author: HEIMAN, J.

text:
    LYNNE DRAHAN v. BOARD OF EDUCATION OF REGIONAL SCHOOL DISTRICT NUMBER 18 ET AL.
    (14972)
    Landau, Heiman and Spear, Js.

      Argued June 5
    officially released August 6, 1996

      John M. Gesmonde, for the appellant (plaintiff).

      Dana Shaw MacKinnon, with whom, on the brief, was Richard D. O’Connor, for the appellees (defendants).
   HEIMAN, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendants. The trial court granted the defendants’ motion to dismiss counts one and three of the plaintiffs four count amended complaint and, subsequently, granted the defendants’ motion for summary judgment on the remaining two counts. The plaintiff claims that the trial court’s rulings were improper. We affirm the judgment of the trial court.

The trial court set out the following undisputed relevant facts. The plaintiff was hired by the board as a teacher in September, 1974. She remained in her position until December, 1982, at which time she took a leave of absence. At the time the plaintiff took her leave of absence, she had attained tenure. The plaintiffs leave of absence was to be from December, 1982, to the end of the 1983-84 school year. At the close of the 1983-84 school year, the plaintiff received a letter from the board inquiring whether she intended to return to her position in September, 1984. The plaintiff responded by letter, dated June 18, 1984, stating that she would not return. On June 20, 1984, the board accepted the plaintiffs resignation. By letter dated June 21,1984, and signed by the superintendent of schools, the plaintiff was notified of the board’s acceptance of her resignation. The plaintiff was rehired by the board in August, 1989, when she signed a one year contract of employment to run from August 30, 1989, to August 30, 1990. The plaintiff was rehired by the board on two successive occasions. The plaintiff signed a second contract of employment for the period of August 29,1990, to August 31, 1991, and a third contract to run from August 28, 1991, to August 31, 1992. During the third contract period, the plaintiff received evaluations that indicated that her performance was poor. The superintendent recommended to the board that the plaintiffs contract not be renewed for a fourth year. The board accepted the superintendent’s recommendation. Prior to the conclusion of the 1991-92 school year, the board, by letter dated March 26, 1992, notified the plaintiff of its decision not to renew the plaintiffs contract for the 1992-93 school year.

The following procedural events took place subsequent to the board’s refusal to renew the plaintiffs contract. A formal hearing was held before the board regarding the nonrenewal of the plaintiffs contract. By letter dated May 13,1992, the board notified the plaintiff that it had voted to affirm its decision not to renew her contract. On June 25, 1992, the plaintiff filed an application for a temporary injunction accompanied by a four count complaint. The complaint was later amended.

The first three counts of the plaintiffs amended complaint are directed at the actions of the board. Counts one and three allege that the board improperly failed to renew the plaintiffs contract in violation of General Statutes § 10-151, commonly known as the Teacher Tenure Act. The second count alleges that the board violated the plaintiffs constitutional rights as a tenured teacher in not renewing her contract. The fourth count, directed at all four defendants, alleges that the plaintiff had been negligently evaluated in violation of General Statutes § 10-151b.

The defendants filed a motion to dismiss the plaintiffs amended complaint. The trial court granted the motion as to counts one and three on the ground that the court did not have jurisdiction as to those counts because they were not timely filed pursuant to General Statutes § 10-151 (f).

Following the trial court’s dismissal of counts one and three of the amended complaint, the plaintiff again amended her complaint to delete the dismissed counts and to renumber the remaining counts. Count two of the first amended complaint became count one of the second amended complaint and count four of the first amended complaint became count two of the second amended complaint.

The defendants moved for summary judgment as to both counts of the second amended complaint. The trial court granted the motion. As to count one of the second amended complaint, the court found that the board was entitled to judgment as a matter of law because the plaintiff was a nontenured teacher, and that, consequently, her claim that her constitutional rights as a tenured teacher were violated must fail. As to count two of the second amended complaint, the court found that the defendants were entitled to judgment as a matter of law because that count failed to state a cause of action. The court found that because the plaintiff was a nontenured teacher whose contract could be nonrenewed without cause, any negligence on the part of her evaluators would not have diminished the discretionary nature of the board’s right not to renew her contract.

I

The plaintiff claims that the trial court’s decision to dismiss counts one and three of her first amended complaint for lack of subject matter jurisdiction was improper. The plaintiff asserts that the court improperly based its ruling on the plaintiffs failure to file those counts in a timely manner pursuant to § 10-151 (f). We do not agree.

“Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. ...” (Citations omitted; internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).

In order to determine whether the trial court had subject matter jurisdiction over counts one and three of the plaintiffs first amended complaint, we must first set out certain statutory provisions relevant to this case. Those provisions are as follows.

Pursuant to General Statutes § 10-151 (c), the contract of a teacher who has not attained tenure may be terminated at any time if any one of six specific conditions is established. Otherwise, the contract of the nontenured teacher shall be continued into the next school year unless that teacher receives written notice by April 1 that the contract will not be renewed for the following school year. General Statutes § 10-151 (c). A nontenured teacher whose contract is to be terminated or nonrenewed is entitled to a hearing before the board of education. General Statutes § 10-151 (c). Where a nontenured teacher’s contract is terminated, the teacher, under certain limited circumstances, may appeal to the trial court from the board’s decision pursuant to the appeal provisions of § 10-151 (f). General Statutes § 10-151 (c). Where a nontenured teacher’s contract is nonrenewed there is no right of appeal. General Statutes § 10-151 (c).

Pursuant to General Statutes § 10-151 (d), the contract of a teacher who has attained tenure shall be continued from school year to school year. The contract may be terminated at any time, however, if at least one of six specific conditions is established. General Statutes § 10-151 (d). If the contract is terminated, the teacher is entitled to a hearing before the board of education. General Statutes § 10-151 (d). A tenured teacher may appeal to the trial court from the board’s decision after the hearing pursuant to the appeal provisions of § 10-151 (f).

We next examine the plaintiffs allegations in counts one and three of her first amended complaint in light of the provisions of § 10-151. “[W]e emphasize that the construction of a pleading is a question ultimately for the court. . . . When a case requires this court to determine the nature of a pleading filed by a party, we are not required to accept the label affixed to that pleading by the party. In this vein, we analyze the pleadings at issue in the present case.” (Citations omitted; internal quotation marks omitted.) Javit v. Marshall’s, Inc., 40 Conn. App. 261, 266, 670 A.2d 886, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996).

A summary of the plaintiffs allegations in counts one and three of her first amended complaint are as follows. The plaintiff alleges in count one that at the time the board failed to renew her contract, she was a tenured teacher with a right to have her contract continued from school year to school year pursuant to § 10-151 (d). The plaintiff alleges, however, that the board nonrenewed her contract as if she were a nontenured teacher, and that, therefore, such nonrenewal was improper. The plaintiff alleges that the board “has denied or threatens to deny the plaintiff her right to continued employment in Regional School District No. 18, thereby jeopardizing her employment, livelihood and tenure.” (Emphasis added.) In count three, the plaintiff specifically attacks the board’s conduct in not renewing her contract and alleges that the board’s nonrenewal was improper in a number of respects. The plaintiff also alleges, in a manner similar to that in count one, that, as a result of the nonrenewal of her contract, the board “has denied or threatens to deny the plaintiff her right to continued employment in Regional School District No. 18, thereby jeopardizing her tenure, in violation of Section 10-151 (d) of the Connecticut General Statutes. ” (Emphasis added.) Thus, it is clear that the plaintiff alleges in counts one and three that her right to continued employment as a tenured teacher pursuant to § 10-151 (d) has been violated.

We conclude from our review of the pleadings that the allegations of counts one and three of the plaintiff’s first amended complaint fall squarely within the class of cases that constitute an appeal from the wrongful termination of a tenured teacher’s contract. The trial court had jurisdiction to hear such an appeal pursuant to § 10-151 (f). Before the court could entertain the appeal, it had to determine whether the appeal had been timely filed. “[A]ny teacher aggrieved by the decision of a board of education after a hearing . . . may appeal therefrom, within thirty days of such decision, to the superior court. . . .” General Statutes § 10-151 (f). Here, the plaintiff concedes that her complaint was not filed within thirty days following the decision of the board. “Where a right to judicial review is created by statute, the failure to satisfy the conditions required by the statute deprives the Superior Court of jurisdiction to entertain the appeal.” Mazur v. Blum, 184 Conn. 116, 119, 441 A.2d 65 (1981). Thus, the trial court would have been authorized to hear counts one and three if those counts had been timely filed. The court properly dismissed those counts, however, on the ground that they were not filed within the period set by statute.

The plaintiff argues in her brief that counts one and three should not have been dismissed under § 10-151 (f) because those counts represented an independent action as opposed to an appeal from the decision of the board. We are unpersuaded.

“[AJccess to the courts under the Teacher Tenure Act is possible only on appeal of a decision of the board of education.” Kolenberg v. Board of Education, 206 Conn. 113, 121, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988). Our Supreme Court, however, has permitted the filing of separate actions against boards of education for breach of contract under limited circumstances. See Cahill v. Board of Education, 187 Conn. 94, 103, 444 A.2d 907 (1982) (Cahill I); Petrovich v. Board of Education, 189 Conn. 585, 589, 457 A.2d 315 (1983). It is important to note, however, that Cahill I and Petrovich “do not permit a litigant to invoke common law contract remedies in complete disregard of available administrative relief.” LaCroix v. Board of Education, 199 Conn. 70, 77, 505 A.2d 1233 (1986).

The plaintiff does not claim that counts one and three of her first amended complaint sound in breach of contract. Moreover, we will not supply those essential allegations “ ‘by conjecture or remote implication.’ ” Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985) (Cahill II). As we have already stated, the plaintiff alleges in counts one and three that the board violated her right to continued employment as a tenured teacher provided by § 10-151 (d). The plaintiff was therefore entitled to appeal the board’s decision under § 10-151 (f). LaCroix v. Board of Education, supra, 199 Conn. 78. The plaintiff now argues that the determination of the trial court’s subject matter jurisdiction over this allegation is not governed by that section. We find this argument to be an attempt to mischaracterize counts one and three in an effort to avoid the requirements of § 10-151 (f).

“[W]here a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test. ... In this case, the plaintiffs challenge of the allegedly wrongful termination of [her] contract seeks to address the very issue which the appeal mechanism authorized by § 10-151 (f) was designed to test.” (Citations omitted; internal quotation marks omitted.) LaCroix v. Board of Education, supra, 199 Conn. 78-79. Were we to hold that the plaintiff was permitted to bring a separate action to challenge the allegedly wrongful conduct of the board, we would not be “tak[ing] sufficient account of this general rule of exhaustion of remedies.” Id., 79. The trial court’s dismissal of counts one and three pursuant to § 10-151 (f) was, therefore, proper.

II

We next address the plaintiffs claim that the trial court improperly granted summary judgment as to the remaining counts of her complaint. The counts at issue are counts two and four of the plaintiffs first amended complaint, redesignated as counts one and two of her second amended complaint. At the outset, we repeat our well settled standard of review. “The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . .Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . .” (Citations omitted; internal quotation marks omitted.) Bank of Boston v. Scott Real Estate, Inc., 40 Conn. App. 616, 619-20, 673 A.2d 558 (1996).

A

We first address the plaintiffs claim that the trial court improperly granted summary judgment as to count one of her second amended complaint. That count alleges that the plaintiff, as a tenured teacher at the time of the nonrenewal of her contract in March, 1992, had acquired property and liberty interests under the state and federal constitutions, and that the board, in not renewing her contract as if she were a nontenured teacher and in improperly evaluating her, had deprived her of these interests without due process of law.

The cornerstone of this count is that the plaintiff was a tenured teacher at the time of the nonrenewal of her contract. If the plaintiff was not a tenured teacher, the allegations of this count fail. The trial court determined that, as a matter of law, the plaintiff was not a tenured teacher at the time of nonrenewal and granted the defendants’ motion for summary judgment as to the first count. On appeal, the plaintiff asserts that the trial court’s determination that she was a nontenured teacher was improper. “The dispute between the parties here does not arise out of contested versions of the facts, but out of the legal significance of the facts as they relate to relevant statutory definitions.” Pinheiro v. Board of Education, 30 Conn. App. 263, 268, 620 A.2d 159 (1993). Thus, the question before us is whether the defendant was “ ‘entitled to judgment as a matter of law.’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987).

In deciding whether the defendant was entitled to judgment as a matter of law as to this count, we must determine whether the trial court was correct when it found that, pursuant to General Statutes § 10-151 (a) (6) (C), the plaintiff was not a tenured teacher at the time of the nonrenewal of her contract in March, 1992.

We begin with the pertinent text of § 10-151 (a) (6) (C), which provides: “[A]ny teacher who has attained tenure with any one board of education and whose employment with such board ends for any reason and who is reemployed by such board or is subsequently employed by any other board, shall attain tenure after completion of sixteen school months of continuous employment. The provisions of this subparagraph shall not apply if, (i) prior to completion of the sixteenth school month following commencement of employment by such board, such teacher has been notified in writing that his or her contract will not be renewed for the following school year or (ii) for a period of five or more calendar years immediately prior to such subsequent employment, such teacher has not been employed by any board of education.”

Here, the plaintiffs employment with the board as a tenured teacher ended and she was subsequently reemployed by the board. By virtue of her completing more than sixteen school months of continuous employment under her first two successive one year contracts, she was entitled to become a tenured teacher again, subject to the provisions of subdivisions (i) and (ii) of § 10-151 (а) (6) (C). The plaintiff did not receive a nonrenewal notice within the first sixteen months of her reemployment pursuant to § 10-151 (a) (6) (C) (i). She therefore did not fail to regain her tenure under that provision. We must determine, however, whether the plaintiff failed to regain her tenure under § 10-151 (a) (б) (C) (ii) by not being reemployed within five calendar years following her original employment as a tenured teacher.

According to the undisputed facts set out in the trial court’s memoranda, the plaintiff, a tenured teacher in December, 1982, took a leave of absence through the 1983-84 school year. The school year consists of only school months and does not include the months of July or August. See General Statutes § 10-151 (a) (7). Thus, at the latest, the last day of the plaintiffs leave of absence was to be June 30, 1984, and she would not have been employed by the board during the months of July or August, 1984. The trial court also found that the plaintiff notified the board by letter dated June 18, 1984, that she would not return to teaching and that the board formally accepted the plaintiffs resignation by letter dated June 21, 1984. Thus, at the earliest, the plaintiff was no longer employed by the board as of June 21,1984, the date of the acceptance of her resignation, and, at the latest, she was no longer employed by the board as of the close of business on June 30, 1984, the last day of her leave of absence.

In order to determine whether the plaintiff was reemployed by the board within five calendar years of the last day of her original employment as a tenured teacher, we must construe the term “calendar year” as that term appears in § 10-151. “In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). It is a well established rule of statutory construction that when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn 178, 193, 530 A.2d 171 (1987). . . . Courts should not read into clearly expressed legislation provisions which do not find expression in its words. Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988).” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 830-31, 614 A.2d 414 (1992). “We will not torture the words or sentence structure of a statute [or rule] to import an ambiguity where the ordinary meaning of the language leaves no room for it.” (Internal quotation marks omitted.) Infante v. Porath, 29 Conn. App. 465, 468, 615 A.2d 1073 (1992).

General Statutes § 1-1 (i) provides that unless otherwise specified, “the word ‘year’ [shall mean] a calendar year . . . .” General Statutes § 10-144o (9), which is applicable only to General Statutes §§ 10-145 to 10-158a, inclusive, provides that “ ‘[o]ne year’ means one school year.” The school year does not include July and August; see General Statutes § 10-151 (a) (7); and is thus a specialized ten month year always beginning in September and ending in June. It naturally follows that the term “calendar years,” as opposed to the specialized term “school years,” has been used in § 10-151 (a) (6) (C) (ii) to make sure that ordinary years consisting of twelve month periods of time are utilized in making the necessary calculations under that section. Moreover, just as “[a specific number] of calendar months refers to a period of time and not to specific months as named in the calendar”; Krajniak v. Wilson, 157 Conn. 126, 130, 249 A.2d 249 (1968); a specific number of calendar-years refers to a period of time and not to specific years. “In determining the meaning of a statute, the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation.” (Internal quotation marks omitted.) Broadley v. Board of Education, 229 Conn. 1, 6, 639 A.2d 502 (1994). Thus, the term “five calendar years” used in § 10-151 (a) (6) (C) (ii) is not ambiguous, and means five periods of twelve months.

The plaintiff was not rehired by the board until August 30, 1989, more than five years from June 30, 1984, and, therefore, she failed to regain her previous tenured status, pursuant to § 10-151 (a) (6) (C) (ii). Thus, the trial court properly determined that the plaintiff, as a matter of law, was not a tenured teacher at the time of the nonrenewal of her contract. Having made this correct determination, the trial court properly granted summary judgment as to count one of the plaintiffs second amended complaint, which is based on the allegation that the plaintiff was a tenured teacher whose constitutional rights as such had been violated.

B

Finally, we address the plaintiff’s claim that the trial court improperly granted summary judgment as to count two of her second amended complaint. The plaintiff alleges in that count that the individual defendants, as agents, officers or employees of the board, negligently evaluated the plaintiff in violation of § 10-151b. The trial court, in response to the defendants’ argument in their motion for summary judgment, found that the defendants were entitled to judgment as a matter of law as to this count because it failed to state a cause of action. The court found that because the plaintiff was a nontenured teacher whose contract could be nonrenewed without cause, any negligence on the part of her evaluators would not have diminished the discretionary nature of the board’s right not to renew her contract.

We must determine whether the trial court was correct in finding that the second count of the plaintiffs second amended complaint failed to state a cause of action. The question before us again is whether the defendant was “entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 402.

Our Supreme Court interpreted the “meaning and scope of § 10-151b” in Board of Education v. Board of Labor Relations, 201 Conn. 685, 690, 519 A.2d 41 (1986), although the court did not address the issue of whether a cause of action for negligent evaluation exists under that section. “Section 10-151b is part of what is commonly referred to as the Teacher Evaluation Act. As first enacted in 1973, it provided, in subsection (c), that teacher evaluations ‘shall be based upon minimum performance criteria established by the state board of education and such additional performance criteria as the local or regional board of education may, by negotiation, establish.’ .... Public Acts 1973, No. 73-456, § 1. A year later the statute was amended to its present form. Public Acts 1974, No. 74-278, § 1. It continues to provide for locally adopted supplements to state prescribed baseline criteria for teacher evaluations, but it defines the process for arriving at such supplemental criteria differently. As reenacted, § 10-151b now states, in subsection (a), that there shall be continuous teacher evaluations ‘in accordance with guidelines established by the state board of education for the development of evaluation programs and such other guidelines as may be established by mutual agreement between the local or regional board of education and the teachers’ representative chosen pursuant to section 10-153b. . . .’” Id., 690-91.

Our legislature has not created a cause of action for negligent evaluation under § 10-151b, and neither this court nor our Supreme Court has recognized such a cause of action. We have already discussed the statutory and common law protections available to the plaintiff and we can find no persuasive authority that convinces us that we should add to such protections by recognizing anew cause of action for negligent evaluation under § 10-151b. Thus, the trial court properly granted summary judgment as to count two of the plaintiffs second amended complaint on the ground that that count failed to state a cause of action.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the board of education of regional school district number 18 (board), Julius D’Agostino, Adam S. Burrows and Gail Karowski. D’Agostino is named in his capacity as superintendent of schools and agent of the board, and Karowski and Burrows are named in their capacities as evaluators of the plaintiff appointed by D’Agostino.

       The plaintiffs claims are as follows: “(1) Did the court err in dismissing counts 1 and 3 of the plaintiffs first amended complaint for the reason that the plaintiff did not appeal the non-renewal of her contract of employment within thirty (30) days pursuant to [General Statutes (Rev. to 1993)] § 10-151 (f) when: (a) § 10-151 (f) applies only to termination of contract hearings as provided in subsection (d) of said statute, (b) the plaintiff did not have a termination of contract hearing, but a non-renewal of contract hearing, and her contract of employment was not terminated, (c) there is no statutory appeal from the non-renewal of a teacher’s contract of employment, and (d) the plaintiffs complaint was not an appeal, but a direct action against the defendant board of education?
      “(2) Did the court err in granting summary judgment against the plaintiff as to count 1 of the second amended complaint.
      “(3) Did the court err in granting summary judgment against the plaintiff as to count 2 of the second amended complaint on the basis that the plaintiff failed to state a cause of action because the court had already concluded that the plaintiff was a non-tenured teacher and/or that any negligence on the part of her evaluators would not diminish the discretionary nature of the renewal or non-renewal of her contract.”
      As to the plaintiffs multipart first claim, the plaintiffs argument in her brief is not “divided under appropriate headings into as many parts as there are points to be presented.” Practice Book § 4065. We, nonetheless, address the plaintiffs general claim that the trial court improperly dismissed counts one and three of her first amended complaint pursuant to General Statutes § 10-151 (f).

       The trial court set out these undisputed facts in its memoranda of decision on the defendants’ motion to dismiss and motion for summary judgment.

       General Statutes § 10-151 (a) provides: “(6) The term ‘tenure’ means: (A) The completion of thirty school months of full-time continuous employment for the same board of education. . . .” General Statutes § 10-151 (d) provides: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for [certain enumerated reasons] . . . .”

       Whether the plaintiff had attained tenure by the time the board declined to renew her contract i'or the 1992-93 school year is a contested issue ol' law on appeal. See part II of this opinion.

       General Statutes § 10-151b (a) provides: “The superintendent of each local or regional board of education shall, in accordance with guidelines established by the State Board of Education for the development of evaluation programs and such other guidelines as may be established by mutual agreement between the local or regional board of education and the teachers’ representative chosen pursuant to section 10-153b, continuously evaluate or cause to be evaluated each teacher. The superintendent shall report the status of such evaluations to the local or regional board of education on or before June first of each year. For purposes of this section, the term ‘teacher’ shall include each professional employee of a board of education, below the rank of superintendent, who holds a certificate or permit issued by the State Board of Education.”

       General Statutes § 10-151 (f) provides: “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, within thirty days of such decision, to the superior court. Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court. Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable. The board of education shall file with the court a copy of the complete transcript of the proceedings of the hearing held by the board of education or by an impartial hearing panel for such teacher, together with such other documents, or certified copies thereof, as shall constitute the record of the case. The court, upon such appeal, shall review the proceedings of such hearing and shall allow any party to such appeal to introduce evidence in addition to the contents of such transcript, if it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court, upon such appeal and after a hearing thereon, may affirm or reverse the decision appealed from. Costs shall not be allowed against the board of education unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.”

       The trial court’s decision not to dismiss counts two and four of the plaintiffs first amended complaint is not before us on appeal, and thus, we will address only the court’s decision to grant summary judgment as to those counts. See part II of this opinion.

       General Statutes § 10-151 (c) provides: “The contract of employment of a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section; otherwise the contract of such teacher shall be continued into the next school year unless such teacher receives written notice by April first in one school year that such contract will not be renewed for the following year. Upon the teacher’s written request, such notice shall be supplemented within seven days after receipt of the request by a statement of the reason or reasons for such nonrenewal. Such teacher, upon written request filed with the board of education within twenty days after the receipt of notice of termination or nonrenewal, shall be entitled to a hearing either before the board or, if indicated in such request and if designated by the board, before an impartial hearing panel established and conducted in accordance with the provisions of subsection (d) of this section, such hearing shall commence within fifteen days after receipt of such request unless the parties mutually agree to an extension. A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated for the reasons stated in subdivision (5) of subsection (d) of this section. The teacher shall have the right to appear with counsel of the teacher’s choice at the hearing. A teacher who has not attained tenure and whose contract is terminated for any of the reasons enumerated in subdivisions (1) to (4), inclusive, of subsection (d) of this section shall have the right to appeal in accordance with the provisions of subsection (f) of this section. No right of appeal shall exist if (A) a teacher who has not attained tenure has received nonrenewal notice prior to April first of a school year or (B) such teacher’s contract is terminated for the reasons enumerated in subdivisions (5) and (6) of subsection (d) of this section.”

       General Statutes § 10-151 (f) provides in pertinent part: “Any teacher aggrieved by the decision of a board of education after a hearing . . . may appeal therefrom, within thirty days of such decision, to the superior court. ...”

       General Statutes § 10-151 (d) provides: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause. Nothing in this section or in any other section of the general statutes or of any special act shall preclude a board of education from making an agreement with an exclusive bargaining representative which contains a recall provision. Prior to terminating a contract, a board of education shall vote to give the teacher concerned a written notice that termination of such teacher’s contract is under consideration and, upon written request filed by such teacher with such board within seven days after receipt of such notice, shall within the next succeeding seven days give such teacher a statement in writing of the reasons therefor. Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated for the reasons stated in subdivision (5) of this subsection. Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension, (A) before the board of education or a subcommittee of the board, (B) if indicated in such request or if designated by the board before an impartial hearing panel or, (C) if the parties mutually agree, before a single impartial hearing officer chosen by both parties. If the parties are unable to agree upon the choice of a hearing officer within five days after their decision to use a hearing officer, the hearing shall be held before the board or panel, as the case may be. The impartial hearing panel shall consist of three members appointed as follows: The board of education shall appoint one panel member, the teacher shall appoint one panel member, and those two panel members shall choose a third, who shall serve as chairperson. Within ninety days after receipt of the request for a hearing, the impartial hearing panel, subcommittee of the board or hearing officer, unless the parties mutually agree to an extension, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel, subcommittee or hearing officer. Each party shall pay the fee of the panel member selected by it and shall share equally the fee of the third panel member or hearing officer and all other costs incidental to the hearing. If the hearing is before the board of education, the board shall render its decision within fifteen days after the close of such hearing, and shall send a copy of its decision to the teacher. The hearing shall be public if the teacher so requests or the board, panel or subcommittee so designates. The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private. A copy of a transcript of the proceedings of the hearing shall be furnished by the board of education, upon written request by the teacher within fifteen days after the board’s decision, provided the teacher shall assume the cost of any such copy. Nothing herein contained shall deprive a board of education of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section.”

       See footnote 10.

       “Like any other general rule, the rule of exhaustion of administrative remedies is subject to some exceptions, although we have recognized such exceptions only infrequently and only for narrowly defined purposes.” LaCroix v. Board of Education, supra, 199 Conn. 79. The plaintiff does not concede that she has failed to exhaust her administrative remedies as to counts one and three of her amended complaint because her position is that those remedies do not apply to those counts. Thus, she points us to no recognized exception to the exhaustion doctrine that could be used to save those counts from dismissal. Moreover, we are unable to find such an exception that would apply to those counts.

       We hereinafter refer to the remaining counts as they are numbered in the second amended complaint.

       General Statutes § 10-151 (a) (7) provides: “The term ‘school month’ means any calendar month other than July or August in which a teacher is employed as a teacher at least one-half of the student school days.”

       See footnote 6.

       The defendants’ motion for summary judgment was a proper way to test the legal sufficiency of this count of the second amended complaint. See Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1971).

       We note that our reasoning as to why the plaintiff failed to state a cause of action in the second count of her second amended complaint is different from the reasoning advanced by the trial court. See Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992).


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DANVOIR TEEL
    (14868)
    Foti, Lavery and Landau, Js.
    Argued May 30
    officially released August 13, 1996

      Howard T. Owens, Jr., for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Margaret E. Kelly, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant, Danvoir Teel, appeals from the judgment of conviction, rendered after a jury trial, of seven counts of conspiracy to sell narcotics in violation of General Statutes §§ SSa-48 and 21a-278 (b), two counts of conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 53a-48 and 21a-278 (b), and two counts of conspiracy to possess narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes §§ 53a-48 and 21a-278a (b). On appeal, the defendant claims that the trial court improperly (1) admitted opinion testimony of a state’s witness, and (2) presided over the trial after participating in plea negotiations. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On April 14, 1994, the Bridgeport police department conducted a surveillance of the courtyard at the Marina Apartments and observed the defendant in the company of Phillip Rorie. Detective Thomas Russell observed several persons enter the courtyard and hand money to the defendant. Each time, after receiving the money, the defendant would point to Rorie. On the defendant’s signal, Rorie would retrieve a plastic bag containing cocaine from an electrical box and then would distribute the cocaine to the buyer. The defendant and Rorie repeated this course of conduct throughout the morning. On the basis of their observations of this conduct, the police arrested the defendant and Rorie and recovered forty-four glassine envelopes of cocaine. The defendant was charged and later released on bail.

On June 15, 1994, the Bridgeport police department again conducted a surveillance at the Marina Apartments and observed the defendant and Andre Smith shooting dice in the courtyard. On this occasion, Officer William Bailey, Jr., observed several persons enter the courtyard and hand money to the defendant . After receiving the money, the defendant would point to Smith. On the defendant’s signal, Smith would retrieve a brown paper bag containing cocaine and crack cocaine from a steel grate and would then distribute the cocaine to the buyer. On the basis of their observations of this conduct, the police arrested the defendant and Smith and recovered twenty packages of cocaine and one vial of crack cocaine.

By amended information, which included the offenses arising on April 14 and June 15, the state charged the defendant with seven counts of conspiracy to sell narcotics, two counts of conspiracy to possess narcotics with intent to sell, and two counts of conspiracy to possess narcotics with intent to sell within 1500 feet of a public housing project. At trial, the jury returned a guilty verdict on all counts. This appeal followed.

I

In his first claim, the defendant argues that the trial court improperly permitted Russell to testify that the defendant’s witness, Rorie, lacked veracity. The defendant argues that Russell’s testimony was inadmissible first, because his opinion was not based on personal knowledge and, second, because it did not entail Rorie’s reputation in the community. The defendant also asserts Rorie’s reputation was not placed in issue.

At trial, the court allowed Russell to proffer his opinion of Rorie, which Russell based on hearing Rorie testify under oath at an asset forfeiture hearing. Defense counsel objected to Russell’s opinion testimony, initially by making a general objection and later on hearsay grounds. On appeal, however, the defendant argues that the state failed to lay a proper foundation for the opinion testimony, in that the opinion was not based on Rorie’s reputation within the community or from Russell’s personal knowledge. The state contends that the defendant’s claim was not preserved at trial and, even if the claim were properly preserved, the opinion testimony was properly admitted.

Our review of the record reveals that the issue of lack of proper foundation was not raised by the defendant before the trial court. “Ordinarily we will not review a claim that was not distinctly raised before the trial court.” State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). The defendant has not requested that we review this claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” State v. Rogers supra, 787; see State v. Casado, 42 Conn. App. 371, 374-75, 680 A.2d 981 (1996); State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). We decline, therefore, to review the defendant’s claim.

II

The defendant next claims that the trial court violated Canon 3 of the Judicial Code of Conduct by presiding over the trial after participating in plea negotiations and, thus, lacked impartiality. The defendant concedes that his claim is unpreserved, but seeks appellate review pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, supra, 213 Conn. 239-40.

The trial judge presided over a pretrial hearing at which the court questioned the defendant regarding his predicament. The court also impressed on the defendant the consequences of rejecting the state’s plea bargain offer. The defendant rejected the plea bargain and elected a jury trial. The trial judge presided over the trial and the sentencing.

Although the defendant relies on Canon 3 of the Judicial Code of Conduct, a claim of impartiality is more appropriately brought pursuant to Practice Book § 997. Practice Book § 997 provides in pertinent part: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. ...” “It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety.” State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987). In State v. Weber, 6 Conn. App. 407, 413, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986), we stated that compliance with the requirements of Practice Book § 997 is mandatory and a condition precedent to a hearing on a judge’s disqualification. See State v. Safford, 22 Conn. App. 531, 537, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990).

Here, however, the defendant failed to make a motion for disqualification pursuant to § 997. At no time did the defendant, either orally or in writing, move the court to disqualify itself. As a result of the defendant’s failure to comply with § 997, the record is inadequate for appellate review. We conclude, therefore, that the defendant’s claim fails to satisfy the first prong of the Evans-Golding test. Additionally, the defendant does not request, nor do the facts warrant, plain error review pursuant to Practice Book § 4185.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who . . . sells . . . [or] possesses with the intent to sell . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years .... The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . . .”

       General Statutes § 21a-278a (b) provides in pertinent part: “Any person who violates section . . . 21a-278 by . . . selling . . . [or] possessing with the intent to sell . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising ... a public housing project . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section . . . 21a-278. . . .”

       During the state’s direct examination of Russell, the following colloquy took place:
      “[Prosecutor]: Detective Russell, do you know Phillip Rorie?
      “[Russell]: Yes.
      “[Prosecutor]: Okay. And how do you know him?
      “[Russell]: I had another investigation pertaining—
      “[Defense Counsel]: I’m going to object to this, Your Honor.
      “The Court: Well, I will overrule the objection.
      “[Prosecutor]: It’s connected with this incident.
      “[Prosecutor]: How do you know Phillip Rorie, Detective Russell?
      “[Russell]: I had another investigation where I filed an asset forfeiture where we had seized his money and I had to testify in court on the forfeiture.
      * **
      “[Prosecutor]: As a result of that hearing, did you have an opinion as to Mr. Rorie’s truthfulness?
      “[Defense Counsel]: I’m not going to allow that. Objection, Your Honor.
      “The Court: There’s nothing wrong with that question. Did Rorie testify?
      “[Prosecutor]: I’m sorry?
      “The Court: You have to ask him does he have some basis to have formed an opinion.
      “[Prosecutor]: Do you have a basis—some basis to form an opinion?
      “[Russell]: Yes.
      “[Prosecutor]: And did Mr. Rorie testify at that hearing?
      “[Russell]: Yes.
      “[Prosecutor]: And based upon that testimony, do you have an opinion as to whether or not Mr. Rorie is a truthful person?
      “[Defense Counsel]: I’m going to object to that, Your Honor.
      “The Court: It’s a proper question under our rules. It’s his opinion. It’s based on either general reputation or in Connecticut, which is an exception to the general rule, a person may give testimony as to a person’s—his opinion of a person’s reputation for truthfulness. It’s a matter for a jury to accept or reject. It’s permissible testimony.
      “[Prosecutor]: You do have an opinion?
      “[Russell]: Yes. “[Prosecutor]: What is your opinion based on?
      “[Russell]: He lied.”
      At the conclusion of Russell’s testimony, defense counsel renewed his objection as follows: “Your Honor, if I may, I just want to put on the record, I wanted to renew my objection. I know you already ruled. It seems to me that the opinion of—the officer’s opinion of what—what was his name—Detective Russell’s opinion that he lied, seems to me that—a further objection, I believe, on the basis that it would be hearsay as well in that he’s relying on hearsay to formulate that opinion. I can’t cross-examine that hearing that he had. In other words, he’s basing it on some other hearing. That was an asset forfeiture. I don’t have the transcript. It’s impossible for me to find out and delve into it. Even if I could, it would probably be collateral. It seems to me, in addition to the fact that he’s giving an opinion on the veracity of the individual, he’s doing it on almost exclusively hearsay. I just wanted to put that on the record.”

       Even if we were to consider the reviewability of this claim under Golding, it would fail to satisfy the second prong of Golding. See footnote 6. It is well established that “[r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” (Internal quotation marks omitted.) State v. Reddick, 33 Conn. App. 311, 331-32, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994); State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review. See State v. Robinson, 227 Conn. 711, 741 n.22, 631 A.2d 288 (1993).

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.”

       The following colloquy took place at the pretrial hearing:
      “[Prosecutor]: Your Honor, I offered two and a half years flat on one of the cases and I have been informed that Mr. Teel is not inclined to enter a plea at this time.
      “[Defense Counsel]: That’s correct, Your Honor.
      “[The Court]: Alright, Mr. Teel. You are going to go on the jury list. I want you to fully understand the situation. You are charged with two crimes. Your exposure in this case, if you are convicted, is twenty-two years. You have been offered two and one-half. You have a perfect right to a trial. If you lose in that trial, you the stand the risk whatever the judge is going to feel is an appropriate sentence based on the circumstances of your prior history. You have until today. If the plea does not go down today, that offer will never ever reappear. You will go on trial. If the judge wants to give you fifteen years when it is all over, that’s what you face. I just want to make sure you understand the offer has been made. I think your attorney thinks it is fair. You have a right to reject it. I just want you to understand the consequences of that rejection. I will put your case down for the twentieth, next Monday. You are not going to come back on that day and say, I will take the two and a half. The two and a half is gone today. You will go on trial on Monday and whatever the consequences are, those will be the consequences.”

       In its reply brief, the defendant for the first time requests plain error review. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995). The defendant relies on State v. Washington, 39 Conn. App. 175, 664 A.2d 1153 (1995), as support for his claim that the trial court acted improperly by presiding over the pretrial hearing and the trial. Washington, however, is inapposite. In Washington, this court sua sponte raised the issue of whether the trial court improperly presided over the defendant’s revocation of probation hearing after the defendant rejected the plea bargains that the court offered from the bench. Id., 176. In Washington, the trial court actively engaged in plea negotiations with the defendant. See id., 177-78 n.5. Here, however, no such plea negotiations took place.


text:
    STATE OF CONNECTICUT v. ROBERT L. GARRETT
    (14385)
    Foti, Landau and Schaller, Js.

      Argued February 14
    officially released August 13, 1996

      Kelly J. Goulet, deputy assistant public defender, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and William G. Bumpus, former assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § SSa-lCC and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal directed to the charge of burglary in the third degree based on his assertion that the state failed to prove an essential element of the crime beyond a reasonable doubt, (2) deprived him of his right to a fair trial by permitting the state to engage in prosecutorial misconduct during closing argument, and (3) instructed the jury on reasonable doubt thereby depriving him of his federal right to due process. We affirm the judgment of the trial court.

The juiy could reasonably have found the following facts. On January 30, 1992, at approximately 8 p.m., members of the Hartford police department were dispatched to Blonder’s Used Auto Parts at 741 Windsor Street in response to an activated burglar alarm. Harry Satterfield, the first officer to arrive, found the front and side doors of the building secure. As he approached the rear loading dock, however, Satterfield observed the defendant open an overhead door from inside the building and step onto the loading dock. Several tires and wheel rims were stacked inside next to the door.

Satterfield shined his flashlight on the defendant, drew his service revolver and ordered the defendant to halt. The defendant yelled, “It’s the cops,” and ran back inside the building, closing the overhead door behind him. Within minutes, other officers arrived and surrounded the building. As several officers searched inside the building, another officer observed the defendant run from the direction of the rear of the building and crawl under a parked storage trailer. Thereafter, the defendant was apprehended and identified by Satterfield as the person he observed on the loading dock.

The jury convicted the defendant on October 5,1992, and the defendant did not take a direct appeal from the judgment. In December, 1993, the defendant, pro se, filed a petition for a writ of habeas corpus alleging that, due to ineffective assistance of counsel, no appeal had been filed on his behalf. After counsel was appointed to represent the defendant, an amended petition with the same allegation was filed. On December 7, 1994, the habeas court accepted a stipulation in which the state and the defendant agreed that the defendant’s right to appeal should be restored and rendered judgment in accordance with the stipulation, and this direct appeal was filed. In State v. Phidd, 42 Conn. App. 17, 597 A.2d 846, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996) (defendant sought certification to challenge decision on merits of appeal), we held that where a habeas petitioner raises a claim of ineffective assistance of appellate counsel arising out of a failure of counsel to file an appeal and the facts, either by evidence or stipulation, support a finding that the petitioner’s appellate rights were unconstitutionally compromised by counsel's ineffective assistance, the habeas court may order the restoration of petitioner’s appellate rights as relief in the habeas action. See State v. Daniels, 42 Conn. App. 445, 681 A.2d 337 (1996)

Because we adhere to the strong judicial policy embodied in the doctrine of stare decisis, we do not address the issue decided by Phidd. Rather, we follow our previous holding. Pursuant to Practice Book § 4135, however, we find that the following issues decided by Phidd involve substantial questions of law that should be reviewed by the Supreme Court: (1) whether a habeas court has authority to restore appellate rights, and (2) whether, if such authority exists, a habeas court may restore appellate rights based on its acceptance of a conclusory stipulation by the parties. We, therefore, request certification of these questions.

I

The defendant first claims that there was insufficient evidence adduced at trial to establish an essential element of the crime of burglary. Specifically, the defendant argues that the state failed to prove that he entered the building unlawfully as specifically alleged by the state in its response to the defendant’s motion for a bill of particulars. As a subsidiary matter, the defendant further asserts that the precise language employed by the state precluded the possibility that he could be convicted of burglary based on evidence that he remained in the building unlawfully.

The following additional facts are relevant to the resolution of this claim. On the date of the burglary, an employee of Blonder’s, Scott Parker, closed the business at approximately 7 p.m. Prior to leaving, Parker checked the doors and activated the security system, which includes motion detectors and perimeter devices. At that time, the defendant was not in the building. Later, as the interior of the building was searched, police officers stationed outside observed two other individuals exit the building through a rear second floor window, climb onto a roof and jump over a nearby fence. These individuals fled the area and were not apprehended. When the defendant was apprehended, he was wearing a shoulder bag that contained several hand tools including pliers, an awl, a screwdriver and wrenches.

“When reviewing sufficiency of tíre evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . In this process of review, the probative force of the evidence is not diminished because it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted.) State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995).

“In determining whether the defendant is guilty, [i]t is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. ... It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Furthermore, in considering the evidence introduced in a case, [jjuries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted; internal quotation marks omitted.) State v. Roy, 38 Conn. App. 481, 488-89, 662 A.2d 799 (1995).

From the facts established by the evidence, and the reasonable inferences drawn therefrom, the jury could reasonably have concluded that the defendant entered the building unlawfully. The jury heard testimony that the business closed for the day at 7 p.m., the alarm system was activated at that time, the alarm sounded one hour later at 8 p.m., and the defendant was apprehended as he ran from the rear of the building. The evidence also established that the defendant possessed various tools that could be used to force entry and that at least two other individuals eluded the police by exiting the building through the second floor window. From these facts, the jury could reasonably have inferred that the defendant and the other two men entered the building through the rear second floor window after the business had been closed, thereby activating the security alarm. Thus, the evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant entered the building unlawfully.

Nevertheless, the defendant argues that the state cannot prove that he entered the building unlawfully because there was “no evidence presented as to broken windows or an illegal forced entry.” We are unpersuaded. Forcible entry, with or without damage, is not an element of burglary. See, e.g., State v. Gelormino, 24 Conn. App. 563, 571-72, 590 A.2d 480, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991); State v. Kohlfuss, 152 Conn. 625, 637-38, 211 A.2d 143 (1965). Rather, General Statutes § 53a-100 (b) provides that “[a] person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” Here, the evidence clearly established that Satterfield observed the defendant inside Blonder’s at a time when the building was not open to the public. Moreover, the manager of Blonder’s, Brian Boissoneault, testified that the defendant “had no right to be in the building at 8 p.m. after it had been closed.”

Because we conclude that the evidence supports the rational conclusion that the defendant entered the building unlawfully, as specifically alleged in the bill of particulars; see State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988); the defendant’s assertion that the evidence could have yielded the contrary inference that he entered the building lawfully during business hours and remained there unlawfully—which the state failed to allege in the bill of particulars—is unavailing. See State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994).

II

In his second claim, the defendant asserts that he is entitled to a new trial because, several times during closing argument, the prosecutor made improper comments that constituted a pattern of blatantly egregious behavior. The defendant contends that the prosecutor improperly injected extraneous matter into the trial and appealed to the emotions and prejudices of the jury by focusing attention on the issue of race and by asking the jury “to do its job.”

Although the defendant failed to object to any of the challenged remarks at trial, he seeks review pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 527 A.2d 823 (1989). In the alternative, the defendant seeks review under the plain error doctrine pursuant to Practice Book § 4185. Because the record is adequate for review and the defendant has alleged a claim of constitutional magnitude by asserting that the alleged misconduct deprived him of a fair trial; see State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987); we will examine the defendant’s claim under Golding.

At the outset, we note from the record that, during jury voir dire, defense counsel explored the issue of race when he posed questions to several venirepersons to determine how they would perceive the defendant based on his being black. Once the jury was selected and the trial began, the issue of race was not mentioned by the parties until closing argument when the prosecutor made the challenged remarks. The defendant failed to request curative instructions with respect to any of the alleged improprieties, nor did he move for a mistrial.

“[P]rosecutorial misconduct can occur in the course of closing argument. State v. Williams, [supra, 204 Conn. 539], In order to deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996).

In order to determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). In conducting our analysis, “we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372 (1996).

We first consider whether it was improper for the prosecutor to implore the jury to “do its job.” Our review of the record reveals that, when the challenged remarks are read in the context of the state’s entire closing argument, they did not invite the jury to abdicate a rational appraisal of the evidence and to decide the case on its emotions. See State v. Williams, supra, 204 Conn. 546. Rather, the comments, which were intended to summarize the evidence presented by the state, emphasize the weakness in the defendant’s assertion that the police arrested the wrong man and reminded the jury to reach a verdict based on the evidence, and were well within the boundaries of zealous and legitimate argument. “[I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. ...” (Citations omitted; internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990). We conclude, therefore, that the prosecutor’s request to the jray to “do its job” was not improper.

We reach a different conclusion, however, when we examine the defendant’s claim of misconduct concerning the prosecutor’s comments related to race. The defendant contends that the comments were improper because they focused the jurors’ attention on the issue of race thereby diverting their attention from their duty to decide the case on the evidence. By contrast, the state asserts that the prosecutor’s remarks were not improper because they were solely intended to deter the jury from deciding the case on the basis of racial sympathy or prejudice. While we agree with the defendant that the comments were improper, we cannot conclude, under the circumstances of this case, that the misconduct deprived the defendant of a fair trial.

Our review of the record discloses that, although the prosecutor uttered the words “black” and “blackness” a total of six times and the word “race” twice, the comments were restricted to a very brief segment of the state’s entire closing argument. Thus, the improper remarks were relatively infrequent and did not pervade the entire trial. For these reasons, and because the comments were not intended to disparage the defendant, they were not representative of a blatant and egregious pattern of misconduct that either “deprive [d] the defendant of a fair trial; see State v. Golding, supra, 213 Conn. 239—40; or otherwise implicate [d] the fairness and integrity of and public confidence in the judicial proceedings. See State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995).” Slate v. Chance, 236 Conn. 31, 64, 671 A.2d 323 (1996). We conclude, therefore, that the racial remarks did not cause substantial prejudice to the defendant and further review of the defendant’s claim of prosecutorial misconduct pursuant to Golding is unwarranted. Id.; State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991); State v. Hanks, 39 Conn. App. 333, 347, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995); State v. Boyd, 36 Conn. App. 516, 525-26, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356, cert denied, 516 U.S. 828, 116 S. Ct. 98, 133 L. Ed. 2d 53 (1995).

Ill

The defendant finally claims that the trial court committed reversible error by instructing the jury that “[a] reasonable doubt, therefore, is a doubt for which a valid reason can be given.” The defendant contends that, because this instruction decreased the state’s burden of proof, he was deprived of his federal constitutional rights of due process and a fair trial. The defendant failed to preserve this claim at trial and seeks review under Golding.

This issue is controlled by our Supreme Court’s holding in State v. Ellis, 232 Conn. 691, 657 A.2d 1099 (1995). In Ellis, the following portion of the jury instructions was challenged: “ ‘A reasonable doubt is a doubt for which a valid reason can be assigned.’ ” Id., 705. On review, the Supreme Court stated that “[w]e have repeatedly and consistently upheld identical or substantially similar instructions on reasonable doubt. . . . [The] instruction did not decrease the state’s burden of proof . . . .” Id. The Ellis court concluded, therefore, that the trial court’s instruction on reasonable doubt was not constitutionally infirm. Id., 706.

Here, because the trial court’s instruction on reasonable doubt is nearly identical to the challenged instruction given in Ellis, and because we are bound by the decisions of the Supreme Court; State v. Goodman, 35 Conn. App. 438, 442, 646 A.2d 879, cert. denied, 231 Conn. 940, 653 A.2d 834 (1994); we conclude that the defendant has failed to allege a claim of constitutional magnitude as required by the second prong of Golding. Accordingly, we will not review the merits of his claim. State v. Ortiz, 40 Conn. App. 374, 381, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-167a provides in pertinent part: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer ... in the performance of his duty.”

       On January 12, 1995, the trial court granted the defendant’s motion for a waiver of fees and the appeal was filed within the ensuing twenty day period.

       We note that absent this request, because of the procedural posture of Phidd, certification of those issues via Practice Book § 4126 is doubtful inasmuch as both the state and the defendant agreed and stipulated to the action of the habeas court. Although the opinion in this case agrees with both the reasoning and the result in Phidd, and while the appellate panel in Phidd continues to adhere to the correctness of that decision, the Phidd panel nonetheless joins in the request of the panel in this case that the Supreme Court certify this case pursuant to Practice Book § 4134 et seq. because of the importance of this issue to both appellate courts. See State v. Daniels, supra, 42 Conn. App. 445.

       The defendant asserts that, although a person can be convicted of burglary when he either enters or remains in a building unlawfully, the state was precluded from introducing any evidence tending to prove that the defendant may have entered the building lawfully during business hours and remained there unlawfully after the business was closed. Because we conclude that there was sufficient evidence that the defendant entered the building unlawfully, we need not address the question of whether his conviction resulted from evidence that he remained in the building unlawfully.

       We decline the defendant’s invitation to review whether the waiver rule should be rejected. Because the defendant elected to introduce evidence, the appellate review encompasses the evidence in toto, and is not limited to the evidence in the state’s case-in-chief. State v. Siminio, 200 Conn. 113, 118, 509 A.2d 1039 (1986); State v. Rutan, 194 Conn. 438, 440-44, 479 A.2d 1209 (1984).

       The defendant complains about the following remarks by the prosecutor directed to race: “But there is one more issue that needs to be addressed and that is the issue of race. This issue was raised by defense counsel during voir dire. It was raised with each juror except for one. Black, his blackness had nothing to do with him being here. He was not arrested because he is a black man. Do not allow him to hide behind his blackness, it does not give him a right to commit crimes. We have a black police officer who saw him inside the building, we have a black prosecutor here, this again is not about race, do not allow him to hide behind that.”

       The defendant asserts that the following comments by the prosecutor improperly appealed to the juror’s emotions: “Well, the state has proved the three counts beyond a reasonable doubt, the state has done its job, now it’s time for you to do yours. The state contends that the evidence clearly has proved the defendant’s guilt beyond a reasonable doubt. It’s time for you to do your job and return a verdict of guilty on all three counts. . . . I mean there are some incredible jumps that this wrong man defense is asking you to take. And I hope you use your common sense and you don’t fall for this. ... Do your job, do your duty, find the defendant [guilty] on all three counts. Thank you.”

       Although we conclude that the racial comments were not so egregious as to deprive the defendant of a fair trial, this case presents a serious question as to whether we should invoke our supervisory power to vacate the judgment of conviction and order a new trial to deter similar misconduct. See State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984). Our decision not to do so in this instance should not be misconstrued as a tacit approval of the prosecutor’s conduct. We do not condone such behavior.


author: PER CURIAM.

text:
    YANTIC VOLUNTEER FIRE COMPANY ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (15337)
    O’Connell, Spear and Hennessy, Js.
    Submitted on briefs June 10
    officially released August 13, 1996

      John A. Cotter filed a brief for the appellants (plaintiffs).

      Mitchell W. Pearlman, general counsel, and Victor Perpetua and Barbara E. Housen, commission counsel, for the appellee (named defendant).
   PER CURIAM.

The plaintiffs, five volunteer fire companies, appeal from the trial court’s judgment dismissing their administrative appeal from a freedom of information commission (FOIC) decision. The plaintiffs claim that the trial court (1) improperly determined that the plaintiffs are public agencies within the meaning of General Statutes § l-18a (a), (2) improperly determined that the plaintiffs’ records should be subject to public disclosure, and (3) applied an incorrect standard of review. We affirm the judgment of the trial court.

Cindy Ouellette and the Taxpayers Association of Norwich requested that the plaintiffs provide them with copies of the their charters, bylaws, policies, procedures, and the names and addresses of their active members. After the plaintiffs denied or ignored these requests, Ouellette and the Taxpayers Association complained to the FOIC. The FOIC heard the matter as a contested case and concluded that the plaintiffs were the functional equivalents of public agencies within the meaning of § l-18a (a) and therefore subject to the disclosure requirements of the Freedom of Information Act, General Statutes § 1-7 et seq.

The plaintiffs appealed to the trial court pursuant to the Uniform Administrative Procedure Act. General Statutes § 4-183. Following a hearing on the record, the trial court dismissed the appeal, whereupon the plaintiffs appealed to this court in accordance with General Statutes § 4-184.

The plaintiffs’ first two claims are subsumed under the central question of whether, under the circumstances of this case, the trial court correctly concluded that the FOIC’s determination that the plaintiffs are the functional equivalents of public agencies is reasonably based on the evidence.

We recognize that volunteer fire companies in this state are individually organized and that the FOIC and the trial court decided this case on the facts pertaining particularly to these plaintiffs. The FOIC made specific findings relative to the financial relationship between the plaintiffs and the city of Norwich.

We are persuaded by our examination of the record and briefs of the parties that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Yantic Volunteer Fire Co. v. Freedom of Information Commission, 44 Conn. Sup. 230, 682 A.2d 156 (1996). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Federal Home Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 788, 667 A.2d 806 (1995); State v. Mobley, 33 Conn. App. 103, 105, 633 A.2d 726 (1993) , cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

The plaintiffs’ remaining issue was not properly briefed. “ ‘Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.’ ” Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994) .

The judgment is affirmed.

       The plaintiffs are the Yantic volunteer fire company, East Great Plain volunteer fire company, Taftville volunteer fire company, Occum volunteer fire company, and Laurel Hill volunteer fire company.

       General Statutes § l-18a (a) provides: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.”

       “It is found that the city of Norwich (hereinafter ‘city’) funded the respondent fire companies to the tune of $337,000.00 for the fiscal year 1993-1994.
      “[1] With respect to the respondent Occum fire company, it is found that during the fiscal year 1993-1994 the city provided the fire company with funding totalling approximately $48,616.00. It is also found that the city owns the building which houses the fire company and funds expenses of the fire company including fuel, telephone, water, gas, electric, pagers, building and ground maintenance, and materials and supplies.
      “[2] With respect to the respondent Taftville fire company, it is found that the city funds 95% of the respondent’s budget. It is also found that the city funds such expenses of the fire company including materials and supplies, fuel, telephone, water, gas, electric, building and ground maintenance, portable radios, computers and pagers.
      ‘■[3] With respect to the respondent Yantic fire company, it is found that the city funds such expenses of the fire company including materials and supplies, fuel, telephone, water, gas, electric, building and ground maintenance, portable radios, computers pagers, auto supplies and maintenance, radio service, equipment and furniture maintenance, fire hose and fittings, and firemens’ gear. It is also found that over the last five years the respondent received city funding of approximately $100,000 to purchase equipment. In addition, the respondent’s fire company is housed on property owned by 1he city.
      “[4] With respect to the respondent Laurel Hill fire company, it is found that during the fiscal year 1993/1994 the city funded the respondent to the tune of $34,520.00 of which $6,000.00 was allocated for the purchase of hose and fittings, $30000.00 for repairs and maintenance of building and $4000.00 to firemen training. Among the other expenses funded by the city were building and ground maintenance, water, gas, electric, fuel, telephone, equipment and furniture maintenance, radio service and auto supplies and maintenance.
      “[5] With respect to the respondent East Great Plains fire company, it is found that during the fiscal year 1993/1994 the city funded the respondent to the tune of $85,000.00 of which $15,000.00 was allocated for auto supplies and maintenance, $5000.00 for building and ground maintenance, $5000.00 for portable radios and $2500.00 for physical fitness equipment. Among the other expenses funded by the city were fuel, water, gas, electric, telephone, smoke ejectors, hazardous material equipment, maintenance of station, equipment and furniture maintenance, radio service, auto supplies and maintenance. In addition, the city owns the building which houses the fire company.”


author: SPEAR, J.

text:
    WILLIAM BARETTA v. T & T STRUCTURAL, INC.
    (14549)
    O’Connell, Spear and Hennessy, Js.
    Submitted on briefs June 10
    officially released August 13, 1996

      Glenn T. Terk filed a brief for the appellant (defendant).
   SPEAR, J.

The defendant lessee, T & T Structural, Inc. (T & T), appeals from the trial court’s judgment in favor of the plaintiff lessor in an action for the recovery of rent. On appeal, the defendant claims that the trial court improperly rendered judgment for the plaintiff in the amount of $1800 because the plaintiff failed to introduce evidence of such damage. The defendant also claims on its counterclaim for constructive eviction that the trial court improperly found that the defendant failed to meet its burden of proof. We reverse the trial court’s judgment on the plaintiffs complaint and affirm the judgment on the defendant’s counterclaim.

The memorandum of decision and exhibits reveal the following facts. On July 12, 1989, the defendant entered into a written lease with the plaintiff regarding premises located at 172 Commerce Street in East Berlin. The lease, which provided for monthly rent of $900, was for a term of five years and expired on July 13,1994.

On February 12, 1993, Carlo Tavarozzi, the defendant’s president, notified the plaintiff by letter that the defendant would be relocating. The letter provided in part: “Per our conversations of February 10th and February 11th, we are presently negotiating to relocate. If negotiations for. the other building are completed successfully, we will be vacating these premises by April 12, 1993, therefore our final rent payment will be made on or about March 13, 1993. We are aware that the lease agreement expires July 12,1994, but we expect that you will impose no penalties on us for moving sooner.” Other than the reference to previous conversations with the plaintiff, the letter did not specifically state the grounds for vacating the premises.

On February 18, 1993, the plaintiffs attorney informed the defendant that it was expected to comply with the terms of the lease. On March 8,1993, Tavarozzi again notified the plaintiff by letter that T & T would be vacating the premises. In that letter, Tavarozzi specifically stated that the cause of the defendant’s move was the odors emanating from the plaintiffs meat packaging facility, the inordinate number of dead flies in the windows and light fixtures, the inadequate air conditioning, and the potholes in the parking lot. On April 13, 1993, the defendant vacated the premises and leased office space in a Rocky Hill office building owned by Tavarozzi.

On July 7, 1993, the plaintiff commenced an action for the recovery of rent. In his complaint, the plaintiff alleged that the defendant was responsible for rent in the amount of $900 per month for each of the remaining fifteen months of the lease. By way of special defense, the defendant pleaded, inter alia, the plaintiffs failure to mitigate damages and constructive eviction.

The trial court found for the plaintiff on the complaint and the counterclaim and awarded the plaintiff $1800 in damages. The court found that the defendant proved that the plaintiff failed to mitigate damages but failed to meet its burden of proof on constructive eviction and lack of consideration. This appeal followed.

I

“On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous or whether the decision is otherwise erroneous in law. . . . Determining whether a trial court’s decision is clearly erroneous involves a two part function: where the legal conclusions of the court are challenged we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Haynes Construction Co. v. Cascella & Son Construction, Inc., 36 Conn. App. 29, 32, 647 A.2d 1015, cert. denied, 231 Conn. 916, 648 A.2d 152 (1994).

The defendant first claims that the trial court improperly rendered judgment for the plaintiff in the amount of $1800 because the plaintiff introduced no evidence on the issue of damages. We agree.

Generally, a finding of fact will not be overturned unless it is clearly erroneous in light of the evidence in the entire record. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994). “Afinding of fact is clearly erroneous when there is no evidence in the record to support it . . . .” (Citation omitted.) Id. In this case, there is no evidence in the record to support the trial court’s award of $1800. As such, the award is clearly erroneous. The transcript and the record are devoid of any evidence to support the trial court’s factual finding that the final rental payment to the plaintiff was made in March, 1993. There is no evidence as to the months for which the plaintiff received or did not receive rental payments from the defendant, the amount of the last payment, or the period covered by the last payment. Consequently, we conclude that the trial court’s finding that the plaintiff was entitled to damages of $1800 is clearly erroneous.

II

The defendant next claims that the trial court improperly found that the defendant failed to meet its burden of proof on its counterclaim of constructive eviction. We are unpersuaded.

“[A] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant’s promise to pay rent.” (Internal quotation marks omitted.) Conference Center Ltd. v. TRC, 189 Conn. 212, 220, 455 A.2d 857 (1983). In addition to proving that the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord, (2) the tenant vacated the premises because of the problem, and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem. Thomas v. Roper, 162 Conn. 343, 349, 294 A.2d 321 (1972).

The factual findings of the trial court are subject to our well established clearly erroneous standard. See Haynes Construction Co. v. Cascella & Son Construction, Inc., supra, 36 Conn. App. 32. Upon reviewing the evidence, we conclude that the trial court’s finding that the defendant failed to meet its burden of proving constructive eviction is not clearly erroneous.

First, the trial court found that the defendant failed to prove that the premises were untenantable. The trial court found that the testimony of the defendant’s witnesses, including that of the health director, did not support this element of constructive eviction. The health director testified that he inspected the premises at the defendant’s request in March, 1993, and found that the premises were indeed habitable. We cannot conclude that this finding is clearly erroneous.

Second, the trial court found that the defendant did not vacate the premises because of the problems with the odor, flies, air conditioning and parking lot. In addressing this element, the court noted that Tavarozzi’s letter dated February 12, 1993, failed to mention the specific problems on which the defendant relied in its constructive eviction claim. Even though the second letter addressed the problems of the odor and flies, the trial court, as trier of fact, determined who and what to believe and the weight to be accorded the evidence. “The sifting and weighing of evidence is peculiarly the function of the trier. [Njothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party. . . .” (Citations omitted; internal quotation marks omitted.) Cook v. Bieluch, 32 Conn. App. 537, 549-50, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). We conclude, therefore, that the trial court properly determined that the defendant failed to meet its burden of proof.

Our conclusion that the trial court properly found that the defendant failed to meet its burden of proving constructive eviction also disposes of the defendant’s damage claim.

The judgment for the plaintiff on the complaint is reversed and the case is remanded with direction to render judgment for the defendant on the complaint. The judgment is affirmed as to the defendant’s counterclaim.

In this opinion the other judges concurred.

       At the time the written lease was executed, the defendant was already in possession of the premises pursuant to an oral lease entered into on November 14, 1988. The oral lease involved temporary space while new space was being built by the plaintiff.

       The defendant leased office space for its structural engineering firm. The plaintiffs meat packing business was also located on the premises.

       The defendant also pleaded constructive eviction as a counterclaim.

       The letters signed by Tavarozzi on behalf of T & T merely stated the defendant’s intent to make the last rental payment in March, 1993. The plaintiff offered no evidence that the last payment was actually made in March.