author: PETERS, J.

text:
    IN RE VALERIE G.

    (AC 33344)
    (AC 33353)
    Lavine, Bishop and Peters, Js.

      Argued October 12
    officially released December 20, 2011

      Erich H. Gaston, with whom, on the brief, was Alison P. Gaston, for the appellant (respondent mother).

      JohnE. Hudson, for the appellant (intervening maternal grandmother in AC 33353).

      John E. Tucker, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Benjamin Zivyon, assistant attorney general, and Karen Rabinovici, certified legal intern, for the appellee (petitioner).

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

   Opinion

PETERS, J.

These consolidated appeals arise out of a judgment appointing the commissioner of the department of children and families to be the statutory parent of a child with multiple severe disabilities. As in similar cases; see, e.g., In re Christina M., 90 Conn. App. 565, 566-67, 877 A.2d 941 (2005), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006); the issue is not the deep and abiding love of the family members for the child, but whether they have the capacity to provide for her special needs. The child’s mother and grandmother appeal from the judgment of the trial court concluding that the commissioner had established the adjudicatory and dispositional grounds for termination of the mother’s parental rights pursuant to General Statutes § 17a-112 and that the intervening grandmother had failed to establish that she would be a suitable guardian for the child. We affirm the judgment of the court.

On July 22, 2009, the petitioner, the commissioner of the department of children and families, brought an action to terminate the parental rights of the mother and the father to their minor child, Valerie G. With the mother’s consent, Valerie previously had been committed to the custody of the department of children and families (department) as a neglected child. Valerie’s maternal grandmother filed a motion to intervene in the proceedings, which was granted by the court on March 25, 2009. On April 1, 2010, the grandmother filed a motion to transfer guardianship of Valerie to herself. On September 30, 2010, after a five day evidentiary hearing, the court rendered a judgment in favor of the petitioner in all respects. The mother has appealed from the termination of her parental rights, and both the mother and the grandmother have appealed from the denial of the grandmother’s motion for transfer of guardianship.

In her appeal, AC 33344, the mother claims that the court (1) improperly found that the petitioner had made reasonable efforts to reunify her with Valerie, (2) improperly found that she had failed to achieve sufficient rehabilitation and (3) abused its discretion when it denied the grandmother’s motion for transfer of guardianship. In her appeal, AC 33353, the grandmother challenges the court’s denial of (1) her motion to transfer guardianship and (2) her motion to open the dispositional phase of the termination proceedings. We affirm the judgment of the court.

I

TERMINATION OF PARENTAL RIGHTS

The centerpiece of the mother’s appeal is her contention that, in the adjudicative phase of the termination proceedings, the court improperly found that the petitioner had proven, by clear and convincing evidence, that the mother had failed to achieve rehabilitation such that she, in the foreseeable future, could take responsibility for Valerie. In support of its judgment granting the termination petition, the court found that, despite the mother’s unquestioned devotion to her daughter, she lacked the requisite cognitive skills and mental health to be a full-time, unsupervised caretaker for Valerie because of Valerie’s special medical and psychological needs. The court further found, by clear and convincing evidence, that (1) the department had made reasonable efforts to reunite the mother with Valerie as required by General Statutes .§ 17a-112 (j) (l), and (2) the mother had failed to achieve personal rehabilitation as required by § 17a-112 (j) (3) (B) (ii). The mother’s appeal challenges the sufficiency of the evidence to support these two findings.

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 191, 986 A.2d 351 (2010).

A

The court’s memorandum of decision describes the petitioner’s efforts to reunite the mother with Valerie. The court found that, in New York and in this state, the mother repeatedly had been offered mental health treatment, substance abuse treatment and parenting education classes. The court further found that the mother “continues to be resistant” to the psychiatric and medical support that has been offered to her. The petitioner did not assist her in finding housing because she continued to five with a man whom the department found unsuitable because of his violence and his drug use.

Without disputing the accuracy of the court’s factual findings, the mother contests the propriety of the petitioner’s timing in filing the petition for termination of her parental rights and the adequacy of the reunification efforts that followed. The mother contends that the petitioner improperly initiated the termination proceedings too soon after her discharge from inpatient hospital treatment for severe mental illness in New York and her subsequent relocation to this state in June, 2009, so as to be in geographical proximity to Valerie. This contention fails to take into account the fact that, in conjunction with the neglect petition filed on May 13, 2008, the department had issued specific steps that the mother was required to take to enable her to take responsibility for Valerie. The mother thereby was advised, in a timely fashion, to obtain mental health treatment and to refrain from substance abuse. The issues raised by the petitioner in the termination proceedings, therefore, had been amply foreshadowed prior to the mother’s hospitalization.

In addition, the court made specific findings about the mother’s conduct later in 2009 that supported the timing of the petitioner’s pursuit of the termination petition. The mother does not dispute the accuracy of findings that she repeatedly was unsuccessful in her attempts to parent Valerie and was not steadfast in her pursuit of mental health counseling. In light of the urgency of stabilizing Valerie’s care, the petitioner cannot be faulted for proceeding with the termination petition when she did.

Alternatively, the mother claims that the petitioner’s attempts to reunify her with Valerie were “insufficient as a matter of law.” She maintains that, because the department was aware of her significant cognitive and psychological deficits, it was required to do more than to provide her with access to remedial services. She argues that, under these circumstances, the department should have taken proactive steps on her behalf, such as providing assistance in finding adequate housing and suitable employment.

In support of this contention, the mother cites In re Vincent B., 73 Conn. App. 637, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). That case is distinguishable, however, in that it involved a decision by the department to cut off all services to the respondent father. Id., 643. Nothing in that case establishes an obligation for the petitioner to take on the role of a conservator. To the contrary, with respect to termination proceedings involving a child with special needs, our case law has upheld the authority of a trial court to draw an adverse inference from a parent’s failure to access mental health services that might have enabled the parent to assist in the care of the child. See In re Alexander T., 81 Conn. App. 668, 673-76, 841 A.2d 274, cert. denied, 268 Conn. 924, 848 A.2d 472 (2004). We are persuaded, therefore, that the court correctly concluded that the petitioner made reasonable efforts to reunify Valerie with her mother in accordance with § 17a-112 Q) (1).

B

The court further found, pursuant to § 17a-112 (j) (3) (B) (ii), that the mother had failed to achieve such personal rehabilitation as to “encourage the belief that within a reasonable time, considering the age and needs of Valerie, [the] mother could assume a responsible position in Valerie’s life.” Specifically, the court found that “Valerie is a young child with complex medical (and possibly psychological) needs and is entirely dependent on her caregivers to meet those needs. She has been in the custody of the department for two years, not quite half her life. There is, sadly, little reason to think that [the] mother would be in a position to care for her or to offer appropriate accommodation within a reasonable period of time.” The mother does not claim that she presently is able to assume parental responsibility for Valerie. She argues, instead, that the court improperly appraised the likelihood that she would be able to do so in the future. We disagree.

The mother maintains that the court did not attach sufficient significance to her substantial progress in personal rehabilitation. She testified at the evidentiary hearing that she was taking her required medications and was making progress in counseling sessions. Although she acknowledged her recent arrest for breach of the peace and a recent positive test for marijuana, the mother argues that there was no evidence that her misconduct had a negative impact on her ability to parent Valerie. She claims that these shortcomings are isolated in nature and do not outweigh her recent endeavors to improve her parenting of Valerie.

The record reveals, however, that there was substantial evidence on which the court could rely in support of its finding to the contrary. During the evidentiary hearing, Stephanie Stein Leite, an expert in child psychology, testified that the mother had only a superficial understanding of her mental health problems and lacked the ability to care for a special needs child such as Valerie. Consistent with this expert testimony, the court noted that the mother’s participation in mental health counseling had become “increasingly sporadic” after the fall of2009 and that she had moved to Connecticut with no plans as to how she would support herself, “apparently relying on her fiance, whom she had accused of violence towards her in the past, and whom she acknowledges has substance abuse issues.” The court noted further that, during these termination proceedings, the mother “became emotional and somewhat out of control on several occasions.” We are persuaded, therefore, that the trial court’s adverse determination must be sustained.

In sum, in the mother’s appeal, we conclude that the judgment of the court terminating the mother’s parental rights must be affirmed. Its careful and detailed memorandum of decision provides ample support for its finding that the petitioner established, by clear and convincing evidence, that (1) despite the petitioner’s reasonable efforts to reunify the mother with Valerie, the mother is unable or unwilling to benefit from further reunification efforts and (2) the mother is not likely to be able, within a reasonable time, to assume a responsible position in Valerie’s life.

II

MOTION TO TRANSFER GUARDIANSHIP

Both the mother and the grandmother have appealed from the judgment of the court denying the grandmother’s motion to transfer guardianship. In support of its judgment denying the motion, the court found that, despite her great love for Valerie, the grandmother lacked a fundamental understanding of, and ability to care properly for, Valerie’s substantial special needs. The grandmother challenges this finding, claiming that the court’s denial of her motion for transfer of guardianship constituted an abuse of discretion.

Questions of custodial placement generally are resolved by a factbound determination of “what is in the best interest of the child ... as shown by a fair preponderance of the evidence.” (Citations omitted.) In re Shyina B., 58 Conn. App. 159, 163, 752 A.2d 1139 (2000). “To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence.” (Citations omitted; internal quotation marks omitted.) In re Karl J., 110 Conn. App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954, 961 A.2d 420 (2008).

In this case, the court found that the grandmother “is not a suitable person in whom to vest the guardianship of this medically complex child.” Specifically, the court found that “[i]f Valerie did not suffer from Turner’s Syndrome, [the grandmother] would, in all likelihood be an appropriate caregiver. However . . . Valerie is a special needs child. She needs to have a caretaker who is functioning at a high level, able to integrate her medical and psychosocial needs. Sadly, the court does not believe that [the grandmother] has that ability.” The grandmother claims that the court abused its discretion in reaching this conclusion. We disagree.

To assist in the assessment of the grandmother’s capacity to become a possible placement resource for Valerie and to take account of her greater fluency in Spanish as opposed to English, the department arranged for the grandmother to be interviewed by Rudolfo J. Rosado, a Spanish-speaking and “culturally competent” psychologist. Rosado informed the court that the grandmother “lacked comprehension and understanding,” which “raised doubt regarding the extent of [the grandmother’s] cognitive capabilities.” Rosado described the grandmother’s overall score on a nonverbal test of intelligence as falling within the mild range of mental deficiency. At the evidentiary hearing, he opined that “the results of the evaluation created questions about [the grandmother’s] ability to understand, follow through and effectively partner with the professionals that would be involved in Valerie’s life.” The court observed that Rosado’s testimony “echoed the department’s concerns that [the grandmother] did not appear to understand, or retain, information provided to her by the department.”

The grandmother does not contest the accuracy of Rosado’s assessment or the propriety of the court’s reliance thereon. Instead, she claims that the court abused its discretion by considering only Rosado’s ultimate findings and not the specific remedial recommendations that he had made to the department.

In light of the substantial evidence that the petitioner presented to document the grandmother’s strengths and weaknesses, we are not persuaded that the department was obligated to conduct the additional evaluations of the grandmother that Rosado had suggested. In its memorandum of decision, the court noted numerous instances in the record that demonstrated the grandmother’s limited intellectual capacity and raised reasonable doubts about her ability to care for Valerie’s specialized medical needs. This evidence included the grandmother’s lack of awareness of Valerie’s learning disabilities, her potential heart problems and her risk of developing diabetes. The court further noted that Rosado and department personnel had had difficulty communicating with the grandmother and that they had expressed their concern that the grandmother’s lack of intellectual capacity and “ ‘histrionic and emotional communication style’ ” prevented her from understanding and processing information necessary to care properly for Valerie. The court also relied on the fact that, at a meeting with the department concerning Valerie’s special medical needs and behavioral problems, the grandmother exhibited her lack of understanding by becoming distressed and tearful and repeatedly asking why Valerie “could not come home.”

Viewing this record as a whole, we are persuaded that the court carefully appraised the evidence presented by all of the parties and decided reasonably that vesting guardianship of Valerie in the grandmother was not in Valerie’s best interest. Its ruling on both the mother’s appeal and the grandmother’s appeal must, therefore, be affirmed.

Ill

MOTION TO OPEN

The grandmother also appeals from the denial of her motion to open the dispositional phase of the termination proceedings. On November 26, 2010, following the judgment of the court terminating the mother’s parental rights and denying the grandmother’s motion to transfer guardianship, the grandmother filed a timely “Motion to Open Disposition and Denial of Transfer of Guardianship.” The motion was based on the grandmother’s representation that, after the termination proceedings had concluded, Valerie’s placement in a preadoptive foster home had failed. The court heard oral argument on December 7, 2010, and denied the motion on March 25, 2011.

“Our review of a court’s denial of a motion to open ... is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) In re Travis R, 80 Conn. App. 777, 781-82, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).

In its memorandum of decision denying the motion to open, the court noted that, despite the grandmother’s claims, “[n]o evidence of . . . good cause [to open the judgment] was before the court . . . .” Furthermore, even if the grandmother had presented reliable evidence in support of her assertions, the court found that such evidence would not have constituted the “good cause” necessary to open the judgment terminating the mother’s parental rights. The court stated: “[T]he court is enjoined not to consider the placement of a child posttermination as a factor in its decision-making process .... In performing its duties with respect to a [termination of parental rights] trial, this court’s responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any [termination of parental rights] case disposition: In the dispositional phase of a termination proceeding, the court properly considers only whether the parent’s parental rights should be terminated, not where or with whom a child should reside following termination. In re Sheena L, 63 Conn. App. 713, 726, 778 A.2d 997 (2001); see also In re Davonta V., [98 Conn. App. 42, 53 n.11, 907 A.2d 126 (2006), aff'd, 285 Conn. 483, 940 A.2d 733 (2008)]. The rationale for this is to prevent a court [from] making a decision to terminate a parent’s rights primarily because it considers the child [to] be better off with wealthier, more intelligent, better socially positioned parents. If the court should not make its decision to terminate based on the place the child will reside posttermination, then it is difficult to find that it should [open] that judgment if the placement falls through — sad though that may be. The ability of the parent to be a resource does not alter based on subsequent events. Additionally, to permit judgments to be [opened] whenever the plans of the statutory parent cannot be achieved would lead to more uncertainty and impermanence.” (Internal quotation marks omitted.)

In her appeal, the grandmother reiterates the claims that she unsuccessfully raised to the trial court. In our view, however, the court’s reasoning is persuasive and its denial of the grandmother’s motion, therefore, was not an abuse of discretion. Accordingly, the judgment of the court denying the grandmother’s motion to open the dispositional phase of the termination proceedings must be affirmed.

In sum, we conclude that the trial court properly found that, despite the well-meaning and heartfelt concerns of Valerie’s mother and grandmother for her well-being, they are unable to take primary responsibility to care for a child with needs as severe as Valerie’s. Accordingly, the court properly terminated the mother’s parental rights and properly denied the grandmother’s petition to become the child’s guardian.

The judgment is affirmed.

In this opinion the other judges concurred.

       The father lives in the Dominican Republic and did not attend or participate in the termination proceedings. He was defaulted by the court for his failure to appear. He is not a party to either of the present appeals.

       Valerie suffers from Turner syndrome, a chromosomal abnormality affecting females in which all or part of one of the sex chromosomes is absent. The court described Turner syndrome as follows: “Turner syndrome is a genetic disorder that affects a girl’s development. The cause is a missing or incomplete X chromosome. Girls who have [Turner syndrome] axe short, and their ovaries don’t work properly. Most are infertile. They are at risk for health difficulties such as high blood pressure, kidney problems, diabetes, cataracts, osteoporosis and thyroid problems. Other physical features typical of Turner syndrome are: Short, ‘webbed’ neck with folds of skin from [the] tops of [the] shoulders to [the] sides of [the] neck, low hairline in the back, low-set ears, swollen hands and feet. There is no cure for Turner syndrome, but there are some treatments for the symptoms. Growth hormone often helps girls reach heights that are close to average. Hormone replacement can stimulate sexual development. Assisted reproduction techniques can help some women with Turner syndrome get pregnant.”
      Valerie requires the use of bilateral hearing aids. In addition to the “substantial risk” of diabetes, high blood pressure, cardiac problems, cataracts, osteoporosis, thyroid and kidney problems attendant to Turner syndrome, Valerie has experienced numerous developmental delays that have affected her adaptive, cognitive and communicative skills. Valerie is a special education student. She has been assessed to have a full scale IQ of 70, which is in the borderline range of functioning. Her expressive and receptive language skills were assessed as being below expectation for her age. Valerie also has “ ‘a significant history of behavioral concerns,’ ” including aggressive and violent behavior. “She requires one-to-one assistance within a classroom setting and far more supervision within her home environment than what might be expected for a child her age.”

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon notice and hearing 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 that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb, or determines at trial on the petition, that such efforts are not required . . . .”

         General Statutes § 17a-112 (j) (3) (B) provides for the termination of parental rights when the child “(ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child 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 . . . .”

       The mother also asserts that the court failed to make the formal evidentiary finding required by § 17a-112 (j) (1). That finding is implicit in the court’s discussion of the evidence of record.

       The mother was admitted to the hospital in July, 2008. She was discharged in December, 2008, and lived in New York with the grandmother while participating in outpatient care until June, 2009, when she returned to Connecticut to live with her fiance.

       See footnote 4 of this opinion.

       We recognize the mother’s additional argument that her parental rights should not have been terminated because the court should have approved the motion for transfer of guardianship to the grandmother. We address this contention in part II of this opinion.

       Although the mother and the grandmother both have appealed from the judgment denying the grandmother’s motion to transfer guardianship, only the grandmother challenges the propriety of the court’s finding that she was not a “suitable and worthy” caregiver in whom to vest guardianship of Valerie. The grandmother also argues, as does the mother in her appeal, that the court improperly failed to order an interstate compact study. With respect to this latter argument, the mother and grandmother claim that the court, upon granting the grandmother’s motion to intervene, was required to order an interstate compact study pursuant to General Statutes § 46b-129 (d) (2). We disagree.
      As amended by No. 09-185, § 3 of the 2009 Public Acts (effective June 29, 2009), General Statutes § 46b-129 (d) provides, in relevant part: “(1) (A) If not later than thirty days after the preliminary hearing, or within a reasonable time when a relative resides out of state, the Commissioner of Children and Families determines that there is not a suitable person related to the child or youth by blood or marriage who can be licensed as a foster parent or serve as a temporary custodian . . . any person related to the child or youth by blood or marriage may file, not later than ninety days after the date of the preliminary hearing, a motion to intervene for the limited purpose of moving for temporary custody of such child or youth. ... (2) Upon the granting of intervenor status to such relative of the child or youth, the court shall issue an order directing the Commissioner of Children and Families to conduct an assessment of such relative and to file a written report with the court not later than forty days after such order, unless such relative resides out of state, in which case the assessment shall be ordered and requested in accordance with the provisions of the Interstate Compact on the Placement of Children, pursuant to section 17a-175. . .
      In its memorandum of decision denying the grandmother’s motion to transfer guardianship, the court noted that the petitioner had conducted an assessment of the grandmother for the purpose of evaluating her as a possible placement resource for Valerie. The court denied the motion on the ground that the grandmother is “not a suitable person in whom to vest the guardianship of this medically complex child.” The court’s finding that the grandmother was not a “suitable person” in whom to vest guardianship of Valerie foreclosed the possibility that Valerie would be transferred out of this state. Whether such an adverse finding obviates the need for an interstate compact study; see In re Yarisha F., 121 Conn. App. 150, 156-57, 994 A.2d 296 (2010); is an issue that we need not address because the governing statute came into effect at a date subsequent to the filing of the grandmother’s motion to intervene.

       In addition to the allegation that Valerie’s foster placement had failed, the grandmother’s motion to open reiterated the grounds stated in her prejudgment motions to reargue and for articulation, filed November 4, 2010, and denied by the court on that date.

       The grandmother’s motion was intended to demonstrate the inaccuracy of the petitioner’s contention, at trial, that these foster parents had custodial skills that were superior to those manifested by the mother and the grandmother.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    RICHARD BARRY v. BOARD OF EDUCATION OF THE CITY OF NEW BRITAIN
    (AC 32201)
    DiPentima, C. X, and Alvord and Bishop, Js.

      Argued October 11
    officially released December 27, 2011

      Leon M. Rosenblatt, for the appellant (plaintiff).

      Michael P. McKeon, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Richard Barry, appeals from the summary judgment rendered by the trial court in favor of the defendant, the board of education of the city of New Britain, on the plaintiffs claims of breach of the parties’ settlement agreement and breach of the parties’ employment contract. On appeal, the plaintiff argues that the court improperly determined that he was collaterally estopped from bringing these claims. We disagree and accordingly affirm the judgment of the trial court.

The following factual and procedural history is relevant to our consideration of the plaintiffs claims. In 1989, the plaintiff was hired by the defendant as the personnel manager in the human resources department and continued in that position until 1996 when he was replaced and reassigned to the position of associate personnel manager. Thereafter, the plaintiff filed a federal age discrimination action against the defendant, which settled on June 25,2001, pursuant to arelease and settlement agreement (settlement agreement) between the parties. As a result of the settlement of this first action, the plaintiff was reinstated as personnel manager. Four days after finalizing the settlement agreement, by which the plaintiff released all claims against the defendant and which included provisions pertinent to his employment, the plaintiff entered into an employment contract with the defendant, which included a provision that the plaintiff could be terminated for good and just cause.

After the settlement, anew superintendent of schools (superintendent) was appointed. To facilitate her assessment of the school system, she arranged an outside audit of the organization. The audit questioned the efficiency of the human resources department, attributing several problematic aspects to its organizational structure. The audit specifically questioned the efficacy of having two administrative positions — an executive director as well as a personnel manager. After the superintendent and her assistants consulted with subordinate supervisors on details of their perceived budgetary needs, the school administration prepared a budget for the 2004 — 2005 fiscal year and submitted it to the defendant for review. This first budget proposal included funding for the plaintiffs position. The defendant recommended the proposal to the board of finance, which, in turn, forwarded to the mayor its recommendation for a reduction of the administration’s submission by $5.48 million. In response, the administration began to consider ways to reduce the budget. Its preliminary considerations included the elimination of several staff positions, one of which was the plaintiffs position. The mayor adopted the board of finance’s budget proposal submission, but New Britain’s common council overrode the mayor’s decision. After a public hearing, the administration’s budget ultimately was reduced by $3.4 million. As a consequence of this reduction, members of the school’s administration met with a property owners association, students’ parents, and members of the staff to hear their respective views of what positions and programs should be retained and those that could be removed from the final budget. The administration then presented those views to the defendant.

As required, the defendant adopted a budget for the 2004-2005 fiscal year, which was within the amount authorized by the common council, and which, among other reductions, eliminated a total of forty-eight positions including certain teachers, paraprofessionals, clerical, custodial, maintenance, nursing and security personnel and the plaintiffs position. After the superintendent determined that the budget constraints created just cause for terminating those positions that were eliminated, she provided written notice to the plaintiff on June 21, 2004, that his position had been eliminated as a result of budget cuts. On July 31, 2004, the superintendent gave the plaintiff written notice that his dismissal was under consideration. In response, the plaintiff and his attorney attended a hearing conducted by the defendant to review its termination, which the defendant affirmed. The human resources department thereafter was reorganized, and the plaintiffs position was not refilled.

On or about June 1, 2004, the director of human resources left and was replaced temporarily by a seventy-three year old man. The plaintiff was interviewed, along with other applicants, for the permanent position. Because none of the applicants was deemed a suitable match for the position, the superintendent recommended that the position not be filled at that time. The position later was filled, following an employment posting, by an individual who was not among the original applicants.

On February 24, 2005, the plaintiff filed a second federal action against the defendant, alleging discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and breach of his employment contract and settlement agreement. On May 12, 2006, the defendant filed a motion for summary judgment, and the plaintiff subsequently filed a motion for partial summary judgment. On December 22, 2006, the United States District Court granted the defendant’s motion for summary judgment as to all claims and denied the plaintiffs motion for partial summary judgment. Thereafter, the plaintiff filed a notice of appeal to the United States Court of Appeals for the Second Circuit. On March 30, 2007, the plaintiff filed a motion with the District Court, requesting that it retroactively decline to exercise pendent jurisdiction over the plaintiffs two state claims, thereby vacating its prior disposition of them. The District Court granted the plaintiffs motion and dismissed the state claims without prejudice so that the plaintiff could pursue them in state court.

On June 7, 2007, the plaintiff filed this action in state court against the defendant, alleging that the defendant breached the settlement agreement and the employment contract. The defendant filed an answer and special defenses but did not raise the defense of collateral estoppel. On April 3, 2008, however, the defendant filed a motion for summary judgment, claiming as to each count, inter alia, that there was no genuine issue of material fact. The defendant also claimed that the state action should be barred by the doctrines of res judicata and collateral estoppel. On November 3,2008, the same day as the hearing on the motion for summary judgment, the plaintiff filed a brief in which he argued that the defendant had waived its preclusion arguments by failing to raise them as special defenses. During oral argument, the court concluded that it was appropriate to stay further proceedings in the matter pending the Second Circuit’s decision with regard to the plaintiffs federal appeal. On November 24, 2008, the Second Circuit affirmed the District Court’s judgment granting the defendant’s motion for summary judgment. Barry v. Board of Education, 300 Fed. Appx. 113 (2d Cir. 2008). On December 31, 2008, the defendant filed a motion to amend its special defenses in the state action to include the doctrines of res judicata and collateral estoppel, to which the plaintiff did not formally object. On April 13, 2010, the trial court granted the defendant’s motion for summary judgment on the basis that there were no genuine issues of material fact and that the plaintiffs claims were barred by the doctrines of res judicata and collateral estoppel. This appeal followed.

On appeal, the plaintiff contends that the court improperly determined that his claims of breach of the employment contract and breach of the settlement agreement were barred by the doctrine of collateral estoppel. The trial court found that the plaintiff was collaterally estopped from asserting these claims on the basis of the District Court’s disposition of the plaintiffs federal claims under the ADEA. According to the plaintiff, the trial court should have relied on the Second Circuit’s decision in evaluating the applicability of the doctrine of collateral estoppel. The plaintiff argues that because the District Court dismissed the state claims without prejudice, the facts supporting the plaintiffs state claims were neither affirmed by nor necessary to the Second Circuit’s affirmance of the District Court’s decision. We disagree.

Before turning to the merits of the plaintiff’s appeal, we note the standard that governs our review of the trial court’s granting of a motion for summary judgment. Practice Book § 17-49 provides that summary judgment is appropriate “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Our Supreme Court has explained that “[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving parly. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010).

“Whether the . . . doctrine of collateral estoppel [is applicable] is a question of law for which our review is plenary. . . . Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . [Thus] [ijssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment. . . . The doctrine of collateral estoppel express [es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. . . .

“Before collateral estoppel applies . . . there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” (Citations omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 100 Conn. App. 94, 99, 917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d 140 (2007). “Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party.” Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303, 596 A.2d 414 (1991).

Generally, when the Second Circuit makes its own assessment of the parties’ claims and undertakes independently to explain its reasoning, which is not identical to that of the District Court, the relevant decision for purposes of res judicata and collateral estoppel is that of the Second Circuit. Connecticut National Bank v. Rytman, 241 Conn. 24, 39, 694 A.2d 1246 (1997). In this case, however, because the Second Circuit adopted the factual findings of the District Court and issued a summary order; Barry v. Board of Education, supra, 300 Fed. Appx. 113; we rely on the opinions of both the District Court and the Second Circuit in reviewing the claim of collateral estoppel. See Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82,93, 616 A.2d 786 (1992); see also Milford v. Andresakis, 52 Conn. App. 454,458 n.7, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

In order to apply the doctrine of collateral estoppel, we must first conclude that there is an identity of issues between the prior proceeding and the case at hand. Terracino v. Buzzi, 121 Conn App. 846, 853, 1 A.3d 115 (2010). We begin our analysis, therefore, by determining whether the issues actually decided by the District Court and later affirmed by the Second Circuit were identical to those underlying the plaintiffs state claims in the present matter. After thoroughly reviewing the record, we are persuaded that the issues are identical and, therefore, warrant the application of collateral estoppel. The District Court and the Second Circuit made it amply clear that both courts fully considered and determined, adversely to the plaintiff, the issue of whether his discharge was a pretext for underlying discriminatory or retaliatory motives. This is the same issue that the plaintiff now attempts to relitigate in state court, even though it is cast as common-law contract claims. The identity of the issues in these two actions is further evidenced by the plaintiffs assertion of nearly identical factual allegations in both this state action and the federal litigation.

Having established that the factual allegations asserted by the plaintiff in the present case and the previous federal litigation are identical, we now turn to the plaintiffs claim that the court’s finding of collateral estoppel was improper because resolution of the question of whether he was terminated on the basis of a pretext for underlying discriminatory or retaliatory motives was not necessary to the Second Circuit’s affirmance of the District Court’s decision. The record does not support the plaintiffs position. The District Court found that the defendant offered evidence showing good and just cause for terminating the plaintiff. It noted that “[b]ecause the [defendant] has articulated legitimate, nondiscriminatory reasons for the elimination of [the] [plaintiffs position and for its refusal to rehire [the] [p]laintiff, the burden shifts back to [the] [p]laintiff to prove by a preponderance of evidence that [the] [defendant's proffered reasons are a pretext for discrimination. . . . [The] [p]laintiff has offered no evidence to contradict [the] [d]efendant’s legitimate, nondiscriminatory reasons.” (Citations omitted.) Barry v. Board of Education, United States District Court, Docket No. 3:05CV 00328 (PCD), 2006 WL 3791388, *5 (D. Conn. December 22, 2006), aff'd, 300 Fed. Appx. 113 (2d Cir. 2008). This finding was necessary to the District Court’s conclusion that the plaintiff failed to prove his claim that the defendant’s articulated rationale for terminating him was a pretext for underlying discriminatory or retaliatory motives.

The Second Circuit, in its summary order, agreed with and necessarily relied on the factual findings of the District Court, which is evidenced by its conclusion that the plaintiff could not “establish pretext for either of his claims”; Barry v. Board of Education, supra, 300 Fed. Appx. 114; and that the plaintiff did not demonstrate that “the proffered explanations for terminating his position . . . were merely pretextuai and that the actual motivations more likely than not were discriminatory . . . .” (Internal quotation marks omitted.) Id. The Second Circuit’s reference to additional supporting facts in its affirmance of the judgment; id.; does not negate its reliance on the District Court’s findings.

Moreover, resolution of the issue of whether the plaintiff was terminated on the basis of a pretext with underlying discriminatory or retaliatory motives would be necessary for recovery on the complaint in issue. Both counts of the plaintiffs complaint are based on the following allegations: (1) the plaintiff was terminated under the pretext that “the defendant was trying to save money;” and (2) the defendant’s alleged breaches of both the employment contract and the settlement agreement were “wanton,” “malicious” and based on “bad motives.” The complaint, therefore, is premised on the assertion that the defendant’s termination of the plaintiff was based on a pretext with underlying discriminatory motives. The District Court already found, and the Second Circuit affirmed, that the plaintiff failed to prove that he was terminated on the basis of a pretext with underlying discriminatory motives. This issue, therefore, is foreclosed. Accordingly, we conclude that the plaintiffs claims are barred by the doctrine of collateral estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition, the plaintiff argues that the court improperly rendered summary judgment as to the aforementioned claims because there were genuine issues of material fact to be adjudicated by a fact finder. Because we conclude that the doctrine of collateral estoppel applies to all of the claims, we need not reach the claim that the existence of genuine issues of material fact should have precluded summary judgment.
      Lastly, the plaintiff argues that the court improperly determined that the doctrine of res judicata barred him from litigating his claims. The plaintiff argues that res judicata is inapplicable because the United States District Court for the District of Connecticut dismissed his claims without prejudice in the prior federal action, thereby vacating any judgment as to those claims. Because “[ajpplication of the doctrine of res judicata requires that there be a previous judgment on the merits;” Legassey v. Shulansky, 28 Conn. App. 653, 658, 611 A.2d 930 (1992); we are inclined to agree with the plaintiff that res judicata is inapplicable in the present action. See Beccia v. Water

        bury, 192 Conn. 127, 132, 470 A.2d 1202 (1984); DeLaurentis v. New Haven, 220 Conn. 225, 240-41, 597 A.2d 807 (1991).

       The factual and procedural history is derived from the United States District Court’s decision. See Barry v. Board of Education, United States District Court, Docket No. 3:05CV 00328 (PCD), 2006 WL 3791388 (D. Conn. December 22, 2006), aff'd, 300 Fed. Appx. 113 (2d Cir. 2008).

       The plaintiff disputes that the settlement agreement was executed prior to the employment contract. Because this alleged factual discrepancy does not alter our analysis or conclusion, we need not address this argument.

       The United States Court of Appeals for the Second Circuit noted that the individual who was eventually hired for the position of director had a law degree, an asset that the defendant perceived to represent the likelihood of a financial savings and an increase in office efficiency. At any relevant time, the plaintiff has not had a law degree. See Barry v. Board of Education, 300 Fed. Appx. 113, 114 (2d Cir. 2008).

       The defendant’s claims regarding res judicata and collateral estoppel were not raised in its initial memorandum of law in support of its motion for summary judgment but were later raised in its supplemental memorandum of law, which was filed on October 16, 2008.

       Local Rule 32.1.1 (a) of the Second Circuit provides that “[rjulings by summary order do not have precedential effect.” The reason for this rule is that summary orders typically do not contain a sufficiently detailed factual background for purposes of comparison with subsequent cases. See Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011).

       In both the federal and state complaints, the plaintiff alleges that he was terminated “under the pretext that the defendant was trying to save money. ”

       Although the plaintiff submitted three additional affidavits to the trial court in support of his state claims, which were not before the District Court or the Second Circuit, these documents do not negate the existence of collateral estoppel. See Lyon v. Jones, 291 Conn. 384, 409-10, 968 A.2d 416 (2009).

       The Second Circuit did not outline the factual and procedural history that was previously articulated in the District Court’s decision. Rather, it noted, “[w]e assume the parties’ familiarity with the underlying facts and procedural history of this case.” Barry v. Board of Education, supra, 300 Fed. Appx. 114. The Second Circuit also stated that it reviewed the “ ‘record as a whole’ ” and made its findings thereon. Id.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. MISCELLANEOUS FIREWORKS (B.J. ALAN COMPANY)
    (AC 31959)
    Gruendel, Beach and Robinson, Js.

      Argued October 24
    officially released December 27, 2011

      Terrence M. O’Neill, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellant (plaintiff).

      Proloy K. Das, with whom was Joseph B. Bums, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, the state of Connecticut, appeals from the judgment of the trial court in favor of the defendant, Miscellaneous Fireworks (B.J. Alan Company). On appeal, the plaintiff contends that the court erred in (1) requiring that the plaintiff bear the burden of proof and (2) determining that the five gram chlorate and perchlorate limits established in General Statutes § 29-357 applies to each fountain in a multifountain pyrotechnic device. In response, the defendant argues that we should not reach the merits of these claims because (1) the state is not authorized to appeal under General Statutes § 29-363, (2) the plaintiff has failed to appeal from a final judgment and (3) the appeal previously was dismissed for failing to comply with a nisi order. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs claims. The defendant is an itinerant vendor licensed by the department of consumer protection. On June 27, 2008, the plaintiff seized twelve types of products valued at approximately $147,000 from B.J. Alan Company stores doing business in Connecticut. The plaintiff seized these products pursuant to § 29-357 after the defendant provided documentation to a local fire marshal showing that the products at issue exceeded various statutory limitations for gross weight, amounts of chlorate salts and amounts of perchlorate salts.

An in rem hearing with numerous days of testimony was held on the matter. The parties appeared before the court on November 19, 2009, to present their final arguments. At that time, the state agreed to return seven of the twelve types of products, and the defendant conceded that one of the twelve products did not fit within the statutory limitations set forth in § 29-357. The issue presented to the court was whether the state had proven by clear and convincing evidence that the composition of the four remaining products violated § 29-357 so as to constitute a nuisance under General Statutes § 29-362.

In its memorandum of decision issued on January 28, 2010, the court found in favor of the defendant. The court noted that “very limited testing was able to be conducted on the seized items. ... As a result, insufficient scientifically reliable evidence was produced by the state to prove by clear and convincing evidence that the seized items violated the statutory constraints.” The court explained that of the remaining products at issue, three of those products tested at more than five grams of chlorate or perchlorate salts, but less than six grams. On the basis of these test results, the court determined that “the evidence introduced by the state, which showed a less than six grams of chlorate or perchlorate weight, is not scientifically reliable given the small weight difference claimed and the limited sample of items tested. The state has not sustained its burden of proof in establishing these to be items subject to forfeiture.”

In regard to the Flaming Heart product, the court found that although the testing indicated that the product contained 41.1 grams of chlorate and perchlorate, the product did not violate the statutory limits set forth in § 29-357 because it had thirty-two individual fountains among which to divide the chlorate and perchlorate. In reaching this conclusion, the court looked to the definitions set forth in General Statutes § 29-356 in order to interpret § 29-357 and ultimately concluded that § 29-357 is unambiguous. The court found that “[a]s that statute is worded, there are two types of items contemplated. First, the statutory limitations apply to fountains which: (1) are not more than 100 grams of pyrotechnic mixture, and (2) do not contain magnesium, and (3) do not exceed five grams of chlorate/ perchlorate salts per item. The final language of this statute then changes to indicate that ‘when more than one fountain is mounted on a common base, the totally pyrotechnic composition does not exceed two hundred grams.’ General Statutes § 29-357 (a) (3). . . . [I]n order for the statute to be consistent and meaningful, the first portion of the statute must refer to each single fountain or cylindrical tube, and the later portion of the statute applies to those devices where more than one fountain is mounted on a common base. In those instances where there are more than one fountain, the entirety of the item must not exceed the [200] gram limit of pyrotechnic material. However, each individual fountain still maintains the original criteria of not exceeding five grams of chlorate/perchlorate salts and not containing magnesium.” On the basis of this determination, the court concluded that when the 41.1 grams of chlorate and perchlorate was divided among the thirty-two individual fountains in the product, the product as a whole did not violate the limitations set forth in § 29-357 (a) (2). The court therefore ordered the return of eleven products seized from the defendant and forfeiture of the one remaining product. The plaintiff filed this appeal on February 16, 2010. Additional facts will be set forth as necessary.

I

As a preliminary matter, we first turn to the defendant’s assertion that this court should not reach the merits of the plaintiffs appeal. The defendant provides three bases for this assertion: (1) the court lacks subject matter jurisdiction because the state is not authorized to appeal under § 29-363, (2) the court lacks subject matter jurisdiction because the plaintiff has failed to appeal from a final judgment and (3) the appeal was previously dismissed for failing to comply with a nisi order. We do not agree.

A

The defendant first asserts that this court lacks subject matter jurisdiction over the plaintiffs appeal because § 29-363 does not authorize the state to file an appeal from a court’s ruling ordering the return of seized fireworks. We disagree.

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning . . . [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . .” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 722, 1 A.3d 21 (2010).

Section 29-363 provides in relevant part that “[a]ll such proceedings [concerning the seizure of fireworks or combustibles] shall be proceedings in rem and may be issued and served at any time and shall be conducted as civil actions, and the defendant shall have the same right of appeal.” The defendant argues that the plain meaning of § 29-363 is that only the defendant has the right to appeal from the in rem proceeding. We disagree that simply because the statute references only the defendant’s right to appeal, this necessarily indicates that the state lacks the same right. The statute does not explicitly provide that the state may not appeal from the trial court’s ruling ordering the state to return any seized combustibles. We instead read the language of this provision as indicating that although this is a special in rem proceeding, the defendant shall have the same right of appeal as it would in an ordinary civil action.

Furthermore, because § 29-363 provides that the in rem proceeding “shall be conducted as [a civil action],” the state would have the right to appeal under General Statutes § 52-263, which “confers on a party in a civil action certain rights to appeal.” State v. Morrissette, 265 Conn. 658, 664, 830 A.2d 704 (2003). “It is well established that the subject matter jurisdiction of the Appellate Court ... is governed by ... § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court.” (Internal quotation marks omitted.) Trumbull v. Palmer, 123 Conn. App. 244, 250, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d 526 (2010). Although § 29-363 only explicitly refers to the defendant’s right to appeal, in the present matter, the state is an aggrieved party that has appealed from a final judgment. On the basis of our reading of the relevant statutory provisions, that is sufficient to allow the state to appeal from the court’s decision.

B

The defendant next asserts that this court lacks subject matter jurisdiction because the plaintiffs appeal was not taken from a final judgment. We disagree.

“The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review], ... As our Supreme Court has explained: To consider the [plaintiffs] claims, we must apply the law governing our appellate jurisdiction, which is statutory. . . . The legislature has enacted General Statutes § 52-263, which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless a specific right to appeal otherwise has been provided by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim. . . . Further, we have recognized that limiting appeals to final judgments serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings.” (Internal quotation marks omitted.) J & E Investment Co., LLC v. Athan, 131 Conn. App. 471, 482-83, 27 A.3d 415 (2011).

The following additional facts are relevant to the resolution of the defendant’s claim. Judgment was rendered in favor of the defendant on January 28, 2010, and the plaintiff filed the present appeal on February 16, 2010. The defendant filed a motion for an order, dated November 5, 2010, requesting the court to issue a warrant directing that the plaintiff restore the fireworks seized to the defendant. The court issued such order on December 2, 2010.

The defendant relies on the language of § 29-363, which provides in relevant part that “[i]f judgment is rendered that such fireworks do not constitute a nuisance, the court shall issue a warrant to some proper officer, directing him to restore such fireworks ... to the place where they were seized, as nearly as possible, or to the person entitled to receive them. ...” The defendant contends that although the court issued its memorandum of decision on January 28, 2010, there was no final judgment until the court issued a restoration order on December 2, 2010. The plaintiff filed the present appeal on February 16, 2010. Thus, the defendant contends that this appeal was not taken from a final judgment.

We conclude that the court’s January 28, 2010 decision was a final judgment from which the plaintiff could properly appeal. The defendant’s motion requesting that the products be restored was a postjudgment motion that did not affect the finality of the court’s judgment on January 28, 2010. Furthermore, we do not read § 29-363 as providing that only after the court issues a warrant for restoration can there be a final judgment. Rather, we read this provision as providing that the warrant may only be issued after the court has issued a final judgment in the matter. Accordingly, we conclude that the plaintiffs appeal was taken from a final judgment.

C

Last, the defendant asserts that we should not reach the merits of the plaintiffs appeal because the plaintiff s appeal previously was dismissed for failing to comply with a nisi order. We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim. On June 21, 2010, the defendant filed a motion to dismiss the plaintiffs appeal because the plaintiffs brief was due on May 20, 2010, and had not yet been filed at that time. The appellate clerk’s office issued a nisi order indicating that the motion to dismiss would be granted if the plaintiff did not submit its brief by July 21, 2010. On July 26, 2010, the plaintiff filed a motion for permission to file a late brief, which the appellate clerk’s office granted on August 3, 2010.

The defendant maintains that the July 7, 2010 order dismissed the plaintiffs appeal as of July 21,2010, when the brief was not filed by the plaintiff. Nisi orders are “orders [that] are conditional and empower the affected party either to avoid an adverse order of the court or to cause an existing adverse order to be set aside or vacated by complying with the specified conditions.” Whalen v. Ives, 37 Conn. App. 7, 18, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).

The record indicates that the plaintiffs appeal was never formally dismissed on the nisi order. Although the appellate clerk ordered that the appeal would be dismissed if the plaintiff did not submit its brief by July 21, 2010, the appeal was never dismissed after the July 21, 2010 date passed. Furthermore, the appellate clerk’s office granted the plaintiffs motion for permission to file a late brief, and the plaintiff filed such brief. The appellate clerk’s office has wide discretion to accept a late brief or reinstate an appeal that has been dismissed on a nisi order, and the exercise of that discretion does not implicate this court’s subject matter jurisdiction. The plaintiffs appeal then was never formally dismissed.

II

The plaintiffs first contention on appeal is that the court erred in requiring the state to bear the burden of proof for establishing that the seized products constituted a nuisance. The plaintiff maintains that under § 29-362, the defendant bears the burden of proof. We disagree.

We begin by noting the applicable standard of review. “When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007).

The plaintiff contends that the language found in § 29-362 indicates that the person from whom combustibles were seized carries the burden of proving that the combustibles should not be adjudged a nuisance. Section 29-362 provides statutory authority for the state fire marshal to seize fireworks or combustibles that violate §§ 29-356 to 29-366, inclusive. It provides in relevant part that after combustibles have been seized, the Superior Court shall cause to be left at the place of seizure “a summons notifying [those affected] and all others whom it may concern to appear before such court . . . to show cause, if any, why such fireworks should not be adjudged a nuisance. . . . The informing officer or the complainants may appear and prosecute such complaint and, if the court finds the allegations of such complaint to be true and that such fireworks or any of them have been kept in violation of any provision of sections 29-356 to 29-366, inclusive, judgment shall be rendered that such articles are a nuisance, and execution shall issue that the same be destroyed together with the crates, boxes or vessels containing the same. ...” General Statutes § 29-362. The plaintiff argues that the language in § 29-362 that an individual may appear before the court “to show cause” why the combustibles at issue are not a nuisance indicates that the burden of proof rests with the individual contesting the seizure of the combustibles.

A show cause order does not necessarily transfer the burden of proof to the party against whom it has been served. In the case of In the Matter of Gilhuly’s Petition, 124 Conn. 271, 199 A. 436 (1938), the plaintiffs’ names had been removed from a political enrollment list by the defendants. Id., 275. A statutory provision provided that the defendants were required to appear and show cause why the names of the electors should not be restored to the list. Id., 281. The court determined that the burden rested with the plaintiff to demonstrate that the defendants arbitrarily and illegally struck their names from the list. Id. The court stated: “No reason appears for interpreting the statutory provision authorizing a citation commanding the defendants in the name of the state to appear and show cause why the plaintiffs’ names should not be restored to such list, as imposing any greater duty upon them than would the issuance of the ordinary rule to show cause incident to a pending action, as, for example, on a motion for a temporary injunction. Under the provisions of [General Statutes (1930 Rev.) §] 703 [now § 9-63] this process is simply utilized as a summary method of procedure, and when served upon the defendant amounts to no more than process in a plenary suit. ... As ordinarily used, an order to show cause has simply the effect of notice of a motion. . . . The burden of proof thereon rests upon the plaintiff.” (Citations omitted; internal quotation marks omitted.) Id., 281-82; see also Thalheim v. Greenwich, 256 Conn. 628, 652 n.18, 775 A.2d 947 (2001) (noting that “an order to show cause has simply the effect of notice of a motion” [internal quotation marks omitted]).

On the basis of our reading of § 29-362, as well as the relevant appellate authority, we conclude that the burden of proof rests with the state, and not with the defendant, in prosecuting a case involving combustibles. An order to show cause can be understood as providing notice of a legal proceeding to a relevant party. In the present case, the defendant was provided with an opportunity to contest the plaintiffs seizure of combustibles and to “show cause” why those combustibles should not be adjudged a nuisance. The order to show cause was the means used to provide the defendant with notice of the claim and with an opportunity to respond in court. The order, however, did not serve to place the burden of proof on the defendant. Accordingly, the court properly determined that the plaintiff bore the burden of proof.

Ill

The plaintiffs next contention on appeal is that the court erred in determining that the five gram chlorate and perchlorate limits set forth in § 29-357 (a) (2) apply to each tube in a multitube fountain pyrotechnic device. The plaintiff maintains that the statutory limitations on chlorate and perchlorate salts apply to the entire product as a whole. We disagree.

We already have noted the appropriate standard of review for claims presenting a question of statutory interpretation. See part I A of this opinion. We begin our review, then, with the language of the statute. Section 29-357 (a) provides in relevant part: “[N]o person, firm or corporation shall offer for sale, expose for sale, sell at retail or use or explode or possess with intent to sell, use or explode any fireworks. A person who is sixteen years of age or older may offer for sale, expose for sale, sell at retail, purchase, use or possess with intent to sell or use sparklers or fountains of not more than one hundred grams of pyrotechnic mixture per item, which are nonexplosive and nonaerial, provided (1) such sparklers and fountains do not contain magnesium ... (2) such sparklers and fountains containing any chlorate or perchlorate salts do not exceed five grams of composition per item, and (3) when more than one fountain is mounted on a common base, the total pyrotechnic composition does not exceed two hundred grams.”

To interpret the language of § 29-357, we must look to the definition of “fountain” set forth in § 29-356. A fountain is defined as “any cardboard or heavy paper cone or cylindrical tube containing pyrotechnic mixture that upon ignition produces a shower of colored sparks or smoke. ‘Fountain’ includes, but is not limited to, (A) a spike fountain, which provides a spike for insertion into the ground, (B) a base fountain which has a wooden or plastic base for placing on the ground, or (C) a handle fountain which is a handheld device with a wooden or cardboard handle.” General Statutes § 29-356 (3).

Applying that definition, we conclude that the language of § 29-357 is clear and unambiguous. The definition of a fountain necessarily indicates that a fountain is one cone or cylindrical tube containing pyrotechnic mixture. The definition does not use limiting language to indicate that to qualify as a fountain, more than one cone or cylindrical tube must be included. Rather, the definition sets forth that a product is a fountain if it has any such tube or cone, thereby implying that one tube or cone is all that is necessary. Thus the term “item” as used in § 29-357 refers to the individual fountain. As such, under § 29-357 (a) (1) and (2), each individual fountain, or “item,” may not contain magnesium and may not exceed five grams of chlorate and perchlorate salts.

Furthermore, we conclude that § 29-357 (a) (3) is not meant to govern over the individual fountain, but rather, applies to products that allow for more than one formtain, i.e., more than one cone or cylindrical tube, to be mounted on a common base. We conclude that the statute was designed to cover two types of products. The first is that of the individual fountain, which is governed by § 29-357 (a) (1) and (2). The statute, however, under § 29-357 (a) (3) is also intended to apply to products that have more than one fountain applied to a common base. In those instances, the entire product may not exceed more than 200 grams of perchlorate and chlorate salts. Each individual fountain in the product, however, still may not exceed the five gram maximum as mandated in § 29-357 (a) (2). Section 29-357 (a) (3), then, is meant to apply in situations in which more than one fountain is used in a product and essentially limits the number of individual fountains that may be combined on one common base. On the basis of our reading of the statute, we conclude that the requirement in § 29-357 establishing five gram chlorate and perchlorate limits applies to each tube in a multitube fountain pyrotechnic device and not to the entire product as a whole.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the plaintiffs brief, the plaintiff frames the issue as whether the court erred in holding that the plaintiff failed to meet its burden in proving that the fireworks at issue exceeded the statutory limits set forth in General Statutes §§ 29-356 and 29-357. After reading the arguments set forth in the plaintiffs brief, however, we conclude that the plaintiff did not argue that it met its burden of proof; rather, it contends that the defendant should have borne the burden. “Neither this court nor our Supreme Court is bound by the issues as framed by the parties in their statement of the issues. Rather, our analysis is addressed to the contents of the brief. . . . Moreover, a review of the case history in this state reveals that, in determining what issues are to be addressed on appeal, it has been the practice to examine the contents of the brief rather than rely on the statement of the issues.” Papagorgiou v. Anastopoulous, 29 Conn. App. 142, 148-49, 613 A.2d 853, cert. denied, 224 Conn. 919, 618 A.2d 527 (1992). Thus, on the basis of our reading of the plaintiffs brief, we will address what we construe the plaintiffs argument to be, namely, that the court erred in requiring the plaintiff to bear the burden of proof, when the burden should have instead rested with the defendant.

       Those three products were the Apache Firedance, which tested at 5.96 grams, Stellar Performance, which tested at 5.58 grams, and CityFest, which tested at 5.32 grams.

       The plaintiff argues that the legislative intent behind § 29-357 indicates that statutes concerning fireworks must be read narrowly in order to protect public safety. We need not consider the legislative intent behind § 29-357, however, because in this instance the statutory language is clear and unambiguous. See Brown & Brown, Inc. v. Blumenthal, supra, 297 Conn. 722.