author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. ROBERT SHIELDS III
    (AC 30560)
    Robinson, Alvord and Pellegrino, Js.

      Argued June 2
    officially released October 26, 2010

      Richard Emanuel, with whom, on the brief, was Robert M. Casale, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence Mariani, senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Robert Shields III, appeals from the judgment of conviction, rendered following his conditional plea of nolo contendere pursuant to General Statutes § 54-94a, of possession of child pornography in the first degree in violation of General Statutes § 53a-196d. On appeal, the defendant claims that the trial court improperly (1) denied his motions to suppress because the affidavit in support of the search warrant application failed to establish probable cause for the search of his home and the seizure of his property therein, and (2) determined that the warrant authorized a forensic examination of the evidence. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On November 15, 2005, as the result of a criminal investigation that began in Pennsylvania, Officer Christopher Grillo of the Southbury police department and Trooper Gerard Johansen of the Connecticut state police prepared a search warrant application and affidavit for the search of the defendant’s residence at 141 Rocky Mountain Road in Southbury.

The affidavit stated that on November 4, 2005, Grillo received a telephone call from Brian Sprinkle, a detective with the Ferguson Township police department, located in State College, Pennsylvania. Sprinkle informed Grillo that through his investigation of Brian Gayan, a Pennsylvania resident accused of having unlawful contact with minors through the Internet, he learned of an online conversation between Gayan and Jerome Cariaso, also of 141 Rocky Mountain Road. During the conversation, Cariaso made comments regarding sexual contact between him and his eight year old son. Immediately after the call, Grillo confirmed that Cariaso resided at the address provided by Sprinkle.

On November 10, 2005, Grillo received a letter from Sprinkle that revealed that Trooper Glenn Brad of the Pennsylvania state police executed search warrants at Gayan’s place of residence and place of employment. A forensic search of his computers revealed that Gayan, using the screen name “Centralpamaster,” had contact with seventy-five screen names belonging either to minors or suspects who had spoken with him about abusing their own children or children they knew. Sprinkle obtained a court order, which asked Yahoo, Inc., to provide log-in Internal protocol (IP) addresses for the screen name “BÍ06488.” Yahoo, Inc., revealed that there was a recent log of IP addresses listed under that screen name. It was found that the IP addresses were owned by Charter Communications, and, on November 4, 2005, Charter Communications indicated that Cariaso, of 141 Rocky Mountain Road, Southbury, was the subscriber for the IP address of 24.151.2.100, the IP address in question.

Additionally, Sprinkle provided Grillo with a transcript of a Yahoo, Inc., messenger conversation between “Centralpamaster” and “BÍ06488,” in which “BÍ06488” asked “Centralpamaster” for pornographic photographs of “Centraipamaster’s” son. The person using the “BÍ06488” screen name informed “Centralpamaster” that they could not swap photographs because he did not currently have pornographic photographs of his son on his computer.

On November 14, 2005, Grillo obtained land records from the Southbury assessor’s office indicating that the property located at 141 Rocky Mountain Road was owned by Cariaso, the defendant and Rosalie Shields. Based on the foregoing investigation, Grillo and Johansen submitted a search warrant application seeking to search the subject residence. The warrant affidavit alleged that there was probable cause to believe that Cariaso had violated the following statutes: General Statutes § 53-21, risk of injury to a child; § 53a-196d, possession of child pornography in the first degree; and General Statutes §§ 53a-49 and 53a-196d, attempt to possess child pornography in the first degree. The court, Brown, J., issued the warrant on the same day, authorizing a search of the residence located at 141 Rocky Mountain Road, the seizure and subsequent investigative review of any computer systems found for evidence of violations of § 53-21, § 53a-196d, and §§ 53a-49 and 53a-196d, and the transport of the computer systems to the Connecticut state police computer crime and electronics evidence unit (evidence unit).

On November 16, 2005, the police executed the warrant. Upon entering the residence, the police found the defendant, Rosalie Shields and Cariaso. The police seized numerous computer systems from the residence. The evidence unit completed a forensic examination of the defendant’s computers and found numerous still and video images depicting child pornography. The forensic examination also revealed extensive evidence that the computers were used by the defendant and not Cariaso. The defendant was arrested and charged with possession of child pornography in the first degree in violation of § 53a-196d and importing child pornography in violation of § 53a-196c.

On August 16, 2006, the defendant filed a motion to suppress the evidence that had been seized, arguing, inter alia, that the search was unlawful because the warrant failed to establish probable cause to believe that child pornography was located within the subject residence. The defendant further argued that the affidavit attached to the warrant failed to establish a connection between the screen name “BÍ06488,” the IP address and the subject premises. On June 8, 2007, the court, Cremins, J., denied the defendant’s motion and concluded that the affidavit supported a reasonable inference that “BÍ06488” requested the receipt of pornographic images and that this inference provided the issuing magistrate with a substantial basis from which to conclude that evidence of child pornography would be found in the residence.

The defendant filed a second motion to suppress on September 11, 2008. He alleged that information discovered subsequent to the court’s ruling on the first motion to suppress defeated a finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) (holding that when defendant makes substantial preliminary showing that false statement knowingly and intentionally, or with reckless disregard for truth, included by affiant in warrant affidavit, and allegedly false statement necessary to find probable cause, fourth amendment, as incorporated against states by fourteenth amendment, requires hearing be held at defendant’s request). On September 16, 2008, the court, Alander, J., heard argument on, and subsequently denied, the defendant’s motion. Following the denial of the second motion to suppress, the defendant, on September 17, 2008, entered a written, conditional plea of nolo contendere to possession of child pornography in the first degree. In accordance with the plea agreement, he was sentenced to a term of imprisonment of twenty years, execution suspended after five years, and ten years probation, with conditions including sex offender evaluation and treatment, and registration as a sex offender. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendant’s claims pertaining to his motions to suppress. “The standard of review in connection with the court’s denial of a motion to suppress is well settled. As stated by our Supreme Court: This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go. ... In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact.” (Internal quotation marks omitted.) State v. Kaminski, 106 Conn. App. 114, 124-25, 940 A.2d 844, cert. denied, 287 Conn. 909, 950 A.2d 1286 (2008).

“It is undisputed that [p]robable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. . . . Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . [I]t is axiomatic that [a] significantly lower quant[um] of proof is required to establish probable cause [rather] than guilt. . . . [P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens’ . . . demands. ... In making a determination of probable cause the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts. . . .

“Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal. . . . Because this issue implicates a defendant’s constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . Furthermore, [w]e view the information in the affidavit in the light most favorable to upholding the [issuing judge’s] determination of probable cause.” (Citations omitted; internal quotation marks omitted.) Id., 127-28.

A

The defendant first claims that the trial court improperly denied his first motion to suppress because the warrant affidavit lacked probable cause to believe that child pornography would be found in the subject residence. The defendant argues that because the affiants failed to link the IP address, 24.151.2.100, to the subject residence at the exact time “BÍ06488” had the incriminating conversation with “Centralpamaster” on July 1, 2005, the affidavit could not support a finding of probable cause. Specifically, he argues that the information provided by Charter Communications, that he was the subscriber to the IP address, failed to show that there was a direct connection between the IP address and the subject residence at the exact time the incriminating conversation occurred. The defendant further argues that the affiants also failed to inform the court that the IP address was most likely dynamic and subject to change, thus rendering the affidavit insufficient to establish probable cause. We disagree.

The record reflects that the police filed an application for a warrant to search the subject premises and for the seizure and subsequent investigative review of any computer systems found for evidence of violations of §§ 53-21, 53a-196d and 53a-49 and 53a-196d. Grillo and Johansen submitted the application as well as their affidavit in support of the application. As provided in the affidavit, in the online conversation between “Centralpamaster” and “BÍ06488,” “BÍ06488” asked “Centralpamaster” to send photographs of “Centralpamaster’s” son. Even though “BÍ06488” stated that he had no photographs of his own son on his computer, it was reasonable to infer that he had child pornography on the computer because he asked “Centralpamaster” for photographs to view while masturbating. Moreover, the affiants stated that through their training and experience, they knew that those individuals engaged in the sexual exploitation of children will trade child pornographic photographs with others through the Internet and will retain them on their computer systems for long periods of time, as the photographs have economic and emotional value.

Additionally, in a letter incorporated into the affidavit, Sprinkle stated that after Yahoo, Inc., sent him the IP address associated with the Yahoo, Inc., screen name “BÍ06488,” he was able to resolve through www.arin.net, that the IP address was owned by Charter Communications. In response to a September 19, 2005 court order, he received a fax from Charter Communications on November 4, 2005, indicating that on August 3, 2005, the subscriber for the IP address 24.151.2.100 was Cariaso, of 141 Rocky Mountain Road, Southbury.

On the basis of the allegations contained in the affidavit, the warrant was issued, and the police executed the warrant at the subject premises. The police discovered numerous computer systems in the home. Fifty-eight exhibits were seized from the residence and transported to the evidence unit, which eventually was able to connect the defendant to a large portion of the images.

Thereafter, the trial court determined that “[t]he affidavit presented to the magistrate included information that a person using the screen name BÍ06488 attempted to possess child pornography and was currently residing at that address. Although the affidavit lacked a statement explicitly linking the IP address to 141 Rocky Mountain Road at the time BÍ06488 had the incriminating conversation with Centralpamaster, the issuing magistrate was free to draw upon his common sense to infer that there was a fair probability that Charter Communications supplied the address of the IP user on the particular date and time of the conversation because that was the only sensible thing for Charter Communications to do. As provided in the search warrant affidavit, Grillo stated that [o]n November 4, 2005, I received a fax back from Charter Communications indicating the subscriber for the IP [a]ddress of 24.151.2.100 is Jerome Cariaso of 141 Rocky Mountain [Road], Southbury, Connecticut .... As previously explained, given the nature of dynamic IP addresses, it was more than likely that Charter Communications would have come back with multiple subscribers for that IP address if it had not limited its search to the subscriber of the IP address on the date and time the incriminating conversation took place.” (Emphasis in original; internal quotation marks omitted.)

The defendant argues that his asking for or attempt to obtain pornographic images is not sufficient to establish a finding of probable cause. The defendant relies on United States v. Falso, 544 F.3d 110 (2d Cir. 2008), cert. denied, 558 U.S. 933, 130 S. Ct. 154, 175 L. Ed. 2d 235 (2009), for his contention that there must be evidence that he possessed an image containing child pornography before probable cause can be established. The defendant’s reliance on Falso, however, is misplaced. In Falso, the United States Court of Appeals for the Second Circuit found that probable cause was lacking where the defendant “appeared” to “have gained or attempted to gain” access to a website that contained approximately eleven images of child pornography. Id., 120-21. Absent any allegation that the defendant in fact accessed the website at issue, the question became whether his eighteen year old conviction involving the sexual abuse of a minor, or some other factor, provided a sufficient basis to believe that the evidence of child pornography would be found in the defendant’s home. To the contrary, in the present case, the affidavit contained allegations that a person living at the subject residence, using the screen name “BÍ06488,” entered into an incriminating conversation with “Centralpamaster” to access child pornography and that Charter Communications linked the subscriber of the IP address to the defendant’s residence.

Viewing the information in the affidavit in the fight most favorable to upholding the court’s finding of probable cause, we conclude that the trial court reasonably could have concluded that the affidavit contained sufficient facts to establish probable cause that the defendant’s residence contained child pornography. Thus, there was probable cause that the residence and the defendant’s computers were related to a substantial chance of criminal activity and would assist the state in the prosecution of the defendant.

B

The defendant next claims that the trial court improperly denied his second motion to suppress filed pursuant to the holding in Franks v. Delaware, supra, 438 U.S. 154, because information in the affidavit that was inaccurate, or recklessly or intentionally omitted, was material to a determination of probable cause. Specifically, the defendant argues that newly discovered evidence showed that the incriminating conversation actually took place on a date other than the date provided in the affidavit. The defendant further argues that in light of this newly discovered evidence, the state’s failure to inform the court that the IP address was dynamic was particularly misleading and established that there was insufficient evidence in the affidavit for a finding of probable cause. We disagree.

The record reflects that newly discovered evidence provided that the incriminating conversation between “BÍ06488” and “Centralpamaster” occurred on May 5, 2005, and not on July 1 or August 3, 2005. It was further revealed that July 1,2005, was the date the conversation was decoded and recorded. It also was revealed that the IP address of 24.151.2.100 was dynamic and not static. Additionally, Charter Communications confirmed that the IP address was leased to Cariaso on July 15, 2005, and also on August 3, 2005. Also, when Charter Communications leased IP addresses, it was possible that the leases could continue for several months in duration.

With regard to the defendant’s claim that the affidavit inaccurately suggested that the offending conversation took place on a date other than May 5, 2005, the trial court determined that “it may have been a bit misleading, but it wasn’t an inaccuracy. The affidavit indicated that the conversation was decoded on July 1 [2005], not that the conversation occurred on July 1 [2005]. And July 1 [2005] was the date [o]n which . . . the [Pennsylvania] police were able to seize the computer and review the conversation. So, it wasn’t inaccurate, though it may have implied that the conversation took place on that date. But even with respect to that information, it’s not material, one way or the other, whether the conversation, in fact, took place on May 5 [2005], or July 1 [2005], but I don’t find it to be an inaccuracy.”

With regard to the defendant’s claim that the state’s failure to inform the court that the IP address was dynamic and that the IP address was obtained for the date of August 3, 2005, and not May 5, 2005, the trial court determined that it did not “find that the . . . omission of the [dynamic IP address] information was reckless or that it made the warrant misleading under the circumstances of this case. The fact that there was a dynamic IP address here doesn’t necessarily mean that the person using the computer on August 3 [2005] was different than the person using the computer on May 5 [2005]. And, in fact, the evidence in this case indicates that they were, in fact, the same person. There was a reasonable inference that they were, in fact, the same person. And that evidence includes the Yahoo [Inc.] document, exhibit I, which indicates that on May 5 [2005] the IP address at issue here, 24.151.2.100, that the user of that IP address was a person using the screen name BÍ06488, that that’s the same IP address that was used on May 5 [2005] and on August 3, 2005. The Charter Communications documents indicate that. And the Charter Communications documents also indicate that Charter Communications leased its IP address—its dynamic IP addresses for a significant period of time, for months at a time. And so the fact that it was a dynamic IP address doesn’t end the discussion here and is not dispositive of anything. I also find telling that . . . the defendant has made no offer of proof that the IP addresses were, in fact—or the user of the IP address on May 5 [2005] was, in fact, different from the user of the IP address on August 3 [2005]. . . . Again, the fact that it was a dynamic IP address, the fact that they asked for the IP address for a different day than the offending conversation, given the circumstances here, were not material. It would—it’s still reasonable, under the circumstances here, given the fact that Charter Communications leased its IP addresses for months at a time, given that the user on May 5 [2005] was the same screen name as the user on August 3 [2005], the fact that it was reasonable for the police to be looking for the computer used by BÍ06488—all of those circumstances and facts [make it] reasonable to infer that it was the same user on those two diverse dates, and if the judge had before . . . him the information that the defendant claims was omitted, it would still be reasonable to infer that they were the same person and to find probable cause to search [the residence] and to seize the computer . . . .”

The court determined that the defendant failed to satisfy his burden of proving that the claimed omissions and inaccuracies in the affidavit were intentional or reckless. The court also determined that the claimed omissions and inaccuracies were not material to a finding of probable cause. Accordingly, the issue of “[w]hether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal. . . . Because this issue implicates a defendant’s constitutional rights ... we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . Furthermore, [w]e view the information in the affidavit in the light most favorable to upholding the [issuing judge’s] determination of probable cause.” (Citation omitted; internal quotation marks omitted.) State v. Kaminski, supra, 106 Conn. App. 127-28.

Viewing the information in the affidavit in the light most favorable to upholding the court’s finding of probable cause, we conclude that the trial court reasonably could have concluded that the defendant failed to make a showing that the claimed omissions and inaccuracies in the affidavit were intentional or reckless and material to a finding of probable cause. Thus, there was probable cause that the subject residence and the defendant’s computers were related to a substantial chance of criminal activity and would have assisted in the defendant’s conviction.

II

The defendant finally claims that even if the warrant was validly executed, it did not extend to cover the forensic search of his computers. The defendant did not raise this argument in support of his motions to suppress before the trial court and, therefore, requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Upon review, we conclude that the claim fails to satisfy the first prong of Golding because the record before us is inadequate.

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.” Id.

The record reveals the following additional relevant facts. The warrant application made reference to attachment A, which contained a list of the property to be seized, including, inter alia, computers. Attachment A specifically provided that the seized property would undergo investigative examination that would include “making true copies of the data and examining the contents of [the] files.” The warrant signed by the magistrate incorporated attachment A. The magistrate, however, did not check a box on the face of the warrant that would have specifically authorized the police to submit the computers to laboratory analysis and examination.

The defendant argues that the unchecked box acts as a limit on the scope of police authority. Specifically, he argues that the warrant did not authorize a forensic search of his computers and, therefore, the police exceeded the scope of the warrant by submitting the computers to forensic examination. The state counters by arguing that the difference between the warrant and the warrant application is due to a scrivener’s error. Because the defendant failed to develop this claim at trial, we are left to surmise as to whether the magistrate intended to leave the box blank or inadvertently overlooked it, the former being a matter of constitutional significance. Therefore, because the defendant failed to litigate this claim in the trial court, the record is inadequate for Golding review. See State v. Jenkins, 298 Conn. 209, 222-23, 3 A.3d 806 (2010).

The defendant also argues that we should review his claim as an exercise of our supervisory authority. “Our supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts.” State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998). These powers are reserved for extraordinary circumstances that are not implicated by the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of noqjurisdictional defects in the criminal prosecution.”
      Our Supreme Court has explained that “[b]ecause this right to appeal the denial of a motion to dismiss is statutory, it is accorded only if the conditions fixed by the statute are met.” (Internal quotation marks omitted.) State v. Rhoads, 122 Conn. App. 238, 244, 999 A.2d 1 (2010).

       General Statutes § 53a-196d (a) provides: “Aperson is guilty of possessing child pornography in the first degree when such person knowingly possesses fifty or more visual depictions of child pornography.”
      Pursuant to General Statutes § 53a-193 (13), “child pornography” is defined as “any visual depiction including any photograph, film, videotape, picture or computer-generated image or picture, whether made or produced by electronic, mechanical or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a person under sixteen years of age engaging in sexually explicit conduct, provided whether the subject of a visual depiction was a person under sixteen years of age at the time the visual depiction was created is a question to be decided by the trier of fact.”

       Sprinkle also provided Grillo -with: (1) a copy of a Yahoo, Inc., chat log; (2) a copy of a Pennsylvania court order sent to Yahoo, Inc.; (3) a copy of the results from Yahoo, Inc.; (4) a copy of a Pennsylvania court order sent to Charter Communications; (5) a copy of the results from Charter Communications; and (6) a copy of a database search from the “Whois” function of www.arin.net.

       The record includes documentation that reveals the following Internet conversation, which, according to the chat log, took place on July 1, 2005:
      “Centralpamaster: . . . play together in the same room first
      “BÍ06488: . . . sounds good'—u gonna send that pic?
      “Centralpamaster: . . . Let’s swap pics of our boys
      “BÍ06488: . . . none on the machine
      “BÍ06488: . . . but love to get off to a pic of yours right now . . .
      “BÍ06488: . . . now that pic ... do I get it?
      “Centralpamaster: ... I have a better idea . . . let’s cam
      “BÍ06488: ... I want [to shoot] to it now . . .
      “Centralpamaster: . . . where is your son?
      “BÍ06488: . . . practice
      “BÍ06488: . . . they have this bb team—so he plays . . . .”

       Postal records show that the defendant, Rosalie Shields, Cariaso and Peter Módica received mail at the subject residence.

       The state later nolled the charge of importing child pornography.

       The court also found that there was no probable cause to search for evidence relating to risk of injury to a child pursuant to § 53-21.

       Although July 1, 2005, was the date provided in the affidavit as the date of the conversation between “BÍ06488” and “Centralpamaster,” that date was in fact the date Gayan’s computer was seized and the conversation decoded by the Pennsylvania police. As discussed in part IB of this opinion, the subject conversation between “BÍ06488” and “Centralpamaster” actually took place on May 5, 2005.

       The trial court found: “[M]anylntemetservice providers limit the number of IP addresses that are permanently assigned to a specific device, otherwise known as static IP addresses, and economize on the remaining number of IP addresses they possess by temporarily assigning an IP address to a requesting Dynamic Host Configuration Protocol (DHCP) computer from a pool of IP addresses known as dynamic IP addresses. Dynamic addresses can be shared or rotated amongst many devices, although no two devices can use the same IP address at the same time. A requesting DHCP computer receives a dynamic IP address for the duration of an Internet session or for some other specified amount of time. Once a user disconnects from the Internet, his or her dynamic IP address goes back into the IP address pool so it can be assigned to another user.”

       “When reviewing an application [for a warrant], courts must also bear in mind that search warrants are directed . . . not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of [a] crime will be found. . . . The affidavit in support of a warrant need not present information that would justify the arrest of the individual in possession of or in control of the property. Nor is it required that the owner be suspected of having committed a crime. Property owned by a person absolutely innocent of any wrongdoing may nevertheless be searched under a valid warrant.” (Internal quotation marks omitted.) State v. Buddhu, 264 Conn. 449, 463-64, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030, 124 S. Ct. 2106, 158 L. Ed. 2d 712 (2004).

       “In Franks v. Delaware, [supra, 438 U.S. 155-56], the United States Supreme Court held that a defendant may challenge the truthfulness of an affidavit supporting a search warrant, provided the defendant has made a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit .... If this statement is necessary to the finding of probable cause, the [fjourth [ajmendment requires that a hearing be held at the defendant’s request. . . . The court stated also that [t]o mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and . . . [t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. . . . The deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any nongovernmental informant. . . . Whether the defendant is entitled to a hearing pursuant to Franks ... is a mixed question of law and fact that [is reviewable] on appeal.” (Internal quotation marks omitted.) State v. Kaminski, supra, 106 Conn. App. 135.

       The defendant further requests that we review his claim as plain error under Practice Book § 60-5. Because the record is inadequate for review under Golding, it is also inadequate for consideration under the plain error doctrine. See Mozell v. Commissioner of Correction, 291 Conn. 62, 69 n.3, 967 A.2d 41 (2009); Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 668 n.4, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    DALE J. HOGAN ET AL. v. TERESA B. LAGOSZ
    (AC 30545)
    Bishop, Graendel and Harper, Js.
    Argued May 20
    officially released October 26, 2010

      Jonathan M. Starble, with whom, on the brief, was Marybeth C. McPadden, for the appellant (named defendant).

      Kevin M. O’Brien, with whom was Neil E. Atlas, for the appellees (plaintiffs).
   Opinion

GRUENDEL, J.

In this easement dispute between neighbors, the defendant Teresa B. Lagosz appeals from the judgment of the trial court granting the motion to enforce a settlement agreement filed by the plaintiffs, Dale J. Hogan and Maria J. Hogan. The defendant claims that the court improperly concluded that (1) her attorney possessed apparent authority to act on her behalf and (2) the parties entered into a binding settlement agreement. In support of the latter contention, the defendant further asserts that the court improperly found the settlement agreement enforceable in the face of a mutual mistake. We affirm the judgment of the trial court.

On May 26, 2005, the sellers by warranty deed conveyed to the plaintiffs two vacant lots located in Berlin. Known as “Lot 27 Norton Lane” and “Lot 28A Norton Lane,” they sat to the rear of 468 Norton Lane (parcel), which, at all relevant times, was owned by the defendant. It is undisputed that the lots are landlocked.

In dispute was whether the parcel was subject to an easement bridging the lots to Norton Lane. On February 24, 2006, the plaintiffs commenced an action against the defendant, alleging that the parcel was subject to a right-of-way described on the Berlin land records as “20’ Access Easement in favor of Lot 28A.” They further alleged that, in maintaining a locked gate across the right-of-way, the defendant obstructed their use thereof. In response, the defendant filed an answer and two special defenses, in which she averred that the alleged right-of-way had been lost by abandonment or adverse possession. Because the warranty deed provided that the sellers conveyed “all rights of way to the [rjoadway, known as Norton Lane,” the plaintiffs thereafter cited in the sellers as additional defendants to recover damages for breach of warranty under that deed.

The parties appeared for trial on the morning of March 5, 2008, at which time a settlement discussion ensued among their attorneys. The parties reached an agreement in principle and thus requested a thirty day continuance to “finalize the documentation” that was to be incoiporated into the stipulated judgment, which the court, Hon. Julius J. Kremski, judge trial referee, granted. The parties and their attorneys remained in the courtroom after Judge Kremski departed, and the settlement discussion continued. As that discussion transpired, surveyor John L. Guilmartin, Jr., who had been scheduled to testify at the proceeding, arrived. The parties and their attorneys met with Guilmartin to discuss placement of an easement over the parcel as shown on an existing survey prepared in November, 2007, for the state by Eric Seitz Land Surveying, Inc. (existing survey). They instructed Guilmartin to modify the right-of-way depicted on that survey so as to traverse the southern portion of the parcel and to remain approximately one foot from that property line. As the defendant stood beside him, the defendant’s husband, Joseph Lagosz, drew a line on the survey with his finger as to the location of the new right-of-way.

While Joseph Lagosz detailed the location of the right-of-way, counsel for the defendant, attorney Jack M. Bassett, drafted a handwritten document titled “Essential Terms of Agreement” (agreement). It provides: “1. [The defendant] will agree to granting a [twenty foot] wide [right-of-way] from the gate positioned at [the railroad] tracks/Norton Lane to the [plaintiffs’] premises, Lot 28A, subject to placement by agreement (ingress and egress). 2. The parties will cooperate in defining the placement of the [right-of-way] by the plaintiffs’ surveyor as closely as possible in keeping with the outline sketch placed upon a copy of the [existing survey] in court today. 3. The parties will maintain insurance coverage pertaining to their respective insurable interests on the subject [right-of-way] area. 4. [The sellers] agree to pay the sum of $5000 to [the defendant’s] counsel as trustee within ninety days of the date hereof. 5. The parties will not unreasonably park cars upon or otherwise impede the [right-of-way]. 6. [The] plaintiffs, at their sole expense, will pay for the preparation and filing of the map or plan depicting the newly defined [right-of-way] area. 7. The parties will share reasonable costs in the portion of the [right-of-way] mutually utilized, with the plaintiffs bearing sole responsibility for the maintenance in the travel portion pertaining to their remaining area. 8. The parties agree to keep the gate at Norton Lane in place, locked with a combination lock with the combination to be shared. The parties will only share the combination reasonably in a limited fashion with appropriate business and personal invitees and licensees of the parties. In the event that unintended access abuses are observed, either party can change the combination with required immediate provision of the new number to the other.” The respective attorneys for the plaintiffs, the defendant and the sellers signed the agreement at that time.

In the following weeks, counsel for the plaintiffs drafted a stipulated judgment and an easement for the defendant’s review. In addition, Guilmartin prepared a survey, consistent with the instructions provided to him on March 5, 2008, that featured the new right-of-way across the parcel. Those documents were forwarded to Bassett. On April 17, 2008, Bassett scheduled a meeting at his office with Joseph Lagosz to review those materials, at which time Joseph Lagosz informed him of the termination of his services by the defendant. Six days later, attorney Jonathan M. Starble filed an appearance on behalf of the defendant in lieu of Bassett.

On April 24, 2008, the plaintiffs filed a motion to enforce the agreement. The court held an evidentiary hearing on the matter on May 22, 2008. Guilmartin, Bassett and Dale J. Hogan testified in support of the motion, while the defendant testified in opposition. In addition, documentary evidence was submitted and the parties filed posthearing briefs. In its November 7,2008 memorandum of decision, the court expressly credited the testimony of Bassett and Guilmartin, stating that “[a]t all times, the court found the witnesses . . . Bassett and Guilmartin to be competent and their testimony to be believable and credible.” The court rejected the defendant’s contention that Bassett lacked authority to sign the agreement on her behalf. Finding the language of the agreement clear and unambiguous, the court further found it to be “a binding settlement agreement.” In addition, the court found that “the parties manifested their agreement as to the location of the right-of-way and directed the surveyor to depict its location on the survey, which he prepared in accordance with their instructions.” At the same time, the court noted that “[t]o the extent that the survey prepared by Guilmartin or the terms of the ancillary legal documents directly conflict with the terms of the agreement as found by this court, any such terms are not permitted, absent agreement of the parties.” (Emphasis in original.) The court thus retained jurisdiction “over this matter until the parties have filed, no later than forty-five days from the date hereof, such stipulations and documentation as the court deems necessary to give full force and effect to the agreement.” This appeal followed.

I

The defendant challenges as clearly erroneous the court’s finding that Bassett possessed apparent authority to sign the agreement on her behalf. She argues that “there simply was no evidence upon which the court could have concluded that . . . Bassett had apparent authority to bind [the defendant] to a settlement agreement.” We disagree.

It is well established that “[a]n agent’s authority may be actual or apparent.” Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003). “Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. . . . Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action.” (Internal quotation marks omitted.) Id., 850-51; see also Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969); Quint v. O'Connell, 89 Conn. 353, 357, 94 A. 288 (1915); 1 Restatement (Third), Agency § 2.03, p. 113 (2006). Resolution of the factual issue of apparent authority requires “the trier of fact to evaluate the conduct of the parties in light of all of the surrounding circumstances.” Lettieri v. American Savings Bank, 182 Conn. 1, 9, 437 A.2d 822 (1980); see also Union Trust Co. v. McKeon, 76 Conn. 508, 514, 57 A. 109 (1904) (“the existence of an apparent agency is essentially a question of fact, to be determined by the trier from all the legitimate and relevant evidence in the case bearing upon that question”).

In the present case, the court found that Bassett had apparent authority to sign the agreement on the defendant’s behalf. We review that finding under the clearly erroneous standard. See Gordon v. Tobias, supra, 262 Conn. 849. “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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id.

In analyzing a similar claim, we recently observed that “this is not a case in which the court found apparent authority simply as a result of retaining a lawyer and having him negotiate on behalf of a client.” Yale University v. Out of the Box, LLC, 118 Conn. App. 800, 810, 990 A.2d 869 (2010). Likewise, the evidence of the defendant’s conduct at the March 5, 2008 proceeding, viewed in light of the surrounding circumstances, substantiates the finding of the court that Bassett possessed apparent authority to sign the agreement on the defendant’s behalf. Bassett testified that the defendant and Joseph Lagosz were present throughout the settlement discussions that transpired at the courthouse on that date. He further testified that, at that time, he sequestered himself with the defendant and Joseph Lagosz to discuss the case. Significantly, Bassett testified that he reviewed every aspect of the agreement with the defendant prior to signing it on her behalf. Bassett explained that he inserted a provision in the agreement pertaining to the placement of a combination lock on the gate at Norton Lane at the behest of the defendant. The court expressly credited Bassett’s testimony.

In addition, the court heard testimony from Bassett, Guilmartin and Dale J. Hogan concerning the involvement of the defendant and Joseph Lagosz in determining the precise location of the new right-of-way on the existing survey. Guilmartin testified that, in the courtroom on March 5, 2008, he was instructed by the attorneys and Joseph Lagosz, in the presence of the defendant, as to the contours of the new right-of-way. Dale J. Hogan provided the court with even more specificity, explaining how he stood at a table in the courtroom with the defendant, Joseph Lagosz and Guilmartin as Joseph Lagosz shared “his idea” regarding “the settlement” by indicating on the existing survey where the right-of-way should be placed. At that point, Joseph Lagosz drew a line on the survey with his finger as to the desired location. Dale J. Hogan testified that the defendant was standing nexf to Joseph Lagosz at that time and indicated her agreement by “nodding up and down.” Such conduct on the part of the defendant reasonably could lead the plaintiffs in good faith to believe that, when Bassett signed the agreement on her behalf minutes later, he had authority to do so.

Moreover, the defendant testified at the evidentiary hearing that the purpose of the March 5, 2008 meeting in the courthouse was “to finalize this, to get the agreement . . . .” She acknowledged that Bassett at that time represented her as her advocate. Although not dispositive; see Acheson v. White, 195 Conn. 211, 213 n.4, 487 A.2d 197 (1985) (“[a]n attorney who is authorized to represent a client in litigation does not automatically have either implied or apparent authority to settle or otherwise to compromise the client’s cause of action”); the fact that Bassett on March 5,2008, acted as the defendant’s attorney is not insignificant. Central to the question of apparent authority is whether the defendant held Bassett out as possessing sufficient authority to embrace the act in question, in this case, settlement of the easement dispute, as well as whether the plaintiffs in good faith believed that Bassett had the necessary authority to bind the defendant to his action. The record is bereft of evidence that the defendant voiced any objection as to the settlement discussions, the new right-of-way delineated by Joseph Lagosz or the agreement executed on March 5, 2008. Particularly noteworthy is the fact that when court opened on that date, the attorneys, in the presence of the defendant and the other parties, informed the court that a settlement had been reached.

On the witness stand, the defendant nevertheless testified that she had no recollection of what the attorneys told the court on March 5, 2008. The defendant further contradicted the testimony of Bassett, Guilmartin and Dale J. Hogan that she and Joseph Lagosz reviewed the existing survey in the courtroom with Guilmartin, testifying that she was not “involved ... in any kind of agreement as to where there would be a location of an easement.” When asked whether Joseph Lagosz at that time drew a line on the survey with his finger as to the desired location of the right-of-way, the defendant testified both that “[i]f he did, I don’t remember,” and that “[i]f he did, I must have turned away and I didn’t see it.” As trier of fact and, hence, sole arbiter of credibility, the court was “free to accept or reject, in whole or in part,” the defendant’s testimony. (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). The court did not credit the defendant’s testimony in its memorandum of decision, as it did the testimony of other witnesses. Rather, the court found her testimony to be “self-serving,” as is the court’s exclusive prerogative. See, e.g., Mann v. Regan, 108 Conn. App. 566, 581, 948 A.2d 1075 (2008) (trier of fact “free to disbelieve the defendant and to reject this testimony as self-serving”).

As our Supreme Court has noted, “[t]he aim of the courts in formulating and developing rules as to apparent authority has been to protect, under proper circumstances, a third person in his dealings with an agent who lacks express authority.” Keeler v. General Products, Inc., 137 Conn. 247, 251, 75 A.2d 486 (1950). The question before the trier in the present case was whether the defendant by her conduct, interpreted in light of the surrounding circumstances, caused the belief on the part of the plaintiffs that Bassett had the requisite authority to sign the agreement on her behalf. See Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 396, 324 A.2d 247 (1973). The court answered that query in the affirmative. On our review of the evidence adduced at the May 22, 2008 hearing, we conclude that the court’s finding was not clearly erroneous.

II

The defendant also maintains that the court improperly granted the plaintiffs’ motion to enforce the agreement. Arguing that the agreement lacked a clear and definitive description of the location of the new right-of-way, the defendant claims that the court improperly concluded that it was summarily enforceable. We reject that contention.

“A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.” Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993). Because the defendant challenges the trial court’s legal conclusion that the agreement was summarily enforceable, we must determine “whether that conclusion is legally and logically correct and whether [it finds] support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Thomsen v. Aqua Massage International, Inc., 51 Conn. App. 201, 204, 721 A.2d 137 (1998), cert. denied, 248 Conn. 902, 732 A.2d 178 (1999). In addition, to the extent that the defendant’s claim implicates the court’s factual findings, “our review is limited to deciding whether such findings were clearly erroneous. ... 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn. App. 234, 238, 907 A.2d 1274 (2006).

The dispute giving rise to the present litigation concerned the existence of an easement over the parcel. The agreement contains eight detailed provisions regarding the resolution of that dispute. It provides, inter alia, that “[the defendant] will agree to granting a [twenty foot] wide [right-of-way] from the gate positioned at [the railroad] tracks/Norton Lane to the [plaintiffs’] premises, Lot 28A, subject to placement by agreement (ingress and egress).” The agreement also incoiporated by reference Joseph Lagosz’ in-court sketch of the location of the new right-of-way, providing that “[t]he parties will cooperate in defining the placement of the [right-of-way] by the plaintiffs’ surveyor as closely as possible in keeping with the outline sketch placed upon a copy of the [existing survey] in court today” and further that “[the] plaintiffs, at their sole expense, will pay for the preparation and filing of the map or plan depicting the newly defined [right-of-way] area.” (Emphasis added.)

In granting the motion to enforce the agreement, the court concluded that the agreement was clear and unambiguous as to the location of the new right-of-way. We agree. The first essential term of the agreement expressly indicated that the right-of-way commences at “the gate positioned at [the railroad] tracks/Norton Lane,” which is described as the “metal gate” on the eastern side of the existing survey and through which the defendant’s “existing driveway” passes. Similarly, the seventh essential term indicates that a portion of the new right-of-way will be “mutually utilized . . . .” That provision states that “[t]he parties will share reasonable costs in the portion of the [right-of-way] mutually utilized, with the plaintiffs bearing sole responsibility for the maintenance in the travel portion pertaining to their remaining area.” That mutually utilized portion plainly references what is described as “existing driveway” on the existing survey, as no other roadway exists on the parcel.

In addition, the agreement specifically references the “sketch” placed on the existing survey by Joseph Lagosz. The record before us supports the court’s finding that he identified the location of the new right-of-way in a clear and definite manner. The existing survey on which he sketched the contours thereof was admitted as an exhibit. Although Joseph Lagosz did not testify at the evidentiary hearing, Bassett provided detailed testimony, which the court credited, describing the right-of-way sketched by Joseph Lagosz. Referencing the existing survey, Bassett retraced that sketch, explaining how the right-of-way proceeded in a westerly direction to a point described on the existing survey as “RBS at 24" tree w/old barbed wire,” then to a second tree to the left of that point also described as “RBS at 24" tree w/old barbed wire” and, further, “along a line that’s marked as . . . 69° 25' 34" E” to a point on the plaintiffs’ property, which is located in the lower left comer of the existing survey and described as “Dale J. and Maria J. Hogan Vol.549/Pg.849.” Per Joseph Lagosz’ instructions on May 5, 2008, the new right-of-way was to traverse the southern portion of the parcel, remaining approximately one foot from the property line that borders state owned property. Guilmartin testified that he received similar instructions. As the court found, locating the right-of-way in such manner was to the defendant’s benefit, as the new location placed “it farther away from her home than the disputed right-of-way claimed by the plaintiffs in the underlying lawsuit.”

The agreement further provides for the preparation of a new survey “depicting the newly defined [right-of-way] area,” an endeavor in which “[t]he parties will cooperate . . . .” The fact that the new survey memorializing Joseph Lagosz’ sketch had yet to be prepared and finalized by the parties does not render the agreement unenforceable, as the defendant suggests. This court has held that “[t]he fact that parties engage in further negotiations to clarify the essential terms of their mutual undertakings does not establish the time at which their undertakings ripen into an enforceable agreement. The plaintiff cites no authority, and we have found none, that assigns so draconian a consequence to a continuing dialogue between parties that have agreed to work together. We know of no authority that precludes contracting parties from engaging in subsequent negotiations to clarify or to modify the agreement that they had earlier reached. . . . Under the modem law of contract, if the parties so intend, they may reach a binding agreement even if some of the terms of that agreement are still indefinite.” Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 843-44, 779 A.2d 174 (2001). The court properly concluded that the fact that the agreement obligated the parties to work with the surveyor in preparing a survey documenting the new right-of-way does not render the agreement ambiguous or indefinite.

It is well established that “[a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) Poole v. Waterbury, 266 Conn. 68, 87-88, 831 A.2d 211 (2003). The agreement on its face evinces an intent to settle this easement dispute between neighbors by establishing a new right-of-way. See Isham v. Isham, 292 Conn. 170, 181, 972 A.2d 228 (2009) (“proper inquiry focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation”); 11 S. Wilhston, Contracts (4th Ed. 1999) § 30:6, pp. 77-80 (“[t]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face”). To that end, the agreement enumerates a number of essential terms concerning, inter alia, the width and location of the new right-of-way, the payment of $5000 by the sellers to the defendant, and the maintenance and use of the right-of-way and the Norton Lane gate. In its memorandum of decision, the court determined that those terms were clear and unambiguous, a determination with which we concur. Accordingly, the court’s conclusion that the agreement was summarily enforceable is legally and logically correct and is supported by the factual findings contained in the memorandum of decision.

Ill

As a final matter, we address the defendant’s claim that the agreement is unenforceable due to the existence of a mutual mistake. “A mutual mistake is one that is common to both parties and effects a result that neither intended. ... In that sense, a mutual mistake requires a mutual misunderstanding between the parties as to a material fact.” (Citation omitted; internal quotation marks omitted.) BRJM, LLC v. Output Systems, Inc., 100 Conn. App. 143, 148, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007); see also 1 Restatement (Second), Contracts, Mistake § 151, p. 385 (1981). The existence of a mutual mistake is a question of fact. Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991). Although the defendant advanced this claim before the trial court, the record lacks any factual determination on that issue by the court. As such, the record is inadequate for our review, as it is axiomatic that this appellate body does not engage in fact-finding. Connecticut’s appellate courts “cannot find facts; that function is, according to our constitution, our statute, and our cases, exclusively assigned to the trial courts.” Weil v. Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981).

In the absence of that requisite finding by the trial court, it was incumbent on the defendant to request an articulation of that issue, consistent with her burden to provide this court with an adequate record for review. See Practice Book § 61-10. That she failed to do. Practice Book § 66-5 permits an appellant to seek an articulation by the trial court of the factual and legal basis on which it rendered its decision. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). Consistent with its conclusion that the agreement was summarily enforceable, we thus must presume that the court properly found that a mutual mistake did not exist in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the trial court file in this case contains no judgment file. “Before reaching the merits of the [defendant’s] claims, we must first determine whether a final judgment exists and, therefore, whether this court has subject matter jurisdiction over this appeal. The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal.” (Internal quotation marks omitted.) Vance v. Tassmer, 115 Conn. App. 696, 699-700, 975 A.2d 85 (2009). “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We conclude that we have jurisdiction to hear the defendant’s appeal because the trial court’s action granting the motion to enforce the settlement agreement here satisfied the second prong of Curcio in that it “so conclude [d] the rights of the parties that further proceedings [could not] affect them.” Id. Although the trial court retained jurisdiction “over this matter until the parties have filed, no later than forty-five days from the date hereof, such stipulations and documentation as the court deems necessary to give full force and effect to the agreement,” the actions that remained to be taken were purely ministerial in nature. Cf. Vance v. Tassmer, supra, 702 (granting of motion to enforce settlement agreement not final judgment for purposes of appeal where enforceability of agreement contingent on granting of variance by zoning board of appeals).

       The plaintiffs’ amended complaint also named as defendants Jacqueline Root, Cass Witkowsld, Eleanor Dyer and Rose Davis, who were cited in after the case commenced. For clarity, we refer in this opinion to those defendants as the sellers and to Teresa Lagosz as the defendant.

       Although Joseph Lagosz is not a party to this action, the record reflects his significant involvement therein. In its memorandum of decision, the court found that “Joseph Lagosz was [the defendant’s attorney Jack M. Bassett’s] primary contact at meetings throughout the course of the litigation, including the times when the defendant was present,” a finding that the defendant does not contest on appeal. We refer to Joseph Lagosz by name in this opinion.

       The question of whether Guilmartin’s survey conflicts with the terms of the agreement is not before us. In articulating its decision on July 27, 2009, the court stated that it “did not consider any ancillary documents created after March 5, 2008,” in determining the terms of the parties’ settlement agreement.

       The plaintiffs and the sellers each submittedposthearing briefs in support of the motion to enforce the settlement agreement; the defendant filed one in opposition.

       In this appeal, we consider only the propriety of the granting of the plaintiffs’ motion to enforce the agreement.

       In interpreting the agreement, we must afford the language employed “its common, natural, and ordinary meaning . . . (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 110, 900 A.2d 1242 (2006); Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 286, 757 A.2d 526 (2000). The agreement references “the outline sketch placed upon a copy of the [existing survey] in court today,” not the outline sketch to be placed on the existing survey at some future time. To interpret the agreement in the latter manner violates the maxim that “[a] court [simply] cannot. . . disregard the words used by the parties or revise, add to, or create a new agreement.” (Internal quotation marks omitted.) Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973).

       That property is described on the existing survey as “State of Connecticut area = 3.92 acres.”

       Because we agree with the court that the agreement was clear and unambiguous as to the location of the new right-of-way, the defendant’s ancillary contention that the agreement is unenforceable due to the failure to satisfy a condition precedent—namely, agreement as to the location of the new easement granting a right-of-way—is without merit.

       We note that the defendant on February 24, 2009, filed with the trial court a motion for articulation of its memorandum of decision on a number of issues. That motion did not seek articulation on the defendant’s claim of mutual mistake.


author: PELLEGRINO, J.

text:
    IN RE JOCQUYCE C.

    (AC 31466)
    DiPentima, C. J., and Alvord and Pellegrino, Js.

      Argued September 1
    officially released October 26, 2010

      David B. Rozwaski, for the appellant (respondent mother).

      Renee Bevacqua Bollier, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

PELLEGRINO, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor son, Jocquyce. On appeal, the respondent claims that the court improperly concluded that (1) she had failed to achieve a sufficient degree of personal rehabilitation within a reasonable period of time and (2) termination of her parental rights was in the best interest of the child. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the respondent’s claims. Although the respondent is the mother of two children, this appeal concerns her older child, Jocquyce, who was bom in October, 2004. On August 18, 2006, the department of children and families (department) invoked a ninety-six hour administrative hold on behalf of the child. See General Statutes § 17a-101g. Thereafter, an order of temporary custody was issued by the court, Conway, J., on August 22,2006. On September 21,2006, Jocquyce was adjudicated neglected and committed to the custody of the petitioner, the commissioner of children and families. The respondent acknowledged specific steps to regain custody of her child that included her cooperation with the department, including home visits and all appointments. The respondent additionally agreed to participate in counseling, substance abuse evaluation and inpatient treatment, and that she would maintain adequate housing and income. She also agreed to avoid continued substance abuse and further involvement with the criminal justice system and to visit Jocquyce as permitted by the court.

Jocquyce initially was placed in a licensed foster home. On July 27,2007, he was moved to a foster placement with his maternal aunt. On September 11, 2007, a termination of parental rights petition was filed to terminate the rights of both the respondent and the father. On July 25, 2008, Jocquyce was placed with his current, preadoptive foster family. On November 18, 2008, and January 13 and April 1 and 29, 2009, a trial was held before the court, Brown, J., regarding the petition as to Jocquyce. In its memorandum of decision filed August 27, 2009, the court made the following findings of fact.

The respondent was offered various services pertaining to parenting, housing, visitation, substance abuse and domestic violence. In late 2006, the department suspended the respondent’s visitation due to an incident in which the respondent attempted to kidnap Jocquyce during a supervised visit. Also, in early 2007, due to the respondent’s continued substance abuse and the recommendation of a court-ordered psychological evaluation, the department suspended the respondent’s visitation until she had engaged in therapy and treatment.

The respondent’s substance abuse was a primary issue of concern to the court. In November, 2006, the respondent engaged in therapy through ALSO-Comer-stone, but refused to follow the recommendation for inpatient treatment. Also in November, 2006, the respondent was referred to the Hospital of Saint Raphael’s evening chemical dependency program. She refused to provide a hair sample or complete an evaluation, though she gave a urine sample that tested positive for cocaine and phencyclidine, commonly referred to as PCP. The respondent finally agreed to inpatient treatment in early 2007 at the Stonington Institute and was successfully discharged in February, 2007. Nonetheless, the respondent twice tested positive for cocaine and PCP in February, 2007, through her individual therapy at Northside. On March 1, 2007, the respondent was referred to the Grant Street Partnership for random urinalysis screenings to determine if it was appropriate for her to resume visitation with the child. The respondent failed to attend nine of the twelve scheduled urine screen appointments, and twice tested positive for cocaine and PCP, on March 13 and 26, 2007.

On May 7, 2007, the respondent ended her individual treatment at Northside to enter the Rushford inpatient substance abuse program; however, she was unsuccessfully discharged on May 16, 2007, for failing to comply with her treatment. In August, 2007, the respondent attended the Grant Street Partnership intensive outpatient program, but she was not consistent in her attendance and again tested positive for cocaine and PCP. In early 2008, the respondent gave birth to her second son. Both the respondent and her newborn child tested positive for opiates and PCP. Based on a neglect petition that had been filed, the court entered an adjudication of neglect, and the newborn child remained with the respondent under six months of protective supervision, which was extended through September, 2009. In March, 2008, the respondent entered and successfully completed inpatient substance abuse treatment at the Morris Foundation. We acknowledge the court’s finding that the respondent has made significant progress in dealing with her substance abuse. According to the testimony of a department social worker, Charles Solomon, as of December, 2008, the respondent was engaged in other services, and was drug free and compliant.

A second issue of serious concern was the respondent’s history of domestic violence and her continuing relationship with the child’s father. In 2006, the father was arrested for allegedly grabbing the respondent, pulling her to the ground and dragging her out of the house by her coat while she held Jocquyce in her arms. In July, 2007, the father reported to the department that the respondent had stabbed him during an argument, which caused him to receive fifty staples in his stomach and spend two weeks in the hospital in critical condition. He stated that he never reported the incident to police because he did not want the respondent to get in trouble. According to Solomon, another incident occurred in 2008 where the father struck the respondent in the mouth, causing a laceration. According to the evaluation of Nancy Randall, a psychologist, the respondent admitted to several other incidents of domestic violence, involving yelling, pushing and fighting. The court particularly was concerned that the respondent failed to acknowledge the impact domestic violence has on her family, that she continues to see the child’s father and that she, in fact, had a second child with him.

Additionally, housing has remained an issue for the respondent. Aside from her residence at several inpatient facilities, her primary apartment in New Haven was inadequate to allow for reunification with her son. After her discharge from the Morris Foundation, the respondent lived in New Haven with her mother until the winter of 2009. A department caseworker testified that the respondent was assisted by supportive housing in moving to Ansonia to reside in a rental apartment, though after receiving a warning for difficulty in her domestic violence counseling group, the respondent was notified that a second warning could jeopardize her housing.

Similarly, the respondent had been unable to avoid problems with the criminal justice system, another specific step enumerated by the court. From 2005 through 2008, the respondent was arrested and convicted of custodial interference, a violation of probation, criminal trespass, larceny in the sixth degree, failure to appear in court and assault in the third degree.

On the basis of the foregoing facts and additional expert testimony, the court found that the petitioner had met her burden of proving by clear and convincing evidence that the respondent had failed to achieve a level of rehabilitation that would encourage a belief that she could, within a reasonable time, resume a responsible position in her child’s life. The court further found by clear and convincing evidence that terminating the parental rights of the respondent was in the best interest of Jocquyce. This appeal followed.

I

The respondent first claims that the court’s finding that she failed to achieve the degree of personal rehabilitation required under General Statutes § 17a-112 (j) (3) (B) (ii) was clearly erroneous. Because the record supports the court’s finding, this claim fails.

We must first set forth the applicable standard of review governing the respondent’s claims. “A trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was factually supported and legally correct. ... In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Jazmine B., 121 Conn. App. 376, 382-83, 996 A.2d 286, cert. denied, 297 Conn. 924, 998 A.2d 168 (2010).

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) Id., 383-84.

The court’s finding that the respondent had not sufficiently rehabilitated is supported by the record before us. While the respondent has shown improvement in dealing with her substance abuse, the court concluded, based in part on the testimony of Randall, that the respondent’s situation remains unstable. Randall, who conducted three psychological evaluations of the respondent, was concerned that the respondent failed to acknowledge her habitual involvement in domestic violence and the impact that it has on her family. As the court wrote in its memorandum of decision, “[w]hat is most troubling to the court is [the respondent’s] refusal to accept that her relationship with [the] father has been problematic for her and her child, and her refusal to acknowledge her need for domestic violence counseling until very recently. She has been arrested numerous times for domestic violence incidents with [the] father, yet she gave birth to a second child with [the] father ... in 2008. . . . [The respondent] is either unable or unwilling to distance herself from [the] father, thus exposing herself, [her younger son] and, potentially, Jocquyce, to further domestic violence.” (Citation omitted.)

Moreover, the court agreed with Randall’s conclusion that despite the progress made by the respondent, she did not appear able to care for both children. As Randall stated in her evaluation, although the respondent has made some progress in becoming more stable, “[^motional volatility has been a long-term issue .... She is quick to anger, and her frustration tolerance is low. . . . [I]t continues to be an issue of concern.” Randall also stated that “[the respondent] is still easily overwhelmed and likely to have difficulty with multiple demands. She does not have an understanding of how her own choices leave her at risk for further problems. She is not able to make adequate progress beyond this point within a reasonable period of time ... to resume a responsible position in the life of her son.”

Although the respondent certainly has made strides in her recovery, “[i]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue. . . . [S]uch improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her [child].” (Internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 95, 961 A.2d 1036 (2009).

On the basis of our review of the record, we conclude that the court’s finding that the petitioner had established, by clear and convincing evidence, that the respondent had failed to achieve sufficient personal rehabilitation is not clearly erroneous.

II

The respondent also claims that during the dispositional phase of the trial, the court improperly found that the termination of her parental rights was in the best interest of the child. We disagree.

“In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child. ... It is well settled that we will overturn the trial court’s decision that the termination of parental rights is in the best interest of the [child] only if the court’s findings are clearly erroneous. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered. . . . There is no requirement that each factor be proven by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) Id., 97-98.

Pursuant to § 17a-112 (k), the statutory factors used to determine whether termination is in the child’s best interest include: “(1) The timeliness, nature and extent of services offered ... (2) whether the [department . . . has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into . . . and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents . . . and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child ... or by the economic circumstances of the parent.” General Statutes § 17a-112 (k).

We conclude that the court, in granting the petition to terminate the respondent’s parental rights, properly made its findings in consideration of the factors delineated in § 17a-112 (k). As the court found, “Jocquyce has been out of his parents’ care since 2006 and started bonding with [his preadoptive] foster family in July, 2008. He has already been moved from several placements. At age four, soon to be five, he is in need of permanency. Though the court indeed commends [the respondent] for all of her efforts, the court must be guided by what is in the child’s best interests.”

The court based its findings on the testimony of Randall, Regine Hahn-Seltzer, a family therapist, and Nicole Funteral, a department social worker. According to Randall, “[b]ecause of [the respondent’s] limited ability to handle multiple demands and her continued relationship with [Jocquyce’s father] in spite of the past violence and substance abuse issues, she is not able to provide an appropriate, positive, stable home for Jocquyce at this time.” Although Jocquyce has a relationship with the respondent, Randall testified that he does not look to her for his primary security or nurturance, or to fill the role of a psychological parent for him. Hahn-Seltzer, who provided advice and counseling to the preadoptive foster family, testified that Jocquyce had begun to address his foster parents as “mom and dad” and appeared more anxious around the time of visitation with the respondent. At an evaluation in September, 2008, Randall observed that Jocquyce was not cooperative with attempts to engage him in some developmental screening, and that his anger may be related to or be exacerbated by the disruption in his placement earlier in the year and the continued uncertainty of his future placement.

In determining whether termination of the respondent’s parental rights was in the best interest of Jocquyce, the court carefully considered each factor delineated in § 17a-112 (k). As the court wrote in its memorandum of decision, “[t]he court finds, based on the testimony of the social workers involved in the case, that there is a bond between Jocquyce and his foster parents. In finding that termination of the biological parents’ parental rights is in the child’s best interests, the court has examined multiple relevant factors, including the child’s well-being, the need to avoid future placements, the continuity of his present environment, his length of stay in foster care, the nature of his relationship with his foster parents and his biological parents, and the genetic bond to his biological parents.”

While the court acknowledged that counsel for the child did not support the position that the respondent’s parental rights should be terminated, counsel did not take the position that the respondent was capable of caring for the child at the time of the trial. As Randall concluded, “Jocquyce has been out of his parents’ care for over two years. He is in need of a permanent home. It is recommended that he be freed for adoption into a permanent family.” The court was left to balance the progress made by the respondent against the effect that further delay would have on Jocquyce and his development. As the trier of fact, the court made the determination that it would not be in Jocquyce’s best interest to remain in a state of flux in the hope that the respondent would someday be able to assume a responsible position in his life. Accordingly, we conclude that it was not clearly erroneous for the court to have found that it was in the best interest of the child to terminate the parental rights of the respondent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent father has not appealed from the trial court’s judgment terminating his parental rights. We refer in this opinion to the respondent mother as the respondent.

       Also on that day, during a supervised visit, the respondent attempted to leave the department building with Jocquyce. She subsequently was apprehended by New Haven police and later pleaded guilty to custodial interference in the second degree in violation of General Statutes § 53a-98.

       At the time of trial, the respondent’s second child remained in her custody.