author: GRUENDEL, J.

text:
    FORT TRUMBULL CONSERVANCY, LLC v. CITY OF NEW LONDON ET AL.
    (AC 32556)
    Gruendel, Robinson and Borden, Js.

      Argued February 16
    officially released May 1, 2012

      Scott W. Sawyer, with whom was Loma Dicker, for the appellant (plaintiff).

      Jeffrey T. Londregan, for the appellees (defendant city of New London et ai.).

      Edward B. O’Connell, with whom, on the brief, was Mark S. Zamarka, for the appellee (defendant New London Development Corporation).

      Rupal Shah Palanki, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendant department of economic and community development et al.).
   Opinion

GRUENDEL, J.

The plaintiff, Fort Trumbull Conservancy, LLC, appeals from the judgment of dismissal rendered by the trial court. Its principal contention is that the court improperly dismissed its declaratory and injunctive action against the defendants, the city of New London (city), the New London planning and zoning commission (commission), the New London Development Corporation (corporation), the state department of economic and community development (department) and the state office of policy and management (office). The plaintiff further claims that the court abused its discretion in denying its motions to reconsider, to reargue, to open the judgment and to submit additional evidence. We affirm the judgment of the trial court.

This action is but the latest episode in the saga of litigation between the parties. See Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 943 A. 2d 420 (2008); Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 925 A.2d 292 (2007); Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, 266 Conn. 338, 832 A.2d 611 (2003); Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 829 A.2d 801 (2003); Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003). The following background is relevant to this appeal. In the late 1990s, “[t]he [city], through [the corporation], established a municipal development plan for the Fort Trumbull area of the city. The Fort Trumbull area is a ninety acre peninsula in the southeast region of [the city] bordering the Thames River. Historically, it has supported residential, commercial and industrial uses. The city formulated a municipal development plan that envisioned water enhanced and water dependent uses designed to revitalize the local economy while retaining the neighborhood’s historic character. Specifically, the municipal development plan contemplated a series of office, hotel, residential and recreational facilities.” Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, supra, 341-42.

“In May, 2005, the plaintiff initiated [a civil] action in the judicial district of New London . . . seeking, inter aha, a permanent injunction prohibiting the defendants from implementing the development plan. In a two count complaint, the plaintiff . . . alleged that the office’s approval of the environmental impact evaluation and the city’s adoption of the development plan were invalid as the result of certain procedural defects. In count one, alleging ‘unreasonable likelihood of harm,’ the plaintiff made numerous specific allegations concerning the negative impact that the implementation of the development plan would have on the water, land and air resources in the Fort Trumbull area. In count two, alleging ‘per se environmental harm and violation of [the Connecticut Environmental Protection Act, General Statutes § 22a-14 et seq. (act)],’ the plaintiff alleged that the defendants had violated a variety of state statutes and regulations and repeated its allegations of environmental harm.” Fort Trumbull Conservancy, LLC v. New London, supra, 282 Conn. 798-99. The defendants thereafter filed motions to dismiss the complaint, alleging that the plaintiff lacked standing, that the case was moot and that the action had been brought in an improper venue under General Statutes § 22a-16. Id., 799-800. The trial court granted the motions, concluding that the plaintiff lacked standing. Id., 800-801. Our Supreme Court reversed that judgment, holding that “the plaintiff has statutory standing [and] the claim is not moot.” Id., 801. The court farther concluded that “although the action was brought in an improper venue, it should not be dismissed on that ground, but should be transferred to the judicial district of Hartford.” Id., 801-802. The court thus remanded the case to the trial court for further proceedings. Id., 820.

The plaintiff filed an amended complaint on July 17, 2009, in which it sought declaratory and injunctive relief against the defendants. That two count complaint largely resembled the earlier pleading, the gravamen of which is that implementation of the development plan— particularly the storm water management system (system) installed by the corporation — has caused or is reasonably likely to cause pollution and impairment to the environment. A court trial commenced on October 6, 2009, with the presentation of the plaintiffs case-in-chief. The plaintiff introduced twenty-five exhibits into evidence while offering the testimony of seven fact witnesses and two expert witnesses before resting on October 13, 2009.

At that time, the defendants orally moved for a judgment of dismissal pursuant to Practice Book § 15-8 predicated on the plaintiffs failure to set forth a prima facie case. The defendants specifically alleged that “no evidence that the municipal development plan is reasonably likely to cause unreasonable harm has been presented by the plaintiff.” After affording the plaintiff the opportunity to be heard, the court granted the motion and rendered a judgment of dismissal. In so doing, the court explained that “[t]here were no questions asked, no opinions offered about causation. . . . [T]here was no testimony as to proximate cause and no testimony that [the experts’] conclusions were to a reasonable degree of certainty. There is no evidence before this court which would allow the court to reach the conclusion that the conduct, the actions or inactions of the defendants created an unreasonable risk to the environment. There certainly are problems with the environment in this area, but the court cannot reasonably and legally conclude that these problems were proximately caused by the actions of the defendants.”

The plaintiff thereafter filed motions to reconsider, to reargue, to clarify, to open the judgment and to submit additional evidence. After conducting a hearing thereon, the court denied those motions. The plaintiff also filed a motion for articulation, which the court granted. In articulating a “fuller explanation of its reasoning” for dismissing the action, the court stated in relevant part that “in support of [its] claims, the plaintiff called upon two expert witnesses, Dr. Peter Pellegrino and Dr. Robert DeSanto, scientists who testified about their respective studies of the water bodies in question. Each of them offered opinions that the . . . system caused environmental damage to the three water bodies. The methodology used by each witness was explored at length, both on direct examination and on cross-examination. Neither [expert] was asked if his opinions were based on reasonable probability, reasonable certainty or any other standard which resembled a probability. Nor did either witness testify that anything that any defendant did or failed to do was a proximate cause of any actual or potential environmental harm. . . . [N] either expert was asked any questions about causation, nor did either expert’s testimony include any statement which could be interpreted as an opinion about proximate cause. The plaintiff therefore failed to put before the court any expert opinion that anything any defendant did was a proximate cause of any environmental damage or of any future threat of environmental damage. ... It is very clear from the evidence presented that all three of the water bodies in question have historically been contaminated by pollutants which come from a variety of sources other than the [municipal] development [plan] area on the Fort Trumbull peninsula, which is at issue in this lawsuit. The experts took limited samples from the water and/or sediment beneath the three water bodies, and did essentially nothing which would reliably demonstrate that the contaminants which they found therein came from the [municipal development plan] area. The [water bodies] all receive storm water from sources that do not drain through the . . . system. The plaintiff provided the court with no sound basis for concluding that the . . . system is an environmental risk.”

Following issuance of the court’s articulation, the plaintiff filed with this court a motion for review, which we granted. The trial court then issued a “further articulation” in which it explained its reasoning for denying the plaintiffs various postjudgment motions. This appeal followed.

I

The plaintiff claims that the court improperly dismissed its action pursuant to Practice Book § 15-8. It maintains that the court applied an incorrect legal standard and, in so doing, improperly rendered a judgment of dismissal. We disagree.

A

As a preliminary matter, we briefly address the plaintiffs assertion, raised in a footnote in its appellate brief without substantive discussion or citation of authorities, that “it was improper for the defendants to raise and the court to hear [the motion to dismiss pursuant to Practice Book § 15-8] as the defendants already began their case-in-chief. . . . [T]o allow the defendants to begin their case-in-chief and then bring [such a] motion to dismiss is contrary to [the] plain language [of Practice Book § 15-8] and, as such, should not be permitted.” For two distinct reasons, that claim fails.

First, it is axiomatic that this court is “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. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) State v. Monahan, 125 Conn. App. 113, 122, 7 A.3d 404 (2010), cert. denied, 299 Conn. 926, 11 A.3d 152 (2011). The plaintiffs appellate brief neither asserts this claim in its statement of issues nor contains any substantive analysis thereof.

Second, the plaintiff neglects to note the unique procedural history of this case, which originally was brought in the judicial district of New London and was dismissed for lack of standing. In reversing that judgment, our Supreme Court concluded that although the plaintiff possessed statutory standing, the action was brought in an improper venue. Fort Trumbull Conservancy, LLC v. New London, supra, 282 Conn. 801-802. The court nonetheless held that the plaintiffs action “should not be dismissed on that ground, but should be transferred to the judicial district of Hartford.” Id., 802. It then remanded the case to the trial court for further proceedings. Id., 820.

Consistent with that remand order, the case first was transferred to the judicial district of Hartford and later to the complex litigation docket in that judicial district. Because the case concerned issues peculiar to New London and necessitated travel from that region to Hartford by witnesses, the parties agreed that the defendants on cross-examination would be allowed to go beyond the scope of direct examination of witnesses called in the plaintiffs case-in-chief. That logistical accommodation served the interest of judicial economy and was authorized by the court. Notably, the plaintiff did not object to that accommodation but, rather, indicated its agreement on the record. Moreover, the court in its articulation expressly indicated that “[i]n ruling on the defendants’ motion to dismiss, the court considered only such evidence as was introduced by the plaintiff. This does not mean that the court disregarded the defendants’ cross-examinations of the plaintiffs witnesses; it does mean that no evidence introduced by the defendants before the trial ended played any part in the court’s decision to grant the [Practice Book] § 15-8 motion.” In light of the unique circumstances of this case, the plaintiffs acquiescence and its failure to present any authority indicating that such an accommodation was improper, we decline to further entertain the plaintiffs proposition.

B

Turning to the merits of the plaintiffs claim, we consider the threshold matter of whether the court applied an incorrect legal standard as the plaintiff maintains. The parties’ respective arguments mirror those presented in Friends of Animals, Inc. v. United Illuminating Co., 124 Conn. App. 823, 842 n.12, 6 A.3d 1180 (2010), in which “[t]he plaintiff argued that the standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it. . . . The defendant, however, argued that the issue in this case is not whether the plaintiff made out a prima facie case, but whether it sustained its burden of proof . . . .” (Citations omitted; emphasis in original.)

In Cadle Co. v. D’Addario, 268 Conn. 441, 844 A.2d 836 (2004), our Supreme Court rejected the argument now advanced by the plaintiff. It explained that, in arguing that the trial court had improperly failed to interpret its evidence in the light most favorable to the plaintiff drawing every reasonable inference in its favor, “[t]he plaintiff fails to recognize . . . these principles apply only in cases where the court’s dismissal prevents the plaintiff from presenting his case to the fact finder for consideration on the merits. ... In such cases, this court considers only whether there was sufficient evidence to allow the fact finder to consider the claim. In the present case, the trial court was the fact finder. Thus, notwithstanding the trial court’s characterization of its ruling as a dismissal for failure to establish a prima facie case, the question before us is not whether the evidence was sufficient to present the claim to a finder of fact, but whether, having presented its case to the fact finder at trial, the plaintiff sustained its burden of proof. In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Citations omitted; internal quotation marks omitted.) Id., 462. Accordingly, in such instances a trial court confronted with a motion to dismiss for failure to establish a prima facie case is permitted to conclude “that the plaintiff did not sustain its burden of proof.” Id.; see also Windels v. Environmental Protection Commission, 284 Conn. 268, 290-91, 933 A.2d 256 (2007); Sonepar Distribution New England, Inc. v. T & T Electrical Contractor’s, Inc., 133 Conn. App. 752, 758-59, 37 A.3d 789 (2012); Friends of Animals, Inc. v. United Illuminating Co., supra, 124 Conn. App. 842 n.12. The trial court, therefore, did not apply an incorrect legal standard to the plaintiffs claims.

C

We next address the plaintiffs related argument that the court applied an improper measure of the plaintiffs statutory burden. That claim is unavailing.

The plaintiff brought this action under the act pursuant to General Statutes § 22a-16. Our Supreme Court has explained that “General Statutes § 22a-17 sets the hurdles one must overcome in order to satisfy the burden of proof requirements set under [the act].” Waterbury v. Washington, 260 Conn. 506, 550, 800 A.2d 1102 (2002). Section 22a-17 provides in relevant part that the plaintiff bears the burden of establishing “that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state . . . .”

Because a plaintiff must prove conduct on the part of the defendants that either has caused or is reasonably likely to cause unreasonable pollution, impairment or destruction of natural resources, proof of causation is elemental to such a claim. See, e.g., Waterbury v. Washington, supra, 260 Conn. 553 (“the legislature did not intend for a plaintiff to be able to establish a prima facie case under [the act] on the sole basis that the defendant’s conduct was causing something more than a de minimis impairment” [emphasis added]); Manchester Environmental Coalitions. Stockton, 184 Conn. 51, 60 n.11, 441 A.2d 68 (1981) (in meeting burden under § 22a-17, air pollution in state could be considered “in combination with air pollution caused by the defendants’ project” [emphasis added]). The parties agree that the plaintiff is required to submit proof of causation by the conduct of the defendants. They disagree as to precisely what such proof entails.

Distilled to its essence, the plaintiffs position is that the requisite proof is minimal. As it states in its appellate brief, the “[p]laintiff is under no obligation to show what is going into the . . . system or even that actual pollution is coming out. Just that it is reasonably likely unreasonable pollution is exiting or will exit the system.” The plaintiff further posits that “[i]t is irrelevant to [the act] that the pollution is also caused in part . . . by storm water flowing from areas outside the [area].” As we understand it, the plaintiffs position is that its sole burden is to demonstrate that a natural resource of the state has been, or likely will be, polluted in the area around the system.

In response, the defendants submit that the plaintiffs position “smacks of strict liability [in which] an injured party is allowed to recover damages from the party causing the harm without requiring proof of the latter’s negligence or fault.” We generally agree, although we note that our law requires proof of causation, not proof of negligence. Strict liability plainly is not contemplated under the act. Section 22a-17 (a) expressly permits a defendant to submit evidence to rebut the plaintiffs prima facie case. To paraphrase Waterbury v. Washington, supra, 260 Conn. 551, under the plaintiffs novel position, “the only evidence a defendant would be able to offer to rebut a prima facie case would be evidence that there was no pollution, impairment or destruction of the natural resource.” (Emphasis in original.) That position is contrary to the plain language of § 22a-17 (a).

Moreover, in interpreting § 22a-17, our Supreme Court has held that “the legislature did not intend for a plaintiff to be able to establish a prima facie case under [the act] on the sole basis that the defendant’s conduct was causing something more than a de minimis impairment.” Id., 553. The proper standard requires a plaintiff to “establish that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute . . . the public trust in the . . . water of the state.” (Emphasis added; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 161, 676 A.2d 795 (1996). That is the standard that the trial court applied in the present case when it concluded that “[t]here is no evidence before this court which would allow the court to reach the conclusion that the conduct, the actions or inactions of the defendants, created an unreasonable risk to the environment.” As the court aptly observed in the further articulation of its judgment, “this court is aware of no relaxed burden of proof, in environmental cases, which would have permitted the plaintiff to win the case without [evidence] that the defendants’ alleged actions probably caused the alleged pollution or unreasonable risk of pollution, or that the defendants’ alleged actions were a proximate cause thereof.” We concur with that assessment and conclude that the plaintiff cannot meet its burden simply by demonstrating that a natural resource of the state has been, or likely will be, polluted in the area around the municipal development plan. Rather, the plaintiff must prove that the conduct of the defendants, alone or in combination with others, very likely caused not merely a de minimis pollution, impairment or destruction of a natural resource, but an unreasonable one.

D

With that statutory burden in mind, we focus our attention on the evidence submitted by the plaintiff in support of its claim that the conduct of the defendants “has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state . . . .” General Statutes § 22a-17. In the present case, the plaintiff submitted the expert testimony of Pellegrino and DeSanto to meet its burden of proof.

The plaintiffs first expert was Pellegrino, a former professor of biology, who examined the benthic infau-nal communities, comprised of invertebrates such as worms, snails, clams and crustaceans, in the waterbod-ies near the system outfalls. Pellegrino explained that he took samples of bottom sediments from Bentley Creek, Shaw’s Cove and the Thames River on October 10, 2004. On the basis of subsequent analysis of those samples, Pellegrino concluded that those water bodies could be characterized as degraded, which he defined as “[d]egraded compared to an uncontaminated, relatively pristine habitat.”

Pellegrino testified that his “goal was simply to establish existing conditions.” Accordingly, he did not examine or compare treated and untreated system outfalls. Asked on direct examination whether he had “an opinion with regard to the contaminant levels as they relate to Bentley Creek and where they’re coming from,” Pelle-grino answered that “it really wasn’t my task to determine the source of the stress” before speculating that the “obvious one that I’m familiar with is [the] storm water outfall in . . . Bentley Creek. Other than that, I . . . don’t know. There could be other sources, but I don’t know of them.” As to other possible sources of stress, Pellegrino opined that boat traffic “absolutely” could affect test results and acknowledged that there were a number of marinas in the area, including ones in Shaw’s Cove and at the mouth of Bentley Creek. Although rainstorms too could provide a source of stress, Pellegrino stated that he did not know whether there was a rainstorm on the date of his testing or the days preceding it. He also acknowledged that Bentley Creek formerly was the site of a junkyard and that the water bodies in question were tidal areas, into which pollutants may wash from elsewhere. Nevertheless, Pel-legrino’s testimony and written report did not account for any of those possible sources of stress. Pellegrino further testified that Bentley Creek already was “highly contaminated” at the time that the municipal development plan was adopted. Notably, Pellegrino opined that, at the time of trial, Bentley Creek was “less degraded” than it was when the municipal development plan was adopted.

Pellegrino’s own testimony indicates that he offered no evidence of causation, nor was that his task. As he testified, “my goal or my task, let’s say, was to describe the biological conditions, the overall ecological health of Bentley Creek and Shaw’s Cove and that [testing location] in the Thames River.”

The plaintiffs second expert, DeSanto, was an environmental consultant who offered testimony and a corresponding report on the projected environmental impact of the municipal development plan. His testimony, over the course of two days and more than one hundred and forty pages of transcripts, concerned both test results of sediment samples from Bentley Creek, Shaw’s Cove and the Thames River, and his projections on the effect of vehicular traffic. DeSanto’s testimony and related report pertained to a study area of 312 acres, despite the fact that the municipal development plan area is comprised of only 45 acres.

DeSanto testified that his task was to determine the level of contaminants in the storm water from the municipal development plan area. Yet, absent from his lengthy expert testimony is any discussion of evidence that contaminants existed in the storm water from the system at issue. To be certain, DeSanto testified about test results from bottom sediment samples taken by Pellegrino on October 10, 2004, and samples he himself took on one day in July, 2009. It is undisputed, as the court found, that those sediment samples confirmed the existence of pollution in the water bodies. Under the burden of proof set forth in § 22a-17, such evidence is insufficient, as a plaintiff further must demonstrate that the conduct of the defendants, alone or in combination with others, caused unreasonable pollution therein.

The problems in the methodology employed by DeSanto are numerous. As already noted, his study area included more than 200 additional acres beyond that of the municipal development plan area. Like Pellegrino, DeSanto never tested the storm water entering the system, despite the fact that such testing, in his opinion, is “extremely useful.” He further testified that he did not test the storm water exiting the system. On a more basic level, DeSanto testified that, in reaching his conclusions, he did not rely on any water quality test results from any of the water bodies in question. DeSanto admitted that there are storm water watersheds within his study area that are generated by storm water which is not treated by the system, and further conceded that untreated storm water from outside the 45 acre municipal development plan area combines with the storm water treated by the system before being discharged into Shaw’s Cove and Bentley Creek. Later in his testimony, DeSanto stated that he was “certain” that the municipal development plan area even accepted storm water flow from outside of his 312 acre study area.

Moreover, he testified that, apart from the system installed as part of the municipal development plan, there is an untreated outfall that runs into Shaw’s Cove, which “[absolutely” contributes to the state of the sediment therein. Like Pellegrino, DeSanto acknowledged that there are marinas in the area, whose boats deposit pollutants into the water bodies. DeSanto also testified that the Thames River “is an impaired water body according to the federal government and state government. . . . [F]rom its mouth to Norwich, [the river] is tainted, if you want to use that phrase.”

In addition, DeSanto criticized the Vortechnic storm water system at issue, expressing his opinion that, in light of the bottom sediment test results, the system was “a failed system. It is not working.” At the same time, he testified that “hydrodynamic devices [such as the Vortechnic storm water system] are a very good tool for assistance in managing storm water discharge, storm systems, and should certainly be encouraged” and opined that “[a]ny hydrodynamic device as a part of a drainage system or a storm water management system is far better than nothing.” DeSanto admitted that the system installed by the corporation is an improvement over what previously existed in the area and testified that Bentley Creek at present was in better condition environmentally than it had been when the municipal development plan was adopted.

Apart from the test results of the bottom sediments, DeSanto’s expert testimony was predicated on the results of his vehicular traffic projections. DeSanto conducted no traffic testing on his own but, rather, relied on traffic studies that were conducted in the 1970s, which provided certain assumptions to traffic patterns in the area. Applying those assumptions, he utilized an algorithm to generate predictions of pollution from vehicular traffic in the area. As he explained: “I used this algorithm ... to report . . . what’s the predicted load of contaminants on storm water leaving a development site after the site is constructed and operated. . . . I . . . adapted that algorithm ... by finding new numbers and making new decisions about traffic loads and length of travel and the rest that’s described in my report.... [W]hat I did was a part of an overall study. I’m talking about storm water evaluation contamination from traffic management of that resource. So, my part in the study in using this algorithm was to quantify it. . . . [T]he algorithm, once again, I say it is an approximation based on the best numbers I could come up with to predict what the eventual outcome will be. . . . What my algorithm shows, based on the best science I could come up with, is a guideline as to identifying that traffic brings with it the essential characteristics leading to storm water contamination in this nature.”

Significantly, DeSanto conceded that the analysis contained therein did not account for advances in automobile technology or heightened emission standards since the 1970s. Furthermore, his presumptions were predicated on his 312 acre study area, which included the Pfizer global research campus located outside the municipal development plan area. In his testimony, DeSanto acknowledged that the municipal development plan area constitutes only 45 of the 312 acres in his study area. He further acknowledged that he knowingly selected a study area beyond those confines that included, inter alia, the Pfizer campus. Astonishingly, he explained that inclusion by stating that “Pfizer isn’t party to the legal action. Pfizer is a substantial party to the ecological action.” Questioned specifically about the study area he selected, DeSanto testified: “I don’t care about jurisdictional boundaries. I’m trying to describe the natural systems and their ecology, which are blind to jurisdictional boundaries.” Perhaps most importantly, DeSanto acknowledged that, to his knowledge, the methodology he employed in this case has not been adopted by any other scientist.

It is well established that “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D’Addario, supra, 268 Conn. 462; see also Jay v. A & A Ventures, LLC, 118 Conn. App. 506, 514, 984 A.2d 784 (2009) (as trier of fact, trial court free to accept or reject, in whole or in part, testimony offered by either party). In the present case, the court did not credit the testimony of DeSanto or Pellegrino, expressly indicating that their testimony likely would have been disallowed if the defendants had requested a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct 1384, 140 L. Ed. 2d 645 (1998), and describing “the problems with the methodologies . . . employed” by the plaintiffs experts as “dramatic.” The court further emphasized that the fundamental failing of the experts’ testimony was that it lacked any credible indication that the conduct of the defendants specifically caused impairment of a natural resource, finding that “[t]he experts took limited samples from the water and/or sediment beneath the three water bodies and did essentially nothing which would reliably demonstrate that the contaminants which they found therein came from the [municipal development plan] area.” Although it is not the place of this appellate body to usurp the trial court’s exclusive role as arbiter of credibility, we concur with that assessment in light of our careful review of the record.

Returning our attention to the proper measure of proof under § 22a-17, we repeat that the plaintiffs burden is to present evidence demonstrating that the conduct of the defendants, alone or in combination with others, very likely caused not merely a de minimis pollution, impairment or destruction of a natural resource, but an unreasonable one. The evidence submitted in the present case by the plaintiff indicates simply that the water bodies in question are polluted. As the trial court properly determined, the plaintiff failed to submit evidence establishing the requisite causal link between that pollution and the conduct of the defendants. A fortiori, we need not consider the question of whether the plaintiff met its burden of proving that the conduct of the defendants caused, or is reasonably likely to cause, an unreasonable pollution, impairment or destruction of a natural resource of the state.

II

The plaintiff also claims that the court improperly denied its motions to reconsider, to reargue, to open the judgment and to submit additional evidence. Such rulings are reviewed for an abuse of discretion. “When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court . . . (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 274, 819 A.2d 773 (2003). Under that standard, we must “make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd's & Cos. Collective, 121 Conn. App. 31, 61, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010). “The burden falls on the party challenging the exercise of discretion to demonstrate that the disputed action constituted a clear abuse of that discretion.” Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 453, 984 A.2d 748 (2010). “ [0]ur appellate decisions emphasize that an abuse of discretion leading to reversal is rare.” (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 212, 856 A.2d 997 (2004).

The plaintiffs claim with respect to its motion to reconsider is predicated on its contention that the court “misapplied” both the “applicable legal standard” and its burden of proof, a contention we rejected in part I B and C of this opinion. As such, we cannot say that the court abused its discretion in denying the motion to reconsider.

We likewise conclude that the plaintiffs claims with respect to its motions to reargue, to open the judgment and to submit additional evidence equally are without merit. They rest in part on the plaintiffs repeated allegation that the court misapplied the relevant standards, as well as its allegation that it “was' not afforded a reasonable opportunity to be heard” on the defendants’ motion for a judgment of dismissal. The October 13, 2009 transcript belies that assertion, as the court heard detailed argument from the plaintiff on the motion. As the court explained in its further articulation, “[granting [the] plaintiffs motion ... for the presentation of additional evidence — a request, in other words, for a ‘do over’ — would have been entirely inconsistent with judicial economy and the principles on which our system of justice is founded. We expect the parties to a civil action to appear for trial fully prepared to go forward. When a party comes to court unprepared to address important issues which it should have known would be disputed at trial and that party fails to meet its burden on those issues, the trial judge does not stop the proceedings and give the losing party time to correct the mistake. That is not how things work in our system of justice. The plaintiff has presented the court with no good reason why it should make an exception for this case . . . .” We cannot improve on that sentiment. On our exhaustive review of the record before us, we conclude that the court did not abuse its ample discretion in denying the plaintiffs various postjudgment motions.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, the court heard testimony that “[a] storm water management system consists of all the various components of . . . the mechanism whereby storm water, either generated through rainfall primarily or snow melt, finds its way to the point of return, to an outfall into the harbor or sea, or for areas that don’t have the opportunity to be located on the sea, into some other body of water.”

       More specifically, the complaint alleges that implementation of the municipal development plan “will generate additional vehicular traffic and other vehicular related activities [that] will result in the additional deposition on the property and in the Thames River and water bodies of at least eighteen contaminants and/or pollutants including but not limited to heavy metals and [polycyclic aromatic hydrocarbons], . . . Contaminants will enter the soil, groundwater and surface water adjacent to the Thames River and water bodies and will be transported via storm water from the property to other sensitive receptors away from the property .... The storm water runoff into the Thames River and water bodies is not properly and/or adequately treated to prevent and/or mitigate the heavy metals and/or [polycyclic aromatic hydrocarbons] being deposited into the Thames River and water bodies.”

       Practice Book § 15-8 provides in relevant-part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. . . .”

       Like the trial court in Friends of Animals, Inc. v. United Illuminating Co., supra, 124 Conn. App. 842 n.12, the court in ruling on the defendants’ motion to dismiss here repeatedly stated that the plaintiff had failed to meet its burden of proof. In its initial articulation, the court referenced the plaintiff’s “failure of proof’ and the “serious problems with the plaintiffs proof.” The court similarly stated, in its further articulation, that “the plaintiffs evidence was not sufficient to sustain [its] burden of proof,” while also indicating that the “plaintiff presented insufficient evidence to make a prima facie case.”

       General Statutes § 22a-16 provides in relevant part: “[A]ny person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .”

       When the defendants orally moved for a judgment of dismissal after the plaintiff had rested its case-in-chief, the court provided the plaintiff the opportunity to present argument on that motion. At the conclusion of the plaintiffs argument, the following colloquy transpired:
      “The Court: What is the burden here?
      “[The Plaintiffs Counsel]: The burden, as I understand it here, is we have to show that there is a reasonable likelihood of unreasonable harm to . . . one of Connecticut’s resources by a fair preponderance of the evidence.
      “The Court: So, in other words, you have to establish that something the defendants are doing or have failed to do has proximately caused this unreasonable risk of harm to the environment?
      “[The Plaintiffs Counsel]: Yes, sir.”

       We note that the plaintiff, in its reply brief, specifically states that “all the plaintiff needs to show is a reasonable likelihood of unreasonable pollution.”

       General Statutes § 22a-17 (a) provides: “When the plaintiff in any such action has made a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also prove, by way of an affirmative defense, that, considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare. Except as to the aforesaid affirmative defense, nothing in' this section shall be construed to affect the principles of burden of proof and weight of the evidence generally applicable in civil actions.”

       As the Supreme Court noted, “a claim under [the act] that conduct causes unreasonable pollution is not the same as a claim that conduct fails to comply with the requirements of other environmental statutes. To illustrate the point, the fact that conduct may be permitted under the relevant environmental statute does not preclude a claim that the activity causes unreasonable pollution under [the act], as when the alleged pollution exceeds the amount approved in the permit. Conversely, a claim that conduct is not properly authorized does not necessarily establish that the conduct causes unreasonable pollution under [the act].” Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 140-41, 836 A.2d 414 (2003). When the claim is that “there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes [unreasonable pollution] under [the act], whether the conduct is unreasonable . . . will depend on whether it complies with that scheme.” Waterbury v. Washington, supra, 260 Conn. 557. The claim in the present case is simply that the conduct of the defendants caused unreasonable pollution.

       Although the plaintiffs complaint also alleges various defects in the drafting and adoption of the municipal development plan and the related Fort Trumbull environmental impact evaluation, the plaintiff at trial presented no evidence to support those allegations. Prior to trial, the defendants filed motions in limine to preclude evidence of such procedural claims, arguing that they were beyond the scope of § 22a-16. See Fort Trumbull Conservancy, LLC v. New London, supra, 282 Conn. 808 (“the mere allegation that a defendant has failed to comply with certain technical or procedural requirements of a statute imposing environmental standards does not, in and of itself, give rise to a colorable claim of unreasonable pollution under the act”). At that time, the court indicated that it would deal with the issue as it arose during the trial. At trial, the defendants on multiple occasions renewed their objection on that basis. Each time, the plaintiff elected to move on to a different line of questioning, thereby abandoning those claims. The defendants in their respective briefs argued that the plaintiff abandoned its procedural claims at trial, and the plaintiff in its reply brief does not contest that assertion. Accordingly, we confine our review to the plaintiffs principal claim.

       We reject the plaintiffs ancillary argument that the court improperly concluded that expert testimony was required in this particular case to meet the burden of proof under § 22a-17. The specific allegations at issue pertained to the “deposition on the property and in the Thames River and water bodies of at least eighteen contaminants and/or pollutants including but not limited to heavy metals and [polycyclic aromatic hydrocarbons that would] enter the soil, groundwater and surface water adjacent to the Thames River and water bodies and will be transported via storm water from the property to other sensitive receptors away from the property.” The essence of the plaintiffs claim is that the hydrodynamic device, known as a Vortechnic storm water system, installed by the corporation “is not properly and/or adequately treated to prevent and/or mitigate the heavy metals and/or [polycyclic aromatic hydrocarbons] being deposited into the Thames River and water bodies.” As the court rightly concluded, those claims involved issues beyond the field of ordinary knowledge and experience of the trier of fact, necessitating expert testimony thereon. See Isham v. Isham, 292 Conn. 170, 186, 972 A.2d 228 (2009).

       The system features a hydrodynamic device known as a Vortechnic storm water system. In his testimony, Pellegrino twice indicated that “I really don’t understand what a vortex is anyway.”

       Although DeSanto opined that the system was not properly maintained, an assertion that the plaintiff advances on appeal, no evidence in support of that assertion was introduced at trial. To the contrary, the defendants represent, and the plaintiff does not dispute, that the storm water quality management plan, which the plaintiff introduced into evidence at trial, states in relevant part that the maintenance procedure contained therein was to begin once the proposed “construction has been completed” and that testing of storm water shall be done after the “completion of construction activity in parcels draining to the outfall being evaluated.” In addition, John Books, executive director of the corporation, testified that the system implemented as part of the municipal development plan was so advanced that the state department of environmental protection had not yet established any testing criteria therefor. Nevertheless, Joseph Jullarine, division manager of the highway department for the New London department of public works, testified that he twice “cleaned out” the Vortechnic units since the time that the city took control of the system from the corporation in 2004. Jullarine acknowledged that although there may not be a written maintenance or cleaning policy, he regularly carried out the maintenance and repair of the system for the city. Jullarine also testified that he oversaw a process by which water samples from areas within the municipal development plan area were tested at the direction of, and in coordination with, the department of environmental protection.

       In its oral ruling on October 13,2009, the court found that “the methodology utilized [by DeSanto] was totally inadequate to allow the court to draw any conclusions to a level of reasonable certainty as to any of the claims being advanced by the plaintiff. The methodology used in the testing, the selection of testing methods, the selection of testing sites, the decision not to test the water on the way in or on the way out of the Vortechnic systems all make the court conclude that his testimony has no reasonable scientific basis.”

       See, e.g., Cadle Co. v. Clark, 127 Conn. App. 160, 169, 12 A.3d 1091 (2011) (court’s denial of motion to open judgment reviewed only for abuse of discretion); Korsgren v. Jones, 108 Conn. App. 621, 527, 948 A.2d 358 (2008) (claim that court improperly denied motion for reargument reviewed under abuse of discretion standard); Shore v. Haverson Architecture &

        Design, P. C., 92 Conn. App. 469, 479, 886 A.2d 837 (2005) (“standard of review regarding challenges to a court’s ruling on a motion for reconsideration is abuse of discretion”), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006); Wasson v. Wasson, 91 Conn. App. 149, 155, 881 A.2d 356 (whether to permit further evidence after the close of testimony is matter resting within discretion of court), cert. denied, 276 Conn. 932, 890 A.2d 574 (2005).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES J. MCLAUGHLIN
    (AC 32127)
    Robinson, Alvord and Espinosa, Js.
    Argued February 9
    officially released May 1, 2012

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, James J. McLaughlin, appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and three counts of risk of injury to a child in violation of § 53-21 (a) (2). The defendant claims that the court improperly failed to admit testimony that the victim’s parents had suspicions that she had fabricated the sexual abuse claims against the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was bom in February, 1992, and was sexually abused by her uncle, the defendant, between 1999 and 2002, when the victim was between the ages of seven and ten. In April, 2006, the victim’s father, while monitoring the victim’s cell phone use, discovered and listened to several voice mail messages left on the victim’s phone by a boy who attended school with the victim. The father was disturbed because of the profane and sexual nature of the messages. The victim’s parents talked to the victim about the messages, voiced their concerns about her safety, explained that the messages seemed inappropriate and stated that it was important that the boy respect her. When her mother asked her if she knew why the boy would leave such messages or if the victim had led the boy on, the victim became upset. She replied in the negative, and added that she did not think that she was “worthy of being talked to in the right way” or “being spoken to correctly by a man or a boy.” When her parents asked her to explain her response, the victim disclosed that someone had come to her school to talk to the students about Internet safety and online predators. The victim told her parents that she did not feel safe, and that the visitor had told the students that if anything ever happened to them online, they should tell someone. The victim explained that, although nothing had happened to her online, the discussion at school led her to think about her abuse by the defendant. The victim then recounted to her parents the specific instances of abuse.

In an effort to obtain help for the victim and to gather more information, the victim’s parents made an appointment with Barbara Hennessy, a child therapist. The victim’s parents met with Hennessy to discuss the victim’s complaints against the defendant. The victim’s mother disliked Hennessy because she found Hennessy’s demeanor to be somewhat harsh and because one of Hennessy’s first responses upon hearing their account of the victim’s claims was to ask them to consider whether the victim was being truthful, to which the victim’s mother responded that her daughter would never lie about something like this. Hennessy informed the victim’s parents that she was required by law to report the victim’s claims to the department of children and families (department). The victim’s parents were surprised about the need for immediate disclosure and assumed that Hennessy would want to meet with the victim first, and they declined Hennessy’s invitation to be present when she made her call to the department. They wrote her a check for her services and left.

The day after the meeting with Hennessy, the department sent a social worker to the victim’s home, who spoke with the victim’s parents. The victim was interviewed formally a few days later by a member of a multidisciplinary team, with the police and the department social worker observing through a one-way mirror. The victim recounted the instances of abuse by the defendant and her reporting of the abuse to her parents.

Shortly after disclosing the sexual abuse, the victim began regular counseling sessions with psychotherapist Elizabeth Jorgensen. Jorgensen could not identify any motive on the part of the victim to fabricate the claims of sexual abuse by the defendant. It was her opinion that the victim had not gained anything from disclosing the abuse and, in fact, had lost a close relationship with her favorite aunt because of the disclosure. In May, 2007, the victim requested an emergency therapy session, during which she disclosed for the first time to Jorgensen new allegations that the defendant had abused her in an additional manner that she previously had not disclosed. The department and police conducted a second interview with the victim on the basis of that additional disclosure.

The defendant was arrested in December, 2006, and charged with three counts of risk of injury to a child in violation of § 53-21 (a) (1) and three counts of risk of injury to a child in violation of § 63-21 (a) (2). Following the May, 2007 additional disclosure of abuse, the defendant was also charged with one count of sexual assault in the first degree in violation of § 53a-70 (a) (2). Following a jury trial, the defendant was convicted of all counts. The court sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after twelve years, with thirty-five years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

The defendant claims on appeal that because the victim’s credibility was crucial to the state in establishing his guilt in this case, and because the victim’s mother vouched for the victim’s credibility at trial, the court erred by failing to admit to the jury proffered testimony from Hennessy that the victim’s parents initially had worried that the victim fabricated the claimed abuse to deflect attention from and to avoid punishment for the cell phone messages. The defendant claims that Hennessy’s testimony should have been admissible either under the hearsay exception for medical diagnosis and treatment or as rebuttal evidence after the victim’s mother impermissibly vouched for the victim’s credibility during cross-examination. The defendant further claims that the court’s failure to allow the testimony to be heard by the jury violated his constitutional right to present a defense under the sixth amendment to the United States constitution and his right to due process under the fourteenth amendment to the United States constitution. The defendant states that his claims were preserved adequately at trial, but also asserts that, even if unpreserved, his claims are nevertheless entitled to review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state argues that, at trial, the defendant abandoned his effort to admit Hennessy’s testimony concerning the parents’ alleged doubts about the victim’s truthfulness, thereby waiving any claims connected to the court’s decision not to allow Hennessy to testify before the jury. We agree with the state.

Both our Supreme Court and this court have stated the principle that, when a party abandons a claim or argument before the trial court, that party waives the right to appellate review of such claim because “a contrary conclusion would result in an ambush of the trial court . . . .” State v. Holness, 289 Conn. 535, 543, 958 A.2d 754 (2008). “[Wjaiver is [t]he voluntary relinquishment or abandonment — express or implied — of a legal right or notice. ... In determining waiver, the conduct of the parties is of great importance. . . . [Wjaiver may be effected by action of counsel. . . . When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal. . . . Thus, [wjaiver . . . involves the idea of assent, and assent is an act of understanding.” (Internal quotation marks omitted.) State v. Hudson, 122 Conn. App. 804, 813, 998 A.2d 1272, cert. denied, 298 Conn. 922, 4 A.3d 1229 (2010). A defendant who has waived a claim at trial similarly is not entitled to Golding review. State v. Hampton, 293 Conn. 435, 448-49, 978 A.2d 1089 (2009). “[A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party . . . or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” (Internal quotation marks omitted.) Id.

The following additional facts, as established by the record, are relevant to our resolution of whether the defendant has waived the claims now raised on appeal because they were abandoned at trial. During defense counsel’s cross-examination of Jorgensen regarding the victim’s disclosure to Jorgensen of new allegations of abuse, it came to light that Jorgensen had additional notes from the therapy sessions concerning the new abuse allegations that had not been disclosed previously and that might contain information relevant to the defense. Cross-examination of Jorgensen was suspended, and the court ordered that Jorgensen produce any previously undisclosed notes for an in camera review so that the court could determine if the notes contained information that should be disclosed to the parties. Ultimately, after conducting an in camera review, the court determined that there were portions of Jorgensen’s notes that should be disclosed, and it provided redacted copies of her notes to counsel.

Before the cross-examination of Jorgensen resumed, the defense called Hennessy to testify outside the presence of the jury for the purpose of making an offer of proof. Hennessy testified that, when the victim’s parents first contacted her, they were concerned that the victim might be using the claimed abuse as a way to avoid punishment for the messages left on her cell phone. Because of the specific nature of the victim’s claims, however, Hennessy testified that she did not believe that the victim was fabricating the claimed abuse. Defense counsel also elicited from Hennessy that the family had been “in crisis” for the past four years because the victim’s father had had an extramarital affair and that the victim was aware of the affair. According to Hennessy, the victim’s mother also revealed that her husband recently had been treated at a facility in Pennsylvania for sexual addiction and that the victim’s mother had inquired whether her husband presented any safety risk to the family. She had been assured he was not a risk.

The defense believed that Hennessy’s testimony and notes would support its theory that the victim lived in a household in which the victim overheard her parents arguing and fighting about marital problems and sexual misconduct. According to defense counsel, that atmosphere provided the victim with a motive to make up stories of inappropriate touching by the defendant in order to draw her parents back together by uniting them against a common enemy — the defendant. The defense also suggested a possible alternative theory that found support in Hennessy’s testimony, namely, that the victim made up the abuse to divert her parents’ attention from what they had discovered on her cell phone. It was in support of both theories that the defense initially sought to present the aforementioned testimony of Hennessy to the jury along with Hennessy’s notes of her session with the victim’s parents, which she had referred to throughout her testimony.

The state objected to the admissibility of Hennessy’s testimony, arguing that the proffered testimony was hearsay. Defense counsel argued that the testimony was admissible under the medical treatment exception to the hearsay rule. The court heard argument from both sides, but it deferred ruling at that time on whether it would allow Hennessy to testify before the jury. The court recessed for lunch.

After the lunch recess, the defense, having now reviewed Jorgenson’s recently disclosed notes, resumed its cross-examination of Jorgensen. On the basis of those notes, defense counsel elicited from Jor-gensen that the victim had overheard her parents fighting about and discussing her father’s infidelity. Jorgensen also testified that the victim’s parents had made the victim aware of her father’s extramarital affair.

At the conclusion of Jorgensen’s testimony, the jury was excused for the afternoon recess. The state indicated to the court that it had finished with its presentation. The state having rested, the court indicated that defense counsel could proceed to call defense witnesses, if any. To this, defense counsel replied, “We should resolve the Hennessy issues.” Before stating its offer of proof as to Hennessy, defense counsel indicated to the court: “I was able to accomplish a good deal of what I needed to do through [Jorgensen] that I intended to try to do through [Hennessy]. ” As to the offer of proof, defense counsel stated: “If I were to call [Hennessy], she would testify that when she met with doctor — when she met with [the victim’s parents] she learned that [the victim’s father] had recently returned to the home after being away, that he was away being treated for sexual obsession or whatever it was, and that the [victim’s mother] had called the facility to make sure it was safe for him to come out of concern for her safety for her family. That’s all that I really want from this witness and that’s why I would put her on the stand if I were to put her on. If it’s not admissible I’ll send her home.” (Emphasis added.) The state objected, arguing that the proffered information was inadmissible. The court agreed, stating that “with regard to the sexual addiction, the safety of the home, it’s not admissible in relation to this particular witness at this juncture.”

The defendant’s arguments on appeal derive from his claim that the court committed reversible error by failing to admit Hennessy’s testimony that the victim’s parents initially were suspicious that the victim was making up the claimed abuse to avoid punishment for the cell phone messages. Our review of the record, however, and in particular that portion of the transcript containing defense counsel’s offer of proof to the court concerning Hennessy’s testimony, reveals that the defendant abandoned any earlier effort to have the jury hear from Hennessy except as to her testimony that the victim’s father had been treated for sexual addiction and that the victim’s mother had inquired of his treatment center whether he posed a threat to the family. The court ruled that that particular information was not admissible, and the defendant is not challenging that ruling on appeal. Because Hennessy’s testimony that the victim’s parents initially had doubts concerning the credibility of the victim’s claims was not a part of the defendant’s offer of proof, the court never ruled on the admissibility of that testimony. The defendant’s claim depends on an adverse evidentiary ruling that was never made. “We cannot pass on the correctness of a trial court ruling that was never made.” Fischel v. TKPK, Ltd., 34 Conn. App. 22, 26, 640 A.2d 125 (1994). By abandoning his effort to admit Hennessy’s testimony concerning the parents’ alleged doubts about the victim’s truthfulness, the defendant effectively waived any appellate issues connected to the court’s decision not to allow Hennessy to testify.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also argues in his brief that the court violated his rights under article first, § 8, of the Connecticut constitution. The defendant, however, has not provided this court with a separate and independent analysis of his state constitutional claim, and therefore we cannot review the claim. See State v. Sinvil, 270 Conn. 516, 518 n.1, 853 A.2d 105 (2004) (“We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” [Internal quotation marks omitted.]).


author: DiPENTIMA, C. J.

text:
    THOMAS GERMAIN v. TOWN OF MANCHESTER ET AL.
    (AC 33167)
    DiPentima, C. J., and Beach and Bear, Js.

      Argued February 8
    officially released May 1, 2012

      Thomas Germain, pro se, the appellant (plaintiff).

      Timothy P. O’Neil, administrative staff attorney, for the appellees (named defendant et al.).

      Paula Sobral Pearlman, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (defendant freedom of information commission).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Thomas Germain, appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant freedom of information commission (commission). On appeal, the plaintiff claims that the court improperly (1) interpreted General Statutes § 1-212 (g) to limit the permissible type of scanner that can be used to copy public documents to a scanner that is held in the hand and dragged across the page being copied, to the exclusion of any other battery operated scanner, (2) deferred to the commission’s interpretation of § 1-212 (g) and (3) concluded that the commission’s prior decision in Kreutzer v. Assistant Dean, Administration & Special Projects, Freedom of Information Commission, Docket No. FIC 2004-463 (September 28,2005), was inapplicable. We affirm the judgment of the trial court.

The record discloses the following relevant factual and procedural history. The plaintiff operates a title search company, which in part requires that he and his staff search through public records, especially land records, in the custody of the defendant town of Manchester (town) to determine for his clients whether various property titles are valid or encumbered in some manner. The plaintiff began operating this business at the end of 2001, at which time no scanners of any kind were permitted in the town clerk’s office. The plaintiff first used a portable flatbed scanner to copy land records in the town clerk’s office in 2002, the year that § 1-212 (g) was enacted. In March, 2009, the plaintiff was informed by the defendant Joseph Camposeo, its town clerk (town clerk), that he no longer could use his flatbed scanner to copy land records on the ground that his scanner was not considered a “ ‘hand-held scanner’ ” within the meaning of § 1-212 (g). The plaintiff then complained to the commission that the town, through its town clerk, had violated the Freedom of Information Act (act), General Statutes § 1-200 et seq., by refusing to allow him to copy public records using a portable flatbed scanner.

After a hearing, the commission found that the use of a flatbed scanner would be “very likely to leave a mark or impression on the record.” The commissioner concluded that the relevant language in § 1-212 (g) was clear and unambiguous and that the plaintiffs flatbed scanner was not a hand-held scanner within the meaning of the statute. Accordingly, the commission dismissed the plaintiffs complaint.

The plaintiff appealed to the trial court, claiming that (1) § 1-212 (g) permits any battery operated scanner that does not mark the public record and does not interfere with the operation of the public agency, (2) the plaintiffs scanner, in fact, was equivalent to a hand-held scanner and (3) the commission had determined in a prior decision that a scanner did not have to meet the definition of “ ‘hand-held’ ” as set forth in the commission’s decision dismissing his complaint. The court rejected each of the plaintiffs claims and, accordingly, dismissed the appeal. The plaintiff filed a motion to reargue, which was denied. This appeal followed.

Before addressing the plaintiffs claims, we set forth the applicable standard of review. “As we frequently have stated, [a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Williams v. Freedom of Information Commission, 108 Conn. App. 471, 476, 948 A.2d 1058 (2008). “Ordinarily, we give great deference to the construction given a statute by the agency charged with its enforcement. . . . [T]he construction and interpretation of a statute is a question of law for the courts where the administrative decision is not entitled to special deference, particularly where . . . the statute has not previously been subjected to judicial scrutiny or time-tested agency interpretations.” (Internal quotation marks omitted.) Clerk of the Superior Court v. Freedom of Information Commission, 278 Conn. 28, 36, 895 A.2d 743 (2006). Although this court previously has construed certain provisions of the act as they apply to the judicial branch; see, e.g., Connecticut Bar Examining Committee v. Freedom of Information Commission, 209 Conn. 204, 210-11, 550 A.2d 633 (1988); we have not addressed the application of the act to the issues presented in § 1-212 (g). Accordingly, our standard of review is de novo. Clerk of the Superior Court v. Freedom of Information Commission, supra, 37.

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance 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.” (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 301 Conn. 323, 338, 21 A.3d 737 (2011).

I

First, the plaintiff claims that the court improperly interpreted § 1-212 (g) to limit the permissible type of scanner that can be used to copy public documents to a scanner that is held in the hand and dragged across the page being copied, to the exclusion of any other battery operated scanners. We disagree.

We begin our analysis with the language of the relevant statute. As we have stated, § 1-212 (g) provides that “[a]ny individual may copy a public record through the use of a hand-held scanner. A public agency may establish a fee structure not to exceed twenty dollars for an individual to pay each time the individual copies records at the agency with a hand-held scanner. As used in this section, ‘hand-held scanner’ means a battery operated electronic scanning device the use of which (1) leaves no mark or impression on the public record, and (2) does not unreasonably interfere with the operation of the public agency.”

Here, the plaintiff argues that regardless of the appearance of the word “hand-held” in the statute, because his portable flatbed scanner meets the other criteria set forth in § 1-212 (g), his scanner qualifies as a “ ‘hand-held scanner.’ ” In support of his argument, the plaintiff cites the statutory canon of construction providing that “[w]hen any piece of legislation defines the terms as they are used in it, such definition is exclusive of all others.” Neptune Park Assn. v. Steinberg, 138 Conn. 357, 362, 84 A.2d 687 (1951). Thus, the plaintiff argues that § 1-212 (g) is definitional, and, therefore, the word “hand-held” is not part of that definition because that word is part of the term that is being defined, namely, “ ‘hand-held scanner.’ ” The trial court concluded to the contrary that “while the legislature used the word ‘means’ in the third sentence, a typical word in definitions, it is equally plausible that the legislature intended to indicate that, even in allowing hand-held scanners, it was setting forth ‘conditions’ on their use.”

“In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” (Internal quotation marks omitted.) Wasko v. Farley, 108 Conn. App. 156, 163, 947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008). Under the plaintiffs interpretation of the plain language of § 1-212 (g), the word “hand-held,” in effect, is written out of the statute. It is well established that “[a] statute must be interpreted to give effect to all its provisions. ... No word within a statute is to be rendered mere surplusage.” (Citation omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 40, 664 A.2d 719 (1995). Although it is true that “legislatures may define the terms used in their enactments and that courts are bound to accept their definitions”; United Interchange, Inc. v. Spellacy, 144 Conn. 647, 654, 136 A.2d 801 (1957); the plaintiffs interpretation of § 1-212 (g) would render meaningless the word “hand-held,” which was included expressly by the legislature in § 1-212 (g). See id., 655 (“it is questionable whether a legislature could, by defining as a dog an animal having the components of a horse, subject the owner of a horse to the dog licensing statute”). Moreover, this obviously is not a case where the trial court, in requiring that “ ‘hand-held scanners’ ” be “hand-held,” improperly read a term into a statute. “It is not the function of courts to read into clearly expressed legislation provisions which do not find expression in its words . . . nor is it our function to substitute our own ideas of what might be a wise provision in the place of a clear expression of the legislative will.” (Citation omitted; internal quotation marks omitted.) International Business Machines Corp. v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974); see also Bell Atlantic NYNEX Mobile, Inc. v. Commissioner of Revenue Services, 273 Conn. 240, 256-57, 869 A.2d 611 (2005) (citing canon that courts must accept legislative definitions, court concluded that defendant partnership could not establish eligibility for tax credit because legislative definition of “ ‘taxpayer’ ” did not include partnerships in list of entities set forth in definition). The plaintiffs strained inteipretation of § 1-212 (g), therefore, is not reasonable in light of the plain and unambiguous text of the statute.

II

The plaintiff next claims that the court improperly deferred to the commission’s inteipretation of the statute. Specifically, the plaintiff argues that although the court quoted language that a decision of statutory interpretation involves a “ ‘de novo’ ” review, its analysis suggested “great deference” to the commission’s interpretation of the statute. The defendants counter that the court properly applied a de novo standard of review to the plaintiffs claims. We agree with the defendants.

In its memorandum of decision, the court rejected the plaintiffs argument that § 1-212 (g) may be read to allow scanners that are not “hand-held.” The court explained as follows: “[T]he legislation set up a procedure and payment schedule for the use of hand-held scanners at the public agency .... The enactment of this specific provision, to the exclusion of any other type of scanner, supports the conclusion that only hand-held scanners were intended. Finally, while the legislature used the word ‘means’ in the third sentence, a typical word in definitions, it is equally plausible that the legislature intended to indicate that, even in allowing hand-held scanners, it was setting forth ‘conditions’ on their use. The court thus finds that a ‘reasoned’ interpretation; Dept. of Public Safety [v. Freedom of Information Commission, 298 Conn. 703, 720, 6 A.3d 763 (2010)]; of § 1-212 (g) is that it allows for the use of hand-held scanners under the conditions set forth in the statute. This interpretation of the third sentence of § 1-212 (g) is thus effective and workable. See Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 378, 977 A.2d 650 (2009).” (Citation omitted.)

Here, the corut never stated nor suggested that it was affording any deference to the commission’s interpretation of § 1-212 (g). That the court ruled in the commission’s favor does not mean that it necessarily afforded deference to the commission. Rather, the memorandum of decision clearly shows that the court engaged in a de novo review of the statutory language, legislative history and governing precedent. See, e.g., Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 390 n.18, 709 A.2d 1116 (1998) (no deference warranted to agency interpretation when agency failed to make public declaration of interpretation and had applied interpretation for only four years); cf. Dept. of Public Safety v. Freedom of Information Commission, supra, 298 Conn. 717-18 (trial court improperly reviewed commission’s decision for abuse of discretion rather than applying plenary review). We therefore conclude that the court did not improperly defer to the commission’s interpretation of the statute.

Ill

Finally, the plaintiff claims that the court improperly concluded that the commission’s prior decision in Kreutzer v. Assistant Dean, Administration & Special Projects, supra, Freedom of Information Commission, Docket No. FIC 2004-463, was inapplicable. Specifically, the plaintiff argues that the court improperly upheld the commission’s overruling of Kreutzer. We disagree.

In Kreutzer, the complainant alleged that the commission violated the act by denying him the right to scan stapled records. Id. The commission found that the complainant began to scan documents using a “battery-operated portable scanner that required individual sheets to be fed through a set of rollers in order to be copied.” Id. The respondent argued that the complainant’s portable scanner did not fall within the definition of “ ‘hand-held scanner’ ” in § 1-212 (g) because (1) the scanner rested on a table or flat surface and, thus, was not “ ‘hand-held,’ (2) the device had a risk to mark or leave an impression on the records, (3) any device that pulls the original through a mechanism has a higher risk to mark the page than one in which the paper sits on a flatbed and does not move, (4) the General Assembly’s intent in passing Public Acts 2002, No. 02-137, § 2, was to permit a hand-held device that would be passed over a page or section of a page, thus requiring no removal of staples and (5) removing staples unreasonably interferes with the operation of the respondent’s office, because removing staples can result in files in which documents are improperly rearranged. Id. The commission in Kreutzer rejected the respondent’s claims, stating, among other things, that the complainant’s portable scanner qualified as a “ ‘hand-held scanner’ ” because it was a battery operated electronic scanning device within the meaning of § 1-212 (g). Id.

Here, the commission’s final decision stated that the plaintiffs interpretation of § 1-212 (g) would “render the term ‘hand-held’ nugatory . . . .” Accordingly, the commission concluded that “[t]o the extent that the decision in Kreutzer is not in accord with the instant decision, such decision is overruled.” The court upheld the commission’s conclusion. The court stated that Kreutzer was distinguishable factually from the present case because the copies sought to be scanned in Kreu-tzer, while public documents, were not land records in a town hall but, rather, were a stapled collection of papers. Further, the court emphasized the fact that the plaintiff could not “bind an agency to a prior decision that the agency legitimately concludes needs modification.” The court concluded that the commission’s decision to modify Kreutzer was “appropriately and reasonably made.”

The plaintiff argues that the commission’s overruling of Kreutzer violates the doctrine of stare decisis. We disagree. “It is a rare case in which a court will reverse an administrative body because of its failure to apply the doctrine of stare decisis, or because in a particular case it has departed from the policy expressed in earlier cases. ... In those cases where reversal is justified, the administrative decision must be palpably arbitrary, unreasonable or discriminatory.” (Citation omitted; internal quotation marks omitted.) New Britain v. Connecticut State Board of Labor Relations, 31 Conn. Sup. 211, 215, 327 A.2d 268 (1974). “Reconsideration of a previously stated policy is a prerogative of administrative agencies, which are ordinarily not restrained under the doctrine of stare decisis or on the grounds of equitable estoppel.” Id.; see 73A C.J.S. 165, Public Administrative Law & Procedure § 292 (2004) (“[i]f a reviewing court is satisfied that the administrative agency has provided a reasoned analysis for departing from its own established policy indicating that prior policies and standards are being deliberately changed and not casually ignored, so that agency’s path may reasonably be discerned, the court will affirm the agency’s decision”).

The plaintiff argues that no reason is stated in the commission’s final decision for overruling Kreutzer. In the same paragraph of the final decision where the commission overruled Kreutzer, however, the commission explained: “It is concluded that the term ‘hand-held’ in § 1-212 (g) . . . is readily understood to modify the word scanner. It is further concluded that the phrase ‘hand-held scanner’ in § 1-212 (g) . . . is generally understood to refer to a particular type of scanner that is held in one’s hand and is moved by hand across the document being scanned.” The commission set forth its interpretation of § 1-212 (g) by concluding that the permissible scanners must be “ ‘hand-held’ ” within the common and ordinary meaning of the term and, accordingly, overruled Kreutzer. On the basis of our review of the record, we conclude that the court properly determined that the commission appropriately and reasonably overruled Kreutzer.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named Joseph Camposeo, town clerk of Manchester, and the town of Manchester as defendants. The town clerk and the town joined in the brief of the commission.

       General Statutes § 1-212 (g) provides: “Any individual may copy a public record through the use of a hand-held scanner. A public agency may establish a fee structure not to exceed twenty dollars for an individual to pay each time the individual copies records at the agency with a hand-held scanner. As used in this section, ‘hand-held scanner’ means a battery operated electronic scanning device the use of which (1) leaves no mark or impression on the public record, and (2) does not unreasonably interfere with the operation of the public agency.”

       The plaintiff also claims that the court improperly relied on Municipal Clerk v. Freedom of Information Commission, Superior Court, judicial district of New Britain, Docket No. CV-00-0500645-S (April 3, 2001), to find a legislative intent to limit the use of scanners to the type held in the hand and dragged across the page being copied. Because we conclude that the language of § 1-212 (g) unambiguously requires that the permissible scanners be “hand-held” and that the common meaning of this term does not include the plaintiffs flatbed scanner; see footnote 6 of this opinion; we do not address this issue. See Wasko v. Farley, 108 Conn. App. 156, 162, 947 A.2d 978 (“General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” [Internal quotation marks omitted.]), cert. denied, 289 Conn. 922, 958 A.2d 155 (2008).
      For the same reason, we also need not address the plaintiffs claim that the court improperly concluded that the evidence in the record supported the commission’s finding that his scanner could cause damage to the public documents being scanned.

       The commission found, in its final decision, that “all of the land records at issue in this case are official copies of original documents, which are maintained in a vault at the Manchester town hall. The [defendant] town clerk testified that all of the records maintained in the vault in hardcopy form are also available electronically.” Further, the commission found that the plaintiff did purchase a hand-held scanner, but he testified that “using a hand-held scanner is more difficult than using a flatbed scanner because it requires the person operating the scanner to move it across the records with a steady hand.”

       General Statutes § 1-210 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. ...”

       The plaintiff does not argue on appeal that his portable flatbed scanner is actually “hand-held” within the common meaning of the term. According to common understanding as expressed in dictionary definitions, “hand-held” is defined as something “small enough to be used or operated while being held in the hand or hands . . . .” Random House Webster’s Unabridged Dictionary 866 (2d Ed. 2001). Moreover, the commission took administrative notice of the fact that a “hand-held scanner” is “commonly understood to be an optical scanner which is designed to be moved by hand across the object or document being scanned.”

       See also Public Acts 2002, No. 02-137, § 3.