text:
    MARY BRENNAN v. TOWN OF FAIRFIELD
    (AC 18969)
    O’Connell, C. J., and Landau and Daly, Js.

      Argued January 27
    officially released June 13, 2000

      Brenden P. Leydon, with whom was Francis J. Ficarra, for the appellant (plaintiff).

      Charles W. Fleischmann, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LANDAU, J.

In this personal injury action, the plaintiff, Mary Brennan, appeals from the judgment of the trial court rendered following the granting of the motion to dismiss filed by the defendant, the town of Fairfield (town). On appeal, the plaintiff claims that the court improperly dismissed the action for lack of subject matter jurisdiction on the ground that she had not provided timely notice of the alleged incident. In its counterstatement of the issue, the town claims that the court properly dismissed the action because the plaintiff did not comply with the requirements of General Statutes § 13a-149, as she did not give notice to a selectman or the town clerk within ninety days of the alleged occurrence. We agree with the town and affirm the judgment of the trial court.

The following facts and procedural history are pertinent to our resolution of this appeal. The plaintiff returned her complaint against the town on December 29, 1995.:! The complaint alleged that the plaintiff suffered injuries and damages as a result of a fall on a defective sidewalk under the control of the town. The complaint is in one count, raising a highway defect claim pursuant to § 13a-149. The operative pleading, however, is an amended complaint dated November 6, 1996, in which the plaintiff alleged that her injury occurred on December 19, 1993, and that notice of the incident was duly given to the defendant on March 16, 1994. The town notes that the amended complaint did not allege that notice was given to a selectman or to the town clerk.

The town moved to dismiss the plaintiffs complaint, asserting that the court lacked subject matter jurisdiction because notice was not given to a selectman or to the town clerk within ninety days of the alleged incident, as required by § 13a-149. In an affidavit in support of the town’s motion to dismiss, the town clerk, Marguerite H. Toth, attested that a letter regarding the plaintiffs potential claim was received in the town clerk’s office on March 21, 1994. The letter was addressed to Madeleine E. Costa, town clerk. According to Toth, Costa was not the town clerk and she was not a person known to Toth. The same letter also was addressed to the town’s department of public works.

The plaintiff objected to the motion to dismiss, arguing that because the clerk’s office was closed on Saturday, March 19, 1994, and Sunday, March 20, 1994, it was not possible to give notice until March 21, 1994. In addition, the plaintiff contends that she mailed notice to the town on March 16, 1994, and thus, even if notice was received two days late, it should be considered timely because she mailed the notice before the ninety days expired.

The court granted the town’s motion to dismiss for lack of subject matter jurisdiction because the statutory notice required by § 13a-149 was not received within ninety days of the alleged occurrence. This appeal followed.

“The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . .’’Practice Book § 10-31 (a). “The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Merit, 244 Conn. 296, 308, 709 A.2d 1089 (1998). Our determination of a trial court’s subject matter jurisdiction is a question of law and, therefore, our review is plenary. Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

“It is well established that the state or a city is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases. See Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). Thus, in a case where a government is the defendant, courts do not have subject matter jurisdiction unless such jurisdiction is statutorily conferred. The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain limited circumstances. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979) (sovereign immunity can be waived by appropriate legislative action); State v. Chapman, 176 Conn. 362, 364, 407 A.2d 987 (1978) .... The highway defect statute, § 13a-149, on which the plaintiff depends for her cause of action, is one of those exceptions.

“Where a court’s jurisdiction arises solely from a statutory waiver of sovereign immunity, the statutory provisions must be strictly construed. Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983); Spring v. Constantino, 168 Conn. 563, 570, 362 A.2d 871 (1975). Accordingly, where a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492-93, 400 A.2d 726 (1978). [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Novicki v. New Haven, 47 Conn. App. 734, 738-39, 709 A.2d 2 (1998).

To resolve this appeal, we must construe the language of § 13a-149 to determine whether the letter received in the town clerk’s office on March 21, 1994, conforms to the requirements of the statute. “In deciding this issue, we are guided by well defined principles of statutory interpretation. Statutory construction is a question of law and therefore our review is plenary. . . . Alvarado v. Black, 248 Conn. 409, 414, 728 A.2d 500 (1999). [T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 226, 720 A.2d 235 (1998); State v. Albert, 50 Conn. App. 715, 719, 719 A.2d 1183 (1998), [cert. granted on other grounds, 247 Conn. 954, 723 A.2d 810 (1999)]. In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated. . . . Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998).” (Internal quotation marks omitted.) Mack v. LaValley, 55 Conn. App. 150, 165-66, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999).

“[Statutory language is to be given its plain and ordinary meaning. Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981); see also Carrothers v. Vumbacco, 4 Conn. App. 168, 171, 493 A.2d 259 (1985). A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the [drafters] in enacting the statute is to be derived from the words used. State v. Millstein, 8 Conn. App. 581, 597, 513 A.2d 1253, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986); see also Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Where the court is provided with a clearly written rule, it need look no further for inteipretive guidance. Id.; see also Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 141, 509 A.2d 1050 (1986).” (Internal quotation marks omitted.) Bristol v. Vogelsonger, 21 Conn. App. 600, 604, 575 A.2d 252 (1990). “Courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for adding them.” State v. Nelson, 126 Conn. 412, 416, 11 A.2d 856 (1940).

On appeal, the plaintiff raises a number of arguments and points to case law to support her position that the letter addressed to Costa and the department of public works, which was received in the town’s clerk’s office on March 21, 1994, meets the notice requirements of § 13a-149. That statute provides that “notice . . . shall, within ninety days thereafter be given to a selectman or the clerk of such town . . . .” General Statutes § 13a-149. The plaintiff does not contend that she gave notice to a town selectman.

The plaintiff relies first on the case of Lamberti v. Stamford, 131 Conn. 396, 40 A.2d 190 (1944). The statute at issue in Lamberti, the precursor to our current municipal highway defect statute, required a person injured by means of a defective road to give notice to the city clerk within ten days of the occurrence of injury. There, the plaintiff sustained injuries on December 15 and did not give notice until December 26. The tenth day after the injury was December 25, which is denoted a legal holiday pursuant to another state statute, and the clerk’s office was closed. Our Supreme Court held that the plaintiffs notice was timely where it was given one day after the tenth day, which fell on a legal holiday. Id., 401.

In reaching its conclusion, the Supreme Court observed that “[t]he giving of that notice involves a duty to receive it on the part of the proper municipal official.” (Emphasis added.) Id., 400. In Lamberti, there was no question as to whether notice had been given to the city clerk as directed by the statute. In the case before us, the words of § 13a-149 are quite clear and unambiguous; notice is to be given to the town clerk or a selectman. The letter from the plaintiffs counsel received in the clerk’s office on March 21, 1994, was addressed to Madeleine E. Costa, an individual who was not the town clerk, and the Fairfield department of public works. Neither Costa nor the department of public works is a proper municipal officer designated to receive notice pursuant to § 13a-149. The letter that the plaintiff claims provided notice to the town clerk did not comply with the dictates of the statute.

The plaintiff next relies on Pratt v. Old Saybrook, 225 Conn. 177, 621 A.2d 1322 (1993), for the proposition that the notice provision of § 13a-149 is to be liberally construed. The crux of the plaintiffs position is that because the descriptive elements of the notice requirement are to be liberally construed, the time element must be liberally construed as well. We disagree because the plaintiffs reasoning is contrary to the words of the statute and the rationale of Pratt,.

“Under § 13a-149, the plaintiff must provide statutory notice within ninety days of the accident in order for an action to lie for damages caused by a defective highway that the town must maintain. ‘[T]he notice which the statute prescribes comprehends five essential elements: (a) written notice of the injury; (b) a general description of that injury; (c) the cause; (d) the time [and date], and (e) the place thereof.’ Marino v. East Haven, 120 Conn. 577, 579, 182 A. 225 (1935).” Pratt v. Old Saybrook, supra, 225 Conn. 180.

“[I]t is not without significance that the legislature provided a liberal saving clause in order to validate the content of a defective notice. Section 13a-149 provides that no notice ‘shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town . . . was not in fact misled thereby.’ Although it is limited in terms of the types of defects covered, this clause demonstrates that the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff.” (Emphasis added.) Id, 182-83. The saving clause in the statute is directed to the content of the notice. Nothing in Pratt or § 13a-149 states that a plaintiff is not required to give timely notice as required by the statute. Pratt itself is to the contrary: “Under § 13a-149, the plaintiff must provide statutory notice within ninety days of the accident in order for an action to lie for damages . . . .” Id, 180.

The plaintiff also argues that because § 13a-149 is in derogation of common law, the statute must be strictly construed against the town. This argument finds no support in our law. “Where ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter. ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone. . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived. . . . Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987) (wrongful death action); Vec-chio v. Sewer Authority, 176 Conn. 497, 504-505, 408 A.2d 254 (1979) (appeal from sewer assessment); Hillier v. East Hartford, 167 Conn. 100, 104-105, 355 A.2d 1 (1974) (tort, action against municipalities pursuant to General Statutes § 13a-149) . . . .” (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).

The plaintiffs final claim is that her notice was timely given because the letter from her attorney was given to the United States Postal Service for delivery prior to the ninetieth day after her alleged injury. The plaintiff claims that the trial court improperly relied on Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 56 A.2d 519 (1947), because that case concerned the state highway defect statute, now General Statutes § 13a-144. The plaintiff argues that § 13a-144 is different from § 13a-149 because § 13a-144 must be strictly construed as it does not have a saving clause. As we stated previously, however, the saving clause of § 13a-149 pertains to the adequacy of the description of the occurrence and not to the timeliness element.

Remarkably, in Rapid Motor Lines, Inc., our Supreme Court, in construing General Statutes (1930 Rev.) § 1481, the predecessor to § 13a-144, construed the language of General Statutes (1930 Rev.) § 1420, the predecessor to § 13a-149. “One meaning of the verb ‘give’ is ‘to make over or bestow.’ Another is ‘to deliver or transfer; to . . . hand over.’ The idea of delivery is predominant in other meanings of the word. Webster’s New International Dictionary (2d Ed.). It is obvious from the context of the statute that ‘give’ was not used in the former sense. To accord it the latter meaning is the reasonable and natural interpretation, in view of the purpose of the provision, which, it must be held, is to fix a definite limit upon the time within which notice shall be received by the highway commissioner. Any other construction would give rise to needless and undesirable uncertainty. Under § 1420 of the General Statutes [now § 13a-149], imposing like liability upon municipalities for defects in highways which they are bound to maintain, the clause ‘notice . . . shall . . . be given’ requires a completed act within the number of days prescribed by the statute. Lamberti v. Stamford, supra [131 Conn. 398]. A fortiori must this hold true under § 1481 [now § 13a-144], in which the legislature resorted to the future perfect tense by its use of the words ‘shall have been given.’ It is our conclusion that these words require that the notice shall be delivered to the commissioner within the sixty-day period specified in the statute, and that sending on the sixtieth day a notice which is not received by him until the sixty-first day does not constitute compliance with the statute.” Rapid Motor Lines, Inc. v. Cox, supra, 134 Conn. 237-38. Rapid Motor Lines, Inc., therefore, stands for the rule that giving a letter to the Postal Service on the last day on which notice may be given does not fulfill the requirements of the statute if it is not delivered within the time prescribed.

Furthermore, our Supreme Court concluded that what is known as the mailbox rule under the law of contracts has no place in the construction of the highway defect statute. Id., 239. Here, we conclude, as well, that the plaintiffs giving of a letter to the Postal Service prior to the ninetieth day does not constitute notice as contemplated by § 13a-149 if the town clerk does not receive it within ninety days.

The plaintiff also seeks to persuade us that because service by mail is acceptable in other jurisdictions and by the rules of practice in this jurisdiction; Practice Book § 10-13 (service by mail complete upon mailing); as well as in the federal courts; Fed. R Civ. P. 5 (b) (same); we should apply such arule to this case. Service by mail has no application to the statute before us. Where the language of a statute is clear, the court may not look elsewhere. Bristol v. Vogelsonger, supra, 21 Conn. App. 604. This court may not impart words or meaning to the statute that are not contained therein. State v. Nelson, supra, 126 Conn. 416. If the legislature had wanted notice to be complete upon mailing, it would have written the words into § 13a-149. The plaintiff also seeks to have us adopt a rule that the mailing of notice is effective to satisfy the statute on the basis of Public Acts 1999, No. 99-39, which applies to appeals taken under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. Again, we cannot read words into a statute that are not there. We are duty bound to interpret a statute as it is written. Mack v. LaValley, supra, 55 Conn. App. 166.

“Where [our Supreme Court] interprets a statute and the legislature fails to take action to change that interpretation, it raises the presumption that the legislature has acquiesced in that interpretation. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984 Rev.) § 45.10. . . . The legislature is presumed to be aware of the inteipretation that courts have placed on existing legislation and of the implications that we will draw from its inaction. Scheyd v. Bezrucik, 205 Conn. 495, 506, 535 A.2d 793 (1987). . . . Habetz v. Condon, 224 Conn. 231, 239 n.12, 618 A.2d 501 (1992).” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 1565, 249 Conn. 474, 481, 732 A.2d 762 (1999). If the legislature disagreed with the construction of § 13a-149 by the courts with respect to the time and manner for giving notice to the proper municipal officer, it legislatively could have overruled our case law.

In this case, the question of the clerk’s office not being open on the ninetieth day is something of a red herring. The plaintiff mailed a letter purporting to give notice to the town clerk to a person by the name of Costa, who was not the town clerk, and to the department of public works. Because the plaintiff did not give notice within ninety days of her alleged injury to the town clerk or a selectman as required by § 13a-149, the court properly dismissed the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. ... No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk

        of such town, or to the clerk oí such city or borough, or to the secretary or treasurer oí such corporation. . . . No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating 1 he time, place or cause of its occurrence, if it. appeal's that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.” (Emphasis added.)

       The sheriffs return indicates that the writ was placed in the sheriffs hands on December 19, 1995, and served upon the town on December 21, 1995. See General Statutes § 52-593a.

       Toth attested, in part, that she was the duly elected town clerk on March 21, 1994, and that she had been the town clerk since November, 1989.

       The letter stated in relevant part:
      “March 16, 1994
      Madeleine E. Costa
      Fairfield Town Clerk
      Fairfield Town Hall
      611 Old Post Road
      Fairfield, Connecticut 06430
      Fairfield Department of Public Works
      Fairfield Town Hall
      611 Old Post Road
      Fairfield, Connecticut 06430
      Re: Notice Pursuant to C.G.S. § 13a-149
      Claimant: Mary Brennan
      Date of Accident: 12/19/93
      Dear Sir:
      Pursuant to Connecticut General Statutes Section 13a-149, I am hereby providing the Town of Fairfield with formal notice of intention to commence an action against the above two entities.”

       The Pratt court held that the plaintiff in that case had provided the required notice even though he stated he was relying on a different statute because § 13a-149 does not require that the notice specify the statute relied upon. Pratt v. Old Saybrook, supra, 225 Conn. 182.

       “ ‘Giving of timely notice as prescribed by the said statute [§ 13a-149] is a condition precedent to the existence of a cause of action against the municipality; and the absence of such notice bars recovery against the municipality as a matter of law.’ . . . Murray v. City of Milford, 256 F. Sup. 350 (D. Conn.), aff'd, 380 F.2d 468 (2d Cir. [1967]).” (Emphasis in original.) Hillier v. East Hartford, supra, 167 Conn. 105-106.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY R. WIENER
    (AC 17213)
    Schaller, Spear and Stoughton, Js.

      Argued January 11
    officially released June 13, 2000

      Alice M. Sexton, with whom, on the brief, was Jon L. Schoenhom, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, John Davenport, assistant state’s attorney, and Kevin Connolly, legal intern, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Jeffrey R. Wiener, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123. On appeal, the defendant claims that the trial court improperly (1) denied him access to certain business records and thereby violated his rights to due process, confrontation, cross-examination and compulsory process, (2) allowed a defense witness to invoke his privilege against self-incrimination and thereby violated the defendant’s rights to compulsory process and to present a defense, and (3) determined that there was sufficient evidence to sustain the conviction. We reject the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At all relevant times, the defendant primarily was employed as a liquor salesman for Hartley & Parker, a liquor distributor. In September, 1993, he became a part-time employee of the Spirit Shop, a liquor store in Waterbury. The Spirit Shop was owned by the complainant, James A. DeRienzo, Jr., and was one of the stores that the defendant had called on as a salesman. At the Spirit Shop, the defendant’s responsibilities at first were clerical, but were increased over time. At some point, the complainant gave the defendant the key to the store so that he could open it to receive deliveries in the morning and close it at night.

In May, June and August of 1995, the complainant met with his accountant, Dale C. Ciccarelli, to discuss cash flow problems at the Spirit Shop. In reviewing the store’s sales and purchases information, Ciccarelli concluded that its gross profit was less than it should have been and suggested that someone was stealing inventory. This prompted the complainant to install a security camera in the store sometime prior to September 13, 1995.

When the complainant reviewed the security camera’s tape for September 13,1995, he saw that the defendant had entered the Spirit Shop at approximately 7:30 a.m., filled three cases with bottles of liquor and left with them. The complainant did not keep detailed records, but on the basis of his experience, he estimated the value of the liquor taken at $200.

The complainant videotaped approximately twelve similar events, and on October 11, 1995, he reported the thefts to the Waterbury police department. On October 13, 1995, two detectives conducted surveillance, and at approximately 7:30 a.m. saw the defendant take several bottles of liquor from the Spirit Shop in a shopping cart and put them in the trunk of his car. They followed the defendant as he drove to the Hartley & Parker parking lot in Stratford. There, at the request of the detectives, the defendant opened his trunk and the detectives seized five cases of assorted liquor. The detectives advised the defendant of his rights and took him to the Waterbury police department.

While at the Waterbury police department, the defendant signed a written, voluntary statement in which he admitted that he filled orders for other liquor stores on his route and/or himself with the liquor he took from the Spirit Shop because he needed money. The defendant estimated that he had taken approximately $10,000 worth of liquor from the Spirit Shop at an average of $150 to $200 per week for each order.

At trial, before any evidence was taken, the defendant caused to be served on the complainant a subpoena duces tecum, commanding him to produce income tax returns for the years 1990 through 1996, and various financial and accounting records and journals for the years 1993 through 1996. The defendant asserted that because the investigation began after the complainant’s accountant had written a letter concerning losses for a three year period prior to 1995, the records from those prior years were needed to attack the complainant’s credibility and to establish that any losses resulted from shoddy business practices that existed before the complainant hired the defendant. The complainant thereafter filed a motion to quash and to limit the scope of the subpoena, which the court ruled on before the jury began hearing evidence.

Because the prosecution alleged that the offense occuixed in 1995, the court granted the motion to quash and limited the scope of the subpoena to the years 1994 and 1995, ruling that the financial history in prior years would raise collateral issues. After the court granted the complainant’s motion to quash, the defendant moved to reargue and asked the court to reconsider its decision. The court granted the defendant’s motion to reargue and denied his request to reconsider. Additional facts will be stated where necessary.

I

The defendant first claims that the court violated his rights to due process, confrontation, cross-examination and compulsory process when it granted the complainant’s motion to quash and limited the scope of the subpoena duces tecum. The defendant claims that the court’s order violated his constitutional rights because it denied him access to certain tax and other financial records of the Spirit Shop for 1992, 1993 and 1996. We disagree.

“The sixth amendment right to compulsory process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . State v. Carter, 228 Conn. 412, 422, 636 A.2d 821 (1994). Although we recognize that the right of a defendant to present a defense is subject to appropriate supervision by the trial court in accordance with established rules of procedure and evidence . . . we are also mindful that the fair opportunity to establish a defense is a fundamental element of due process . . . and that our rules should not be applied mechanistically so as to restrict unreasonably that important right. . . . Id., 426-27.

“Furthermore, [t]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . .” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 256-57, 745 A.2d 800 (2000). This right, however, “is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). “The trial court, in its discretion, may impose limitations on the scope of cross-examination, as long as the defendant has been permitted sufficient cross-examination to satisfy constitutional requirements.” State v. Oliver, 41 Conn. App. 139, 144, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). “The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 604-605, 669 A.2d 562 (1995). Only relevant evidence may be elicited and the right to cross-examine is subject to the duty of the court to exclude irrelevant evidence. Id.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” (Internal quotation marks omitted.) State v. DeCaro, supra, 252 Conn. 257.

“[T]he trial court has wide discretion to determine the relevance of evidence .... Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998). However, [w]hen defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. . . . State v. Bova, [240 Conn. 210, 236, 690 A.2d 1370 (1997)]. Similarly, the exclusion of evidence that provides the defendant a basis for cross-examination of the state’s witnesses may give rise to a claim of denial of the defendant’s right to confrontation.” (Internal quotation marks omitted.) Staler. DeCaro, supra, 252 Conn. 257-58. “The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . We must, therefore, conduct a two-step analysis, determining first whether the cross-examination permitted to defense counsel comported with sixth amendment standards . . . and second, whether the trial court abused its discretion in restricting the scope of that cross-examination. . . . The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Reeves, 57 Conn. App. 337, 346, 748 A.2d 357 (2000).

Before we address the merits of the defendant’s claims, we must first address the state’s assertion that the alleged due process and compulsory process violations are unpreserved, thereby precluding review by this court. As the defendant states in his reply brief, however, he preserved these claims in his motion for supplemental discovery when he cited the fourteenth amendment and, further, when he claimed that the subpoenaed documents were material to the preparation of his defense. His claims, therefore, were preserved in the trial court, and we will review them.

In his motion to reconsider the motion to quash, the defendant requested certain financial records for 1992, 1993 and 1996, in addition to the 1994 and 1995 records. In support of his request for the additional records, the defendant called Leonard M. Romaniello, a certified public accountant, who testified that the records the defendant requested were important for developing an analytical history of the Spirit Shop’s business. The defendant claimed that he needed the earlier records to test the complainant’s credibility and to cross-examine him and his accountant effectively. The court denied the motion to reconsider after being informed that the prosecution intended to prove that the complainant had set up a videotape surveillance, that the tapes showed the defendant removing liquor from the Spirit Shop on a number of occasions and that the defendant had admitted taking $10,000 worth of liquor from the Spirit Shop.

At trial, the state offered evidence of the defendant being recorded on videotape taking bottles of liquor from the Spirit Shop. The state further offered evidence that he admitted taking and selling liquor several times a week, and that he admitted having taken liquor worth $10,000. His defense was that he had taken the bottles of liquor, but that the complainant knew it, that he was doing errands for the complainant and that he had not stolen the liquor. Financial records for the earlier years were not relevant to these claims.

The basis for the defendant’s claim is that the complainant installed the video camera only because his accountant suggested that somebody was stealing from the Spirit Shop, and the accountant’s advice was predicated on an examination of the store’s financial records for 1993 through 1995. The defendant sought to show through the earlier records that any losses sustained by the Spirit Shop were due to shoddy business practices rather than theft.

First, the financial records from 1992, 1993 and 1996 would not have proved that the defendant did not commit larceny. Second, the defendant’s ability to challenge the complainant’s credibility and to expose his business practices was not abridged by the court’s ruling limiting the scope of the subpoena. There was testimony from witnesses that the complainant had engaged in the unlawful practice of bottle swapping with other liquor stores, that he pocketed proceeds from cash sales with other liquor stores and that he paid employees in cash out of the Spirit Shop’s register. The complainant testified that he had trouble paying bills and sometimes bounced checks. He denied bottle swapping, but admitted careless business practices, poor inventory control and financial difficulties. Thus, the defendant had ample opportunity to present his claim that the complainant lacked credibility and that any losses suffered by the Spirit Shop were due to something other than larceny.

We conclude that the defendant’s sixth amendment rights were not violated. Furthermore, the court did not abuse its discretion when it granted the complainant’s motion to quash and limited the scope of the subpoena because the records sought by the defendant would have raised collateral issues and, in any event, would have been cumulative of other evidence presented at trial.

II

The defendant next claims that the court improperly violated his right to present a defense and to compulsory process by allowing a witness to invoke his privilege against self-incrimination. We disagree.

The following additional facts are relevant to our resolution of this issue. The defendant called Robert M. Riccio, the owner of a Watertown liquor store, to testify on his behalf. Upon being asked certain questions by defense counsel, Riccio attempted to invoke his fifth amendment privilege against self-incrimination. Outside the presence of the jury, defense counsel asked Riccio the questions he intended to ask in the presence of the jury. When asked whether he had done business with the distributor who employed the defendant, Ric-cio asked whether he could invoke his privilege against self-incrimination. The court asked to hear the rest of the questions. Defense counsel then asked the witness whether he had engaged in bottle swapping. Riccio did not respond, and, when asked why he had not responded, Riccio’s counsel stated that he advised his client to invoke his privilege against self-incrimination. Defense counsel objected to the invocation of the privilege, claiming that without Riccio’s testimony he would be unable to show that the complainant was involved in bottle swapping. The court, however, allowed Riccio to invoke his privilege.

“[F]or the trial court properly to refuse to recognize the privilege [against self-incrimination] when a witness invokes it, it must be perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken and that the answer[s] cannot possibly have ... a tendency to incriminate.” (Internal quotation marks omitted.) State v. Erhardt, 17 Conn. App. 359, 363-64, 553 A.2d 188 (1989). “To sustain the privilege, it need only be evident from the implications of the question, in the context in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. . . . Conversely, before refusing to allow the privilege, the trial court must find that the answers to any questions proposed cannot possibly have a tendency to incriminate. . . . The privilege against self-incrimination depends on the mere possibility of prosecution.” (Citations omitted; internal quotation marks omitted.) State v. Cecarelli, 32 Conn. App. 811, 819, 631 A.2d 862 (1993).

The defendant claimed that the evidence he sought could not have exposed Riccio to prosecution for bottle swapping because he intended to inquire about Riccio’s bottle swapping in 1995 only and, at the time of the trial, the statute of limitations would have barred prosecution. The court, however, ruled that Riccio might, through his testimony, be exposed to prosecution for aiding and abetting a larceny. Furthermore, similar evidence was offered by other witnesses regarding the complainant’s bottle swapping activities. The fact that the court allowed Riccio to invoke his privilege did not prevent the defendant from presenting evidence supporting his allegation that the complainant engaged in bottle swapping.

We conclude that the defendant’s constitutional rights were not violated and that the court did not abuse its discretion in allowing Riccio to invoke his privilege against self-incrimination.

in

The defendant’s final claim is that the state presented insufficient evidence to support the larceny conviction. The defendant argues that the state failed to prove that he acted with the intent to deprive another of property, or to appropriate the same to himself and that the value of the property exceeded $5000, all of which are essential elements of larceny in the second degree. We disagree.

“In reviewing a sufficiency of the evidence claim, we must apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). . . . State v. Potts, 55 Conn. App. 469, 471, 739 A.2d 1280, cert. denied, 252 Conn. 905, 743 A.2d 616 (1999).

“It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986). [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Young, 56 Conn. App. 831, 835-36, 746 A.2d 795 (2000).

When determining that the defendant had the requisite intent for the crime, the jury reasonably could have relied on the defendant’s statement to the police that he took the orders for himself from the other liquor stores because he needed the money. Furthermore, the jury heard testimony that the defendant had admitted to the complainant that he had taken more than the $10,000 worth of liquor, to which he previously had confessed, and that he told the complainant that all he wanted to do was make things right and pay back the money. Thus, a reasonable jury could find that the defendant had the requisite intent to commit larceny within the meaning of General Statutes § 53a-119, as is required for a conviction of larceny in the second degree under § 53a-123 (a) (2).

Regarding the value of the stolen liquor, the jury reasonably could have believed the testimony by the complainant that the defendant had admitted taking property in excess of $10,000. Furthermore, the jury also could have believed the complainant’s testimony that he reasonably could estimate the value of the property taken on the basis of his years of experience by simply observing the videotapes.

“That the jury might have drawn other possible inferences from these facts is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991).

On the basis of the foregoing facts and the inferences reasonably drawn therefrom, we conclude that there was sufficient evidence presented from which the jury reasonably could have found that the defendant had the intent to deprive the complainant of his property, the value of which exceeded $5000.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-123 (a) provides: “A person is guilty of larceny in tire second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars, (2) the value of the property or service exceeds five thousand dollars, (3) the property, regardless of its nature or value, is taken from the person of another, (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less, or (5) the property, regardless of its nature or value, is obtained by embezzlement, false pretenses or false promise and the victim of such larceny is sixty years of age or older or is blind or physically disabled, as defined in section 1-lf.'’
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       At trial, the complainant testified that he could tell through his observations of the videotapes that the defendant had taken more than the $10,000 worth of liquor that he admitted to taking. According to the complainant’s testimony, the defendant admitted that he had taken more than $10,000 worth of liquor once he had been confronted with this claim.

       As both parties have agreed, bottle swapping is a forbidden activity whereby retail liquor stores or bars swap liquor to obtain a bottle of a particular type of liquor of which they have sold out or which sells better. See General Statutes § 30-76. This practice is an unclassified misdemeanor under General Statutes § 30-113.


author: MIHALAKOS, J.

text:
    CASWELL COVE CONDOMINIUM ASSOCIATION, INC. v. MILFORD PARTNERS, INC.
    (AC 19072)
    Schaller, Mihalakos and Zarella, Js.
    Argued February 25—officially
    officially released June 13, 2000

      Daniel Shepro, with whom, on the brief, was Heidi C. Clark, for the appellant (defendant).

      Raymond A. Garcia, with whom was William S. Wilson II, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant land development company, Milford Partners, Inc., appeals from the judgment of the trial court quieting title to certain disputed real property in the plaintiff, Caswell Cove Condominium Association, Inc. The defendant, the successor declarant to the original declarant of a common interest community, claims that the court improperly (1) declared void the fourth amendment to the original declaration of condominium, (2) declared the fourteenth amendment to the declaration of condominium invalid and ineffective, and (3) denied the defendant’s motion to strike for nonjoinder of necessary parties. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. This action arises from the defendant’s withdrawal of approximately five acres of property (property) from the southern end of the forty-three acre common interest community known as Cas-well Cove Condominium (condominium) in Milford and the defendant’s attempt to establish an easement over the common areas of the condominium property. The plaintiff is the association of unit owners of the condominium. The condominiums were created by a declaration of condominium (declaration) recorded in the Milford land records on September 19, 1988, by the original developer and declarant, Milford River Associates. Between July, 1990, and September, 1992, Milford River Associates was succeeded by the defendant.

The survey attached to the declaration, submitted as schedule A-3, depicted the location of thirteen potential building sites, five of which were required to be developed. These five buildings comprised four sections, designated as sections I, II, III and IV on the survey.

Fourteen amendments to the declaration subsequently were recorded. The fourth amendment, specifically, reflected changes in the maximum number of units that might be built and added terms to address the construction, regulation and transfer of garage units while also amending several schedules to the declaration. Additionally, the fourth amendment had attached, as schedule A-3, a new survey that replaced the original survey. This amendment and the schedules were recorded in the land records. The amended survey accompanying the fourth amendment made significant changes in the declaration. It delineated only three developmental sections instead of four. Section IV, which previously had been designated “must be built,” was redacted and withdrawn from the condominium, and the land formerly encompassed by this withdrawn area was reserved as the remaining lands of the defendant. Furthermore, a notation was added stating that the “[remainder of buildings, roads, recreational areas, parking areas and marina area as indicated need not be built at this time.”

A fifth amendment to the declaration subsequently was recorded by the defendant, which added portions of the land that had been removed from the condominium by the fourth amendment back into the condominium, and also made adjustments to the number of units to be constructed and revisions to the allocation of interests among the units. Additionally, the amended survey to the fourth amendment was further amended to reflect the defendant’s exercise of its development rights. The amended survey to the fifth amendment reenacted section IV and delineated it as a phase that “must be built.”

On September 19, 1995, the fourteenth amendment was recorded. It reserved a permanent easement across common areas of the condominium in favor of the remaining lands removed pursuant to the fourth amendment. Additionally, it stated that the remaining developmental rights, with respect to these lands, were withdrawn from the condominium.

On February 26, 1996, the plaintiff brought an action to challenge the defendant’s exercise of its claimed developmental rights and the validity of the fourteenth amendment to the declaration. The plaintiff sought to quiet title to the withdrawn property and to have the related easement declared as being of no force and effect. The plaintiff also alleged that the defendant wil-fully violated provisions of the Common Interest Ownership Act (act), General Statutes § 47-200 et seq., and the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendant thereafter unsuccessfully sought to have the plaintiffs complaint stricken as legally insufficient.

On October 16, 1998, the court rendered judgment quieting title to the property in the plaintiff, declaring the easement void and allowing for an award of attorney’s fees pursuant to the act. The defendant then unsuccessfully moved for reargument and reconsideration. Later, the defendant sought an articulation from the trial court, which was denied. This appeal followed. Additional facts will be discussed where relevant to this appeal.

I

The defendant first claims that the court improperly declared void the fourth amendment to the declaration, which expanded the defendant’s developmental rights. We disagree.

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).

The evidence produced at trial by the defendant failed to satisfy the act, which controls the reservation of developmental rights. General Statutes § 47-228 (a) mandates that “[e]ach survey and plan ... be clear and legible . . . .” Here, the court found that the amended survey and its legend attached to the fourth amendment clearly were illegible. Furthermore, § 47-228 (b) (3) requires each survey to show “a legally sufficient description of any real property subject to developmental rights, labeled to identify the rights applicable to each parcel . ...” In this case, the amended survey did not contain any information from which one can determine a description of the property that was removed. The court concluded that the fourth amendment to the declaration was void insofar as it might be interpreted as removing any real property from the condominium. In fact, the only property as to which the right to withdraw was reserved by the defendant was the “Point,” a two acre parcel at the northern end of the property. Furthermore, § 47-228 (b) (3) requires the initial declaration to contain a description of any developmental rights and other special rights reserved by the declarant together with “a legally sufficient description of any real property” to which each of those rights applies. That did not occur in this case. Finally, General Statutes § 47-265 requires that the public offering statements, which were published for the condominium stating the respective rights of the declarant and the unit owners, must disclose all developmental rights to the extent that they exist. It is undisputed that there never was any specific disclosure in the declaration of the right to withdraw any property from the southern end of the condominium.

After weighing all the evidence produced at trial, the court concluded that the amended declaration and related legal descriptions and survey, schedule A-3, which was included as part of the fourth amendment, did not adequately describe the property removed. The court analyzed the relevant terms defined under both the act and the declaration, as well as the amendments to the declaration, and properly concluded that the fourth amendment to the declaration was void.

II

The defendant next claims that the court improperly declared invalid the fourteenth amendment to the declaration. We do not agree.

The fourteenth amendment to the declaration reserved a permanent easement across common areas of the condominium in favor of the remaining lands removed pursuant to the fourth amendment. Because the words “without limitation” were contained in the original declaration and there was no description of separate portions of real property subject to the right of withdrawal other than for the “Point” described in the fourth amendment, all the real property would be subject to General Statutes § 47-229 (d) (1), which provides in relevant part that “[i]f all the real property is subject to withdrawal, and the declaration does not describe separate portions of real property subject to that right, none of the real property may be withdrawn after a unit has been conveyed to a purchaser . . . .” Because we have determined that the fourth amendment was void and the fourteenth amendment relies on lands described in the fourth amendment, the fourteenth amendment is invalid.

Ill

The defendant’s final claim is that the court improperly denied the defendant’s motion to strike, which alleged that the plaintiff had failed to name as necessary parties the unit owners and the mortgagees having an interest in those units as well as in the common areas. We disagree.

Necessary parties are “ ‘[pjersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.’ Shields v. Barrow, [58 U.S. (17 How.) 130, 139, 15 L. Ed. 158 (1855)] . . . .” (Citations omitted.) Sturman v. Socha, 191 Conn. 1, 6-7, 463 A.2d 527 (1983). A party is deemed “necessary if its presence is absolutely required in order to assure a fair and equitable trial.” (Internal quotation marks omitted.) Biro v. Hill, 214 Conn. 1, 6, 570 A.2d 182 (1990).

“When the complaint alleges all facts necessary to show that a party not joined is necessary to the action, [a motion to strike] is . . . used to raise a defect apparent on the face of the pleadings.” 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 105, pp. 430-31; see Practice Book § 10-39 (c); George v. St. Ann’s Church, 182 Conn. 322, 324, 438 A.2d 97 (1980). In reviewing a ruling on a motion to strike, we take the facts to be those alleged in the complaint, construed in a manner most favorable to sustaining the complaint’s legal sufficiency. Biro v. Hill, supra, 214 Conn. 2. In this case, there is nothing in the record that indicates that either the unit owners or mortgagees are necessary parties to this action.

General Statutes § 47-244 (a) provides in relevant part that “the association . . . may ... (4) [institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community . . . .” That statute contains no exceptions or limitations on a condominium association’s authority to act on behalf of the unit owners as long as at least two unit owners agree. Candlewood Landing Condominium Assn., Inc. v. New Milford, 44 Conn. App. 107, 111, 686 A.2d 1007 (1997) (condominium association has standing to appeal tax assessment of common areas on behalf of unit owners).

We conclude that the court was correct in determining that the unit owners were not necessary parties and that the plaintiff was authorized to initiate this action in its own name and on behalf of the unit owners. We also conclude that the court correctly determined that the mortgagees were not necessary parties in that their interest is derivative of that of the unit owners.

The judgment is affirmed.

In this opinion the other judges concurred.

       The survey noted that the section numbers were not to be construed as indicating the order in which the buildings would be built, and the declaration provided for the phasing of the developer’s developmental rights, providing no assurances as to the order in which the developmental rights would be exercised, if at all.

       Although the plaintiff never specifically sought the voiding of the fourth amendment, in analyzing the evidence in a quiet title action, the court was required to consider the legal effect of this amendment.

       Article VIII, §8.1 (a), states in relevant part: “Additionally, without limitation, Declarant reserves the right to remove from the Common Interest Community a certain portion of real property, being no more than two acres and located on the most northern portion of the property.”

       The plaintiff argues in its brief that the fourteenth amendment also was invalid because it failed to comply with the requirements of General Statutes § 47-228 (f). We will not consider this argument because we decide this case on the theory on which it was tried and decided in the trial court. See Beckenstein v. Potter & Gamer, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983).


author: SPEAR, J.

text:
    BEVERLEE BARROWS ET AL. v. J.C. PENNEY COMPANY, INC., ET AL.
    (AC 18473)
    Lavery, Spear and Daly, Js

      Argued January 19
    officially released June 13, 2000

      JohnR. Williams, with whom were Anthony G. Api-cella and, on the brief, Jessica Ranciato, law student intern, for the appellant (named plaintiff).

      Barry P. Beletsky, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SPEAR, J.

The named plaintiff, Beverlee Barrows, appeals from the judgment of the trial court rendered after a jury verdict in her favor in the amount of $2000. She claims that the court improperly (1) refused to set aside the jury verdict of $1000 for past economic damages and $1000 for past noneconomic damages, (2) allowed the defendants’ expert to testify to opinions that were not disclosed in accordance with Practice Book § 13-4 (4), and (3) admitted evidence that was not specially pleaded by the defendants pursuant to Practice Book § 10-50. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On April 6,1993, the plaintiff went to the store of the named defendant J.C. Penney Company, Inc. (J.C. Penney), in the Connecticut Post Mall in Milford to return a pair of shoes. After returning the shoes, the plaintiff tried on several articles of clothing before leaving the store. The defendants Holly Herzman and Arthur Evans, who were employed by J.C. Penney as security guards, stopped the plaintiff approximately ten feet outside the store’s exit and accused her of shoplifting.

The security guards brought the plaintiff back into the store and detained her in a room for about twenty-one minutes. After she was released, the plaintiff became dizzy and collapsed against a rack of clothing. She went to the Milford Hospital emergency room where she was treated for hypertension.

The plaintiff brought an action against the defendants seeking damages for intentional false imprisonment and negligent false imprisonment. Thereafter, she filed a motion for summary judgment as to liability only on the first count, intentional false imprisonment. The court granted the plaintiffs motion for summary judgment, and the case was assigned for a jury trial on the issue of damages. Before the commencement of the hearing in damages, the plaintiff withdrew the second count of her complaint alleging negligent false imprisonment.

At the hearing in damages, the plaintiff sought to collect past and future economic damages, past and future noneconomic damages and punitive damages. The defendants did not contest the reasonableness of the plaintiffs medical bills. Through expert testimony, they did contest the causal relationship between the incident at the store and the plaintiffs alleged injuries. The plaintiff objected to some of the testimony of the defendants’ expert, claiming that it was outside the scope of the defendants’ disclosure made pursuant to Practice Book § 13-4 (4). The court overruled the plaintiffs objection and allowed the expert’s testimony.

The jury returned a verdict in favor of the plaintiff in the amount of $2000, representing $1000 for past economic damages and $1000 for past noneconomic damages. No future economic damages, future noneco-nomic damages or punitive damages were awarded. The plaintiff filed a motion to set aside the jury verdict as to damages only and for additur. The court denied the plaintiffs motion and this appeal followed.

I

The plaintiff first claims that because the jury verdict was unreasonable, the court improperly refused to set it aside. We disagree.

“The trial court’s refusal to set aside [a] verdict . . . is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying [a motion] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

A

The plaintiff claims that the jury verdict of $1000 for past economic damages is unreasonable and should be set aside because no combination of the medical bills introduced into evidence can add up to precisely $1000. We are unpersuaded.

First, the jury in this case rendered a general verdict for past economic damages with no interrogatories. “Where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside.” Marchetti v. Ramirez, 40 Conn. App. 740, 746, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997). The rendering of a general verdict “coupled with the absence of interrogatories, [makes] it impossible for the trial court or this court to determine what factors the jury considered in making its award. ” Id. “We cannot speculate as to how the jury reached its figure.” Caruso v. Quickie Cab Co., 48 Conn. App. 459, 462, 709 A.2d 1154 (1998). “Although [most of the] evidence remained uncontroverted the jury [was] not obliged to accept it. On the other hand, [the jury was] at liberty to accept what part of [the evidence it] chose and factor [that evidence] into [its] total calculations.” Pisel v. Stamford Hospital, 180 Conn. 314, 344, 430 A.2d 1 (1980).

Second, the extent of the plaintiff’s injury was hotly contested. “The existence of conflicting evidence limits the corut’s authority to overturn a jury verdict. The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given.” (Internal quotation marks omitted.) Childs v. Bainer, supra, 235 Conn. 116. The plaintiff offered expert testimony that she suffers from permanent hypertension as a result of the incident at the defendant’s store. The defendants offered expert testimony that the incident at the defendant’s store caused only temporary, not permanent, hypertension. “[T]he medical testimony and opinions were conflicting to such an extent that the jury could have refused to credit [part of] the plaintiffs claims.” Beverly v. State, 44 Conn. App. 641, 648, 691 A.2d 1093 (1997).

We, therefore, cannot say that the verdict is unreasonable or so shocks the sense of justice that it warrants reversal.

B

The plaintiff also claims that the jury verdict of $1000 for past noneconomic damages is unreasonable and should be set aside because it was tainted by the improper jury verdict for past economic damages. Because we uphold the jury verdict for past economic damages, we do not consider this claim.

II

The plaintiff next claims that the trial court improperly allowed the defendants’ expert to testify to opinions not disclosed in accordance with Practice Book § 13-4 (4). We disagree.

“A trial court’s decision on whether to impose the sanction of excluding the testimony of a party’s expert witness rests within the court’s sound discretion. . . . The action of the trial court is not to be disturbed unless it has abused its broad discretion, and in determining whether there has been such abuse every reasonable presumption should be made in favor of its correctness.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992).

The issue is whether the trial court abused its discretion by allowing testimony from the defendants’ expert over the plaintiffs objection and claim that the testimony exceeded the scope of the defendants’ disclosure. Practice Book § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time .... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party . . . .”

Even if we assume, arguendo, that the defendants’ disclosure did not comply with Practice Book § 13-4 (4), we do not find that the plaintiff suffered from any prejudice. Practice Book § 13-4 (4) is “intended to furnish a [party] with the details of [another party’s] reliance on expert testimony in order to assist him with the preparation of his case. The rules of discovery are designed to make a trial less of a game of blindman’s [buff] and more of a fair contest with the basic issues and facts disclosed to the fullest extent possible.” (Internal quotation marks omitted.) Ciarlelli v. Romeo, 46 Conn. App. 277, 280, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997).

In this case, the defendants disclosed that they intended to call their expert about eighteen months prior to trial, and the plaintiff objected to the expert’s testimony on various grounds. The court overruled the plaintiffs objection to preclude the testimony and ordered that the defendants’ expert not be permitted to testify unless (1) the defendants’ expert agreed to be deposed and (2) prior to the deposition, the defendants made certain disclosures. The plaintiff failed to depose the defendants’ expert, and the defendants never disclosed the information that they were ordered to provide. The plaintiff thereafter did not attempt to seek any additional information regarding the opinion of the defendants’ expert to assist her in the preparation of her case. As the court correctly determined: “The plaintiff has had ample opportunity ... to present her case in a fair, reasonable, evidentiary, full disclosure manner.” We, therefore, cannot conclude that the court abused its discretion by admitting all of the testimony from the defendants’ expert.

Ill

The plaintiff finally claims that the trial court improperly admitted evidence that was not specially pleaded by the defendants pursuant to Practice Book § 10-50. We disagree.

Practice Book § 10-50 provides in relevant part: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. ...”

“The distinction between matters which may be proved under a general denial and matters constituting special defenses, which must be specially pleaded, was enunciated in Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 327 A.2d 583 (1973), where [our Supreme Court] observed . . . that [t]he issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. ... If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would [independently] destroy the cause of action, the new matter must be affirmatively pleaded as a special defense.” (Citations omitted; internal quotation marks omitted.) Bernier v. National Fence Co., 176 Conn. 622, 629, 410 A.2d 1007 (1979).

In this case, where the defendants have denied that there exists a causal connection between their actions and the plaintiffs alleged injuries, the denial is inconsistent with the plaintiffs allegations and does not independently destroy liability. The defendants’ denial negates the existence of the plaintiffs allegation that the defendants’ actions were the proximate cause of the plaintiffs injuries. We, therefore, conclude that the court properly admitted the defendants’ evidence under a general denial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Donald Barrows, the husband of Beverlee Barrows, was a plaintiff in this action, but withdrew his action against all of the defendants. We refer in this opinion to Beverlee Barrows as the plaintiff.

       The defendants in this appeal are J.C. Penney Company, Inc., Holly Herzman and Arthur Evans. The plaintiff withdrew her claims against the defendants Robert Doyle and John Ralbovsky and, therefore, they are not parties to this appeal. We refer in this opinion to J.C. Penney Company, Inc., Holly Herzman and Arthur Evans as 1he defendants.

       The plaintiff had been suffering from hypertension for ten years prior to this incident. The condition was triggered anytime she was confronted with stressful events.

       It also is important to note that the plaintiffs counsel declined the court’s offer to allow the plaintiff an opportunity to cure any harm that could have possibly resulted from the defendants’ alleged failure to disclose. At trial, the court stated: “Now, I would give you a reasonable opportunity to contact [your expert] and have him down here in order to listen to the testimony. ... If you want to get on the phone, I’ll go into hiatus and recess right now and give you a chance to get [your expert] down here. And if he wants to rebut anything [the defendants’ expert] says, you may have that opportunity.” The plaintiffs counsel, however, responded to the court’s offer without any interest to cure. The plaintiffs counsel stated: “I thank you for the offer, Your Honor, but we won’t do that because not only the expense but the fact that [our expert] has a tremendous operating schedule. My point is this, I don’t agree that it’s proper to let in by rebuttal testimony what they didn’t disclose. That’s not what his opinion is based on. His opinion is based upon what he has in [the disclosure]. And that’s what he should be limited to and not go into other things that he didn’t disclose, that he could have disclosed.”

       The court in Pawlinski clarified the complexity of this theory using the following illustration from 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 127 (c) p. 521: “D is liable to P if a, b, and c are true unless d is also true. If d contradicts a, b, or c, then evidence of d may be admitted under a denial. If, however, the existence of d does not negate the existence of a, b, or c, but independently destroys liability, then evidence of d may be admitted only under a special defense.” Pawlinski v. Allstate Ins. Co., supra, 165 Conn. 7.

       The defendants originally filed a cross appeal and subsequently, pursuant to Practice Book § 63-4 (a) (1) (B), asked this court to consider in the event that we order a new trial whether summary judgment as to liability was proper. Because we affirm the judgment of the trial court, we do not consider this issue. The cross appeal is dismissed.


author: LAVERY, J.

text:
    IN RE SHANE P.

    (AC 19483)
    O’Connell, C. J., and Laveiy and Landau, Js.

      Argued January 18
    officially released June 13, 2000

      Lawrence Alexander, for the appellant (respondent mother).

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

      David T. Stone, for the minor child.

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

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Shane P. She claims that the court improperly (1) found that no parent-child relationship existed between the respondent and Shane, (2) considered in the adjudication stage of the proceedings conduct that allegedly occurred after the filing of the termination petition, (3) failed to consider the possibility of the respondent’s early release from prison and (4) violated the eighth amendment to the United States constitution in terminating her parental rights. We affirm the judgment of the trial court.

In a memorandum of decision, filed February 4,1999, the court found the following facts. The respondent married Shane’s father in 1986, and the couple in 1988 had their first child, B. The respondent had graduated from high school and completed three years of college. She was introduced to drugs by her husband and became addicted. In 1991, after a series of arrests, the respondent and her husband left B in the care of the child’s maternal grandparents, where he has remained. Despite their inability to care for B, the respondent and her husband in 1992 had another son, J. Two years later, the respondent and her husband left J with the child’s maternal grandparents as a result of the persistent marital, drug and criminal justice problems that the respondent and her husband experienced.

Shane was bom prematurely on July 31, 1995, with a positive toxicity for opiates and went through withdrawal. The presence of drags in Shane’s system may have been due to the respondent’s methadone treatment, although she admitted to using cocaine early in her pregnancy. On October 3, 1995, with her husband, Shane and J in a car with her on a dirt road, the respondent smoked rock cocaine. They were discovered by police, and cocaine and baby formula were found in the car. The respondent was convicted of risk of injury to a child and received a suspended sentence.

On the basis of this incident, the commissioner of children and families (commissioner) obtained an order of temporary custody for Shane and J. The commissioner placed the boys in a foster home, where Shane has remained. On June 10, 1996, the court adjudicated Shane neglected. The court has extended his commitment to the commissioner until June 10, 2000.

From birth, Shane has had special needs. In the first several months of his life, Shane exhibited severe back arching, body tremors, unusual screaming and difficulty keeping down his formula. At twenty-two months, Shane was diagnosed with developmental weaknesses and inconsistencies in the areas of language development, neuromotor functions, behavioral control and possible learning disability. Through the hard work of his foster mother, Shane was placed in a newly created special education program. Although Shane has improved in many areas, he still has frustration problems, oral motor difficulties and is prone to choking.

Shane’s foster mother is devoted to him and devotes considerable energy to his development. A pediatrician and psychologist who testified at the respondent’s trial complimented the foster mother as committed and understanding. Complaints by the respondent regarding the foster mother’s care were investigated and shown to be unsubstantiated. Shane’s foster parents love him and would like to adopt him. Shane is quite comfortable and is thriving in his foster environment. Shane refers to the other boys in the foster household as his brothers. He refers to his biological brothers, B and J, as his friends. Shane refers to his foster parents as mommy and daddy. Shane does not look forward to visits with the respondent.

When the commissioner initially took custody of Shane, the respondent lost the benefits she had been receiving under the Aid to Families with Dependent Children program, which she had been using for methadone maintenance. The respondent became ill and relapsed into heroin use. After visiting Shane a few times in 1995, the respondent’s whereabouts became unknown to the department of children and families (department). Beginning in January, 1996, she failed to make scheduled visits. Over the next several months, the respondent committed numerous crimes such as possession of narcotics, forgery, larceny and failure to appear in court. In July, 1996, the respondent was arrested on a charge of robbery committed by a boyfriend while she and B waited in a car. While driving from the scene, the respondent ran over a bystander’s foot. The respondent was convicted of robbery, risk of injury to a child and assault in the second degree. She received a total effective sentence of seven years in prison. Her maximum release date is June 2, 2004.

After being incarcerated in August, 1996, the respondent requested visits with Shane. The department began arranging visits in January, 1997, and the respondent has seen Shane generally on a monthly basis since then. During these visits, the respondent has acted appropriately with Shane, and played with and read to him. Shane has enjoyed the visits, although he does not refer to the respondent as mommy or any similar term. The respondent admitted at trial that Shane does not know her as he should know his mother. The respondent nonetheless has requested numerous pictures of Shane and has sent him handmade gifts for his birthday and Christmas.

The respondent has completed nearly every relevant rehabilitative program available to her in prison, including courses covering substance abuse, parenting and relationship issues. She has received excellent evaluations of her work at prison jobs. The respondent, however, does have a long history of depression and is unable to receive individual counseling in prison. Upon her release, she will have to enter an intensive rehabilitation program to address her depression and drug addiction.

The court found by clear and convincing evidence that the respondent had failed, for more than one year, to achieve sufficient personal rehabilitation, within the meaning of General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the child’s life. The court also found that the respondent did not have an ongoing parent-child relationship with Shane for more than one year, within the meaning of § 17a-112 (c) (3) (D). The court then deteimined that it was in Shane’s best interest to terminate the respondent’s parental rights. This appeal followed.

At the outset, we note our standard of review in termination of parental rights cases. “The standard for review on appeal [in a termination of parental rights case] is whether the challenged findings are clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retiy the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Alissa N., 56 Conn. App. 203, 207, 742 A.2d 415 (1999), cert. denied, 252 Conn. 932, 746 A.2d 791 (2000).

Nonconsensual termination proceedings involve a two step process, an adjudicatory phase and a disposi-tional phase. See Practice Book § 33-1 et seq. “In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence.” (Internal quotation marks omitted.) In re Alissa N., supra, 56 Conn. App. 207. “In making the adjudicatory determination, the court is limited to considering events preceding the filing of the termination petition or the latest amendment.” In re Tabitha P., 39 Conn. App. 353, 367, 664 A.2d 1168 (1995); see also Practice Book § 33-3 (a). This limitation is inapplicable in the dispositional phase, in which “the trial court can consider all events occurring prior to the date of the dispositional hearing, including those occurring after the filing of the termination petition.” (Internal quotation marks omitted.) In re Kasheema L., 56 Conn. App. 484, 488, 744 A.2d 441, cert. denied, 252 Conn. 945, 747 A.2d 522 (2000).

I

The respondent contends that the court improperly concluded that she had no ongoing parent-child relationship with Shane. We disagree.

Applying the standard previously discussed; In re Alissa N., supra, 56 Conn. App. 207; we conclude that the court’s conclusion was factually supported. “In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. . . . The ultimate question is whether the child has no present memories or feelings for the natural parent.” (Citations omitted; internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 602, 722 A.2d 1232 (1999). The evidence before the court was sufficient to support the conclusion that the child has no present memories of or feelings for the respondent. Shane does not refer to the respondent as his mother and has no memories of any maternal relationship with her. The respondent admitted at trial that Shane does not know her as he should know his mother. Rather, Shane refers to his foster mother as his mother. Although Shane does warm to the respondent when visiting her in prison, he is not eager to see her initially and seeks comfort from his foster parents after visits.

The respondent attempts to point the blame away from herself and toward the department by accusing it of causing the lack of an ongoing parent-child relationship because it did not provide sufficient visits. The respondent’s claim is not utterly groundless. Bureaucratic mismanagement caused the department not to meet the respondent’s August, 1996 request to see Shane while in prison until January, 1997. This delay by the department, however, does not absolve the respondent of being the primary cause of creating the lack of a parent-child relationship, which existed at the time the petition was filed. The respondent was not in prison during the first year of Shane’s life, and during that time she chose not to develop a relationship with her son. Instead, she lapsed into drug use and disappeared for a number of months. The result of the respondent’s conduct is that Shane has no present feelings for or memories of her and views his foster mother as his mother.

Notwithstanding the contentions of the respondent, this case is distinguishable from In re Valerie D., 223 Conn. 492, 499, 613 A.2d 748 (1992), in which our Supreme Court concluded that the state was not permitted to terminate the parental rights of a mother on the basis of no ongoing parent-child relationship. In In re Valerie I)., the child was removed from her mother’s care from nearly the moment of birth until the adjudication date. Id., 531. Coterminous petitions were filed for custody and termination of parental rights virtually upon the birth of the child. Id., 532. The court concluded that under the circumstances, the petition for temporary custody virtually assured the creation of a ground for termination of parental rights. Id., 533. In other words, the state’s custody of the child created the conditions leading to the lack of an ongoing parent-child relationship.

Here, no such intrusive intermeddling by the state took place. The respondent, and not the department, created the conditions under which the petition for termination was filed. See In re Lauren R., 49 Conn. App. 763, 775, 715 A.2d 822 (1998). For example, as noted previously, the respondent disappeared for months and chose to bring Shane with her while she smoked rock cocaine in her husband’s car. Accordingly, we find that In re Valerie D., supra, 223 Conn. 492, is distinguishable and does not impact our decision. We therefore conclude that the court properly found an absence of an ongoing parent-child relationship between the respondent and Shane for more than one year.

II

The respondent also argues that the court improperly considered in the adjudication stage of the termination proceeding conduct that occurred after the filing of the petition in determining that the respondent had failed to achieve personal rehabilitation herself. For the reasons set forth below, we need not and do not decide this claim.

In part I of this opinion, we concluded that the court properly found that there was no ongoing parent-child relationship between the respondent and Shane. This conclusion is supported by ample evidence and was reached by the court without considering postpetition conduct. We need only uphold one statutory ground found by the court to affirm its decision to terminate parental rights. In re John G., 56 Conn. App. 12, 20 n.4, 740 A.2d 496 (1999). “To prevail on her claim that the court improperly terminated her parental rights, the respondent must successfully challenge all of the bases of the judgment terminating her parental rights. If [any] of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand.” (Internal quotation marks omitted.) Id. Accordingly, because one statutory ground for termination properly exists, namely lack of an ongoing parent-child relationship, we need not reach the respondent’s claim that the court’s finding that she failed to achieve personal rehabilitation was improper.

Ill

The respondent argues that the court improperly failed to consider the possibility of an early release from prison in its decision to terminate her parental rights. We disagree.

The court stated in its memorandum of decision that the respondent’s maximum release date is June 2, 2004. According to the respondent, a petition is pending for a reduced sentence that may allow her to be released earlier on probation.

The respondent cannot argue the possibility of a release on probation and then bootstrap that possibility into a matter of such importance that without its consideration the court commits reversible error. Neither we nor the trial court can speculate, as the respondent asks us to do, as to what could happen if she is released earlier than expected. Thus, the court did not improperly fail to take into consideration the possibility of an early release.

IV

In an apparent last desperate search to find a flaw in the court’s decision, the respondent raises an eighth amendment challenge. The respondent’s brief consists of one page with minimal citations, negligible reasoning and no constitutional analysis. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) In re Brandon W., 56 Conn. App. 418, 425, 747 A.2d 526 (2000). Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned. In re Shyliesh H., 56 Conn. App. 167, 181, 743 A.2d 165 (1999). The respondent’s claim with respect to this final claim is inadequate and is deemed abandoned.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court terminated the parental rights of both respondent parents. In this opinion, we address only the appeal by the respondent mother and refer to her as the respondent.

       In the foster home, J threw toys at Shane and did not get along with the other boys there. The department of children and families returned J to his maternal grandparents.