text:
    CURTISS EBRON v. COMMISSIONER OF CORRECTION
    (AC 19574)
    Landau, Spear and Daly, Js.
    Argued October 26
    officially released December 19, 2000

      David B. Rozwaski, special public defender, with whom, on the brief, was James A. Shanley, Jr., for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Curtiss Ebron, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to appeal and (2) determined that he was not denied effective assistance of counsel. We dismiss the appeal.

The petitioner filed an amended petition for a writ of habeas corpus alleging that his criminal trial attorney was ineffective in that he failed (1) to select jurors who would comprise a fair and impartial jury, (2) to inquire of the prospective jurors their racial attributes, (3) to move to suppress unreliable identification evidence and (4) to advise the petitioner properly. Following a hearing, the court concluded that the petitioner had failed to show that counsel’s representation fell below an objective standard of reasonableness. The court further held that the petitioner had failed to show, in light of the evidence, that there was a reasonable probability that the result would have been different but for counsel’s unprofessional errors. Accordingly, the court denied the petition. The court further denied the petition for certification to appeal “as wholly frivolous.” The petitioner then filed the present appeal, claiming that his trial counsel was ineffective in his selection of the jury and in his advising the petitioner to testify without first addressing his prior convictions.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Colon v. Commissioner of Correction, 55 Conn. App. 763, 765, 741 A.2d 2 (1999), cert. denied, 252 Conn. 921, 744 A.2d 437 (2000). “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” Velez v. Commissioner of Correction, 57 Conn. App. 307, 309, 748 A.2d 350 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219.

After reviewing the record and briefs, and after hearing the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the habeas court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, supra, 230 Conn. 612; Johnson v. Commissioner of Correction, 58 Conn. App. 729, 731, 754 A.2d 849, cert. denied, 254 Conn. 928, 761 A.2d 753 (2000); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

       In November, 1995, the petitioner was found guilty, following a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a, one count of kidnapping in the first degree in violation of General Statutes § 53a-92 and one count of assault in the third degree in violation of General Statutes § 53a-61.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    RAYMOND FUNAIOLI v. CITY OF NEW LONDON ET AL.
    (AC 19747)
    Foti, Spear and Mihalakos, Js.

      Argued September 28
    officially released December 19, 2000

      Dominic S. Piacenza, for the appellant (plaintiff).

      David C. Davis, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Raymond Funaioli, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s dismissal of his claim for permanent partial disability benefits. The plaintiff argues that the board improperly affirmed the decision of the commissioner because the commissioner, contrary to law, ignored uncontradicted expert testimony establishing that a prior, work-related psychological injury was a substantial factor in causing the plaintiffs permanent partial disability of the brain. We disagree and affirm the decision of the board.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff, during the six months preceding June 18, 1992, sustained a work-related psychological injury while employed as a New London police officer. On June 18, 1992, the plaintiff took a leave of absence on the recommendation of psychologist Robert D. Meier. On December 13,1995, the commissioner found that the plaintiff had suffered a single episode of major depression and awarded him temporary partial disability benefits. The commissioner also found that the plaintiffs depression was in full remission as of November 25, 1992. Neither party sought review of that decision.

The plaintiff later sought permanent partial disability benefits, claiming that he sustained a permanent loss of brain function attributable to his 1992 injury. At the hearing before the commissioner, the plaintiff called two experts to testify, including his treating psychiatrist, Edward W. Allen.

Allen testified that the plaintiff suffered from a permanent partial loss of brain function that was “causally related” to the plaintiffs 1992 injury. Allen also testified that anxiety caused by the pendency of the workers’ compensation proceedings was a “substantial factor in causing or prolonging” the plaintiffs loss of brain function. During the defendant’s cross-examination of Allen, however, a letter from Allen to the plaintiffs attorney, in which Allen attributed the current injury solely to the stress of the workers’ compensation proceedings, was admitted into evidence without objection. The letter, dated December 10, 1993, stated in relevant part: “On 11-4-93, I received a call from Dr. Robert Meier, asking me to again see Raymond Funaioli, who had been seeing him for psychotherapy. Dr. Meier felt the patient had become depressed in response to continuing stress and might need medication therefore.

* * *

“The recurrence of the depression at this time, despite ongoing psychotherapeutic preventative support by Dr. Meier, is, I believe, due to a new, additional, and building stressor.

“That stressor is the nonresolution, the uncertainty, the frustrations of waiting, the emotional replay of past traumatic events, relating to his pending, unsettled, claims.

“In my past experience with others, long drawn out, unsettled claims can, through uncertainty and painful recall, become a new stressor of sufficient magnitude to aggravate or bring return of an emotional disorder. I believe this applies to Mr. Funaioli.

“Accordingly, I urge those of you involved with Mr. Funaioli’s claims to work for prompt closure. Meantime, I expect his antidepressant and antianxiety medication as well as his weekly psychotherapy will help with the emotional distress and will adjunctively help with his antihypertension medication regimen.”

On May 8, 1998, the commissioner dismissed the claim. In her finding and dismissal, the commissioner stated in relevant part:

“CONCLUSION

“1. To the extent the [plaintiff] has anger, depression and anxiety, these conditions are not compensable because they are substantially related to his reaction to the workers’ compensation claims process itself, as opposed to the June 18, 1992 injury. The [plaintiff] has had separate formal proceedings regarding his heart and hypertension claim, which was rejected on appeal to the compensation review board and is now on appeal before the Appellate Court.

“2. It is undisputed that the [plaintiffs] original diagnosis of major depression, single episode, was in full remission by November 22, 1992. The [plaintiff] had been away from the city of New London police force for over five months and was symptom-free. (December 13, 1995 Finding and Award of Commissioner A. Thomas White, Jr.)

“3. In fact, the [plaintiff] did not require additional psychiatric treatment until more than a year later for [a] ‘new, additional and building stressor caused by the nonresolution, uncertainty, the frustrations of waiting, the emotional replay of past traumatic events relating to his pending unsettled, claims’ per his treating psychiatrist, Dr. Allen. It is this subsequent condition relating to his two workers’ compensation claims which has precipitated this claim for permanent loss of use of the brain. A mental state or nervous disturbance caused merely by the pendency of compensation proceedings is even less necessarily referable to the injury.

“4. Dr. Allen testified that the [plaintiffs] mental condition in November, 1993, and thereafter was substantially related to the processing of his workers’ compensation claims and with the fact that the claims were not moving along as quickly as he wished. Thus, it is clear that the [plaintiffs] mental condition, at least as of November, 1993, and continuing, is unrelated to the compensable single episode of depression occurring in 1992.” (Emphasis in original.)

We begin our analysis “by noting that traditional concepts of proximate cause furnish the appropriate analysis for determining causation in workers’ compensation cases.” Dixon v. United Illuminating Co., 57 Conn. App. 51, 60, 748 A.2d 300, cert. denied, 253 Conn. 908, 753 A.2d 940 (2000), citing Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118, 527 A.2d 664 (1987). “ ‘[T]he test for determining whether particular conduct is a proximate cause of [a permanent partial loss of function is] whether it was a substantial factor in producing the result.’ ” Dixon v. United Illuminating Co., supra, 60, quoting Paternostro v. Arborio Corp., 56 Conn. App. 215, 222, 742 A.2d 409 (1999), cert. denied, 252 Conn. 928, 746 A.2d 788 (2000). A commissioner’s conclusion as to whether employment was a substantial factor in causing a permanent partial loss of function is afforded deference similar in degree to that afforded a conclusion by a trial judge or jury on an issue of proximate cause. Pereira v. State, 228 Conn. 535, 544, 637 A.2d 392 (1994), citing Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993). Therefore, a commissioner’s conclusion that a plaintiffs employment was not a substantial factor in causing the plaintiffs permanent partial loss of function is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Pereira v. State, supra, 544, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).

In the present case, even if we assume that the plaintiff proved that he suffered a permanent partial loss of brain function, the commissioner, nevertheless, had before her competent evidence indicating that a stres-sor unrelated to the plaintiffs 1992 work-related injury was the sole substantial factor in causing his loss. Allen, in his letter dated December 10, 1993, states that the recurrence of the plaintiffs depression was due to anxiety over his pending workers’ compensation claims; he did not even allude to the possibility of other causes. That letter, which was written by Allen while he was the plaintiffs treating psychiatrist, constitutes competent evidence, and it supports the commissioner’s conclusion that the plaintiffs litigation anxiety was the sole substantial factor in causing the recurrence of his depression and his subsequent loss of brain function. See Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979) (court “cannot review the conclusions of the commissioner when these depend upon . . . the credibility of witnesses”). From this evidence, it necessarily follows that the commissioner properly concluded that the plaintiffs 1992 work-related injury was not a substantial factor in his loss of brain function. The commissioner’s conclusion regarding causation is supported by competent evidence and is otherwise consistent with the law. Accordingly, we conclude that the board properly affirmed the commissioner’s dismissal of the plaintiffs claim.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Prior to July 1,1993, mental disorders unaccompanied by physical trauma to the body were compensable under the Workers’ Compensation Act. See General Statutes (Rev. to 1993) § 31-275 (16) (B) (iii), as amended by Public Acts 1993, No. 93-228, § 1; Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 194 n.2, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999); see also Crochiere v. Board of Education, 227 Conn. 333, 363, 630 A.2d 1027 (1993).

       See General Statutes (Rev. to 1991) § 31-308 (d), now (c), as amended by Public Acts 1991, No. 91-32, § 26, which provides: “In addition to compensation for total or partial incapacity, or for a specific loss of a member or loss of use of the function of a member of the body, the commissioner may award compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for in this section, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body. The commissioner may not award more than the sum equivalent to compensation for seven hundred and eighty weeks under this subsection.”

       The plaintiffs permanent loss of function is not compensable insofar as it was caused by the pendency of workers’ compensation proceedings. “A mental state or nervous disturbance caused merely by the pendency of compensation proceedings is even less necessarily referable to the injury. Coffey v. Coffey Laundries, Inc., 108 Conn. 493, 496, [143 A. 880 (1928)].” Kowalski v. New York, N. H. & H. R. Co., 116 Conn. 229, 236, 164 A. 653 (1933).


author: DALY, J.

text:
    VINCENT GRECO v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19637)
    Schaller, Zarella and Daly, Js.

      Argued September 20
    officially released December 19, 2000

      Milo J. Altschuler, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

DALY, J.

The plaintiff, Vincent Greco, appeals from the judgment of the trial court dismissing his administrative appeal. The defendant, the commissioner of motor vehicles (commissioner), suspended the plaintiffs license to operate a motor vehicle and denied his petitions to reconsider and to reopen the hearing. The plaintiff appealed to the Superior Court, which dismissed his appeal. The dispositive issues on appeal are whether the trial court improperly concluded that (1) the commissioner’s denials of his petitions were not appealable final administrative decisions and (2) the petitions were not timely. We affirm the judgment of the trial court.

The facts in the record are undisputed. On September 21, 1998, at approximately 12:30 a.m., Officer Brian McGinnis of the Orange police department was driving his patrol car north on Grassy Hill Road when he saw a car traveling toward him in the southbound lane at a high rate of speed. The speed limit on Grassy Hill Road is forty miles per hour. The officer clocked the oncoming vehicle at a speed of eighty-four miles per hour. The car slowed quickly upon approaching the officer’s patrol car, but continued toward the southbound entrance to the Merritt Parkway. About one tenth of one mile past the entrance, the officer pulled the car over.

The plaintiff was driving the car that the officer pulled over on the Merritt Parkway. The officer questioned the plaintiff and smelled alcohol on his breath. The plaintiff admitted that he had consumed alcohol that night. The officer conducted several field sobriety tests that, cumulatively, convinced him that the plaintiff was operating his motor vehicle while under the influence of liquor. The officer arrested the plaintiff and took him to police headquarters, where he requested that the plaintiff submit to a chemical alcohol test (breath test). The plaintiff contacted an attorney and refused to submit to the breath test. The officer forwarded a written report of the plaintiff’s arrest to the department of motor vehicles. The report specifically indicated that the plaintiff had refused to submit to the breath test.

On September 28, 1998, the commissioner notified the plaintiff that his license to operate a motor vehicle would be suspended as a result of his failure to submit to the breath test. The plaintiff requested a hearing, which took place on October 13, 1998. On October 14, 1998, the commissioner issued a decision reciting his findings of fact and conclusions of law, including subordinate findings. The commissioner suspended the plaintiffs license to operate a motor vehicle for six months effective October 21, 1998.

The commissioner made the following findings of fact and conclusions of law: (1) the officer had probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227b; (2) the plaintiff was operating the motor vehicle; (3) the plaintiff was arrested; and (4) the plaintiff refused to submit to the breath test. As subordinate findings, the commissioner found that the officer had probable cause to stop the plaintiff because the plaintiff was speeding, that the plaintiff had failed the field sobriety tests and that the officer never lost sight of the plaintiffs car.

On November 3,1998, twenty days after the commissioner issued his decision, the plaintiff filed a petition for reconsideration. On that same day, the plaintiff appealed to the Superior Court from the commissioner’s decision. On November 30, 1998, the commissioner denied the plaintiffs petition, concluding that there was sufficient evidence in the record to support the decision. Sixty-four days after the commissioner’s decision to suspend the plaintiffs license, the plaintiff filed a petition to reopen the hearing to introduce new evidence. On December 30,1998, the commissioner denied the petition on the ground that an appeal was pending in Superior Court.

I

The plaintiff first asks this court to conclude that the commissioner’s denial of his petition to reconsider is an appealable final judgment. The plaintiff claims that the trial court improperly dismissed his appeal based, in part, on its conclusion that the denial of his petition for reconsideration was not an appealable final judgment. We disagree.

General Statutes §§ 4-166 (3) and 4-181a are clearly dispositive of this issue. Section 4-166 (3) provides in relevant part: “Final Decision . . . does not include ... a ruling of an agency . . . denying a petition for reconsideration . . . .” (Emphasis added.) General Statutes § 4-166 (3). We agree with the trial court that the commissioner’s decision denying the plaintiffs petition for reconsideration is not a final decision within the meaning of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq.

Moreover, while § 4-181a (a) (1) provides in relevant part that “a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration . . .” the commissioner’s decision denying the plaintiffs petition for reconsideration does not fit within the definition of a “contested case” because it simply is not a final decision. The commissioner’s decision to suspend the plaintiffs license to operate a motor vehicle is the only final decision in this case. Therefore, § 4-181a (a) (1) is inapplicable.

We agree with the trial court’s conclusion that the commissioner’s decision denying the plaintiffs petition for reconsideration is not an appealable final judgment and that the plaintiffs appeal was properly dismissed.

II

The plaintiff next claims that the court improperly concluded that his petitions for reconsideration and to reopen the hearing were untimely. We do not agree.

Section 4-181a allows a party to file a petition for reconsideration within fifteen days “after the personal delivery or mailing of the final decision . . . .” Moreover, where the right to appeal is statutory, the failure to comply strictly with that statute deprives the Superior Court of its jurisdiction. See Ertel v. Carothers, 34 Conn. App. 18, 21, 639 A.2d 1055 (1994); Shapiro v. Carothers, 23 Conn. App. 188, 189, 579 A.2d 583 (1990).

The record clearly indicates that the commissioner rendered his final decision to suspend the plaintiffs operator’s license on October 14, 1998. The plaintiff admits that there is nothing in the record to indicate that the commissioner mailed the decision on any date other than October 14,1998. The plaintiff does not allege another date on which the commissioner mailed the decision. The plaintiffs petition for reconsideration is dated October 30, 1998, but was not filed until November 3, 1998. The statutory deadline for filing a petition for reconsideration is fifteen days from the date the decision was mailed. In this case, the plaintiff was required to file his petition for reconsideration no later than October 29, 1998. Under no circumstances did the plaintiff comply with § 4-181a. The first petition for reconsideration was filed late. There is no dispute between the patties that the petition to reopen the hearing to introduce new evidence was not timely filed. The trial court properly concluded that the plaintiffs petitions for reconsideration and to reopen the hearing were not timely filed. The plaintiffs failure to file those petitions in a timely manner implicates the court’s subject matter jurisdiction. The trial court may raise sua sponte the issue of subject matter jurisdiction. See Bittle v. Commissioner of Social Services, 249 Conn. 503, 504-505, 734 A.2d 551 (1999); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 443, 685 A.2d 670 (1996). The tiial court properly raised the issue of subject matter jurisdiction sua sponte and concluded that the plaintiffs appeal must be dismissed for lack of jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff appealed to the Superior Court under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq.

       The plaintiff filed with the commissioner a petition to reconsider and thereafter, a petition to reopen the hearing to introduce new evidence.

       On appeal, (he plaintiff also raises the questions of whether the commissioner acted arbitrarily and abused his discretion in suspending the plain! ifi’s license to operate a motor vehicle and whether there was substantial evidence in the record to support the commissioner’s finding that the police officer had probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227b. This court need not reach these issues to resolve (his appeal.

       The officer requested that the plaintiff recite the alphabet from the letter J to the letter W. The plaintiff did not follow the officer’s instructions and instead recited the alphabet from the letter J to the letter Z. The officer requested that the plaintiff count backward beginning at fifty-eight and ending at forty-nine. Again, the plaintiff did not follow the officer’s instructions and, instead, counted from fifty-eight to forty-six. The officer performed the horizontal gaze nystagmus test. The plaintiff failed. The officer requested that the plaintiff perform both the one-leg stand and the “heel to toe” walk and turn tests. The plaintiff was unable to maintain his balance without raising his arms and failed to take “heel to toe” steps.

       General Statutes § 14-227b (c) provides in relevant part: “If the person arrested refuses to submit to [breath test] . . . the police officer . . , shall immediately revoke and take possession of the motor vehicle operator’s license .... The police officer shall prepare a written report of the incident and shall mail the report ... to the Department of Motor Vehicles . . . .”

       The plaintiff filed a motion to stay his license suspension on October 16, 1998. The court granted this motion pending the plaintiffs appeal.

       Both, parties refer to October 30, 1998, as the date of the plaintiffs petition for reconsideration and to December 15, 1998, as the date of his petition to reopen the hearing to present new evidence. The commissioner’s decision denying both of these petitions, however, indicates that the filing dates were November 3,1998, and December 17,1998, respectively. Regardless of what date the document bears, the date the document was filed is the operative date. See Home Oil Co. v. Todd, 195 Conn. 333, 343, 487 A.2d 1095 (1985) (filing date as endorsed by clerk on pleading is date pleading is filed); Practice Book § 4-3 (all pleadings and papers in pending cases shall be filed with clerk who shall endorse upon each the time when it is filed).

       On November 3, 1998, the plaintiff filed a complaint and appeal in the Superior Court, appealing from the commissioner’s October 14, 1998 decision to suspend his license to operate a motor vehicle. On December 10, 1998, he amended his appeal to include the commissioner’s November 30, 1998, decision denying his petition for reconsideration.

       The transcript reveals that the plaintiff argued to the trial court that his petition for reconsideration should have been accepted as timely because “it’s not always easy to have everything ready for a hearing within two weeks” and that there were personal extenuating circumstances intervening between the day he received the final decision and the day he filed his petition for reconsideration.


author: PETERS, J.

text:
    CB COMMERCIAL/HAMPSHIRE, LLC v. SECURITY MUTUAL LIFE INSURANCE COMPANY ET AL.
    (AC 20986)
    Spear, Mihalakos and Peters, Js.
    Argued November 3
    officially released December 19, 2000

      Edward T. Krumeich, for the plaintiff in error.

      Bernard Green, with whom, on the brief, was Mami Smith Katz, for the defendants in error.
   Opinion

PETERS, J.

This writ of error concerns a rent receivership that was instituted during the pendency of a mortgage foreclosure of a commercial office building. At trial, and in this court, the issues arise out of the receiver’s final accounting to the court. The borrower challenged the validity of two charges against the receivership estate, one for payment of a real estate commission and another for payment of postdischarge management expenses. The court sustained the borrower’s objection to those charges. The receiver first appealed and then filed this writ of error to challenge the disallowance of the charges. On procedural grounds, we affirm the ruling at trial.

The defendant in error Security Mutual Life Insurance Company of New York (lender) brought an action for strict foreclosure of a mortgage on a commercial office building (property) in Southport that secured the indebtedness of Kings West Limited Partnership (borrower) and others. On June 7,1996, in conjunction with that proceeding and in accordance with a stipulation of the parties thereto, the court, Grogins, J., appointed CB Commercial/Hampshire, LLC (receiver), to act as rent receiver. Again at the behest of the parties, on July 1, 1996, the court, West, J., modified that order. On April 7, 1997, after the parties had settled the mortgage foreclosure action, the court, Rush, J., discharged the receiver and ordered a hearing on a final accounting of the receivership.

At the hearing held by the court, Hon. George A. Saden, judge trial referee, to review the receiver’s final accounting, the borrower asked the court to disallow two items that the receiver had deducted in accounting for the rents that it had collected. These items were (1) the payment of a commission of $56,459.27 to a broker for the leasing of a unit of the mortgaged property and (2) management fees in the amount of $8480 for services rendered subsequent to the termination of the receivership.

The court ruled in favor of the borrower with respect to both disputed items. The receiver sought appellate review of the court’s ruling in this court. We dismissed the appeal because the receiver was not a party to the underlying foreclosure action. Security Mutual Ins. Co. of New York v. Kings West Ltd. Partnership, 56 Conn. App. 44, 45-46, 741 A.2d 329 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). We noted, however, that the receiver might be able to obtain review by recourse to a writ of error. Id., 47 n.4. Pursuant to Practice Book § 72-1 (a), the receiver then brought a writ of error to our Supreme Court, which transferred the writ to this court.

In its writ of error, the receiver renews its challenge to the court’s disapproval of its accounting with respect to the commission that it paid and the management fees that it charged against the receivership estate for services rendered after the termination of the receivership. In addition, with respect to each disapproval, it contests the validity of the court’s order requiring reimbursement to the receivership estate.

Our review of the receiver’s claims is controlled by the same rules of appellate procedure that would have been applicable on direct appeal. When a writ of error is addressed to our Supreme Court, and then transferred to this court, we do not hear the case de novo. The rules set out in Practice Book § 60-5 govern and limit our review of the merits of a writ of error.

REAL ESTATE COMMISSION

The receiver’s principal claim is that the court improperly required it to reimburse the receivership estate for the receiver’s payment of a real estate commission in the amount of $56,459.27 to its affiliate, CB Commercial Real Estate (broker). The court found that a payment in that amount had been made. It held, nonetheless, that the payment was unauthorized because (1) the order appointing the receiver did not “specify any authority for payment of a commission” and (2) a modification of the order appointing the receiver required prior court approval of expenses exceeding $1500.

At trial, Ronald R. Macklin, the senior vice president of the receiver, testified about the circumstances giving rise to the payment of the commission. During the receivership, a vacancy in the property had occurred and had been filled. There was contradictory testimony at trial about the role of the broker in filling the vacancy. The court’s memorandum of decision did not resolve that factual dispute. The record is clear, however, that the receiver never sought prior court approval before its payment of the commission to the broker.

The receiver challenges the validity of the court’s conclusion that the receiver lacked authority to pay any real estate commission, either as a general matter or as a result of its failure to obtain prepayment approval by the court. The issues raised by the receiver involve questions of law concerning the proper construction of the various court orders that defined the scope of the rent receivership. We agree with the receiver, therefore, that, prima facie, such questions are entitled to plenary review by this court. See, e.g., Crandall v. Gould, 244 Conn. 583, 590, 711 A.2d 682 (1998).

The court resolved the issues of scope against the receiver on the ground that the receiver had no specific authority to pay commissions. Concededly, although nothing in the original order so states, the order does authorize the receiver to engage, inter alia, in “the negotiation and execution of leases.”

The court also interpreted a modification of the receivership order as a limitation on the receiver’s power to act without court preapproval. The modification order arose, however, in the context of a particular financing transaction and arguably had no application under the circumstances of this case.

The receiver maintains that the court was required to approve the payment of the real estate commission. In support of its contention that it had authority to pay the commission, the receiver argues the following: (1) the receivership orders conferred express and implied authority on the receiver to pay a commission; (2) the receiver had authority to accept executory contracts, including a prior listing agreement, and that it accepted the listing contract and relied upon it in exercising its authority in paying the commission; and (3) the receiver was not required to seek judicial preapproval because any such limitations in the modified order did not apply to operating expenses. Even if payment of the commission was incorrect, the receiver argues that the court should have ratified the payment because (1) the receiver was entitled to the benefit of the equitable principles that govern foreclosures, and (2) it acted in good faith and on the advice of counsel.

Each of these arguments suffers from the same fatal procedural defect. The court’s memorandum of decision did not address them, and the receiver took no steps to rectify the record. Specifically, it did not file a motion, pursuant to Practice Book § 66-5, for articulation of the court’s legal conclusions or the factual bases therefor.

On the record, the court did not discuss alternate constructions of the receivership orders or the scope of the court’s own equitable prerogatives. The court made none of the findings of fact that the receiver takes as having been established. The court made no findings about the existence of a prior executory listing contract or the acceptance of such a contract by the receiver. The court made no finding that the receiver had acted in good faith or in reliance on the advice of counsel.

Our Supreme Court has counseled that, if “the factual or legal basis of the trial court’s decision is unclear, the appellant should file a motion for articulation pursuant to Practice Book § 4051 [now § 66-5].” Matza v. Matza, 226 Conn. 166, 187-88, 627 A.2d 414 (1993); Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992). The appellant bears the responsibility of clarifying the legal basis of a ruling or of asking the trial judge to rule on an overlooked matter. Practice Book §§ 60-5 and 61-1; Rivera v. Double A Transportation, Inc., 248 Conn. 21, 34, 727 A.2d 204 (1999), and cases therein cited. In the absence of a request for articulation, we decline to review the merits of the receiver’s claim that the court improperly sustained the borrower’s objection to charging the receivership estate with the payment of the real estate commission.

Finally, the receiver maintains that the court improperly required it to repay to the receivership estate the amount of the commission that the receiver lacked the authority to pay. The receiver argues that the court should not have required repayment absent a showing of negligence or fraud on the receiver’s part. Once again, the record is devoid of any court ruling on the merits of this contention.

The receiver does not argue that the court had some inherent responsibility to state, sua sponte, the reasons for its remedial order. Indeed, as the borrower aptly observes, without reimbursement of the receivership estate for moneys improperly charged against that estate, the borrower would be hard pressed to find a remedy for the receiver’s unauthorized disbursement.

In light of the foregoing discussion, the receiver cannot prevail on its claimed entitlement to reimbursement for the contested real estate commission.

MANAGEMENT FEES

The receiver has briefed, in perfunctory fashion, its challenge to the rejection of its postdischarge management fees. It has provided no basis, either in the court’s memorandum of decision or by reference to controlling case law, for its assertion that it continued to provide reimbursable services for the receivership estate after its formal discharge. The receiver has provided no authority for the proposition that the receivership estate was required to underwrite costs incurred with respect to the receiver’s unsuccessful defense of its final accounting. It has not established that, at the time of the discharge of the receivership, the parties contemplated that the receivership would incur further expenses that would be chargeable to the receivership estate.

In light of the foregoing discussion, the receiver cannot prevail on its claimed entitlement to reimbursement for expenses incurred subsequent to its discharge.

CONCLUSION

The decision upholding two objections to the receiver’s final accounting is affirmed.

In this opinion the other judges concurred.

       The lender’s complaint also named Charles P. Lemieux III and the Sotavento Corporation as defendants.

       Pursuant to Practice Book § 72-4, in the absence of a contrary statute or rule, “the prosecution and defense of a writ of error, once filed, shall be in accordance with the rules for appeals.”

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .

        * * *
      “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      “It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.”

       The receiver claims, devoid of any citation of authorities, that the court improperly denied it 1he opportunity to testify about its understanding of the scope of its authority under the receivership. Because this claim is inadequately briefed, we decline to review its merits. See Keeney v. Old Saybrook, 237 Conn. 135, 142 n.7, 676 A.2d 795 (1996); Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 181 n.4, 629 A.2d 1116 (1993).

       The modification order authorized the receiver “to incur legal fees and expenses related to the Financing Transaction as may reasonably be necessary; however, the Receiver shall first seek an additional order of the Court before incurring fees and expenses of more than $1,500.00.”

       The receiver argues that cases such as Seward v. M. Seward & Son Co., 91 Conn. 190, 193, 99 A. 887 (1916), and authorities such as 16 W. Fletcher, Cyclopedia of the Law of Private Corporations (1998 Rev.) § 7820, pp. 447-48, support the exercise of equitable discretion for the benefit of receivers. We are not prepared to equate the existence of such equitable discretion with a .judicial mandate to exercise such authority. Second, the receiver argues that ratification was required because, if asked, a court would have preapproved its hiring of the broker and its payment of the brokerage commission. We cannot decide cases by speculating on what might have occurred had the receiver taken action that it did not in fact take.

       Indeed, the court’s decision may be read as having rejected any claim of good faith. The court observed that the receiver’s payment of a commission to an affiliate was “questionable.”

       The receiver cites a number of decisions from other jurisdictions, as well as a Connecticut Superior Court case, in support of this principle. Under the circumstances of this case, we need not address whether those authorities should be followed in this state.


text:
    TERRILL SPEIGHT v. OFFICE OF VICTIM SERVICES
    (AC 19875)
    Mihalakos, Zarella and Hennessy, Js.
    Submitted on briefs October 18
    officially released December 19, 2000

      Richard Blumenthal, attorney general, and Susan Quinn Cobb and Carolyn K. Querijero, assistant attorneys general, filed a brief for the appellant (defendant).
   Opinion

MIHALAKOS, J.

In this appeal, the defendant, the office of victim services, challenges an order entered by the Superior Court requiring the defendant to compensate the plaintiff, Terrill Speight, for medical expenses incurred as a result of a crime against his person. The defendant argues that the court properly rendered a judgment of dismissal for lack of subject matter jurisdiction and, consequently, that the court lacked the authority to enter the challenged order. We agree and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. At approximately 3 a.m. on October 23, 1996, the plaintiff was shot while walking in Stamford near the intersection of South Pacific and Manhattan Streets. After recovering from the wound, the plaintiff applied to the defendant for compensation. On April 23, 1997, the defendant declined to compensate the plaintiff for his losses because he had “failed to cooperate with law enforcement officials in their efforts to investigate the incident.” Pursuant to General Statutes § 54-205 (b), the plaintiff requested that a victim compensation commissioner (commissioner) review the defendant’s decision.

On February 5, 1998, in response to the plaintiffs request for review, the commissioner conducted a hearing. On August 17, 1998, the commissioner concluded that the plaintiff was eligible to receive compensation for medical expenses and lost wages, and he awarded the plaintiff $7849.70. After receiving notice of the commissioner’s decision, the plaintiff filed a claim for the award. On August 24, 1998, however, the plaintiff sent a letter to the defendant, requesting that it disregard his claim for the award and informing it that he had decided to appeal from the commissioner’s decision.

Approximately seven months later, on March 18, 1999, the plaintiff appealed from the commissioner’s decision to the Superior Court in the judicial district of Hartford, claiming that the award was “inadequate to cover the loss of wages and the amount of suffering caused by the crime.” On May 6, 1999, the defendant moved to dismiss the plaintiffs appeal for lack of subject matter jurisdiction, arguing that the appeal was untimely under General Statutes § 54-211a. On June 15, 1999, the court granted the defendant’s motion to dismiss, ordered the defendant to pay the plaintiffs medical expenses and rendered judgment in favor of the defendant. This appeal followed.

“ ‘Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.’ ” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 423-24, 559 A.2d 1103 (1989), quoting Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings. Because “[a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it”; (internal quotation marks omitted) Demar v. Open Space & Conservation Commission, supra, 424; we must determine whether the court had subject matter jurisdiction to hear the plaintiffs appeal from the commissioner’s decision, notwithstanding the court’s decision indicating that it did not have such authority.

“The right to appeal to the courts from [a] decision of an administrative agency exists only if given by statute . . . .” Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985). Because “[a]ppellate jurisdiction is derived from the . . . statutory provisions by which it is created”; (internal quotation marks omitted) Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 263, 715 A.2d 701 (1998); the right to appeal “is conditioned upon strict compliance with the provisions by which it is created.” Rogers v. Commission on Human Rights & Opportunities, supra, 550. Accordingly, “[t]he failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it.” Id., citing Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979).

In the present case, the plaintiff failed to comply strictly with the statutory provision that creates the right to appeal from decisions of the victim compensation commissioner. This provision, § 54-211a, requires that appeals “be taken within thirty days after mailing of the order or decision, or if there is no mailing, within thirty days after personal delivery of such order or decision.” The plaintiff, however, did not take his appeal until approximately 210 days after he received notice of the commissioner’s decision. Therefore, the court did not have jurisdiction to hear it. See Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 850-57, 633 A.2d 305 (1993) (affirming judgment of dismissal of administrative appeal because appeal filed five days after statutorily prescribed forty-five day appeal period expired). Accordingly, the court did not have the authority to enter the challenged order.

The judgment is reversed only as to the order that the defendant pay the plaintiffs medical bills and the case is remanded with direction to vacate that order. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 54-204 (a) provides in relevant part: “Any person who may be eligible for compensation or restitution services, or both, pursuant to this chapter may make application therefor to the Office of Victim Services . . . .”

        General Statutes § 54-208 (c) provides: “In determining whether to make an order under this section, the Office of Victim Services or, on review, a victim compensation commissioner shall consider all circumstances determined to be relevant, including but not limited to provocation, consent or any other behavior of the victim which directly or indirectly contributed to such victim’s ipjury or death, the extent of the victim’s cooperation in investigating the application and the extent of the victim’s cooperation with law enforcement agencies in their efforts to apprehend and prosecute the offender, and any other relevant matters.”
      General Statutes (Rev. to 1995) § 54-210 (a) provides: “The Office of Victim Services or a victim compensation commissioner may order the payment of compensation under this chapter for: (1) Expenses actually and reasonably incurred as a result of the personal injury or death of tire victim; (2) loss of earning power as a result of total or partial incapacity of such victim; (3) pecuniary loss to the dependents of the deceased victim, and (4) any other loss, except as set forth in section 54-211, resulting from the personal injury or death of the victim which the Office of Victim Services or a victim compensation commissioner, as the case may be, determines to be reasonable. There shall be one hundred dollars deductible from the total amount determined by said office or victim compensation commissioner.”

       General Statutes § 54-205 (b) provides: “An applicant may request that a determination made pursuant to subsection (a) of this section be reviewed by a victim compensation commissioner by filing a request for review with the Office of Victim Services, on a form prescribed by the Office of the Chief Court Administrator, within thirty days from mailing of the notice of such determination.”

       General Statutes § 54-208 (a) provides in relevant part: “If a person is injured or killed as provided in section 54-209, the Office of Victim Services or, on review, a victim compensation commissioner may order the payment of compensation in accordance with the provisions of this chapter . . . .”

       General Statutes § 54-211a provides: “Any applicant aggrieved by an order or decision of a victim compensation commissioner may appeal by way of a demand for a trial de novo to the superior court for the judicial district of Hartford. The appeal shall be taken within thirty days after mailing of the order or decision, or if there is no mailing, within thirty days after personal delivery of such order or decision.”


author: PELLEGRINO, J.

text:
    SCOTT JOHNSON v. VICTORIA DE TOLEDO ET AL.
    (AC 19289)
    Landau, Pellegrino and Callahan, Js.
    Argued September 18
    officially released December 19, 2000

      Anthony M. Modugno, with whom, on the brief, was Frank Modugno, for the appellant (plaintiff).

      JohnM. Gasidlo, for the appellees (named defendant et al.).
   Opinion

PELLEGRINO, J.

The plaintiff, Scott Johnson, doing business as Viking Painting, appeals from the judgment of the trial court discharging a mechanic’s lien he filed against real property owned by the defendants Victoria de Toledo and Stewart M. Casper (homeowners). On appeal, the plaintiff claims that the court improperly (1) allowed a credit of $17,500 against the price the homeowners agreed to pay the general contractor, the defendant James A. Basli Construction Company (Basli), for the construction of a patio and a retaining wall, and (2) discharged the lien without its invalidity having been established by clear and convincing evidence. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. In December, 1995, the homeowners, the joint owners of real estate in Wilton, entered into an agreement with the defendant Basli to perform certain improvements and additions to their residence. Basli hired the plaintiff, a subcontractor, to perform the painting work in connection with its contract with the homeowners. The homeowners discharged Bash before it completed its work because of their general dissatisfaction with its performance, and because of a dispute as to whether their contract included the construction of a patio and a retaining wall. The homeowners subsequently hired a mason contractor to build the patio and the retaining wall at an agreed price of $17,500, and they retained another general contractor to complete the remaining work under their contract with Basli. In the interim, the plaintiff completed his painting services and, when he was not paid by Basli, filed a mechanic’s lien against the homeowners’ property.

On February 8, 1999, the court held a hearing in connection with the homeowners’ application to discharge the mechanic’s lien. At the hearing, the parties stipulated that the lien was timely filed and properly served. The court, Dean, J., however, granted the homeowners’ application to discharge the lien. Thereafter, the plaintiff sought an articulation of the basis for the court’s decision. The court, however, did not act on the motion for articulation. At or about the time this appeal was commenced, the trial judge was no longer a judge of the Superior Court and, therefore, was unable to respond to the plaintiffs request. This appeal followed.

I

The plaintiff first claims that the court improperly found that the original contract between the homeowners and Basli included the construction of a patio and a retaining wall. The plaintiff, therefore, argues that the homeowners are not entitled to a credit of $17,500 paid for the construction of the patio and the retaining wall against their contract with Basli. The plaintiff contends that the effect of such a credit against the original contract price allows the homeowners to obtain full performance of the contract at a cost less than they had agreed with Basli. The plaintiff further claims that if the homeowners paid less than the agreed contract price, there is probable cause to sustain the lien. In response, the homeowners assert that because Basli was to construct the patio and the retaining wall under the original contract, they are entitled to a $17,500 credit. Therefore, the homeowners claim they have no further liability to the plaintiff pursuant to General Statutes § 49-36 (a) because, taking into consideration the $17,500 they paid for the patio and the retaining wall, they already have paid $9953.18 more than the original contract required. We agree with the homeowners.

At the hearing, the parties agreed that the court would determine whether the patio and retaining wall were items included in the contract to be performed by Basli. Although the trial judge did not submit a memorandum of decision or a signed transcript, he orally rendered his decision in connection with this issue after hearing the evidence. See Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993) (reviewing defendants’ appellate challenge of trial court’s factual findings in absence of written memorandum where transcript contained court’s findings, conclusions). The court found that the patio and the retaining wall were included in the contract.

Our review of questions of fact is limited to the determination of whether the findings were clearly erroneous. See Dana Investment Corp. v. Schlesinger, 60 Conn. App. 76, 77, 759 A.2d 99, cert. denied, 255 Conn. 914, 763 A.2d 1037 (2000). “A factual finding may be rejected by this court only if it is clearly erroneous.” (Internal quotation marks omitted.) Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 86, 755 A.2d 196 (2000). “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 209, 758 A.2d 869 (2000).

At the hearing, the only evidence as to whether the patio and the retaining wall were included in the contract was the testimony of the defendant homeowner, de Toledo. She testified that the specifications provided for the construction of the patio and the retaining wall, and that Basli was obligated to perform that work. Basli did not offer testimony at that hearing. The court found the testimony of the defendant de Toledo credible. We cannot say that the findings of the court were clearly erroneous. The homeowners, therefore, are entitled to a credit against their contract with Basli for the $17,500 paid to the mason contractor to construct the patio and the retaining wall.

II

The plaintiff next claims that the court improperly discharged the mechanic’s lien after determining that it was invalid. The plaintiff argues that pursuant to General Statutes § 49-35b (b), the court must have found that the lien was invalid by clear and convincing evidence, and that because the court did not specifically state which standard it applied, this court cannot assume that the trial court applied the proper standard. We disagree.

“We have said that [a] judgment is entitled to reasonable presumptions in support of its validity.” (Internal quotation marte omitted.) Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986). “[I]t is presumed, unless the contrary appears, that judicial acts and duties have been duly and regularly performed, the presumption of regularity attending the acts of public officers being applicable to judges and courts . . . .” (Internal quotation marks omitted.) State v. Marrero, 59 Conn. App. 189, 192, 757 A.2d 594, cert. denied, 254 Conn. 934, 761 A.2d 756 (2000), quoting Brookfield v. Candlewood Shores Estates, Inc., supra, 6. “ ‘The general rule that a judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so demonstrated raises a presumption that the rendering court acted only after due consideration, in conformity with the law and in accordance with its duty.’ ” Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988); Brookfield v. Can-dlewood Shores Estates, Inc., supra, 7. “It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly. . . . Rather, we are entitled to assume, unless it appears to the contrary, that the trial court . . . acted properly, including considering the applicable legal principles.” (Citations omitted; internal quotation marks omitted.) Rosenblit v. Danaher, supra, 134; State v. Marrero, supra, 191-92.

In State v. Marrero, supra, 59 Conn. App. 191-92, we presumed that the trial court applied the proper standard of proof in a violation of a probation proceeding even though the court had not articulated the standard of proof that it employed. See also State v. Torres, 35 Conn. App. 107, 110-11, 644 A.2d 384 (1994). We must, therefore, assume that the court applied the correct standard of proof in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants in this action are James A. Basli Construction Company, the general contractor with whom de Toledo and Casper contracted to make improvements to their home, and David A. Fuller, doing business as David Fuller Cabinetmakers, who also held a mechanic’s lien against the de Toledo and Casper property.

       On appeal, the plaintiff also claims that the court failed to find that a $10,000 payment by the homeowners, held in escrow for the defendant David A. Fuller, doing business as David Fuller Cabinetmakers, was made in bad faith pursuant to General Statutes § 49-36 (c). The plaintiff contends that the $10,000 should be apportioned pursuant to § 49-36 (b). Because the court did not address or make a finding concerning the alleged $10,000 payment, we decline to address this issue. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998) (“because our review is limited to matters in the record, we will not address issues not decided by the trial court”); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims “neither addressed nor decided” by trial court not properly before appellate tribunal).

       The agreed price for the work Basli was to perform under the contract was $446,407.

       The agreed price on the painting subcontract between the plaintiff and Basli was $15,265.

       General Statutes § 49-36 (a) provides in relevant part: “No mechanic’s lion may attach 1 o any building or its appurtenances, or to the land on which the same stands, or any lot, or any plot of land, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for ... the development of any such lot, or the development of any such plot of land.”

       There does not seem to be any dispute, and the exhibits confirm, that the homeowners paid Basli $387,058 up to the time that it was discharged, paid the mason contractor $17,500 to complete the patio and the retaining wall, and paid another contractor $51,802.18 to complete the work on the contract, thereby exceeding the original contract price of $446,407 by $9953.18.

       General Statutes § 49-35b (b) provides in relevant part: “Upon consideration of the facts before it, the court or judge may ... (2) order the lien discharged if (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is established . . . .”


author: PER CURIAM.

text:
    JESSICA FITZGERALD v. TRACY FITZGERALD
    (AC 20562)
    Sehaller, Mihalakos and Zarella, Js.
    Submitted on briefs October 18
    officially released December 19, 2000

      Judith I. Johannsen and Michael A. Lockaby filed a brief for the appellant (defendant).

      Kenneth J. McDonnell filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Tracy Fitzgerald, appeals from the judgment of the trial court in this action for the dissolution of the parties’ marriage. On appeal, the defendant claims that the court improperly determined that certain moneys transferred from his mother to him and the plaintiff, Jessica Fitzgerald, constituted a gift and not a loan. We affirm the judgment of the trial court.

In the court’s memorandum of decision, the only reference to those moneys is the following legal conclusion: “The court finds that as far as the plaintiff wife is concerned, the funds contributed by the defendant’s mother for the purchase of the parties’ marital home was a gift. To hold otherwise would compel a finding of fraud by the parties to induce the bank to grant the mortgage. If the defendant wishes to consider the gift from his mother as a loan, it shall be his obligation to repay it and hold harmless the plaintiff from any liability.” The defendant did not seek an articulation of this conclusion.

“Under these circumstances, [w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. Practice Book § 61-10; Lombardi v. Lombardi, 55 Conn. App. 117, 118, 737 A.2d 988 (1999), cert. denied, 252 Conn. 943, 747 A.2d 520 (2000). “Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5].” State v. Marquis, 36 Conn. App. 803, 804, 653 A.2d 833, rev’d on other grounds, 235 Conn. 659, 668 A.2d 710 (1995).

Accordingly, “[w]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly. ” DeLuca v. DeLuca, 37 Conn. App. 586, 588, 657 A.2d 690 (1995). We conclude that the record is inadequate for our review of the defendant’s claim. Moreover, we assume the court acted properly in the absence of a motion for articulation.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. EDWARD J. KILROY
    (AC 17722)
    Landau, Mihalakos and Pellegrino, Js.

      Argued May 1
    officially released December 26, 2000

      Joseph F. Keefe, with whom were James Zeller and, on the brief, Edward J. Peters, Jr., for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and John Cashmon, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Edward J. Kilroy, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d (a). The defendant claims that the trial court improperly (1) admitted the records of Middlesex Hospital concerning his blood alcohol level, (2) admitted the testimony of Richard Dennis Pinder, a physician, concerning the blood alcohol tests performed at Middle-sex Hospital, (3) instructed the jury that it could not draw an adverse inference from the failure of the police to produce photographs that were taken of the defendant’s vehicle and (4) failed to allow into evidence a redacted police report. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 20, 1994, at approximately 2 a.m., a Nissan Pathfinder driven by James Timbro was proceeding southbound on Saybrook Road. Timbro had consumed three beers over the previous six hours. Tim-bro saw the headlights of the defendant’s pickup truck rapidly approaching in his own lane. In an attempt to avoid a head-on collision with the oncoming vehicle, Timbro swerved into the northbound lane. The defendant, however, turned in the same direction and the two vehicles collided.

Officer Glen Morron of the Middletown police department, also traveling southbound on Saybrook Road, arrived on the scene soon after the collision. Upon exiting his vehicle, Morron found Timbro, screaming in pain, lying on the ground just outside the open driver side door of his vehicle. Seeing that Timbro was in need of immediate medical attention, Morron reported the accident and requested medical assistance. Morron then approached the defendant’s pickup truck. In the cab of the defendant’s pickup truck Morron saw a man, later identified as Gregg McQueeney, slumped over in the passenger seat, his head resting against the passenger side window. McQueeney was bleeding from the head and appeared to be unconscious.

Walking around the truck to the passenger side door, Morron saw the defendant standing on the shoulder of the road, bleeding from the head. Morron assisted the defendant in sitting down on the ground. When asked what had happened, the defendant replied that he had been driving his truck in the proper lane when a car suddenly appeared on the wrong side of the road coming directly at him. The defendant, whose speech was slurred and who smelled of alcohol, told Morron that he had been drinking all night. Because the defendant was injured and in need of medical attention, Morron did not perform any field sobriety tests on him.

Paramedics, additional police and fire personnel arrived, and rescue efforts were coordinated by Lieutenant Wayne Bartoletta of the Middletown south fire district. Bartoletta found Timbro in serious medical distress and called for a rescue helicopter. Bartoletta then approached the defendant. Despite not having been asked, the defendant told Bartoletta that he had not been driving his own pickup truck. Bartoletta smelled beer on the defendant’s breath. Having ascertained that the defendant had no life threatening injuries, Bartoletta attended to McQueeney, who had regained consciousness in the cab of the pickup truck. Bartoletta ordered firefighter Glen Harvey to cut open the pickup truck’s passenger side door and to extricate McQueeney. All three accident victims were taken to Middlesex Hospital.

As soon as he was sure that Timbro, McQueeney and the defendant were receiving appropriate medical assistance, Morron began to investigate the accident scene. As part of the investigation, Morron asked Sergeant Louis Tosto of the Middletown police department to take photographs of both the Nissan Pathfinder and the pickup truck. After he had taken between twelve and twenty-four photographs, Tosto gave the undeveloped film to Morron. The film, however, was lost at some point, either before or after it had been developed. Despite an extensive search, neither the film nor the developed photographs were ever found. No one could determine with any degree of certainty whether the film had ever been developed.

On the night of the accident, the blood sample of all three accident victims were drawn at Middlesex Hospital and tested for alcohol content. The defendant’s blood was drawn and tested twice. At 4:03 a.m., the defendant’s blood alcohol level content (BAC) was 0.24 percent and, at 5:48 a.m., his BAC was 0.208 percent.

The defendant was charged with two counts of assault in the second degree with a motor vehicle in violation of § 53a-60d. At trial, the defendant pleaded not guilty and testified that he was not the driver of the pickup truck, but instead that he had been sleeping in the back bed of the pickup truck and did not know who had been driving at the time of the accident.

At trial, Pinder, a physician and an expert witness for the state, testified as to the defendant’s BAC and the number of drinks that he would have had to ingest to create that BAC. On August 7,1997, the jury returned a verdict of guilty of two counts of assault in the second degree with a motor vehicle. This appeal followed.

I

The defendant first claims that the court improperly allowed into evidence the test results of his BAC as part of his Middlesex Hospital records because the state failed to lay a proper foundation for the admission of those records. We disagree.

General Statutes § 52-180 sets forth two requirements for the admissibility of a business record at trial as an exception to the hearsay rule. Section 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.” “Section 52-180 should be liberally construed .... Appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion.” (Citations omitted.) River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991).

The court properly admitted the defendant’s Middle-sex Hospital records because the records met the requirements for a business record as an exception to the hearsay rule under § 52-180. At trial, William Gordon Van Nes, the defendant’s treating physician at Middle-sex Hospital on the night of the accident, provided the foundation for the admission of the hospital records. Van Nes testified concerning the hospital’s procedures surrounding the taking, labeling and testing of blood samples. His testimony clearly demonstrated that in the regular course of business, Middlesex Hospital takes, tests and labels blood samples from patients. Van Nes further testified that it is the hospital’s regular course of business to record those test results in the patient’s hospital record within a reasonable time after the taking, labeling and testing of the patient’s blood.

General Statutes § 52-180 (b) provides in relevant part that a “writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. . . .” Our Supreme Court clarified this concept in River Dock & Pile, Inc., when it held that it is not necessary that the witness whose testimony provides the foundation for a business record be the author of that record. River Dock & Pile, Inc. v. O & G Industries, Inc., supra, 219 Conn. 794.

Therefore, the defendant’s claim that the state failed to lay a proper foundation for the admission of his hospital records because the state failed to produce as witnesses the person or persons who actually drew, labeled and tested the blood, and recorded the test results in the defendant’s hospital records is without merit. Pursuant to § 52-180 (b) and River Dock & Pile, Inc. v. O & G Industries, Inc., supra, 219 Conn. 794, such a failure is not a bar to the admission of the evidence as a business record.

II

The defendant’s second claim is that the court should not have allowed expert testimony concerning the blood alcohol tests performed on him at the hospital because the hospital records on which that testimony was based were improperly admitted into evidence. We do not address this claim.

Because this second claim is predicated on the inadmissibility of the defendant’s hospital records and because those records, as discussed previously, were properly admitted into evidence, the claim must fail.

III

The defendant’s third claim is that the court improperly charged the jury that it was not to draw any negative inference because of the failure of the police to produce the accident scene photographs at trial. Specifically, the defendant claims that the court improperly required him to show bad faith on the part of the police before it would charge the jury that a negative inference could be drawn from the absence of the photographs. We disagree.

The following additional facts are necessary to the resolution of this claim. On the night of the accident, Tosto took between twelve and twenty-four photographs of the pickup truck and the Nissan Pathfinder at the scene of the accident. Those photographs were neither produced at trial nor made available to the defense because the police were unable to find them or to ascertain whether the film had ever been developed.

Prior to closing argument to the jury, defense counsel filed with the court a request to charge the jury that the “fact that [the] photographs were not produced into evidence may be considered by you in weighing all of the testimony of the police officer who last had [the] film in his possession.” The court declined that request, and the defendant took exception to that ruling. During closing argument to the jury, however, defense counsel invited the jury to draw a negative inference against the state because the photographs had not been produced. In its charge to the jury, the trial court instructed the jurors that “[b]ecause the photographs have not been introduced into evidence, you may not consider the contents of the photos. You are not to speculate or surmise as to what the photographs may have depicted. You are not to draw any negative inference based upon the failure of the state to produce the photographs.” The defendant objected on the ground that “the jury should be allowed to take any inference it wishes from the fact that those photographs were not produced in evidence . . . The court responded that it did not have any intention to instruct the jury not to draw an adverse inference until defense counsel urged the jurors during closing argument to draw such an inference. The court stated that there was no logical basis for the drawing of a negative inference because it was not known what the photographs depicted and because there had been no showing of bad faith. The defendant interprets the court’s statement to mean that a bad faith test was imposed with regard to the missing photographs and claims on appeal that that was the wrong standard to apply in determining whether his due process rights were violated. The defendant, however, did not raise a due process claim at trial, and we will therefore subject that claim, raised for the first time on appeal, to the standard set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

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.” (Emphasis in original.) Id., 239-40.

“In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. “Although the first two prongs of Golding consider whether the defendant’s claim is reviewable, the last two prongs go to the merits of the claim.” State v. Brown, 56 Conn. App. 26, 31, 741 A.2d 321 (1999), cert. denied, 252 Conn. 927, 746 A.2d 790 (2000). We conclude that the defendant’s claim fails to satisfy the third prong of Golding because he is not able to establish a clear constitutional violation that clearly deprived him of a fair trial.

In State v. Morales, 232 Conn. 707, 727, 657 A.2d 585 (1995), our Supreme Court held that in determining whether the state’s failure to preserve evidence has resulted in a violation of a defendant’s due process right under article first, § 8, a “trial court must employ the [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: ‘the materiality of the missing evidence, the likelihood of mistaken inteipretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ [Id., 724].” State v. Morales, supra, 727.

In denying the defendant’s request to charge, the court ruled that there had been no showing that the police had acted in bad faith in not producing the photographs. That court also determined that the jurors would have had to resort to speculation as to what the photographs would have shown. In considering possible prejudice to the defendant, the court could not declare that the photographs would have been exculpatory. It also ruled that because the defendant had had access to the truck when it was located at a garage after the accident, and because defense witnesses in fact had examined the truck and testified about its condition, the loss of the photographs was harmless when the state’s failure to disclose them was balanced against any prejudice to the defendant. In light of the record here, the defendant cannot prevail on his claim that the trial court relied exclusively on the defendant’s failure to establish bad faith on the part of the police in reaching its decision. That court also ruled that any determination of materiality would have been speculative and that the defendant was not prejudiced. Under the circumstances here, there was no clear constitutional violation that clearly deprived the defendant of a fair trial.

IV

The defendant’s final claim is that the court’s failure to allow into evidence a redacted police report materially prejudiced his ability to defend himself against the charges. We disagree.

“A trial court has broad discretion in ruling on the admissibility of evidence, and such discretion will not be disturbed on appeal except on a showing of a clear abuse of discretion.” State v. Jones, 44 Conn. App. 476, 487, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997). The defendant has failed to show that the court abused its discretion in refusing to admit the redacted police report. It is clear from the record that the defendant was afforded several opportunities to put his evidence before the jury. Morron testified and was cross-examined during the trial. The defendant refused to ask for a capias from the court to compel Morron’s reappearance, and he refused a continuance to attempt to obtain Morron’s testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60d (a) provides in relevant part: “A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor . . . he causes serious physical injury to another person as a consequence of the effect of such liquor . . . .”


author: HENNESSY, J.

text:
    EDWARD J. JANIK v. BARBARA E. JANIK
    (AC 19250)
    Spear, Pellegrino and Hennessy, Js.
    Argued September 26
    officially released December 26, 2000

      Lori Welch-Rubin, for the appellant (defendant).

      Louis Kiefer, with whom was William F. OShea, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant, Barbara E. Janik, appeals from the judgment of the trial court modifying its order of custody of her minor child from joint legal custody to sole legal custody in the plaintiff, Edward J. Janik. The defendant claims that the court improperly (1) ordered her to undergo a psychological evaluation and to attend mediation sessions with the plaintiff and a court-appointed therapist, (2) modified child custody without sufficient evidence, (3) delegated its judicial authority to mental health professionals and (4) violated her constitutional right to an open court pursuant to article first, § 10, of the constitution of Connecticut. We conclude that the court had sufficient evidence to modify custody, but that it improperly ordered post-judgment psychological evaluation and therapy sessions for the defendant.

The following facts and procedural history are necessary for our resolution of this appeal. On February 22, 1995, when the parties’ marriage was dissolved, the court awarded the parties joint legal custody of their minor child, who was bom on November 20, 1991. The defendant was granted physical custody with reasonable visitation in the plaintiff. On November 12, 1997, the plaintiff filed a motion to modify custody. Kenneth S. Robson, the court-appointed evaluator who had provided the original custody evaluation, submitted to the court an updated report recommending that joint legal custody remain but that physical custody of the child be given to the plaintiff. Robson based his recommendation in part on the clinical status of the child and the plaintiffs relatively healthier parenting abilities. On January 5,1998, the court rendered judgment, in light of Robson’s recommendation, maintaining joint custody, but granting the plaintiff greater parenting time and mandating counseling for the child. On February 10, 1998, the child’s guardian ad litem moved to compel the plaintiff and the defendant to enroll the minor child in therapy. The court granted the motion and further indicated that interference with the child’s counseling sessions by either party would be grounds for a modification of custody.

On October 27, 1998, the plaintiff again moved to modify custody. Although the child had been in counseling with Michael Pines, a licensed psychologist, the plaintiff alleged that the defendant prevented the child from expressing her love for her father or her paternal grandparents, that the defendant made efforts to convince the child that she did not like spending time with her father, that the defendant withheld the child’s clothing, thereby forcing the plaintiff to purchase clothing in excess of the child’s needs, and that the child exhibited behavior that raised concerns with her therapist. The court found that the custody orders rendered earlier were not in the child’s best interest and, consequently, on January 8, 1999, ordered that sole legal and physical custody of the child be with the plaintiff, and granted reasonable visitation to the defendant.

The court further ordered a psychiatric evaluation of the defendant by Kenneth Selig, a psychiatrist, that was to “include an individual evaluation ... of the parent-child relationship between [the defendant and the child.]” Additionally, the court appointed Richard Fisher, a licensed marriage and family therapist, to serve as mediator, liaison and counselor between the plaintiff and the defendant, and ordered the parties to meet with him for therapy no less than once a month so that they may improve their parenting and communication skills. Although the court rendered its order “without prejudice,” it ordered that “[u]ntil Dr. Selig has completed his evaluation and until Dr. Fisher finishes his counseling with [the parties] and reports to the court that substantial progress has been made, no modification requests by [the defendant] will be heard by this court. In other words, there will be no increase in access to the child or the manner of access until the psychiatric evaluation has been completed and until Dr. Fisher reports substantial progress. This order applies only to an expansion of [the defendant’s] visitation with the child.” This appeal followed.

I

The defendant first claims that the court improperly ordered her to undergo a postjudgment psychological evaluation and attend mandatory counseling with the plaintiff and a court-appointed therapist. We agree.

Our standard of review in domestic relations cases is a narrow one. We will not reverse a trial court’s rulings with respect to custody unless the court incorrectly applied the law or could not have reasonably concluded as it did. Duve v. Duve, 25 Conn. App. 262, 266, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992); Hurtado v. Hurtado, 14 Conn. App. 296, 300-301, 541 A.2d 873 (1988).

Pursuant to General Statutes §§ 46b-3 and 46b-6, the court may require the parties and the child to undergo a psychiatric or psychological evaluation for the purpose of properly disposing of a family matter, in a modification of custody case, to assist in determining the best interest of the child. See, e.g., Pascal v. Pascal, 2 Conn. App. 472, 478-79, 481 A.2d 68 (1984). General Statutes § 46b-6 provides in relevant part that the court “may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an examination of the parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and character of his parents or guardians and evaluation of his mental or physical condition. In any action for dissolution of marriage, legal separation or annulment of marriage such investigation may include an examination into the age, habits and history of the parties, the causes of marital discord and the financial ability of the parties to furnish support to either spouse or any dependent child.” General Statutes § 46b-3 provides that the judge in any family relations matter may employ the use of a psychologist, psychiatrist or family counselor in carrying out such an evaluation.

In Savage v. Savage, 25 Conn. App. 693, 596 A.2d 23 (1991), this court considered the appropriateness of compelled postjudgment psychiatric and psychological evaluations of the parties and their minor children in a custody case. In Savage, the trial court ordered post-judgment evaluations “so that more information could be gathered in hopes that the parties would agree in the future to a custody arrangement or that the attorney for the minor children would move, if appropriate, for amodification of the court’s custody order.” Id., 699. We noted in Savage that the statutory provisions, §§ 46b-6 and 46b-3, refer to pending family relations matters only and, moreover, that the utility of such evaluations lies in their ability to shed light on the facts of a particular case so that it may be disposed of properly. Id., 700. “Once a case has been disposed of by the rendition of a final judgment and there is nothing further pending . . . there is no longer a reason for ordering an ongoing evaluation.” Id. Consequently, we held that a postjudgment order for a psychological evaluation constitutes an abuse of discretion. Id., 701.

Likewise, nothing in §§ 46b-3 and 46b-6 authorizes the court to order parties in a custody battle to undergo psychiatric therapy or other counseling postjudgment since those provisions apply to pending family matters. Nor does the plaintiff point us to any other statutory authority for such an order.

In this case, the court did not order the defendant to undergo a psychological evaluation to determine whether a modification of custody was appropriate and thereby to aid in the disposition of the case. Instead, the court ordered the psychological evaluation after it made the determination to modify custody. We conclude, therefore, that in accordance with §§ 46b-3 and 46b-6, and Savage, the court improperly ordered a post-judgment psychological evaluation and postjudgment counseling. The orders are vacated.

II

The defendant next claims that there was insufficient evidence for the court to modify custody from joint legal custody to sole legal custody in the plaintiff. We disagree.

General Statutes § 46b-56 governs a trial court’s orders regarding a custody determination and the care of minor children in a dissolution action. Section 46b-56 (a) provides in relevant part that “the court may at any time make or modify any proper order regarding . . . custody and visitation if it has jurisdiction . . . according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable.” That section further provides that in “modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .” General Statutes § 46b-

56 (b). “[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders ... by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child ... or a finding that the custody order sought to be modified was not based upon the best interests of the child.” (Internal quotation marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 55, 732 A.2d 808 (1999).

Among the various factors the court may consider when determining the best interest of the child are the parties’ parenting skills; Knock v. Knock, 224 Conn. 776, 785, 621 A.2d 267 (1993); the child’s emotional ties to each parent; Seymour v. Seymour, 180 Conn. 705, 711, 433 A.2d 1005 (1980); the psychological instability of the parent and whether the child is in a stable and loving environment. Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997); see also Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980). The court may also take into account the recommendations of the child’s therapist; see Szczerkowski v. Karmelo-wicz, 60 Conn. App. 429, 433-34, 759 A.2d 1050 (2000); In re David E., 4 Conn. App. 653, 657, 496 A.2d 229 (1985); and the child’s guardian ad litem. See Schult v. Schult, supra, 779 (“the guardian ad litem is the representative of the child’s best interests”).

The court’s discretion in determining whether a modification of custody should be granted is essential. Kelly v. Kelly, supra, 54 Conn. App. 56. Thus, “[a] mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 587, 680 A.2d 327 (1996).

The defendant claims that the court had insufficient evidence to modify custody as demonstrated by the fact that the court sought a psychological evaluation of her after modifying custody. We are not persuaded.

A court-ordered psychological evaluation of a parent will often be necessary to determine the best interest of the child. In this case, such an evaluation would certainly have revealed the defendant’s relative ability to parent, and the relationship between the defendant and her child; however, whether to order such an evaluation is entirely within the court’s discretionRidgeway v. Ridgeway, supra, 180 Conn. 542 n.6. Thus, we cannot conclude that the court had insufficient evidence to grant the plaintiffs motion to modify solely because it failed to order and consider a psychological evaluation prejudgment. Rather, we conclude that the court had sufficient evidence before it even without the benefit of a psychological evaluation of the defendant.

Although the court did not state the factual basis for the modification in its orders dated January 8, 1999, the record is sufficiently complete for this court to review the trial court’s exercise of discretion. The record reveals that the court heard considerable testimony that the child had been subjected to abuse, neglect and other inappropriate behavior while in the care of the defendant. The court heard testimony from Pines, the psychologist who had treated the child since the end of March, 1998. He testified that she exhibited positive personality changes since her increased time with the plaintiff; however, he stated that “[s]he appears as a totally different child” when she is with the defendant. He explained that “[s]he appears more closed emotionally, more shut down emotionally. More reticent. Overall, more fragile.”

More significantly, Pines testified that during the course of their therapy sessions the child discussed several incidents involving the defendant that raised concerns about the child’s psychological well-being and physical safety. For instance, the child confided that the defendant told her that if she continued to get good grades at the school she attended while living with the plaintiff, that she would not be able to return to the defendant’s home. The child also told Pines that the defendant locked her in her room for no apparent reason, sent her to her room without her having finished dinner on several occasions, and would make it difficult for her to communicate with the plaintiff and her paternal grandparents. On yet another occasion, she related that the defendant had thrown her across the room and hit her in the back several times. Pines found the child credible and clearly fearful. Finally, Pines testified that in his opinion, the defendant was emotionally unsup-portive of the child’s needs, that the defendant’s actions placed the child in an untenable, indefensible situation, and that contact between the defendant and the child should be limited to supervised visits.

The court then heard corroborating testimony from the plaintiff, the child’s paternal grandmother and the guardian ad litem. Each discussed similar- disclosures made by the child and their own accounts of the child’s fearful behavior.

Although the court heard conflicting testimony from the defendant, the court found her “not to be a credible witness.” The court further found that she had no “sincere desire to protect [the child’s] best interests . . . when her own preferences are in conflict [with the child’s].” By contrast, the court held Pines in high regard, and praised him and the guardian ad litem for their commitment to the best interest of the child. It is well established that the credibility of the witnesses is within the province of the trial court, which has the benefit of observing the witnesses and the parties. Brubeck v. Burns-Brubeck, supra, 42 Conn. App. 586. This court will not disturb the trial court’s conclusions concerning the credibility of witnesses absent a clear abuse of discretion. Id., 587.

Given the testimony of the child’s therapist, the child’s guardian ad litem, the plaintiff, the child’s paternal grandmother, the court’s conclusions concerning the credibility of the witnesses and the absence of evidence suggesting that the child would fabricate stories unfavorable to the defendant, we cannot conclude that the court abused its discretion. We conclude that the evidence was sufficient for the court to find that the defendant did not provide a supportive and stable environment for the child and, therefore, that it was in the best interest of the child for the plaintiff to have sole custody.

Ill

The defendant claims that the court improperly delegated its authority to mental health professionals and violated the defendant’s constitutional right to an open court pursuant to article first, § 10, of the constitution of Connecticut when it conditioned the defendant’s future modifications of custody on a finding by a court-appointed therapist of substantial progress in court-mandated therapy sessions. Since we vacate the court’s orders that would require the defendant to attend such therapy sessions, we decline to review these remaining claims.

The judgment is reversed only as to the orders for postjudgment psychological evaluation and counseling and the case is remanded with direction to vacate those orders. The judgment is affirmed as to the modification of custody.

In this opinion the other judges concurred.

       Robson recommended that the defendant retain physical custody until the end of the school year in June, 1998. Meanwhile, the plaintiff was granted longer periods of visitation. After June, 1998, the plaintiff would have physical custody, and the defendant would have reasonable visitation.

       Robson found that the child exhibited signs of clinical depression, increasing anxiety and a deepening “wariness and distrust of others.”

       Whether §§ 46b-3 and 46b-6 authorize therapy for the parties while the matter is pending is not an issue on appeal.

       We note, for purposes of clarification, that this is not inconsistent with our discussion in part I of this opinion since that part dealt with postjudgment psychological evaluations. We refer here to psychological evaluations properly ordered pursuant to General Statutes §§ 46b-3 and 46b-6.

       We need not address whether the court reasonably could have found that no evaluation was necessary as it is not an issue on appeal.

       Neither party sought an articulation of the factual basis for the court’s decision.