author: PETERS, J.

text:
    ANTHONY R. MARTIN v. JAMES BRADY ET AL.
    (AC 20808)
    Lavery, C. J., and Mihalakos and Peters, Js.
    Argued April 5
    officially released July 24, 2001

      Norman A. Pattis, with whom were Dawne West-brook and, on the brief, John R. Williams, for the appellant (plaintiff).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

PETERS, J.

The principal issue in this case is whether the doctrine of sovereign immunity bars the plaintiff, Anthony R. Martin, from pursuing state constitutional claims of misconduct by the defendant police officers, who searched his property and person and then seized him personally. Although sovereign immunity may be bypassed by filing, with the claims commissioner, a claim for permission to bring suit, the plaintiff has not pursued that alternative. The trial court held that, because of sovereign immunity and the plaintiffs failure to exhaust his administrative remedies, it lacked subject matter jurisdiction to proceed. Relying on Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998), the plaintiff argues to the contrary. He maintains that a claim for relief that invokes a provision of our state constitution falls within one of the exemptions from filing suit with the claims commissioner. The plaintiff relies on General Statutes § 4-142 (2), which provides, in relevant part, that the claims commissioner has no authority to hear “claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts . . . .” The plaintiff contends that § 4-142 (2) is applicable because, in his view, a suit for relief under article first, § 7, of the constitution of Connecticut is a suit that “otherwise is authorized.” We are not persuaded and therefore affirm the judgment of the trial court.

The record establishes the relevant procedural history. The plaintiff brought suit against the defendants individually, alleging that they had deprived him of his due process rights and his rights to be free from an unreasonable search and seizure pursuant to article first, §§ 7 and 9, of the constitution of Connecticut. In response, the defendants filed a motion to dismiss the plaintiffs claims for lack of subject matter jurisdiction. The motion relied both on sovereign immunity and on the plaintiffs failure to exhaust an alternate administrative remedy. General Statutes § 4-141 et seq. Distinguishing Binetle, the case upon which the plaintiff relies, the trial court granted the motion to dismiss and r endered judgment accordingly.

The plaintiff has appealed from the judgment dismissing his complaint. Because the judgment was based entirely on the legal inferences to be drawn from the complaint, our review is plenary. SLI International Corp. v. Crystal, 236 Conn. 156, 163-64, 671 A.2d 813 (1996). Because the judgment was rendered pretrial, we consider the allegations in the plaintiffs complaint in the light most favorable to sustaining the viability of the complaint. Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981).

The plaintiffs argument for reversal has two major parts. As a matter of pleading, he contends that the defendants were not entitled to invoke the doctrine of sovereign immunity because he had sued them in their individual capacities for egregious misconduct. As a matter of substantive law, he maintains that his complaint did not fall within the purview of the claims commissioner because, under Binette v. Sabo, supra, 244 Conn. 23, he was pursing an independent constitutional claim that § 4-142 (2) did not purport to preclude. We disagree with both parts of the plaintiffs argument.

I

PROCEDURAL ARGUMENTS

The first issue that we must resolve is whether, procedurally, the defendants in this case are barred from access to a defense of sovereign immunity as a result of the pleadings filed by the plaintiff. The plaintiff has divided his argument on this issue into two subparts. He maintains that the defense is inapplicable because he sued each of the defendants (1) in their individual capacity and (2) for misconduct that was “wanton, reckless or malicious.” General Statutes § 4-165. We disagree.

A

The fact that the plaintiff has framed his complaint so as to seek relief from the defendants in their individual capacities does not preclude their rights to invoke the doctrine of sovereign immunity. The plaintiff does not challenge the applicable legal principles. Obviously, the state can act only through its officers and agents. Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). Such officers and agents are protected from legal proceedings by sovereign immunity, unless they are alleged to have acted in excess of their statutory authority or pursuant to an unconstitutional statute. Shay v. Rossi, 253 Conn. 134, 169, 749 A.2d 1147 (2000); Antinerella v. Rioux, 229 Conn. 479, 487-88, 642 A.2d 699 (1994). As did the couit, we have examined the plaintiffs complaint to determine whether it contains allegations that might preclude the defendants from invoking sovereign immunity as a defense.

The complaint charges the defendants with actionable misconduct in that one or another (1) forced his way into the plaintiffs Middletown home without a “search warrant” and, after he submitted to an arrest, struck him and threw him to the floor, (2) searched his home on the basis of a search warrant that was issued in response to an affidavit containing false claims and (3) in the process of that search, smashed windows and broke down doors.

Significantly, the complaint contains no allegations that the defendants were acting in any capacity other than as state officers enforcing an extradition arrest warrant. There is no allegation that the defendants’ alleged misconduct exceeded their statutory authority or that an applicable statute was unconstitutional. As the court properly noted, in the absence of such an allegation, the form in which the plaintiff cited the defendants does not matter. Shay v. Rossi, supra, 253 Conn. 174-75.

B

The plaintiff argues, alternatively, that the defendants cannot rely on the defense of sovereign immunity because § 4-165 disallows statutory immunity for actions alleged to have been “wanton, reckless or malicious.” This argument confuses sovereign immunity with statutory immunity. If the defendants have established their defense of sovereign immunity, they need not demonstrate their compliance with § 4-165. Shay v. Rossi, supra, 253 Conn. 164.

II

SUBSTANTIVE ARGUMENTS UNDER BINETTE v. SABO

Whatever might be the applicability of the doctrine of sovereign immunity in other circumstances, the plaintiff argues that Binette v. Sabo, supra, 244 Conn. 23, governs this case so as to supersede sovereign immunity. First, he claims that, as a matter of law, Binette supports his position doctrinally. Second, if that claim is upheld, he argues that Binette supports his position factually. We disagree with both of the plaintiffs claims.

A

In Binette, our Supreme Court recognized a private constitutional tort cause of action for money damages under article first, § 7, of the constitution of Connecticut. The plaintiff claims that, pursuant to § 4-142 (2), Binette authorizes a suit “by law” against these individual defendants. If that claim is accepted, the plaintiff maintains that he rightfully bypassed the claims commissioner in bringing this action to the Superior Court. We disagree.

The defendants argue, and we agree, that Binette is distinguishable from the present case doctrinally. In Binette, our Supreme Court had no occasion to address the doctrine of sovereign immunity, as that case addressed the misconduct of municipal, not state, police officers.

Binette did not purport to announce an overarching universal principle. Binette v. Sabo, supra, 244 Conn. 47. It cautioned that the availability of access to a separate tort action under Binette should be analyzed on a case-by-case basis only. Id., 48; see also ATC Partnership v. Windham, 251 Conn. 597, 613, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214, 120 S. Ct. 2217, 147 L. Ed. 2d 249 (2000). Bearing these cautionary words in mind, we are persuaded that Binette does not permit a tort action in this case. Our Supreme Court, in Shay v. Rossi, supra, 253 Conn. 172, has reminded us that the doctrine of sovereign immunity should not be overcome too easily. It is not our law that every tort action premised on alleged misconduct by a state officer automatically deprives the officer of access to the defense of sovereign immunity. Id. Under Shay, the appropriate test in this case is whether the defendants’ activities fall outside of the normal scope of the defendants’ authority to enforce an arrest warrant. Although we recognize the force of constitutional mandates, we are disinclined to enforce such mandates at the expense of sovereign immunity unless the plaintiff clearly has alleged facts that, if proven, would distinguish his claim for relief from standard claims of police misconduct.

B

Whatever the precise doctrinal impact oí Binette may be, case-by-case adjudication is inherently fact bound. We turn, therefore, to the plaintiffs argument that, if Binette applies doctrinally, the facts alleged in his complaint are sufficiently egregious to allow him to pursue a separate tort action against the defendants. We disagree with his argument.

In Binette, the complaint was sustained because of its specific allegations of an unreasonable, egregious search and seizure. The plaintiffs therein alleged that the defendants, Mahlon C. Sabo and Anthony A. Languell, had entered the home of the plaintiffs, Joseph A. Binette and Janet Binette, without permission or a warrant. “According to the complaint, Sabo threatened Janet Binette with arrest and imprisonment and pushed her, causing her to fall against a wall and over a table. The complaint also allege [d] that, outside the plaintiffs’ home, Sabo repeatedly slammed Joseph Binette’s head against a car and, further, that Languell, in the course of arresting Joseph Binette, struck him on the head and kicked him while he was lying on the ground experiencing an epileptic seizure.” Binette v. Sabo, supra, 244 Conn. 26.

In the present case, the complaint alleges three separate acts of police misconduct. The complaint refers to an allegedly improper intrusion, without a search warrant, into the plaintiffs home and an allegedly improper second intrusion with a search warrant based on a false affidavit. The plaintiff alleges that he not only incurred property damage, but also sustained physical harm when he was struck and thrown to the floor.

With respect to the allegedly false affidavit, the plaintiff has not alleged sufficiently egregious misconduct because his complaint fails to comply with the test articulated in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). That case requires a substantial preliminary showing that a false statement was made knowingly and intentionally, or with reckless disregard for the truth. Id., 155-56. The plaintiffs complaint makes no such claim directly, and it contains none of the subsidiary allegations that would be necessary for an effective preliminary showing. State v. Rodriguez, 223 Conn. 127, 143-44, 613 A.2d 211 (1992). Further, the plaintiff did not request a hearing that would have enabled him to pursue this claim.

Similarly, there was nothing egregious about the remainder of the alleged misconduct that was asserted in the complaint. The plaintiff has not challenged the validity of the extradition “arrest warrant” that authorized the first intrusion. Apart from the legality of the entry, the plaintiff complains of having been pushed to the ground on one occasion and of having windows and doors smashed on another occasion. We are not persuaded that these allegations, if true, rise to the level of egregious misconduct. They are a far remove from the allegations of misconduct that underlay Binette.

As the trial court properly held, Binette is distinguishable from the present case, and the plaintiffs absolute reliance on that case is unfounded. It follows that the plaintiffs objection to the defense of sovereign immunity cannot be sustained.

In sum, we affirm the judgment dismissing the plaintiffs action. The plaintiff has not sustained his burden of alleging facts that would demonstrate that the defendants’ behavior in the alleged incidents was sufficiently outside the normal scope of their statutory authority as police officials so as to avoid the doctrine of sovereign immunity. Furthermore, we conclude that the mere citation of Binette v. Sabo, supra, 244 Conn. 23, is not an open sesame. In the absence of persuasive factual allegations, calling misconduct egregious does not make it so. Finally, applicability of the defense of sovereign immunity obviates the need to explore the applicability of a defense of statutory immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The legislature has established a system for the determination of claims against the state. General Statutes §§ 4-141 through 4-165b. A significant part of that system is the appointment of a claims commissioner; General Statutes §§ 4-142 and 4-142a; who is vested with sole authority to authorize suit against the state. General Statutes § 4-160 (a).” Cooper v. Delta Chi Housing Corp. of Connecticut, 41 Conn. App. 61, 64, 674 A.2d 858 (1996).

       General Statutes § 4-142 provides: “There shall be a Claims Commissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes.”

       The defendants are Troopers James Brady, Andre Joyner and Thomas Inglis, and Detective Jeff Correia, all of the Connecticut state police.

       The plaintiff does not challenge the well established principle that “the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994).

       Moreover, implicit in the plaintiffs argument is that pursuing his claims before the commissioner will not provide an adequate remedy. In the present case, even when the plaintiff alleges a constitutional violation, we see no legal barrier to pursuing this administrative remedy and therefore will not assume that recourse through this procedure will necessarily be futile or inadequate. Barde v. Board of Trustees, 207 Conn. 59, 66, 539 A.2d 1000 (1988).

       At oral argument in this court, the plaintiff conceded a lack of candor in failing fully to disclose that the defendants’ actions arose out of extradition proceedings, including an “arrest warrant” that resulted from the plaintiffs conviction of criminal mischief in Florida.

       The plaintiff does not claim that he should be excepted under any other subsection of § 4-142.

       Although we conclude that the defendants’ alleged conduct was not sufficiently egregious so as to allow the plaintiff to sidestep sovereign immunity, we certainly do not condone such behavior.

       In Binette, the allegations in the complaint were that of an egregiously unreasonable search and seizure. ATC Partnership v. Windham, supra, 251 Conn. 613.

       Sabo was the Torrington police chief, and Languell was a Torrington police officer.

       The complaint alleges the following false statements contained in the affidavit:
      “1) [Connecticut State Police Troopers James Brady/Andre Joyner] claimed that under Florida law, contempt was a felony.

        “2) Brady/Joyner claimed that Martin ‘failed to reappear when scheduled to do so.’

      “3) Brady/Joyner claimed defendant [Trooper Thomas] Inglis claimed that he spoke with Martin on one occasion and Martin refused to come to the door. Martin never refused to come to any door.
      “4) Brady/Joyner claimed that Martin was ‘hiding behind a couch,’ although in fact Martin made no attempt to conceal himself or to frustrate the defendants after they had broken into his house without a warrant on October 6, 1998.”

       Rather disingenuously, the plaintiff challenges the fact that the defendants did not have a “search warrant” for the first intrusion.

       The plaintiff provides no other support for his argument that § 4-142 (2) applies to this case.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    DAVID ABRAMCZYK v. STEPHANIE ABBEY
    (AC 20246)
    Schaller, Flynn and Hennessy, Js.

      Argued February 22
    officially released July 24, 2001

      Thomas P. Willcutts, with whom, on the brief, was Douglas A. Cho, for the appellant (plaintiff).

      Deborah L. Bradley, with whom, on the brief, was Frederick L. Monahan, Jr., for the appellee (defendant).
   Opinion

HENNESSY, J.

In this premises liability action, the plaintiff, David Abramczyk, appeals from the judgment rendered following the granting of a motion for a directed verdict in favor of the defendant, Stephanie Abbey. The plaintiff claims that the trial court improperly (1) ruled that the defendant owed no duty of care with respect to a defect on land within the defendant’s possession and control, and (2) directed a verdict for the defendant. We affirm the judgment of the trial court.

The court found the following facts. From the time the defendant purchased the property in 1988 until December 1,1995, when the plaintiff was injured when he tripped over a raised cast-iron water pipe, the water pipe was located on the defendant’s premises, but within a right-of-way owned by the city of Bristol (city). The city had installed the pipe in 1937. The defendant mowed the grass and removed weeds from the area around the pipe but did not engage in any affirmative act to change the condition of the pipe or to conceal the pipe in any way. The court further found that the plaintiff had seen the pipe many times prior to the time of his fall because he frequently had visited his friend, John McKay, who lived in one of the apartments on the defendant’s property. Personnel from the Bristol water department (department) were on the defendant’s property at least three times per year. At no time, however, did either the plaintiff, McKay, department personnel or the defendant notify the department that the pipe was a hazard.

I

The plaintiff first claims that the court improperly held that the defendant owed no duty of care with respect to the water pipe because it was within the right-of-way for a road owned by the city. Specifically, the plaintiff relies on cases that hold that a landowner, or the one who possesses or controls an unimproved right-of-way on which there is a defect, is liable for injuries resulting from such a defect. The defendant argues that because the pipe is located within the municipal street line, the city bears the duty of reasonable care to keep the area reasonably safe for travelers.

“The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. ” (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). Because the court’s determination of whether the defendant owed a duty of care to the plaintiff is a question of law, our standard of review is plenary. Lodge v. Arett Sales Corp., 246 Conn. 563, 571, 717 A.2d 215 (1998). Our Supreme Court has stated that “the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.” (Citations omitted; internal quotation marks omitted.) Mendillo v. Board of Education, supra, 483-84.

The two prongs of the test to establish the existence of a duty are not mutually exclusive of each other. To find that the defendant owed a duty of care to the plaintiff to warn of or to repair the water pipe, the court must have found that the defendant knew or should have known that the exposed pipe constituted a tripping hazard and that, as a matter of public policy, the defendant was required to warn of or to remove the tripping hazard caused by the water pipe.

The court agreed with the plaintiff that a landowner is generally liable for defects on land within its possession and control. The court was not convinced, however, that by mowing the grass around the pipe, the defendant exercised possession and control of the pipe. To the contrary, the court found that not only was there no evidence presented that the defendant had control over the pipe, but also that the subsequent repair of the pipe constituted evidence of the city’s control. The court thus concluded that, as a matter of law, the defendant had no liability for the alleged hazardous condition, which the city created and controlled. We agree.

The evidence proved that the pipe is located immediately adjacent to a walkway on the defendant’s property over which the city has a right-of-way. “When our residential streets are laid out, it is common practice to provide space for purposes other than those of ordinary travel. These areas are still part of the street, and the municipality is bound to use reasonable care to keep them in a reasonably safe condition for travelers . . . .” Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961). We agree with the court that the cases relating to public sidewalks are sufficiently analogous to this case, which deals with a public right-of-way located on the defendant’s property, as to be controlling on the issue of liability. An abutting landowner is ordinarily under no duty to keep the sidewalk in front of his property in a reasonably safe condition for public travel. Tenney v. Pleasant Realty Corp., 136 Conn. 325, 329, 70 A.2d 138 (1949). An abutting landowner can be held hable, however, in negligence or public nuisance for injuries resulting from the unsafe condition of a public sidewalk caused by the landowner’s positive acts. See Gambardella v. Kaoud, 38 Conn App. 355, 359, 660 A.2d 877 (1995).

Although the court found that the defendant mowed the lawn around the pipe, there was no evidence that the defendant installed, maintained or engaged in any positive acts involving the pipe other than to trim the grassy area around it. Additionally, there was no evidence presented that showed that the defendant displayed possession or control of the pipe. The plaintiff failed to offer any evidence to prove that the defendant’s positive acts caused the water pipe to be a tripping hazard. Thus, the defendant is not liable. See id., 359-60.

II

The plaintiffs second claim is that the court improperly directed the verdict in favor of the defendant. “Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail. ... In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom.” (Citations omitted.) Harewood v. Carter, 63 Conn. App. 199, 202-203, 772 A.2d 764 (2001). Viewing the facts presented in the light most favorable to the plaintiff, we conclude that, as a matter of law, the court could not reasonably have concluded that the defendant owed a duty to the plaintiff under the circumstances of this case, and, therefore, the court properly rendered judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court stated in its decision: “After reviewing the complaint and hearing opening statements and some evidence, it appeared to the court that the plaintiff would be unable to establish the liability of the defendant as a matter of law. Thereafter, the plaintiff completed the presentation of his case using witness testimony, offers of proof and facts to which the defendant stipulated. In addition, the parties agreed that the jury could be excused and that if the court determined to grant the motion for directed verdict, then it could enter judgment for the defendant as if the jury had been directed to enter a verdict in favor of the defendant.”

       After oral argument in this court, the plaintiff brought to our attention the case of Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001), claiming that it was relevant to the issues in this matter. In Ferreira, the plaintiff brought an action against the town and its public, officials, among others, for failing to maintain properly a grassy highway shoulder used as a bus stop. The complaint was dismissed because the evidence demonstrated that the plaintiff had failed to comply with the statutory notice requirements of General Statutes § 13a-149. In the present case, the plaintiff brought the action solely against the defendant property owner for failure to remedy a dangerous tripping hazard. The negligence complained of did not implicate the town. Additionally, the plaintiff does not rely on § 13a-149, the defective highway statute. Therefore, Ferreira is inapposite to the present case.


text:
    LOUISE GRABOWSKI ET AL. v. CITY OF BRISTOL ET AL.
    (AC 21206)
    Foti, Flynn and Peters, Js.
    Argued May 9
    officially released July 24, 2001

      Frank B. Cochran, with whom, on the brief, was Peter B. Cooper, for the appellants (plaintiffs).

      Ann T. Baldwin, assistant corporation counsel, for the appellees (named defendant et al.).

      James Ziogas, Jr., for the appellee (defendant Forestville Little League, Inc.).

      Mark Ziogas, for the appellee (defendant Fleet Bank, N.A.).
   Opinion

PETERS, J.

This case arises out of a testamentary charitable trust that conveyed a designated parcel of property to the city of Bristol. In compliance with the will, the city has used the property for park or recreational purposes. The question before us is whether the city violated a clause in the will precluding use of the conveyed property for recreational purposes if the conveyed property was contiguous to other city owned property that was being used for recreational purposes. The trial court held that this provision was satisfied by extensive fencing of the conveyed property. We agree.

The plaintiffs, Louise Grabowski and Mary Mikulak, brought this action against the defendant city of Bristol and others to obtain injunctive relief from the defendants. In the plaintiffs’ amended complaint, they alleged, inter alia, that the defendants had failed to comply with certain provisions of Constant Y. Peck’s will (Peck will) that related to the establishment of the charitable Constant Y. Peck trust and of the recreational facility now known as Peck Park. Specifically, the plaintiffs maintained that the city’s use of adjacent property for three Little League baseball fields made it impermissible for the city to permit Little League baseball in Peck Park.

STANDING

Before the merits of the plaintiffs’ amended complaint could be reached, the court, Holzberg, J., denied a motion to dismiss filed by the defendant Fleet Bank, N.A. The motion alleged that the court had no subject matter jurisdiction over this case because the plaintiffs did not have standing to pursue their claims. See In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001); Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 21, 31, 755 A.2d 860 (2000); Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552-53, 698 A.2d 245 (1997).

Although the issue has not been raised again in the defendants’ appellate briefs, we must undertake an independent review of the question of standing. Appellate courts, as well as trial courts, must examine an issue implicating subject matter jurisdiction. The question of standing may be raised by any of the parties, or by the court, sua sponte, at any time during judicial proceedings. In re Michelle G., 52 Conn. App. 187, 190, 727 A.2d 226 (1999), and cases therein cited.

In denying the motion to dismiss filed by Fleet Bank, N.A., the court ruled that the plaintiffs had standing under the circumstances of this case. Ordinarily, it is the attorney general who has the responsibility to monitor charitable trusts. In his absence, the court determined that the allegations of the plaintiffs’ complaint demonstrated that the plaintiffs had a special interest in Peck Park because, unlike members of the general public, their property adjoined Peck Park. We agree.

THE MERITS

After an evidentiary hearing, the court, Hon. Julius J. Kremski, judge trial referee, decided the case on its merits and found for all the defendants on all the counts of the amended complaint. With respect to the claim that the defendants’ use of Peck Park violated the Peck will, the court recognized that the plaintiffs had suffered some adverse consequences as a result of the Little League baseball games. It held, nonetheless, that the plaintiffs could not prevail because, as a matter of law, the defendants had complied with the terms of the Peck will. The court had no occasion to, and did not, address any independent basis for the plaintiffs’ alleged right to equitable relief. The plaintiffs have appealed from the adverse judgment of the court.

The proper construction of the Peck will is the only question before us in this appeal. The plaintiffs’ principal claim is that the court improperly construed the noncontiguity clause in the Peck will. Our standard of review of such a question is well established. “The construction of a will presents a question of law to be determined in light of facts which are found by the trial court or are undisputed or indisputable.” (Internal quotation marks omitted.) Canaan National Bank v. Peters, 217 Conn. 330, 335, 586 A.2d 562 (1991). The plaintiffs do not dispute the facts found by the court. We, therefore, undertake plenary review of the plaintiffs’ legal claim that Peck Park’s use for Little League baseball games is forbidden by the provision in the Peck will that Peck funded property should “not be contiguous” with other city property that is used “for recreational or park purpose[s].”

The court’s memorandum of decision and the record provide the factual foundation for our analysis. The court made only two findings that are relevant to the plaintiffs’ claims regarding the construction of the Peck will. One is that each of the plaintiffs owns a separate residence that adjoins Peck Park. The other is that Peck Park adjoins three city owned baseball fields that are separated from Peck Park property only by a chain-link fence.

In deciding that the plaintiffs could not prevail, the court relied principally on a 1977 decision by the Bristol Probate Court. Pursuant to General Statutes § 51-164s, in the absence of claims of fraud, the Probate Court decision was binding on the court. See Lundborg v. Lawler, 63 Conn. App. 451, 776 A.2d 519 (2001).

In 1977, the Bristol Probate Court approved the establishment of an endowment for a new park in memory of two members of the Peck family. Although the Probate Court made a number of rulings with respect to the management of Peck Park’s endowment, only one ruling is relevant at this juncture.

The Probate Court specifically addressed the noncontiguity clause in article IV (B) (4) of the Peck will. It concluded that this clause would be satisfied if the city, at its own expense, erected a chain-link fence around the contemplated park and placed an identifying marker at the entrance to the park. The Probate Court further concluded that, if these measures were taken, the defendant Forestville Little League, Inc., had authority, under the Peck will, to install a baseball field in Peck Park as long as the city retained control over the property. No appeal was taken from the judgment of the Probate Court.

Although the defendant city duly established Peck Park, fenced in Peck Park and built the contemplated marker, the defendant Forestville Little League, Inc., did not proceed immediately. It was not until 1992 that the defendant board of park commissioners approved the construction of a Little League baseball field in Peck Park. The defendant Forestville Little League, Inc., together with the city’s park department, then installed the Little League baseball field on Peck Park property.

In their appeal from the court’s decision construing the Peck will, the plaintiffs argue, in effect, that the 1977 Probate Court decision is no longer binding because of a change in circumstances. They claim that the court should have taken a fresh look, under the present circumstances, at whether Forestville’s installation of the Little League baseball field in Peck Park violated the noncontiguity provision in the Peck will. The court undertook such an inquiry, but it found that the 1977 Probate Court decision was still applicable.

On appeal, as they did at trial, the plaintiffs focus on the fact that the city property abutting Peck Park was used, in 1977, for a school yard adjacent to a city school, while, by 1992, it was used for three Little League baseball fields. Like the trial court, we are not persuaded that the city’s intensification of its recreational facilities in the adjoining city property has any bearing on a determination of contiguity or noncontiguity under the Peck will. Also like the court, we are not persuaded that a change that creates a slightly greater risk of annexation violates the will’s prohibition against possible absorption of Peck Park “into some larger recreational area of the city.” The court noted that this possibility was attenuated by the fact that “the defendant city is aware of these restrictions.” Further, the court noted that it was the Probate Court, and not the city, that had the authority to oversee disbursal of endowment funds for Peck Park. We agree.

We conclude, for the reasons stated, that the court properly construed the Peck will and properly determined that the defendants have complied with the will. In the absence of a showing that the defendants violated the Peck will, the trial court, and therefore this court, had no occasion to decide whether the plaintiffs were entitled to injunctive relief.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants who participated in the trial of this case were the board of park commissioners of the city of Bristol, Attorney General Richard Blumenthal, Forestville Little League, Inc., Fleet Bank, N.A., and the superintendent of parks of the city of Bristol. The plaintiffs, however, withdrew their complaint against the superintendent on March 10, 1998.
      The attorney general was made a party pursuant to General Statutes § 3-125, which defines the duties of the attorney general. The attorney general elected not to participate in this action on the ground that “this is chiefly a local dispute between the city of Bristol and some of its residents, which does not significantly affect the public interest in the protection of gifts, bequests and devises intended for charitable or public purposes . . . Because the plaintiffs did not withdraw their complaint as to the attorney general, however, the attorney general remained a party.

       At trial, the plaintiffs argued, in addition to their will construction claim, that the defendants had created a nuisance, that the defendants improperly had allowed a person with a conflict of interest to participate in then-decision-making and that the use of the conveyed property for Little League baseball wrongfully had excluded other members of the public. The court ruled against the plaintiffs on all counts of their complaint. These additional claims have not been pursued on appeal.

       Allegations in a complaint must be construed in their most, favorable light for pretrial purposes; Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981); and the plaintiffs’ allegations demonstrated their standing to question whether the Peck will was being enforced properly. See, e.g., Doe v. Doe, 163 Conn. 340, 345, 307 A.2d 166 (1972).

       All the court said on this issue was that the activities of the defendants were not so unreasonable and not so intrusive that the defendants should be enjoined from continuing Little League activities in Peck Park. Because the court’s denial of the plaintiffs’ request for an injunction depended entirely on the court’s ruling on the plaintiffs’ legal claims, it did not undertake an independent analysis to balance the equities.

       Part IV of the Peck will bequeathed a residuary estate to Bristol Bank and Trust Company and to the then superintendent of parks of the city of Bristol. Among the restrictions on the use of this gift is clause (B) (4). That provision states that “the parcel to be acquired shall not be contiguous to any other park or area which is being used by the City of Bristol for recreational or park puipose[s]. This provision is inserted so as to prevent the possibility of the parcel ultimately being absorbed by some larger recreational area of the city.”

       The court made other findings that, as far as we can tell, relate primarily to the plaintiffs’ claim of nuisance. The court found, that, as a result of the use of Peck Park for baseball, each of the plaintiffs had encountered problems with noise and with parking. It further found that the parking problem was exacerbated by those who used Peck Park to access the city owned property that abuts Peck Park. It also found, however, that the plaintiffs’ problems had been partially addressed by maintenance of trees that served to create a sound and sight buffer of park activities. Finally, it found that whatever the adverse consequences to the plaintiffs might be, the plaintiffs’ problems were outweighed by the fact that the defendants’ use of Peck Park was not unreasonable in light of the public policy supporting the recreational needs of children.

       The Probate Court determined that, because endowment funds were not needed for the acquisition of the Peck Park property, these funds could properly be used for maintenance of the park property. It also approved the role of the defendant Fleet Bank, N.A., as successor trustee for the endowment, on monitoring disbursements of these funds.

       The plaintiffs also allude to their contention in their complaint that the chain-link fence has gates that deprive the fence from serving as a barrier that sufficiently separates Peck Park from city property that is used for recreational purposes. We have no basis for addressing the merits of this claim because the court made no factual findings on this subject.


author: MIHALAKOS, J.

text:
    IN RE DORRELL R.

    (AC 20926)
    Foti, Mihalakos and Healey, Js.

      Argued January 17
    officially released July 24, 2001

      Lawrence A. Dubin, for the appellant (respondent mother).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Barry A. Charles, 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

MIHALAKOS, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with regard to her son, D. On appeal, she claims that the court improperly (1) found that the department of children and families (department) had made reasonable reunification efforts at the time that the petitioner, the commissioner of children and families (commissioner), filed the petition to terminate the respondent’s parental rights, (2) found that termination of her parental rights was in the best interest of D and (3) used a “sympathy” standard in deciding whether the respondent acted in the best interest of D. We are not persuaded and affirm the judgment of the trial court.

The following facts and procedural history are necessary to our disposition of the respondent’s appeal. D was bom on October 22, 1988. He has four siblings, Q, bom on December 14, 1983, R, bom on April 12, 1991, J, bom on November 17, 1992, and A, bom on January 1, 1995. On January 8, 1993, and again on February 25, 1993, the Yale-New Haven Hospital Lead Clinic (Yale) filed reports of medical neglect on D’s behalf. He had been hospitalized for extreme lead poisoning. High levels of lead were found in D’s body, he was suffering from high fevers and repeatedly losing consciousness. The respondent refused to comply with medical followup, including immunizations for D. On May 27, 1994, Yale filed a third report of medical neglect on D’s behalf. He had been hospitalized once again for extreme lead poisoning, and the respondent did not visit D.

The department investigated and found that the respondent was not following through with D’s medical treatment. The respondent also admitted to using cocaine. A department caseworker referred the respondent to the Addiction Prevention Treatment Foundation for substance abuse evaluation and treatment. She did not follow through with the evaluation. The department also found that the family’s apartment contained lead and informed the respondent that she would have to move. The department of social services, however, was already in the process of trying to find alternative housing for the family.

On January 6,1995, a New Haven public school supervisor filed a report of educational neglect on D’s behalf. He had been enrolled in a special education preschool, but only attended once. On February 17,1995, Yale filed another medical neglect report on D’s behalf after he was hospitalized for the tenth time for chelation therapy. On that same day, the commissioner filed a neglect petition and a request for an order of temporary custody with respect to D, citing as the reason the respondent’s continuing drug abuse. The court granted an order of temporary custody, and D was placed in a foster home.

On February 27, 1995, the respondent entered a plea of nolo contendere to medical neglect of D and signed a list of court-ordered expectations requiring that she (1) keep appointments with the department, (2) notify the department of her whereabouts, (3) visit D consistently, (4) participate in drug and alcohol counseling, (5) sign releases as requested, (6) secure and maintain adequate housing and income, (7) refrain from substance abuse, (8) secure and maintain a lead free apartment and test her other children for lead poisoning, and (9) release information. On March 17, 1995, D was adjudicated neglected and committed to the care of the commissioner.

On January 12, 1996, during a treatment plan conference with the department, the respondent, once again, signed her service agreement containing the previously mentioned nine requirements. During the five years that D has been in foster care, the respondent failed to comply with most of those requirements.

After D was removed from his mother’s care, the department referred the respondent for substance abuse treatment programs at the Addiction Prevention Treatment Foundation and the Hospital of St. Raphael. The respondent canceled all of her appointments for evaluations. The department then referred her to the Four C’s agency for home family preservation services. Again, the respondent failed to keep her appointments, and Four C’s, thereafter, closed her case.

After D was first placed in foster care, the department scheduled weekly visits between him and his mother. The respondent missed more than half of those scheduled visits. The department then moved the scheduled visits to the respondent’s home. That resulted in an improvement of the respondent’s attendance, but D repeatedly fell ill during the visits. The respondent informed the department that the lead in the apartment may have accounted for D’s illness. The department, thereafter, moved the visits to alternate sites in the community.

In September, 1997, the department received a referral regarding the respondent’s other four children. The department investigated and found the respondent, her other four children, Q, R, J and A, and Q’s infant daughter, living in an apartment without food, heat or electricity. The respondent continued her substance abuse. The department removed the respondent’s four remaining children, along with Q’s infant child, from the home. At the time of the trial in this case, none of the respondent’s children had been returned to her, and petitions for the termination of her parental rights with regard to R and J were pending.

After the remaining children were removed, the department set up supervised visits for the respondent and D at the department offices. She attended fewer than half of those visits. The department moved the scheduled visits from its offices to various locations in the community. Still, the respondent attended only sporadically.

Following her children’s removal, the respondent once again admitted ongoing substance abuse to her caseworker. Thereafter, the department made the following referrals: (1) to the Addiction Prevention Treatment Foundation once again, (2) to the Guenster Rehabilitation Center, (3) to the Hospital of St. Raphael again, (4) to Amethyst House for inpatient treatment, (5) to Advanced Behavioral Health Voluntary Substance Abuse Services for Primary Caregivers, (6) to the Women and Children’s Center for inpatient drug treatment on two occasions, (7) to the New Haven Family Alliance, (8) to Crossroads for inpatient substance abuse treatment, (9) to the AIDS Interfaith Program for individual therapy and substance abuse services, and (10) to Connecticut Valley Hospital for outpatient substance abuse. As late as November, 1999, the respondent sought a substance abuse referral from her caseworker, but did not follow through.

While in the custody of the department, D was diagnosed as autistic, and experienced continued intellectual and cognitive difficulties due to the lead poisoning that he had suffered as a young child. When D was first committed to the department’s care in February, 1995, he was six and one-half years old and spoke very few words. He had not been attending school, suffered from high fevers and repeatedly lost consciousness due to severe lead poisoning. After one month of placement, the department moved D to the home of his maternal uncle. In October, 1995, however, D’s uncle returned to school and could no longer care for D. At that time, D was placed in the foster home of H.

While with H, D began speaking, reading and bonding with his foster father. H expressed a desire to adopt D, and the department approved that as part of D’s long-term treatment plan. The respondent also approved of H’s intention to adopt D. In February, 1998, the respondent agreed with the department not to seek reunification with D and consented to the termination of her parental rights so that H might adopt him. On February 17,1998, the Superior Court found that no further reunification efforts were required for the respondent and D. In September, 1998, H moved to Florida and informed the department that he would be ready to take D after three months. H never returned to take D. D was immensely hurt and disappointed, and the department eventually terminated all communication between D and H. The department coordinated counseling for D to help him deal with H’s abandonment and D’s placement in a new foster home. D has adjusted well in his current foster home. He calls his foster mother “mom” and has connected with the other children in the home, community and church. He also is doing well in school. That placement is not preadoptive.

D and the respondent were evaluated by a court-appointed psychologist. The psychologist concluded that (1) D requires placement in a home in which the family understands his handicaps and in which he feels acceptance and support, (2) the respondent has significant cognitive limitations and exhibits antisocial traits, both of which would impair her ability to care adequately for D, and hinder her willingness to work with the educational system and D’s other service providers, (3) D is not emotionally bonded to the respondent and neither seeks physical affection from her nor shares memories with her of their life together, and (4) it is not in D’s best interest to be returned to the respondent.

On February 1,1999, the commissioner filed a petition for the termination of the respondent’s parental rights as to D. The court had found on February 17, 1998, that further efforts toward reunification of D and the respondent were not appropriate. On May 2, 2000, the court terminated the respondent’s parental rights after having determined that she had failed to achieve a sufficient degree of personal rehabilitation. At the present time, D is thirteen years old and must consent before there can be any adoption. D’s attorney agrees with the respondent that termination of her rights will not benefit D, and that it would be detrimental to sever his relationships with the respondent and with his siblings.

I

The respondent first claims that the court improperly concluded that the department made reasonable reunification efforts prior to the commissioner’s filing of the petition for termination of her parental rights. We disagree.

“It is axiomatic that in seeking to terminate parental rights, the commissioner must prove by clear and convincing evidence that the department made reasonable efforts to reunify the parent and child as required by [General Statutes (Rev. to 1999)] § 17a-112 (c) (1). . . . We also note that [t]he statutory criteria must be strictly complied with before termination can be accomplished. ... On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported; every reasonable presumption is made in favor of the trial court’s ruling and we will disturb the findings of the trial court in either the adjudication or disposition phases only if they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Amanda A., 58 Conn. App. 451, 454-55, 755 A.2d 243 (2000).

“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 the] 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.” (Internal quotation marks omitted.) Id., 455.

The court granted the termination petition on the ground that the respondent had failed to achieve a sufficient degree of personal rehabilitation. The court’s factual findings are supported by the record and easily meet the requirements set forth by § 17a-112. The court specifically found that (1) appropriate and timely services were provided by the department to the respondent and her family, (2) the department made reasonable efforts to reunify the family, (3) reasonable court expectations were set for the respondent, and she was not able to fulfill them even minimally, (4) D is not emotionally attached to the respondent, (5) D was born on October 22,1988, (6) the respondent made no changes in her life to accommodate the care and nurturing of D, the respondent visited D sporadically, and only after the filing of the termination petition did she send him gifts and cards and recognize his birthday, and (7) the department took many steps for many years, encouraging the respondent to both nurture a meaningful relationship with D and to rehabilitate herself.

The respondent specifically claims that because she agreed to H’s adoption of D, no efforts were made toward reunification after the February 17,1998 finding by the Superior Court that further reunification efforts were not required. That does not negate the continuous efforts made by the department prior to February 17, 1998. D was committed to the custody of the commissioner on March 17, 1995. By the time that the court found that no more efforts were necessary, D had been in foster care for three years. The department made constant and continuous efforts during those three years to reunite D and the respondent. As previously discussed, the court found that the respondent did not avail herself of those many opportunities. Further, as late as November, 1999, the respondent requested a referral for drug treatment from the department, which the department provided. She once again failed to follow through. “Reasonable efforts” does not mean “every possible” effort, but every reasonable effort. The evidence clearly shows that the department made every reasonable effort to reunite the respondent with D.

We conclude that the court properly found, by clear and convincing evidence, that the department made reasonable reunification efforts.

II

The respondent next claims that the court improperly found that termination of her parental rights is in the best interest of D. We disagree.

“The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. These legitimate interests of parent, child and state require a balancing of the factors involved in those interests. ... In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child’s best interest, the child being the focus of the struggle.” (Citation omitted.) In re Shaquanna M., 61 Conn. App. 592, 598-99, 767 A.2d 155 (2001).

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [General Statutes (Rev. to 1999)] § 17a-112 (d). On appeal, we will disturb the findings of the trial court in both the adjudication and disposition only if they are clearly erroneous.” (Internal quotation marks omitted.) In re Tyscheicka H., 61 Conn. App. 19, 26, 762 A.2d 916 (2000).

As previously stated, the court made detailed, written findings regarding all seven factors required by § 17a-112 (d). In its memorandum of decision, filed May 2, 2000, the court further stated that “there is no biological parent ready now or in the foreseeable future who will be able to care for [D]. Despite the fact that continued counseling between [the respondent] and [D] could possibly improve their relationship, the court concludes it is both too little and too late as [the respondent] simply does not possess the capacity to care for this special needs child. The court concludes, from the clear and convincing testimony, that it is in [D’s] best interest to have permanency and stability in his life. The court further finds that adoption by a family that understands and can accommodate his special needs is the avenue most likely to accomplish this result for [D]. The court also finds the testimony concerning [D’s] adoptability persuasive. The court is aware that there are a number of private adoption agencies for placement [of] children like [D]. The court concludes that termination of [the respondent’s] rights to him will make his ultimate adoption more probable.”

We see no reason to disturb the findings of the court, and conclude that those findings are well supported by the record and illustrate (1) the department’s continued efforts to reunite the respondent and D, (2) the respondent’s failure to comply with any of those efforts, (3) that D’s best interest lies in his chances for adoption and (4) that termination of the respondent’s parental rights will make D’s adoption more likely. D has now been in foster care for more than six years. There is no evidence before us that during those six years, the respondent made any progress toward rehabilitating herself. D’s best interest lies in the hope that he will be adopted by a family that understands and can accommodate his special needs, not that he will be returned to the respondent.

Ill

The respondent’s final claim is that the court improperly utilized a “sympathy standard” in determining the best interests of D. We disagree.

The respondent’s claim stems from a passage in the court’s memorandum of decision, which states: “The court would have some slight sympathy with this argument had [the department] cut off [the respondent’s] access to D after February, 1998, and not provided either visitation or services. The claim would have even more merit had [the respondent] made demonstrable progress in the early years of [D’s] placement. But neither of these things happened. [The respondent] had not made any progress toward reunification when [D] had been in [foster] care for over two years. Further, [the department] has permitted visitation up to the present time. [The department] has also continued to provide services after the termination petition was filed, despite the court order.”

The respondent fails to provide either legal authority or analysis to support her theory. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) In re Shane P., 58 Conn. App. 234, 243-44, 753 A.2d 409 (2000). “We will not review claims absent law and analysis.” Altfeter v. Naugatuck, 53 Conn. App. 791, 796 n.5, 732 A.2d 207 (1999).

As previously stated, the court made detailed and voluminous findings regarding the respondent’s failure to achieve a sufficient degree of rehabilitation and D’s best interest. Simply because the court couched a small portion of its discussion in terms of sympathy, or lack thereof, does not undermine in any way the ample evidentiary support for its determination regarding the best interest of D. The court applied the correct standard according to § 17a-112 (d).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent father. He has not appealed from the court’s judgment. We therefore refer in this opinion to the respondent mother as the respondent.

       Chelation therapy is utilized in children who have been exposed to lead. During chelation therapy, a chelating agent is introduced into the patient’s bloodstream to increase the urinary excretion of lead. The result of successful chelation therapy is a decrease in the total level of lead in the body.

       “Four C’s” (Coordinating Counseling for Children in Crisis) is a community agency funded by the department that provides services to families in crisis. One of the Four C’s primary services is providing parent aides to go into the homes of families in crisis, and provide counseling and assistance to parents.

       The respondent completed two evaluations with the Addiction Prevention Treatment Foundation, but did not follow-up with her treatment recommendations.

       The respondent remained at the Guenster Rehabilitation Center for seven days. She then left against the staffs advice and without completing her treatment.

       The respondent was referred several times to the Hospital of St. Raphael. She completed one evaluation, but did not follow through with treatment recommendations.

       The respondent left after one week of inpatient treatment without completing the program.

       The respondent’s caseworker noticed that same lack of an emotional bond between D and the respondent.

       General Statutes (Rev. to 1999) § 17a-112 provides in relevant part: “(a) In respect to any child in the custody of the Commissioner of Children and Families in accordance with section 46b-129 . . . the commissioner . . . may petition the court for the termination of parental rights with reference to such child. . . .
      * * *
      “(c) 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 or section 17a-lllb that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that: (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the parent of a child who (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (C) the child has been denied, by reason of an act or acts of parental commission or omission . . . the care, guidance or control necessary for his physical, educational, moral or emotional well-being. . . . (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child
      “(d) Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child . . . .”
      General Statutes § 46b-129 provides in relevant part: “(a) [T]he Commissioner of Social Services, the Commissioner of Children and Families or any child-caring institution or agency approved by the Commissioner of Children and Families . . . may file with the Superior Court which has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent ....
      “(b) “If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings and (2) that as a result of said conditions, the child’s safety is endangered and immediate removal from such surroundings is necessary to ensure the child’s safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child’s or youth’s temporary care and custody. . . .”
      General Statutes § 45a-715 (b) provides in relevant part: “A petition for termination of parental rights shall be entitled ‘In the interest of . . . (Name of child), a person under the age of eighteen years’, and shall set forth with specificity: (1) The name, sex, date and place of birth, and present address of the child; (2) the name and address of the petitioner, and the nature of the relationship between the petitioner and the child; (3) the names, dates of birth and addresses of the parents of the child, if known, including the name of any putative father named by the mother ... (5) the names and addresses of: (A) The guardian of the person of the child; (B) any guardians ad litem appointed in a prior proceeding . . . and (D) the child-placing agency which placed the child in his current placement; (6) the facts upon which termination is sought, the legal grounds authorizing termination, the effects of a termination decree and the basis for the jurisdiction of the court; (7) the name of the persons or agencies which have agreed to accept custody or guardianship of the child’s person upon disposition.”

       The court refers to the respondent’s argument, repeated on appeal, that the department failed to make reasonable efforts toward reunifying her with D after February, 1998.


author: STOUGHTON, J.

text:
    SASHA DURSO v. STEPHEN AQUILINO, JR.
    (AC 20547)
    Foti, Dranginis and Stoughton, Js.

      Argued March 22
    officially released July 24, 2001

      Margaret E. Haering, with whom, on the brief, was J. Daniel Sagarin, for the appellant (plaintiff).

      J. Kevin Golger, with whom, on the brief, was Gregory P. Lynch, for the appellee (defendant).
   Opinion

STOUGHTON, J.

The plaintiff, Sasha Durso, appeals from the judgment of the trial court rendered after it denied her motion to set aside the jury verdict in favor of the defendant, Stephen Aquilino, Jr., in this personal injury action. The plaintiff claims that the court improperly denied her motion to set aside the verdict because (1) the court improperly admitted into evidence hearsay from a police report, (2) the defense counsel misled the jury during his final argument and (3) a juror introduced extrinsic evidence into the jury deliberations. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 31,1993, the plaintiff was a passenger in an automobile driven by the defendant in a northerly direction on West Street in Seymour. The roadway was icy, and the defendant lost control of his automobile, which slid across the double yellow lines on the road and collided with an automobile traveling in the southbound lane of West Street. The plaintiff alleged that the defendant operated his automobile negligently and that she suffered injuries as a result of the collision.

At the accident scene, the investigating police officer issued citations to the defendant, charging him with, inter alia, traveling unreasonably fast for the conditions and failure to keep to the right. Before trial, the defendant filed a motion in limine in which he sought an order precluding the plaintiff from presenting evidence of the citations or any nolo contendere pleas he had entered to the charges, and any opinion by the investigating police officer as to the cause of the accident. The court granted the order and excluded evidence of the citations and nolo contendere pleas. It also excluded the police officer’s opinions, but ruled that it would permit evidence concerning his observations. At trial, a redacted copy of the police report was admitted into evidence as a full exhibit. Deleted from the report were references to the citations and a portion of the narrative stating that the driver of the southbound vehicle could not avoid being hit by the defendant’s vehicle. The jury returned a verdict in favor of the defendant, and the plaintiff filed a motion to set aside the verdict, which the court denied. This appeal followed. Additional facts will be recited where necessary.

“We first address our standard of review regarding the plaintiffs claims. We review a trial court’s decision to set aside a verdict by determining whether there has been an abuse of discretion. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Citations omitted; internal quotation marks omitted). Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998).

I

The plaintiff first claims that the verdict should have been set aside because the court improperly admitted into evidence hearsay from the police report. When there is a claim that evidence was improperly admitted, the standard of review is whether the ruling would likely affect the result of the trial. Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).

In the police report, parts of which were introduced into evidence, the defendant was designated as operator number one and the operator of the automobile with which he collided was designated as operator number two. The narrative portion of the police report reads as follows: “On 12-31-93, at about 0229 hours, operator [no.] 1 was traveling North, on West Street, operating his 1989 Honda CRX (*a two seat vehicle*). There were four other occupants jammed in this vehicle at the time. As Operator [no.] 1 was rounding a right curve, just past the intersection of New Street, he lost control of his vehicle, on a patch of ice, causing his vehicle to slide across the double yellow lines, and into the travel portion of the south bound travel lane. Operator [no.] 2, who was traveling South on West Street, observed this occurring, but could not avoid being hit. Seymour firefighters extricated operator [no.] 1 from his heavily damaged car, and he was transported to Yale-New Haven Hospital for treatment. Operator [no.] 1 was charged for several violations in this accident.

“ — West Street is clearly posted as a 25 M.P.H. zone — ”

Both parties agreed that portions of the narrative should be redacted. They disagreed, however, over whether to redact the third sentence, which explains that as the defendant rounded a right curve, he lost control on a patch of ice and that his vehicle was caused to slide across the road. The plaintiff claims that this statement is inadmissible hearsay. The police officer was questioned in the absence of the jury, and the following colloquy occurred:

“[Defendant’s Attorney]: Officer, I want you to take a look at this report, which is marked ‘C’ for [identification]. And go to the narrative section on page two. And you have a sentence that reads as follows: ‘As operator number one was rounding a right curve, just past the intersection of New Street, he lost control of his vehicle on a patch of ice, causing his vehicle to slide across the double yellow lines and into the travel portion of the southbound lane.’ Focusing on that sentence alone, do you know where you got the information that caused you to write that into your report? Was it from driver number one or somebody else?

“[Police Officer]: In another — in my actual — that’s the accident report — in my police report, it’s indicated that I got that from [the defendant] — that’s operator number one — and I also have a statement from the operator of the other vehicle—

“Q: I understand — I’m just focusing on that one sentence—

“The Court: That one statement about him losing control and sliding . . .

“[Defendant’s Attorney]: And you got that from [the defendant]?

“A: Right. . . .

“The Court: Yeah. Well, so far, we have agreement on everything but that. I just want to address that. Counsel, do you have any problem with that statement staying in there? It’s [the defendant’s] admission . . . or, it can be called an admission.

“ [Plaintiff s Attorney]: Well, then, it’s not hearsay then in that particular sense, so — ”

The redacted police report, which included the third sentence concerning the defendant’s loss of control of his vehicle on a patch of ice, thereafter was admitted into evidence as a full exhibit and went to the jury. The plaintiff later renewed her objection after the defendant testified that he did not remember talking to the police, and the police officer testified that his narrative was based on interviews with the operators and “based on everything put together.” The court overruled the plaintiffs objection.

A claim of error is not reviewable where the objection to admission of evidence has been withdrawn at trial. State v. Rodriguez, 10 Conn. App. 357, 358, 522 A.2d 1250, cert. denied, 204 Conn. 804, 528 A.2d 1151 (1987). In this case, the plaintiffs counsel originally offered a redacted version of the police report to be admitted as a full exhibit. The defense counsel objected, asking the court to include some of the redacted portions of the police report. The court allowed the defense counsel to voir dire. The plaintiffs counsel subsequently conceded that the third sentence was “not hearsay,” and the court admitted the redacted police report, including the third sentence, as a full exhibit. Because the plaintiff s counsel conceded that the third sentence of the report was not hearsay, she essentially withdrew her objection, and the report was admitted as a full exhibit.

In any event, the disputed evidence merely was cumulative because, at trial, the defendant testified that his vehicle had started sliding and that this was caused by black ice. The plaintiff also testified in a deposition that there was black ice on the road. Because the court’s ruling regarding the evidence at issue would not affect the result of the trial, we conclude that the court did not abuse its discretion by not setting aside the verdict.

II

The plaintiff next claims that the verdict should have been set aside because the defense counsel misled the jury during his final argument. The court has broad discretion in ruling on objections to arguments of counsel, and its rulings should be interfered with only when that discretion has been clearly exceeded or abused to the manifest injury of some party. Skrzypiec v. Noonan, 228 Conn. 1, 15-16, 633 A.2d 716 (1993).

“In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness.” (Internal quotation marks omitted.) Puchalsky v. Rappahahn, 63 Conn. App. 72, 76, 774 A.2d 1029, cert. denied, 256 Conn. 931, 776 A.2d 1147 (2001).

“While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 811, 699 A.2d 901 (1997). However, “[i]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) Nevers v. Van Zuilen, 47 Conn. App. 46, 53, 700 A.2d 726 (1997).

In this case, the plaintiff claims that after the police report was purged of its references to the citations for driving “too fast for conditions” and “failure to drive right,” and after the court prevented the police officer from giving his opinion on the cause of the accident, the defense counsel improperly suggested to the jury that the police officer had not cited the defendant for speeding or for recklessness. Specifically, the plaintiff complains about the following portion of the defense counsel’s argument:

“All right, let’s move on to the police officer. Nice fellow. A sergeant. Came in here and testified. There’s some things the sergeant did do now and some things the sergeant didn’t do. First of all, did he say anything about the speed of [the defendant’s] vehicle that you can recall? He didn’t. He didn’t say anything about the speed of [the defendant’s] vehicle at all. So, you didn’t hear anything about that. Did he say he was operating his vehicle too fast? Recklessly? Anything of that nature? No. He filled out a form.”

The plaintiffs counsel objected after the argument, claiming that the defense counsel improperly had suggested that the police report did not contain any reference to speed or recklessness. The court did not deem it necessary to issue a cautionaiy instruction to the jury.

In this case, the portion of the argument about which the plaintiff complains does not refer to the police report, but to the police officer’s testimony. It was not false, and the court did not view it as prejudicial. Furthermore, the defendant testified that he was traveling at a speed of about twenty-five or thirty miles per hour. Both the plaintiff and the defendant testified that black ice was on the road and difficult to see. Thus, the jury had before it the speed at which the defendant was operating and the road conditions. Whether the conduct of the defendant was negligent or reckless was for the jury to determine.

Because we cannot say that the argument of the defense counsel, taken in the context of the entire trial, improperly suggested to the jury that the police officer had not cited the defendant for speeding or recklessness, we conclude that the court did not abuse its discretion by not setting aside the verdict.

Ill

The plaintiff claims finally that the verdict should have been set aside because a juror introduced extrinsic evidence into the jury deliberations. When juror misconduct is alleged in a civil case and the prevailing party is not implicated in the misconduct, the burden rests on the moving party to demonstrate that the misconduct complained of resulted in probable prejudice to her. Turk v. Silberstein, supra, 48 Conn. App. 226-27.

In this case, the plaintiff introduced into evidence a series of five photographs that showed West Street from the point at which the defendant’s automobile went out of control to the place where the collision occurred. At the hearing on the plaintiffs motion to set aside the verdict, the plaintiffs counsel averred that one of the jurors had told her that an unnamed member of the jury lived in the vicinity of the accident scene and had persuaded the other jurors that the five photographs depicting West Street were deceiving because the angle at which they were taken may show a hill in the photographs as more pitched than it actually was. The court concluded that, accepting counsel’s statement as true, there was no juror misconduct and no need to examine the jurors. There was no representation that the juror had gone to the accident scene to make an investigation or had brought extrinsic evidence to the jury. He had some knowledge of the area, but counsel could have ascertained that during voir dire before trial.

Jurors cannot be expected to set aside their own knowledge and experience. Purzycki v. Fairfield, 244 Conn. 101, 113, 708 A.2d 937 (1998). It is common knowledge that a two dimensional photograph cannot depict depth accurately, and that is the sum and substance of what the juror pointed out. Because we agree with the court that the plaintiff was not able to sustain her burden that the alleged juror misconduct complained of resulted in probable prejudice, we conclude that the court did not abuse its discretion by not setting aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    KARI DAMATO ET AL. v. RUBY W. THOMPSON
    (AC 20872)
    Landau, Mihalakos and Shea, Js.
    Argued May 30
    officially released July 24, 2001

      Alan S. Tobin, for the appellant (defendant).

      Frank A. Bailey, with whom, on the brief, were Robert, R. Sheldon and Douglas Mahoney, for the appellee (named plaintiff).
   Opinion

PER CURIAM.

In this personal injury action, the defendant, Ruby W. Thompson, appeals from the judgment of the trial court rendered in favor of the plaintiff Kari Damato. On appeal, the defendant claims that the court improperly (1) admitted into evidence certain expert testimony from a physician, (2) denied her motion to set aside the verdict and (3) denied her motion for a remittitur. We affirm the judgment of the trial court.

The standard of review for each claim raised by the defendant is the abuse of discretion standard. See State v. Copas, 252 Conn. 318, 326, 746 A.2d 761 (2000) (court’s evidentiary ruling upheld absent clear abuse of discretion); Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn. App. 637, 644, 777 A.2d 745 (2001) (court’s denial of motion for remittitur undisturbed unless clear abuse of discretion); Davis v. Fracasso, 59 Conn. App. 291, 295, 756 A.2d 325 (2000) (court’s denial of motion to set aside verdict upheld absent manifest abuse of discretion). Further, when ruling on a motion for remittitur, a trial court must determine whether the jury’s award “falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services, Ltd., supra, 643. In a case involving similar injuries from a motor vehicle accident, our Supreme Court concluded that a jury’s award of $150,000 fell “ ‘somewhere within the necessarily uncertain limits of just damages.’ ” Bartholomew v. Schweizer, 217 Conn. 671, 688-89, 587 A.2d 1014 (1991).

We have fully reviewed the record and briefs and considered the oral arguments of the parties. Having applied the appropriate standard of review, we conclude that the trial court did not abuse its discretion and that its decision conforms to the applicable law.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. STEVEN EDELMAN
    (AC 20145)
    Lavery, C. J., and Foti and Hennessy, Js.

      Submitted on briefs April 26
    officially released July 24, 2001

      Arthur P. Meisler filed a brief for the appellant (defendant).

      Denise B. Smoker and Lonnie Braxton, assistant state’s attorneys, and Keith Currier, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Steven Edelman, appeals from the judgment of conviction, rendered following a jury trial, of violating the state building code, General Statutes § 29-263. The defendant claims that the trial court improperly (1) denied his request to poll the jurors individually after they returned their verdict, (2) concluded that § 29-263 was not unconstitutionally vague as applied to the defendant under the facts of this case and (3) failed to charge the jury on the statutory definition of “alteration” in the context of the “ordinary repair” exception to the building permit requirement in the building code. We reverse the judgment of the trial court and remand the case for a new trial.

The jury reasonably could have found the following facts. While driving by the defendant’s house, Donald Schultz, a building official for the town of Windham, noticed that part of the defendant’s roof was being replaced. After confirming that the defendant did not have a building permit, Schultz issued a stop work order and prepared a warrant for the defendant’s arrest. The defendant was arrested, tried and found guilty of performing reroofing work without a permit. He was sentenced to ninety days incarceration and fined $500. This appeal followed.

I

The defendant claims that the court improperly denied his request that the jurors be polled individually as to the verdict. We agree.

The following facts are pertinent to a resolution of this claim. Immediately after the jury announced its verdict, defense counsel requested of the court that the jurors be polled individually. The clerk proceeded to poll the jurors collectively, all of whom indicated their agreement with the verdict. The court then excused and discharged the jurors, but requested that they remain in the jury room so that it could speak with them. After the jury left the courtroom, defense counsel reminded the court that he was asking that the jurors be polled individually. The court denied defense counsel’s request, noting that the jurors all affirmatively indicated that they had agreed with the verdict.

Practice Book § 42-31 requires that the court poll the jurors individually at the request of any party after the jurors have returned a verdict and before they have been discharged. In State v. Pare, 253 Conn. 611, 625, 755 A.2d 180 (2000), our Supreme Court stated: “On the basis of the language, purpose and history of § 42-31, we conclude that ... a trial court is required to conduct an individual poll of the jury pursuant to a timely request by either party. The failure to do so constitutes a violation of § 42-31.” It is clear from the facts of this case that the defendant made a timely request to poll the jurors individually, and the court violated Practice Book § 42-31 by denying that request. The effect of this violation is set forth in State v. Pare, supra, 638-39, in which the court stated that “a defendant’s right to poll the jury, if not waived, is absolute, and its denial requires reversal even though the remainder of the trial may be error-free.” (Internal quotation marks omitted.) We conclude that the court’s denial of the defendant’s timely request to poll the jurors individually requires automatic reversal of the judgment.

II

Although this matter is to be returned to the trial court for a new trial because of our holding on the first issue, we will address the other issues raised by the defendant because of the probability that they will again arise during the retrial. The defendant also argues that § 29-263 is unconstitutionally vague as applied to him in this case. Specifically, the defendant argues that the state building code exempts ordinary repairs from the requirement that a building permit be obtained, the code specifies what activities are not considered ordinary repairs and the code does not mention roof repairs as a category of work excluded from the definition of ordinary repairs. He argues further that there is no official interpretation of the state building code indexed or published under the statutory provision that indicates that a building permit is required for a roof repair. In the absence of an official statement that a permit was required for a roof repair, the defendant argues that he was not fully warned as to what conduct was required or forbidden.

“[T]o surmount a vagueness challenge, a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.” (Internal quotation marks omitted.) State v. Erzen, 29 Conn. App. 591, 593, 617 A.2d 177 (1992); see also State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980); State v. Jones, 29 Conn. App. 683, 687, 617 A.2d 918 (1992). Although the constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties, “[a] penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning.” State v. Erzen, supra, 594, citing State v. Pickering, supra, 61. Even if the language of a statute fails to provide definite notice of prohibited conduct, fair warning can be provided by an examination of “ ‘whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.’ State v. Erzen, supra, 594.” State v. George, 37 Conn. App. 388, 391, 656 A.2d 232 (1995).

The defendant wrote to the state building inspector inquiring whether a permit was required for replacing part of his roof. The state building inspector issued a written response to the defendant’s inquiry that stated that a permit was required for all roof replacement work. Despite the actual notice provided by the state building inspector, the defendant proceeded with his roof repair without first obtaining a permit. The actual notice to the defendant by the state building inspector that his conduct was prohibited by law constituted fair warning and defeats the defendant’s claim that § 29-263 is unconstitutionally vague as applied to him.

Ill

The defendant further claims that the court improperly denied his request for an instruction to the jury related to the state building code definition of “alteration.” Specifically, the defendant requested that the court charge the jury with the state building code definition of the word “alteration.” The defendant argued that if the jury found that his reshingling of a portion of the roof of his building was not an alteration, but an ordinary repair, then no building permit would be necessary.

The court instructed the jury as follows. “The second count of this information charges [the defendant] with a violation of the building code. Section 29-263 ... of the state statutes provides as follows: No building or structure shall be constructed or altered until an application has been filed with the building official and a permit issued. No permit shall be issued except upon application of the owner of the premises affected, or his authorized agents.

“For you to find the defendant guilty of [violating] this statute, the state must prove the following [two] elements beyond a reasonable doubt . . . [t]he roofing work that was performed by the defendant required a building permit in accordance with the state building code [and] two, that prior to performing the work, a building permit was not issued to [the defendant].”

“It is not error for a court to refuse to define words which are used and might be understood in their ordinary meanings. . . . The issue is whether the jury could have been misled by the court’s instructions.” (Citation omitted; internal quotation marks omitted.) State v. Lewtan, 5 Conn. App. 79, 85, 497 A.2d 60 (1985). The building code definition of “alteration” — a change or rearrangement in the structural parts — and the dictionary definition of “alteration” — change, modification — are not so different as to confuse or mislead the jury. A jury could consider the replacement of a roof to be an alteration of the structure. Under the circumstances present in this case, because the definitions are similar we would not reverse on this ground, but it would be appropriate on retrial to give the requested instruction.

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

In this opinion the other judges concurred.

       General Statutes § 29-263 (a) provides in relevant part: “Except as provided in subsection (h) of section 29-252a and the State Building Code adopted pursuant to subsection (a) of section 29-252, after October 1, 1970, no building or structure shall be constructed or altered until an application has been filed with the building official and a permit issued. . .

       In State v. Pare, 253 Conn. 611, 634, 755 A.2d 180 (2000), our Supreme Court held that “a jury is not discharged for the purposes of [Practice Book] § 42-31 until its members actually separate or disperse.” In the present case, the jury remained together in the jury room until after the court denied the motion to have the jury polled individually.

       Practice Book § 42-31 provides: “After a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”

       Practice Book § 42-31 applies only in criminal trials.

       In its appellate brief, the state concedes that the defendant’s conviction must be reversed due to the trial court’s improper refusal of the defendant’s timely request to poll the jurors individually.

       The building code defines “alteration” as “a change or rearrangement in the structural parts.”