text:
    IN RE SHEILA J.

    (AC 20625)
    Foti, Mihalakos and Healey, Js.
    Argued January 17
    officially released March 27, 2001

      Roger E. Bunker, for the appellant (respondent mother).

      Jessica B. Gauvin, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Carol A. Veroczi, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are 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

FOTI, J.

The respondent mother appeals from the judgment rendered by the trial court terminating her parental rights in her minor daughter, S. On appeal, the respondent claims that the court improperly (1) found that the department of children and families (department) made reasonable efforts to reunite her with S, (2) found that the respondent had failed to achieve sufficient personal rehabilitation and (3) considered in the adjudication phase of the proceedings events that occurred after the commissioner of children and famines (commissioner) filed the petition to terminate her parental rights. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On December 11,1998, the commissioner filed a petition to terminate the respondent’s parental rights with respect to S on the grounds that the respondent had failed to achieve sufficient personal rehabilitation and that no ongoing parent-child relationship existed between her and S.

The respondent, who was twenty-six years old at the time of trial, was bom in Puerto Rico but attended secondary school, through the eleventh grade, in Connecticut. She subsequently returned to Puerto Rico, where in 1990 she gave birth to a daughter through a nonmarital relationship. In 1993 and 1994, she gave birth to two more daughters through another nonmarital relationship with an individual who physically abused her dining their relationship.

She and that individual returned to Connecticut and had a son in May, 1995. In July, 1995, the respondent was kicked in the abdomen during a gang-related fight and tested positive for cocaine use at that time. The department first became involved with the family in August, 1995, when their son required emergency hospital treatment for an injury caused by a dog bite. In October, 1995, the department received confirmed referrals alleging that the respondent’s household was not clean, that the respondent had not properly fed the children, and that she and several teenagers had smoked marijuana around the house.

The respondent’s son went to live with a close friend of the family in November, 1995. The respondent began a relationship with a third individual and was referred to a family preservation program. The respondent’s boyfriend also was referred to a drug evaluation program, but neither the respondent nor her boyfriend followed through with those programs. The respondent failed to visit her son or express interest in his well-being. In May, 1996, she was the victim of domestic violence perpetrated by her boyfriend. On several occasions, she left the children unattended. As a result of those incidents, the department obtained an order of temporary custody and placed the respondent’s four children in foster care.

In the late summer of 1996, the respondent’s boyfriend went to prison and was ultimately sentenced for a series of narcotics-related offenses. The court adjudicated the four children neglected on October 4, 1996. On October 15,1996, during the boyfriend’s incarceration, the respondent gave birth to a fourth daughter, S. Both the respondent and S tested positive for the presence of cocaine at that time. On that basis, the department obtained an order of temporary custody for S and placed her in the same foster family with the two middle daughters. The court adjudicated S neglected on January 16, 1997, entered expectations for the respondent to follow and committed all five children to the department’s custody for one year. The respondent’s son returned to the custody of a family friend who had become a licensed foster mother.

The department referred the respondent to parenting classes, domestic violence counseling and drug evaluations in 1997, but she failed to participate meaningfully in those programs. She denied the need for domestic violence counseling. She used cocaine occasionally through December, 1997, and began a relationship with the father of her oldest daughter. On December 8, 1997, the respondent gave birth to her sixth child, another son.

In January, 1998, the respondent tested negative at a drug evaluation. She enrolled in a drug treatment and life skills program in April, 1998, and completed it in December, 1998, testing negative for drugs throughout the program. The respondent also began attending parenting skills classes in January and completed those classes in July, 1998. She thereafter voluntarily attended parenting classes.

The father of the respondent’s oldest daughter and second son physically abused the respondent, culminating in his arrest for an assault in July, 1998. The court sentenced him to two years imprisonment for domestic assault, possession of narcotics and violation of probation. The respondent also had an encounter with the father of her middle two daughters and her oldest son in September, 1998, in which he threatened her. The department referred the respondent to the Salvation Army domestic violence program. Although the respondent attended that program, she did not see the need for such counseling. Counselors in the program ultimately concluded that they could not help her. At the time of trial, she had recently enrolled in another domestic violence program.

The department offered her weekly visitation with her children. She inconsistently attended those visits. The respondent, who gave birth to another boy in March, 1999, demonstrated difficulty handling all of the children together. Her oldest son was particularly aggressive and did not pay attention to the respondent. She did not set limits for him and admitted that she could not control him. In June, 1999, the department removed him from the group visits and established separate visits for the respondent with him. As a result, he was quieter and followed directions better.

The respondent’s oldest son remains a difficult child with speech and language delays, and attention deficit disorder. He attends an early intervention special education program. The respondent has not inquired about his need for special programs, and the child is not emotionally attached to either his natural mother or father. Instead, he has an emotional bond with his foster mother, whom he calls “Ma.”

S has lived her entire life with her foster parents and two of her sisters. She is well-adjusted. At a visit in October, 1998, the respondent did not recall that it was S’s birthday. After separating the oldest son from the rest of the family, the department increased the respondent’s visits with the girls to three hours per week. S reluctantly attended some visits. During those visits, S identified the respondent as “Mommy,” but behaved in a reserved manner toward her. S appears interested in getting to know her mother, but is far more comfortable and attached to her sisters and to her foster parents, and her foster parents would like to adopt her.

The respondent demonstrates more affection with the three older girls. The oldest girl, who has lived in separate foster homes from her sisters, receives therapy for behavioral problems. Her emotional attachment to the respondent is strong, and she has stated that she wants to return to the respondent’s care. The department currently plans to reunite her with the respondent. If reunification efforts succeed, the department would then seek to reunify the respondent with her middle two daughters, who also have positive memories of the respondent.

To facilitate that possible reunion and because of concerns stemming from a May, 1999 psychological evaluation that diagnosed the respondent as depressed, the department referred the respondent to a family reunification program. The respondent has been living in a studio apartment for more than one year with her second son. For a period of time, he was under department protective supervision, but the department has now removed that supervision. The child appears to be clean, well fed and well clothed, but the family needs a larger living space, which the respondent and her social workers have attempted to find. As of October, 1999, the respondent began working, but she lacks any significant work history. The respondent forswears an interest in having more children. She has stated that she will not resume any of her prior relationships and that she prefers to be single. In testimony at trial, however, she denied that an incident of domestic violence with the father of her oldest daughter and second son occurred in July, 1998.

Following four days of trial, the court found that the department had proved by clear and convincing evidence that it had made reasonable efforts to reunify the respondent and S, and that the respondent had failed to achieve sufficient personal rehabilitation for purposes of General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), as amended by Public Acts 1998, No. 98-241, § 8, now (j) (3) (B). The court concluded that it was in S’s best interest that the respondent’s parental rights in S be terminated. This appeal followed.

Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). “The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In re Juvenile Appeal (84-3), 1 Conn. App. 463,478,473 A.2d 795, cert, denied, 193 Conn. 802, 474 A.2d 1259 (1984). In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)].

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 222]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert, denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). In re Kezia M., 33 Conn. App. 12, [17], 632 A.2d 1122, cert, denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Felicia D., 35 Conn. App. 490,499, 646 A.2d 862, cert, denied, 231 Conn. 931, 649 A.2d 253 (1994). ... In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771 [(1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999)].

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabilha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child. Id.” (Internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 51-52-, 720 A.2d 1112 (1998).

I

The respondent first claims that the court improperly concluded that the department made reasonable efforts at reunification. We disagree.

Before a court may grant a petition to terminate parental rights on the basis of a parent’s failure to achieve sufficient personal rehabilitation, the court must find by clear and convincing evidence that the department has made reasonable efforts to reunite the child with the parent. General Statutes (Rev. to 1997) § 17a-112 (c) (1), now Q) (l).

“The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. ... In re Tabitha T., 51 Conn. App. 595, 600, 722 A.2d 1232 (1999).” (Internal quotation marks omitted.) In re Antony B., 54 Conn. App. 463, 474-75, 735 A.2d 893 (1999).

The court found that “[o]ver a period of more than three years, [the department] offered the mother substance abuse evaluation and treatment, parenting skill classes, domestic violence counseling, a family reunification program, a psychological evaluation and visitation.” The department offered her access to those services prior to the removal of the children in 1995. She failed to avail herself of or participate meaningfully in those services. Following the removal of her children, the respondent failed to attend many visits with them. When she did attend, she rarely interacted with them, showed more affection toward her older daughters than to S and even forgot S’s birthday on one visit. She denied the fact that she needed to participate in domestic violence counseling. Our review of the record discloses that the evidence supports the court’s findings and its conclusion that the department repeatedly offered the respondent access to services, and that she consistently refused to participate or follow through with department recommendations. We cannot characterize the court’s finding, regarding the department’s reasonable efforts to reunify the respondent and S, as either legally incorrect or not factually supported.

II

The respondent next claims that the court improperly terminated her parental rights on the ground of failure to achieve sufficient personal rehabilitation. We disagree.

Failure of a parent to achieve sufficient personal rehabilitation is one of six statutory grounds on which a court may terminate parental rights pursuant to § 17a-112. General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), as amended by Public Acts 1998, No. 98-241, § 8, now (j) (3) (B). That ground exists when a parent of a child whom the court has found to be neglected fails to achieve such a degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position in the life of that child.

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child’s life. . . . In re Eden F., [250 Conn. 674, 706, 741 A.2d 873 (1999)]. This court recently explained that in assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue. ... In re Shyliesh H., [56 Conn. App. 167, 180, 743 A.2d 165 (1999)].” (Internal quotation marks omitted.) In re Sarah Ann K., 57 Conn. App. 441, 448, 749 A.2d 77 (2000). A court’s determination “that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Tabitha T., supra, 51 Conn. App. 602-603.

The court considered the fact that the respondent had made some progress in recovering from drug abuse and in improving her parenting skills, and also that she “ultimately” attended domestic violence counseling during the adjudicatory period, although she did not see the need for it or benefit from it. The court recognized and acted on her claim of “depression.” In effect, however, the court determined that although the respondent demonstrated some efforts and had taken some steps toward rehabilitation, those efforts were too little and too late. Despite all the counseling she received, her choice of partners remained poor, and she did not maintain income or housing adequate for more than the one child already living with her. She sporadically attended visits with S and showed little affection for S, even failing to recognize S’s birthday on one visit. The court aptly characterized the respondent’s relationship with S as “limited.”

While we note that the court recognized that the respondent could care for another older child and that the department bore the burden of proving that she lacked the ability to assume a responsible position in S’s life within a reasonable time, it is clear that the court considered many factors in ultimately concluding that she failed to achieve sufficient personal rehabilitation. The respondent refused to follow through on department recommendations regarding individual domestic violence counseling, failing to accept or recognize her need for such counseling. She failed to participate meaningfully in drug screening and evaluation, failed to maintain adequate housing, refused to participate in parenting classes after the birth of her sixth child in 1997, and failed to visit consistently and meaningfully with S.

Although the respondent may have achieved a level of stability within her limitations, we cannot conclude that the court’s finding that she had failed to achieve sufficient personal rehabilitation, as related to the needs of S, was clearly erroneous.

Ill

Finally, the respondent claims that the court improperly considered in the adjudication phase of the trial events that occurred subsequent to the filing of the termination petition. We disagree.

During the adjudication phase, the court is limited to considering “events preceding the filing of the petition . . . .” Practice Book § 33-3 (a). The commissioner filed the petition on December 11,1998. The respondent in her principal brief alleges that “the trial court must have improperly relied upon events which occurred after the adjudicatoiy date to reach its conclusion concerning respondent’s housing and income.” She bases that assumption on the fact that the court’s memorandum of decision refers to “two children” living with her when it discussed her ability to maintain adequate housing, when actually only one child, bom on December 8, 1997, lived with her prior to the adjudication phase of the proceedings. That claim is without merit, as the factual correctness and legal soundness of the court’s judgment is not affected by this inadvertent error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The commissioner filed petitions to terminate the respondent mother’s parental rights with respect to two children and the parental rights of the fathers of those children. A consolidated trial followed on November 15, and December 6, 7 and 10, 1999. The court granted both petitions. Only the respondent mother has appealed, and her appeal challenges only the judgment terminating her parental rights as to her daughter, S. We refer in this opinion to the respondent mother as the respondent.

       At the close of the commissioner’s case, the commissioner withdrew, and the court dismissed, the statutory ground for the termination of parental rights that no ongoing parent-child relationship existed between the respondent and S.

       The court also terminated the respondent’s parental rights with respect to her oldest son. The respondent on January 14, 2000, filed her appeal from the judgment. The respondent did not brief any issues relating to her son, and we consider, therefore, the appeal only as to S.

         General Statutes (Rev. to 1997) § 17a-112 (c) (1), now (j) (1), provides that a court may grant the petition if it finds that the department “has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . .

       The record does not disclose that the parties presented to the court the issue of whether poverty caused the respondent’s “failure to maintain adequate housing”; being poor alone can never be a justification or a cause for termination of parental rights.

       At the time the commissioner filed the petition, the respondent was pregnant with her seventh child, who was bom in March, 1999.


source: Caselaw Access Project

author: SHEA, J.

license: Public Domain

text:
    CARLIN POZZI ARCHITECTS, P.C. v. TOWN OF BETHEL ET AL.
    (AC 19633)
    Spear, Mihalakos and Shea, Js.
    Argued December 7, 2000
    officially released March 27, 2001

      Stewart A. McMillan, with whom, on the brief, was Michael J. Byrne, for the appellant (plaintiff).

      Sheila A. Denton, with whom, on the brief, were Edward P. McCreery III, and Aimee J. Wood, for the appellee (named defendant).
   Opinion

SHEA, J.

The plaintiff, Carlin Pozzi Architects, P.C., a firm of architects, appeals from the summary judgment rendered in favor of the defendant town of Bethel. The plaintiff sought to enjoin the arbitration demanded by the defendant pursuant to an arbitration clause of a contract between the parties for architectural services to be furnished by the plaintiff to the defendant. On appeal, the plaintiff claims that the trial court’s decision to grant the defendant’s motion for summary judgment was clearly erroneous because a court and not arbitration is the appropriate forum for resolving the issue of whether the demand for arbitration was timely filed. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On October 28,1988, the plaintiff and the defendant entered into a contract in which the plaintiff was to provide architectural services for the defendant in the construction of a school. The contract contained an arbitration clause. The pertinent portions of the arbitration clause, article nine, provide in relevant part: “9.1 All claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association [AAA] then obtaining unless the parties mutually agree otherwise”; and “9.2 Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.”

The plaintiff began construction of the school in 1990, and, by the fall of 1991, the defendant occupied and utilized the building. At some point, however, the roof and HVAC systems of the building intermittently malfunctioned, causing damage. As a result of the problems with the roof and HVAC systems, on June 3, 1998, the defendant filed a demand for arbitration with the AAA, alleging breach of contract, breach of an implied covenant of good faith and fair dealing and negligence.

The plaintiff filed a verified complaint on December 30, 1998, seeking an injunction to enjoin the defendant and the AAA from proceeding with the arbitration. In seeking an injunction, the plaintiff claimed that the defendant’s demand for arbitration was time barred by the statute of limitations for claims against design professionals and by the doctrine of laches, and, further, that the court and not arbitration was the appropriate forum to determine this issue because defenses such as the statute of limitations were not included in the arbitration agreement. On January 20, 1999, the defendant filed a motion to dismiss the plaintiffs complaint on the ground that the trial court lacked subject matter jurisdiction to determine whether the demand for arbitration was timely.

In its memorandum of decision dated February 25, 1999, the trial court concluded that the court and not arbitration was the proper forum to determine whether the plaintiffs defenses were arbitrable. The court held that the arbitration clause encompassed the issue of whether the defendant had filed a timely demand for arbitration and that, therefore, the issue should be decided by an arbitrator. The court dismissed the plaintiffs motion to enjoin the arbitration, but then stated that unless the parties objected, it would treat the motion to dismiss as a motion for summary judgment because a motion to dismiss is inappropriate for deciding questions of arbitrability. When the plaintiff objected, the defendant filed a motion for summary judgment raising claims identical to those in its motion to dismiss. On May 13,1999, the court granted the defendant’s motion for summary judgment and held that the complaint raised no genuine issue of material fact and that the issues are arbitrable. This appeal followed.

On appeal, the plaintiff claims that the court’s decision to grant the defendant’s motion for summary judgment was clearly erroneous because the arbitration agreement fails to include issues involving the timeliness of a demand for arbitration, and, therefore, the court and not an arbitrator should determine whether the defendant filed a demand for arbitration within the proper statutory time period. We are not persuaded.

Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 17-49, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 147, 728 A.2d 1145, cert, denied, 250 Conn. 920, 738 A.2d 654 (1999) . “Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Kroll v. Steere, 60 Conn. App. 376, 381, 759 A.2d 541, cert, denied, 255 Conn. 909, 763 A.2d 1035 (2000) .

As the court recognized, the first issue to be determined is whether a court or an arbitrator should decide whether the dispute between the parties was arbitrable, an issue referred to as the forum question. Relying on the decision of this court in Scinto v. Sosin, 51 Conn. App. 222, 721 A.2d 552 (1998), cert, denied, 247 Conn. 963, 724 A.2d 1125 (1999), the trial court designated itself as the forum to resolve that question. The court then concluded that the issues raised by the plaintiff, including its defense that the statute of limitations, General Statutes § 52-584a, barred the defendant’s claims of defective performance of the plaintiffs contractual obligations, were within the scope of the arbitration clause of the contract, which applies to “[a]ll claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof . . . .” Accordingly, the court granted the defendant’s motion for summary judgment.

On appeal, the plaintiff contends that “[a] court, rather than an arbitration proceeding, is the proper forum for determining whether a demand for arbitration has been timely filed.” The plaintiff does not contest the determination of the trial court that a court rather than an arbitrator should decide the forum question. In its brief, the plaintiff claims that “[t]he Contract does not expressly provide that issues of arbitrability are to be resolved in arbitration; therefore, the timeliness of the defendant’s Demand must be determined by the courts.” The plaintiff assumes that the issue of arbitrability includes the determination of the merits of the claims or defenses raised by the parties. The court in this case concluded that a determination of the merits of the defenses must await a resolution of the forum question with a designation of either the court or an arbitration proceeding as the appropriate forum to determine the arbitrability of the defenses and a determination by the designated forum as to whether the defenses were arbitrable. Here, the plaintiff’s quarrel is with the designation of arbitration as the forum to decide the merits of the claims and defenses raised by the parties.

In essence, arbitration agreements are contracts, and, absent an agreement, a party cannot be forced to submit a particular dispute to arbitration. Levine v. Advest, Inc., 244 Conn. 732, 744, 714 A.2d 649 (1998). “The law in Connecticut is clear. Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also. . . . Whether the parties intended to arbitrate the issue of arbitrability may be determined from an express provision to that effect or from the use of broad terms. . . . Unless the agreement shows such intent, the determination of the question of arbitrability remains a function of the court.” (Citations omitted; internal quotation marks omitted.) Scinto v. Sosin, supra, 51 Conn. App. 227-28. “The manifestation of arbitrability may be by express provision to that effect or the use of broad terms . . . and courts must look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties.” (Citation omitted.) Weitz Co. v. Shoreline Care Ltd. Partnership, 39 Conn. App. 641, 644 — 45, 666 A.2d 835 (1995).

The United States Supreme Court has declared that “[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). In Board of Education v. Frey, 174 Conn. 578, 582, 392 A.2d 466 (1978), our Supreme Court adopted the “positive assurance” test as the law for Connecticut. Previously, in Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976), the court had approved of the statement in United Steelworkers of America that “[d]oubts should be resolved in favor of coverage.” “Under the positive assurance test, judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance.” (Internal quotation marks omitted.) Weitz Co. v. Shoreline Care Ltd. Partnership, supra, 39 Conn. App. 644. Therefore, to resolve this issue, the positive assurance test must be applied. We hold that the court properly concluded that it could not be determined with positive assurance that issues of timeliness were intended by the parties to be excluded from the arbitration agreement.

The contested arbitration clause in the contract provides in relevant part: “9.1 All claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise . . . .” The broad scope of that contract provision precludes any exceptions so long as the claims, disputes or other matters in question between the parties arise out of or are related to the agreement or the breach thereof. Regardless of whether the defendant’s claims are barred by the applicable statute of limitations, as the plaintiff maintains, it is clear that those claims arose out of or were related to the agreement. A resort to the principles of contract interpretation is superfluous in view of the unambiguous arbitration clause in the contract. Accordingly, it cannot be said with positive assurance that the parties intended to exclude the issue of timeliness from arbitration. Therefore, we conclude that the summary judgment rendered in favor of the defendant was proper as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant American Arbitration Association is not involved in this appeal. We refer in this opinion to the defendant town of Bethel as the defendant.

       “HVAC” is an acronym for heating, ventilation and air conditioning systems.

       General Statutes § 52-584a (a) provides: “No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of, or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement.”

       The plaintiff further contends that § 9.2 of the contract precludes the commencement of an arbitration proceeding if the statute of limitations has expired. Our conclusion that it is within the province of the arbitrator to determine whether the defendant’s demand for arbitration was timely filed effectively disposes of this additional claim.


author: DUPONT, J.

text:
    DENNIS HACKBARTH ET AL. v. ROBERT HACKBARTH
    (AC 19752)
    Lavery, C. J., and Dranginis and Dupont, Js.

      Argued January 17
    officially released March 27, 2001

      Thomas F. Brown, for the appellant (defendant).

      Kristen S. Rufo, for the appellees (plaintiffs).
   Opinion

DUPONT, J.

The plaintiffs, Dennis Hackbarth and Arlene Hackbarth, a majority of the trustees of a trust, sought an injunction requiring the third trustee, their brother, the defendant, Robert Hackbarth, to comply with a use arrangement that the plaintiffs had adopted for the management of the trust res, a summer cottage. The plaintiffs also sought damages. A temporary injunction issued, and subsequently, after a trial to the court, the court rendered judgment granting a permanent injunction.

On appeal, the defendant claims that (1) the plaintiffs should not have brought the action against him as a trustee, (2) the court should have joined all of the beneficiaries as defendants, (3) the exclusive use arrangement contravenes the clear language of the trust agreement, (4) the court improperly concluded that the plaintiffs did not have to prove the allegations of the complaint when seeking injunctive relief and (5) the court abused its discretion in granting injunctive relief. We affirm the judgment of the trial court.

The resolution of this appeal hinges on the interpretation of the trust agreement (agreement), and on the allegations of the complaint and the special defenses. The settlor of the trust was the father of the plaintiffs and the defendant.

The plaintiffs’ complaint was accompanied by a copy of the agreement and referred to it in some of the paragraphs of the complaint. The one count complaint alleged the following: The plaintiffs and the defendant were the three trustees; the trust’s purpose was to allow the members of the Hackbarth family, as beneficiaries, to use a summer cottage; the administration of the trust was by a vote of the majority of the trustees; the trustees were to manage the trust property; an arrangement that allowed all beneficiaries full and unrestricted access to the property, was unworkable and inequitable because of overcrowding, unpredictability of use, lack of privacy and lack of quiet enjoyment and caused disagreements and dissatisfaction among the beneficiaries; the plaintiffs, as a majority of the trustees, adopted an exclusive use arrangement for the duration of the trust during July and August to ensure an equitable opportunity for all beneficiaries to use the cottage, which arrangement divided July and August into four segments of two weeks each during which the families of four siblings, namely, the two plaintiffs, the defendant and the heirs of a deceased sibling, would have exclusive use of the cottage.

The defendant asserted seven special defenses. They were that (1) the plaintiffs should not have brought the action against the defendant as a trustee, (2) the plaintiffs as trustees did not act fairly and in the best interests of the beneficiaries, (3) the plaintiffs acted in their own self-interest, contrary to their fiduciary responsibilities as trustees, (4) the plaintiffs have to prove fair dealing with the property of the trust and the beneficiaries by clear and convincing evidence, (5) the plaintiffs as trustees did not act in good faith, (6) the beneficiaries of the trust are indispensable parties and were not made parties, and (7) the adoption of the arrangement violates the constitutional rights of the beneficiaries.

The dispute centers around whether the trust allowed a majority of the trustees, namely, the plaintiffs, to enter into the exclusive use arrangement and, if so, whether the arrangement comported with the agreement and with the principles governing the action of trustees. The defendant also claims that the plaintiffs did not prove the irreparable harm necessary for the granting of injunctive relief.

The facts as alleged in the plaintiffs’ complaint, other than those relating to the use arrangement, are undisputed. The following additional facts are also undisputed and relevant to the issues. At any time other than July and August, all beneficiaries may use the cottage, which is not winterized. The defendant lives in Madison, one plaintiff lives in Connecticut and the other plaintiff lives in California. The trust term is fifteen years unless sooner terminated or extended by the unanimous vote of the settlor and the trustees. Upon termination of the trust, the property shall be sold and divided into four shares, one share each to the two plaintiffs and to the defendant, and one share to the living issue of a fourth sibling who had died before the execution of the agreement. The cottage has four rooms, two porches, no heat, water from a tank that collects rainwater and a chemical toilet. The cottage is located on a beach and at high tide, the water comes up to the house. The living room is approximately fifteen feet by twenty feet, and the kitchen is approximately fifteen feet by fifteen feet. The two bedrooms are on the second story. The cottage can sleep three people.

I

The defendant’s first two claims on appeal are that the plaintiffs should not have brought the action against him as a trustee, and that the beneficiaries of the trust are indispensable parties “to this action and they have not been served and made parties.” According to the defendant, those claims are interrelated, because if the plaintiffs should have sued the defendant as a beneficiary and did not, we should either dismiss the case or conclude that the plaintiffs should have made all the other beneficiaries parties. We agree with the court in its conclusion that the plaintiffs sued the defendant individually as a beneficiary and that they can maintain a suit without suing all of the beneficiaries of the trust.

A

The defendant claims that he asserts a right to use the cottage at will because he is a beneficiary, and not in his capacity as a trustee. The temporary injunction ordered the defendant, as trustee, to “comply fully with the exclusive use arrangement” and to “refrain from interfering in any way with the implementation of the exclusive use arrangement as adopted by the majority of the trustees.” The permanent injunction, which is the subject of this appeal, however, enjoins the “defendant from using the cottage . . . during the months of July and August . . . except in accordance with the arrangements adopted by the majority of the trustees.” The permanent injunction does not, therefore, describe the defendant as trustee.

In his testimony at trial, the defendant stated that it was in his capacity as a beneficiary that he refused to follow the exclusive use arrangement without a court issuing an injunction against him. We have examined the entire transcript of the defendant’s testimony. The pleadings and his testimony lead us to conclude that the plaintiffs sued the defendant as a beneficiary and not as a trustee. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996). The interpretation of pleadings is a question of law to be determined by the language of the pleadings and the basic nature of the underlying factual situation. Id. Here, the defendant’s own testimony and the words of the complaint indicate that the plaintiffs sued the defendant individually, as a beneficiary of the trust.

The complaint does not seek to prevent the defendant from acting or refusing to act as a trustee, but seeks to prevent him from refusing to comply with the majority of the trustees’ action and from defying the trustee’s action “to the detriment of the remaining beneficiaries.” (Emphasis added.) Although another paragraph of the complaint states that the defendant’s behavior violates his responsibility as a trustee to abide by the terms of the trust, that language can be read to mean that he refuses to abide by the majority rule of the trustees as required by the trust agreement, thereby irreparably harming the beneficiaries of the trust. The plaintiffs litigated the case on its merits against the defendant as a beneficiary, and any variance between the allegations of the complaint and the proof at trial are deemed waived. Tedesco v. Stamford, 215 Conn. 450, 462-63, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992).

Even if the plaintiffs sued the defendant as a trustee, trust law “permits one trustee to bring an action against his cotrustees ... to enjoin them from committing a breach of trust . . . .” Belcher v. Conway, 179 Conn. 198, 206, 425 A.2d 1254 (1979). The defendant testified that he had informed the plaintiffs that he would not agree to the arrangement and, if they adopted it, he would not abide by it.

B

General Statutes § 52-106 provides that “[a]n executor, administrator, or trustee of an express trust may sue or be sued without joining the persons represented by him and beneficially interested in the action.” The beneficiaries of a trust need not be joined in an action brought by a trustee. Investors Mortgage Co. v. Rodia, 31 Conn. App. 476, 479-80, 625 A.2d 833 (1993). In this case, all of the beneficiaries received written notice of the pending lawsuit, and many of them were witnesses at the trial. The settlor of the trust also had notice of the suit and attended the trial. The defendant did not seek to join any beneficiary as an indispensable or necessary party, and no beneficiary sought to join the action. See General Statutes §§ 52-107, 52-108. We conclude, therefore, that the defendant’s first two claims must fail.

II

We now address the defendant’s remaining claims on appeal. They relate to whether the use arrangement established by the plaintiffs, as a majority of the trustees, comported with the provisions of the trust agreement and with the general fiduciary obligations of trustees, and whether the court correctly rendered a judgment granting a permanent injunction.

It is evident that the trust agreement granted a majority of the trustees the right to act for the benefit of the beneficiaries. Article V of the trust agreement provides that the administration of the trust “shall be by vote of a majority of the trustees.” Furthermore, where there are multiple trustees, only a majority can exercise the powers conferred on them. Belcher v. Conway, supra, 179 Conn. 206. General Statutes § 45a-234 (25) (A) gives fiduciaries broad powers, including the right to manage real property. The defendant claims, however, that the plaintiffs’ use arrangement was unfair, not in the best interests of the beneficiaries and in the plaintiffs’ own self-interest. The court considered the arrangement itself, the trust agreement and the need for the use arrangement.

The plaintiffs, as a majority of the trustees, promulgated a plan that allowed each of the three siblings and the children of the deceased sibling to have exclusive use of the cottage for a two week period in July and August. The plan allowed unrestricted use of the cottage by all members of the Hackbarth family during the other months of the year. It did not disturb any beneficiary’s ability to use a nearby beach owned by an association to which the settlor belonged. The settlor could use the cottage at any time, including July and August. The defendant claims that all of the beneficiaries, approximately twenty people, should be able to use the beach at will, even if that use was simultaneous.

The trust provided that on its termination, the cottage would be sold and the proceeds divided into four equal parts. The four parts of eventual distribution are the same four parts on which the plaintiffs based the use arrangement, namely, the three children of the settlor and the heirs of the fourth child. The primary beneficiaries of the trust were the settlor’s living children and the children of the settlor’s deceased child. The settlor intended to treat the four beneficiaries separately for distribution purposes. It is logical to do the same for the purposes of use. We agree with the court that the use arrangement is not unreasonable.

The court also found that the plaintiffs proved by clear and convincing evidence that they did not engage in self-dealing, and we agree. We also agree with the court that the defendant has not been treated unfairly or treated differently from any other beneficiary. The plaintiffs’ action was not inimical to the beneficiaries’ interests. See Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 425-26, 279 A.2d 726 (1971). If the two plaintiffs, the defendant and the heirs of the settlor’s deceased child represent the trust’s only beneficiaries, the defendant, as only one beneficiary, has been treated similarly to the two plaintiffs because he received two weeks of exclusive use, as did they.

The defendant also claims that the court should not have granted the injunction. We have concluded that the plaintiffs properly adopted the use arrangement and the defendant concedes that without an injunction he would act in defiance of the arrangement. We now consider whether the plaintiffs and the other beneficiaries would have suffered irreparable harm without the injunction and whether the plaintiffs lacked an adequate remedy at law. See Koepper v. Emanuele, 164 Conn. 175, 177, 319 A.2d 411 (1972). If a party demonstrates both of those elements, a court may exercise its discretion to issue an injunction. Id., 178. Injunctive relief lies within the discretion of a trial court, and unless the court abused that discretion or based its decision on an erroneous statement of the law, we must uphold its grant of the relief. Advest, Inc. v. Wachtel, 235 Conn. 559, 563, 668 A.2d 367 (1995).

The court heard evidence that attempted use of the cottage by all of the beneficiaries, their families and their guests at the same time would compromise peaceful enjoyment of the cottage, that the defendant did not enjoy a close relationship with the plaintiffs or his nieces and nephews, and that tension between the defendant and them caused them to be uncomfortable when the defendant was at the cottage. Without the use arrangement, the purpose of the trust, namely, its summer use by the beneficiaries, would be thwarted. Injunctive relief was the only remedy because no adequate remedy at law existed. Damages were insufficient to obtain the requisite relief.

We conclude that the evidence was sufficient to show that irreparable harm would ensue unless the court awarded injunctive relief, that the plaintiffs had no adequate remedy at law and that the court neither abused its discretion in rendering its decision nor acted on an improper statement of the law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court did not award damages. The plaintiffs did not present any evidence of damages and relied solely on the equitable relief of an injunction.

       The defendant does not claim on appeal that the arrangement affected any constitutional right of the beneficiaries.

       The subject of the trust, the beach cottage, according to the trust agreement was to “be maintained and used as a summer residence for the members of the Hackbarth family.” Those who received notice of the lawsuit included all of the children of the plaintiffs, all of the children of the defendant and all of the children of the parties’ deceased sibling. In a broad sense, they are all beneficially interested in the trust. The agreement itself, however, defines the members of the Hackbarth family as “the settlor, his spouse [now deceased], the settlor’s issue and their legal heirs.” (Emphasis added.) Strictly speaking, it is only the deceased child of the settlor who has legal heirs. The children of the living issue of the settlor would not be beneficiaries pursuant to the definition.

       See footnote 3. The defendant assumes that the beneficiaries include the issue of the grantor and the issue of the grantor’s issue.


author: SPEAR, J.

text:
    IN RE AMELIA W. ET AL.

    (AC 20486)
    Foti, Spear and Dranginis, Js.
    Argued January 8
    officially released March 27, 2001

      Mary Ann Barile, with whom was Sandra G. Huggins, for the appellant (respondent father).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Justino Rosado, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are 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

SPEAR, J.

The respondent father appeals from the judgments of the trial court terminating his parental rights with respect to his two daughters, A and N. He claims that the court improperly found that (1) the department of children and families (department) had made reasonable efforts to reunite the respondent with his children and (2) there was no ongoing parent-child relationship with either child. We dismiss the first claim as moot and affirm the judgments of the trial court with respect to the second claim.

The relevant facts found by the court are as follows. A was born on June 20,1989, and N was bom on September 20, 1992. The court determined that A and N were neglected after the department found them living in an unsafe dwelling that was infested with roaches and littered with dirty clothes and garbage. Their mother was a substance abuser, and the respondent was incarcerated. Both children were committed to the custody of the petitioner, the commissioner of children and families (commissioner), on July 30, 1996.

The respondent has a long psychiatric history that includes paranoid schizophrenia, bipolar disorder, borderline personality disorder, antisocial personality disorder and intermittent explosive personality disorder. He also has an extensive criminal history that reveals a pattern of violence. He has been convicted of assault on a peace officer, threatening and carrying a dangerous weapon. Despite his history, the respondent continuously denied that he had any problems and rejected the assistance offered by social services, claiming that he did not need it.

On May 14, 1998, the commissioner filed petitions to terminate the respondent’s parental rights with respect to his children, alleging that (1) the department had made reasonable efforts to reunify the children with the respondent, (2) the children were found in a prior proceeding to have been neglected or uncared for, and the respondent has failed to achieve the necessary degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, he could assume a responsible position in the life of the children, and (3) there is no ongoing parent-child relationship with respect to the respondent that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the children and to allow further time for the establishment or reestablishment of a parent-child relationship would be detrimental to the best interests of the children.

The court found by clear and convincing evidence that the department had made reasonable efforts to reunify the respondent with his children and that the respondent was “unwilling to benefit from reunification efforts because he repeatedly told the [department] worker that there was nothing wrong with him and that he did not need services.” The court also found that “[the respondent] continues to suffer from serious emotional problems that preclude his ability to safely and competently parent his children and understand their individualized needs. [A] is ‘an emotionally fragile, mildly retarded youngster with many perceptual and language difficulties . . . who also suffers from severe anxiety secondary to a severe post-traumatic stress disorder . . . .’ [A] is currently on several medications to help stabilize her behavior. [The respondent] has made statements such as the medicine will mix with [A’s] Native American blood and have a demonic effect on her. He also told the court-ordered evaluator that [A] is brilliant and has the ability to act as an adult. It is clear that [the respondent] has absolutely no awareness of his child’s specialized needs. It is in [A’s] best interest to terminate her father’s parental rights so that she can continue to live in a structured and nurturing environment with people who understand her problems and can help her in her struggle to overcome the many difficulties that she has faced in her short life.

“When [N] had to engage in an interactional evaluation in May of 1999, she subsequently told a social worker that she was scared and nervous being in the same room with [the respondent] and that she was glad that he had left. She has also told her foster mother that she is fearful that she will be taken away from their home. [N] deserves permanency and it is clearly in her best interest to terminate [the respondent’s] parental rights in order to allow her to be adopted by her aunt and uncle.” On January 13, 2000, the court terminated the respondent’s parental rights. This appeal followed.

I

The respondent claims that the court improperly determined that the department had made reasonable efforts to reunify the respondent with his children. We dismiss this claim because, even if we agreed with the respondent, we could accord him no practical relief.

We first turn to the governing statute, General Statutes (Rev. to 1997) § 17a-112 (c). To prevail, the commissioner is required to prove by clear and convincing evidence that (1) the department has made reasonable efforts to reunify the children with the parent unless the court finds that the parent is unable or unwilling to benefit from reunification efforts, or the court has found at an earlier hearing that such reasonable efforts are not appropriate, (2) there is no ongoing parent-child relationship and (3) termination is in the best interests of the children. It is clear from the statute that the reasonable efforts prong is satisfied where the court finds that the parent “is unable or unwilling to benefit from reunification efforts . . . .” General Statutes (Rev. to 1997) § 17a-112 (c) (1).

Although the respondent has briefed extensively his assertion that the court’s finding that the department made reasonable efforts is without foundation in the evidence, we cannot consider this claim. Even if we were to conclude that the court improperly determined that the department had made reasonable efforts, the unchallenged finding that the respondent was unwilling to benefit from reunification efforts would satisfy this prong of the statute.

“Mootness deprives this court of subject matter jurisdiction. . . . The test for determining mootness is not [wjhetherthe [respondent] would ultimately be granted relief .... The test, instead, is whether there is any practical relief this court can grant the appellant. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citations omitted; internal quotation marks omitted.) In re David L., 54 Conn App. 185, 189, 733 A.2d 897 (1999). The respondent does not challenge the court’s finding that he was unwilling to benefit from reunification efforts, which finding satisfies the statute’s first prong. We, therefore, dismiss the respondent’s claim as moot.

II

The respondent next claims that the court improperly concluded that there was no ongoing parent-child relationship between him and each of his two children. We are unpersuaded.

The respondent erroneously relies on In re Valerie D., 223 Conn. 492, 613 A.2d 748 (1992). In that case, the commissioner had custody of the child from birth, and, shortly thereafter, the court terminated the mother’s parental rights based, in part, on the court’s conclusion that there was no ongoing parent-child relationship. The respondent mother appealed to this court, and we affirmed the judgment. In re Valerie D., 25 Conn. App. 586, 595 A.2d 922 (1991). Our Supreme Court reversed our judgment and remanded the case to the trial court with direction to render judgment for the respondent mother. In re Valerie D., supra, 223 Conn. 535. As the respondent here points out, the Supreme Court reasoned that “[a]s the facts of this case demonstrate . . . once the child had been placed in foster care pursuant to the determinations made under General Statutes § 46b-129, a finding of a lack of an ongoing parent-child relationship three and one-half months later was inevitable under [the termination statute] because absent extraordinary and heroic efforts by the respondent, the petitioner was destined to have established the absence of such a relationship. Thus, a factual predicate for custody, established under the lesser standard of a preponderance of the evidence, led inexorably, for all practical purposes, to the factual predicate for termination required to be established by the higher standard of clear and convincing evidence.” Id., 533-34. We conclude that the rationale of In re Valerie D. does not apply in this case because of the vastly different factual context.

Here, the respondent’s behavior, not the conduct of the department, prevented the development of a relationship with his children. At the time of their commitment to the custody of the commissioner, A was six years old and N was three years old. Sufficient time therefore had elapsed for a bond to develop between the respondent and each of the children. “In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. . . . The ultimate question is whether the child has no present memories or feelings for the natural parent.” (Internal quotation marks omitted.) In re Shane P., 58 Conn. App. 234, 240, 753 A.2d 409 (2000). On the basis of our review of the evidence, we conclude that it was the respondent’s own failure to accept services that precluded the development of such a relationship. The court found that both children had very strong feelings for the respondent, but that those feelings were of fear and apprehension. A tried to drown herself after a visit with the respondent, and N not only did not want to live with him, but also she did not want to visit with him. The court found that A had told the therapist that the respondent had killed her best friend and that she saw her friend lying in a pool of blood. The court did not consider this statement for its truth, but rather to show that A was angry toward the respondent and fearful of him.

We conclude that the court properly distinguished this case from In re Valerie D., supra, 223 Conn. 492. We agree with the court’s conclusion that “no positive emotional aspects of a relationship [between the children and the respondent] survived, and, therefore, there is no ongoing parent-child relationship.”

The judgments are affirmed.

In this opinion the other judges concurred.

       Only the respondent father has appealed from the judgments terminating his parental rights and those of the respondent mother. We refer in this opinion to the respondent father as the respondent.

       The respondent also claimed that the court improperly found that termination was in the best interests of the children. This issue was not briefed beyond a statement that: “Respondent implores this court to review findings respecting the best interests of the children and to conclude that indeed he was prevented from having any relationship with the children as a result of the unreasonable acts of petitioner.” We, therefore, decline to review this inadequately briefed issue. See State v. Fuller, 56 Conn. App. 592, 627 n.32, 744 A.2d 931, cert, denied, 252 Conn. 949, 748 A.2d 298, cert, denied, 531 U.S. 911,121S. Ct. 262,148 L. Ed. 2d 190 (2000); Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert, denied, 239 Conn. 939, 684 A.2d 711 (1996).

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing . . . that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that . . . (D) There is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .”

       We note that the commissioner did not allege in the petitions that the respondent was unable or unwilling to benefit from reunification efforts. Nevertheless, the court so found. The respondent has not challenged the propriety of the court’s making such a finding without a specific allegation in the petitions. The respondent chose not to respond to the state’s claim in its brief that the reasonable efforts claim is not reviewable because of the legally sufficient finding that the respondent was unwilling to benefit from reunification services.

       The court in that case found that there was no ongoing parent-child relationship as of November 8, 1989. The child was bom on July 26, 1989.


author: ZARELLA, J.

text:
    STATEWIDE GRIEVANCE COMMITTEE v. SAMUEL E. DIXON, JR.
    (AC 20322)
    Lavery, C. J., and Foti and Zarella, Js.

      Argued December 13, 2000
    officially released March 27, 2001

      Samuel E. Dixon, Jr., pro se, the appellant (defendant).

      Darlene F. Reynolds, assistant bar counsel, for the appellee (plaintiff).
   Opinion

ZARELLA, J.

The defendant attorney, Samuel E. Dixon, Jr., appeals from the judgment rendered by the trial court finding him in violation of the Rules of Professional Conduct and imposing sanctions. This matter came to the trial court on a presentment by the plaintiff, the statewide grievance committee, alleging that the defendant had violated rules 1.15, 1.5 (c) and (e) of the Rules of Professional Conduct. After a hearing, the court dismissed the alleged violation of rule 1.15 for failure to prove the allegation by clear and convincing evidence, but found the defendant in violation of the Rules of Professional Conduct on the remaining allegations. It ordered a nine month suspension from the practice of law followed by a conditional readmission.

On appeal, the defendant claims that (1) the court improperly found facts in a light most favorable to the plaintiff, (2) he “substantially complied” with rule 1.5 (c) of the Rules of Professional Conduct, (3) he did not violate rule 1.5 (e) of the Rules of Professional Conduct and (4) the court imposed an excessive punishment, effectively including punishment for another grievance case that was on appeal at the time that he filed his brief, which appeal has since been dismissed. We disagree and affirm the judgment of the trial court.

The following facts recited by the court in its memorandum of decision are relevant to our resolution of the issues on appeal. “Sometime in 1995 or prior, [the defendant] represented Mary E. Parsons with respect to an automobile accident involving one Wayne Legere (the accident case). Parsons was originally represented in the accident case by attorney James McCann, who was a college friend of hers. Prior to representing Parsons in the accident case, [the defendant] represented Parsons in several matters which were referred to at the hearing [in this matter] as the workers’ compensation matter, [an action in federal court] and a probate appeal. In connection with these matters, Parsons signed a written retainer agreement prepared by [the defendant].

“According to Parsons, [the defendant] convinced her to retain him, rather than McCann, to represent her in the accident case. Both Parsons and [the defendant] testified that there was no written fee agreement with [the defendant] regarding the accident case. Parsons was not aware of any fee sharing arrangement between [the defendant] and McCann. Parsons did understand that [the defendant] was to receive a fee of one-third of the gross settlement in the accident case.

“In August, 1995, [the defendant] effectuated a settlement of the accident case for a gross amount of $20,000. A letter was sent to Parsons detailing the breakdown of the settlement. . . . That letter shows a disbursement to Parsons of $9000, to McCann for file costs only in the amount of $474.20 and to [the defendant] for attorney’s fees in the amount of $6,666.66. The letter indicated that the remainder of the gross settlement ‘is in escrow to defend against bill for hourly billing submitted by attorney James F. McCann.’

“Eventually, [the defendant] disbursed $3000 plus costs to McCann. . . . Parsons did not consent to this disbursement nor was she aware that [the defendant] was planning to pay that amount to McCann. Rather, [the defendant] told her she would get the balance of the gross settlement when his funds were more liquid. According to Parsons, she first learned that [the defendant] had disbursed the $3000 to McCann in March, 1998.”

I

The defendant first claims that the court was not impartial in finding the facts in a light most favorable to the plaintiff. We disagree.

“As a reviewing court, we may not retry the case or pass on the credibility of witnesses. State v. Branham, 56 Conn. App. 395, 398, 743 A.2d 635, cert, denied, 252 Conn. 937, 747 A.2d 3 (2000). Our review of factual determinations is limited to whether those findings are clearly erroneous. Practice Book § 60-5; State v. Alterisi, 47 Conn. App. 199, 204, 702 A.2d 651 (1997). We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert, denied, 240 Conn. 912, 690 A.2d 400 (1997).” State v. Campbell, 61 Conn. App. 99, 102, 762 A.2d 12 (2000), cert, denied, 255 Conn. 934, 767 A.2d 105 (2001).

The court, as the finder of fact, found that Parsons’ testimony was credible. “The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact.” Id., 102-103. Therefore, the court properly performed its fact-finding function, and we appropriately defer to the court’s assessment.

II

The defendant next claims that the court improperly concluded that he violated rule 1.5 (c). He claims that he “substantially complied” with rule 1.5 (c) in three of the four cases he handled on behalf of Parsons. He further argues that Parsons refused to sign a proffered retainer agreement regarding the accident case. Additionally, he claims that he regularly represented Parsons for three years and that an understanding had evolved between them regarding his fee for contingent fee matters. We find no merit to the defendant’s claim.

As a threshold matter, we set forth the standard by which an appellate court reviews the propriety of a trial court’s legal conclusions. “Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct, and find support in the facts set out in the court’s memorandum of decision. . . . The court’s conclusions must stand unless they involve the application of some erroneous rule of law material to the case.” (Citation omitted.) Bowers v. Bowers, 61 Conn. App. 75, 80, 762 A.2d 515 (2000), cert, granted on other grounds, 255 Conn. 939, 767 A.2d 1211 (2001).

Rule 1.5 (c) of the Rules of Professional Conduct provides in relevant part: “A fee may be contingent on the outcome of the matter for which the service is rendered .... A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. . . .” (Emphasis added.)

The court found that the plaintiff had established by clear and convincing evidence that there was no written fee agreement between Parsons and the defendant concerning the accident case. Moreover, Parsons and the defendant testified that no agreement existed. On the basis of those facts, the court found that the defendant “was ethically required to have a written fee agreement with Parsons” and concluded that he had violated rule 1.5 (c).

The defendant also claims that he regularly represented Parsons and that an understanding had evolved between them regarding his fee. That argument seems to arise under rule 1.5 (b) of the Rules of Professional Conduct, which provides in relevant part that “[w]hen the lawyer has not regularly represented the client, the basis or rate of the fee . . . shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation. . . .” Rule 1.5 (b) , however, does not exempt the defendant from obtaining a written fee agreement as required by rule 1.5 (c) for contingency fee matters. Although the defendant represented Parsons in other matters and procured written fee agreements from her for those matters, he still was required to follow rule 1.5 (c) for the contingency case despite his prior dealings with Parsons.

There is no dispute that the defendant failed to memorialize a contingency fee agreement in connection with the accident case. Additionally, the facts set out in the court’s memorandum of decision find ample support in the record. Therefore, we conclude that the court correctly concluded that the defendant violated rule 1.5 (c).

Ill

The defendant also claims that the court improperly determined that he violated rule 1.5 (e) of the Rules of Professional Conduct. He claims that Parsons knew of McCann’s bill for services rendered. We disagree.

Rule 1.5 (e) provides: “A division of fee between lawyers who are not in the same firm may be made only if: (1) The client is advised of the compensation sharing agreement and of the participation of all the lawyers involved, and does not object; and (2) The total fee is reasonable.” (Emphasis added.)

The court found that the defendant and McCann were not lawyers in the same firm. It further found that the plaintiff “has established by clear and convincing evidence that Parsons did not know that [the defendant] planned to disburse $3000 of her gross settlement proceeds to McCann, did not consent to the disbursement and did not know until March, 1998, that [the defendant] had in fact disbursed $3000 to McCann. The only notice regarding McCann’s bill that [the defendant] gave to Parsons is the statement in the August 24, 1995 settlement letter . . . that he was holding the remainder of her gross settlement in escrow to defend against McCann’s bill. [The defendant] himself testified that Parsons disputed the payment of legal fees to McCann and that is the reason he did not immediately disburse a fee to McCann. These facts clearly and convincingly establish a violation of rule 1.5 (e).”

We reiterate that a court’s conclusion of law must stand unless it involves the application of an erroneous rule of law. Cummings v. Tripp, 204 Conn. 67, 87, 527 A.2d 230 (1987). In the present case, pursuant to rule 1.5 (e) of the Rules of Professional Conduct, the defendant had an ethical obligation to inform his client of any proposed arrangement with McCann. The defendant, however, failed to advise Parsons of the disbursement, failed to obtain her consent regarding the disbursement and, furthermore, knew that Parsons objected to the disbursement and paid McCann anyway. Therefore, the record amply supports the court’s decision that the defendant violated rule 1.5 (e) of the Rules of Professional Conduct.

IV

The defendant finally claims that the court improperly imposed an excessive punishment and, in effect, included punishment for another grievance case on appeal at the time that he filed his brief, but which has since been dismissed. We disagree.

“A court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession. . . . Inherent in this process is a large degree of judicial discretion. ... A court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what that sanction should be.” (Citations omitted.) Statewide Grievance Committee v. Fountain, 56 Conn. App. 375,378,743 A.2d 647 (2000).

“[Although our review of grievance proceedings is restricted, we recognize the seriousness of the interests that we must safeguard. We have a continuing duty to make it entirely clear that the standards of conduct, nonprofessional as well as professional, of the members of the profession of the law in Connecticut have not changed, and that those standards will be applied under our rules of law, in the exercise of a reasonable discretion . . . .” (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger, 230 Conn. 668, 679, 646 A.2d 781 (1994).

The court’s memorandum of decision reflects its careful consideration of the facts relevant to its determination of an appropriate sanction. With regard to aggravating factors, the court stated that the defendant had a significant history of disciplinary actions and that four different instances had been brought to the court’s attention. Furthermore, the defendant “was not only unwilling to acknowledge that he did anything wrong but sought to blame Parsons for his ethical failings.” Finally, the court found that the defendant’s “unwillingness to accept responsibility and his victimization of his clients also appears to be long-standing.”

With respect to mitigating circumstances, the court acknowledged that the defendant did not appear to have “a dishonest or selfish motive in his handling of the accident case.” Nonetheless, on the basis of his “entrenched patterns of financial misconduct, inattention to ethical considerations and mismanagement of his law office,” the court reasonably concluded that the defendant was unfit to practice law and that a nine month suspension from the practice of law was necessary for “the protection of the court, the profession of the law and of the public against offenses of attorneys which involve their character, integrity and professional standing.” Grievance Committee v. Broder, 112 Conn. 263, 265, 152 A. 292 (1930).

The judgment is affirmed.

In this opinion the other judges concurred.

       “[I]n a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence.” (Internal quotation marks omitted.) Silver v. Statewide Grievance Committee, 42 Conn. App. 229, 236, 679 A.2d 392 (1996), appeal dismissed, 242 Conn. 186, 699 A.2d 151 (1997).

       The defendant also claims that the present grievance action is a second grievance arising out of the same fact pattern, which amounts to double jeopardy in violation of the state and federal constitutions. The defendant failed to provide evidence in support of that claim to the court. Absent plain error or constitutional error, we are not required to address claims that parties do not distinctly raise at trial. See Practice Book § 60-5; State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Therefore, we do not address this claim on appeal.

       Not only did the defendant fail to satisfy the first prong of rule 1.5 (e), but he also failed to meet the rule’s second prong by charging Parsons an unreasonable attorney’s fee. The amount of the attorney’s fee was unreasonable pursuant to General Statutes § 52-251c, which provides in relevant part: “(a) In any claim or civil action to recover damages resulting from personal injury, wrongful death or damage to property . . . the attorney and the claimant may provide by contract . . . that the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) Damages awarded and received by the claimant; or (2) settlement amount pursuant to a settlement agreement.
      “(b) In any such contingency fee arrangement such fee . . . shall not exceed an amount equal to a percentage ... of the settlement amount received by the claimant as follows: (1) Thirty-three and one-third, per cent of the first three hundred thousand dollars . . . .” (Emphasis added.)
      Here, the defendant procured a settlement in the amount of $20,000 for Parsons and, under the contingency fee statute, the attorney’s fee was limited to 33 1/3 percent of that amount. The defendant charged Parsons $6,666.66 for his legal fees and $3000 for McCann’s legal fees. Consequently, Parsons’ fees amounted to almost 50 percent of the settlement amount, which is in violation of the 33 1/3 percent limit set forth in § 52-251c. Thus, the defendant’s assessment of almost 50 percent in attorney’s fees in connection with a $20,000 settlement for one accident case was unreasonable.


text:
    MURPHY, INC. v. REMODELING, ETC., INC.
    (AC 19713)
    Mihalakos, Zarella and Dupont, Js.
    Argued November 30, 2000
    officially released March 27, 2001

      Thomas L. Kanasky, Jr., for the appellant (defendant).

      Thomas W. Bucci, for the appellee (plaintiff).
   Opinion

ZARELLA, J.

The defendant, Remodeling, Etc., Inc., appeals from the judgment of the trial court ordering it to reinstate the plaintiff, Murphy, Inc., into possession of the premises, which is the subject of this entry and detainer action, and to pay the plaintiffs attorney’s fees. On appeal, the defendant claims that the court improperly (1) found that the plaintiff was in possession of the premises, (2) found that the agreement between the parties constituted a lease and not a license of real property, (3) failed to grant the defendant’s motion to dismiss pursuant to Practice Book § 15-8 and (4) awarded the plaintiff attorney’s fees. We agree and reverse the judgment of the trial court.

The following facts are undisputed. On June 23,1994, the parties entered into an agreement entitled “Lease Agreement.” Pursuant to that agreement, the defendant agreed to lease to the plaintiff “two off premises signs and the supporting structures used in connection with said signs ... on the roof of a certain building located in the City of Bridgeport and known as 325 Cherry Street . . . .” The defendant gave the plaintiff the “exclusive right of servicing the Signs, together with the right of ingress and egress into and over the premises to gain access to the Signs at any time of day or night.” Accordingly, the defendant agreed that the plaintiff “shall have the right of entry onto and across the Premises in order to gain access to the Signs and a right to use that portion of the Premises immediately adjacent to the Signs as is necessary in order to alter, maintain, paint and post the Signs and post advertising thereon

On or about May 19, 1999, the defendant informed the plaintiff that it was in default of the terms of the agreement and that the defendant would “repossess the Lease by force if necessary.” The defendant further informed the plaintiff that if it attempted to obtain access to the premises, the defendant would refuse entry and call the police to prevent the plaintiff from accessing the premises.

Shortly thereafter, the plaintiff brought suit against the defendant for unlawful entry and detainer. On June 2,1999, the defendant filed its answer and subsequently moved to dismiss the plaintiffs complaint pursuant to Practice Book § 15-8. Accordingly, the defendant argued that the suit should be dismissed because the plaintiff failed to establish actual possession of the premises and, therefore, did not make out a prima facie case.

On June 3, 1999, the court denied the defendant’s motion. The court found that the plaintiff “was [in] possession of the adjoining property” and that “there was a lockout.” The court then ordered the defendant to provide the plaintiff access to the premises and to pay the attorney’s fees of the plaintiff in the amount of $1000. The defendant thereafter appealed from the court’s judgment.

I

The dispositive issue on appeal is whether the plaintiff was in actual possession of the premises. The defendant claims that the court improperly found that the plaintiff was in possession of the premises. The defendant further argues that the plaintiffs evidence fails to support a forcible entry and detainer action under General Statutes § 47a-43. We agree.

“The process of entry and detainer is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, who has been deprived of it, may be restored to the possession and enjoyment of that property.” (Internal quotation marks omitted.) Barszck v. Solnit, 46 Conn. App. 112,117, 698 A.2d 358 (1997). In an action commenced under the entry and detainer statute, § 47a-43, the plaintiff must show that he was in actual possession of the premises at the time of the defendant’s entry. Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987). “Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land.” Catropa v. Bargas, 17 Conn. App. 285, 289, 551 A.2d 1282, cert, denied, 210 Conn. 811, 556 A.2d 609 (1989).

“The question of whether the plaintiff was in actual possession at the time of the defendant’s entry is one for the trier of fact.” Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985). “Our review of questions of fact is limited to the determination of whether the findings were clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Johnson v. de Toledo, 61 Conn. App. 156, 160, 763 A.2d 28 (2000), cert, granted on other grounds, 255 Conn. 938, 767 A.2d 1212 (2001).

The following additional facts are necessary for the resolution of this claim. The building on which the leased signs are located is surrounded by a fence with a locked gate. The plaintiff did not have keys to either the building or the gate. Therefore, whenever the plaintiff sought access to the signs, it called the defendant who, in turn, provided access to the premises. For approximately five years after signing the lease agreement, the plaintiff visited the building every other month for periods ranging from fifteen minutes to three hours. Additionally, although the plaintiff parked its vehicles on the premises during those periodic visits, the vehicles did not remain there overnight.

On the basis of these facts, the court determined that the plaintiff was in possession of the premises. These facts demonstrate, however, that the defendant held the keys to the plaintiffs access. Although the plaintiff need not demonstrate continuous control over the premises to prove possession, the plaintiff must show that it “exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion.” Communiter Break Co. v. Scinto, supra, 196 Conn. 394. We conclude that the plaintiff failed to make that requisite showing. There is no evidence in the record to indicate that the plaintiff exhibited any physical control over the premises. We conclude, therefore, that the court improperly determined that the plaintiff was in possession of the adjoining property.

II

The defendant further contends that, pursuant to the written agreement, the plaintiff possessed a license and not a leasehold interest in the premises. We agree.

“The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four corners of the instrument. . . . [T]he construction of a written contract is a question of law for the court.” (Citation omitted; internal quotation marks omitted.) Sachs v. Sachs, 60 Conn. App. 337, 342, 759 A.2d 510 (2000). “When . . . the trial court draws conclusions of law . . . we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000). “In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) Aleo Standard Corp. v. Chamas, 56 Conn. App. 568, 571, 744 A.2d 924 (2000).

“[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property. . . . [It] does not convey a possessory interest in land . . . Clean Corp. v. Foston, 33 Conn. App. 197, 203, 634 A.2d 1200 (1993). On the other hand, “[a] lease is a contract under which an exclusive possessory interest in property is conveyed.” Id., 201. “A lease is more than a mere license; it is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other; or, in other words, a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recompense.” (Internal quotation marks omitted.) Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 601, 96 A.2d 217 (1953). “Its distinguishing characteristic is the surrender of possession by the landlord to the tenant so that he may occupy the land or tenement leased to the exclusion of the landlord himself.” Id.

In the present case, the language of the agreement does not indicate any intention to surrender exclusive possession of the premises. Rather, under the agreement, the plaintiff obtained the “exclusive right of servicing the Signs, and to hang scaffolds, or to construct, post, paint, illuminate, repair or remove its advertisements on the Signs” and “the right of ingress and egress into and over the Premises to gain access to the Signs.” The agreement further limited the right of entry and the right to use the premises immediately adjacent to the signs with the language “as is necessary in order to alter, maintain, paint and post the Signs and post advertising . . . .”

There is no express grant of possession of the premises to the plaintiff in the agreement “nor can it be reasonably inferred from the terms of the contract that it was the intention of the owner to grant . . . exclusive possession.” Id., 602. The agreement does not describe with any degree of specificity the portion of the premises allegedly demised. Consequently, the language of the parties’ agreement provided that the plaintiffs interest in the premises was limited to a right to service the signs and a right of ingress and egress over the premises to gain access to the signs. Lastly, there were no provisions in the agreement that conferred possession on the plaintiff to the exclusion of the defendant as the owner. The agreement merely allowed the plaintiff “to occupy, possess and enjoy the premises for the limited purposes” as described in the agreement, namely, the maintenance of the signs atop the building.

In Wilson v. Largay Brewing Co., 125 Conn. 109,110, 3 A.2d 668 (1939), the defendant entered into an oral agreement with the owner of a package store for permission to enter on the premises, to erect a sign on the wall of the building and to return when necessary to maintain the sign. Our Supreme Court in Wilson held that “the right of the [defendant] in the premises where the sign was to be placed was at most a license to enter and erect [the sign] .... It could do nothing on the premises except so far as might be reasonably necessary in the execution of that license, and its acts in so doing would fall far short of constituting a control of the premises.” (Emphasis added.) Id., 112-13. Similarly, the agreement in the present case granted no greater rights to the plaintiff than a privilege to act on the premises of another.

We further note that although the agreement is captioned “Lease Agreement” and contains words customarily used in a lease, i.e., “lessor,” “lessee” and “lease,” the agreement is still nothing more than a license. In Reynolds v. Van Beuren, 155 N.Y. 120, 123, 49 N.E. 763 (1898), the New York Court of Appeals held that “[w]hile this paper is called a lease, it is manifestly nothing more than a mere license by the tenant in possession to the defendants to go upon the roof of the building and place advertisements upon the sign. It conveys no estate or interest whatever in the realty, and no possession or right of possession to the building or any part of it.” Similarly, in the present case, although the agreement is entitled a lease, the unambiguous terms of the parties’ agreement convey a license to the premises in the plaintiff and nothing more.

Ill

The defendant next claims that the court improperly declined to grant the defendant’s motion to dismiss pursuant to Practice Book § 15-8. We agree.

Practice Book § 15-8 provides that a court may dismiss the plaintiffs cause of action for failing to make out a prima facie case following the plaintiffs presentation of evidence. In light of our decision that the evidence did not support the court’s conclusion that the plaintiff was in actual possession of the adjoining premises, a prerequisite for recovering damages in an unlawful entry and detainer action under § 47a-43, the court should have granted the defendant’s motion on the ground that the plaintiff failed to make out a prima facie case.

IV

We do not address the defendant’s final claim that the court improperly awarded the plaintiff attorney’s fees of $1000 because the plaintiff withdrew it in its appellate brief.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the action.

In this opinion the other judges concurred.

       Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       General Statutes § 47a-43 (a) provides: “When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”

       The only testimony offered at the trial was that of Robert Murphy, the vice president of Murphy, Inc.

       The agreement stated that the “Lessee shall have the right ... to use that portion of the Premises immediately adjacent to the Signs.”

       The plaintiff in Reynolds made a written agreement with the defendant to lease the roof of abuilding, including asignboard, for advertisingpurposes.

       Notwithstanding the court’s conclusion that the defendant’s notice to quit was an acknowledgement that the agreement was indeed a lease, it was unnecessary for the court to go beyond the four comers of the parties’ agreement because the terms of the agreement were unambiguous in providing a license to the premises in the plaintiff. “[W]hen the intention conveyed [in a written contract] is clear and unambiguous, there is no room for construction.” Southern New England Contracting Co. v. Norwich Roman Catholic Diocesan Corp., 175 Conn. 197,199,397 A.2d 108 (1978). “Extrinsic evidence is admissible to assist the court in resolving the question of intent where the terms of a contract are either latently or patently ambiguous." (Emphasis added.) Kronholm v. Kronholm, 16 Conn. App. 124, 131, 547 A.2d 61 (1988). In the present case, the terms were neither latently nor patently ambiguous. Therefore, the court improperly relied on the defendant’s notice to quit in determining the parties’ intent.