text:
    MILDRED B. BORDEN v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NORTH STONINGTON ET AL.
    (AC 18864)
    Schaller, Spear and Daly, Js.
    Argued January 20
    officially released June 27, 2000

      Elissa T. Wright, with whom, on the brief, was Joseph E. Moukawsher, for the appellant (plaintiff).

      Richard S. Cody, with whom, on the brief, was Ana C. Navarro, for the appellee (defendant Connecticut Hospital Management Corporation).
   Opinion

SCHALLER, J.

The plaintiff, Mildred B. Borden, appeals from the judgment of the Superior Court dismissing her appeal from the granting by the defendant planning and zoning commission of the town of North Stonington (commission) of the application for site plan approval filed by the defendant Connecticut Hospital Management Corporation, doing business as Stonington Institute (institute). On appeal, the plaintiff claims that the trial court improperly granted the institute’s motion to dismiss her appeal on the ground that she had failed to exhaust her available administrative remedy of appealing to the North Stonington zoning board of appeals (board). We affirm the judgment of the trial court.

The following relevant facts and procedural history from the record are not in dispute. The institute operates an alcohol rehabilitation treatment facility in North Stonington. The plaintiff is an abutting landowner. The facility is located in an area designated as an R-80 residential zone and its use therein is nonconforming. Section 1102 of the North Stonington zoning regulations provides that “[n] on-conforming uses shall not be expanded to occupy additional building or outside space.” Section 1103 of the regulations provides that a “building containing a non-conforming principal use shall not be enlarged to accommodate an expansion of such use.”

On April 13, 1995, Richard Cody, attorney for the institute, appeared before the commission and expressed his concern that the state had changed the building, fire and safety codes for the institute’s forty bed facility. Cody wanted to discuss the most appropriate way to adhere to the codes and regulations. The commission and Cody discussed the possibility of a zone or regulation change and concluded that the institute should meet with the planning task force, which was working on regulations in that area of the town at that time.

Cody met with the planning task force on August 2, 1995, and stated that the institute was contemplating the construction of a new building. The planning task force informed Cody that he should attend a workshop with the commission and present it with a proposal for a regulation change that would allow the institute to operate and expand within the residential zone.

Cody appeared before the commission on October 12, 1995, discussed the possibility of a regulation change, submitted regulations for the commission to review and invited the commission for a site visit of the facility. The commission visited the facility on October 28,1995. After the commission toured the facility, Michael Angelides, president of the institute, explained that changes in health insurance had increased the demand for detoxification services, and, by way of accommodation, the institute wanted to convert some of its rehabilitation beds to detoxification beds, which would necessitate changes to the buildings.

Cody appeared before the commission again on January 4, 1996. Cody and the commission discussed (1) a “footprint tradeoff,” which, according to the minutes of the meeting, “involved the swap off of square footage which did not affect the forty bed facility’s nonconforming use status” and (2) possible modifications to the regulations that would allow for the expansion of a nonconforming use. George Brown, the zoning enforcement officer, stated that the institute had been allowed to utilize the footprint tradeoff in the past with respect to a maintenance building because it did not involve the nonconforming, forty bed rehabilitation portion of the site. Arthur Pintauro, the chairman of the commission, stated that the commission would forward the matter to its attorney for comment.

Thomas B. Wilson, attorney for the commission, responded to the commission by way of letter dated February 23,1996. Wilson wrote that if the commission wanted to accommodate the institute, it could either (1) change the regulations to transform the institute’s use to permitted or (2) change the regulations to allow for the expansion of a nonconforming use. Wilson also suggested that in the event that the commission decided against changing the regulations, the institute also could apply to the board for a variance. He stated, “[i]n some cases, variances have been upheld to allow expansion of nonconforming uses where a hardship is shown and [the] surrounding area is not adversely effected.” The commission did not change the regulations.

On March 31, 1997, Cody filed with the commission an application for approval of an amended site plan, which proposed the removal of the facility’s infirmary and the construction of a new one. Although it is not clear from the application, the record reveals that the one story infirmary would be replaced by a two story structure that would be built at another location on the premises. Part of the plan was to utilize the slab beneath the current infirmary as a patio. In a letter included with the application, Cody stated that the footprint of the old infirmary was 3591.40 square feet while that of the new infirmary would be 3607 square feet, or 3784 square feet if the roof overhang is taken into account.

At an April 3, 1997 commission workshop, Brown reminded the members that the site plan was in violation of § 1102 of the regulations and stated that an expansion of even one square foot would be considered an expansion of a nonconforming use. The commission noted that it had previously concluded that the nonconforming use was the forty bed rehabilitation facility and, because the forty bed aspect would not be changing, the use would not be expanding. On April 8, 1996, Matthew Alexander, the town planner, submitted a letter to the commission in which he pointed out that the commission’s attorney had, in a February 23, 1996 letter, given an opinion that an expansion of a nonconforming use to occupy additional building or outside space would be in violation of the regulations. Alexander recommended that the commission consider holding a public hearing due to the controversy over the nonconforming status.

The commission convened again on April 10, 1997, and took up the institute’s application. It voted unanimously to review the application without a public hearing and discussed the issue of swapping footprint dimensions of buildings. The commission concluded that that had been done in the past by the institute and other properties in town with the commission’s approval. The commission stated, however, that to utilize that method and to be in compliance would require that the institute destroy an old pig sty on the property. In response to an inquiry by one of the members, Cody explained that the second floor of the infirmary would house office space and conference rooms but no additional beds. The commission then voted unanimously to approve the amended site plan with the stipulation that Alexander check it against a checklist and submit a report before the site plan would be signed. On April 18, 1997, the commission published notice of its approval of the institute’s site plan in the Westerly Sun, a local newspaper.

By way of an amended complaint, the plaintiff appealed directly to the Superior Court claiming, inter alia, that the expansion of the institute’s nonconforming use is in violation of the regulations and that the commission’s action was therefore improper. On January 21, 1998, the institute moved to dismiss the plaintiffs amended complaint, arguing that because the action of the commission was “enforcement” of the regulations and the regulations provided for an appeal to the board from such an action, the plaintiff had failed to exhaust her administrative remedy of appealing to the board. The institute argued that the court therefore lacked subject matter jurisdiction. The trial court agreed with the institute and dismissed the plaintiffs appeal. We granted the plaintiffs petition for certification to appeal to this court.

In support of her assertion that the court improperly granted the institute’s motion to dismiss her appeal, the plaintiff claims that (1) the trial court improperly concluded that, in approving the institute’s site plan, the commission was engaged in the “enforcement” of the regulations, (2) an appeal to the board would effectively deprive her of her right to due process of law, (3) an appeal to the board would be inadequate and futile and (4) regardless of whether the commission’s action was enforcement, she, as an abutting landowner, alleging that she will be damaged as a result of such action, is not required to exhaust the remedy of an administrative appeal. We address these claims in turn.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . .” Practice Book § 10-31 (a). “ ‘[W]here legal conclusions of the [trial] 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 . . . .’ Pamdolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Thus, our review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” Pitched v. Hartford, 247 Conn. 422, 428-29, 722 A.2d 797 (1999). “It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977); State ex rel. Golembeske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975); see 3 [K.] Davis, Administrative Law [3d Ed. 1972] § 20.01; General Statutes §§ 4-175,4-183.” Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979).

I

The plaintiff claims first that the trial court improperly concluded that the commission was engaged in the act of the “enforcement” of the regulations when it granted the institute’s site plan application. We are not persuaded.

In Castellon v. Board of Zoning Appeals, 221 Conn. 374, 383, 603 A.2d 1168 (1992), our Supreme Court noted that whether an administrative remedy is available is ascertained by examining the applicable regulations. Section 207 of the North Stonington regulations, entitled “Appeals and Variances,” provides in relevant part: “As provided in Section 8-6 of the Connecticut General Statutes, any person who claims that there is an error in any order, requirement, or decision made by the Commission or its agent in the enforcement of these Regulations may appeal such action to the Zoning Board of Appeals. . . .” Whether the plaintiff was required to appeal to the board depends, therefore, on whether the commission’s granting of the institute’s site plan application was “enforcement” of the regulations.

The case of Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 27 Conn. App. 412, 606 A.2d 725 (1992), rev’d on other grounds, 225 Conn. 432, 623 A.2d 1007 (1993), is instructive on the issue. In Leo Fedus & Sons Construction Co., the commission had interpreted the town’s regulations to allow an asphalt plant as a permitted use. Id., 413. The commission subsequently denied the plaintiffs application for site plan approval for an asphalt plant. Id. The plaintiff appealed to the zoning board of appeals. Id. Thereafter, the commission reinterpreted the regulations, concluding that asphalt plants were no longer allowed under the regulations. Id., 414. The board then dismissed the appeal because the commission’s reinterpretation had deprived it of jurisdiction. Id. The plaintiff sought a writ of mandamus to compel the board to sustain the appeal and to issue a certificate approving its application. Id. The trial court granted the relief requested. Id., 415.

On appeal, we addressed the issue of whether the board had jurisdiction to hear the plaintiffs appeal from the commission’s denial of site plan approval. In holding that it did, we noted first there, as we have here, that the answer to the question lies in the “particular regulations at issue.” Id., 416, quoting Castellon v. Zoning Board of Appeals, supra, 221 Conn. 383. The regulations in Leo Fedus & Sons Construction Co. provided that “[a]ny person may appeal to the Zoning Board of Appeals when it is alleged that there is an error in any order, requirement, or decision made by the Commission or Zoning Enforcement Officer related to the enforcement of these regulations.” (Internal quotation marks omitted.) Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 27 Conn. App. 416. Upon noting that “regulations . . . may be enforced by a refusal of a building or occupancy permit where the construction or use of the land in question is not in compliance with the pertinent regulations”; (internal quotation marks omitted) id., 417; we concluded that the commission’s denial of the site plan application similarly was an enforcement of the regulations.

The institute argues that Leo Fedus & Sons Construction Co. is directly on point, while the plaintiff claims that it should not be extended to the facts of her case. The plaintiff argues that, because the regulations provide that nonconforming uses shall not be expanded and that the commission was aware of the prohibition, its decision to grant the institute’s application to expand its nonconforming use constituted a legislative act and was, therefore, not an enforcement action.

Although the language of the regulation in Leo Fedus & Sons Construction Co. is slightly different from the language in this case, both regulations clearly state that if the commission’s action constitutes enforcement of the regulations, an appeal from that action must be taken to the board. Contrary to the institute’s claim, however, that Leo Fedus & Sons Construction Co. is directly on point, it differs from this case in that the action there was a denial of a site plan application, while the action in this case is a granting of a site plan application. We turn then to an analysis of whether Leo Fedus & Sons Construction Co. applies in this situation.

“Where the agency, which is generally the zoning commission, acts upon a site plan application, it acts in an administrative capacity.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.5, p. 166. Pursuant to General Statutes § 8-3 (g), “regulations may require that a site plan be filed with the commission ... to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations,” and a site plan application may be “denied only if it fails to comply with requirements already set forth in the zoning . . . regulations.” When an agency undertakes consideration of a site plan application, it has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated into the site plan regulations by reference. Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). Section 803 of the regulations, entitled “Purpose of Site Plan” provides in part that “[t]he Site Plan is intended to provide the Commission with information that will enable it to determine that (a) the proposed activity is consistent with both the specific requirements as well as the spirit of these Regulations . . . .”

It is clear to us that when a commission acts to grant a site plan application, its purpose is the same as when it acts to deny one: to determine whether the proposal complies with the regulations. Our holding in Leo Fedus & Sons Construction Co. that the commission’s denial of a site plan application, under a similar regulation, constitutes “enforcement,” is equally applicable in this case, where the commission granted the institute’s site plan application. Accordingly, we hold that the commission in this case was engaged in the “enforcement” of the regulations and, therefore, that the plaintiff had available to her the administrative remedy of appealing to the board.

II

The plaintiff claims next that requiring her to appeal to the board would violate her right to due process of law. The crux of the plaintiffs claim is that she was not given adequate notice that she must appeal to the board before appealing to the Superior Court. The plaintiff claims that the notice of the commission’s decision, required under § 8-3 (g), recited a fifteen day appeal period which, under General Statutes § 8-8 (b), is the appeal period for appeals taken to the Superior Court. The plaintiff argues that because an appeal taken to the board would have an appeals period of thirty days; General Statutes § 8-7; she was justified in assuming that the commission’s recital of a fifteen day appeal period meant that an appeal to the Superior Court was the proper avenue. She argues that to hold otherwise would be unfair and in violation of her right to due process of law.

Our review of the record reveals that this claim was not raised in the trial court. An appellate court is not bound to consider an issue “unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5. This limitation on appellate review applies to all claims, constitutional or otherwise, that were neither ruled on nor decided by the trial court adversely to the moving party. See Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 649, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986). We, therefore, decline to review this issue.

Ill

The plaintiff claims next that an appeal to the board would be inadequate or futile and that she is, therefore, excepted from the doctrine of exhaustion of administrative remedies. We are not persuaded.

Our Supreme Court has recognized certain limited exceptions to the exhaustion doctrine, including where the available relief is inadequate or futile. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 426, 655 A.2d 1121 (1995). In support of her claim that an appeal to the board would be inadequate or futile, the plaintiff argues first that interpretation of zoning regulations is a question of law that only the Superior Court is competent to determine. While it is true that courts frequently are called on to construe agency regulations, and an agency is not afforded special deference when its determination of a question of law has not previously been the subject of judicial scrutiny; Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995); local boards are entrusted with the function of interpreting and applying their own zoning regulations. See New London v. Zoning Board of Appeals, 29 Conn. App. 402, 405, 615 A.2d 1054, cert. granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993).

The plaintiff argues also that there is no remedy that the board could fashion and that her appeal to the board would therefore be futile. We disagree. Nothing in the applicable statutes, relevant case law, or the regulations bar s the board from determining that the commission’s interpretation, which would allow the building to be expanded as long as there were no beds added, was incorrect. Again, the board may review decisions of those enforcing the regulations, which necessarily includes interpretation of the regulations when challenged. General Statutes § 8-6; Conto v. Zoning Commission, 186 Conn. 106, 114, 439 A.2d 441 (1982).

IV

The plaintiff claims finally that her status as an abutting landowner affords her direct access to the Superior Court. Specifically, she argues that because case law recognizes that abutting landowners may bring an injunction action directly to the Superior Court to correct zoning violations without exhausting their administrative remedies, she should similarly be allowed to bring this appeal. See, e.g., Cummings v. Tripp, 204 Conn. 67, 75-78, 527 A.2d 230 (1987); Reynolds v. Soffer, 183 Conn. 67, 69-70, 438 A.2d 1163 (1981).

Our review of the applicable cases reveals that, for this exception to the exhaustion doctrine to apply, the plaintiffs action must be equitable in nature. The plaintiffs amended complaint does not seek to enjoin the institute from implementing the improvements to the facility described in its site plan application but, rather, is an appeal from the commission’s decision to approve the application. The plaintiff, therefore, cannot avail herself of this exception.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 1101.1 of the North Stonington zoning regulations provides in relevant part: “Where a use . . . existed before the initial adoption or subsequent amendment of these Regulations, and where such use . . . conforms to the requirements of these regulations except for the requirement of a Special Permit . . . the use . . . may be continued without a Special Permit.”

       The record reveals that the total building space would be 7391 square feet.

       General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of . . . any . . . regulation . . . .”

       General Statutes § 8-3 (g) provides in relevant part: “The commission shall publish notice of the approval or denial of site plans in a newspaper having a general circulation in the municipality. . . .”

       The plaintiff has not requested review under the plain error exception to our well established rule limiting review to claims distinctly raised in the trial court, and nothing in the record before us presents circumstances to warrant such review. See Practice Book § 60-5; see also Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983).


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALEXANDER LACKS
    (AC 18589)
    O’Connell, C. X, and Schaller and Daly, Js.

      Argued October 22, 1999
    officially released June 27, 2000

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).

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

   Opinion

DALY, J.

The defendant, Alexander Lacks, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134. The defendant claims that the court improperly (1) failed to grant his motion to dismiss based on lack of a speedy trial, (2) failed to grant his motion for a new trial based on prosecutorial misconduct that occurred during closing argument, (3) instructed the jury regarding consciousness of guilt and (4) instructed the jury on the law of reasonable doubt. We disagree.

The jury reasonably could have found the following facts. On the evening of October 24,1994, Jose Marrero, Amy Cobain and Devon McFarlane went to Louis Hood’s apartment on Frank Street in New Haven. The quartet then proceeded to a nearby convenience store on Arch Street, where Marrero sought to obtain change for a $100 bill. Three black males, who were later identified as the defendant, Eaker McClendon and Leotis Payne, followed them.

McFarlane did not enter the store with the others. • After Marrero obtained his change, the quartet started walking back to Hood’s apartment. The defendant, McClendon and Payne were still following them. Suddenly, Payne approached Cobain, put a gun to her head and demanded money. The defendant and McClendon repeatedly urged Payne to “hurry up” and get the money. Hood pushed Cobain out of the way and urged her to run, which she did. Payne then put the gun to Marrero’s head, went through his pockets and took his money. Then, as Payne began to pull the trigger of the gun, Hood pushed Marrero out of the way and Payne shot Hood in the chest. Thereafter, the defendant, McClendon and Payne fled.

Officer Ricardo Rodriguez of the New Haven police department arrived at the scene and observed Hood on the sidewalk. Hood was later pronounced dead from the bullet wound, from which a .25 caliber bullet was extracted. Later, Marrero identified the defendant, McClendon and Payne at the police station as the perpetrators of the crime, and Cobain and McFarlane indicated that Payne was the shooter.

On October 27,1994, the police entered the apartment of the defendant’s girlfriend by use of force, found the defendant and arrested him. McClendon had fled out the back window and subsequently was apprehended. At trial, the defendant testified that on the night of the shooting he was unarmed and unaware of Payne’s intentions or that Payne possessed a gun. He testified further that he did not see Payne or any other individual rob anyone and ran because he was fearful of gang members.

I

The defendant claims first that the court improperly denied his motion to dismiss, thereby denying him his constitutional right to a speedy trial. We disagree.

Practice Book § 43-41 provides in relevant part: “If the defendant is not brought to trial within the applicable time limit . . . and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice . . . .” Therefore, before the defendant may move for dismissal, he must file a motion for a speedy trial. In addition, § 43-41 further provides: “Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.” “Because a motion to dismiss is waived unless filed before the commencement of trial and a motion for a speedy trial must precede a motion for dismissal, logically a motion for a speedy trial must also be filed before the commencement of trial in order to be afforded a remedy under the rules.” (Internal quotation marks omitted.) State v. Rodriguez, 47 Conn. App. 91, 98-99, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998). “For the purpose of the speedy trial rules, commencement of trial ‘means the commencement of the voir dire examination in jury cases and the swearing-in of the first witness in nonjury cases.’ Practice Book § 956E [now § 43-42].” State v. Green, 38 Conn. App. 868, 873, 663 A.2d 1085 (1995).

Here, the defendant filed a motion for a speedy trial on October 8, 1996. Because this matter was tried to a jury, the trial is deemed to have commenced on October 26, 1996, the day voir dire began. The trial was commenced, therefore, within thirty days of the filing of the motion for a speedy trial. The jury selection began on October 21, 1996, but was not completed until December 17, 1996, because some of the jurors had been excused. The defendant, however, did not file his motion to dismiss until December 12, 1996, subsequent to the commencement of voir dire. We conclude, therefore, as a matter of law, that the motion to dismiss was not timely filed and that the defendant waived his right to dismissal under the rules.

The defendant also claims that his constitutional right to a speedy trial was violated. See U.S. Const., amend. VI; Conn. Const., art. I, § 8. This claim fails.

“The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Internal quotation marks omitted.) State v. Rodriguez, supra, 47 Conn. App. 98. “Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 117, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

“The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: [l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated.” (Internal quotation marks omitted.) State v. Martin, 56 Conn. App. 98, 102-103, 741 A.2d 337 (1999), cert. denied, 252 Conn. 926, 746 A.2d 790 (2000).

A

The Connecticut rules of practice set out specific time limitations within which a criminal trial must com-menee. Practice Book §§ 43-39 and 43-40. “Our courts have not held that any particular length of delay is presumptively prejudicial, but have stated that an extensive delay warrants an inquiry into the other factors of Barker. See, e.g., State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985) (three and one-half years); State v. Davis, 192 Conn. 739, 740-41, 474 A.2d 776 (1984) (twenty-six months); State v. Cleary, 3 Conn. App. 349, 350-51, 488 A.2d 831 (1985) (thirty-eight months). There is no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months. Barker v. Wingo, supra, 407 U.S. 523. Although no exact length of time has been established to be sufficient to presume prejudice, a delay of over two years is sufficient to cause investigation into the other factors of Barker. State v. Almgren, 12 Conn. App. 364, 369, 530 A.2d 1089 (1987).” State v. Martin, supra, 56 Conn. App. 103-104; see also State v. Rodriguez, supra, 47 Conn. App. 100. The present case involves a delay of over two years and, therefore, we must consider the other Barker factors.

B

The second factor under the Barker matrix concerns the reasons for the delay of trial. Here, there was approximately a twenty-four month time interval between the defendant’s arrest and his trial. “In examining the reason for the delay, we focus on whether the state was making a deliberate attempt to delay the trial in order to hamper the defense or whether there existed a valid reason . . . [that] should serve to justify appropriate delay.” (Internal quotation marks omitted.) State v. Brown, 40 Conn. App. 483, 489, 671 A.2d 1316 (1996), aff'd, 242 Conn. 389, 699 A.2d 943 (1997).

The defendant argues that the delay was caused by the state’s decision to try his codefendant, Payne, before it tried the defendant. Our review of the record in this case reveals that the state decided to try Payne first because Payne was the actual shooter. “While this delay cannot be attributed to the defendant, it will not be weighed heavily against the state.” State v. Mooney, supra, 218 Conn. 120.

C

The third Barker factor is the assertion by the defendant of his right to a speedy trial. On October 8, 1996, almost two years after his arrest, the defendant filed a motion for a speedy trial. Subsequently, on October 25, 1996, the defendant filed a motion to dismiss. The defendant’s assertion of his right to a speedy trial by a motion to dismiss was not filed until nearly twenty-four months after his arrest. “ ‘This factor militates against the defendant’s claim. The failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial. Barker v. Wingo, supra, [407 U.S.] 528, 531-32.’ ” State v. Almgren, supra, 12 Conn. App. 370. Moreover, because the defendant’s trial commenced within thirty days of his filing of a motion for a speedy trial, his assertion of his right to a speedy trial is afforded little weight in the Barker balancing test.

D

The final Barker factor, prejudice to the defendant, is the linchpin of the speedy trial claim. State v. Morrill, 197 Conn. 507, 526, 498 A.2d 76 (1985). “[U]nlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself. . . . The right to a speedy trial is designed (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. ... In Barker . . . the court noted that of the three interests served by the right to speedy trial, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, supra, 47 Conn. App. 102-103.

Here, the defendant argues that he suffered prejudice resulting from the impairment in the memories of several witnesses due to the delay between the alleged crime and the trial. “A claim of general weakening of witnesses’ memories, relying on the simple passage of time, cannot, without a more specific showing, be said to prejudice the defendant.” (Internal quotation marks omitted.) State v. Mooney, supra, 218 Conn. 121.

The defendant also claims that “the most compelling evidence of prejudice” is the loss of ten of the original fourteen members of his jury. This argument is likewise without merit. We agree with the state that this claim is nonsensical in the context of a sixth amendment speedy trial claim. As discussed previously in this opinion, for purposes of the speedy trial rules, commencement of trial means commencement of the voir dire examination in jury cases, and so the relevant time period for determining delay is from the time the defendant was arrested until the beginning of jury selection. Any such delay claimed by the defendant as it relates to his losing ten members of his original jury had to have occurred after the trial was deemed to have commenced and, therefore, has no bearing on a speedy trial claim.

On the basis of our consideration of the four Barker factors, we conclude that the defendant was not denied his constitutional right to a speedy trial. The court properly denied his motion to dismiss.

II

The defendant claims next that the court improperly failed to grant his motion for a new trial based on certain remarks made by the prosecutor in his closing argument, thereby denying him his rights to a fair trial and to due process of law.

As a preliminary matter, we note that the defendant did not object to any portion of the prosecutor’s closing argument that he now challenges on appeal. He seeks review of his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 60-5. He also asks this court to invoke its supervisory powers over the administration of justice and to order a new trial. State v. Pouncey, 241 Conn. 802, 812-13, 699 A.2d 901 (1997). “Both this court and our Supreme Court have held that where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. . . . Where counsel fails to object or to request a curative charge we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized.” (Citations omitted; internal quotation marks omitted.) State v. Eason, 47 Conn. App. 117, 121, 703 A.2d 130 (1997), cert. denied, 243 Conn. 962, 705 A.2d 552 (1998).

“We have long held, moreover, that [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . because in such a case the claimed misconduct is insufficient to infect the fundamental fairness of the trial itself. . . . Furthermore, in order to warrant review under the plain error doctrine, the allegedly improper conduct must so pervade the defendant’s trial as to have impaired the effectiveness or integrity of the judicial process.” (Citations omitted; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996).

Here, the prosecutor, in his closing argument, commented on the motivation and credibility of the defendant and the defense witnesses, as opposed to the state’s evidence, and urged the jury to refer to the information filed. We have previously recognized that “it is improper for a prosecutor to express his or her own opinion, either directly or indirectly, as to the credibility of witnesses. ... It is well settled, however, that a defendant may not prevail under Golding or the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial, nor will we invoke our supervisory authority to reverse an otherwise lawful criminal conviction absent a showing that the conduct of the prosecutor was so offensive to the judicial process that a new trial is necessary to deter such misconduct in the future.” (Internal quotation marks omitted.) State v. Briley, 55 Conn. App. 258, 262, 739 A.2d 293, cert. denied, 251 Conn. 927, 742 A.2d 363 (1999).

“In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 355, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). “[Because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. . . . In reviewing claims of prosecutorial misconduct, we have focused on several factors, [including] . . . the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citation omitted; internal quotation marks omitted.) State v. Briley, supra, 55 Conn. App. 262-63.

“[T]he burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 356. The defendant in the present case has failed to meet this burden. The prosecutor’s comments on the credibility and motivation of witnesses does not involve deliberate prosecu-torial disregard of express judicial directions or established rules of fair play. “Given the lack of deliberate prosecutorial misconduct or otherwise egregious or unduly offensive behavior, we also decline to exercise our supervisory powers over the administration of justice to order a new trial.” State v. Briley, supra, 55 Conn. App. 264.

On the basis of our review of the record, we fail to see how the prosecutor’s remarks were so abusive or prejudicial as to deprive the defendant of a fair trial.

Ill

The defendant claims next that the court improperly instructed the jury on the principle of consciousness of guilt. The defendant concedes that he neither filed a request to charge on consciousness of guilt nor objected to the court’s instructions thereto. The defendant argues that this claim is reviewable under the Golding standard and the plain error doctrine. Practice Book § 60-5. We decline to review this claim because we conclude that the defendant’s claim fails the second prong of Golding.

“It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the Evans-Golding* standard. ... It is well settled that the trial court can be expected to rule only on those matters that are put before it. . . . With only a few exceptions . . . we will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Citations omitted; internal quotation marks omitted.) State v. Gibson, 56 Conn. App. 154, 160-61, 742 A.2d 397 (1999); see also State v. Snead, 41 Conn. App. 584, 591, 677 A.2d 446 (1996).

Moreover, “[p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990).” (Internal quotation marks omitted.) State v. Tyson, 43 Conn. App. 61, 66, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996). A careful review of the record leads us to conclude that this is not the case here. While we will, in appropriate circumstances, exercise our powers of supervision and control over proceedings on appeal, “[w]e will not . . . exercise those powers to allow litigants to circumvent the rules of practice.” State v. Sebastian, 41 Conn. App. 530, 538, 677 A.2d 437 (1996).

IV

The defendant claims finally that the court’s instruction on reasonable doubt was improper. Specifically, he contends that the court’s instruction that reasonable doubt is not a “doubt suggested by [the] ingenuity of counsel” violated his constitutional rights. The defendant did not submit a request to charge on reasonable doubt, and he also failed to object to the reasonable doubt instruction given by the court. He seeks review, however, pursuant to Golding or the plain error doctrine.

The defendant concedes that our Supreme Court has rejected the claim that the use of the “ingenuity of counsel” language is violative of a defendant’s constitutional rights. State v. Delvalle, 250 Conn. 466, 474-75, 736 A.2d 125 (1999); State v. Hines, 243 Conn. 796, 817-20, 709 A.2d 522 (1998). He nevertheless claims that the instruction here was improper in light of the decision of the United States Court of Appeals for the Second Circuit in United States v. Doyle, 130 F.3d 523, 533 (2d Cir. 1997), and our Supreme Court’s statement in State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), that trial courts should avoid using such language in jury charges.

Like the defendant here, the defendant in Hines relied on Doyle to support his unsupported claim that the “ingenuity of counsel” language in a jury charge unconstitutionally diluted the state’s burden of proof. State v. Hines, supra, 243 Conn. 818 n.17. Our Supreme Court rejected such a challenge, holding that the instruction invalidated in Doyle—that the law is designed to protect the innocent but not the guilty—was unrelated to the instruction at issue and, therefore, Doyle had no bearing on that case. Id. Accordingly, the defendant’s reliance on Doyle in the present case is misplaced.

The defendant also correctly points out that in Taylor our Supreme Court urged trial courts to avoid further use of the “ingenuity of counsel” instruction. Subsequent to Taylor, in State v. Delvalle, supra, 250 Conn. 475-76, the Supreme Court stated that “ [t] o avoid any possibility of juror confusion arising from the use of the phrase, we invoke our supervisory authority over the administration of justice to direct our trial courts to refrain from using the ‘ingenuity of counsel’ language in the future.” The court in both Taylor and Delvalle, however, concluded that an instruction virtually identical to that given in this case, when properly considered in the broader context of the trial court’s instructions in their entirety, did not dilute the state’s burden of proof or otherwise mislead the jury. Id., 474; State v. Taylor, supra, 239 Conn. 504-505; see also State v. Young, 56 Conn. App. 831, 843, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000).

We conclude that the instruction in the present case, when viewed in the context of the court’s jury instructions in their entirety, did not clearly deprive the defendant of a fair trial. See id. Moreover, because we cannot conclude that the instruction affected the fairness or integrity of the proceedings or resulted in manifest injustice to the defendant, there was no plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       Some fifteen minutes before the shooting episode, the defendant, McClendon and Payne asked Steven Thomas, who later testified as a state’s witness, if he would like to make some money, but he declined.

       The defendant also argues that the action of the court in commencing jury selection in his case to satisfy the speedy trial rules while postponing the evidentiary portion of the trial until the completion of the trial of a codefendant failed to satisfy his right to a speedy trial. The defendant asserts that the remarks by the court that commencing jury selection would comply with the speedy trial requirement, demonstrated a violation of the spirit of the speedy trial rule. The court stated: “I can pay it a legal fiction today, start picking a jury and that would stay the statute too and still have Mr. Payne go forward either with another Judge or with me. That would fulfill the requirements of the Practice Book.. . . [T]he black letter of the Practice Book that would be in compliance.”
      While we do not condone the explanation offered by the court for satisfying the right to a speedy trial by commencing jury selection, we conclude that, under the circumstances of this case, the defendant’s right to a speedy trial was not violated by deferring the evidentiary portion of the trial until the codefendant’s case was concluded. See State v. Mooney, 218 Conn. 85, 120, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

       Payne’s trial ended on December 4, 1996.

       The defendant also refers to the fact that the trial was delayed because the prosecutor had sustained a back injury, and claims that this reason for the delay should weigh in his favor. The delay cause by the prosecutor’s back injury, however, occurred after the commencement of the defendant’s trial and, therefore, the defendant’s claim must fail.

       Moreover, a predominant reason for the loss of some of these original jurors was the unforeseen back injury suffered by the prosecutor, which was going to delay the start of trial. This was, therefore, not a purposeful action by the state to delay the start of trial to the prejudice of the defendant.

       Under State v. Golding, supra, 213 Conn. 239-40, a defendant can prevail on an unpreserved claim of constitutional error “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.) “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Tyson, 43 Conn. App. 61, 65, 682 A.2d 586, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996).

       See footnote 9.

        State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       The trial court’s “ingenuity of counsel” instruction in the present case was given before the Delvalle court’s direction about the future use of such language. See State v. Taft, 57 Conn. App. 19, 28, 746 A.2d 813, cert. granted on other grounds, 253 Conn. 909, 753 A.2d 942 (2000).


text:
    MATTHEW DOTY v. SHAWMUT BANK ET AL.
    (AC 19179)
    Mihalakos, Pellegrino and Daly, Js.
    Argued April 5
    officially released June 27, 2000

      George J. Markley, with whom was Christine D. Brown, for the appellant (plaintiff).

      J. Kevin Golger, for the appellee (named defendant).
   Opinion

DALY, J.

In this personal injury action, the plaintiff, Matthew Doty, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the named defendant, Shawmut Bank (Shawmut), the predecessor in interest to the mortgagee of premises where the plaintiff slipped and fell. On appeal, the plaintiff claims that the court improperly determined that no genuine issue of material fact existed as to the ownership, possession or control of the premises by Shawmut’s predecessor in interest, Gateway Bank (Gateway), after a judgment of strict foreclosure had entered in favor of Gateway but before the mortgagor’s law day had expired. We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On September 13,1993, the plaintiff, an employee of Allstate Insurance Company, slipped and fell in the parking lot of his employer’s place of business. The plaintiff claims that the accident occurred because of unsafe conditions purportedly created by an accumulation of pine needles, pine cones and other debris on the surface of the pavement.

At the time of the plaintiffs fall, the defendant John J. Wellner was the record owner of the premises, Shaw-mut’s predecessor in interest, Gateway, held a mortgage on the premises, and Allstate Insurance Company was a commercial tenant. On September 7, 1993, six days before the plaintiffs fall, Gateway secured a judgment of strict foreclosure with a law day for Wellner of September 28, 1993.

On August 30, 1995, the plaintiff filed this action against Wellner and Shawmut. Wellner failed to plead and subsequently was defaulted. On July 21,1998, Shaw-mut filed a motion for summary judgment, claiming that its predecessor in interest did not have an ownership interest in the premises at the time of the plaintiffs fall and that Shawmut therefore could not be held liable as a matter of law. The plaintiff opposed the motion, arguing that it should be denied because there was a genuine issue of material fact as to Gateway’s ownership interest and possession or control of the property on the date of the plaintiffs fall. In an affidavit opposing the summary judgment motion, the plaintiff asserted, inter alia, that the court on August 10, 1992, had appointed a receiver of rents for the premises and that pursuant to that order Gateway’s permission was required to perform certain maintenance and other activities affecting the premises. The plaintiff thereafter filed a supplemental affidavit in which he attested that Gateway had taken out a liability insurance policy covering the premises in the amount of $1 million, which was in effect on the date of the plaintiffs fall, and that Wellner no longer was in possession or control of the premises on the date of the plaintiffs fall. On December 16, 1998, the court granted Shawmut’s motion for summary judgment, finding that its predecessor in interest neither owned nor possessed nor controlled the premises on the date of the plaintiffs fall. This appeal followed.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. . . . Practice Book § 17-49 . . . requires that [t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as amatter of law.” (Citation omitted; internal quotation marks omitted.) Hryniewicz v. Wilson, 51 Conn. App. 440, 443, 722 A.2d 288 (1999). “A ‘material’ fact is a fact that will make a difference in the result of a case.” River Dock & Pile, Inc. v. Ins. Co. of North America, 57 Conn. App. 227, 231, 747 A.2d 1060 (2000).

“[T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . (Internal quotation marks omitted.) Hryniewicz v. Wilson, supra, 51 Conn. App. 443. “It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.” (Emphasis in original; internal quotation marks omitted.) Gambardella v. Kaoud, 38 Conn. App. 355, 358, 660 A.2d 877 (1995).

Correspondingly, “the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Hryniewicz v. Wilson, supra, 51 Conn. App. 443-44. “To oppose a motion for summary judgment successfully, the non-movant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him.” (Internal quotation marks omitted.) Id., 444. “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998).

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits . . . .” Practice Book § 17-45. “Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.” Walker v. Lombardo, 2 Conn. App. 266, 269, 477 A.2d 168 (1984).

“In deciding a motion for summaiy judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Hryniewiczv. Wilson, supra, 51 Conn. App. 443. “[T]he standards of summary judgment are strictly and forcefully applied.” (Internal quotation marks omitted.) Morascini v. Commissioner of Public Safety, 236 Conn. 781, 809, 675 A.2d 1340 (1996). With these principles in mind, we proceed with our analysis.

The plaintiffs sole claim on appeal is that the court improperly granted Shawmut’s motion for summaiy judgment because there is a genuine issue of material fact as to Gateway’s ownership, possession or control of the premises on the date of the plaintiffs fall. The plaintiff argues that when the judgment of strict foreclosure entered six days before he fell on the premises, Gateway acquired a genuine ownership interest in the property, even if that interest was not yet absolute and unconditional, and that this interest was sufficient to impose liability for a defective and dangerous condition occurring on the premises. The plaintiff also argues that the court’s “sweeping” order appointing a receiver of rents more than one year before he fell on the premises shifted control of the premises to Gateway and dispossessed Wellner, the owner of record.

Shawmut responds that no material facts have been placed in issue. It contends that Gateway did not have an ownership interest in the premises at the time of the plaintiffs fall because absolute title does not vest in a mortgagee until the mortgagor fails to redeem by the law day, in this case fifteen days after the accident. Shawmut thus claims that Wellner remained the owner of the property for all intents and purposes until the passage of the law day without exercising his right of redemption. Shawmut further argues that the plaintiffs memoranda and affidavits contain conclusory statements only, and fail to cite any additional facts establishing that Gateway owned, possessed or controlled the premises on the date of the fall. Shawmut therefore claims that the court properly granted the motion for summary judgment as a matter of law.

Our Supreme Court has ruled that “[t]he term ‘owner’ is one of general application and includes one having an interest other than the full legal and beneficial title. . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. ... It is not a technical term and, thus, is not confined to a person who has the absolute right . . . but also applies to a person who has possession and control . . . .” (Citations omitted; internal quotation marks omitted.) Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972). We also have noted that “[liability for a claimed injury due to . . . defective premises depends on possession and control and not on title.” Fernandez v. Estate of Ayers, 56 Conn. App. 332, 335, 742 A.2d 836 (2000).

“The word ‘control’ has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee.” (Citation omitted.) Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969). “[T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question.” State v. Tippetts-Abbett- McCarthy-Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987). “Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury” for its determination. Darling v. Burrone Bros., Inc., 162 Conn. 187, 192, 292 A.2d 912 (1972).

We initially conclude that the question of who possessed or controlled the premises on the date of the plaintiffs fall is a material fact that will make a difference in the outcome of this case. See River Dock & Pile, Inc. v. Ins. Co. of North America, supra, 57 Conn. App. 231. We also conclude, following a review of the record and briefs, that Shawmut has failed to meet its burden of bringing forward sufficient evidentiary facts or substantial evidence outside the pleadings to establish the absence of a material dispute as to Gateway’s possession or control of the premises on the date of the plaintiffs fall. See Gambardella v. Kaoud, supra, 38 Conn. App. 358. Shawmut did not submit any supporting affidavits with its motion for summary judgment, as required by Practice Book § 17-45. Moreover, the facts on which Shawmut relies to support its claim, namely, the dates of the judgment of strict foreclosure, the plaintiffs fall and the law day, are cited for the purpose of denying ownership as a matter of law, not to establish the absence of a genuine issue regarding possession and control. See Hope v. Cavallo, supra, 163 Conn. 580-81.

The plaintiff, by contrast, has more than met his burden by presenting evidence that indicates the existence of a genuine issue between the parties. See Practice Book §§ 17-45 and 17-46. In his brief and in two affidavits objecting to Shawmut’s motion, the plaintiff supported his contention that Gateway possessed or was in control of the premises by presenting evidence that the court-appointed receiver was obligated to secure Gateway’s permission before undertaking numerous activities affecting the premises. Such activities included making repairs costing more than $1500; initiating legal proceedings to protect the premises; prosecuting suits for the collection of rents; initiating proceedings for the removal of tenants; paying taxes, assessments, water charges, sewer rents and premiums on insurance policies; making payments on other mortgages on the premises; purchasing fuel for heating the premises; and supplying hot water to the tenants. In his supplemental affidavit, the plaintiff also attested that he had spoken to an employee of J. M. Layton & Company, Inc., who informed him that the company had issued to Gateway a liability insurance policy covering the premises in the amount of $1 million, thus indicating that Gateway recognized its dominion and control over the premises, and its potential liability as a mortgagee.

To further support his contention that Gateway controlled and possessed the premises, the plaintiff presented evidence to establish that the order appointing a receiver effectively dispossessed Wellner, the owner of record. The plaintiff pointed out that the order required Wellner to turn over all security deposits held on the property, enjoined him from collecting any rents or maintenance fees on the premises, enjoined him from interfering in any manner with the premises or its possession, and ordered him to deliver to the receiver all valid and existing leases and rent rolls, together with any and all other papers affecting the rental or other operation of the premises, which he or his agents might have in their possession. The plaintiff also noted that the order required all persons in possession of the premises without valid and existing leases or tenancies to surrender their possession to the receiver, and that no evidence was presented to suggest that Wellner had such a lease or tenancy.

Shawmut relies on Hardy v. Shepard, Superior Court, judicial district of Hartford-New Britain, Docket No. 940541387S (July 31, 1995) (14 Conn. L. Rptr. 515), for the proposition that Gateway was not liable as the owner of the premises because the accident occurred after the judgment of strict foreclosure entered but prior to the law day. The Hardy court, however, also considered the separate but even more significant question of whether the defendant had possession or control of the premises. Id. In Hardy, as distinguished from the present case, the court found inconsistencies and ambiguities in the plaintiffs testimony, and the plaintiff presented no affidavits, depositions or other documents to support her allegations that the defendant had possession or control of the premises. Id. Moreover, the plaintiff in Hardy offered no evidence, as the plaintiff did here, that the court had issued a detailed order appointing a receiver of rents to oversee the premises, and that the defendant’s permission was required before expensive repairs and other activities affecting the premises could be performed. The Hardy court, therefore, found that the plaintiff had not produced sufficient evidence to support her allegations and thus concluded that there was no genuine issue as to the defendant’s possession or control of the premises. Id. Here, our conclusion that the plaintiff has produced such evidence is compatible, not inconsistent, with Hardy.

Accordingly, after viewing the evidence in the light most favorable to the plaintiff, we conclude that the minds of fair and reasonable persons could reach different conclusions; see State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. 185; and that there is a genuine issue of material fact as to whether Shawmut’s predecessor in interest possessed or controlled the premises on the date of the plaintiffs fall. See Hrynie-wicz v. Wilson, supra, 51 Conn. App. 443. “If the trial court grants a motion for summary judgment in the mistaken belief that the factual predicate for that judgment is present, such action is clearly erroneous.” (Internal quotation marks omitted.) Walker v. Lombardo, supra, 2 Conn. App. 269-70.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    CHARLIE MCCLENDON v. COMMISSIONER OF CORRECTION
    (AC 18748)
    Schaller, Hennessy and Zarella, Js.
    Submitted on briefs March 30
    officially released June 27, 2000

      James A. Shanley, Jr., special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, and Christopher T. Godialis and George Ferko, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Charlie McClendon, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus and the denial of his petition for certification to appeal to this court. In the criminal case that gave rise to the petition for a writ of habeas corpus, the petitioner was convicted of two counts of felony murder in violation of General Statutes § 53a-54c, attempt to commit first degree robbery in violation of General Statutes §§ 53a-49 and 53a-134, and two counts of robbery in the first degree in violation of General Statutes § 53a-134. The petitioner was sentenced to a term of one hundred forty years imprisonment. This court affirmed the trial court’s judgment of conviction in State v. McClendon, 45 Conn. App. 658, 697 A.2d 1143 (1997), and the Supreme Court affirmed this court’s judgment in State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999).

In his amended petition seeking a writ of habeas corpus, the petitioner alleged that he was denied his state and federal constitutional rights to effective assistance of counsel on the grounds that his trial counsel (1) failed to conduct a full cross-examination of the chief witness against the petitioner and (2) failed to call certain witnesses who would have assisted in the impeachment of the chief witness. The habeas court dismissed the petition and denied the petitioner’s subsequent petition for certification to appeal.

The habeas court’s dismissal of the petition for a writ of habeas coipus was predicated on (1) the tactical decision and sound strategy of the petitioner’s trial counsel not to accuse the chief witness of being a liar, but rather as being confused and (2) credibility determinations with respect to the witnesses. The court found that the petitioner had failed to establish that “counsel’s representation fell below an objective standard of reasonableness.” (Internal quotation marks omitted.) Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).

After a review of the record and briefs, 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, that he has failed to sustain his burden of persuasion that the denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the amended petition for a writ of habeas corpus and the petition for certification to appeal.

The appeal is dismissed.


text:
    DUANE FOSTER v. COMMISSIONER OF CORRECTION
    (AC 18749)
    Lavery, C. X, and Spear and Hennessy, Js.
    Submitted on briefs March 20
    officially released June 27, 2000

      Sarah F. Summons, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, and Marjorie Allen Dauster and George Ferko, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Duane Foster, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus and the denial of his petition for certification to appeal to this court. In the criminal case that gave rise to the petition for habeas corpus, the petitioner was convicted of larceny in the third degree in violation of General Statutes §§ 53a-124 and 53a-119 (8), three counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a), interfering with a peace officer in violation of General Statutes § 53a-167a, using a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b (a) (1) and with being a persistent serious felony offender pursuant to General Statutes § 53a-40 (b) and (g). This court affirmed the judgment of conviction in State v. Foster, 45 Conn. App. 369, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).

In his amended petition for a writ of habeas corpus, the petitioner alleged that he was denied his state and federal constitutional rights to effective assistance of counsel on the grounds that his trial counsel failed (1) to conduct a proper direct examination of the petitioner at trial, (2) to conduct proper cross-examination of three witnesses, (3) to call a police officer to testify as a defense witness, (4) to present a proper theory of defense with respect to police misconduct, (5) to object to the admission of an inaccurate presentence investigation report and (6) to present rebuttal evidence to the presentence investigation report at sentencing.

The habeas court’s dismissal of the petition for a writ of habeas corpus was predicated on (1) the petitioner not providing counsel with more information with which counsel could examine him on direct examination, (2) the petitioner not alleging what evidence he expected to elicit on cross-examination of the three witnesses, (3) the lack of information or evidence to support the petitioner’s claim of police misconduct and (4) the determination that the petitioner spoke at his sentencing hearing, and acknowledged his extensive criminal record and his need to be punished. The court found that the petitioner failed to establish deficient performance by his trial counsel and actual prejudice. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). The court found that the petitioner produced nothing to demonstrate that there was anything his trial counsel could have done to obtain a different result.

After a review of the record and briefs, we conclude that the petitioner failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, that he has failed to sustain his burden of persuasion that the denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the amended petition for a writ of habeas corpus and the petition for certification to appeal.

The appeal is dismissed.


author: HENNESSY, J.

text:
    BETHLEHEM CHRISTIAN FELLOWSHIP, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF MORRIS
    (AC 19227)
    Lavery, Hennessy and Daly, Js.

    Argued February 18
    officially released June 27, 2000

      Kenneth R. Slater, Jr., for the appellant (plaintiff).

      Andrew W. Roraback, for the appellee (defendant).

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

   Opinion

HENNESSY, J.

The plaintiff, Bethlehem Christian Fellowship, Inc., appeals from the judgment of the trial court affirming the denial by the defendant, the planning and zoning commission of the town of Morris (commission), of the plaintiffs application for a special exception to build a church meetinghouse. On appeal, the plaintiff claims that the court improperly found that the plaintiff lacked standing as an aggrieved party to appeal from the denial of its zoning application. We agree and reverse the judgment of the trial court.

The following facts were before the court. On May 22, 1996, the plaintiff entered into a contract with Catherine Mosimann and the estate of her late husband, Walter Mosimann, to purchase real property in Morris. Under the agreement, zoning approval for a special exception to build the meetinghouse was made a condition of the sale. Under the agreement, zoning approval was to be obtained by July 19, 1996, and a closing was to take place by August 1, 1996. Zoning approval was not obtained by July 19, 1996, and the parties entered into two modifications of the contract. The first modification, dated January, 1997, was five months after the closing date called for in the agreement. It extended the date for obtaining zoning approval to March 31, 1997, and the closing date to April 18,1997. The plaintiff filed with the commission an application seeking zoning approval. After public hearings through the summer of 1997, the commission on October 1, 1997, denied the application without prejudice because the tape recordings of the hearings were defective. The application was resubmitted, and a second series of public hearings was held. The commission denied the application for a special exception on November 5, 1997. An appeal was filed by the plaintiff on December 2, 1997. Soon after the appeal was filed, the contract was modified a second time on December 24, 1997, which extended the date for zoning approval to November 30, 1998, with the closing to take place within thirty days of zoning approval.

The court dismissed the plaintiffs appeal for lack of subject matter jurisdiction. The court held that the plaintiff was not an aggrieved party and lacked standing because at the time the appeal was filed, the plaintiff did not have a contract to purchase the property and, therefore, did not have a legal interest in the outcome of the case.

The plaintiff claims that the court improperly ruled that the plaintiff lacked standing as an aggrieved party to appeal from the denial of its zoning application. “ ‘The question of aggrievement is essentially one of standing.’ Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). The issue of standing invokes the trial court’s subject matter jurisdiction. D.S. Associates v. Planning & Zoning Commission, 27 Conn. App. 508, 511, 607 A.2d 455 (1992). The issue cannot be waived. ‘Proof of aggrievement is essential to a trial court’s jurisdiction of a zoning appeal.’ ” R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 568, 684 A.2d 1207 (1996). “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373-74, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991).

“[T]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision .... Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [193 Conn. 59, 65, 475 A.2d 283 (1984)]. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). . . . [Connecticut State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987)].” Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 288, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). “[I]n order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal. . . . It is not enough for a party to have an interest in the property sufficient to establish aggrievement only at the time of the application to the commission.” (Citations omitted.) Primerica v. Planning & Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989).

“The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978). . . . United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, [343], 663 A.2d 1011 (1995).” (Internal quotation marks omitted.) Northeast Parking, Inc. v. Planning & Zoning Commission, supra, 47 Conn. App. 288. “Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law.” Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 344, 573 A.2d 1222 (1990).

The plaintiff argues that it is a party to a purchase and sale agreement concerning the property, which agreement was in effect at the time the plaintiff filed its appeal. In dismissing the appeal, the court reasoned that by entering into an extension in December, 1997, the parties implicitly acknowledged that the contract had expired prior to that date. The court held that the delay of seven months after the expiration of the terms of the first modification was not reasonable and, thus, the plaintiff did not have a contract to purchase the property in question because the contract had expired. In reaching this conclusion, the court relied on Pollio v. Conservation Commission, 32 Conn. App. 109, 628 A.2d 20 (1993), and Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 486 A.2d 646 (1985).

In Pollio and Goldfeld, the plaintiffs failed to sustain their burden of proving aggrievement throughout the course of their appeals because their option contracts had lapsed during the pendency of the appeals. Once the time limitation passes in an option contract, the authority to accept the offer and to establish a binding purchase and sale agreement no longer exists. Thus, upon expiration of an option contract, the offeree no longer possesses any legal right to accept the offer to purchase the land and therefore has no interest in the property. This case, however, does not deal with an option contract, but with a contract to purchase land. Unlike in option agreements, a buyer and seller in a contract to purchase land undertake mutual promises for the purchase and sale of the property. Those obligations are not necessarily extinguished after the specified closing date passes. “The law is that a day fixed in a contract for closing title, without more, is merely formal; but if it is stipulated that time is of the essence, or the circumstances are persuasive that that is the case, prompt performance is essential, and it is also the law that where the time fixed is regarded as a formality only, and the period has gone by, or where time is of the essence and there is a waiver, that time may nevertheless be made of the essence by formal demand that the title be closed by a given day; but the time given must be reasonable. ... Of course, [t]he fact that a contract sets a date for the closing of a transaction does not of itself make time of the essence of the contract. . . . Calandro v. Koons, 17 Conn. Sup. 374, 380 (1951).” (Citations omitted; internal quotation marks omitted.) Fullerton v. McGowan, 6 Conn. App. 624, 629, 507 A.2d 473 (1986).

The court stated that while “time is not of the essence ordinarily in real estate purchase contracts, ‘[w]here a time for performance is stated in an agreement, a party’s tender of performance within a reasonable time thereafter will be considered substantial performance. . . .’ Mihalyk v. Mihalyk, 11 Conn. App. 610, 616, 529 A.2d 213 (1987).” In concluding that the delay after the first modification was unreasonable, the court stated that the plaintiff chose to pursue the matter with the commission instead of entering into another modification in the seven month period after the last modification approval date had expired. In light of the fact that “[standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights”; (internal quotation marks omitted) DiBonaventura v. Zoning Board of Appeals, supra, 24 Conn. App. 373; we conclude that the contract remained in effect. Time was not of the essence in the sales contract, and the seller did not formally demand that the plaintiff adhere to the closing date. The parties to the contract treated the contract as being in effect throughout the proceedings, and the wording of the contract did not convey a difference intent. Accordingly, we conclude that the court’s decision that the plaintiff is not aggrieved is an overly technical application of the test for aggrievement.

The judgment is reversed and the case is remanded for a hearing on the merits of the plaintiffs appeal.

In this opinion the other judges concurred.

       “An option contract and a contract of sale are in fact two separate and distinct contracts, namely, an option contract, and an agreement to sell. An option, originally, is neither a sale nor an agreement to sell. It is not a contract by which one agrees to sell and the other to buy, but it is only an offer by one to sell within a limited time and a right acquired by the other to accept or reject such offer within such time.” (Internal quotation marks omitted.) Cutter Development Corp. v. Peluso, 212 Conn. 107, 110, 561 A.2d 926 (1989).

       The commission also argues that the court, could have dismissed the plaintiffs appeal because the modifications to the contract did not identify the parties with reasonable certainty and, thus, failed to satisfy the statute of frauds. Although the court declined to review this issue and instead chose to base its decision on the other arguments raised by the commission, the commission on appeal argues that where a trial court renders judgment on mistaken grounds, appellate courts repeatedly have affirmed the trial court’s action if proper grounds exist to support it. See, e.g., Herrmann v. Summer Plaza Corp., 201 Conn. 263, 274, 513 A.2d 1211 (1986).
      We decline to affirm the judgment on the basis of the commission’s statute of frauds argument. The statute of frauds is a defense that can be waived by the party entitled to its benefit. Wolfe v. Wallingford Bank & Trust Co., 124 Conn. 507, 512-13, 1 A.2d 146 (1938); Booth v. Flanagan, 23 Conn. App. 579, 584, 583 A.2d 148 (1990), appeal dismissed, 220 Conn. 453, 599 A.2d 380 (1991). Thus, a claim by the commission that the contract violates the statute of frauds does not necessarily make the contract unenforceable.


text:
    IN RE RACHEL M.

    (AC 20058)
    Lavery, C. X, and Hennessy and Pellegrino, Js.
    Argued May 5
    officially released June 27, 2000

      Michael H. Agranojf, with whom, on the brief, was Stephanie L. Klaubert, law student intern, for the appellant (respondent).

      Jane R. Rosenberg, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Maria Morelli-Wolfe, for the minor child.

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

   Opinion

PER CURIAM.

The respondent mother appeals from the judgment of the trial court terminating her parental rights in her daughter, Rachel M.* The sole issue by agreement of the parties is whether, in the disposition phase of the trial, the petitioner, the commissioner of children and families, failed to prove by clear and convincing evidence, pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (l), that the department of children and families had made reasonable efforts to reunify the child with the parent.

On appeal, the respondent asks this court to review the trial court’s findings of fact. As this court has often stated, “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . . [W]e will disturb the findings of the trial court in both the adjudication and disposition phases only if they are clearly erroneous. . . . The trial court’s ruling on [the issue of whether reasonable efforts were made] should not be disturbed on appeal unless, in light of the evidence in the entire record, it is clearly erroneous. In re Tabitha P., 39 Conn. App. 353, 361, 664 A.2d 1168 (1995).” (Citations omitted; internal quotation marks omitted.) In re Savanna M., 55 Conn. App. 807, 812-13, 740 A.2d 484 (1999).

“Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the child with his or her family. The term ‘reasonable efforts’ was recently addressed by this court: ‘Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word “reasonable” nor the word “efforts” is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible.’ In re Eden F., 48 Conn. App. 290, 311-12, 710 A.2d 771 [(1998), rev’d on other grounds, 250 Conn. 674, 730 A.2d 234 (1999)]. The trial court’s ruling on this issue should not be disturbed on appeal unless, in light of the evidence in the entire record, it is clearly erroneous. In re Tabitha P., [supra, 39 Conn. App. 361].” In re Jessica B., 50 Conn. App. 554, 565-66, 718 A.2d 997 (1998).

In this case, taking into account the court’s memorandum of decision setting forth the facts on which the court based its decision, and the evidence presented, including exhibits and the testimony of witnesses, we conclude that the court had more than sufficient evidence from which to find by clear and convincing evidence that the petitioner had made reasonable efforts to reunite the child with the parent. Because the court’s findings were not clearly erroneous, we affirm the judgment of the trial court.

The judgment is affirmed.

       The petition to terminate the respondent’s parental rights was filed May 12, 1998.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate