 8, 2000, to substantially complete all repairs. On August 24, 2000, Imagineers certified that the required repair work was substantially completed and that the premises were ready for occupancy. The defendant responded by correspondence dated August 28, 2000, stating that five of the seven delay items were not completed. As of October 8,2000, it was undisputed that the plaintiff had not completed two of the delay items listed in exhibit C. First, the plaintiff installed a wooden wall instead of enclosing the premises with concrete block or brick, as required in exhibit C. Second, the plaintiff failed to enclose the second floor rear windows with concrete block or brick, as specified, but instead enclosed them with a wood and wire mesh. The court also found that the plaintiff had failed to finish the wall repairs and painting, but that this work was substantially complete. Both of the nondelay items were not completed. Additional facts will be set forth as necessary.

I

The plaintiff claims that the court improperly concluded that the plaintiff did not substantially complete the required repair work. Specifically, the plaintiff argues that the court improperly determined that the repair work was not substantially completed during the forty-five day cure period because the defendant failed to specify the particular deficiency. Further, the plaintiff argues that the court improperly concluded that the plaintiff acted in bad faith by not substantially completing the repair work.

“Factual findings . . . are reviewed under the clearly erroneous standard of review. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 31-32, 830 A.2d 240 (2003). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct. . . . Thus, where the issues present questions of law, [they are] subject to our plenary review.” (Citation omitted; internal quotation marks omitted.) In re David W., 254 Conn. 676, 686, 759 A.2d 89 (2000).

The plaintiff had forty-five days to substantially complete the repair work required by exhibit C of the lease once the defendant gave notice of the cancellation. The defendant did not specifically reference in its cancellation notice the plaintiffs failure to enclose the wooden section of the rear wall of the premises or the second floor rear windows with concrete block or brick. The defendant did, however, reference general safety and regulatory concerns. It is not disputed that once the forty-five day cure period had passed, the plaintiff had not completed the two delay items previously mentioned.

The court’s memorandum of decision correctly stated that “[t]he [d]elay items on exhibit C, ‘Landlord’s Work,’ operate as conditions precedent to the enforcement of the lease. ‘A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence.’ K. A. Thompson Electric Co. v. Wesco, Inc., 27 Conn. App. 120, 124, 604 A.2d 828 (1992).” It is irrelevant that the defendant failed to specify the particular deficiency in its cancellation notice. The cancellation provision in the lease did not require that the defendant give notice of the deficiency. The delay items contained in the lease expressly required the rear wall and the second floor rear windows to be enclosed with concrete block or brick. Because the plaintiff did not substantially complete these two delay items before the forty-five day cure period had passed, the defendant’s exclusive remedy was to cancel the lease agreement.

The plaintiff also argues that the court improperly found that the plaintiff acted in bad faith because there was no evidence that cost was a factor in its choice of building materials. The court was well within its discretion in determining that the plaintiff had acted in bad faith because it failed to use block or brick as specified in the lease. The court reasonably inferred that the plaintiff had considered the less expensive cost of using wood instead of block or brick in its determination of what building material to use. Further, the court correctly pointed out that “the plaintiff did not disclose to the defendant that it had already arranged to have the new wall be made of wood. The lease was signed [nine days later] with the express condition that the wall be constructed with block or concrete materials. Due to the fact that the plaintiff failed to contact Imagi-neers to change the construction order to provide for a block or concrete wall, it is apparent that the plaintiff had no intention to complete the repairs as the lease required and, consequently, acted in bad faith.”

Accordingly, we conclude that the court properly determined that the plaintiff acted in bad faith by not substantially completing the required repair work.

II

The plaintiffs next claim is that the court improperly concluded, as a matter of law, that the repair work was not substantially completed where the plaintiffs contractor had certified its completion.

As that issue presents a question of law, our review is plenary. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 77 Conn. App. 690, 720, 825 A.2d 153, cert. granted on other grounds, 266 Conn. 906, 907, 832 A.2d 71, 72 (2003).

The plaintiff argues that because the court found that Imagineers had certified the repair work as substantially completed by letter dated August 24, 2000, the court should have concluded, as a matter of law, that the work was complete.

“A determination of contractual intent ordinarily presents a question of fact for the ultimate fact finder, although where the language is clear and unambiguous, it becomes a question of law for the court.” (Internal quotation marks omitted.) Marquardt & Roche/Meditz & Hackett, Inc. v. Riverbend Executive Center, Inc., 74 Conn. App. 412, 418, 812 A.2d 175 (2003).

The plaintiffs argument fails for two reasons. First, the lease agreement did not state that Imagineers’ certification of completion, alone, would signify that the repair work was substantially completed. The certification does not satisfy the requirement of actual completion of the work. As discussed in part I, we concluded that the court properly determined that the plaintiff did not substantially complete the required repair work. Imagineers deemed the work substantially completed, but, because of the bad faith of the plaintiff, was not made aware of all of the required provisions.

The lease provision stated in relevant part that the commencement date was “[t]he earlier of (i) thirty (30) days after notice by Landlord that the Landlord’s Work has been completed and that the Premises are deemed ready for occupancy and are available to Tenant and Tenant’s acceptance of such completion, or (ii) the date Tenant takes occupancy of the Premises.” (Emphasis added.) On the basis of that provision, the commencement of the lease could occur only upon the actual completion of the landlord’s work, which was set forth in exhibit C, followed by the issuance of the certification of completion, which deems that the premises are ready for occupancy and, finally, the tenant’s acceptance of the premises. The language of the lease did not contain a provision indicating that the completion of the work and the commencement of the lease unilaterally were within the discretion of the plaintiffs contractor. Additionally, the defendant did not take occupancy of the premises.

Second, the commencement of the lease required the “[t]enant’s acceptance of such completion” of the repair work listed in exhibit C of the lease. The plaintiff ignores that additional requirement. The defendant did not accept the repair work and canceled the lease agreement almost two months after the anticipated commencement date because of the plaintiffs failure to complete the nondelay items. Although the contractor certified that the work was complete, the plaintiff failed actually to complete the required repair work, and the defendant did not accept the premises. Only one of the three requirements for the commencement of the lease, therefore, was satisfied when the contractor certified that the work was complete.

Accordingly, the court did not improperly conclude, as a matter of law, that the repair work had not been substantially completed, although the plaintiffs contractor had certified its completion.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    DENISE SNELL v. NATASHA BEAMON ET AL.
    (AC 24027)
    Dranginis, McLachlan and Stoughton, Js.

      Argued January 9 —
    officially released March 23, 2004

      Andrew H. Sharp, for the appellants (defendants).

      M. John Strafaci, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

In this personal injury action, the defendants, Natasha Beamon and John R. Brown, appeal from the judgment of the trial court setting aside the jury’s verdict and ordering a new trial on the issue of damages that was rendered following their refusal to accept a court-ordered additur. On appeal, the defendants claim that the court improperly granted the addi-tur because the juiy verdict was adequate as a matter of law. We affirm the judgment of the trial court.

This appeal arises out of a negligence action brought by the plaintiff, Denise Snell, against the defendants for personal injuries and property damage sustained in a motor vehicle accident on April 12, 2000. The matter was tried to the jury on December 3, 4 and 5, 2002. Although liability was not contested at trial, the parties did dispute the nature and severity of the injuries sustained by the plaintiff and each offered conflicting expert testimony with respect thereto. Jeffrey Miller, an orthopedic surgeon, testified that he had treated the plaintiff from April 12 through October 19, 2000, and that the cost of the treatment and related expenses was $5424. Miller also testified that the plaintiff was totally disabled and unable to work for approximately twenty-two weeks. The plaintiff testified that such disability resulted in lost wages of $3410.

The defendants’ only witness, Michael Yoel, a chiropractor who did not treat or examine the plaintiff, agreed that the plaintiffs treatment with Miller was reasonable, as was its cost. Yoel also agreed that the plaintiffs injuries rendered her totally disabled and unable to work for a period of approximately twenty-two weeks and did not contest the plaintiffs claimed lost wages in the amount of $3410. Yoel did testify, however, that the treatment rendered by medical personnel other than Miller was unnecessary and challenged the conclusions of such personnel as to the severity and permanency of the plaintiffs injuries.

Following the close of evidence, the jury returned a plaintiffs verdict awarding $1235.53 in economic damages and no noneconomic damages. Pursuant to General Statutes § 52-228b, the plaintiff filed a motion for an additur and to have the verdict set aside if the defendants did not agree to the additur. The basis of the plaintiffs motion was that the verdict was inadequate and contrary to the weight of the evidence.

After conducting a hearing, the court issued a detailed memorandum of decision, granting the motion and ordering an additur of $7598.47 in economic damages and $10,000 in noneconomic damages, resulting in a total damages award of $18,834. The court’s economic damages award consisted of $5424 in medical expenses and $3410 in lost wages. The court’s $10,000 noneco-nomic damages award was for pain and suffering.

In its memorandum of decision, the court reviewed the evidence presented during trial and stated that Miller’s testimony as to the extent of the plaintiffs injuries, the cost of his treatment and her inability to work for approximately twenty-two weeks as a result of her injuries was uncontroverted by Yoel. The court noted, in contrast, that Yoel contested the plaintiffs treatment with her chiropractor and physical therapist and their respective opinions as to the nature and permanency of her injuries. The court did not include in its additur an award of damages related to that controverted testimony. As to the noneconomic damages award of $10,000, the court concluded that the plaintiff had presented sufficient testimony that as a result of the accident, she suffered significant physical pain, emotional distress and mental anguish.

In accordance with § 52-228b, the court ordered that if the defendants did not accept the additur within fourteen days of the issuance of the memorandum of decision, the motion to set aside the verdict would automatically be granted and a new trial ordered, limited to the issue of damages. When the defendants did not accept the additur at the expiration of the fourteen day period, the court ordered a new trial. This appeal followed.

The defendants’ sole claim on appeal is that the court improperly awarded an additur and, upon the defendants’ refusal to accept the additur, set aside the jury’s verdict and ordered a new trial on the issue of damages. We disagree.

“[I]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption.” (Citation omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 113-14, 663 A.2d 398 (1995). “[A] court’s decision to set aside a verdict and to order an additur ... is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Wallace v. Haddock, 77 Conn. App. 634, 637, 825 A.2d 148 (2003). “In determining whether the court abused its discretion, therefore, we decide only whether, on the evidence presented, the court reasonably could have decided that the jury did not fairly reach the verdict it did. To do so, we must examine the evidential basis of the verdict itself . . . .” (Internal quotation marks omitted.) Id., 638.

In conducting our review, we are mindful that litigants have a constitutional right to have factual issues determined by the jury and that this prerogative includes determinations of damages when there is room for a reasonable difference of opinion among fair minded persons as to the amount of the award. See Robinson v. Backes, 91 Conn. 457, 460, 99 A. 1057 (1917). Although that right operates as an obvious restraint on the discretion of the court to order an additur or to set aside a verdict, the court has not violated a party’s constitutional right to have the jury determine questions of fact if it does not abuse its discretion in setting aside the verdict. Id.; Gladu v. Sousa, 52 Conn. App. 796, 800, 727 A.2d 1286 (1999), appeal dismissed, 252 Conn. 190, 745 A.2d 798 (2000).

In its memorandum of decision, the court undertook a thorough and thoughtful analysis of the evidence presented at trial, focusing principally on the uncontro-verted testimony of Miller that the plaintiff had incurred $5424 in treatment expenses and was totally disabled and unable to work for approximately twenty-two weeks and on the plaintiffs testimony that such disability resulted in lost wages of $3410. The court found that in view of the absence of any conflicting testimony from the defendants’ only expert, Yoel, on such points, the jury’s failure to award damages for Miller’s treatment and the plaintiffs lost wages “shockfs] the sense of justice and could not have been reached without mistake, partiality or prejudice . . . .”

As we have often pointed out, the trial judge, like the jury, has the unique opportunity to see the witnesses and to hear their testimony in the totality of the circumstances, i.e., observing their demeanor and conduct, and is in a superior position to assess the credibility of each witness and the appropriate weight to be accorded their testimony. See, e.g., Marchetti v. Ramirez, 240 Conn. 49, 57, 688 A.2d 1325 (1997). Furthermore, the trial judge is in a position to gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, whatever they may be, that could have influenced the jury improperly. Id. For those reasons, we give great deference to a trial judge’s determination to award an additur.

In accordance with those principles, we find it squarely within the court’s discretion to consider the discrepancies between the evidence and the jury’s verdict and, in light of the other tangible and intangible factors that coalesce at trial, to conclude that the jury’s verdict was manifestly inadequate to compensate the plaintiff for her injuries and losses.

As to the court’s additur of $10,000 in noneconomic damages, we find that although a fact finder is not required to award noneconomic damages simply because economic damages are awarded; Parasco v. Aetna Casualty & Surety Co., 48 Conn. App. 671, 676, 712 A.2d 433 (1998); it is within the court’s discretion to evaluate the evidence presented as to the plaintiffs mental and physical anguish and to conclude that the jury’s failure to award noneconomic damages was palpably against the evidence. See Childs v. Bainer, supra, 235 Conn. 113-14. Here, the court did not abuse its discretion.

Our review of the record reveals that the court evaluated the evidence and the jury’s award in a manner consistent with its statutory authority and our jurisprudence sanctioning the exercise of its discretion in appropriate circumstances. We conclude, therefore, that the court properly granted the plaintiffs motion for additur and, after refusal by the defendants, ordered a new trial on the issue of damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to Miller, several other experts testified on the plaintiffs behalf, including a chiropractor and a physical therapist.

       In reaching that conclusion, we note that the court confined its additur award only to those economic damages that were supported by uncontroverted testimony and that the plaintiff claimed significantly more than the amount so awarded in medical expenses.


author: DUPONT, J.

text:
    SHARON MOTOR LODGE, INC., ET AL. v. ALLAN Y. TAI
    (AC 23417)
    Foti, West and Dupont, Js.
    Argued December 8, 2003 —
    officially released March 23, 2004

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Zbigniew S. Rozbicki, for the appellants (plaintiffs).

      Michael W. Coffey, for the appellee (defendant).
   Opinion

DUPONT, J.

This is an appeal from the denial of the plaintiffs’ motion for judgment in which the plaintiffs claimed that they were entitled to judgment due to mediation that allegedly resulted in a settlement of their underlying case in their favor for $365,000. After this appeal was filed, this court raised the question, on its own motion, of whether the appeal from the denial of the plaintiffs’ motion should be dismissed for lack of a final judgment. Subsequently, we deferred action until oral argument on the issue of whether the matter should be dismissed because it was not a final judgment and ordered supplemental briefs on that issue. We conclude that the denial of the motion for judgment is not an appealable final judgment because it does not so conclude the rights of the parties such that no further action can affect them. We therefore dismiss the appeal.

The following facts and procedural history are relevant to our conclusion. The plaintiffs, Sharon Motor Lodge, Inc., and its two officers, Yoke Kiew Chow and her husband, Chia Peng Chiang, entered into a real estate transaction for the purchase of a motel and the accompanying property. They hired the defendant, Allan Y. Tai, a member of the New York bar-, to represent them in the transaction. On August 17, 1998, the motel allegedly sustained physical damage due to flooding. The plaintiffs filed a two count complaint against the defendant alleging “professional negligence” (legal malpractice) and fraud and misrepresentation, relating to the performance of his duties in representing the plaintiffs during the purchase of the motel. The plaintiffs alleged that the defendant had failed as their attorney to conduct a title search, including an inquiry into whether the property was located in a flood zone, had failed to recommend a professional inspection of the pool and septic system, and had failed to disclose that he was not a member of the Connecticut bar and that he was not knowledgeable in Connecticut real estate practice and procedure.

At the suggestion of the trial court, the parties signed an agreement to mediate the dispute. The mediator chosen was retired United States Magistrate F. Owen Eagan. The agreement to mediate stated that a representative from Chicago Insurance Company, the defendant’s malpractice insurance carrier, must attend with authority to settle. Two mediation sessions took place, on April 12 and May 23, 2001. The plaintiffs and their attorney attended both sessions. The defendant and his attorney of record attended the first mediation session; the defendant’s attorney attended the second mediation session without the defendant. No claims representative of the insurer attended either session. According to the plaintiffs, the attorney for the defendant represented that he had authority to settle on behalf of the insurance carrier. That attorney’s authority to represent the malpractice insurance carrier is disputed by the defendant on appeal. During the second mediation session, at which the plaintiffs, their attorney and the defendant’s attorney were present, a settlement was allegedly reached. According to the plaintiffs, the defendant was to pay $10,000 (his deductible) and the balance would come from the Chicago Insurance Company.

On July 12, 2001, the plaintiffs filed a motion for judgment in the amount of $365,000 on the basis of the alleged settlement, plus interest at the rate of 10 percent. On August 20, 2001, the plaintiffs filed a motion for a determination of whether an agreement had been reached, citing General Statutes § 52-235d (b) (2), (3) and (4). Pursuant to the statute, they sought disclosure from the mediator of the results of the mediation. The motion for determination was granted by the court on December 3, 2001, by memorandum of decision, to the extent that the court allowed a set of interrogatories to be answered by the mediator. That set of interrogatories asked of the mediator whether the parties had reached a settlement and, if a settlement had been reached, the terms of the settlement. The interrogatories were answered by the mediator, indicating that the parties had reached a settlement, awarding the plaintiffs $365,000. An evidentiary hearing on the plaintiffs’ motion for judgment was held on May 16,2002, at which time the defendant argued that the mediator’s understanding of the settlement must have been the result of some miscommunication to him from the plaintiffs. The defendant’s attorney and a representative of the defendant’s insurance carrier both denied that the parties had reached a settlement. On June 25, 2002, the plaintiffs filed a motion for an order, seeking to have the court order the testimony of the mediator. The court denied the motion on June 27, 2002, and denied the motion for judgment on July 25, 2002.

The court ruled, in denying the plaintiffs’ motion for judgment, that on the basis of the evidence adduced at the May 16, 2002 hearing, there was disagreement over the terms of the alleged settlement and, further, disagreement as to whether any settlement was ever reached at all. The court, therefore, would not enforce the terms of the alleged settlement. This interlocutory appeal followed, challenging the court’s denial of the motion for judgment.

The subject matter jurisdiction of this court and our Supreme Court is limited by statute to final judgments. General Statutes § 52-263; see also, generally, W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2004 Ed.) § 61-1; see also C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 3.1 etseq. Some interlocutory actions of the trial courts, however, are immediately appealable because they are authorized by statute. For example, the legislature has granted authorization for appeals from prejudgment remedies; General Statutes § 52-278Z; and temporary injunctions in a labor dispute. See General Statutes § 31-118; see also W. Horton & K. Bartschi, supra, §§ 61-2 through 61-11. Other interlocutory rulings and orders of trial courts have been treated as final by the decisions of our appellate courts for purposes of asserting the right to immediate appellate review. In general, however, discovery orders or orders arising out of discovery orders are not immediately appealable.

The vast majority of interlocutory orders or rulings are not the proper subject of an appeal because they are not statutorily exempt from the final judgment rule and do not fit either of the prongs of the test set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Curdo is regarded as the landmark case in the refinement of final judgment jurisprudence. Shay v. Rossi, 253 Conn. 134, 165-67, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). Under the test established in Curdo, interlocutory orders are immediately appeal-able in two circumstances. If an order or ruling (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them, an appellant is entitled to file an immediate appeal from the ruling or order. State v. Curdo, supra, 31. The plaintiffs claim that the second prong of Curdo entitles them to an immediate appeal.

In this case, the court denied the plaintiffs’ motion for an order, filed pursuant to § 52-235d (b), to compel the testimony of the mediator, impliedly finding that “as a result of circumstances,” it did not find “that the interest of justice outweighs the need for confidentiality” of the mediator’s testimony. General Statutes § 52-235d (b) (4). Subsequently, the court denied the plaintiffs’ motion for judgment. The issue, then, is whether the court’s denial of the plaintiffs’ motion for judgment, which was based on § 52-235d (b) (4), is an appealable final judgment, presently ripe for review. The issue is one of first impression. To resolve the issue, we are guided by Curcio and those cases that further explicate its thesis.

Curcio relied on principles asserted in State v. Kemp, 124 Conn. 639, 1 A.2d 761 (1938), authored by Chief Justice William M. Maltbie. Kemp held that the denial of a motion to inspect grand jury minutes was not immediately appealable. Kemp discusses the principle behind the second prong of Curcio to conclude that if, after the order, a party is still in court, with the case still open, with the possibility that judgment may still be rendered for or against it, the order is not final. Id., 641^2.

Curdo itself determined that the denial of the defendant’s motion to quash an order for a second grand jury was not immediately appealable. The court reasoned that the denial had no present impact on the defendant’s right to be free from double jeopardy and, therefore, the defendant had no colorable claim to a right of legal and practical value that would be destroyed if not vindicated before a future trial might be held. The colorable claim to the right was based on constitutional grounds. To succeed under the second prong of Curdo, the plaintiffs must “make at least a colorable claim that some recognized statutory or constitutional right is at risk.” State v. Curcio, supra, 191 Conn. 34.

Curcio attempted to clarify the murky, amorphous area that lies between those appeals that are final judgments for purposes of interlocutory appellate review and those that are not by providing a rule to test the difference. Since Curcio, a number of cases have tested which side of the “ ‘gray area’ ” the claimed right to interlocutory appellate review falls. See, e.g., Goodson v. State, 228 Conn. 106, 113, 635 A.2d 285 (1993), on appeal after remand, 232 Conn. 175, 653 A.2d 177 (1995).

Shortly after Curcio, our Supreme Court established that in “both civil and criminal cases,” otherwise interlocutory orders may be final judgments for appeal purposes. State v. Southard, 191 Conn. 506, 509, 469 A.2d 920 (1983). It also established that the final judgment rule does not turn on the gravity of the claims that are denied appellate review. Id., 512. The court again reiterated, in State v. Parker, 194 Conn. 650, 652 n.4, 485 A.2d 139 (1984), that the final judgment rule does not depend on the particular factual circumstances. More importantly, Parker also picked up a theme of the earlier case of State v. Longo, 192 Conn. 85, 91-92, 469 A.2d 1220 (1984), namely, that the claimed right to review cannot depend on a discretionary judicial order and cannot depend on a right not presently held. Longo held that an appeal from a denial of youthful offender status pursuant to a statute was not ripe for appellate review because the denial did not threaten a right presently held by the defendant or threaten a right that was not discretionary. Id., 91.

Parker held that a denial of a defendant’s motion for the dismissal of char ges for which accelerated rehabilitation had been granted pursuant to statute was also not an appealable final judgment. The denial was not final because the statute provided for a pretrial discretionary program that postponed a disposition of a case rather than terminated it. State v. Parker, supra, 194 Conn. 658. The court reasoned that the accelerated rehabilitation statute protected the right of the defendant not to be punished, not the right to be protected against a trial. See also State v. Crawford, 257 Conn. 769, 775-80, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002).

“Appealability depends on the nature of the ultimate right sought to be vindicated and the effect of the trial court’s decision on the vindication of this right.” State v. Parker, supra, 194 Conn. 657. The Supreme Court also made it clear that any arguments about the quality of the hearing that led to the denial of the defendant’s motion could not be used to provide an open door for appellate review of an otherwise nonappealable interlocutory order. Id. The case analogizes the denial of the defendant’s motion for accelerated rehabilitation to the denial of a stay of proceedings in a civil case. Id., 655 n.6.

The denial of a motion for a stay of a decision pending the resolution of an administrative appeal from that decision is not a final judgment. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 449, 645 A.2d 978 (1994). The party seeking review of such a denial must show that the trial court’s decision threatens a right that the party holds at the time the decision is made. Id., 448. Waterbury Teachers Assn. is important because it instructs that the action of the court must threaten a right the appellant then holds and cannot involve the discretion of the court. The right must exist independently of the order from which the appeal is taken. The case cites Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 520 A.2d 605 (1987), approvingly and quotes from it to note that ultimate vindication of the appellant when a final judgment is eventually determined in the appellant’s favor will not regain what has been lost by the failure to obtain immediate appellate review. Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 230 Conn. 449-50. That downside, the court reasoned, is outweighed by the need to avoid piecemeal litigation during the course of the litigation.

In Ruggiero v. Fuessenich, 237 Conn. 339, 676 A.2d 1367 (1996), a wrongful death action for damages, a denial of the plaintiffs’ petition for the disclosure and release of records in a related criminal prosecution that had ended in an acquittal of the defendant, was based on statutory grounds. The denial was held not to be immediately appealable. The rationale for exclusion from the second prong of Curdo was that the denial did not interfere with the death action, but only limited the plaintiffs’ ability to present relevant and probative evidence. That denial did not cause an irretrievable loss of a right and irreparable harm. Any harm or loss could be rectified by an appeal, if necessary, after final judgment on the merits of the wrongful death action. Id., 347.

There is a narrow category of cases allowing an immediate interlocutory appeal under the second prong of Curdo. The cases involve monetary loss that cannot be recouped upon subsequent appeal; Litvaitis v. Lit-vaitis, 162 Conn. 540, 295 A.2d 519 (1972); Hiss v. Hiss, 135 Conn. 333, 64 A.2d 173 (1949); or involve custody of a child “during the course of dissolution proceedings [that] cannot otherwise be vindicated at any time, in any forum”; Madigan v. Madigan, 224 Conn. 749, 754-55, 620 A.2d 1276 (1993); or involve reinstatement in an employment dispute involving wages that cannot be recovered even if the defendant eventually wins; or involve a claim of sovereign immunity that grants immunity not only from liability but from suit itself. Shay v. Rossi, supra, 253 Conn. 134; see also Goodson v. State, supra, 228 Conn. 106.

In the present case, the nonbinding mediation process protected the plaintiffs and the defendant from having to try the case while settlement was attempted, but mediation was not protection against ever having to go to trial at all in the event mediation failed. The present case is unlike the cases involving collateral estoppel; see Lafayette v. General Dynamics Corp., 255 Conn. 762, 770 A.2d 1 (2001); or cases involving double jeopardy; State v. Tate, 256 Conn. 262, 773 A.2d 308 (2001); which establish the right not to go to trial at all. The principle of collateral estoppel in civil cases and double jeopardy in criminal cases is analogous because it invokes the right not to go to trial on the merits ever. Young v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 107, 112, 758 A.2d 452, cert. denied, 255 Conn. 906, 762 A.2d 912 (2000). The plaintiffs in this case, on the basis of Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 812, 626 A.2d 729 (1993), claim entitlement to avoid trial due to a claimed settlement during a mediation session.

We recognize that although parties who have agreed to settlements may have a contractual right not to go to trial, that right is not of a constitutional or statutory nature. “When parties agree to settle a case, they are effectively contracting for the right to avoid a trial. The asserted right not to go to trial can appropriately be based on a contract between the parties.” (Emphasis in original; internal quotation marks omitted.) Id. In Audubon Parking Associates Ltd. Partnership, the parties represented in open court that they had reached a settlement. Therefore, the court reasoned, the parties had the right to avoid further litigation. Id.

Our case is unlike Audubon Parking Associates Ltd. Partnership because the settlement here and its terms were not declared in open court. Here, the terms of the settlement, if any, were repudiated by the defendant in open court at a hearing held on the plaintiffs’ motion for determination and were never established to the satisfaction of the court, which expressly found that no settlement had been reached at the second mediation session.

On the basis of our review of the relevant cases, we conclude that for an interlocutory ruling in either a criminal or a civil case to be immediately appealable under the second prong of Curdo, certain conditions must be present. There must be (1) a colorable claim, that is, one that is superficially well founded but that may ultimately be deemed invalid, (2) to a right that has both legal and practical value, (3) that is presently held by virtue of a statute or the state or federal constitution, (4) that is not dependent on the exercise of judicial discretion and (5) that would be irretrievably lost, causing irrepar able harm to the appellants without immediate appellate review.

In this case, the denial of the motion for judgment was based on the denial of a disclosure order that sought to have the court allow the in-court testimony of the mediator. There is no reason to treat the denial of the motion for judgment differently for purposes of the finality of judgment from the discovery order of which it is a part. See Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 498, 736 A.2d 851 (1999).

The plaintiffs’ right to immediate appellate review fails for the reason that it rests on a discretionary action of the trial court, as established by § 52-235d, and does not involve a right that is presently held. The plaintiffs seek to vindicate a claimed statutory right to obtain disclosure from a mediator because that disclosure would grant them the colorable right to enforce a settlement agreement. Under the terms of § 52-235d (b) (1), no disclosure is allowed unless the parties agree to disclosure; under § 52-235d (b) (2) the disclosure must be necessary to enforce a written agreement that came out of the mediation. Section 52-235d (b) (3) allows disclosure if it is required by the court, which the court did not do, beyond the two interrogatories to the mediator. The court here had to decide, in its discretion, whether further disclosure by the mediator was required “as a result of circumstances” and whether the “interest of justice outweighs the need for confidentiality, consistent with the principles of law.” General Statutes § 52-235d (b) (4). The court, at a hearing, was able to discern the circumstances of the alleged settlement and could assess the credibility of the testimony proffered. The court found that the testimony of the mediator should not be ordered.

We are aware that the ability to enforce a settlement established at mediation, if one was actually reached, may be lost temporarily because this interlocutory appeal is dismissed. That consequence, however, does not allow an immediate review of an interlocutory ruling, which review would violate the final judgment jurisprudence as established by case law. See Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 230 Conn. 449-50.

The plaintiffs did not have a colorable constitutional or statutory right, independent of the exercise of discretion of the trial court, that already was held at the time the motion for judgment was denied, which would be irretrievably lost and irreparably harmed without immediate appellate review.

The appeal is dismissed.

In this opinion the other judges concurred.

       The individual plaintiffs do not assert any damages specific to themselves or independent of one another or of the corporation.

       Chicago Insurance Company is not a defendant or a party to this appeal.

       One of the claims of the defendant asserted on appeal is that his attorney at the mediation sessions was not authorized by Chicago Insurance Company, the defendant’s malpractice insurance carrier, to settle the case in the amount claimed by the plaintiffs. The possible problem of dual, antagonistic representation of both the insurer and the insured as clients need not be resolved in this opinion. See M. Bragg, “Muddy Waters,” A.B.A. J. 52 (January 2004).

       General Statutes § 52-235d (b) provides that no outside party may disclose communication received during the course of the mediation unless “(2) the disclosure is necessary to enforce a written agreement that came out of the mediation, (3) the disclosure is required by statute or regulation, or by any court, after notice to all parties to the mediation, or (4) the disclosure is required as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law.”

       The plaintiffs claim on appeal that the court (1) used an improper standard to determine that the settlement terms could not be enforced and (2) improperly denied the motion for an order compelling the mediator to testify. We need not reach those issues because of our conclusion that the denial of the motion for judgment was not a final judgment.

       General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       The court in Audubon Parking Associates Ltd. Partnership did not address any potential final judgment problems.-Awdw&owPar/cmsr .Associates Ltd. Partnership simply established the judicial acknowledgement of the right to avoid litigation because of an agreed on settlement.

       The plaintiffs claim that a letter from the defendant to his attorney confirms an agreement of the parties in writing. The letter was the subject, of a motion for disclosure that was never acted on, and we do not consider whether its introduction would have breached attorney-client confidentiality or whether it would shed any light on whether the defendant’s attorney represented both the insurance carrier and the defendant when mediation took place without any other representative of the carrier present. The plaintiffs also cite several letters from the plaintiffs’ attorney attempting to finalize the claimed settlement, the plaintiffs’ attorney testified about several calls to the defendant’s attorney and the drafting of a corporate resolution to accept the settlement, all as evidence of a written agreement. In their motion for determination, the plaintiffs argued that if the settlement was not written, they relied on General Statutes § 52-235d (b) (3) and (4).

       Any ruling made befóte the final disposition of the case can be reviewed once a final judgment has entered. Blue Cross/Blue Shield v. Gurski, 49 Conn. App. 731, 733-34, 715 A.2d 819, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. JEFFREY GASTON
    (AC 23088)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Argued January 8 —
    officially released March, 23, 2004

      Dennis P. McDonough, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The issue in this appeal is whether, under the circumstances of this case, the trial court properly denied the defendant’s motion to suppress evidence found in his vehicle following an investigative or Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

The defendant, Jeffrey Gaston, appeals from the judgment of conviction, rendered following a trial to the court, of having a weapon in a motor vehicle in violation of General Statutes § 29-38 (a). He claims that the court denied his motion to suppress in violation of his state and federal rights against unreasonable searches and seizures because the “anonymous tip” that had been given to the police did not provide them with a reasonable and articulable basis to suspect that he had committed or was about to commit a crime. We disagree and affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. On September 12, 1997, at approximately 12:30 a.m., William Mooney, a Hartford police officer on routine patrol in the north end of Hartford, encountered the defendant having a heated argument with another individual. Mooney, who was in full uniform, exited his marked Hartford police cruiser, and approached the defendant and the other individual to investigate. The defendant informed Mooney that the other individual, who was walking away from the scene as the defendant and Mooney spoke, had tried to jump him. When Mooney went to detain the other individual, the defendant got into a blue Honda and drove away. The other individual was not identified in the police report and was unknown to Mooney at trial.

After the defendant drove away, the other individual informed Mooney that the defendant had waved a knife at him. In response to that comment, Mooney broad-casted over the police radio a description of the defendant and his vehicle, his direction of travel and that he might have a knife. Shortly after the radio transmission regarding the defendant, Shawn St. John, a Hartford police officer on routine patrol in the north end of the city, saw a vehicle and driver matching the description in the broadcast. St. John stopped the vehicle approximately seven blocks from the scene of the heated argument. St. John subsequently secured the defendant in the backseat of his police cruiser and searched the passenger compartment of the defendant’s vehicle for weapons.

St. John recovered the knife from within arm’s length of the driver’s seat in an unconcealed portion of the vehicle’s passenger compartment. The knife had an edge that was approximately seven and one-half inches in length. After the knife was recovered, Mooney arrived and St. John gave Mooney custody of the knife and the defendant. At that point, Mooney arrested the defendant.

The state charged the defendant with “knowingly” having a weapon in a motor vehicle in violation of § 29-38 (a). The defendant thereafter filed a motion to suppress the seized weapon on the ground that the police did not have a reasonable and articulable suspicion of criminal activity to conduct a valid Terry stop. Specifically, the defendant claimed that St. John lacked a reasonable and articulable suspicion because St. John neither corroborated the information he received over the broadcast nor had any information that would lead him to believe the defendant was dangerous.

He also claimed that the stop was constitutionally unreasonable because Mooney’s conversation with the individual regarding the defendant’s having waved a knife was similar to that of an. anonymous tip. The tip, the defendant contends, was not sufficiently corroborated and lacked the sufficient indicia of reliability to provide a reasonable and articulable suspicion to make a Terry stop. Following an evidentiary hearing, the court denied the defendant’s motion to suppress, concluding that the police had had a reasonable and articu-lable suspicion to warrant the search of the vehicle. On appeal, the defendant claims that the court improperly denied his motion to suppress evidence for the same reasons he asserted at trial. We are not persuaded.

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . We give great deference to the findings of the trial court because it weighs the evidence before it and assesses the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Nieves, 65 Conn. App. 212, 216, 782 A.2d 203 (2001).

The federal and state law of search and seizure in this area is well settled. “Under the fourth amendment to the United States constitution and article first, [§ 7] ... of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.” (Internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 504-505, 838 A.2d 981 (2004).

When a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect to confirm or to dispel his suspicions. Terry v. Ohio, supra, 392 U.S. 24; State v. Federici, 179 Conn. 46, 51, 425 A.2d 916 (1979); State v. Acklin, 171 Conn. 105, 112, 368 A.2d 212 (1976). During a Terry stop, an officer may search the automobile’s passenger compartment for weapons, limited to areas where the weapon might be hidden, if he or she reasonably believes the suspect is potentially dangerous. Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983).

“What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances. . . . The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial corut and is subject to limited appellate review.” (Citations omitted.) State v. Anderson, 24 Conn. App. 438, 441-42, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). An appeal challenging the factual basis of a court’s decision that a reasonable and articulable suspicion exists requires that we determine, in light of the record taken as a whole, “(1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the [court’s] conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 504.

In reviewing St. John’s actions, we must determine whether the stop was justified at its inception and whether his ensuing response was “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, supra, 392 U.S. 20. “One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. A police officer who has proper grounds for stopping a suspect has constitutional permission to immobilize the suspect briefly ... so long as [the officer’s] conduct is strictly tied to and justified by the circumstances which rendered its initiation permissible. . . . Determination of the means that are reasonably necessary to maintain the status quo necessarily depends upon a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect.” (Citations omitted; internal quotation marks omitted.) State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985); see also State v. Casey, 45 Conn. App. 32, 41, 692 A.2d 1312, cert. denied, 241 Conn. 924, 697 A.2d 360 (1997). That analysis requires our examination of the facts available to the police officers and any rational inferences derived therefrom. See Terry v. Ohio, supra, 21.

In denying the defendant’s motion to suppress, the court found that the stop was not based on an anonymous tip because Mooney had had a face-to-face conversation with the other individual. That conversation gave Mooney the opportunity to assess the credibility of the complaint that the individual made regarding the defendant’s waving a knife in violation of General Statutes (Rev. to 1997) § 53a-181. We agree with the court’s conclusion.

When an officer is given a tip in a face-to-face conversation with an informant, the officer has an opportunity to assess the informant’s credibility and demeanor. State v. Hammond, 257 Conn. 610, 622, 778 A.2d 108 (2001), citing United v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (“face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false”), cert. denied, 504 U.S. 923, 112 S. Ct. 1975, 118 L. Ed. 2d 574 (1992); United States v. Sierra Hernandez, 581 F.2d 760, 763 (9th Cir.) (“[Although the informant did not identify himself by name, he would have been available for further questioning if the [officer] had judged the procedure appropriate. Unlike a person who makes an anonymous telephone call, this informant confronted the [officer] directly.”), cert. denied, 439 U.S. 936, 99 S. Ct. 333, 58 L. Ed. 2d 333 (1978); United States v. Gorin, 564 F.2d 159, 161 (4th Cir. 1977) (“standards of reliability should not prevent appropriate police action when a victim of a crime immediately has contacted the police”), cert. denied, 434 U.S. 1080, 98 S. Ct. 1276, 55 L. Ed. 2d 788 (1978).

In the present case, the informant specifically told Mooney, face to face, that the defendant had a knife. In addition, apart from the tip, Mooney had reason to suspect the defendant of illegal conduct because Mooney had arrived on the scene of a heated argument and subsequently stopped to investigate in connection with breach of the peace in violation of § 53a-181. During Mooney’s investigation, after the defendant claimed that the other party had “jumped” him, the defendant left the scene. Thereafter, Mooney developed information that the defendant may have had a knife. That fact, once broadcast over the police radio, together with a description of the vehicle and the defendant, gave St. John a reasonable suspicion to believe that the defendant might be armed and might have committed a crime.

The court also found that reasonable suspicion was sufficient under Michigan v. Long, supra, 463 U.S. 1049, to allow St. John to proceed with an investigative stop, to detain the defendant and to search the passenger compartment of the vehicle. For those reasons, the court ruled that the search of the car and the seizure of the knife were proper.

We conclude that the court properly denied the defendant’s motion to suppress. As the court noted, Mooney had the opportunity to assess the credibility of the other individual before making the radio broadcast that the defendant may have had a knife. The court credited the testimony of St. John that indicated that he had received Mooney’s broadcast containing information that the operator of the vehicle may have had a knife. Moreover, St. John’s ability to confirm that the details of the broadcast were accurate provided a reasonable basis to suspect that the defendant, who may have had a knife in his possession, was driving the blue vehicle only seven blocks from the heated argument.

To maintain the status quo, it was proper for St. John to detain the defendant while conducting an investigation. See State v. Braxton, supra, 196 Conn. 689. St. John’s safety also was of concern because the defendant was suspected of having a knife. See State v. Wilkins, 240 Conn. 489, 509, 692 A.2d 1233 (1997) (safety concerns set forth in Terry v. Ohio, supra, 392 U.S. 27, regarding patdown of person apply for limited weapons search of passenger compartment of lawfully stopped vehicle). Under those circumstances, therefore, the court properly concluded that the police had a reasonable and articulable suspicion before stopping and searching the defendant’s vehicle and that they acted in accordance with the principles of a constitutionally permissible Terry stop.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant does not challenge his conviction of three counts of failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1).

       Mooney testified at trial that although he did not let the defendant leave the scene of the heated argument, the defendant was free to go. Mooney testified that at the time the defendant left the scene, however, he was investigating him and the other individual in the encounter in connection with breach of the peace in violation of General Statutes (Rev. to 1997) § 53a-181.

       In Ms brief, the defendant relies on Florida v. J. L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). We are not persuaded that Florida is factually similar to the present case. In Florida, an anonymous caller reported to the police that a young male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Here, the officer came to the scene of an argument and had a face-to-face conversation with the complainant. The conversation provided the officer with the opportuMty to assess the credibility of the complaint and to make an immediate broadcast that led to the stop of the defendant’s veMcle seven blocks from the scene. See State v. Hammond, 257 Conn. 610, 622, 778 A.2d 108 (2001).

       “[I]n testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered.” State v. Arline, 74 Conn. App. 693, 702, 813 A.2d 153, cert. denied, 263 Conn. 907, 819 A.2d 841 (2003), citing State v. Dennis, 189 Conn. 429, 432, 456 A.2d 333 (1983).


author: PETERS, J.

text:
    IN RE DARIEN S.

    (AC 23748)
    West, McLachlan and Peters, Js.

      Argued December 5, 2003 —
    officially released March 23, 2004

      James J. Connolly, supervisory assistant public defender, for the appellant (respondent).

      Michael Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Sonia S. Stoloff, assistant attorneys general, for the appellee (petitioner).

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

   Opinion

PETERS, J.

After a juvenile has been committed as a delinquent to the custody of the commissioner of children and families (commissioner), he has a statu-toiy right to a hearing on a permanency plan for his future placement. General Statutes § 46b-141 (b) and (c). The principal issue in this case is whether, at such a hearing, the commissioner is required to make an evidentiary showing of a compelling need for the juvenile’s continued commitment before the expiration of his term of commitment. The trial court held that the statute did not include such a requirement. We affirm the court’s judgment in favor of the commissioner.

As required by General Statutes § 46b-141 (d), the commissioner initiated the present proceeding by filing a permanency plan for the respondent juvenile, Darien S. (juvenile). The stated purpose of the permanency plan was “[Reunification of the [juvenile] with [his mother].”

On September 4, 2002, the trial court held a hearing, at which the juvenile was represented by counsel, to review the permanency plan. After determining that the permanency plan was in the best interest of the juvenile, the court approved its “goal of revocation of commitment and placement of the [juvenile] with the mother . . . .” The juvenile has appealed from that judgment.

The underlying facts are undisputed. The juvenile was first committed to the custody of the commissioner on September 28, 2001, as a result of his conviction as a delinquent for violation of a court order, interference with a police officer and assault of a police officer. His subsequent conviction for assault on commission personnel led to the extension of his commitment until October 16, 2003.

The juvenile raises three issues in his appeal from the trial court’s approval of the commissioner’s permanency plan. He claims that the court (1) misconstrued § 46b-141 (d) in holding that the permanency plan hearing did not require the commissioner to show a compelling need for his continued commitment until the expiration of his term of commitment, (2) mischaracter-ized the permanency plan goal that was submitted by the commissioner and thereby relieved the commissioner of her greater burden of proving the validity of the permanency plan under § 46b-141 (d) (5) and, (3) violated his federal and state constitutional rights to due process by denying him a plenary hearing at which he could present evidence, and confront and cross-examine the state’s witnesses.

Because each of the juvenile’s claims involves questions of law, our review is plenary. See In re Haley B., 262 Conn. 406, 411, 815 A.2d 113 (2003). We agree with the judgment of the trial court.

I

MOOTNESS

As a threshold matter, we must decide whether intervening events have caused the juvenile’s appeal to become moot. We lack subject matter jurisdiction to consider the merits of a moot case. Loisel v. Rowe, 233 Conn. 370, 377-78, 660 A.2d 323 (1995).

The issue of mootness arises out of the fact that, on October 16, 2003, during the pendency of this appeal, the juvenile’s commitment expired. As a result, the commissioner no longer has any jurisdiction over him. It follows, as the parties concede, that this court’s judgment cannot affect the rights of this juvenile.

The parties argue, however, that we should nevertheless consider this appeal on its merits because the juvenile’s claims fall under the “capable of repetition, yet evading review” exception to the mootness doctrine. We agree.

An otherwise moot question may qualify for review under the “capable of repetition, yet evading review” exception if the appeal meets three requirements recently reiterated by our Supreme Court in In re Steven M., 264 Conn. 747, 826 A.2d 156 (2003). These requirements are that similar actions in the future (1) will encounter similar time constraints precluding appellate review, (2) will affect a group of similar complainants for whom this litigant may reasonably serve as a surrogate and (3) will similarly raise a question of public importance. Loisel v. Rowe, supra, 233 Conn. 382. In In re Steven M., the court found that these requirements had been met by a juvenile challenging the validity of his transfer to the commissioner of correction at a time when the juvenile was no longer in custody. In re Steven M., supra, 755-56. These precedents govern this case.

We may proceed, therefore, to an examination of the merits of the juvenile’s appeal in light of the applicable statutory law. Because a juvenile delinquent has no common-law right to a permanency plan, this appeal is governed solely by the enactments of our legislature unless these statutes are constitutionally defective.

II

HISTORY OF PERMANENCY PLANS

The juvenile’s principal claim on appeal is that the obligation to present a permanency plan for judicial approval inherently encompasses the obligation to establish the necessity for a juvenile’s continued commitment to the commissioner. In his view, such an obligation is implicit in the text of § 46b-141 (d). The validity of this assertion raises a question of first impression. We know of no Connecticut case, and the parties have cited none, that discusses the constituent elements of a permanency plan for a juvenile delinquent.

Because our statute is modeled on permanency planning as a matter of federal law, it is useful to review the history of federal permanency plans for children who have been removed from their parents. Federal permanency planning arose first under federal statutes concerning neglected children. Congress sought a remedy for children who, after removal from their parents, were languishing in foster care rather than being placed permanently in adoptive homes. See the Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, §§ 1-310, 94 Stat. 500 (codified at 42 U.S.C. §§ 620-628, 670-679a [1988 Ed.]) and the Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, §§ 101-501, 111 Stat. 2115 (codified as amended in various sections of 42 U.S.C. [2000 Ed.]). As a condition for state access to federal funding, these statutes required the states to engage in permanency planning for children in temporary state custody. 42 U.S.C. § 670 (2000 Ed.); Suter v. Artist M., 503 U.S. 347, 350-51, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992).

Current federal law for permanency planning requires states to institute plans demonstrating “reasonable efforts” to reunify abused and neglected children with their parents after the children’s placement in foster care. See 42 U.S.C. § 671 (a) (15) (2000 Ed.). Within twelve months of foster home placements, state courts must hold permanency hearings to consider the future status of each child. 42 U.S.C. § 675 (5) (C) (2000 Ed.). Congress also requires states to make specific choices about the appropriate permanent placement of children in their care by specifying whether the child will be returned to a parent, placed for adoption, placed with a relative, referred to legal guardianship or, if a compelling reason is shown, placed in another planned permanent living arrangement. 42 U.S.C. § 675 (5) (C) (2000 Ed.); 45 C.F.R. § 1356.21 (b) (2) (i).

In response to these federal initiatives, our legislature passed several pieces of legislation to keep the state in compliance with federal law and thereby to continue to receive federal funds. Specifically, the legislature has implemented a permanency planning process for all children in its custody, including those who are admitted voluntarily; General Statutes § 17a-11 (d); adjudicated as neglected or dependent; General Statutes § 46b-129 (k); or convicted as delinquent. General Statutes § 46b-141 (d).

Notably, the last of these enactments, § 46b-141, the statute presently at issue, has no direct relationship to congressional concerns about delay in the permanent placement of neglected children. Nonetheless, the statute borrows from federal law in requiring reasonably prompt permanency planning.

No Connecticut appellate court has had the opportunity to consider and to interpret permanency plans as applied to delinquents. The novelty of our inquiry is underscored by the apparent absence of analogous cases in other jurisdictions. We now turn to the precise claims raised by the juvenile.

Ill

CHALLENGE TO AN ONGOING COMMITMENT AT A PERMANENCY HEARING

The juvenile renews in this court his claim that there is a mandatory linkage between a permanency plan hearing required by § 46b-141 (d) and a hearing on the continuation of his commitment to the custody of the commissioner. The trial court held that § 46b-141 (d) does not require the commissioner, at a permanency hearing, to establish the basis for the delinquent’s continued commitment until the expiration of his term of commitment. We agree with the trial court.

From the outset of the permanency plan proceedings, the juvenile consistently has argued that the commissioner had an obligation to show a compelling reason for the continuation of his commitment. Concededly, he did not himself file a motion, pursuant to § 46b-141 (e), for termination of his commitment before the permanency plan hearing. He bases his claim on the fact that the goal the court approved, pursuant to § 46b-141 (d) (1), included the phrase “revocation of commitment.” In response, the commissioner argues that the type of “revocation” contemplated at a permanency plan hearing is a goal of future rather than immediate revocation of commitment. We agree with the commissioner.

We must decide the scope of a § 46b-141 (d) hearing in accordance with established principles of statutory interpretation. “The process of statutory interpretation involves a reasoned search for the intention 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, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003). Accordingly, we begin with the relevant text of § 46b-141 (d), which provides in part that a “permanency plan may include the goal of: (1) Revocation of commitment and placement of the child with the parent or guardian . . . .” (Emphasis added.)

On its face, § 46b-141 (d) does not explicitly impose on the commissioner, at a permanency hearing, a duty to establish that a delinquency commitment should continue. Indeed, the only explicit mention of “revocation” in § 46b-141 (d) (1) refers to “[r] evocation of commitment” as a “plan” and “goal.” The legislature’s choice of language is entirely consistent with the fact that permanency planning historically has been directed to a determination of the future status of children. It was therefore entirely reasonable for the legislature, in enacting § 46b-141 (d), to focus on the proper placement of a juvenile when his period of commitment expires.

Furthermore, the significance of the absence of a requirement to prove the necessity for a continued commitment in § 46b-141 (d) is underscored by examination of the text of another statute governing permanency planning. For children who have been adjudicated as abused or neglected, our legislature expressly has required the commissioner to justify continued commitment as part of the permanency planning process. See General Statutes § 46b-129 (k). This statutory contrast demonstrates that, if the legislature desired to include a requirement that the commissioner justify the continuation of a delinquency commitment at a permanency hearing, it easily could have done so. As our case law has often observed, “[w]e generally presume that when the legislature repeatedly uses certain terminology and chooses not to use that terminology in a particular provision, it has intended a different meaning.” Interlude, Inc. v. Skurat, 266 Conn. 130, 143, 831 A.2d 235 (2003).

The arguments that the juvenile offers in rebuttal of this textual analysis are unpersuasive. First, he maintains that we should read the statutory procedures that have been established in the abused-neglect context into delinquency proceedings. Second, he posits that the trial court had inherent power to terminate a commitment at a permanency plan hearing. In the absence of any authority for either proposition, we decline to consider them further.

We conclude, therefore, that the trial court properly construed § 46b-141 (d). Permanency planning for a juvenile delinquent does not require the commissioner to justify the continuation of apreviously imposed delinquency commitment.

IV

DISCREPANT CHARACTERIZATIONS OF PERMANENCY PLAN GOAL

Even if every placement plan does not require proof of the need for continued commitment, the juvenile argues that his case is different because of a discrepancy between the wording of the commissioner’s proposed permanency plan and the court’s permanency plan order. According to the juvenile, as a result of this discrepancy, the validity of the permanency plan order must be tested in accordance with the stricter mandate of subdivision (5) of § 46b-141 (d) rather than the broader mandate of subdivision (1) to which the court’s order conformed. Subdivision (5) requires the commissioner to document a “compelling reason” for adoption of a permanency plan other than that specified in subdivisions (1) through (4). To prove a “compelling reason,” according to the juvenile, the commissioner was required to make an evidentiary showing of a need for his continued commitment. We disagree with the juvenile’s construction of § 46b-141 (d).

The verbal discrepancy that is the focus of the juvenile’s claim is undeniable. In the commissioner’s plan, submitted on a standard commission form, she recommended that, in the best interest of the juvenile, the goal for a permanency plan should be “[reunification of the [juvenile] with the parent . . . .” The trial court, however, signed a standard judicial form that identified the goal that the court had approved as “[r] evocation of [c]ommitment and placement of the [juvenile] with the [mother].” See General Statutes § 46b-141 (d) (1).

Asked to clarify its ruling with respect to this issue, the court reaffirmed that the “[commissioner’s] permanency plan goal of reunification with mother is in the child’s best interest.” As a result, the court held, “in accordance with the language of [§ 46b-141 (d)] and form JD-JM-145 (Delinquency Permanency Plan Order), this court approved as a goal by [the commissioner] for the child revocation of the commitment and placement of the child with the mother.”

According to the juvenile, the commissioner’s omission of the words, “revocation of commitment,” in her permanency plan proposal barred the court from treating the plan as conforming with the placement goal of reunification and revocation of commitment set out in § 46b-141 (d) (1). Rather, the juvenile contends that the court should have treated the commissioner’s proposed plan as having recommended placement of the child in a “planned permanent living arrangement,” other than those explicitly mentioned in subdivisions (1) through (4) of § 46b-141 (d). See General Statutes § 46b-141 (d) (5) . In his view, to justify a subdivision (5) placement plan, the court should have required the commissioner to show a compelling need for his continued commitment to the commissioner.

Applying the rules of statutory construction described previously, we must examine the text of § 46b-141 (d) to see whether it supports the juvenile’s position. For these purposes, it is as important to note what the statute does not say as what it does say. We are not persuaded that the rules stated in the text turn upon the verbal niceties that the juvenile has called to our attention.

As an initial matter, the juvenile assumes that the statute’s articulation of the goal of “revocation,” as specified in § 46b-141 (d) (1), prescribes rules for the timing of the juvenile’s release from the commissioner’s custody. The text does not say so. Reading it literally, we have no reason to fault the order of the trial court. The court’s inclusion of the words, “revocation of commitment,” had no material impact on the juvenile’s planned placement with his mother in the future.

For similar reasons, we can find no legal significance in the commissioner’s recommendation that the juvenile be reunified with his mother without an express reference to termination of his commitment. Indeed, one could envisage a plan for reunification that would involve supervised home visits during the remainder of the period of commitment. During this period, the commissioner would have had the right to revoke the commitment early; General Statutes § 17a-10 (d); or to let it expire by operation of law. General Statutes § 46b-141 (a). Nothing in § 46b-141 (d) limits the commissioner’s exercise of these options.

Furthermore, a logical extension of the juvenile’s argument would be the creation of a new permanency goal of “reunification, without revocation” as an example of the “other planned permanent living arrangement” goal articulated in § 46b-141 (d) (5). Although § 46b-141 (d) (5) does not define “other planned permanent living arrangement” comprehensively, it includes, as one example, the placement of a juvenile “in an independent living program . . . .” That example strongly suggests that the legislature did not intend to encompass a parental placement within subdivision (5), or to impose upon the commissioner the higher burden of proof that distinguishes a permanency plan under subdivision (1) from a permanency plan under subdivision (5). “[W]e read each statute in a manner that will not thwart its intended purpose or lead to absurd results.” (Internal quotation marks omitted.) Cardenas v. Mixcus, 264 Conn. 314, 322-23, 823 A.2d 321 (2003).

In light of these considerations, we conclude that the trial court properly approved the commissioner’s permanency plan goal of revocation and reunification as articulated in § 46b-141 (d) (1). The fact that the commissioner stated her goal somewhat summarily does not alter our conclusion.

V

DUE PROCESS CHALLENGE

The juvenile’s final claim is that the trial court violated both his federal and state constitutional rights by denying him a full evidentiary hearing on the continued validity of his commitment to the commissioner. The commissioner maintains that a permanency plan hearing under § 46b-141 (d) merely allows a juvenile to contest the commissioner’s future plans for him by challenging the details of a submitted plan of reunification but does not afford him the right to argue the merits of an existing commitment. We agree with the commissioner.

At the outset, we note those issues on which the commissioner and the juvenile agree. It is common ground that a committed delinquent is entitled to participate in a “permanency hearing,” at which “the court shall review and approve a permanency plan that is in the best interest of the child . . . .” General Statutes § 46b-141 (d). Where the parties diverge is on the appropriate subject matter of that hearing.

The trial court denied the juvenile’s request for a full evidentiary hearing with respect to his continued commitment on the ground that § 46b-141 (d) does not contemplate consideration of this issue. As previously noted, we agree with the court’s interpretation of this statute. No one is entitled to an evidentiary hearing on an issue that is not relevant to the proceedings. See Kucej v. Statewide Grievance Committee, 239 Conn. 449, 462, 686 A.2d 110 (1996) (“determination of the particular process that is due depends on the nature of the proceeding and the interests at stake”), cert. denied, 520 U.S. 1276, 117 S. Ct. 2457, 138 L. Ed. 2d 214 (1997).

Moreover, the juvenile had a right to contest the merits of his commitment at the time of his initial commitment. At that juncture, he and his parents had due process rights to counsel, cross-examination, confrontation and notice of charges, and to present their own testimony. See General Statutes §§ 46b-128, 46b-135, 46b-136,46b-138a. The juvenile has not cited any authority, either within the text or legislative history of § 46b-141, to support his contention that he is entitled to a subsequent commitment hearing at which the commissioner would again have to justify the propriety of his commitment. Indeed, when the legislature intended to require such an evidentiary hearing, it has done so expressly. See General Statutes § 46b-129 (k) (1) (“court shall hold evidentiary hearings in connection with any contested motion for review of the permanency plan and to maintain or revoke commitment” [emphasis added]).

Rather, as we have already held, a permanency hearing pursuant to § 46b-141 (d) has only one purpose. That purpose is to provide a prompt judicial hearing to review the permanency goal specified in a permanency plan submitted by the commissioner. In this case, that goal was reunification with the juvenile’s parent. The juvenile never contested that aspect of the permanency plan.

In conclusion, we hold that the trial court properly construed the terms of § 46b-141 (d) and, therefore, did not violate the juvenile’s statutory or constitutional rights. The court properly declined to comply with the juvenile’s request to use a permanency plan hearing as an opportunity for review of the juvenile’s continued commitment to the commissioner.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-141 (d) provides: “At least sixty days prior to each permanency hearing required pursuant to subsection (b) or (c) of this section, the Commissioner of Children and Families shall file a permanency plan with the court. At each permanency hearing, the court shall review and approve a permanency plan that is in the best interest of the child and takes into consideration the child’s need for permanency. Such permanency plan may include the goal of: (1) Revocation of commitment and placement of the child with the parent or guardian, (2) transfer of guardianship, (3) permanent placement with a relative, (4) adoption, or (5) such other planned permanent living arrangement ordered by the court, provided the Commissioner of Children and Families has documented a compelling reason why it would not be in the best interest of the child for the permanency plan to include the goals in subdivisions (1) to (4), inclusive, of this subsection. Such other planned permanent living arrangement may include, but not be limited to, placement of the child in an independent living program. At any such permanency hearing, the court shall also determine whether the Commissioner of Children and Families has made reasonable efforts to achieve the permanency plan.”

         This issue was raised sua sponte by this court prior to oral argument.

       A few cases have described the permanency planning process for neglected children in the context of a proceeding for the termination of parental rights. See, e.g., In re Candace H., 259 Conn. 523, 524-25, 790 A.2d 1164 (2002); In re Victoria B., 79 Conn. App. 245, 248 n.4, 829 A2d 855 (2003).

       See L. Adler, “The Meanings of Permanence: A Critical Analysis of the Adoption and Safe Families Act of 1997,” 38 Harv. J. on Legis. 1, 2 (2001).

       Our Supreme Court also expressed an early concern for the placement of foster care children. “The well-known deleterious effects of prolonged temporary placement on the child . . . makes continuing review by [the commissioner] of all temporary custody and commitment cases imperative. Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings.” In re Juvenile Appeal (83-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983).

       See, e.g., 44 H.R. Proc., Pt. 15,2001 Sess., p. 5048, remarte by Representative Gail K. Hamm (“[t]he amendment [to our child protection laws] makes numerous changes to conform our state law to the federal Adoption and Safe Families Act of . . . 1997”); 44 H.R. Proc., Pt. 23, 2001 Spec. Sess., p. 7940, remarks by Representative John W. Thompson (“[The amendments to § 46b-141] conform state law to federal regulations to the Adoption and Safe Families Act of 1997. If we didn’t do this, we would suffer a financial penalty.”).

       The sparseness of out-of-state case law may be explained by the fact that while all fifty states have adopted permanency plan procedures for abused and neglected children, only five other states have adopted similar procedures for delinquent children. These five states are California, Kansas, Kentucky, New York and Wisconsin. See Cal. Welfare & Institutions Code § 727.3 (Deering Sup. 2002); Kan. Stat. Ann. § 38-1664 (2001); Ky. Rev. Stat. Ann § 610.125 (Lexis Nexis Sup. 2003); N.Y. Fam. Ct. Act § 355.5 (McKinney Sup. 2004); Wis. Stat. Ann. § 938.38 (West Sup. 2003).

       General Statutes § 46b-141 (e) provides in relevant part: “Commitments may be reopened and terminated at any time by said court .... The parents or guardian of such child may apply not more than twice in any calendar year for such reopening and termination of commitment . . . .”

       The trial court noted in its memorandum of decision that the juvenile’s counsel intended to file a motion for termination but never explicitly did so. The reason for the juvenile’s decision not to file a motion pursuant to General Statutes § 46b-141 (e) may have been that our case law holds that “the burden is upon the person applying for the revocation of commitment to allege and prove that cause for commitment no longer exists.” In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979). The juvenile intentionally sought to raise the issue of the continuation of commitment at the permanency plan hearing in order to shift the burden of proof to the commissioner.

       Because the relevant statutory text and the relationship of that text to other statutes is not plain and unambiguous, we need not consider the effect of Public Acts 2003, No. 03-154, § 1. Jones v. Kramer, 267 Conn. 336, 344 n.4, 838 A.2d 170 (2004).

       See, e.g., 42 U.S.C. § 675 (5) (C) (1988 Ed.) (“hearing shall determine the future status of child”).

       General Statutes § 46b-129 (k) (1) provides in relevant part that “[n]ine months after placement. . . the commissioner shall file a motion for review of a permanency plan and to maintain or revoke the commitment. ... A permanency hearing on any motion for review of the permanency plan to maintain or revoke commitment shall be held within ninety days of the filing of such motion. . . . The burden of proof shall be upon the commissioner to establish that the commitment should be maintained. . . .” (Emphasis added.)

       The legislature’s choice to require the commissioner to show why a commitment should be continued in the abused-neglect context and not in the delinquency context may be explained by the relevant term limits. In 2001, the legislature amended General Statutes § 46b-129 (j), by changing the commitment period for neglected children from eighteen months to an indefinite period subject to court ordered revocation. Therefore, it seems logical that the legislature could have viewed a permanency plan hearing for a neglected child as an opportune time for the court to evaluate the commitment as well.

       We need not, therefore, decide what proof is required to show a “compelling need.”

       The juvenile has not offered any analysis of his claims under our state constitution. We decline, therefore, to discuss the merits of his state constitutional law representations.

       The court’s decision did not deny the juvenile or his parents or guardians the opportunity to file an independent motion for termination of the commitment at any time. General Statutes § 46b-141 (e).

       In his reply brief, for the first time on appeal, the juvenile challenged the commissioner’s representation that he had agreed to the substantive terms of the permanency plan. We decline to review the merits of 1his contention.
      First, as a procedural matter, we have repeatedly held that a reply brief is not the proper vehicle for curing an omission in the appellant’s brief. See, e.g., State v. Wilson, 242 Conn. 605, 607 n.5, 700 A.2d 633 (1997); Place v. Waterbury, 66 Conn. App. 219, 221 n.4, 783 A.2d 1260 (2001). The reason for this policy is clear. An appellant’s claim must be raised in its original brief, so that the claim can be “fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.” (Internal quotation marks omitted.) Calcano v. Calcano, 257 Conn. 230, 244, 777 A.2d 633 (2001).
      Second, in addition to the importance of providing notice and an opportunity to reply to the opposing party, another policy reason for limiting the review of claims initially raised in a reply brief is that it encourages consistency. There was evidently confusion at trial arising out of disagreement about the nature of the juvenile’s equivocal objection to the permanency plan. Analytically, the question was whether acquiescence in the proposed plan meant acquiescence only in the goal of reunification with the mother or whether it also meant acquiescence in the timing of this reunification. This verbal sparring should not obscure the undeniable fact that the juvenile wanted immediate reunification while the commissioner wanted to postpone the reunification until the expiration of the juvenile’s term of commitment. The juvenile apparently was concerned about the place of his commitment for the remainder of his term.

       We leave to another day the type of hearing afforded to a juvenile who properly objects to the terms of a permanency plan.