text:
    DIAMOND 67, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF VERNON
    (AC 29743)
    Bishop, Gruendel and Harper, Js.

      Argued April 21
    officially released September 15, 2009

      Derek V. Oatis, for the appellant (proposed intervenor).

      Harold R. Cummings, with whom, on the brief, was Doreen Amata, for the appellee (defendant).

      Robert A. Fuller, with whom was Stanley Fal-kenstein, for the appellee (plaintiff).

      Charles D. Ray, with whom, on the brief, were John R. Mallin and Jessica A. Villardi, for the appellee (intervening plaintiff Home Depot U.S.A., Inc.).
   Opinion

HARPER, J.

This appeal arises out of a judgment rendered in accordance with a stipulation of the parties in which the plaintiff, Diamond 67, LLC (Diamond); the intervening plaintiff, Home Depot U.S.A., Inc. (plaintiffs unless otherwise stated); and the defendant, the planning and zoning commission of the town of Vernon, purported to settle this mandamus action pertaining to Diamond’s site plan application. The proposed interve-nor, Glenn Montigny, claims that the trial court improperly (1) denied his renewed motion to intervene and (2) rendered judgment in accordance with the stipulated agreement between the plaintiffs and the defendant. We reverse the judgment of the trial court.

The following relevant facts and procedural history are not in dispute. In 2003, in connection with its proposed development of the subject property known as 117 Reservoir Road in Vernon, Diamond applied to the Vernon inland wetlands commission (wetlands commission) for a wetlands permit and to the defendant for site plan approval and related permits. Thereafter, the wetlands commission denied Diamond’s application, and Diamond appealed to the Superior Court. On May 10,2007, after several proceedings before the Superior Court and the wetlands commission, the court, Hon. Lawrence C. Klaczak, judge trial referee, sustained the appeal and remanded the application to the wetlands commission for the purpose of attaching conditions to the issuance of a wetlands permit. The wetlands commission subsequently issued a permit to Diamond.

In 2003, while resolution of Diamond’s wetlands permit application was pending, the defendant tabled Diamond’s site plan and related permit application. After the wetlands application was substantially resolved by the judgment of the Superior Court in May, 2007, Diamond filed a new and similar application with the defendant for approval of a site plan and related permits. In June, 2007, however, Diamond made a written demand to the defendant to approve its 2003 application, alleging that the defendant had failed to act within the time limits in General Statutes § 8-3 (g) and General Statutes (Rev. to 2003) § 8-7d. In July, 2007, after the defendant failed to respond to Diamond’s demand letter, Diamond filed this action, seeking a writ of mandamus directing the defendant to issue a certificate of approval of the 2003 application. Thereafter, the defendant denied Diamond’s 2003 application, a decision from which Diamond filed an administrative appeal, separate from its mandamus action.

While the mandamus action and the administrative appeal were pending, Montigny filed a motion, pursuant to General Statutes § 22a-19 (a), to intervene in both actions. Section 22a-19 (a) grants standing as a matter of right in any administrative, licensing or “other proceeding” to anyone asserting that the proceeding involves conduct which has, or is reasonably likely to have, the effect of unreasonably polluting the environment. On October 17, 2007, the court, Sferrazza, J., granted Montigny’s motion to intervene in the administrative appeal and denied his motion to intervene in the mandamus action. The court’s rationale was that the administrative appeal clearly fell within the ambit of § 22a-19 (a) but that Montigny did not have the right to intervene in the mandamus action because the complaint was based on the automatic approval doctrine; see 109 North, LLC v. Planning Commission, 111 Conn. App. 219, 959 A.2d 615 (2008) (subdivision application approved by operation of law automatically under General Statutes § 8-26); and, therefore, the environmental impact of the site plan was immaterial.

After the court denied Montigny’s motion to intervene in the mandamus action, the plaintiffs and the defendant engaged in mediation and settlement discussions in the mandamus action, in which Montigny was precluded from participating. The settlement discussions led to a possible agreement on a new site plan, which differed from the 2003 application at issue in both appeals. The defendant held an informal public forum to discuss the new plan but acknowledged that the forum “was not a public hearing as that term is legally defined . . . .” Thereafter, the defendant voted to approve the settlement, and Diamond moved for the court to render judgment in accordance with it. On February 13, 2008, before any action was taken on the motion for judgment in accordance with the settlement agreement, Montigny filed a renewed motion to intervene. He argued that unlike the issues in a mandamus action, review of the settlement between the plaintiffs and the defendant required the court to consider the environmental impact of the new plan, and, therefore, pursuant to § 22a-19 (a), he had a right to intervene.

On February 14, 2008, a hearing took place on the motion for judgment in accordance with the settlement agreement. The court, Sferrazza, J., began the hearing by denying Montigny’s renewed motion to intervene but permitted Montigny’s counsel to participate in the hearing on a limited basis. Consistent with the request by the plaintiffs and the defendant, the court treated the motion as one for judgment in accordance with their settlement. See footnote 3. The court did not conduct a hearing compliant with General Statutes (Rev. to 2003) § 8-8 (n), which requires a more scrupulous review of settlements in administrative appeals. See generally Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 724 A.2d 1108 (1999).

At the hearing, Montigny’s counsel articulated his argument on the motion to intervene, but he was not permitted to address the environmental impact of the proposed settlement. Counsel for the defendant and the plaintiffs provided a brief description of the agreed on modifications to the 2003 application, but the court did not inquire about the merits of the mandamus action or the environmental implications of the settlement. The court rendered judgment in accordance with the terms of the settlement after confirming that the representatives of the plaintiffs and the defendant understood it. This appeal followed.

Montigny claims that the court improperly denied his renewed motion to intervene in the mandamus action. Before we address Montigny’s claim, we must address the plaintiffs’ claim that we should dismiss this appeal because the case has already gone to final judgment, and, therefore, the appeal is moot. “Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction .... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . Most post-judgment appeals filed by would-be interveners will be moot because the relief sought, i.e., intervention into the underlying action, cannot be granted once the action has gone to judgment.” (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn. App. 537, 542, 867 A.2d 37 (2005), aff'd, 280 Conn. 405, 908 A.2d 1033 (2006).

In the present case, although a final judgment already has been rendered, the case is not moot because this court can provide practical relief to Montigny. “The court . . . has continuing jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but ... it must first reinstate it on the docket before granting the relief sought. . . . There is no reason why the trial court does not have jurisdiction to restore a case that has been voluntarily withdrawn to the active docket, just as it can open a judgment or restore to the docket a case that has been erased. (Citation omitted; internal quotation marks omitted.) Matey v. Waterbury, 24 Conn. App. 93, 97, 585 A.2d 1260, cert. denied, 218 Conn. 908, 588 A.2d 1382 (1991). Montigny claims that he had a vested right to intervene in the action. He argues that, if he had been permitted to intervene, the parties would not have been allowed to settle without his agreement and that the improper denial of his right prevented him from objecting to the settlement. We conclude that Montigny’s claim is not moot, and, therefore, we address its merits. See id., 97-98.

Montigny claims that the court improperly denied his renewed motion to intervene because, pursuant to § 22a-19 (a), he had the right to intervene in the review of the settlement between the plaintiffs and the defendant. When an appeal is filed following the denial of a motion to intervene as of right, we review de novo the trial court’s determination as to the nature and extent of the interests at issue in the motion. Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 454, 904 A.2d 137 (2006).

Section 22a-19 (a) provides in relevant part: “In any administrative, licensing or other proceeding, and in any judicial review thereof . . . any person ... or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” Section 22a-19 (a) is in derogation of the common-law right to intervention. Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, 266 Conn. 338, 361, 832 A.2d 611 (2003). “[Statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction.” (Internal quotation marks omitted.) Id. Environmental statutes, such as § 22a-19 (a), however, “are considered remedial in nature and are to be construed liberally to accomplish their purpose.” Keeney v. Fairfield Resources, Inc., 41 Conn. App. 120, 132-33, 674 A.2d 1349 (1996). Bearing in mind these contradictory principles of statutory construction, we must apply § 22a-19 (a) so as to serve its legislative purpose and avoid “ ‘absurd consequences and bizarre results.’ ” Id., 132.

The plaintiffs and the defendant argue that the court correctly denied Montigny’s renewed motion to intervene because § 22a-19 (a) does not permit intervention in a mandamus action. The plaintiffs’ and the defendant’s argument is twofold: (1) § 22a-19 (a) permits intervention only in administrative proceedings and judicial review thereof, and, therefore, it does not permit intervention in a mandamus action, which is a civil action brought originally in the Superior Court; and (2) § 22a-19 (a) does not permit intervention in the context of a mandamus action that is based on the alleged failure of a planning and zoning commission to comply with §§ 8-3 (g) and 8-7d because environmental considerations are immaterial to resolution of the action. We will address these arguments separately.

The plaintiffs and the defendant are incorrect that § 22a-19 (a) applies only to administrative proceedings. Section 22a-19 (a) provides in relevant part that anyone asserting environmental issues may intervene in any “administrative, licensing or other proceeding, and in any judicial review thereof . . . .” (Emphasis added.) The plaintiffs and the defendant quote Polymer Resources, Ltd. v. Keeney, 32 Conn. App. 340, 348, 629 A.2d 447 (1993), in support oftheir argument that “[s]ection 22a-19 (a) does not provide . . . the right to intervene in [a] civil action.” Notwithstanding the unambiguous language of Polymer Resources, Ltd., this court later determined in Zoning Commission v. Fair-field Resources Management, Inc., 41 Conn. App. 89, 99-105, 674 A.2d 1335 (1996), that its opinion in Polymer Resources, Ltd., was not legally viable because there was no actual controversy in the case when the opinion was rendered. In Zoning Commission v. Fairfield Resources Management, Inc., supra, 115, this court also held that § 22a-19 (a) permitted intervention in a civil action for injunctive relief because the action fell within the ambit of the “ ‘other proceeding’ ” language of the statute. Therefore, § 22a-19 (a) applies to civil actions brought originally in the Superior Court. It is not limited to situations in which there is an administrative record. Keeney v. Fairfield Resources, Inc., supra, 41 Conn. App. 137.

We next consider whether Montigny was entitled to intervene in the court’s review of the settlement at issue in the present case, which the plaintiffs and the defendant claim to have reached to settle the plaintiffs’ mandamus action. “An action for a writ of mandamus . . . is available only in limited circumstances to achieve limited purposes. It lies to compel a public official to perform his duty. . . . The duty it compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary. ... It is available only to one who has a clear legal right to the performance sought.” (Citations omitted; internal quotation marks omitted.) Beccia v. Waterbury, 185 Conn. 445, 453-54, 441 A.2d 131 (1981). In general, there is no right to intervene in a mandamus action because the only necessary party is the person or entity whose duty it is to perform the act sought. See Jones v. Ricker, 172 Conn. 572, 575-76, 375 A.2d 1034 (1977).

This court has held, however, that intervention as of right is not necessarily improper in a mandamus action. See State Board of Education v. Waterbury, 21 Conn. App. 67, 71, 571 A.2d 148 (1990). In State Board of Education, this court held that it was improper to deny the motion to intervene of a party that had a right to intervene pursuant to General Statutes § 52-107, which provides in relevant part: “If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.” (Internal quotation marks omitted.) State Board of Education v. Waterbury, supra, 70 n.4.

Although State Board of Education establishes that it may be proper to grant a motion for intervention as of right in a mandamus action, that case is distinguishable from the present case. Here, Montigny did not claim to have an interest or title that the judgment would affect. He claimed to have a right to intervene pursuant to § 22a-19 (a), which permits intervention only for the purpose of raising environmental issues. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 248 n.2, 470 A.2d 1214 (1984). The only issue in the plaintiffs’ mandamus action was whether the defendant acted on Diamond’s site plan application within the time constraints of §§ 8-3 (g) and 8-7d. If the plaintiffs established that the defendant had not acted within those time constraints, the court would have no discretion to order anything other than a writ directing the defendant to grant Diamond’s application. See General Statutes § 8-3 (g). The court had no discretion to consider environmental issues in the plaintiffs’ mandamus action, and, therefore, § 22a-19 (a) did not provide Mon-tigny with the right to intervene in it.

Our inquiry would end here if it were clear that the mandamus action was the focus of the settlement between the plaintiffs and the defendant. The specific circumstances of this case, however, require us to examine further the context of the settlement. In the present situation, the relief sought by the plaintiffs in their mandamus action and in their administrative appeal was the approval of their 2003 site plan application. Notwithstanding the duality of the relief sought, the merits of the two actions bore no relation to each other. The merits of the mandamus action depended entirely on the timeliness of the actions of the defendant. By contrast, the merits of the administrative appeal depended on the sufficiency of the evidence in the administrative record to support the defendant’s decision to deny Diamond’s site plan application. See generally Longley v. State Employees Retirement Commission, 284 Conn. 149, 163-67, 931 A.2d 890 (2007). The plaintiffs and the defendant do not dispute that Montigny had the right to intervene in the administrative appeal for the purpose of raising environmental issues. We conclude that the substance of the settlement between the plaintiffs and the defendant focused on the issues of the administrative appeal and not solely on the issues of the mandamus action. For this reason, we conclude that the court improperly denied Montig-ny’s renewed motion to intervene in the mandamus action.

At the settlement hearing, although counsel for the defendant maintained that the administrative appeal was not the subject of the settlement, he also stated that the administrative appeal would likely be withdrawn as moot because the settlement “addresse[d] the issues in th[e] administrative appeal.” Also at the settlement hearing, counsel for the plaintiffs stated that before the defendant voted to approve the settlement, a public forum was held to discuss the differences between the newly proposed site plan and the original site plan. A review of the transcript of the settlement hearing illustrates that those differences have environmental implications, which were at issue in the administrative appeal and irrelevant in the mandamus action. Appellate courts of our jurisdiction have long eschewed the practice of elevating form over substance. Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 637, 969 A.2d 736 (2009). In substance, the settlement between the plaintiffs and the defendant resolved the administrative appeal. This being true, the court improperly denied Montigny’s renewed motion to intervene and failed to conduct a hearing compliant with § 8-8 (n). See Willi-mantic Car Wash, Inc. v. Zoning Board of Appeals, supra, 247 Conn. 744; Dietzel v. Planning Commission, 60 Conn. App. 153, 164, 758 A.2d 906 (2000).

Accordingly, we reverse the judgment denying Mon-tigny’s motion to intervene and remand the case to the Superior Court with direction to open the judgment that was rendered in accordance with the settlement and to grant Montigny’s motion to intervene. On remand, before rendering judgment in accordance with a settlement between the plaintiffs and the defendant, the court must conduct a hearing compliant with § 8-8 (n) to review the settlement, in which Montigny is entitled to participate for the purpose of raising environmental issues. Our holding today should not be construed so broadly as to preclude settlements in mandamus actions. Our holding is limited to the circumstances presently before us, in which the purported settlement of the mandamus action was reached through concessions that addressed the substance of the administrative appeal, which were irrelevant in the mandamus action, and in which the parties could not have settled the administrative appeal without the participation of Montigny.

The judgment is reversed and the case is remanded with direction to grant Montigny’s motion to intervene and for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Diamond originally applied for site plan approval and permits. Home Depot U.S.A., Inc., subsequently intervened in the administrative appeals that resulted from the denial of those applications and in this mandamus action.

       General Statutes § 8-3 (g) provides in relevant part,: “Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. . . .”
      General Statutes (Rev. to 2003) § 8-7d (a) provides in relevant part: “[I]n all matters wherein a formal petition, application, request or appeal must be submitted to a . . . planning and zoning commission . . . and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. . . .”
      General Statutes § 8-7d (e) provides in relevant part: “Notwithstanding the provisions of this section, if an application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive [of the Inland Wetlands and Watercourses Act], and the time for a decision by a zoning commission or planning and zoning commission established pursuant to this section would elapse prior to the thirty-fifth day after a decision by the inland wetlands agency, the time period for a decision shall be extended to thirty-five days after the decision of such agency. . . .”

       Diamond filed a motion entitled “Motion for Approval of Settlement Agreement.” At the hearing on the motion, the defendant and Home Depot U.S.A., Inc., joined in that motion. Counsel for the defendant also stated to the court that the motion was not in substance a motion for approval of a settlement under General Statutes § 8-8 (n), which is required in the context of a settlement of an administrative appeal, and that the correct title for the motion should have been “Motion for Judgment in Accordance with the Stipulation.”

       General Statutes (Rev. to 2003) § 8-8 (n) provides: “No appeal taken under subsection (b) of this section [by any person aggrieved by any decision of a board, including a decision to approve or deny a site plan] shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.”

       The denial of a motion to intervene is a final judgment for purposes of appealability if the would-be intervenor has a colorable claim of a right to intervene. Matey v. Waterbury, supra, 24 Conn. App. 94 n. 1. Such a colorable claim has been made pursuant to § 22a-19 (a).

       At the time that this court officially released its decision in Polymer Resources, Ltd. v. Keeney, supra, 32 Conn. App. 340, our Supreme Court already had dismissed the case for lack of subject matter jurisdiction because the plaintiff had failed to exhaust its administrative remedies before seeking ipjunctive relief in the Superior Court. For a further discussion of the procedural history of Polymer Resources, Ltd., which led to the publication of an Appellate Court opinion in the absence of a live controversy, see generally Zoning Commission v. Fairfield Resources Management, Inc., supra, 41 Conn. App. 89.

       In State Board of Education v. Waterbury, supra, 21 Conn. App. 67, this court held that a parent-teachers organization had a right to intervene in a mandamus action originally brought by the state board of education and the commissioner of education against the city of Waterbury, the mayor, the board of aldermen and the board of education. The plaintiffs brought the action to compel the defendants to implement the city’s plan to desegregate the Waterbury school system.

       Our decision does not preclude the plaintiffs from continuing to seek a writ of mandamus in the Superior Court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MILFORD PAINTBALL, LLC, ET AL. v. WAMPUS MILFORD ASSOCIATES, LLC, ET AL.
    (AC 28926)
    Flynn, C. J., and Beach and McDonald, Js.
    Argued September 11, 2008 officially
    officially released September 15, 2009

      John F. Conway, for the appellant (named defendant).

      Stephen J. Conover, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

In this breach of lease action, the defendant Wampus Milford Associates, LLC, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs Milford Paintball, LLC, (Milford Paintball) and Kathleen Rorick, a member of Milford Paintball. On appeal, the defendant claims that the trial court improperly concluded that the lease agreement had never become effective and, as a result, improperly found in favor of the plaintiffs on their complaint and failed to find in favor of the defendant on its special defenses and counterclaim. The dispositive issue on appeal is whether the lease agreement was ever effective. We conclude that the lease agreement was effective at the time of its signing and delivery, and, accordingly, reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The plaintiffs entered into a lease agreement with the defendant to rent a portion of the defendant’s building for use as an indoor paintball field. The plaintiffs gave the defendant a security deposit, as required by the lease. Section 3.06 of the lease agreement required the defendant to make substantial interior renovations to the building for it to be a suitable location for an indoor paintball field (landlord’s work) within ninety days of receiving notice from the plaintiffs that they had obtained zoning approval. On April 23, 2004, the plaintiffs gave notice to the defendant that zoning approval had been obtained. As of January 4, 2005, more than ninety days after receipt of notice, the defendant had not begun, let alone substantially completed, the required landlord’s work.

The plaintiffs commenced this action by complaint dated January 27, 2005. In their complaint, the plaintiffs asserted claims of a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., breach of a lease, fraud and restitution. The plaintiffs alleged that the defendant breached the lease when it failed to perform the landlord’s work within ninety days of receipt of the zoning approval notice. They further alleged that the defendant’s principals used the defendant to “[engage] in a scheme . . . to enhance the value of the [property by securing long term leases and large security deposits from tenants, including but not limited to Milford Paintball, under false pretenses that [the defendant] was willing, ready and able to perform [b]uilding renovations for tenants,” in violation of CUTPA. The plaintiffs further sought restitution of a $32,083.52 security deposit paid to the defendant.

The defendant subsequently filed an answer, special defenses and a counterclaim. The defendant asserted two special defenses. First, it averred that if and to the extent that it did not complete performance of the landlord’s work, it nevertheless was not in breach of the lease because Milford Paintball failed to provide it with written notice and an opportunity to cure, as required under the terms of the lease. Second, the defendant contended that it was discharged from its remaining duties under the lease because Milford Paintball anticipatorily breached the lease. In its counterclaim, the defendant asserted that Milford Paintball anticipatorily breached its obligations under the lease, thereby causing the defendant to sustain money damages.

On May 31, 2008, after a trial to the court, the court issued a memorandum of decision in which it found in favor of the plaintiffs on their complaint. In doing so, the court implicitly found against the defendant on its special defenses. See Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 580 n.1, 441 A.2d 593 (1981). The court found against the defendant on its counterclaim. The court relied primarily on § 1.10 of the lease agreement, which defines the “lease commencement date” as the “date when [the defendant] delivers possession of Premises to [the plaintiffs] with Landlord’s Work substantially completed.” The court reasoned that this lease provision made it clear that the lease did not become effective until the defendant delivered the premises to the plaintiffs with the landlord’s work substantially completed. It thus determined that the defendant’s undertaking to repair and to modify the interior of the leased premises to accommodate a paintball field was a condition precedent to the commencement of the lease term. It further found that the defendant’s failure to honor the condition precedent excused subsequent performance by the plaintiffs. The court declined to award the plaintiffs additional compensation on their claim of fraud. The court determined that the defendant’s counterclaim failed because the notice requirements of the lease never became operable, and, as a result, the lease commencement date never arrived. It further determined that the conduct of the defendant in continuing to delay the renovation work after receiving a substantial security deposit from the plaintiffs and being informed that their delay was creating mounting expenses for the plaintiffs amounted to a violation of CUTPA. The court ordered the defendant to pay to the plaintiffs restitution and attorney’s fees. This appeal followed.

On appeal, the defendant claims that the court improperly interpreted the lease by concluding that, under § 1.10 of the lease, the provisions of the lease agreement did not come into effect until the defendant had substantially completed the landlord’s work. The defendant argues that the court improperly concluded that the provisions of the lease providing for written notice of default and an opportunity to cure any failure to substantially complete the landlord’s work under § 14.07 did not apply because the lease agreement had not become effective.

We begin by setting forth our well settled standard of review. “[A] lease is like any other contract . . . .” (Internal quotation marks omitted.) Sargent v. Smith, 78 Conn. App. 691, 694, 828 A.2d 620 (2003), rev’d on other grounds, 272 Conn. 722, 865 A.2d 1129 (2005). “When construing a lease, we bear in mind three fundamental principles: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible. . . . Where contract language is clear and unambiguous, the question of contractual intent presents a question of law for the court . . . .” (Internal quotation marks omitted.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn. App. 179, 189, 880 A.2d 945 (2005).

In the present case, the terms at issue in the lease are clear and unambiguous. Section 3.01 of the lease agreement provides that “[t]he Lease Term shall begin on the Lease Commencement Date subject to the Zoning Approval Contingency set forth in Section 3.02.” (Emphasis added.) The lease commencement date is defined in § 1.10 of the lease, as the “[d]ate when [the defendant] delivers possession of Premises to [the plaintiffs] with Landlord’s Work substantially completed.” The court interpreted the lease commencement date to mean the date on which all the contractual obligations within the lease agreement would become effective. This interpretation, however, is contrary to the express provisions of the lease. Section 3.01 states that the lease term—not to be confused with the date on which the lease agreement becomes binding and effective—begins on the date on which the defendant delivers possession to the plaintiffs with the landlord’s work substantially completed. The lease term is defined in § 1.09 of the lease agreement as “[s]ixty (60) months running from the Lease Commencement Date through and including the Termination Date” plus an option to extend. This definition describes when the power to possess the premises and the obligation to pay rent would commence and terminate but does not address the issue concerning the date on which other contractual provisions of the lease agreement would become binding and effective.

Other provisions of the lease agreement clearly address the issue of when the lease agreement would become binding and effective. Section 17.13 of the lease agreement states that the lease agreement “shall not be binding upon either party until executed and delivered by both parties.” (Emphasis added.) Section 17.15 of the lease agreement states that the lease “shall not be effective until execution and delivery by both [parties].” (Emphasis added.) These provisions of the lease provide that the lease agreement shall become binding and effective on the date on which the lease was executed, which was February 10, 2004.

Additionally, other terms of the lease agreement specifically provide for two contingencies that, if not met within certain time frames following the lease execution date, would give the plaintiffs the right to terminate the lease agreement upon written notice and the right to the return of some or all of their security deposit. Section 3.02 (a) of the lease agreement provided that if the plaintiffs are unable to obtain zoning approval within 120 days after the lease execution date, they have the right to terminate the lease on written notice and the right of the return of their security deposit. Section 3.02 (b) of the lease agreement provides that the plaintiffs have the right to terminate the lease and to have some or all of their security deposit returned if they are unable to obtain financing within sixty days of the lease execution date.

We do not reach the defendant’s farther claims that the court improperly found in favor of the plaintiffs on their complaint and failed to find in favor of the defendant on its special defenses and counterclaim. The court’s judgment in favor of the plaintiffs on their complaint and against the defendant on its special defenses and counterclaim is based on the determination that none of the terms of the lease agreement was effective. The court concluded that its examination of the lease agreement, in which it determined that the lease had never become effective, was determinative of the case. As a result, the court’s findings were dependent on its improper interpretation of the lease agreement. The court effectively made no factual findings or conclusions concerning the application of the terms of the lease agreement to the facts of this case. In the absence of such factual findings, we cannot determine whether the court’s judgment in favor of the plaintiffs on their complaint and against the defendant on its special defenses and counterclaim was proper. Thus, we do not decide if the provision, § 14.07 of the lease agreement, requiring notice of default and opportunity to cure that default applies rather than § 3.06, which does not require such notice of default and such opportunity to cure.

The judgment is reversed and the case is remanded for a new trial.

       The plaintiffs originally brought this action against Wampus Milford Associates, LLC, and three additional defendants. The plaintiffs ultimately withdrew their claims against the three additional defendants. Wampus Milford Associates, LLC, is now the sole defendant. All references to the defendant are therefore to Wampus Milford Associates, LLC.

       The defendant claims that the court’s factual finding that Rorick was a party to the lease agreement is clearly erroneous. The defendant makes a general statement in its brief that Rorick may not have standing with respect to her unfair trade practices claim due to this erroneous factual finding. Because we are remanding the case for a new trial, we leave this determination for the trial court.


author: LAVINE, J.

text:
    CREDIT ONE, LLC v. WILLIAM E. HEAD
    (AC 30467)
    Flynn, C. J., and Lavine and Hennessy, Js.

      Argued May 27
    officially released September 15, 2009

      William E. Head, pro se, the appellant (defendant).
   Opinion

LAVINE, J.

The defendant, William E. Head, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the plaintiff, Credit One, LLC. On appeal, the defendant claims that the court improperly concluded that there was no genuine issue as to any material fact and that the plaintiff was entitled to judgment as a matter of law. The defendant specifically repeats on appeal the arguments he made in his affidavit in opposition to the plaintiffs motion for summary judgment and asserts that the plaintiff provided insufficient evidence regarding the amount of debt he allegedly owed, the interest rate and the identity of the entity alleged to have an agreement with him. We disagree with the defendant and affirm the judgment of the trial court.

The following facts and procedural history are relevant for our consideration of the defendant’s claim. The plaintiff commenced this action against the defendant by serving a complaint dated January 11, 2008, alleging two counts: default on an open end credit account and account stated. In the first count, the plaintiff alleged that it is a successor in interest to Citibank in a credit account held by the defendant, that he accepted a credit account from Citibank, that he is in default of his payment obligation for the extended credit and that there was due from him the sum of $5529.41 together with interest and costs of suit. In count two, tire plaintiff alleged that it transmitted account statements to the defendant, setting forth charges and amounts due, that he received these statements without timely protest and neither objected to them nor indicated that they were erroneous. The plaintiff also alleged that the final statement transmitted to the defendant indicated a balance due and owing and asked for damages for the account stated balance plus statutory interest as allowed by law. In his answer filed on February 14, 2008, the defendant denied all allegations set forth in the complaint and set forth two defenses, namely, that the plaintiff had failed to provide validation of alleged debts under applicable state and federal statutes and pursued predatory lending practices.

On May 7, 2008, the plaintiff filed a motion for summary judgment, claiming that there were no genuine issues of material fact and that the plaintiff was entitled to judgment as a matter of law. The plaintiffs motion was accompanied by the following: a memorandum of law, a notarized affidavit of debt signed by the plaintiffs chief financial officer, a certificate of assignment from the plaintiffs authorized agent stating that the plaintiff purchased all rights, title and interest in the defendant’s account from Citibank, a notarized affidavit of interest from the plaintiffs attorney seeking interest due in accordance with General Statutes § 37-3a and amounting to $2067.83, and account documents. The account documents submitted by the plaintiff consisted of an application for a credit card account signed by the defendant on August 4, 1998, and copies of monthly billing statements issued by Citibank and addressed to William E. Head, Head & Associates, Ltd., residing at 52 Village Walk in Wilton. The plaintiff submitted six monthly billing statements. The last statement covered the period between July 5, 2004, and August 4, 2004, and showed the amount due to be $5529.41.

In the memorandum of law accompanying its motion for summary judgment, in addressing the second count of its complaint, the plaintiff stated that there was no genuine issue of material fact as to whether the defendant properly objected to his credit card billing statements. The plaintiff stated that the defendant was provided with account statements and that he accepted them without notice of defect. The plaintiff farther argued that the defendant’s address on the billing statements matched the address the defendant provided to Citibank and the address listed on the defendant’s answer to the plaintiffs complaint. The plaintiff also stated that the final statement reflecting the defendant’s outstanding account balance was accepted by the defendant without a notice of protest and that the defendant submitted no evidence of a proper billing dispute.

The only document submitted by the defendant in opposition to the plaintiffs motion was a notarized affidavit filed on May 15, 2008. In the affidavit, the defendant stated that the claimed charges are not his or that they are greater than any amounts he believes he incurred. The defendant attested that the plaintiff “has repeatedly failed to produce legally required validation of alleged debts” pursuant to unspecified “[federal [statutes” and requested, among other things, the following: receipts of the actual underlying charges, entity information regarding the plaintiff and “[i]nfor-mation on [the] plaintiffs computer system validity . . . .” The defendant also noted that the “statute of limitations may have run.”

The hearing on the plaintiffs motion for summary judgment, which the defendant did not attend, was held on September 29, 2008. The court granted the plaintiffs motion on September 29, 2008, awarding the plaintiff $5529.41 in damages and $2067.83 in interest. The court did not issue a memorandum of decision, but it mailed the copy of the signed transcript of the hearing to this court and both counsel. The transcript indicates that the court reviewed all the documents submitted by the plaintiff and the affidavit submitted by the defendant.

“Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 382-83, 942 A.2d 469 (2008).

We conclude that the court properly granted the plaintiffs motion for summary judgment because the plaintiff demonstrated that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law on count two of its complaint sounding in account stated. Our Supreme Court stated in General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932), that “[t]he delivery by the bank to the plaintiff of each statement of the latter’s account, with the canceled checks upon which the charges against it were based, was a rendition of the account so that retention thereof for an unreasonable time constituted an account stated which is prima facie evidence of the correctness of the account. Such account stated can be opened or impeached upon proof of mistake or fraud, but the plaintiffs silence as to the correctness of the account rendered puts upon it the burden of proving that the account, as stated, was the result of such fraud or mistake.” This court recently relied on General Petroleum Products, Inc., when it considered an appeal from the rendering of summary judgment in an action that was based on the theoiy of account stated. See Citibank (South Dakota), N.A. v. Manger, 105 Conn. App. 764, 766-67, 939 A.2d 629 (2008) (summary judgment rendered in favor of plaintiff where defendant failed to make payments in accordance with credit card agreement). Other jurisdictions have held that the plaintiff was entitled to judgment as a matter of law by demonstrating that it generated statements for the defendant in the regular corase of business and that it mailed those statements to the defendant, who retained them without objection for more than one year prior to the commencement of the action. See Ameri can Express Centurion Bank v. Williams, 24 App. Div. 3d 577, 807 N.Y.S.2d 612 (2005).

We conclude that the plaintiff in the present case satisfied its burden of showing the absence of any genuine issue of material 1'act. In its complaint, the plaintiff alleged that the defendant received monthly billing statements setting forth charges and amounts due on his credit account and that the defendant neither obj ected to them nor indicated that they were erroneous prior to the commencement of the present action. The plaintiff submitted copies of six monthly account statements delivered to the defendant. Although the statements do not appear to account for the entire transactional history between the plaintiff and the defendant, which dates back to 1998, the plaintiff submitted a copy of the final account statement covering the period between July 5, 2004, and August 4, 2004. That statement, like the others, was addressed to the defendant at 52 Village Walk in Wilton, which is the address used by the defendant on his answer to the plaintiffs complaint. The statement informed the defendant that he owed $5529.41 to the plaintiff. On the basis of that, we conclude that the plaintiff demonstrated that the statements of the defendant’s account were rendered to the defendant and that the defendant retained the statements for an unreasonable time, which, in an action that was based on account stated, is prima facie evidence of the correctness of the account. See General Petroleum Products, Inc. v. Merchants Trust Co., supra, 115 Conn. 56; see also Citibank (South Dakota), N.A. v. Manger, supra, 105 Conn. App. 765 (plaintiff satisfied its burden by showing it sent defendant monthly statements evidencing balance due and defendant did not dispute balance listed on statements prior to commencement of action).

The defendant did not dispute, in his answer or in his affidavit in opposition to the motion, that he received monthly account statements from the plaintiff or that he retained them for almost four years without objecting to them. Although the defendant attests in his affidavit that the plaintiff “repeatedly failed to produce legally required validation of alleged debt,” he does not claim, or provide any evidence, that he objected to the monthly account statements prior to the institution of the present action. In his answer, the defendant denied all allegations set forth in the plaintiffs complaint and, in the affidavit in opposition to the plaintiffs motion, attested that “[i]t is the defendant’s belief that the charges claimed are not [the] defendant’s, and that should it be the case that certain of the charges alleged to be [the defendant’s] are actually [the] defendant’s charges, that the [moneys] borrowed and associated interest charges due as stated by [the] plaintiff, are far greater than any amounts [the] defendant believes were actually incurred, and therefore due by [the] defendant.” The defendant’s unsubstantiated belief is not sufficient to raise a genuine issue of material fact.

Once the movant shows the nonexistence of any material fact, “a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). The defendant’s assertions challenging the amount due in his answer and affidavit, unsupported by any evidence, are therefore mere assertions of fact and are insufficient to establish the existence of a material fact under the present circumstances.

The defendant’s arguments regarding the plaintiffs identity are also insufficient to raise a genuine issue of material fact. We conclude that in light of the bills of sale and assignment submitted by the plaintiff, there is no genuine issue regarding the plaintiffs standing to bring this action. See footnote 3. Additionally, the defendant’s allegation, unsupported by any evidence, that the associated interest charges are greater than he believes them to be is also insufficient to raise a genuine issue of material fact in light of the calculation of interest set forth in the plaintiffs affidavit of interest. See footnote 2. The remaining arguments in the defendant’s affidavit and appellate brief are briefed inadequately and therefore insufficient to oppose the plaintiffs motion. The court’s conclusion that there was no genuine issue of material fact and that the plaintiff was entitled to summary judgment as a matter of law was therefore logically and legally correct.

The judgment is affirmed.

In this opinion the other judges concurred.

       We interpret the arguments of the defendant, who is representing himself, as a challenge to the court’s determination that the plaintiff successfully demonstrated the absence of any genuine issue of material fact. See Utzler v. Braca, 115 Conn. App. 261, 272 n.4, 972 A.2d 743 (2009) (this court exhibits some degree of leniency in reading appellate briefs of pro se litigants).

       In the affidavit of interest, the plaintiff slated that it sought interest in accordance with § 37-3a on the balance due, that the interest shall not exceed 10 percent per annum, that it is calculated at a rate of 10 percent from August 5, 2004, through May 1, 2008, at a “per diem rate of 1.51,” and that it amounts to $2067.83.

       The plaintiff also submitted a copy of a bill of sale, assignment and assumption agreement between Debt One, LLC, and Citibank, USA, dated August 31, 2005, a copy of an assignment and bill of sale between Debt One, LLC, and the plaintiff, dated September 9, 2005, a notarized affidavit from Helen Denton, an employee of Citicorp Credit Services, Inc., and credit account terms and conditions. Last, the plaintiff submitted a copy of the decision of the office of the comptroller of the currency on the applications to reorganize the credit card operations of Citigroup, Inc., and to transfer certain other subsidiaries to Citibank, National Association, New York.

         The defendant essentially requested information on why Debt One, LLC, was listed on the assignment agreement submitted by the plaintiff, as well as why the credit account terms and conditions submitted by the plaintiff refer to AT&T Universal Bank instead of Citibank.

       The defendant did not provide any legal analysis to support his assertion as to the statute of limitations in his affidavit in opposition to the summary judgment motion, did not further articulate it at the hearing on the plaintiffs motion and did not mention it in his appellate brief. We therefore decline to address it.

       The plaintiffs complaint set forth two alternative counts asking for the same amount of damages. See, e.g., Stein v. Horton, 99 Conn. App. 477, 485, 914 A.2d 606 (2007) (breach of contract and unjust enrichment are altemative counts entitling plaintiff to single measure of damages). It is unclear from the transcript of the hearing what principles of substantive law were considered by the court when it granted the plaintiff’s motion for summary judgment.
      In his appellate brief, the defendant does not make any specific reference to either cause of action pleaded by the plaintiff in its complaint, and the plaintiff has neither submitted an appellate brief nor appeared at the oral argument before this court. Because we exercise plenary review over a trial court’s decision to grant a motion for summary judgment, we conclude that the plaintiff was entitled to judgment as a matter of law under count two of its complaint, and we therefore do not address count one of the complaint sounding in default on an open end credit account.

       Several trial court decisions in Connecticut have also recognized the validity of an account stated cause of action in a factual context similar to the present one. See, e.g., Citibank (South Dakota), N.A. v. Piscitelli, Superior Court, judicial district of New Haven, Docket No. CV-04-0491060-S (March 17, 2006) (40 Conn. L. Rptr. 873); Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV-05-4002020-S (December 21, 2005) (40 Conn. L. Rptr. 489); Citibank (South Dakota), N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV-05-4012384S (November 30, 2005) (40 Conn. L. Rptr. 337).

       The defendant also stated in his affidavit that the “plaintiff has repeatedly failed to produce legally required validation of alleged debts, as per applicable Federal Statutes that the State of Connecticut in permitting lending under rules only available to certain chartered lending institutions thereby allowing interest rate charges greater than those allowed under Connecticut Law per se, requires.” At the hearing on its motion, the plaintiff explained to the court that it believed that the defendant was referring to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 through 1692o, which is not a valid defense to this action and which the plaintiff may address in a separate claim. In his appellate brief, the defendant refers, without providing any legal analysis, to 15 U.S.C. § 1692h (a) (4) and two federal cases addressing what constitutes acceptable debt collection means under that act. See Clomon v. Jackson, 988 F.2d 1314, 1316, 1318 (2d Cir. 1993); Masuda v. Thomas Richards & Co., 759 F. Sup. 1456, 1466 (C.D. Cal. 1991). Because it is unclear how the statute or the case law cited by the defendant is applicable to the present case, we conclude that the defendant’s raising of this inadequately briefed claim does not make the court’s conclusion that there was no genuine issue of a material fact logically and legally incorrect.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. RONNELL L. BANKS
    (AC 28785)
    Beach, Robinson and Mihalakos, Js.

      Argued May 19
    officially released September 15, 2009

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Seth R. Garbarsky, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Ronnell L. Banks, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 2la-278 (b) and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that the trial court (1) violated his sixth amendment right to confront witnesses by precluding him from admitting evidence showing motive, bias or interest of a state’s witness, (2) improperly dismissed a juror during trial and (3) improperly permitted a state’s witness to testify as both a fact witness and an expert witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 12, 2006, at approximately 8 p.m., David Eldridge, a police officer assigned to the statewide narcotics task force, was working undercover as a drug buyer in the parking lot of a Shell gasoline station in Meriden. Eldridge was accompanied by a paid “confidential witness,” Anthony Clark, who was also posing as a drug buyer. Eldridge and Clark were sitting in an unmarked Subaru that was outfitted with a device that transmitted an audio feed from within the Subaru to police officers in unmarked vehicles located across the street.

Clark made eye contact with the defendant, who asked him what he wanted. Clark responded that he was looking for a “$40 piece,” indicating a certain quantity of drugs. The defendant told Clark to follow him to the intersection of Hobart and Myrtle Streets. The defendant then drove away from the gasoline station, with Eldridge and Clark following him, and drove toward the stated location. Eldridge and Clark parked the Subaru at the intersection of Hobart and Myrtle Streets, and the defendant drove past them and parked on Hobart Street. The defendant then left his car, and Eldridge and Clark lost sight of him. A few minutes later, the defendant emerged back into view and walked toward the intersection of Hobart and Myrtle Streets. He walked past the parked Subaru, scanned the area and then approached the passenger side widow, which was open. The defendant asked Eldridge and Clark what they were looking for, to which Eldridge responded, “two twenties,” which in street vernacular meant 4.4 grams of crack cocaine or, in other words, two $20 bags of crack cocaine. The defendant pulled a plastic bag from his pocket and allowed Clark to select two packets. Each of the packets contained a white rock like substance that, in Eldridge’s training and experience, appeared to be crack cocaine. As the defendant handed the selected bags to Clark, Eldridge handed the defendant two $20 bills. The entire transaction lasted less than one minute.

Eldridge notified officers who were monitoring the transaction in unmarked vehicles, including a “raid van” and a minivan, that a drug sale had occurred and gave them a description of the defendant. As Eldridge and Clark left the scene in the Subaru, the other officers arrived. The defendant stepped in front of the minivan to cross the street and apparently noticed that the occupants seated inside the minivan were wearing clothing identifying them as state police officers. The defendant began to run down Hobart Street, and the officers ordered him to stop. The defendant disregarded this command and continued running. The officers chased the defendant for approximately one and one-half blocks. The officers briefly lost sight of the defendant but discovered him hiding by a bay window of a residence on Myrtle Street. The defendant engaged in a scuffle with the officers, but eventually the officers were able to handcuff him.

Following a juiy trial, the defendant was convicted of sale of narcotics by a person who is not drag-dependent and interfering with an officer. The defendant was sentenced to ten years incarceration, execution suspended after seven years, with eighteen months probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly precluded him from cross-examining Clark regarding his motive, bias or interest in testifying and thereby violated the defendant’s right to confront witnesses against him as guaranteed by the sixth amendment to the United States constitution. The defendant’s claim is not properly preserved. In the event that his claim was not properly preserved, the defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The record is adequate for review, and the claim is of constitutional magnitude. See State v. Rolon, 257 Conn. 156, 174-75, 777 A.2d 604 (2001) (“[i]t is well established that a defendant has the right to confront witnesses against him as guaranteed by the confrontation [clause] of . . . our federal . . . [constitution]”). Although we conclude that the defendant’s claim is reviewable under the first two prongs of Golding, the defendant’s claim fails under the third prong of Golding.

The following additional facts are relevant to our resolution of this issue. During direct examination by the prosecutor, Eldridge testified that on the night in question he was working undercover with Clark. Eldridge described Clark as a “confidential witness” or a “concerned citizen” who received financial compensation from the state.

On cross-examination, defense counsel asked Eldridge if he knew whether Clark had any pending criminal charges. The prosecutor objected. After the jury was excused, the prosecutor stated: “My objection is twofold. One, the criminal conduct of any nature that is pending cannot be used ... to impeach one witness. Secondly, if it was offered as impeachment evidence . . . [Clark] is not on the [witness] stand . . . .” The court then asked: “[D]o you have any objection to [defense counsel] asking whether or not [Clark] has any convictions?” The prosecutor responded: “Yes. I suppose that the purpose for that would be to impeach, I assume . . . .” Defense counsel clarified that he was concerned about “Eldridge’s characterization of . . . Clark” as a concerned citizen. The court responded that “there is really no other way that you can characterize this other than impeachment; you are trying to impeach a person who isn’t here, and he can’t do that.” Defense counsel asked for latitude in cross-examination of Eldridge to inquire into his description of Clark. The court stated: “Well I don’t mind, if you ask him what are the factors or the personality traits of [Clark] that caused [Eldridge] to characterize him as a concerned citizen; that is fair game because [if] he is that concerned citizen, you are allowed to ask him that. Do you want to give me some other ideas of where you want to go with this so we don’t have to excuse the jury again? I mean, I have no problem with that. I think that it is pretty clear who he is and what he does.” Defense counsel responded that the jury “won’t know except for that he is a concerned citizen, but there is more to it than that.” The court stated that the jury knows “that he is employed.”

The prosecutor noted that “Clark will testify on behalf of the state and, in fact, he is our next witness. So, if [defense counsel] were going to ask those questions, I am also going to be objecting to him raising those to . . . Clark at the time that . . . Clark testifies. So, if you want to address that now, I think that is probably appropriate.” The court responded that defense counsel had the right to ask Clark if he had any convictions that related to his credibility. The prosecutor began to comment on defense counsel’s reference during Eldridge’s testimony to pending charges, and the court stated: “Well, no, obviously he can’t do that. He can examine this witness on anything that he said. He said that the man was a concerned citizen. I don’t think that the jury was bom yesterday; they know that this man is a paid informant, and that’s how he makes his living. . . . You can explore that as far as you want, but as far as any character traits, I mean, this is where they are going to have to make their own . . . decision. But I can’t let you, you know, again try to impeach, for lack of a better word, someone who isn’t here or impugn his character.”

Defense counsel then stated that he had a copy of Clark’s criminal record, which included some pending cases. He asked whether he could examine Clark regarding the pending charges. The court responded: “No, only if he is convicted of a crime relating to veracity; isn’t that still the law?” The prosecutor responded: “Is convicted of a felony within a ten year period. If it is beyond that, then perhaps if it goes to truth or veracity.” The prosecutor noted that Clark’s criminal record reflected that he had no felonies. He further noted that Clark had a charge of larceny in the second degree that had been “subbed to a misdemeanor” and another misdemeanor larceny conviction that was “from over twenty years ago.” After the prosecutor noted that convictions older than ten years generally could not be admitted to impeach credibility, the court ruled that Clark’s criminal record was not admissible and asked defense counsel if he was satisfied with that ruling, to which defense counsel responded: “Yes, I am . . . .”

The defendant argues that his right to cross-examine Clark was unduly restricted because he was not permitted to question Clark regarding his pending criminal charges. The defendant argues that the pendency of criminal charges suggests that Clark may have been promised a favorable resolution of those charges in exchange for testimony leading to a conviction of the defendant and that such a promise would be highly probative evidence as to whether Clark had a motive to testify falsely.

“Although the trial court has broad discretion in determining the admissibility of evidence and the extent of cross-examination, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment to the United States constitution. . . . The sixth amendment to the United States constitution guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him. . . . [Our Supreme Court has] held that [t]he primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Therefore, an accused’s right to cross-examination to elicit facts tending to show motive, interest, bias and prejudice may not be unduly restricted by the wide discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 70, 762 A.2d 1278 (2000).

The defendant’s claim fails under the third prong of Golding because the alleged constitutional violation did not clearly exist. The transcript does not show that the court restricted the defendant’s ability to cross-examine Clark regarding any pending criminal charges for the purpose of exploring any motive, interest or bias Clark may have had in testifying. During cross-examination of Eldridge, the defendant sought to admit evidence of Clark’s pending charges. The prosecutor objected, and the discussion the court had with both counsel following this objection pertained to whether defense counsel could use Clark’s prior criminal record and current pending charges to impeach Clark’s credibility. Although not specifically mentioned, § 6-7 of the Connecticut Code of Evidence was quite clearly implicated in this discussion. During this discussion, defense counsel asked if the court would permit him to question Clark when he took the witness stand regarding his pending criminal charges. The court responded that defense counsel could do so only if the crime related to veracity. In the context of the prosecutor’s objection and the discussion that followed, the court’s ruling regarding defense counsel’s ability to cross-examine Clark apparently affected only defense counsel’s use of Clark’s pending charges for the purpose of impeaching Clark’s credibility pursuant to § 6-7. The defendant did not indicate to the court that he wanted to present evidence of Clark’s pending charges for the purpose of revealing a possible motive, bias or interest in his testifying, and this issue was not before the court at the time of the challenged ruling. The court was never expressly asked to rule on the use of pending charges to show motive, interest or bias. There was no specific ruling on this issue, and therefore we conclude that this claim fails under the third prong of Golding because the defendant has not shown that a constitutional violation clearly exists.

II

The defendant next claims that the court improperly dismissed a juror, H, during trial. We disagree.

We first set forth our standard of review of a trial court’s decision to remove a juror. “A court may excuse a regular juror if that juror, for any reason, becomes unable to perform his or her duty. General Statutes § 54-82h (c). The power to excuse a juror under this section is expressly premised on a finding of cause. . . . Whether in the circumstances just cause exists to excuse a juror is a matter within the discretion of the . . . court.” (Internal quotation marks omitted.) State v. Guzman, 110 Conn. App. 263, 279, 955 A.2d 72 (2008), cert. denied, 290 Conn. 915, 965 A.2d 555 (2009). “[T]he decision of whether a juror who may have been sleeping during part of a trial should be disqualified lies within the sound discretion of the trial court and that reversal is required only where that discretion has been clearly abused. . . . Such a rule recognizes that the trial court is in the best position to evaluate and, if necessary, to resolve a claim of inattention or misconduct by a juror, without diminishing the requirement that a juror give the highest possible degree of attention to the proceedings in order to guarantee the defendant’s right to a jury trial.” (Citations omitted.) State v. Wiggins, 7 Conn. App. 95, 102-103, 507 A.2d 518 (1986).

The following additional facts are relevant to our resolution of this issue. On November 7, 2006, the court conducted a conference off the record and outside of the presence of the jury. The prosecutor subsequently stated on the record that it was brought to the state’s attention that a juror may have been sleeping during portions of testimony. Defense counsel expressed concern about the situation. The court questioned whether it was possible that the juror was concentrating with her eyes closed.

On November 9,2006, following the close of evidence, the court noted, outside of the presence of the jury, that early in the trial it had observed that a juror appeared to be sleeping and, at that point, requested an intern at the state’s attorney’s office who was sitting closest to that juror to kick the bench gently to keep the juror awake. The court stated that “apparently the problem was not resolved. She continued in the opinion of everyone who observed her to be falling asleep.” The court then conducted a hearing regarding H.

The court called two interns from the state’s attorney’s office, Amy Cullivan and Stephanie Panagiotou, as witnesses. Cullivan testified that H had been sleeping during trial. She further testified that on November 7, 2006, she observed H sleeping and attempted to wake H by kicking the bench, coughing and tapping on her watch, but that her efforts were successful “[sjome-times, but not really.” She testified that she was unable to observe H on the other days of the trial. Panagiotou testified that she observed H on November 7 and 9, 2006. She testified that on both days she noticed that H’s head was down and eyes were closed and that H was “jolting up as if [¶] was waking up quickly.”

After hearing this testimony, and based on the court’s observations, the court stated that “the body movements and the appearance that [¶] had today during the arguments [were] the same as I had observed previously, and ... I think the disinterested observer would say [¶] has been sleeping a lot during this trial. ... It is not fair ... [to the defendant] to have a juror who didn’t hear his defense, and I am here to tell you, that [¶] didn’t hear a heck of a lot during this trial.” The court determined that H had to be excused but deferred removing her until after calling her to the witness stand to determine if she had an explanation. The court elected to do so after it delivered the jury instructions.

Following the jury instructions, the court remarked that H appeared more alert during the instructions than she had appeared during the entire trial. The court then called Cullivan and Panagiotou back to the witness stand. Panagiotou testified that she did not see H sleeping during the instructions but that she had not been watching her very closely. Cullivan testified that she saw H sleeping during the instructions. She testified that H may have been asleep and that H’s “head was bobbing” numerous times and that H was “in and out throughout.” Cullivan testified that H would appear alert when the court looked at H, but the second the court looked away, H’s head “went down.”

The court then stated that “[i]t appeared to me at many times during the trial that [¶] was sleeping.” It also noted that a marshal brought it to the court’s attention that H was “clearly sleeping.” The court stated that H “never had any response” to Cullivan’s efforts to wake her. The court did not “think that [¶] heard the evidence.”

H then testified that she had some difficulty staying awake but had nevertheless heard all of the evidence, arguments and instructions. H testified that she kept her eyes closed because the lights in the courtroom bothered her eyes. After H left the courtroom, the court noted that it had requested that the marshals turn off some of the lights in the courtroom because the lights bothered H’s eyes and that the jury box was located in the darkest comer of the courtroom. The court concluded that H was frequently falling asleep and had not heard all of the evidence. The court did not think that H could be fair to the defendant. The court excused H. Defense counsel noted that although he respected the court’s ruling, he had made his objections to such a ruling clear.

The defendant argues that the record does not support the court’s finding that H was unable to perform the duty of a juror and that the court improperly failed to credit H’s testimony that she had not been sleeping and had heard all of the evidence. We disagree.

The court did not abuse its discretion in excusing H for cause. There was evidence before the court that H had been sleeping during trial and had not heard all of the evidence. Cullivan testified that she observed H sleeping on November 7, 2006, during trial and that her efforts to wake H were, for the most part, unsuccessful. Panagiotou testified that she observed H on November 7 and 9, 2006, and noticed that on those days H had her head down and eyes closed. The court did not find credible H’s proffered excuse that the courtroom lights bothered her eyes. The court noted that H was in the dimmest portion of the courtroom. The court was not obligated to credit H’s testimony. See State v. Ryder, 114 Conn. App. 528, 540, 969 A.2d 818, cert. granted on other grounds, 292 Conn. 919, 974 A.2d 723 (2009). The court concluded that H was “frequently falling asleep” and had not heard all of the evidence. The court was “afraid [that H] can not be fair to [the defendant].” We conclude that the court did not abuse its discretion in dismissing H for cause. The court made a sufficient inquiry into the situation and made a decision that was based on the ample evidence that was before it.

Ill

The defendant’s final claim challenges the propriety of the court’s ruling permitting Eldridge to testily as both a fact witness and an expert witness. We are not persuaded.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Robles, 103 Conn. App. 383, 401, 930 A.2d 27, cert. denied, 284 Conn. 928,934 A.2d 244 (2007). “Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . State v. West, 274 Conn. 605, 629, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005) .... It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have anypeculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 158-59, 971 A.2d 676 (2009). “[T]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [BJecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only whe[n] an abuse of discretion is manifest or whe[n] injustice appears to have been done.” (Internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 358, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).

The following additional facts are relevant to our resolution of the defendant’s claim. During direct examination, Eldridge testified that for the six years preceding trial, he had been a member of the statewide narcotics task force in Meriden. He detailed his training with respect to the “current trends” of drug dealing, which included knowledge of street level vocabulary. He noted how the language changes depending on geographic location; one might request 0.2 grams of cocaine by asking for “twenties” or “doves.” He testified that he was familiar with how street level narcotics are packaged and distributed in New Haven County. After laying this foundation, the prosecutor asked that Eldridge be qualified as an expert in narcotics distribution in the area of New Haven County, to which defense counsel objected. The court then excused the jury. Defense counsel explained his objection and argued that certifying Eldridge as an expert would prejudice the defendant because the jury might give his factual testimony greater weight on account of his being qualified as an expert witness. The court rejected the defendant’s claim of prejudice and stated that it would provide the jury with an instruction on expert witnesses. Further foundational evidence was presented through voir dire by both parties. The court then found that the prosecutor had established Eldridge to be an expert in local language involved in drug transactions and the manner in which narcotics were packaged in that area and certified him as an expert witness.

The defendant argues that Eldridge was necessary only as a fact witness because the case did not require expert testimony. The defendant stated in his brief that he does not claim that Eldridge was not qualified to testify as an expert in a case that required expert testimony and does not dispute that experts can testify in narcotics cases. He argues, however, that Eldridge did not have expert knowledge relevant to the evidence presented.

Our review of the record reveals that the court did not abuse its discretion in allowing Eldridge’s expert testimony. During voir dire, Eldridge, a member of the statewide narcotics task force in Meriden, detailed his specialized knowledge of street level vocabulary and familiarity with how street level narcotics are packaged and distributed in New Haven County. The court determined that Eldridge was an expert in those areas. Eldridge’s knowledge of the common practices used by drug dealers in conducting transactions and the language used in such transactions demonstrated that he had special knowledge or experience, not common to the world, which was applicable to the matter at issue and would aid the jury in determining whether the defendant had engaged in the sale of narcotics.

The defendant also argues that the court improperly permitted Eldridge to testify as both a fact witness and an expert witness and that permitting him to testify as an expert added credibility to his factual testimony. Eldridge provided expert testimony and also testified as to what he personally observed on the night in question. “An expert witness with firsthand knowledge of the facts can always base an opinion on those facts. . . . [Fjacts personally observed by an expert witness are not hearsay and may be used both for the basis of the expert’s opinion and to prove the truth of the matter recited.” C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.9.2, p. 533. Contrary to the defendant’s assertions, there is nothing other than speculation to suggest that Eldridge’s opinion testimony prejudiced the jury by causing it to give Eldridge’s factual testimony undue weight. The court also evaluated the potential prejudicial effect of the testimony. The court did not agree that the jury was likely to give Eldridge’s fact testimony more weight because of his having testified as an expert. Additionally, the court instructed the jurors that they were the sole triers of fact and that no testimony was binding on them. Absent evidence to the contrary, a juiy is presumed to have followed the court’s instructions. State v. Fields, 265 Conn. 184, 207, 827 A.2d 690 (2003). It was not an abuse of discretion for the court to permit Eldridge, who testified as to what he personally observed on the night in question, also to testify as an expert witness.

The judgment is affirmed.

In this opinion the other judges concurred.

       To the extent that the defendant also asserts a claim that his due process rights were violated under the Connecticut constitution, he has failed to provide an independent analysis of this issue under the state constitution. See State v. Schultz, 100 Conn. App. 709, 712 n.2, 921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d 668 (2007); see also State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992) (providing analytical tools for state constitutional claims). Consequently, we deem the defendant to have abandoned any state constitutional claim as to this issue.

       The prosecutor’s objection and the discussion that subsequently occurred as a result of that objection pertained to impeaching Clark’s general character for credibility. The defendant did not object to the court’s ruling on the ground that he wanted to inquire into Clark’s pending charges for the purpose of exposing potential motive, interest or bias in testifying. “This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) State v. Johnson, 289 Conn. 437, 460, 958 A.2d 713 (2008).

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       Section 6-7 (a) of the Connecticut Code of Evidence provides: “For the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year. In determining whether to admit evidence of a conviction, the court shall consider: (1) The extent of the prejudice likely to arise, (2) the significance of the particular crime in indicting untruthfulness, and (3) the remoteness in time of the conviction.”

       Defense counsel did not question Clark regarding his prior criminal convictions or pending charges. “Impeachment” can take many forms. The discussions in the trial court concerned “impeaching” credibility by evidence of criminal convictions. The court did not consider “impeachment” by showing an interest, bias or prejudice arising from, the pendency of criminal charges.

       The defendant also seeks to prevail on his claim under the plain error doctrine. See Practice Book § 60-5. Because we see no basis on which the defendant may prevail under the plain error doctrine, we reject his plain error claim because we find no manifest injustice. State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009) (“[an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice” [internal quotation marks omitted]).

       We refer to the juror by initial to protect her legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004). The defendant notes in his brief that “although the record does not show” that the state sought H’s removal because of her race or ethnicity, “that inference is certainly possible.” There is nothing in the record to suggest that the state’s actions were anything other than race neutral. The court’s finding that H had trouble staying awake and did not hear all of the evidence provided cause for the court to remove H. See State v. Diaz, 94 Conn. App. 582, 588-89, 893 A.2d 495 (court did not abuse discretion in removing only Hispanic juror where record provided ample evidence showing court had cause to excuse jury because of juror’s potential conflicts), cert. denied, 280 Conn. 901, 907 A.2d 91 (2006).

       The defendant frames his argument as presenting a constitutional issue, namely, a violation of due process. We decline to review the defendant’s claim under a due process standard because the decision to admit expert testimony is not constitutional in nature in the context of this case. See State v. Thomas, 96 Conn. App. 578, 587, 901 A.2d 76, cert. denied, 280 Conn. 912, 908 A.2d 542 (2006).

       It is not uncommon for a fact witness also to be an “expert” witness in many contexts, and we know of no prohibition of that practice. A court may consider using the term “opinion” testimony rather than “expert” testimony in order to avoid any claim that the court is bestowing its imprimatur on the testimony.

       In its instructions to the jury regarding expert witnesses, the court stated that “[a]n expert is permitted not only to testily to facts that they personally observed, but also to state their opinion about certain circumstances. . . . No such testimony is binding upon you, however, and you may disregard such testimony either in whole or in part,. It is for you to consider the testimony with the other circumstances in the case and, using your best judgment, determine whether you will give any weight to it and, if so, what weight you will give to it. The testimony is entitled to such weight as you find the experts’ qualifications in their field entitle it to receive, and it must be considered by you, but it is not controlling upon your judgment. An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. The determination of the credibility of a witness is solely the function of you, the jury.” The defendant makes no claim on appeal with respect to this instruction.

         The defendant also argues that the court improperly permitted Eldridge to testify concerning an ultimate issue of fact, namely, the identity of the defendant as the perpetrator. Although defense counsel objected to Eldridge testifying as an expert witness, counsel failed to make the claim that he now raises on appeal, namely, that Eldridge’s testimony encompassed an ultimate issue of fact. Accordingly, the claim is unpreserved. See State v. Johnson, 289 Conn. 437, 461, 958 A.2d 713 (2008). The defendant requested Golding review and review under the plain error doctrine; see Practice Book § 60-5; in the event that his claim was unpreserved. Despite the fact that the defendant frames his third claim in terms of a deprivation of his due process right to a fair trial, his claim is evidentiary in nature. Because that claim is evidentiary in nature, it fails under the second prong of Golding. See State v. Blango, 103 Conn. App. 100, 117, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007). We also conclude that plain error review is not warranted because the defendant has not demonstrated that he suffered manifest injustice. See State v. Martinez, 95 Conn. App. 162, 170 n.5, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006).