author: HARPER, J.

text:
    JOB ADISA AYANTOLA v. BOARD OF TRUSTEES OF TECHNICAL COLLEGES
    (AC 29034)
    Harper, Lavine and Peters, Js.
    Argued October 27, 2008
    officially released August 18, 2009

      Thomas W. Bucci, for the appellant (plaintiff).

      Antoría D. Howard, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Margaret Q. Chappie, assistant attorney general, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, Job Adisa Ayantola, appeals from the judgment of the trial court rendered in favor of the defendant, the Board of Trustees of Technical Colleges, in this action to recover damages for alleged employment discrimination and retaliation in violation of General Statutes § 46a-60. On appeal, the plaintiff claims that the court (1) lacked subject matter jurisdiction over his claims, (2) improperly concluded that he did not establish a prima facie case of retaliation and (3) improperly concluded that the defendant did not retaliate against the him in violation of § 46a-60 (a) (4). In light of the Supreme Court’s recent ruling in Lyon v. Jones, 291 Conn. 384, 968 A.2d 416 (2009), we reject the plaintiffs claim that the court lacked subject matter jurisdiction. In regard to his second claim, we conclude that the court properly determined that he did not establish a prima facie case of retaliation. Because we affirm the conclusion of the court that the plaintiff failed to make out a prima facie case of retaliation, we do not engage in further analysis of the retaliation claim. Accordingly, we affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff is a deaf black male who was bom in Nigeria in 1950. He emigrated to the United States in 1976 to pursue educational opportunities that were unavailable to him in Nigeria. In 1987, the defendant hired the plaintiff to work as a sign language-interpreting instructor at Northwestern Connecticut Community College (college). In 1996, nine years after being hired, the plaintiff was promoted to the position of assistant professor. The plaintiff filed complaints with the commission on human rights and opportunities (commission), on September 21,2000, and July 15,2002, alleging violations of state and federal antidiscrimination laws. On August 13, 2003, the plaintiff entered into a settlement agreement with the defendant regarding these complaints. Subsequent to the settlement agreement with the defendant, the plaintiff applied for promotion to the position of associate professor. In a letter dated April 22, 2004, the then president of the college, Eileen Baccus, informed the plaintiff that despite a favorable vote of the faculty promotion committee, his promotion was being delayed due to student complaints about the plaintiff. Thereafter, the plaintiff filed a complaint with the commission on May 7, 2004. On June 2,2004, Baccus received an investigative report prepared by a law firm concerning student complaints against the plaintiff. The authors of the report made no conclusions but documented multiple student grievances against the plaintiff. In a letter dated June 30, 2004, Baccus officially notified the plaintiff that he had been denied promotion to associate professor, encouraging him to focus on specific areas for improvement. Subsequent to this, the plaintiff reapplied for and was granted a promotion to associate professor in April, 2005, by the new president of the college, Barbara Douglass.

On June 21, 2005, after receiving a release of jurisdiction from the commission, the plaintiff brought this action to recover damages resulting from the defendant’s failure to promote him to the position of associate professor in June, 2004. On July 11, 2007, following a court trial, the court issued a memorandum of decision rendering judgment in favor of the defendant. The court concluded that the defendant’s failure to promote the plaintiff in June, 2004, was not a result of discrimination or retaliation but, rather, the result of a large number of student complaints regarding the plaintiffs performance.

I

Although the plaintiff initiated these proceedings, he nevertheless asserts that the court did not have subject matter jurisdiction over his action. The plaintiff argues that because he failed to obtain the permission of the claims commissioner prior to bringing this action against the defendant, a state agency, the court lacked jurisdiction to hear the case pursuant to the doctrine of sovereign immunity. We reject the plaintiffs claim.

The question of whether a trial court lacked subject matter jurisdiction involves a question of law over which we exercise plenary review. Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). Sovereign immunity is a common-law doctrine whereby the state, as a sovereign, is generally immune from suit except in certain prescribed instances. Connecticut has long accepted this doctrine. “It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued.” Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972).

The legislature has provided for a claims commissioner who may, when he deems it just and equitable, authorize suit against the state. See General Statutes § 4-142. This is not the sole means, however, by which a plaintiff can overcome sovereign immunity. Sovereign immunity can also be avoided if the legislature, either expressly or by force of necessary implication, statutorily waives the state’s sovereign immunity. Miller v. Egan, supra, 265 Conn. 314.

The plaintiff did not apply to the claims commissioner before proceeding with his action in the Superior Court. General Statutes § 46a-100 provides in relevant part, however, that “[a]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities . . . and who has obtained a release from the commission . . . may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford.” (Emphasis added.) In Lyon v. Jones, 104 Conn. App. 547, 554, 935 A.2d 201 (2007), rev’d, 291 Conn. 384, 968 A.2d 416 (2009), this court held that “the provisions of § 46a-100 do not constitute a waiver of the state’s immunity.” On review, the Supreme Court reversed in part the judgment of this court, holding that “[§] 46a-100 explicitly authorizes a plaintiff to file a discrimination action, over which the commission has released its jurisdiction, against the state in Superior Court without the approval of the claims commissioner.” (Emphasis added.) Lyon v. Jones, supra, 291 Conn. 403. Thus, it is clear that after a plaintiff has obtained a release of jurisdiction from the commission, he may proceed with an action in the Superior Court for the judicial district of Hartford, the judicial district in which the discriminatory practice is alleged to have occurred or the judicial district in which the defendant transacts business.

The record reveals that on May 17, 2005, the commission authorized the plaintiff “to commence a civil action against [the defendant] in the Superior Court for the judicial district in which the discriminatory practice is alleged to have occurred or in which [the defendant] transacts business.” After receiving this authorization, the plaintiff served the complaint that initiated this action on June 21, 2005, in the judicial district of Litchfield. Having duly obtained authorization from the commission to proceed with a civil action against the defendant, the plaintiff complied with all conditions precedent to jurisdiction under § 46a-100. We thereby reject the plaintiffs claim that the court lacked subject matter jurisdiction.

II

The plaintiff next challenges the conclusion of the court that he failed to make out a prima facie case of retaliation. We reject this claim.

Under the Connecticut Fair Employment Practices Act (act); General Statutes § 46a-51 et seq.; employers are prohibited from discriminating against an employee on account of their opposition to “any discriminatory employment practices or because such person has filed a complaint [before the commission] . . . .” General Statutes § 46a-60 (a) (4). The act is coextensive with Title VII of the federal Civil Rights Act of 1964, and Connecticut courts therefore look to federal case law for guidance in interpreting the provisions of the act. State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989).

To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against him; and (4) a causal connection between the protected activity and the adverse employment action. McMenemy v. Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). The court found that the plaintiff satisfied the first three elements of his prima facie case. In its memorandum of decision, it stated that (1) the plaintiff was engaged in protected activity by virtue of his prior complaint with the commission, (2) the defendant was aware of the complaint and the resulting agreement and was thus aware of the protected activity and (3) the plaintiff suffered an adverse employment action by virtue of his failure to obtain promotion.

In regard to the final element, the court determined that the plaintiff did not prove a causal connection between the protected activity (filing a complaint with the commission in 2003) and the adverse employment action (denial of promotion). The court stated: “The reason for the plaintiffs nonpromotion in [June] 2004 was the spate of student complaints which cropped up in second semester of 2004. In a school such as this, the students are customers who are valuable and in demand. Student complaints are a valid concern of the administration and are a sufficient nondiscriminatory reason for denying promotion.”

A

As a threshold issue, we must resolve the disagreement among the parties as to the proper standard of review. The plaintiff argues that the determination of the court that he failed to prove that he was the victim of unlawful retaliation is a legal conclusion and consequently subject to plenary review. In support of this argument, the plaintiff cites to this court’s precedents for the proposition that when the trial court draws conclusions of law, our review is plenary. Although this is undoubtedly true, the plaintiff fails to give any reason why a finding of the trial court in regard to the causal element of the prima facie case for retaliation under the act should be considered a legal conclusion. The defendant, on the other hand, argues that whether the plaintiff proved that his failure to obtain promotion was causally related to his protected activity is a question of fact and thereby subject to the clearly erroneous standard.

We reject the plaintiffs argument and agree with the defendant that the question of causation in a prima facie case of retaliation brought under the act is factual in nature and thereby subject to the clearly erroneous standard of review. As the defendant notes in its brief, our Supreme Court has previously held that inquiries arising under the act into the efficacy of an employer’s response to illegal harassment raise a question of fact and are subject to the clearly erroneous standard of review. Brittell v. Dept. of Correction, 247 Conn. 148, 165, 717 A.2d 1254 (1998). Indeed, our Supreme Court’s holding in Brittell strongly supports the defendant’s position. Brittell does not necessarily hold, however, that all determinations under the act represent questions of fact. We therefore must engage in further inquiry as to whether the causation element of the prima facie case for retaliation is factual or legal in nature. We conclude that it is a question of fact and, accordingly, apply the clearly erroneous standard of review.

Black’s Law Dictionary (7th Ed. 1999) defines “fact” as “[a]n actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation.” A question of fact is “[a]n issue that has not been predetermined and authoritatively answered by the law.” Id. In contrast, a question of law is “[a]n issue to be decided by the judge, concerning the application or interpretation of the law.” (Emphasis added.) Id.

In the present case, the court correctly identified the legal standard to be applied in determining whether retaliation took place. Neither party disputes that causation is a legal element of proving a prima facie case of retaliation. The question therefore becomes one of application of the law to the facts to determine whether the plaintiff has made a showing that a causal relationship between the protected activity and the adverse employment action exists.

Black’s Law Dictionary alternatively describes a question of law as “a question that the law itself has authoritatively answered, so that the court may not answer it as a matter of discretion.” Id. We find that the question of what elements show causation in the context of a retaliation claim has not been so authoritatively answered as to make such an inquiry a question of law. The plaintiff cites Gordon v. New York City Board of Education, 232 F.3d 111, 117 (2d Cir. 2002), for the proposition that “proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatoiy treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.”

A causal connection can be established indirectly by showing that the protected activity was followed close in time by adverse action; see, e.g., Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996); but the inquiry into whether temporal proximity establishes causation is factual in nature. There is no “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between [protected activity] and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Cooperative Extension Assn. of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001). The trier of fact, using the evidence at its disposal and considering the unique circumstances of each case, is in the best position to make an individualized determination of whether the temporal relationship between an employee’s protected activity and an adverse action is causally significant. Likewise, the trier of fact is in the best position to determine whether the employer acted with a retaliatory animus. Accordingly, we conclude that the question of whether the causal element of the prima facie case for retaliation has been satisfied is a question of fact and subject to the clearly erroneous standard of review.

B

Under the clearly erroneous standard of review, a finding of fact must stand if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, a trier of fact reasonably could have found as it did. Tragakiss v. Dowling, 183 Conn. 72, 73, 438 A.2d 818 (1981). A finding 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. Brittell v. Dept. of Correction, supra, 247 Conn. 165.

The court found that the plaintiff entered into a settlement agreement wdth the commission on August 13, 2003. Eight months later, on April 22, 2004, Baccus informed the plaintiff that a decision regarding his promotion had been delayed. In the letter informing the plaintiff of her decision, Baccus stated that despite the fact that the promotion committee had recommended him for promotion, “[w]e have recently received additional complaints about your classroom teaching performance from a number of students. I cannot in good conscience make a decision respecting your promotion until the complaints have been investigated and disposed of appropriately.” The defendant introduced a number of exhibits demonstrating that from October, 2003, to April, 2004, school administrators received multiple complaints from students regarding the plaintiffs performance. The defendant hired a lawyer, Wendi Kemp, to conduct an investigation into the students’ complaints. Kemp met with students and the plaintiff and prepared a thorough report dated June 2, 2004. Kemp determined that there was “a great deal of student dissatisfaction with [the plaintiffs] courses; dissatisfaction that is deserving of further attention.” On June 30, 2004, Baccus informed the plaintiff in a letter that she had decided not to recommend him for promotion. In the letter, Baccus encouraged the plaintiff to, among other things, “[positively respond to student concerns in Deaf Culture 2 and ASL Literature courses regarding lack of classroom discussion and lack of interaction with students in these courses.” At trial, Baccus testified that the student complaints were “the major factor” in her decision not to promote the plaintiff. The court found that “based on the complaints and the investigative report, President Baccus was justified in failing to recommend the plaintiff for promotion in [June] 2004.”

Because of the court’s finding that the plaintiff was denied promotion on account of the numerous student complaints made against him, the court reasonably could have concluded that there was no causal connection between the plaintiffs complaint with the commission and the defendant’s decision to withhold his promotion. We therefore reject the defendant’s claim that the court improperly determined there was no causal connection between his protected activity and an adverse employment action.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer to the plaintiff as a “black male” consistent with the manner that he refers to himself both before the trial court and this court.

       Our Supreme Court officially released its decision in Lyon after we heard oral argument and briefs had been submitted in the present case. Both parties conceded in their briefs that the Supreme Court’s holding in Lyon would likely control the outcome of the plaintiffs jurisdictional claim.

       Having found that the plaintiff did not even make out a prima facie case of retaliation, we reject without further analysis his third claim, which is that the court improperly concluded that the defendant did not retaliate against him.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    FRANCES CASSIDY ET AL. v. ZONING COMMISSION OF THE TOWN OF WOODBURY ET AL.
    (AC 30105)
    DiPentima, Gruendel and Peters, Js.
    Argued April 15
    officially released August 18, 2009

      Franklin G. Pilicy, for the appellants (named plaintiff et al.).

      Duncan J. Forsyth, for the appellee (named defendant).

      Gail E. McTaggart, for the appellee (defendant Roman Catholic Church of St. Teresa, Inc.).
   Opinion

PETERS, J.

A municipal zoning commission has subject matter jurisdiction to hold a hearing to consider an application for a special permit only if it has published a timely prehearing notice that complies with General Statutes § 8-Td. See General Statutes § 8-3c (b); Koepke v. Zoning Board of Appeals, 223 Conn. 171, 174-75, 610 A.2d 1301 (1992). Although a prehearing notice need not predict the precise action to be taken by the commission, the notice must “fairly and sufficiently [apprise] those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing, if such action seems desirable.” Shrobar v. Jensen, 158 Conn. 202, 207, 257 A.2d 806 (1969). The public notice in this case referred to only one of two special permits requested by the applicant and failed to identify the locations for which the unspecified permit was sought. The principal issue in this appeal is whether, as the trial court held, these shortcomings in the text of the published notice were cured by the commission’s inclusion of a statement that the application was on file in the town planning office. Because we disagree with the court’s conclusion, we reverse its judgment in favor of the applicant.

On December 4, 2006, the plaintiffs, Frances Cassidy and Diane Cassidy filed an appeal in the Superior Court pursuant to General Statutes § 8-8 to challenge the decision of the defendant zoning commission of the town of Woodbury (commission) approving the application of the defendant The Roman Catholic Church of St. Teresa, Inc. (church), for a special permit to expand the church and to grant its concurrent request for a special exception for off-site parking. Without directly challenging the special permit for the expansion of the church, the plaintiffs claimed that the commission’s approval of the special exception for parking was improper for two reasons. They maintained that the commission had no jurisdiction to address the church’s request for the special exception because the public notice filed by the commission did not comply with the requirements of § 8-7d and that the commission’s approval of the special exception was not authorized by § 7.4 of the Woodbury zoning regulations, which governs ol'f-site parking. The court rejected both claims. The plaintiffs have appealed.

The underlying facts are undisputed. On April 13, 2006, the church filed an application with the commission for a special permit, pursuant to § 5.1 of the Wood-bury zoning regulations, to expand its existing church building in Woodbury to accommodate a significant growth in the number of its parishioners. Pursuant to § 7.4 of the Woodbury zoning regulations, the proposed expansion plan required the church to provide adequate parking for the additional parishioners who would attend the contemplated larger religious ceremonies. Accordingly, the church concurrently sought a special exception to permit it to use additional off-site parking spaces.

In support of the church’s expansion efforts and its concomitant need for more parking spaces, and to provide the proper basis for a public hearing, the commission sought to comply with § 8-7d by publishing a legal notice in the Republican-American newspaper on June 16 and 23, 2006. The notice informed the public that the commission had scheduled a public hearing on June 27,2006, to consider “Application 06-ZC-6016 submitted by [the church] for an expansion of church in the Main Street Design District and Special Permit for property at 146 Main Street South. (Tax Assessor’s Map 105/Lot 116). At this hearing interested persons may appear to be heard and written communication will be received. The application is on file in the Town Planning Office.”

Several drawings were attached to the application filed in the town planning office. One drawing, denominated 20.01 and entitled “Site Plan,” quoted the full text of § 7.4.11.2 of the Woodbury zoning regulations,* **** which governs eligibility for a special exception for alternate off-site parking and referenced a second document, drawing 20.02, “for parking breakdown.” Drawing 20.02 also quoted the text of § 7.4.11.2 and, more importantly, identified each of the parking areas that the church proposed to use. The off-site parking lots shown in the overall parking plan included private and public parking areas that the church had had permission to use in the past.

The commission held several public hearings with respect to the church’s proposed expansion. The plaintiffs attended these hearings and presented evidence to document their concerns about the church’s plan. Nonetheless, after extensive discussion of the relevant issues, including those relating to parking, on November 14, 2006, the commission approved both the special permit for expansion of the church and the special exception for off-site parking.

In their certified appeal from the judgment of the Superior Court, the plaintiffs have renewed the two claims of law that they pursued at trial. They claim that the commission improperly granted the church’s request for a special exception for parking because (1) the public notice filed by the commission did not comply with § 8-7d and the commission therefore had no jurisdiction to consider the merits of the church’s request for a special exception for off-site parking and (2) the commission misapplied the Woodbury zoning regulations in granting the church’s request. Because we are persuaded by the plaintiffs’ jurisdictional claim and must reverse the judgment of the trial court for that reason, we need not address their second claim.

The focal point of the plaintiffs’ jurisdictional argument is their disagreement with the court’s conclusion that the legal notice published by the commission complied with the requirements of § 8-7d because the notice advised readers that additional relevant information was available on file in the Woodbury planning office. The plaintiffs’ appeal takes issue with this conclusion for two reasons. The plaintiffs maintain, first, that the application filed by the church failed to establish a factual basis for the church’s request for a special exception for off-site parking. More fundamentally, the plaintiffs maintain that the public notice published by the commission did not comply with § 8-7d as a matter of law because the notice did not refer to the church’s off-site parking. We disagree with their first argument but, under the circumstances of this case, agree with the second.

I

The plaintiffs’ first claim asserts that the application filed by the church, by its own terms, did not support the commission’s decision to grant the church a special exception for off-site parking. If that were true, it would necessarily follow that the commission would have had no jurisdiction to grant such a request. We are not persuaded of the premise posited by the plaintiffs.

According to the plaintiffs, the church should either have filed a separate application for this special exception or expressly should have noted this request in the text of the application that it did file. The plaintiffs buttress their argument by noting that the commission’s motion to schedule a public hearing on the church’s application did not refer to the church’s request for a special exception for off-site parking.

The court declined to hold that an applicant for a parking special exception was required to file an application separate and apart from an application on file to expand its premises. The court observed that nothing within the Woodbury zoning regulations supported the plaintiffs’ contention. Although the plaintiffs have renewed their claim on appeal, they have not filled the evidentiary gap that the court identified. We can find no authority in General Statutes § 8-3c (b) or § 7.4.11.2 of the Woodbury zoning regulations that sustains their position.

We are equally unpersuaded by the plaintiffs’ related argument that the application that the church filed did not sufficiently reference the special exception for off-site parking sought by the church. The plaintiffs have cited no authority, and we know of none, that categorically requires such information to be presented in the body of the application rather than in an attachment thereto. Although local zoning regulations may include such a requirement, the plaintiffs have not cited anything to that effect in the Woodbury zoning regulations.

II

The plaintiffs’ principal challenge to the court’s adverse jurisdictional ruling renews their claim that the public notice published by the commission did not satisfy the requirements of § 8-7d. They maintain that the court’s adverse ruling on this issue must be set aside because (1) the court employed an improper standard of review in its consideration of this argument of law and (2) the court improperly concluded that the published notice passed statutory muster because it advised the public that the church’s application “is on file in the Town Planning Office.” We agree with the plaintiffs’ first argument in part and with their second argument in its entirety.

We agree with the plaintiffs that, in the absence of a dispute about the underlying facts, they are entitled to plenary review of their challenge to the legal sufficiency of the prehearing notice. See Koepke v. Zoning Board of Appeals, supra, 223 Conn. 174-75. We recognize that, in its discussion of the plaintiffs’ claim, the court initially misspoke by referring to the substantial evidence standard of review as governing the court’s analysis of both of the plaintiffs’ claims. In its subsequent discussion of the merits of the plaintiffs’ argument on the notice issue, however, the court undertook a plenary examination of the relevant principle of law rather than defer to the commission’s action. Examining this record as a whole, we are persuaded that the court properly undertook a plenary review of the plaintiffs’ claim on the issue of statutory notice.

We turn then to an examination of the plaintiffs’ substantive disagreement with the court’s ruling that the notice filed by the commission complied with § 8-7d. They maintain that the notice was insufficient as a matter of law because, on its face, it described only the church’s special permit application to expand the church without referencing in any way the church’s concurrent request for a special exception for additional off-site parking. According to the plaintiffs, the failure to provide notice of the request for additional parking is particularly telling because the notice did not identify six of the seven sites that the church hoped to use to meet its expanded parking needs.

The church cannot and does not dispute that the published notice, on its face, did not contain the information whose omission the plaintiffs decry. Similarly, the church cannot and does not dispute that, under the applicable Woodbury zoning regulations, it could not prevail in its special request for expansion of its premises without obtaining a special exception for expansion of its off-site parking. On appeal before both this court and the trial court, the church has relied on the equally indisputable fact that the notice expressly alerted its readers that “the application is on file in the Town Planning Office.” Because, as the court observed, this cross-reference advised members of the public “where they can find more information regarding the plan,” the church maintains that the court properly concluded that the notice was sufficient as a matter of law.

Our case law on the role of notice incorporated by reference in land use disputes is inconsistent. The church relies on Shrobar v. Jensen, supra, 158 Conn. 202, in which our Supreme Court rejected the plaintiffs’ allegation that the zoning board had no jurisdiction to consider the defendants’ application for a variance even though the public notice, on its face, referred to a requested permit to improve and to reconstruct a gasoline station while the applicants in fact proposed to replace the existing structure with a new and larger facility. Id., 207. The court held that “notice of a hearing is not required to contain an accurate forecast of the precise action sought which will be taken on the subject matter referred to in the notice. . . . Anyone interested in the precise action sought could have consulted a plot plan showing all the details of the proposed changes which the defendants had filed ... in the office of the zoning board.” (Citations omitted.) Id., 207-208. This court followed Shrobar in R. B. Kent & Son, Inc. v. Planning Commission, 21 Conn. App. 370, 378, 573 A.2d 760 (1990).

The plaintiffs, however, cite Peters v. Environmental Protection Board, 25 Conn. App. 164, 593 A.2d 975 (1991), in which this court rejected the argument that a published notice required by General Statutes § 22a-42a (c) was sufficient if it informed the public about the existence and the file number of a land use application that a member of the public could have inspected at city hall. The applicant in that case sought a permit to remove material in a wetland to facilitate the construction of a nursing home. The pertinent part of the published notice stated: “The Stamford Environmental Protection Board . . . will hold a public hearing to consider information relevant to Application # 8843. Transcon Builders, Inc.” (Internal quotation marks omitted.) Peters v. Environmental Protection Board, supra, 167. Without citing either Shrobar or A. B. Kent & Son, Inc., this court held in Peters that “[t]he statute does not call for cumulative notice, nor does it ask that the general public employ the skills of a research librarian to determine where the subject property is located. The act of giving statutory notice is much too important to be done by way of informal, unofficial or chancy cross-referencing.” Id., 169. Again without citing either Shrobar or R. B. Kent & Son, Inc., this court followed Peters in Lauver v. Planning & Zoning Commission, 60 Conn. App. 504, 508-10, 760 A.2d 513 (2000), in which we held that a geographical identification of an excavation site in a permit application on file did not validate a public notice that misstated the location of the site. This court rejected the argument that the notice was sufficient “because the public knew about the application and could have gone to the commission’s office to look at the map of the subject property.” Id., 511.

A recent case by our Supreme Court expressly endorses this court’s reluctance to permit maps on file to cure deficiencies in statutorily required public notices. The issue in Bridgeport v. Plan & Zoning Commission, 277 Conn. 268, 890 A.2d 540 (2006), was whether an applicant for a zone change had complied with General Statutes § 8-3 (a), which requires that a copy “of such proposed . . . boundary shall be filed in the office of the town . . . clerk . . . for public inspection at least ten days before [the hearing on the proposed zone change] . . . .” The notice stated in relevant part: “ParkAvenue/Easton Turnpike Application of the [defendant] to amend the Zoning Map and Zoning Districts by the establishment of a AAA Zone on land presently zoned R-3 and R-2. This property is approximately 320 acres in size and is known as Fairchild Wheeler Golf Course and is shown as parcel [no.] 1 on Tax Assessor’s Map [no.] 24 and parcel [no.] 2 on the Tax Assessor’s] Map [no.] 11.” (Internal quotation marks omitted.) Bridgeport v. Plan & Zoning Commission, supra, 271. Without citing Shrobar, but quoting at length from Lauver, the court held the notice to be insufficient because its mere reference to a map on file in a place other than that designated in the statute “does not constitute adequate notice of the boundaries of a property affected by a proposed zone change.” Id., 279.

Bridgeport is arguably distinguishable from the case before us because it addresses the notice required for a proposed zone change under § 8-3 (a) rather than the prehearing notice requirements of § 8-7d (a). At the very least, however, the holding in Bridgeport suggests that our Supreme Court no longer assigns dispositive significance to access to official records as a supplement to the information provided by the text of published notices. Indeed, courts in other states have exhibited the same reluctance. See, e.g., Bedford Residents Group v. Bedford, 130 N.H. 632, 636-37, 547 A.2d 225 (1988); Golden Gate Corp. v. Narragansett, 116 R.I. 552, 556-57, 359 A.2d 321 (1976), citing Federal Building & Development Corp. v. Jamestown, 112 R.I. 478, 486, 312 A.2d 586 (1973).

In Bridgeport, the court determined that the notice the defendant was required to file at the town clerk’s office was insufficient because it incorporated by reference maps on file in the tax assessor’s office, thereby requiring interested parties to look beyond the contents of the notice to determine the boundaries of the proposed zoning change. Although Bridgeport did not consider whether the prehearing notice published pursuant to § 8-7d (a) was sufficient, it stands for the general proposition that notice will be insufficient if it requires members of the public to conduct additional research simply to determine whether they will be affected by proposed zoning actions. In both Bridgeport and the present case, individuals with an interest in proposed zoning actions would not have received sufficient notice that their interests were affected without taking an additional step that the court has characterized as improperly requiring the general public to “employ the skills of a research librarian ... by way of informal, unofficial or chancy cross-referencing.” (Internal quotation marks omitted.) Bridgeport v. Plan & Zoning Commission, supra, 277 Conn. 278.

Bridgeport may, however, be reconciled with Shrobar by limiting Shrobar's holding to cases in which the information provided in the public notice, while incomplete, can reasonably be held to have informed the reader about the major contours of the project at issue. In Shrobar, the published notice informed the public that the application contemplated the improvement and reconstruction of a gasoline station at a designated site, while the document on file sought authorization to replace and to enlarge the existing structure at the same site. Thus, in Shrobar, the published notice sufficiently informed the public of the site of the changes so that anyone with an interest in that location would have been prompted to check the application to gauge the scope and character of the proposed changes. In the present case, by contrast, the published notice addressed only the plans for enlarging the church without referencing the church’s request for access to additional parking at sites other than that occupied by the church building. Unlike the neighboring landowners in Shrobar, those potentially impacted by the church’s proposed off-site parking in the present case were not prompted by the published notice to examine the filed application to determine which interests were at stake in the public hearing. Indeed, the notice omitted all of the off-site locations for which the church was seeking the parking special exception.

Because an important function of the notice requirement is to alert those who may be affected by a proposed change in land use; see, e.g., Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 73-74, 912 A.2d 1008 (2007); Bridgeport v. Plan & Zoning Commission, supra, 277 Conn. 276; we agree with the plaintiffs that, in this case, the absence of published notice of the proposed locations of the additional off-site parking contemplated by the church made the notice published by the commission insufficient as a matter of law. Like our Supreme Court in Bridgeport, we are persuaded that such serious deficiencies in a public notice cannot be cured by a reference to a map on file in a public office that potentially affected parties must consult to determine whether they are indeed affected.

It follows from our conclusion that the notice filed by the commission failed to comply with § 8-7d, and the commission, therefore, lacked jurisdiction to address the merits of the church’s requests to expand its building and to increase its use of off-site parking. Accordingly, we need not address the plaintiffs’ further argument that the commission misapplied the Wood-bury zoning regulations in granting the church the permits that it sought.

The judgment is reversed and the case is remanded to the trial court with direction to sustain the plaintiffs’ appeal.

In this opinion the other judges concurred.

       General Statutes § 8-7d (a) provides in relevant part: “Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located . . .

       General Statutes § 8-3c (b) provides in relevant part: “The zoning commission ... of any municipality shall hold a public hearing on an application or request for a special permit or special exception .... Such hearing shall be held in accordance with the provisions of section 8-7d. . . .”

       Although Carol Cassidy was named as a plaintiff in the appeal to the trial court, she did not participate in that appeal and is not a party to this appeal. For convenience, we refer to Frances Cassidy and Diane Cassidy as the plaintiffs.

       At the time the appeal to the trial court commenced, General Statutes (Rev. to 2007) § 8-8 (b) provided in relevant part that “any person aggrieved by any decision of a [zoning commission] . . . may take an appeal to the superior court for the judicial district in which the municipality is located. ...” Subsequently, § 8-8 (b) was amended to clarify that such decisions included those “to approve or deny ... a special permit or special exception pursuant to section 8-3c . . . .” Public Acts 2007, No. 07-60, § 1 (effective October 1, 2007). The plaintiffs aggrievement is not at issue in this case. See General Statutes § 8-8 (a) (1).

       The commission granted the special permit for expansion of the church pursuant to § 6.5 of the Woodbury zoning regulations.

       Section 7.4 of the Woodbuiy zoning regulations provides in relevant part.: “7.4.1 For any permitted use hereafter established, parking spaces and loading spaces shall be provided off the street for each use of land, buildings, and other structures in accordance with the standards in this Section. Required parking spaces shall be provided on the same parcel as the permitted use, unless otherwise permitted in accordance with Section 7.4.11. . . .
      “7.4.7 . . . The number of spaces shall be . . . [for churches] 1 space for each 3 seats. . . .
      “7.4.11.2. The [commission] may grant a Special Exception authorizing off-street parking on a separate lot to meet the minimum number of spaces requirement if the [commission] determines that:
      “A. The spaces are to be located on an adjoining lot with a permanent easement for the specified number of spaces and a permanent easement for access, or
      “B. The use for which the parking is required is located within reasonable distance of a municipal parking facility with sufficient capacity.”

       The original “Overall Parking Plan” (drawing 20.02) attached to the special permit application stated that a total of 267 spaces were required for the church to expand from its current 220 to a projected 604 seats. The church subsequently scaled down the expansion project, which reduced the projected capacity to 596 seats and the number of parking spaces required to 197. Of the 199 available spaces indicated on the revised parking plan, 86 were previously available to the church either on church owned land or on other private lots under existing special exceptions.

       See footnote 6.

       This court granted the plaintiffs' petition for certification to appeal pursuant to General Statutes §§ 8-8 and 8-9.

       The church does not contest the plaintiffs’ assertion that, if they can establish a jurisdictional defect in the published notice, that defect was not waived by their participation in the hearings held by the commission. See Koepke v. Zoning Board of Appeals, supra, 223 Conn. 176-77.

       In their brief, the plaintiffs also allude to a claim that the published notice was defective because personal notice was not sent by certified mail to owners within 250 feet of all of the seven addresses where the off-site parking is proposed. They have made no showing that this claim was pursued in the trial court. Because they have not addressed the merits of this claim other than by stating this issue, we consider it to be inadequately briefed and decline to consider its merits. See State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001).

       See footnote 6.

       Although Peters v. Environmental Protection Board, supra, 25 Conn. App. 168, concerned the notice provisions of § 22a-42a (c), this court noted therein that the notice provisions in General Statutes §§ 8-3 and 22a-42a (c) were similar and that the same standards applied to both statutes.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. SUSAN BIVRELL
    (AC 29860)
    Flynn, C. J., and Alvord and Hennessy, Js.
    Argued June 2
    officially released August 18, 2009

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Linda F. Currie-Zeffiro, deputy assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Susan Bivrell, appeals from the judgment of conviction, rendered after a juiy trial, of assault of an elderly person in the third degree in violation of General Statutes § 53a-61a (a) (1) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to support her conviction on either of the charges, (2) the court improperly diluted the state’s burden of proof by repeatedly telling the jury not to be swayed by sympathy and (3) the court improperly denied the state’s request to charge on the lesser included offense of assault in the third degree in violation of General Statutes § 53a-61. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. As of July 22, 2007, the defendant had been living at the Fairfield home of the victim, Edward Graves, a disabled veteran, who was seventy-one years old at the time of trial, for approximately six months because she was homeless. From time to time, the victim would provide transportation to the defendant on Sundays so that she could attend her regularly scheduled visitation with her children. On July 22, 2007, the defendant wanted the victim to give her a ride, but the victim refused because he had other things to do. As the victim was sitting on his front porch steps, talking with his boarder, Glenn Smith, the defendant paced back and forth on the porch. The defendant was in an agitated state, and the victim was alarmed because he saw this as a “volatile situation.” The defendant, while wearing a ring on her finger, then struck the victim several times, first on the left ear, causing it to bleed, and then several times on the forehead, also causing it to bleed. Smith told the victim that the ring “looked like a weapon.” The victim also injured his shin when it scraped against the porch as he tried to get up from the step. The victim attempted to grab the defendant by her ankles, eventually causing her to fall, but he did not strike her. The victim, frightened, agitated and alarmed, then telephoned the police. When Officer John Tyler arrived on the scene, the victim still was bleeding. The victim continues to suffer from a ringing in his ear, confusion, disorientation and some hearing loss.

The defendant was arrested at the scene, and she was charged with assault of an elderly person in the third degree and breach of the peace in the second degree. After a jury trial, she was convicted on both counts. The court sentenced the defendant to a total effective term of eighteen months imprisonment, execution suspended after twelve months, with one year of probation. This appeal followed.

I

The defendant claims that there was insufficient evidence to sustain her conviction of assault of an elderly person in the third degree and of breach of the peace in the second degree. She argues that the only evidence of the victim’s age was his testimony, that the victim submitted no medical bills and that the victim did not attempt to get away from the defendant during the alleged attack. We conclude that the evidence was sufficient to support the conviction on each count.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007). Furthermore, “we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005).

A

For the defendant properly to be convicted of the crime of assault of an elderly person in the third degree, the jury had to find that she “commit[ed] assault in the third degree under section 53a-61 and . . . the victim of such assault ha[d] attained at least sixty years of age .... General Statutes § 53a-61a. The cross-referenced statute, General Statutes § 53a-61, provides in relevant part that a person is guilty of assault in the third degree when [w]ith intent to cause physical injury to another person, he causes such injury to such person. . . . General Statutes § 53a-61 (a). General Statutes § 53a-3 (11) provides that [a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct .... General Statutes § 53a-3 (3) defines physical injury as impairment of physical condition or pain . . . .” (Internal quotation marks omitted.) State v. Towns, 114 Conn. App. 155, 160, 968 A.2d 975, cert. denied, 293 Conn. 901, 975 A.2d 1278 (2009).

The evidence in this case was overwhelming. The victim testified that he was bom on March 25, 1936, making him seventy-one years old on the date of the attack. Although the defendant argues that this evidence, standing alone and uncorroborated, was insufficient, the jury is the finder of fact and is free to credit or discredit any part of a witness’ testimony. State v. Michael H., 291 Conn. 754, 761 n.7, 970 A.2d 113 (2009) (“the matter of . . . witness credibility [is] exclusively within the purview of the jury”). In this case, on the basis of the jury’s finding of guilt, clearly it credited the victim’s testimony as to his date of birth. Arguments regarding the victim’s credibility generally are not properly the subject of an appeal. See State v. Antonio W., 109 Conn. App. 43, 53, 950 A.2d 580, cert. denied, 289 Conn. 923, 958 A.2d 153 (2008).

In this case, the evidence also showed that the defendant repeatedly struck the victim because he would not provide her transportation. The victim bled from his ear, his forehead and his shin. As a result of his injuries, he suffered from a ringing in his ear, confusion, disorientation and some hearing loss, and he continued to suffer from those aliments at the time of trial. Certainly, the jury could have inferred from the victim’s testimony that he was in pain as a result of the defendant’s beating. Furthermore, the jury also reasonably could have inferred that the defendant intended to injure the victim by inflicting this beating. Members of the jury are permitted to rely on their life experience; common sense and experience in the matters of everyday life are not left at the courthouse door. See State v. Mish, 110 Conn. App. 245, 263, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008); State v. Ramirez, 94 Conn. App. 812, 822, 894 A.2d 1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006). On the basis of the foregoing, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant was guilty of assault of an elderly person in the third degree.

B

For the defendant properly to be convicted of the crime of breach of the peace in the second degree pursuant to § 53a-181 (a) (2), the jury had to find, beyond a reasonable doubt, that the defendant assaulted or struck the victim and that she had the “intent to cause inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof . . . .” The defendant does not analyze the elements of this crime or explain which element or elements she believes lacked sufficient proof, nor does her appellate brief contain any analysis whatsoever on this claim of insufficiency. Nevertheless, our review of the record reveals more than sufficient evidence to support the conviction.

As stated previously, the evidence was overwhelming to support the defendant’s assault conviction. We further conclude that the jury reasonably could have inferred that by assaulting the victim, the defendant further intended to “cause inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof . . . .” General Statutes § 53a-181 (a). Furthermore, both the victim and Smith testified that the victim, in fact, was alarmed by the incident.

II

The defendant next claims that the court improperly diluted the state’s burden of proof by its instructions to the jury that it should not be swayed by sympathy. Specifically, she argues that “[t]he trial court’s jury instruction that reasonable doubt ‘is not hesitation springing from feelings of sympathy or pity for the accused or members of her family,’ in addition to its other antisympathy instructions, reasonably misled the jury and unconstitutionally diluted the state’s burden of proof.” Because this issue was not preserved at trial, the defendant requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. The state argues that the defendant waived her claim by failing to object to the instruction, that the claim merely was evidentiary in nature and not of constitutional magnitude and that the instruction, even if reviewable, was correct in law and not improper. We find no merit to the defendant’s claim.

At the outset, we note that “[i]t is well established that [t]his court is not bound to review claims of error in jury instructions if the party raising the claim neither submitted a written request to charge nor excepted to the charge given by the trial court.” (Internal quotation marks omitted.) State v. Romero, 269 Conn. 481, 487, 849 A.2d 760 (2004). Nonetheless, we consider a defendant’s unpreserved claim of a constitutional violation under the standard set forth in State v. Golding, supra, 213 Conn. 239-40. “In harmony with the objective of Golding, [a] defendant’s claim may be disposed of by focusing on whichever condition is most relevant in the particular circumstances. ... A defendant may prevail under the third prong of Golding on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.” (Citation omitted; internal quotation marks omitted.) State v. Jaynes, 35 Conn. App. 541, 557, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1994).

“Reasonable doubt is a concept easily comprehended but difficult to define. That this is so is manifested by the numerous appeals engendered over the years by the definitions, clarifications and amplifications of the phrase, which various courts have attempted. Each apparently slight deviation from language that previously has been approved seems to spawn a new appeal. In the light of our established standard of review, however, the claim that a phrase taken in isolation dilutes the state’s burden of proof or casts some burden of proof on the defendant usually must fail. Our Supreme Court has pointed out frequently that when a jury instruction is challenged, the charge is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Mussington, 87 Conn. App. 86, 90-91, 864 A.2d 75, cert. denied, 273 Conn. 914, 870 A.2d 1084 (2005).

In its reasonable doubt charge, the court instructed: “What does that mean, beyond a reasonable doubt? Now, the phrase ‘reasonable doubt’ has no technical or unusual meaning. You could arrive at the real meaning of it by emphasizing the word ‘reasonable.’ A reasonable doubt means a doubt based upon reason and common sense. It is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful doubt or a doubt raised by one who questions simply for the sake of argument. It is not hesitation springing from feelings of sympathy or pity for the accused or members of her family or any other persons who might in any way be affected by your verdict. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or in the lack of evidence. It is one for which you can, in your own mind, conscientiously give a reason. Reasonable doubt is the kind of doubt upon which reasonable persons like yourselves, in the more serious and important affairs in your own lives, would hesitate to act upon.

“Now, of course, absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty. The state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty. What the law does require, however, is that after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury, as reasonable men and women, a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and be acquitted.

“Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt, is consistent with guilt, and is inconsistent with any other reasonable conclusion. You must, however, distinguish between a reasonable hypothesis and a possible hypothesis. A mere possible hypothesis of innocence will not suffice. However, if you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find her guilty. On the other hand, if you find that the proven facts do establish the guilt of the accused beyond a reasonable doubt, then the proper verdict would be guilty.” (Emphasis added.)

The defendant characterizes her claim as involving her constitutional right to have her guilt proven beyond a reasonable doubt. Specifically, she argues that “the court’s placing of an antisympathy instruction, clearly directed at the accused, directly in the reasonable doubt instruction, diluted the state’s clear burden to prove the defendant guilty beyond a reasonable doubt and reasonably caused the jury to be misled. . . . The defendant is unaware of any courts which have endorsed the reasonable doubt instruction given in this case.” (Citations omitted.)

In State v. Jones, 82 Conn. App. 81, 841 A.2d 1224, cert. denied, 269 Conn. 912, 852 A.2d 741 (2004), the defendant challenged “that part of the court’s instruction that reasonable doubt ‘is nota hesitation springing from any feelings of sympathy or pity for the accused or any other persons who might be affected by your decision’ [and the court’s] later reiteration] that reasonable doubt ‘would not be a hesitation springing from any feelings of pity or sympathy.’ ” (Emphasis added.) Id., 90. The defendant in Jones had claimed that the sympathy instructions contained in the court’s instructions on reasonable doubt were “ ‘pro state’ . . . .” Id. Reviewing the instructions as a whole, as we must, we concluded that the claim lacked merit because the “instruction in no way encouraged the jury to let feelings of sympathy for any person or persons affect its verdict; the court advised the jury not to be affected by ‘feelings of sympathy or pity for the accused or any other persons who might be affected by your decision.’ ” Id.

In comparing the instruction at issue in the present case with the instruction at issue in Jones, we discern no meaningful difference between the two. Accordingly, this court, already having found such instruction to be proper, we reject the defendant’s claim.

III

The defendant’s final claim on appeal is that the court improperly denied the state’s request to charge on the lesser included offense of assault in the third degree in violation of § 53a-61. The state argues that the defendant was not entitled to a lesser included offense instruction. We agree with the state.

The formulation for determining a defendant’s entitlement to a lesser included offense instruction is set forth in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The four part test enunciated in Whistnant provides that “[a] defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id.

The defendant argues that, although it was the state and not she that filed the request to charge on the lesser included offense of assault in the third degree, she has met the Whistnant test because under the first prong of the test either party may file the request to charge. On the basis of State v. Jacobs, 194 Conn. 119, 128 n.4, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985), we must disagree with the defendant’s argument.

In Jacobs, our Supreme Court revised the first prong of the Whistnant test. See id. The court explained that the defendant in Jacobs had “maintain[ed] that the first prong of Whistnant was satisfied by the state’s written request to charge on the various assault offenses, since Whistnant requires that an appropriate instruction be ‘requested by either the state or the defendant.’ State v. Whistnant, [supra 179 Conn. 588].” State v. Jacobs, supra, 194 Conn. 128 n.4. The court went on to explain that although it would permit “the defendant [in that case] to avail himself of the state’s request to charge . . . [f]or future cases, [it was] revising] the first prong of Whistnant to require that a party claiming error in the failure to charge on a lesser-included offense must himself have filed a written request.” Id. The court explained further that “[t]his revision [was] in accordance with the general principle that a party may rely only upon his own actions in preserving a claim of error, and not upon those of his opponent.” Id.

In this case, the state, and not the defendant, filed a request to charge on the lesser included offense of assault in the third degree. On the basis of the clear statement of the law enunciated in Jacobs, we conclude that the defendant has failed to satisfy the first prong of Whistnant and that she was not entitled to a lesser included offense charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under State v. Golding, supra, 213 Conn. 239-40, “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.”

       The plain error doctrine, “codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [Tjhe plain error doctrine ... is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009).

       As to the defendant’s argument that outside of the reasonable doubt instruction, the court also instructed the jury not to be influenced by sympathy two more times, we agree with the state that this alleged impropriety is not of constitutional magnitude but that it merely is evidentiary in nature because it relates solely to the jury’s role as a fact finder. Accordingly, we decline to review it because it fails under Golding’s second prong.


text:
    SOFIA TSIONIS ET AL. v. RICHARD MARTENS
    (AC 29835)
    McLachlan, Harper and Schaller, Js.

      Argued January 13
    officially released August 18, 2009

      Daniel H. Kryzanski, for the appellants (plaintiffs).

      John A. Pinheiro, with whom, on the brief, was Janice L. Rosenfeld, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiffs, Sofia Tsionis and John Tsionis, appeal from the judgment of the trial court rendered in favor of the defendant, Richard Martens. On appeal, the plaintiffs claim that (1) the court improperly determined that a contract existed between the parties and (2) in the alternative, if a contract did exist, then the court improperly determined that the contract was not terminated under the mortgage contingency clause. We affirm the judgment of the trial court.

The following facts and procedural history were found by the court in its memorandum of decision. The defendant is a licensed home improvement contractor. He was residing in a single-family dwelling in Easton (property) while he refurbished and fixed the property for sale. During the summer of 2004, the defendant listed the property for sale with an asking price of $840,000. At that time, the property had an unfinished detached garage, and no certificate of occupancy had been issued for the garage.

The plaintiffs were in the process of selling their home to Norwalk Hospital. As part of the plaintiffs’ commitment to sell their home, Norwalk Hospital deposited $54,500 into an interest bearing account. The account was under the control of Lawrence Denin, an attorney with the law firm, Lovejoy and Rimer, P.C. As a result of the upcoming sale to Norwalk Hospital, the plaintiffs were interested in purchasing a new home. Shortly after the defendant listed the property for sale, the plaintiffs viewed the property and entered into negotiations with the defendant concerning the purchase of the property. The plaintiffs agreed to purchase the property at the asking price but wanted the recreation area located on the second floor of the garage to be completed prior to closing. The parties signed a binder on August 2, 2004, reflecting a purchase price of $840,000.

On August 4, 2004, the defendant’s attorney sent copies of a proposed contract to the plaintiffs’ attorney. The proposed contract was a “Bar Association Standard Form Residential Real Estate Agreement.” In the proposed contract, reference is made to a deposit in the amount of $54,000 and a purchase price of $840,000. The proposed contract provided in relevant part for no mortgage contingency. Neither party signed the proposed contract. After further negotiations were held concerning the garage space, the defendant agreed to complete the construction requested by the plaintiffs for an additional cost of $20,000. The defendant agreed under the condition that the $20,000 was added to the purchase price.

On August 19, 2004, the plaintiffs’ attorney sent a revised contract (revised contract), with the plaintiffs’ signatures affixed thereto, to the defendant’s attorney. The revised contract consisted of the proposed contract with additions and deletions therein. The additions to the revised contract were typewritten, and the deletions were reflected by lines crossing out text. The revised contract contained substantial changes from the proposed contract. The cover letter accompanying the revised contract noted the following changes: (1) a change in the purchase price to reflect $860,000; (2) an assignment to the defendant’s attorney of the check made out by Norwalk Hospital and held in an interest bearing account for the plaintiffs, in the amount of $54,500; (3) an extension of the closing date from September 19 to 30, 2004; (4) a change of the inspection and notification dates regarding the physical structure of the property; (5) a paragraph, which stated that the agreement was not contingent on a written commitment for a loan, was deleted and replaced with a rider that provided the terms for a mortgage contingency clause; and (6) two paragraphs were deleted and replaced with a rider that provided language as to work to be done on the property prior to closing. The cover letter also stated that a check in the amount of $54,500 was enclosed. As noted previously, however, the revised contract stated that the deposit was being held by Lovejoy and Rimer, P.C., and was assigned to the defendant’s attorney.

The court found that the parties were in dispute concerning the events that occurred on August 26, 2004. The defendant maintained that on that date, he signed the revised contract without making any additional changes. The defendant’s attorney testified that on the same day, he faxed and mailed the revised contract, fully executed, to the plaintiffs’ attorney at 3:10 p.m. The 3:10 p.m. time appears on the cover sheet of the facsimile but not on the revised contract itself. The defendant’s attorney testified that after the revised contract was faxed to the plaintiffs’ attorney, he received a cancellation letter from the plaintiffs’ attorney via facsimile approximately fifteen minutes later. The cancellation letter stated that the plaintiffs decided not to purchase the property. It further stated: “Please consider this letter as formal notice that the deal has fallen through.” The face of the cancellation letter indicated a 3:22 p.m. time. In response to the defendant’s testimony, the plaintiffs’ attorney testified that he faxed the cancellation letter prior to receiving the revised contract with the defendant’s signature affixed thereto.

In its memorandum of decision, the court found that the revised contract was fully executed when the defendant’s attorney faxed the revised contract to the plaintiffs’ attorney on August 26, 2004. It noted that Sofia Tsionis testified that she did not sign the revised contract. The court did not find her testimony credible. Furthermore, the court noted that the plaintiffs testified that the cancellation letter sent by their attorney to the defendant on August 26, 2004, by which they declared their intent not to purchase the property, was received by the defendant before the plaintiffs received the completed revised contract. The court also did not find this testimony credible. In addition, the court noted that the plaintiffs did not dispute the defendant’s response to the cancellation letter, in which the defendant’s counsel stated that he was surprised to receive a cancellation immediately after the facsimile of the revised contract. As a result, the court found that a contract existed when the defendant faxed the revised contract with his signature affixed thereto and that the plaintiffs’ cancellation letter was sent after the defendant’s facsimile of the revised contract to the plaintiffs’ attorney. Therefore, the plaintiffs attempted to cancel the real estate sale after the revised contract was executed.

The following day, August 27, 2004, the defendant’s attorney responded to the cancellation letter. In a letter, he stated: “I was surprised to see that immediately after my faxing to you of the signed contracts yesterday to receive your correspondence stating ‘your clients have decided not to purchase the referenced property.’ ” A copy of that letter was sent, without comment, to the father of one of the plaintiffs.

During that time, the defendant’s attorney was not in possession of any moneys from the deposit referenced in the revised contract. On September 3, 2004, the defendant’s attorney wrote to Lovejoy and Rimer, P.C., the law firm holding the deposit check from Nor-walk Hospital. He requested that the deposit referenced in the revised contract either be sent to him or retained by the firm. He further requested that the deposit not be returned to the plaintiffs.

Although the cancellation letter stated that the plaintiffs were not going to purchase the property, the plaintiffs subsequently proceeded to obtain a letter from a mortgage broker. The letter stated that their mortgage application had been denied. On September 14, 2004, the plaintiffs’ attorney wrote to the defendant’s attorney claiming that no contract existed. Furthermore, the plaintiffs’ attorney seemingly argued that if a contract did exist, the plaintiffs had not satisfied the mortgage contingency clause. He also stated that the contract would not be executed. In November, 2004, after the performance time under the revised contract had passed, the defendant relisted the property for sale. He sold the property in April, 2005, for $810,000.

In early 2005, the plaintiffs filed a four count complaint. The complaint alleged negligent misrepresentation, tortious interference, a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and negligent infliction of emotional distress. In response, the defendant filed a special defense and a counterclaim, both of which alleged breach of contract. After a court trial, on March 31,2008, the court issued a memorandum of decision finding in favor of the defendant on the plaintiffs’ complaint and the defendant’s counterclaim. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs claim that the court improperly determined that a contract existed. Specifically, the plaintiffs assert that there was no meeting of the minds as to the terms of the contract because the terms that were substantially modified in the revised contract did not have initials or signatures assenting to the changes. We are unpersuaded.

As previously stated, the court reviewed the revised contract, which was in writing and had the signatures of all the parties affixed thereto. In its memorandum of decision, the court found that the revised contract was fully executed when the defendant’s attorney faxed the revised contract to the plaintiffs’ attorney on August 26, 2004. It noted that Sofia Tsionis testified that she did not sign the revised contract. The court did not find her testimony credible. Furthermore, the court noted that the plaintiffs testified that the cancellation letter sent by their attorney to the defendant on August 26, 2004, by which they declared their intent not to purchase the property, was received by the defendant before the plaintiffs received the completed revised contract. The court also did not find this testimony credible. In addition, the court noted that the plaintiffs did not dispute the defendant’s response to the cancellation letter, in which the defendant’s counsel stated that he was surprised to receive a cancellation immediately after the facsimile of the revised contract. As a result, the court found that a contract existed when the defendant faxed the revised contract with his signature affixed thereto and that the plaintiffs’ cancellation letter was sent after the defendant’s facsimile of the revised contract to the plaintiffs’ attorney. Therefore, the plaintiffs attempted to cancel the real estate sale after the revised contract was executed.

As a preliminary matter, we begin by setting forth our standard of review. “The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ... To the extent that the trial court has made findings of fact, 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.” (Citation omitted; 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).

In the present case, the court reviewed the timing of the correspondence between the plaintiffs and the defendant to determine whether a contract existed. It found that before the plaintiffs attempted to cancel the deal, the defendant had already executed the revised contract. The plaintiffs do not dispute the court’s findings. On appeal, the plaintiffs claim that there was no meeting of the minds as to the written terms of the revised contract. Specifically, the plaintiffs argue that because there was no expressed assent, such as an initial or signature, to the modifications made in the revised contract, the parties did not have a meeting of the minds.

“In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make. . . . [A]n agreement must be definite and certain as to its terms and requirements.” (Internal quotation marks omitted.)Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn. App. 294, 302, 912 A.2d 1117 (2007). Furthermore, “[w]hether the parties to a contract intended to modify the contract is a question of fact. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witness.” (Citation omitted; internal quotation marks omitted.) Torgerson v. Kenny, 97 Conn. App. 609, 616, 905 A.2d 715 (2006), cert. denied, 281 Conn. 913, 916 A.2d 54 (2007). “For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense. . . . Modification of a contract may be inferred from the attendant circumstances and conduct of the parties.” (Internal quotation marks omitted.) Id.

In the present case, the court found that an enforceable contract existed. Our review of the entire record reveals that although the plaintiffs raised this argument before the court, the court made no express findings as to whether the parties had a meeting of the minds. Nonetheless, for the court to find that a contract existed, it had to find that a meeting of the minds existed. See Electrical Wholesalers, Inc. v. M.J.B. Corp., supra, 99 Conn. App. 302. In light of the fact that a contract existed in written form that was signed by both parties, the plaintiffs’ argument that a meeting of the minds did not occur is contrary to the evidence provided to the court.

Furthermore, the plaintiffs have provided no authority that stands for the proposition that a signature or initial of both parties is required on contract modifications for the contract to be enforceable. On the basis of the record before us, including the findings made by the court, the court properly found that a contract existed.

II

The plaintiffs next claim that if a contract existed, the court improperly found that the contract was not terminated under the mortgage contingency clause. Specifically, the plaintiffs assert that they provided notice to the defendant via a letter from their mortgage broker stating that the plaintiffs’ mortgage application had been denied. As a result, the plaintiffs argue, the mortgage contingency clause terminated the existence of a contract. We are unable to review this claim.

The following additional facts are necessary to our resolution of this issue. The contract contained a mortgage contingency clause, which read in relevant part: “This [ajgreement is contingent upon the [p]urchaser obtaining a commitment for a loan to be secured by a first mortgage on the premises . . . subject to such terms, conditions and charges as are imposed by any lending institution where the [pjurchaser makes application. The purchaser agrees to make immediate application for such loan and pursue such application with diligence. In the event such commitment is not obtained by the [purchaser on or before September 15, 2004, the [p]urchaser must cause notice of [purchaser's inability to obtain such commitment to be given to the [sjeller

In its memorandum of decision, the court found that after the plaintiffs told the defendant that they were not going through with the purchase of the defendant’s property, the plaintiffs proceeded to obtain a letter from their mortgage broker that stated that the mortgage application had been denied. The court noted that the plaintiffs did not produce a denial letter from a lending institution, nor did they present paperwork indicating that a mortgage application was received or processed on their behalf. The court did not make any further reference to the mortgage contingency clause in the remainder of the opinion. Essentially, the only finding made by the court is its explicit reference to the lack of evidence produced. The only evidence produced by the plaintiffs in relation to the mortgage contingency clause was a letter from their mortgage broker stating that the mortgage application had been denied. The plaintiffs claim that the court improperly found that the letter obtained from their mortgage broker did not terminate the contract. The plaintiffs assert that the mortgage contingency clause did not require them to file an application with a lending institution, as opposed to a mortgage broker. They also assert that the mortgage contingency clause only required them to file an application and to pursue that application with diligence. Other than a reference to the plaintiffs’ failure to produce certain documents, however, the court never addressed the mortgage contingency clause in its opinion.

We carefully have reviewed the record in this case, and it does not contain a transcript of the March 31, 2008 trial. We are left with uncertainty as to whether this claim was sufficiently raised before the court. In addition, in the memorandum of decision, the court never addressed whether the letter from the mortgage broker constituted notice and whether such notice terminated the contract under the mortgage contingency clause. If the plaintiffs wanted the court to address this issue, they could have sought an articulation pursuant to Practice Book § 66-5. “[I]t is the appellant’s responsibility to provide an adequate record for review.” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 74, 699 A.2d 101 (1997). Without an articulation, we would be forced to engage in speculation concerning findings that the court never made and consider a claim that the court never addressed in its memorandum of decision. Further, as noted previously, without a transcript of the trial, we are unable to determine whether the issue was considered by the court, and, if the issue was raised, to what extent the court considered or discussed the issue during trial. See Misata v. Con-Way Transportation Services, Inc., 106 Conn. App. 736, 744-45, 943 A.2d 537 (2008). Accordingly, on the basis of this inadequate record, we cannot conclude that the court improperly determined an issue that was not fully addressed in its memorandum of decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also claim on appeal that the court improperly found in favor of the defendant on his counterclaim and awarded him damages. Those two claims rest solely on the plaintiffs’ argument that either there was no contract or, if there was a contract, that the contract was terminated under the mortgage contingency clause. Because we affirm the judgment of the trial court, we need not consider these two claims any further.

       The court found that the cancellation letter “constituted a breach of contract by [the plaintiffs], and that the defendant . . . may recover damages flowing from that breach.” The plaintiffs raise no claim on appeal concerning the court’s holding that the cancellation letter constituted a breach of contract.

       On appeal, the plaintiffs do not contest the court’s ruling on their complaint.

       We note that “[p]arties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated.” (Internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, supra, 98 Conn. App. 239.