author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. JACEK TARASIUK
    (AC 31359)
    DiPentima, C. J., and Alvord and Mihalakos, Js.

      Argued October 21
    officially released December 14, 2010

      Cameron Dorman, special public defender, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Elizabeth M. Moseley, assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Jacek Tarasiuk, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a), possession of marijuana in violation of General Statutes § 2 la-279 (c) and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). On appeal, the defendant claims that (1) his conviction of breach of the peace should be reversed because the court improperly instructed the jury as to the definition of “true threat” and (2) the prosecutor engaged in prosecutorial impropriety that deprived him of a fair trial. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts, as relevant to the issues raised in the defendant’s appeal. The defendant and the victim, Margorzata Backiel, finalized their divorce in May, 2006, but litigation with respect to child support and visitation continued postjudgment. On June 5,2008, the defendant and Backiel were at the New Britain courthouse for one such proceeding. After the hearing, the defendant noticeably was agitated and addressed Backiel in Polish. Backiel testified that he stated, twice, “I will kill you.”

When Backiel and her attorney reported the threat to the courtroom marshal, the marshal detained the defendant in the courthouse’s holding area. The lead marshal was informed of the incident and called the state police, who arrested the defendant and took him into custody. The state trooper inventoried the defendant’s backpack, which held, among other things, a plastic bag containing a leafy substance and a box of cigarettes housing a plastic tube with a burnt residue at the end. Subsequent testing showed that the plant material and residue on the plastic tube were marijuana. The defendant denied ownership of the items.

The defendant was charged by way of long form information with breach of the peace in the second degree, possession of marijuana and possession of drug paraphernalia. After a jury trial, he was convicted on all counts, his previous probation was revoked and he was sentenced to a total effective term of three years, nine months imprisonment. This appeal followed.

I

The defendant first claimed that the court improperly failed to instruct the jury that a “true threat” must not be “mere bluster, exaggeration or something carelessly said in the heat of the moment.” The defendant did not request such an instruction at trial and did not object to the court’s charge, but he now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We determine that the record is adequate for review and that the claim is of constitutional magnitude, but we conclude that the court’s instructions were proper and, therefore, did not deprive the defendant of a fair trial.

“When a challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. . . . [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Pires, 122 Conn. App. 729, 744, 2 A.3d 914 (2010).

In State v. DeLoreto, 265 Conn. 145, 158-59, 827 A.2d 671 (2003), our Supreme Court established the definition and application of the term “true threat” in the context of § 53a-181 (a). Initially, the court in DeLoreto cited the United States Supreme Court’s definition of true threat: “True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protectfs] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.” (Internal quotation marks omitted.) Id., quoting Virginia v. Black, 538 U.S. 343,359-60, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).

Our Supreme Court went on to “distinguish between true threats, which, because of their lack of communicative value, are not protected by the first amendment, and those statements that seek to communicate a belief or idea, such as political hyperbole or a mere joke, which are protected. ... In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a threat is governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. ... A true threat, where a reasonable person would foresee that the listener will believe he will be subjected to physical violence upon his person, is unprotected by the first amendment.” (Citation omitted; internal quotation marks omitted.) State v. DeLoreto, supra, 265 Conn. 155-56.

“Imminence, however, is not a requirement under the true threats doctrine. . . . True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. . . . Nor does our breach of the peace statute require that the threat be imminent. Section 53a-181 (a) (3) requires that the state prove, beyond a reasonable doubt, that the defendant: (1) threatened to commit a crime against another person or that person’s property; (2) with the intent to cause a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.” (Citations omitted; internal quotation marks omitted.) Id., 158-59.

In the present case, that portion of the jury instructions challenged by the defendant is an almost verbatim reproduction of the definition of true threat outlined in DeLoreto. DeLoreto has been cited repeatedly as the primary source for our state’s definition of true threat. See State v. Moulton, 120 Conn. App. 330, 343-44, 991 A.2d 728, cert. granted on other grounds, 297 Conn. 916, 996 A.2d 278 (2010); State v. Cook, 287 Conn. 237, 245-57, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008); State v. Skidd, 104 Conn. App. 46, 54-55, 932 A.2d 416 (2007); State v. Gaymon, 96 Conn. App. 244, 247-50, 899 A.2d 715, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006). The court’s instructions also stated that the conduct must be more than “mere display of bad manners” and repeatedly stated that it must be a “serious expression” of intent to harm. These phrases adequately address the necessity of the threat being more than “mere puffery.” Furthermore, in challenging the instructions in the present case, the defendant’s brief claimed that the instruction should have contained language “similar to the following: A true threat is distinguished from a threat that is mere puffery, bluster, bravado, careless talk, exaggeration or something said in a careless manner.” (Internal quotation marks omitted.) We disagree with the suggestion that these certain taiismanic terms must be included in the jury charge. Accordingly, the defendant’s first claim fails, as there is no reasonable possibility that the jury was misled.

II

The defendant’s second claim is that prosecutorial impropriety deprived him of his constitutional right to due process. He argues that it was improper for the prosecutor to assert during closing argument that the jury should “send [its] own message to this defendant and return a guilty verdict . . . .” The state contends that this does not amount to impropriety, despite the fact that the trial court, sua sponte, issued a curative instruction. We agree that the prosecutor’s statement was not improper.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question . . . .” (Internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 808, 835 A.2d 977 (2003).

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel 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. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . .

“Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ... A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows.” (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 744-46, 888 A.2d 985, cert. denied, 549 U.S. 1030,127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

In the present case, the prosecutor asked the jury, to “send [a] message to this defendant . . . .” We agree with the state that State v. Reynolds, 264 Conn. 1, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004), is controlling. Our Supreme Court held that although the prosecutor may not argue that the jury should send a message to the community, the prosecutor may argue that the jury should send a message to the defendant. Id., 185-86; see also State v. Griffin, 97 Conn. App. 169, 177-78, 903 A.2d 253 (permissible to argue that the jury should “ ‘make [the defendant] listen’ ”), cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006). Accordingly, we conclude that the use of such comments in this case was not improper. Thus, we need not proceed to the second inquiry, which is whether there was a due process violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s appeal form indicates that he is appealing from the conviction of each of the three criminal charges as well as the trial court’s finding that, in light of these charges, he had violated his previously ordered probation. The defendant’s arguments, however, addressed only the conviction of breach of the peace. Because we affirm the trial court as to those issues argued, it is not necessary for us to assess how a reversal may have affected the conviction of the other charges, or the court’s finding that the defendant violated his probation.

       During oral argument before this court, these are the specific words that the defendant identified as missing from the charge.

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if aU of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       “A claim that the trial court failed to instruct the jury adequately on an essential element of the crime charged necessarily involves the defendant’s due process rights and implicates the fairness of his trial. ” (Internal quotation marks omitted.) State v. Flowers, 69 Conn. App. 57, 69, 797 A.2d 1122, cert. denied, 260 Conn. 929, 798 A.2d 972 (2002).

       The state argues that this claim was waived because the defendant approved of the instructions at trial. Because we find that the charge as stated was proper, we decline to address the issue of waiver.

       The jury charge in the present case provided, in relevant part: “[True threats] must be more than a mere display of bad manners. [The conduct] must cause or create a risk of causing alarm among members of the public. [True threats] encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual. A serious expression of an intent to commit an act of unlawful violence toward a particular individual. The speaker need not actually intend to carry out that threat; rather, the prohibition on true threats protects individuals . . . from the fear of violence and from the disruption that such fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Whether a particular statement may be properly considered to be a true threat is governed by an objective standard. Whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of intent to harm or assault. Moreover, alleged threats or threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listener.”


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    JASON GASTON v. COMMISSIONER OF CORRECTION
    (AC 31068)
    Bishop, Robinson and Dupont, Js.
    Argued October 28
    officially released December 14, 2010

      W. Theodore Koch III, for the appellant (petitioner).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DUPONT, J.

The petitioner, Jason Gaston, appeals following the habeas court’s granting of his petition for certification to appeal from the judgment denying in part his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claim of actual innocence. More specifically, the petitioner argues that there was merit to his claim of actual innocence because the testimony of a potential witness, Jessie DaCosta, is newly discovered evidence that would have changed the guilty verdict. We conclude that, regardless of whether DaCosta’s testimony is newly discovered evidence, that testimony would not establish the petitioner’s actual innocence. Accordingly, we affirm the judgment of the habeas court.

The petitioner was charged with, and after a jury trial was convicted of, one count of burglary in the third degree in violation of General Statutes § SSa-lOS. The court sentenced the petitioner to a five year term of incarceration consecutive to a sentence he was already serving. The petitioner appealed from his conviction to this court, and we affirmed the judgment in a per curiam decision, without opinion, in State v. Gaston, 104 Conn. App. 901, 933 A.2d 754, cert. denied, 285 Conn. 902, 938 A.2d 593 (2007).

The events that resulted in the defendant’s conviction occurred on July 10,2005, at a Pella Window warehouse in Monroe. The jury reasonably could have found the following facts, as recited by the habeas court. “[The petitioner], who was employed by Pella Windows & Doors as an inside salesman in [its] Derby store, discussed the sale of a five foot sliding door with a customer named Arkaduiaz Dobrzycki and his wife, Beata, in the Derby store sometime in July, 2005. Although the couple found a door they liked, they felt it was too expensive. [The petitioner] suggested they fill out a contact sheet and he would call them if he could locate a similar, but less expensive, door in the tag sale area located in a Pella warehouse in Monroe.”

The habeas court noted that “Frank Najpauer, operations manager for Pella, describe [d] the warehouse as a storage facility for orders placed by customers awaiting local delivery. The products were placed in racks throughout the warehouse and marked with customers’ names. In an open area to the left of the door were products in disarray, which had been damaged, can-celled or returned. This was termed the tag sale area.”

“[There was testimony] that the job description for an inside salesman, the position for which [the petitioner] had been hired, was generally one who ‘provides support to homeowners, contractors and builders that visit the Pella Windows stores.’ Although the details in the job description include such duties as making follow-up calls for sales and training outside salespeople, all of the activities take place on the [sales] store premises. Both [Najpauer and general sales manager William Flynn] emphasized that the only people authorized to sell items out of the Monroe warehouse were outside trade salespeople. Moreover, the outside salesperson would necessarily have to inform a manager to meet him at the facility with the customer. Only managers and drivers who have to make early pick-up [s] had keys to the warehouse for security purposes. . . .

“Without informing any managers of his intent to meet a customer at the warehouse, [the petitioner] left a message for [the Dobrzyckis] on Saturday, July 9, 2005, that he would meet them at the Monroe facility between 9 a.m. and 12 p.m. on Sunday, July 10, 2005. [The Dobryzckis] and their children arrived at the warehouse a few minutes after 9 a.m. When he arrived, [Arkaduiaz] Dobryzcki noticed only one car in the parking lot, a Jeep. The family was met by [the petitioner] who brought them through the unlocked door at the rear entrance. There were two other men there, ‘Hispanic or light black.’ [The petitioner] showed the Dobryzckis a door that they agreed to purchase, but [the petitioner] said he could only accept cash because there was no machine there able to process credit card purchases. Dobryzcki said he would go to his bank and return before 12 p.m. with the cash. . . .

“Sometime thereafter, at approximately 10 a.m., Christopher Hoffman, who had arranged to pick up a window for a customer of his, arrived at the warehouse and saw four or five men run out of the back door, jump into a Jeep Cherokee and speed away. Hoffman then drove over to a car where . . . Flynn was waiting for him. . . . Hoffman reported what he had witnessed to Flynn, who immediately unlocked the front door of the warehouse and saw lights on, retrieved a planner with [the petitioner’s] name on it, but saw no one inside. He then called . . . Najpauer, to check if anyone had been authorized to be in the building on Sunday morning. When Najpauer said, ‘no,’ Flynn then called the Monroe police, who responded to the scene. The incident report filed by Officer [John] Yaworoski indicated that three men, Jessie DaCosta, Nelson Branco and Brashaun Thompson, were picked up and questioned in the vicinity of the Monroe warehouse. . . .

“At approximately 11:30 a.m., [Arkaduiaz] Dobryzcki returned to the warehouse where he saw a few police officers and asked for [the petitioner], who was no longer there. . . . Flynn and a police officer asked [Arkaduiaz] Dobryzcki to show them the door [that the petitioner] was going to sell him. He did so and . . . Flynn told him that this door was ordered for someone else and it was just being stored there. It was still in the package with a label on it with the customer’s name and a current date when it was supposed to be delivered. The retail value of the door was about $3500. [Arkaduiaz] Dobryzcki was offered a deal of $1800 or $1900, cash only. . . .

“The following morning [the petitioner] reported for work at the Derby Pella store. [Najpauer questioned him in the presence of the human resource manager]. ... At an early point in the questioning, [the petitioner] changed his story from denying being at the warehouse on Sunday morning to admitting being there to meet a customer. It was at that point [that] Najpauer asked [the petitioner] if he would be willing to speak to the police who were investigating an incident which occurred at the warehouse on July 10, 2005. [The petitioner] agreed.” Additional facts will be set forth as necessary.

The petitioner filed an amended petition for a writ of habeas corpus. In count one, he alleged that he is actually innocent of the charge of burglary in the third degree. In count two, he alleged ineffective assistance of his trial counsel. The habeas court denied the petition on these counts because it concluded that the evidence adduced at the habeas trial did not establish the petitioner’s actual innocence and that the petitioner had failed to demonstrate how he was prejudiced by any of the claimed deficiencies of his trial counsel. On appeal, the petitioner does not pursue his allegations as to the ineffective assistance of counsel claim. Therefore, his sole claim of error concerns the habeas court’s determination that the petitioner was not actually innocent of the charge of burglary in the third degree.

We set forth the applicable standard of review and relevant principles of law. In Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997), our Supreme Court “held that the proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty of the crime.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).

“[0]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence. . . . This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence. In Weinberg v. Commissioner of Correction, 112 Conn. App. 100,119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009), we stated: [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.” (Citation omitted; internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn. App. 725, 734—35, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010).

The following facts are relevant to the petitioner’s claim of actual innocence. Officer Yaworoski testified at the petitioner’s criminal trial that he questioned DaCosta, Branco and Thompson, the three men who were picked up in the vicinity of the Monroe warehouse on July 10, 2005. Yaworoski testified that DaCosta had been approached by a black male at a Lowe’s store in Orange who told him he could save him money on windows. DaCosta, Branco and Thompson were at the warehouse on July 10, 2005, to meet that individual. In his report, Yaworoski indicated that the black male was “ ‘possibly’ ” the petitioner. As noted by the habeas court, Yaworoski testified both at the criminal trial and at the habeas proceedings that it was his own inference and conclusion that led him to indicate that it was “ ‘possibly’ ” the petitioner who approached DaCosta at Lowe’s and arranged to meet him at the warehouse. DaCosta never identified the black male by name. Despite efforts by the petitioner’s trial counsel to obtain DaCosta’s testimony, DaCosta did not testify at the petitioner’s criminal trial. DaCosta did, however, testify at the habeas trial that the petitioner was not the individual who approached him in the Lowe’s store, that he had never met the petitioner before and that he did not see the petitioner at the Monroe warehouse that day.

The petitioner claims that DaCosta’s testimony constitutes newly discovered evidence. He maintains that because the jury never heard DaCosta’s testimony, it must have believed that it was the petitioner who approached DaCosta at Lowe’s and arranged for DaCosta, Branco and Thompson to be at the warehouse that morning. He submits that, had DaCosta testified that he met a different man at Lowe’s and at the warehouse, the petitioner would have been acquitted on all charges. We are not persuaded.

Even if we assume, without deciding, that the petitioner has demonstrated that DaCosta’s testimony could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence, the petitioner has not satisfied his burden of demonstrating his actual innocence. We are only concerned with the effect of DaCosta’s testimony on the crime of burglary. As noted by the habeas court: “The court emphasizes that the petitioner stands convicted of one count of burglary in the third degree. The state here was required to prove beyond a reasonable doubt that the petitioner entered or remained unlawfully in a building with intent to commit a crime therein. . . . [See] General Statutes § 53a-103 (a). [Arkaduiaz] Dobrzycki testified in the criminal trial that he met the petitioner at the warehouse on Sunday morning, when the petitioner did not have authorization or permission to be at the warehouse, to pay the petitioner nearly $2000 in cash for a door that another Pella customer had already purchased and that was awaiting delivery. The petitioner, after initially denying to his employer that he was at the warehouse on Sunday, changed his story and admitted that he in fact was there on Sunday.” DaCosta’s testimony does not alter any of those facts, which are sufficient to support a conviction of burglary. We cannot conclude, based on our review of the record, that the petitioner has established by clear and convincing evidence that he is actually innocent of the burglary charge of which he stands convicted or that, after considering all of that evidence and the inferences drawn therefrom, no reasonable fact finder would find the petitioner guilty of the crime.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner was also charged with but acquitted of one count of attempt to commit larceny in the third degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-124 (a) (2).

       In count three, the petitioner alleged that because his trial counsel failed to file a timely application for sentence review as the petitioner requested, his right to sentence review should be reinstated. The habeas court granted the petition on this count because it found that it was in the interest of justice to restore the petitioner’s right to pursue sentence review and ordered the right to be restored for thirty days. Neither party has raised any issue on appeal relating to the petitioner’s right to sentence review.

       We do not accept this premise. Yaworoski testified at the criminal trial that it was his own inference and conclusion that led him to indicate that it was “ ‘possibly’ ” the petitioner who approached DaCosta at Lowe’s and, as noted by the habeas court, the petitioner’s counsel “emphasized throughout his [closing] argument that . . . DaCosta and others did not mention or identify the petitioner . ...” It is entirely possible that the jury rejected the notion that the petitioner ever met DaCosta.


text:
    WATERVIEW SITE SERVICES, INC. v. PAY DAY, INC.
    (AC 30982)
    DiPentima, C. X, and Robinson and Alvord, Js.

      Argued September 23
    officially released December 21, 2010

      Warren L. Holcomb, with whom, on the brief, was Richard J. Buturla, for the appellant-appellee (defendant).

      Jason Gladstone, with whom, on the brief, was Gregory J. Williams, for the appellee-appellant (plaintiff).
   Opinion

ALVORD, J.

This appeal arises from a business disagreement between the plaintiff, Waterview Site Services, Inc., and the defendant, Pay Day, Inc. On appeal, the defendant claims that the court improperly found that (1) the defendant consented to the work that the plaintiff performed, (2) the mechanic’s lien was filed in a timely manner and (3) the defendant was unjustly enriched in the amount of $224,959.24. The plaintiff filed a cross appeal challenging the court’s decision that, in calculating the unjust enrichment award, it would credit the defendant for an amount equal to the fair rental value owed by the plaintiff for occupying the land. We disagree with the claims raised by both parties and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. James R. DeVito, a general contractor, is a partial owner of the plaintiff. Salvatore DiNardo is a real estate investor who serves as an officer and owner of numerous companies, including his partial ownership interest in the defendant. DeVito and DiNardo have a lengthy history of doing business with each other, often through their respective corporations.

In 2001, the defendant purchased 575 Asylum Street, Bridgeport, a vacant lot in an industrial area (property). The property was overgrown and had been unoccupied for a number of years. Subsequently, DeVito and DiNardo entered into an oral agreement allowing the plaintiffs use and occupancy of the property. The individuals offered conflicting testimony as to the terms of this agreement. The plaintiff argues that both parties expected the performance of extensive site improvements, the cost of which would be shared equally. The plaintiff also claims that, after it completed the site work, the property was going to be used for a rock crushing and processing operation and that title to the property was to be transferred to a company owned equally by DiNardo and DeVito. The defendant contends that the corporations entered a straightforward lease agreement that permitted the plaintiff to use the property as a contractor’s yard or construction yard and that any site work done by the plaintiff was to be credited against rent.

The plaintiff spent a significant amount of time and effort preparing the property for a processing operation. Subsequently, the relationship between the parties soured, and the defendant initiated summary process proceedings. In turn, the plaintiff provided invoices to the defendant, citing expenditures of $269,868.79. The plaintiff filed a certificate of mechanic’s lien on October 7, 2004, in the same amount. Thereafter, the plaintiff filed a two count complaint on January 6, 2005, seeking (1) foreclosure of the mechanic’s lien and (2) damages for urijust enrichment. The defendant denied the plaintiffs claims. It filed a counterclaim and two special defenses, requesting compensation or a setoff against any recovery for valuable natural resources removed by the plaintiff without permission.

The court ruled in favor of the plaintiff on both counts of the complaint, stating that the plaintiff expended “substantial sums in time and money” improving the property. It rendered judgment of foreclosure on the mechanic’s lien, and continued the matter for further proceedings to make other findings consistent with that judgment. The court also found in favor of the plaintiff on the unjust enrichment claim, in the total amount of $224,959.24, which represented the total adjusted amount pleaded by the plaintiff as reflected in the invoices, after subtraction of $36,000 for the fair rental value of the property dming the time that the plaintiff occupied the property. The court rendered judgment in favor of the plaintiff on the counterclaim. This appeal followed.

I

The defendant first contends that the court erred in finding that it consented to the site work performed by the plaintiff. It argues that consent for the purpose of the mechanic’s lien statute requires that the defendant not only knew that the work was being performed but also agreed that it may be liable for the materials or labor. We agree with the court’s finding that the required consent was present for the proposes of foreclosing the mechanic’s lien.

As an initial matter, we dismiss the defendant’s argument that because the court found no “meeting of the minds” in respect to the contract claims that DeVito filed, individually; see footnote 3 of this opinion; it could not in turn enforce the mechanic’s hen under the theory of an implied contract. The trial court’s finding that there was no meeting of the minds on the contract governing the overall agreement, which controlled use of the property, site work, future dealings and purchase of machinery, among other things, does not preclude a finding of limited consent for the purposes of the mechanic’s hen.

General Statutes § 49-33, which governs mechanic’s hens, provides in relevant part: “(a) If any person has a claim for more than ten dollars for materials furnished or services rendered ... in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land . . . then the plot of land, is subject to the payment of the [mechanic’s hen], . . .”

“Under ... § 49-33 (a), the consent required from the owner ... is more than the mere granting of permission for work to be conducted on one’s property ... or the mere knowledge that work was being performed on one’s land. . . . The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, hable for the materials or labor.” (Citations omitted; internal quotation marks omitted.) St. Catherine’s Church Corp. v. Technical Planning Associates, Inc., 9 Conn. App. 682, 684, 520 A.2d 1298 (1987).

Whether the plaintiff consented to the performance of the defendant’s work is a question of fact. Id., 685. Our review of the trial court’s factual findings is limited to the question of whether the findings are clearly erroneous. Id. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 487, 970 A.2d 592 (2009).

Because there was no written contract between the parties, the court’s conclusion that there was consent for the purposes of foreclosure of the mechanic’s lien rested primarily on its assessment of the weight and credibility to be accorded to the witness’ testimony. In reviewing the record, we conclude that there is sufficient evidence to support the court’s findings. DeVito testified to his belief that there was an agreement that the defendant would be responsible for the cost of site work. DiNardo frequented the property during the period of time the work was being performed and, in fact, explicitly directed certain actions. He also caused direct payment to be made to subcontractors for work performed at the site. The court may have credited these pieces of evidence in finding that the defendant consented to being held hable for the payments as required under the statute.

Furthermore, the defendant’s position is that it intended to offset the rent by the cost of the site work, which again supports the finding that the defendant consented to being held financially liable for materials and labor used for the site work. In light of this evidence, the court’s finding that the defendant consented to the site improvements for the purposes of the implied contract, as required under the mechanic’s hen statute, is not clearly erroneous. Accordingly, we affirm the court’s decision in favor of the plaintiff.

H

The defendant next contends that the trial court erred in finding that the plaintiff filed its mechanic’s hen in a timely matter. Precedent shows that “the general rule is that the time period for filing a certificate of mechanic’s lien commences on the last date on which services were performed or materials were furnished .... An exception arises, however, when work has been substantially completed and the contractor unreasonably has delayed final completion .... In this circumstance, the time period for filing a certificate of mechanic’s hen will be computed from the date of substantial completion.” (Citations omitted; internal quotation marks omitted.) 36 DeForest Avenue, LLC v. Creadore, 99 Conn. App. 690, 697, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007).

In the present case, the court stated only that “the date of filing of the hen by [the plaintiff] does not render it invalid, as alleged by [the defendant].” It did not make a finding as to the last date on which services were performed or materials were furnished, a necessary fact under which the timeliness of the hen would be measured. The parties argue contradictory dates in then-briefs. The defendant failed to move for articulation pursuant to Practice Book § 66-5. The timeliness of the mechanic’s hen claim, therefore, cannot be reviewed because the record is inadequate. See Practice Book § 61-10; State v. Miller, 121 Conn. App. 775, 787, 998 A.2d 170, cert. denied, 298 Conn. 902, 3 A.3d 72 (2010).

m

Finally, the defendant argues that the trial court erred in finding that the plaintiff should recover the amount awarded, or at all, under the equitable doctrine of unjust enrichment. The defendant contends that “other than simple invoices” there is no evidence of the value or quality of the work performed or the benefit conferred on the property, and, therefore, the court’s finding is clearly erroneous. We disagree.

“A right of recovery under the doctrine of unjust enrichment is essentially equitable .... With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . .

“[Ejquitable remedies are not bound by formula but are molded to the needs of justice. . . . The court’s determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) Stewart v. King, 121 Conn. App. 64, 70-71, 994 A.2d 308 (2010).

Although the defendant is correct that the damages in an unjust enrichment case ordinarily are not measured by the loss to the plaintiff but by the benefit to the defendant, a fact finder may rely on a party’s own testimony about the value of his labor when the benefit is too difficult to determine otherwise. See Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn. App. 118, 127, 958 A.2d 195 (2008); Gardner v. Piloto, 68 Conn. App. 448, 455, 791 A.2d 707, cert. denied, 260 Conn. 908, 795 A.2d 544 (2002). In the present case, the court found that the plaintiff expended “substantial sums in time and money working on improving the property” and that the property was improved by the work done. The plaintiff (1) offered invoices showing that expenditures from site work on the property totaled $260,959.24, (2) explained its method of production of the invoices, (3) confirmed that the invoices represented a fair and reasonable amount for the work that was performed by the plaintiff on the property, and (4) described the work completed in detail.

Thus, there is an abundance of evidence in the record that the trial court may have relied on in finding that the site work performed by the plaintiff improved the nature of the previously unoccupied lot. This evidence provided the court with a sound basis for setting the amount of recovery at $224,959.24. Given the testimony, the invoices and our limited scope of review, we conclude that the fact finder’s application of the doctrine of unjust enrichment was not clearly erroneous.

IV

The plaintiff filed a cross appeal arguing that the trial court erred in reducing the invoiced $260,959.24 by the amount of $36,000 for the fair rental value of the property during the plaintiffs use and occupancy. The plaintiff argues that the defendant failed to plead that it was entitled to such setoff, and, therefore, the court exceeded its authority by reducing the plaintiffs damages. We disagree.

Unjust enrichment is a broad and flexible remedy. Breen v. Judge, 124 Conn. App. 147, 158, 4 A.3d 326 (2010). Recovery is rooted in the equitable principle that it is “contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.” (Internal quotation marks omitted.) National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). “Uryust enrichment is a common-law doctrine allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefited another.” (Internal quotation marks omitted.) Gagne v. Vaccaro, 80 Conn. App. 436, 440 n.2, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). “In calculating restitution damages, the trial court balances the equities of the parties to determine where the loss should fall. . . . This balancing of equities is a matter within the trial court’s broad discretion.” (Citation omitted.) Polverari v. Peatt, 29 Conn. App. 191, 203, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).

Applying these principles to the case at hand, we conclude that it was within the province of the court, in balancing the equities of this case, to subtract the fair rental value of the property from the total amount invoiced to establish the final net unjust enrichment award. Upon awarding damages for unjust enrichment, the court stated that “[i]n the interests of justice . . . the court does grant [the defendant] a setoff for the value of the rent for [the plaintiffs] use of the property . . . .” The court, in its decision, credited the plaintiffs testimony that the average monthly rent for a comparable lot would be between $1500 and $3000. The defendant did not object to this testimony. The court, therefore, calculated that the fair rental value of the property amounted to $36,000 for eighteen months at $2000 per month. In part HI of this opinion, we affirmed the court’s decision to award damages for unjust enrichment and recognized the court’s wide discretion in balancing the equities to determine that amount. The court’s calculation of the amount by which the defendant was unjustly enriched finds support in the record before us, and it was within the court’s discretion to consider the fair rental value of the property in establishing the overall award.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the present case, these two individuals, DeVito and DiNardo, were the primary actors in all transactions between the plaintiff and the defendant. On appeal, it is undisputed that they were acting as agents under the authority of their respective corporations.

       According to the defendant’s posttrial brief, the total of the cost sheets was $269,868.79, but the plaintiff only claimed $260,959.24 in damages during the litigation, after subtracting certain expenses. It was this adjusted number that the court ultimately used in calculating the unjust enrichment award.

       The defendant impleaded DeVito as a third party defendant. On February 23, 2006, DeVito, individually, filed a complaint against DiNardo and the defendant in this action. Although not officially consolidated through a motion to the court, the two cases were tried concurrently by agreement of the parties. In rendering its decision, the court was unpersuaded by any of the allegations against any of the individuals. None of the claims against DeVito or DiNardo were appealed. Therefore, this court will only review the claims between the corporate entities.

       On March 24, 2009, the court set the law day for May 12, 2009. The parties stipulated to attorney’s fees of $41,168. The judgment lists the debt as $326,036.32, and the property’s fair market value as $450,000. In the complaint, the plaintiff notes a prior encumbrance on the property in the amount of $300,000.

       The defendant made similar arguments in the form of a special defense of setoff and as a counterclaim. In both arguments, the defendant asked the trial court to compensate it for natural resources that were allegedly removed from the property by the plaintiff. The distinction between a counterclaim and a setoff, or offset, is subtle. “If the claim involves a debt which is mutual and liquidated, even though it arises from separate transactions, it is characterized as a setoff. See General Statutes § 52-139. If the claim arises out of the same transaction described in the complaint, it is characterized as a counterclaim. . . . The title of the pleading is not controlling. The issue is, rather, whether sufficient facts are pleaded that would allow recovery either as a setoff or as a counterclaim.” (Citation omitted; internal quotation marks omitted.) 225 Associates v. Connecticut Housing Finance Authority,
        65 Conn. App. 112, 121, 782 A.2d 189 (2001). In the present case, the trial court’s decision to decrease the damages invoiced need not be labeled a setoff or a counterclaim. Instead, fair rental value of the property was merely one equitable factor the court took into consideration in assessing the overall damages for unjust enrichment.

       This court has held that in awarding damages for quantum meruit, the trial court did not exceed its authority in reducing a plaintiffs damages award even when the defendant failed to plead that it was entitled to such setoff. Shapero v. Mercede, 77 Conn. App. 497, 509-10, 823 A.2d 1263 (2003).


author: DiPENTIMA, C. J.

text:
    IN RE JOSE B.

    (AC 31879)
    DiPentima, C. X, and Alvord and Dupont, Js.

      Argued September 22
    officially released December 21, 2010

      Sarah Healy Eagan, with whom were Stacey Violante Cote and, on the brief, Joshua Michtom, for the appellant (petitioner).

      Benjamin Zivyon, assistant attorney general, with whom were Mary-Anne Z. Mulholland, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (intervenor).

       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

DiPENTIMA, C. J.

The petitioner, Jose B., appeals from the judgment of the trial court dismissing his petition seeking to have himself adjudicated as neglected and as an uncared-for youth, filed pursuant to General Statutes § 46b-129 (a). On appeal, Jose claims that the court improperly (1) determined that it lacked subject matter jurisdiction over the petition, (2) determined that the petition was moot, (3) concluded that the capable of repetition yet evading review exception to the mootness doctrine did not apply and (4) failed to make reasonable inferences in favor of his petition. We conclude that Jose has failed to establish the factual predicate for the court’s statutory jurisdiction. Accordingly, we affirm the judgment of the trial court dismissing Jose’s petition.

The following facts and procedural history are necessary for the resolution of Jose’s appeal. On July 15, 2009, two days before his eighteenth birthday, Jose filed two ex parte motions with the Superior Court for Juvenile Matters in Hartford seeking an order of temporary custody and an order of emergency commitment to the department of children and families (department). On the same date, the petitioner filed the petition seeking to have himself adjudicated as neglected and uncared for. Jose alleged that his mother was a resident of Puerto Rico and that his father’s identity and whereabouts were unknown. He further alleged that he had been living with his uncle, having been placed there by his mother approximately four years earlier. Following his uncle’s incarceration, Jose became homeless.

That same day, the court denied Jose’s ex parte motions. On or about August 18, 2009, the department moved to intervene for the limited purpose of moving to dismiss the neglect and uncared-for petition. The department also filed a motion to dismiss and an accompanying memorandum of law. On September 4,2009, the court, concluding that the department was a necessary party, granted the motion to intervene.

The court heard oral argument on the department’s motion to dismiss and, following supplemental briefing, issued its memorandum of decision on January 14,2010. The court concluded that it lacked the statutory authority to commit an individual who was eighteen years of age or older on a retroactive basis. As a result, it determined that, because it could not afford Jose any direct practical relief, the case was moot. It further determined that neither the collateral consequences nor the capable of repetition yet evading review exceptions to the mootness doctrine applied. Accordingly, the court granted the department’s motion to dismiss.

On appeal, Jose argues that because his neglect petition indisputably was filed prior to his becoming eighteen years old, the court had jurisdiction to consider its merits. He also maintains that the court possessed statutory authority to order a retroactive commitment. Jose further contends that, even if the neglect petition was moot as a result of his reaching the age of eighteen, the court misapplied the collateral consequences and the capable of repetition yet evading review exceptions. The department counters that the court correctly determined that it lacked subject matter jurisdiction to hear the case and that the mootness exceptions did not apply.

Before addressing the merits of this appeal, we note that subsequent to the trial court’s memorandum of decision and the filing of the briefs by the parties, our Supreme Court released its decision in In re Matthew F., 297 Conn. 673, 4 A.3d 248 (2010). An appropriate starting point is a discussion of that case, as it provides substantial guidance in resolving the present matter. Shortly before his eighteenth birthday, Matthew sought to have himself adjudicated as an uncared-for youth after he had started two fires. Id., 678-79. Three days before his eighteenth birthday, the court adjudicated Matthew uncared for and committed him to the care of the department. Id., 680. After becoming eighteen years old, Matthew sought continuing services; the department, however, argued that the court, specifically, the Superior Court for Juvenile Matters, had been divested of jurisdiction once Matthew had reached the age of eighteen years old. Id., 680-81. The trial court rejected the department’s argument on the ground that Matthew had been committed to the department prior to his eighteenth birthday. Id., 681.

Following the resolution of the criminal charges against him, Matthew sought an order for services that would require the department to provide him with a twenty-four hour placement and to discontinue any effort to transfer him to the custody of the department of mental health. Id., 682-83. The department objected, renewing its argument that the court had lost jurisdiction following Matthew’s eighteenth birthday and that it had no obligation to provide continuing services. Id., 683. The trial court again rejected the department’s jurisdictional argument and ordered continued services for Matthew. Id., 683-84.

The department appealed to our Supreme Court, arguing, inter alia, that the jurisdiction of the Superior Court for Juvenile Matters was divested once Matthew turned eighteen and that neither General Statutes § 17a-ll nor § 46b-129 provided a basis for jurisdiction over the motion for services. Id., 684-85. After noting that these issues were “interrelated”; id., 687; our Supreme Court stated: “We conclude that, although the jurisdiction of the Superior Court for Juvenile Matters does not necessarily cease when a youth committed to the department turns eighteen, in the present case, the trial court did not have jurisdiction because Matthew neither alleged nor established the requirements of either statutory provision.” Id., 688.

In explaining its reasoning for rejecting the department’s first claim, our Supreme Court observed that the delineation of General Statutes § 46b-121 is not jurisdictional. Id., 689-90. Specifically, it noted that Connecticut has a unified court system and that all civil matters, including juvenile matters, are within the jurisdiction of the Superior Court. Id., 690-91. Further, it reasoned that the issue of “ ‘juvenile jurisdiction’ ” is akin to venue rather than subject matter jurisdiction. Id., 691. It then concluded that the Superior Court for Juvenile Matters did not lose jurisdiction merely because Matthew had reached the age of eighteen. Id., 693-94.

The court then proceeded to the question of whether the trial court had a statutory basis to exercise jurisdiction to issue the contested order. Id., 694. It began with the principle that a Superior Court may exercise jurisdiction when a valid and cognizable cause of action, or other matter, over which jurisdiction has not been vested in some other court, exists. Id., 695. It then turned to the relevant statutory framework, namely, §§ 17a-ll and 46b-129, which allow for the continuation of services from the department after an individual reaches the age of eighteen. Id., 696-97. Our Supreme Court ultimately concluded that Matthew had failed to establish the necessary factual predicate to establish the statutory jurisdiction. Id., 700. Ultimately, it reversed the judgment of the trial court and remanded the case with direction to dismiss Matthew’s motion for services. Id., 701.

Unlike the trial court, we have the benefit of our Supreme Court’s decision in In re Matthew F. We are required to apply that court’s reasoning to the appeal. See Stuart v. Stuart, 297 Conn. 26, 45—46, 996 A.2d 259 (2010). Accordingly, we will consider and evaluate the claims raised in light of this controlling precedent. See, e.g., Max’s Place, LLC v. DJS Realty, LLC, 123 Conn. App. 408, 415, 1 A.3d 1199 (2010).

As a preliminary matter, we set forth our standard of review and certain legal principles that guide our analysis. “[A] determination regarding a trial court’s subject matter jurisdiction is a question of law, [and therefore] our review is plenary. . . . Moreover, our analysis of the court’s jurisdiction . . . requires us to examine the scope and effect of several statutory schemes. In making such determinations, we are guided by fundamental principles of statutory construction. See General Statutes § 1-2z; Testa v. Geressy, 286 Conn. 291,308,943 A.2d 1075 (2008) ([o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . .).

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. . . . Moreover, [although it is a critical prerequisite to any court’s involvement in a case, we repeatedly have held that, when a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) In re Matthew F., supra, 297 Conn. 688-89.

The trial court, citing In re Juvenile Appeal (83-CD), 189 Conn. 276, 284-86, 455 A.2d 1313 (1983), and In re Juvenile Appeal (83-BC), 189 Conn. 66, 83, 454 A.2d 1262 (1983) (Parskey, J., concurring in part and dissenting in part), properly observed that the court’s authority to commit a child or youth to the department as neglected or uncared for is strictly statutory. The relevant statutes, therefore, are the appropriate starting point for our analysis. Section 46b-129 (a) provides in relevant part that “[a]ny . . . child or such child’s representative or attorney . . . may file with the Superior Court that 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, within the meaning of section 46b-120

Section 46b-129 (j) provides in relevant part that “[ujpon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. . . .” (Emphasis added.) We have explained that upon such a finding, the court has three options: “(1) commit the child to the commissioner of children and families; (2) vest guardianship of the child in a third party until the child reaches the age of eighteen; or (3) permit the natural parent or guardian to retain custody and guardianship of the child with or without protective supervision.” In re David L., 54 Conn. App. 185, 192 n.7, 733 A.2d 897 (1999).

General Statutes § 46b-120 sets forth the definition of the terms “youth” and “child.” Specifically, that statute provides: “ ‘Child’ means any person under sixteen years of age . . . [and] ‘youth’ means any person sixteen or seventeen years of age . . . .” General Statutes § 46b-120 (1) and (2).

Considering those statutory subdivisions together, we reach the following conclusions. A petition alleging that an individual under the age of eighteen is neglected or uncared for may be filed on behalf of that individual. See General Statutes § 46b-129 (a). The express language of § 46b-129 (j), however, provides the court with the authority only to commit an individual that satisfies the definition of a “child” or a “youth” found in § 46b-120 (1) and (2).

Our conclusion is supported by the tenets of statutory construction. “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . 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, including the question of whether the language actually does apply. ... 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.” (Internal quotation marks omitted.) In re A.R., 123 Conn. App. 336, 339, 1 A.3d 1184 (2010).

Our review of the language of § 46b-129 (j) and its relationship to the other relevant statutes leads to the conclusion that trial courts possess authority to commit children or youths, that is individuals statutorily defined as being under the age of eighteen. We are not persuaded that the authority for a retroactive commitment is found in this statutory framework. “We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words . . . .” (Citation omitted; internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 494, 778 A.2d 33 (2001); see also Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 682, 911 A.2d 300 (2006) (“[t]his court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein” [internal quotation marks omitted]); Walter v. State, 63 Conn. App. 1, 8, 774 A.2d 1052 (“We are also mindful that [t]he court may not, by construction, supply omissions in a statute or add exceptions or qualifications, merely because it opines that good reason exists for so doing. ... In such a situation, the remedy lies not with the court but with the General Assembly.” [Internal quotation marks omitted.]), cert. denied, 256 Conn. 930, 776 A.2d 1148 (2001).

Furthermore, we note that our legislature has expanded the definition of “child” in the context of delinquency proceedings. Specifically, General Statutes (Rev. to 2009) § 46b-120 defines that term as follows: “[F]or purposes of delinquency matters, ‘child’ means any person (A) under sixteen years of age, or (B) sixteen years of age or older who, prior to attaining sixteen years of age, has violated any federal or state law or municipal or local ordinance, other than an ordinance regulating behavior of a child in a family with service needs, and, subsequent to attaining sixteen years of age, violates any order of the Superior Court or any condition of probation ordered by the Superior Court with respect to such delinquency proceeding . . . .”

The legislature has modified the meaning of “child” for delinquency proceedings to include, inter alia, an individual seventeen years of age or older who had committed a delinquent act prior to reaching the age of seventeen and then, after reaching seventeen, violates an order, or condition of probation ordered by the Superior Court with respect to the delinquency proceeding. In contrast, the legislature has not expanded the court’s authority to commit a “child” or “youth” by broadening the statutory definition of those terms. The definitions, as set forth in § 46b-120, must apply to commitment proceedings. “[W]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed.” (Internal quotation marks omitted.) In re Ralph M., 211 Conn. 289, 306, 559 A.2d 179 (1989); see also Colangelo v. Heckelman, 279 Conn. 177,190, 900 A.2d 1266 (2006) (“we interpret legislative intent by reference to what the legislative text contains, not by what [that text] might have contained” [internal quotation marks omitted]).

We note that Jose argues that because §§ 17a-ll (g) and 46b-129 (j) allow committed minors to remain in the department’s care until they reach the age of twenty-one if certain conditions are met, this demonstrates a broader legislative intent with respect to the court’s authority to commit individuals who timely file a petition prior to reaching the age of eighteen. Both of these statutes, however, require that individuals in this age range must previously have been in the care of the department. We conclude, therefore, that the fact that services may be provided in some circumstances to individuals who have reached the age of eighteen does not support Jose’s claim with respect to the court’s authority to order a commitment after he turned eighteen.

Guided by the reasoning set forth by our Supreme Court in In re Matthew F., supra, 297 Conn. 673, and our analysis of the relevant statutes, we conclude that the jurisdiction of the Superior Court for Juvenile Matters did not cease merely because Jose reached the age of eighteen. Under the facts and circumstances of the present case, however, Jose failed to establish the requirements of § 46b-129 (j), namely, that the court could commit the eighteen year old Jose to the department. We conclude, therefore, that Jose failed to establish the factual predicate required for jurisdiction under that statute, and, accordingly, the trial court lacked jurisdiction over the matter. The trial court, therefore, properly granted the department’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the commissioner of children and families acts on behalf of the department of children and families, references in this opinion to the department include the commissioner.

       The court noted that Jose “did not expressly claim the applicability of the collateral consequences exception to the mootness doctrine, although he does claim he was entitled to benefits that would accrue to him were he to be committed to the department effective as of some date preceding his eighteenth birthday.”

       On July 30,2010, we ordered the parties to file simultaneous supplemental briefs addressing the impact of In re Matthew F., supra, 297 Conn. 673, on the present matter.

       General Statutes § 17a-ll (a) provides in relevant part: “The commissioner may, in the commissioner’s discretion, admit to the department on a voluntary basis any child or youth who, in the commissioner’s opinion, could benefit from any of the services offered or administered by, or under contract with, or otherwise available to, the department. . .

       General Statutes (Rev. to 2009) § 46b-121 (a) (1) provides in relevant part: “Juvenile matters in the civil session include all proceedings concerning uncared-for, neglected or dependent children and youths within this state, termination of parental rights of children committed to a state agency, matters concerning families with service needs, contested matters involving termination of parental rights or removal of guardian transferred from the Probate Court, the emancipation of minors and youths in crisis, but does not include matters of guardianship and adoption or matters affecting property rights of any child, youth or youth in crisis over which the Probate Court has jurisdiction, provided appeals from probate concerning adoption, termination of parental rights and removal of a parent as guardian shall be included. . . .”

       The trial court issued its memorandum of decision on January 14, 2010. On August 3, 2010, our Supreme Court officially released its decision in In re Matthew F., supra, 297 Conn. 673.

       General Statutes (Rev. to 2009) § 46b-120 (9) provides that “a child or youth may be found ‘neglected’ who (A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally, (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth, or (D) has been abused . . . .”

       General Statutes (Rev. to 2009) § 46b-120 (10) provides that “a child or youth may be found ‘uncared for’ who is homeless or whose home cannot provide the specialized care that the physical, emotional or mental condition of the child or youth requires.”

       We are mindful of the department’s obligation to plan and to develop “a comprehensive and integrated state-wide program of services” for, inter alia, “all children and youths who are or may be committed to it by any court. . . .” (Emphasis added.) General Statutes § 17a-3 (a). This statutory directive prohibits the department from purposefully delaying adjudication of petitions filed by those individuals approaching their eighteenth birthday.
      We stress that the record before us contains no evidence of such purposeful action by the department. Further, we by no means intend to imply that such conduct is or has occurred. We simply point out the legislature’s directive to the department to plan for and to provide service to all children and youths, including those approaching the age of majority.

       As a result of our conclusion, we need not reach the other claims raised by Jose in this appeal.


text:
    IN RE JESSICA M.

    (AC 32132)
    DiPentima, C. J., and Alvord and Dupont, Js.
    Argued September 22
    officially released December 21, 2010

      Sarah Healy Eagan, with whom was Stacey Violante Cote, for the appellant (petitioner).

      Valeria Caldwell-Gaines, for the appellee (respondent mother).

      Mary-Anne Z. Mulholland, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (intervenor).

       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 Corot.

   Opinion

DiPENTIMA, C. J.

The petitioner, Jessica M., appeals from the judgment of the trial court dismissing her petition seeking to have herself adjudicated as neglected and as an uncared-for youth, filed pursuant to General Statutes § 46b-129 (a). On appeal, Jessica claims that the court improperly determined that (1) it lacked subject matter jurisdiction over the petition, (2) it lacked statutory authority to order a retroactive commitment, (3) the collateral consequences exception to the mootness doctrine did not apply and (4) the capable of repetition yet evading review exception to the mootness doctrine did not apply. On the basis of our decision in In re Jose B., 125 Conn. App. 572,11 A.3d 682 (2010), which we also release today, we conclude that Jessica failed to establish the factual predicate for the court’s statutory jurisdiction. Accordingly, we affirm the judgment of the trial court dismissing Jessica’s petition.

The following facts and procedural history are necessary for our discussion. On November 5, 2009, then seventeen year old Jessica filed a petition in the Superior Court for Juvenile Matters in Hartford, alleging that she was neglected and uncared for as defined by General Statutes § 46b-120. On December 17, 2009, the department of children and families (department) successfully moved to intervene in the proceedings. The court also set a trial date of January 4, 2010, which was prior to Jessica’s eighteenth birthday.

On that date, the court continued the matter due to (1) Jessica’s failure to arrange for interpreters for two witnesses and (2) its granting of a motion in limine filed by the department. The court, on its own motion, transferred the case to the Child Protection Session in Middletown. Although a second trial date before Jessica’s eighteenth birthday was offered, counsel for Jessica’s mother was unavailable for that day. A trial date was scheduled for February 26, 2010, approximately five weeks after Jessica had reached the age of eighteen.

On February 5, 2010, the department filed a motion to dismiss the petition. It argued that the court, specifically, the Superior Court for Juvenile Matters, lacked jurisdiction over adults, individuals over the age of seventeen. The department further claimed that the court lacked statutory authority to adjudicate an individual over the age of seventeen as neglected or uncared for, even if the petition had been filed prior to the individual’s eighteenth birthday. Last, the department argued that Jessica’s petition was moot.

The court heard oral argument on the motion to dismiss and issued its memorandum of decision on March 16, 2010. The court concluded that it lost subject matter jurisdiction and that the matter had become moot as of Jessica’s “ceasing to be a child or youth.” Additionally, it stated that because the court was unable to issue any order committing Jessica to the custody of the department, or transferring guardianship over her to another person, the case was moot and no exception to that doctrine applied. Accordingly, the court granted the department’s motion to dismiss the neglect and uncared-for petition. This appeal followed.

Today, we released our decision in In re Jose B., supra, 125 Conn. App. 572. That case involved a similar fact pattern in which a neglect and uncared-for petition was filed prior to but not adjudicated before the petitioner’s eighteenth birthday. In that case, we concluded: “Guided by the reasoning set forth by our Supreme Court in In re Matthew F., [297 Conn. 673, 4 A.3d 248 (2010)], and our analysis of the relevant statutes, we conclude that the jurisdiction of the Superior Court for Juvenile Matters did not cease merely because Jose reached the age of eighteen. Under the facts and circumstances of the present case, however, Jose failed to establish the requirements of § 46b-129 (j), namely, that the court could commit the eighteen year old Jose to the department. We conclude, therefore, that Jose failed to establish the factual predicate required for jurisdiction under that statute, and, accordingly, the trial court lacked jurisdiction over the matter. The trial court, therefore, properly granted the department’s motion to dismiss.” In re Jose B., supra, 583-84.

We conclude that, pursuant to our analysis in In re Jose B., Jessica failed to establish the factual predicate required for jurisdiction under § 46b-129 (j). There is no statutory authority for a retroactive commitment. Id. The court, therefore, lacked jurisdiction over the petition and properly granted the department’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       On January 15, 2010, Jessica filed an amended summary of facts in support of the neglect petition. Specifically, she alleged that her father had abandoned her and that her mother had lived at a different residence for the past two years and had not provided Jessica with financial or other support. Jessica also alleged that she had been diagnosed with major depressive disorder and post-traumatic stress disorder and was at great risk of injuring herself.

       Because the commissioner of children and families acts on behalf of the department of children and families, references in this opinion to the department include the commissioner.

       On January 13, 2010, Jessica’s mother filed a motion to strike or dismiss the neglect petition. See footnote 7 of this opinion.

       General Statutes § 1-ld provides in relevant part: “Except as otherwise provided by statute . . . the terms ‘minor’, ‘infant’ and ‘infancy’ shall be deemed to refer to a person under the age of eighteen years and any person eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and ‘age of majority’ shall be deemed to be eighteen years.”

       General Statutes § 46b-120 provides in relevant part: “(1) ‘Child’ means any person under sixteen years of age . . . [and] (2) ‘youth’ means any person sixteen or seventeen years of age

       The record reveals that no guardian had been appointed for Jessica.

       As a result of this conclusion, the court declined to address the motion to strike or dismiss filed by Jessica’s mother.

       As a result of this conclusion, we need not reach the other claims raised by Jessica in this appeal. See In re Jose B., supra, 125 Conn. App. 584 n.10.