text:
    HOWARD B. SOSIN ET AL. v. ROBERT D. SCINTO ET AL.
    (AC 18336)
    O’Connell, C. J., and Mihalakos and Daly, Js.

    Argued September 27, 1999
    officially released May 9, 2000

      James R. Wamui, Jr., with whom were Joseph F. McKeon, Jr., and, on the brief, J. Daniel Sagarin and David A. Slossberg, for the appellants (plaintiffs).

      Stephanie Z. Roberge, with whom, on the brief, was Robert K. Lesser, for the appellees (defendants).

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

   Opinion

DALY, J.

The plaintiffs, Howard B. Sosin and Susan F. Sosin, appeal from a partial judgment of the trial court dismissing four counts of their five count complaint, which alleged breach of a construction contract between the plaintiffs and the defendants, Robert D. Scinto, Barbara A. Scinto (defendants) and R. D. Scinto, Inc. (corporate defendant). On appeal, the plaintiffs claim that the court improperly (1) held that the contractual controversies were not justiciable because of a then pending appeal in a separate injunction action involving arbitration of the same breach of contract claims and (2) granted in part the defendants’ motion to dismiss instead of staying the proceedings. We affirm the judgment of the trial court.

Since “this appeal is from the dismissal of a complaint we must rely wholly upon the facts alleged therein.” Pellegrino v. O’Neill, 193 Conn. 670, 672, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). The defendants were the owners of the corporate defendant, a construction company that began construction on the defendants’ house prior to November 15, 1990. While working on this project, the defendants experienced financial difficulty and sought to sell the property.

On or about November 15,1990, the plaintiffs entered into a purchase and sale agreement with the defendants. The property included a 20,750 square foot residence and a 2400 square foot maid’s house, which, at the time, was under construction. The construction project was so large and substantially under way that it was essential for the plaintiffs to have continuity on the project. Because the defendant, Robert D. Scinto, held out the corporate defendant as being fully capable of completing the project, the plaintiffs entered into a construction contract with the corporate defendant to complete the project. At the same time that the parties entered into the purchase and sale agreement, the defendants jointly and severally, and personally and expressly, guaranteed the performance of all the terms and provisions of the construction contract.

The corporate defendant began work on the house for the plaintiffs following the execution of the construction contract. The construction contract called for the corporate defendant to complete the project by October 1, 1991. During construction, however, the defendants and the corporate defendant experienced enormous financial difficulty. Consequently, there were numerous delays and problems with the construction.

As of May, 1992, the house was unfinished. Around that time, Robert D. Scinto, knowing that he was failing on the job, sought a release of the guarantee obligations of his wife, Barbara A. Scinto. As purported consideration for the release, he promised prompt and certain completion of the project. On or about May 1,1992, the plaintiffs, hoping to get the project completed in time for their daughter’s birthday on August 27, 1992, executed a release of Barbara A. Scinto’s guarantee. As of December, 1992, however, the house remained unfinished. On December 2, 1992, the corporate defendant, having failed to perform under the contract, aborted the project. At that time, the project was in an incomplete and defective state. Thereafter, on or about November 13, 1996, the plaintiffs commenced arbitration proceedings with the American Arbitration Association in which they sought damages.

On April 1,1997, the defendants instituted an action in the Superior Court seeking a temporary and permanent injunction barring the plaintiffs from arbitrating certain claims that the defendants asserted were not properly arbitrable. On May 22, 1997, the trial court issued a temporary and permanent injunction barring the plaintiffs from compelling the defendants and the corporate defendant to arbitrate. The plaintiffs appealed from that judgment. Scinto v. Sosin, 51 Conn. App. 222, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).

The complaint in this action dated July 11, 1997, set forth five counts, four of which the court dismissed. In counts one and two, the plaintiffs alleged, inter alia, that the corporate defendant breached the contract by failing to (1) perform under the terms of the contract, (2) meet the construction deadline and (3) correct defects in the construction of the residence. The plaintiffs alleged that they were damaged due to those failures.

In count three, the plaintiffs alleged that the release as to Barbara A. Seinto was void for lack of consideration because the coiporate defendant, prior to the release, already was obligated to complete the proj ect in a timely fashion. As a result of the corporate defendant’s failure to complete the project on time, the plaintiffs alleged that they were damaged.

In count five, the plaintiffs alleged that the defendants had complete control of the finances, policies and business practices of the corporate defendant, and that any release of the individual defendants as guarantors was invalid because they controlled the corporate entity. Therefore, the plaintiffs alleged that the individual defendants were jointly, severally and individually liable for damages to the extent that the corporate defendant was obligated to them.

The defendants filed a motion to dismiss the complaint, arguing that the claims that the plaintiffs asserted were contingent on the outcome of the injunction action and, thus, not justiciable because they were not yet ripe for review. The court agreed with the defendants as to counts one, two, three and five, and dismissed those counts as not justiciable. The plaintiffs filed this appeal.

I

The plaintiffs claim that the court improperly dismissed counts one, two, three and five of the complaint on the ground that the contractual controversies were not justiciable because of the then pending appeal in the separate injunction action, which involved the arbitrability of the same breach of contract claims. We disagree.

“In the absence of a justiciable controversy, the courts have no jurisdiction.” Kleinman v. Marshall, 192 Conn. 479, 484, 472 A.2d 772 (1984). “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Pellegrino v. O’Neill, supra, 193 Conn. 674.

The present case is analogous to American Premier Underwriters, Inc. v. National Railroad Passenger Corp., 47 Conn. App. 384, 704 A.2d 243 (1997), cert. denied, 244 Conn. 901, 710 A.2d 174 (1998). In American Premier Underwriters, Inc., the trial court looked to the plaintiffs complaint and found that each count relied on a threshold determination by the Special Court, a court that had been created by an act of Congress relative to the restructuring of rail service in the Northeast. Id., 386. The trial court found that “[a]n essential element of the causes of action pleaded by the plaintiff in its five count complaint had not been determined . . . .” Id., 389. Because the Special Court had not decided the threshold issue at the time the trial court heard the motion to dismiss, the claims at issue in the trial court could not have been determined. Id. The trial court, therefore, found that “[b]ecause the issue before the Special Court had not been resolved, the matter in controversy [before the trial court was incapable] of being adjudicated by judicial power”; (internal quotation marks omitted) id., 390; and the plaintiffs claims were not ripe and not justiciable.

Understanding the nature of the plaintiffs’ claims in this case is essential to a proper analysis of whether those claims meet the justiciability test. The plaintiffs fail to recognize the significance of their pleadings and the elements essential to their claims in their argument. Counts one and two of the plaintiffs’ complaint specifically assert claims for damages to the extent those damages cannot be recovered in arbitration. The gravamen of the plaintiffs’ claim in count three is for damages resulting from the breach of the construction contract. The plaintiffs allege in count five that the defendants used the corporate entity to commit wrong against them, which is merely another theory by which the plaintiffs may recover on the breach of contract claim. Therefore, each of those claims is an action specifically seeking damages.

At the time the court heard and decided the defendants’ motion to dismiss, the appeal to this court on the granting of the injunction against compelling arbitration still was pending. A reversal in the injunction action would force the trial court to suspend judgment until damages were set forth in arbitration because the plaintiffs seek damages to the extent they cannot recover in arbitration. Therefore, had the court proceeded with the trial before learning the fate of the injunction action, it would have had no way of determining the actual amount of damages. The claims at issue in the trial court could not have been determined because, as in American Premier Underwriters, Inc., essential elements of the four counts dismissed had not been determined, i.e., whether the plaintiffs’ claims for damages were susceptible to arbitration and, if so, what the actual amount of damages would be.

The two substantive cases cited by the plaintiffs, ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 713 A.2d 886 (1998), and Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 494 A.2d 606, cert. denied, 197 Conn. 806, 807, 499 A.2d 57 (1985), were inapplicable to the present case because those cases did not involve a situation in which essential elements of the plaintiffs’ claims were contingent on the outcome of the pending action.

In the present case, because the plaintiffs’ claims were contingent on the outcome of the unresolved injunction action, the matter in controversy before the trial court could not have been adjudicated by judicial power. We conclude, therefore, that the trial court properly granted the defendants’ motion to dismiss due to its lack of subject matter jurisdiction because the claims were not ripe and not justiciable.

II

The plaintiffs’ final claim is that the trial court improperly dismissed the counts in question instead of staying the proceedings. We disagree.

“Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. ... As a result, the trial court was required to address the jurisdictional challenge before ruling on other motions and, once it decided that it lacked subject matter jurisdiction, it was bound and required to dismiss the [claims at issue]. . . . Accordingly, nothing was left before the trial court on which to act. . . . Therefore, the trial court could not properly have addressed the [plaintiffs’] motion for a stay.” (Citations omitted; internal quotation marks omitted.) American Premier Underwriters, Inc. v. National Railroad Passenger Corp., supra, 47 Conn. App. 390.

The trial court properly decided that it lacked subject matter jurisdiction because the four counts of the complaint relative to the alleged breach of contract were not justiciable. Accordingly, the court was bound and required to dismiss those counts.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because all counts (counts one and two) against R. D. Scinto, Inc., the corporate defendant, were dismissed by the trial court, the plaintiffs have an immediate right of appeal. See Practice Book § 61-3; Burns v. Board of Education, 228 Conn. 640, 644 n.3, 638 A.2d 1 (1994). The trial court dismissed only counts three and five against the individual defendants, Robert D. Scinto and Barbara A. Scinto, leaving count four for adjudication. Practice Book § 61-4 (a) provides in relevant part: “When the trial court renders a judgment [that does not dispose of an entire complaint or all the causes of action in a pleading brought by or against a party], such judgment shall not ordinarily constitute an appealable final judgment. Such a judgment shall be considered an appealable final judgment only if the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs. . . .” (Emphasis in original.) In the present case, the trial court did make such a written determination and the Chief Judge of the Appellate Court concurred. The four dismissed counts of the plaintiffs’ complaint are, therefore, appealable.

       Subsequent to the trial court’s judgment dismissing four of the five counts of the complaint, we affirmed the prior judgment of the trial court that had enjoined the plaintiffs from compelling the defendants to arbitrate the breach of contract claims. See Scinto v. Sosin, 51 Conn. App. 222, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).

       Robert D. Scinto claimed that he sought the release of his wife’s guarantee because its existence was upsetting to him.

       The construction contract provided for arbitration of “[a]ny controversy or claim arising out of or related to the contract or the breach thereof. . . .”

       At the time the trial court rendered judgment on the defendants’ motion to dismiss the present action, the appeal was still pending. See footnote 3.

       Counts one, two, three and five of the complaint were dismissed.

       Count one alleges that the plaintiffs seek to recover damages in this action “[t]o the extent plaintiffs cannot recover damages in arbitration for (¿aims relating to construction work [the corporate defendants] performed . . . before November 15, 1990.” (Emphasis added.)

       Count two not only incorporates the language in count one, but also alleges that the plaintiffs seek to recover damages in this action “[t\o the extent plaintiffs cannot recover damages in arbitration for claims relating to construction work not performed and/or constructed and/or managed . . . after November 15, 1990.” (Emphasis added.)


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    MELODY HYLLEN-DAVEY ET AL. v. PLAN AND ZONING COMMISSION OF THE TOWN OF GLASTONBURY ET AL.
    (AC 18855)
    Lavery, Mihalakos and Stoughton, Js.

    Argued December 13, 1999
    officially released May 9, 2000

      Derek V. Oatis, for the appellants (plaintiffs).

      David F. Sherwood, for the appellee (defendant Zella D. Ferrando).

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

   Opinion

LAVERY, J.

The plaintiffs appeal from the trial court’s judgment dismissing on motions by the defendants an administrative appeal from the decision by the defendant plan and zoning commission of the town of Glastonbury (commission) that approved a subdivision application. The plaintiffs contend that the court improperly (1) concluded that General Statutes § 22a-19 does not provide an independent right of appeal to a nonparty who did not intervene during the underlying administrative hearing where no parties to the hearing appealed and (2) denied the plaintiffs’ motion for a continuance. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendant Zella D. Ferrando is the owner of approximately ninety-seven acres of land in Glastonbury. In March, 1998, the defendant Rejean Jacques, doing business as Rejean Realty, Inc., applied to the commission for a special permit to subdivide land for development. In April, 1998, the commission approved the application.

In May, 1998, the plaintiffs, who had not intervened in the action before the commission, appealed from the commission’s decision to the Superior Court. The defendants filed motions to dismiss the appeal, and a hearing date was set. The plaintiffs opposed the motions and filed a motion for a continuance to give them time to obtain a written record from the commission. The court denied the motion for a continuance.

On July 10,1998, after conducting a hearing, the court; granted the motions to dismiss on the ground that the plaintiffs lacked standing to initiate an appeal because they had not intervened in the proceeding before the commission as required by § 22a-19. On September 9, 1998, we granted the plaintiffs’ petition for certification to appeal to this court. On September 25, 1998, the plaintiffs filed this appeal.

I

The primary issue before us is whether the Environmental Protection Act of 1971 (EPA), General Statutes § 22a-14 et seq., gives standing to a nonparty in an administrative agency proceeding to initiate an appeal from that agency’s decision when no party to the agency proceeding has done so. We answer this question in the negative and affirm the judgment of the trial court.

“ ‘The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.’ Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs’] claim.’ . . . Johnson v. Dept. of Public Health, 48 Conn. App. 102, 107-108, 710 A.2d 176 (1998). ‘We first note that, because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.’ . . . Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).” Taft v. Wheelabrator Putnam, Inc., 55 Conn. App. 359, 362, 742 A.2d 366 (1999), cert. granted on other grounds, 252 Conn. 918, 919, 744 A.2d 439, 440 (2000).

Before the enactment of the EPA, citizens seeking to protect the environment had to show specific, personal aggrievement to attain standing to bring a legal action. See Sheridan v. Planning Board, 159 Conn. 1, 13, 266 A.2d 396 (1969). Citizens concerned about the environment were seen as meddlers in public affairs. H. Johnson, “The Environmental Protection Act of 1971,” 46 Conn. B.J. 422, 423 (1972). The prevailing belief was that the public’s interest would be protected by public authorities and that allowing citizens to file suit would cause the courts to be “overrun by self-appointed protectors of the public interest.” Hiland v. Ives, 28 Conn. Sup. 243, 247, 257 A.2d 822 (1966).

Although such concerns repeatedly were expressed by legislators discussing the bill that would become the EPA; see, e.g., 14 H.R. Proc., Pt. 2, 1971 Sess., p. 748, remarks of Representative Robert D. King (“this Bill is an open invitation to every ecology kook in the state to zero in on his pet project regardless of its effect on the state as a whole”); the prevailing belief was that our state’s natural assets were protected insufficiently under then current law. “[T]his bill . . . expands the right of a person to have access to the courts when property which we might say belongs to all of the public is jeopardized by the alleged polluting activity. Presently a person, unless he can show a personal direct ownership or other interests in the land which he claims [is] being affected by the alleged activity, does not have legal standing in the court of law. Consequently, some of the most beautiful aspects of our environment, some of those most vital not only to our survival, but to that of future generations are such that they do not lend themselves to a proprietary or a personal interest and this bill makes the guaranteeing and the preservation and the protection of these lights available to the general public which they are not presently under our law.” Id., p. 739, remarks of Representative John F. Papandrea; see generally E. Gellhorn, “Public Participation in Administrative Proceedings,” 81 Yale L.J. 359 (1972). The bill was passed and became the EPA.

To further its goal of protecting the environment, the EPA waives the traditional aggrievement requirement in two ways. First, General Statutes § 22a-16 authorizes any citizen or organization, without having to first establish aggrievement, to initiate a declaratory or injunctive action to protect the public trust. Second, § 22a-19 authorizes any citizen or other entity, without having to first establish aggrievement, to intervene in an existing proceeding. We view these two provisions as operating hand in hand to grant a full range of protection to our state’s environmental resources. State v. State Employees’ Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997) (statutes should be read together when involving similar subject matter). Section 22a-16 allows the initiation of declaratory or injunctive actions to challenge an environmental harm, and § 22a-19 allows intervention in already existing administrative proceedings. In essence, the EPA allows Connecticut citizens and organizations to act as private attorneys general, protecting the public trust in a manner that the state, with its limited resources, could not achieve. Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 343, 348 A.2d 596 (1974); see generally R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 32.6, pp. 122-32.

The plaintiff contends that this court need not look beyond Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 563 A.2d 1339 (1989), to resolve the issue before us. In Red Hill Coalition, Inc., the conservation commission of the town of Glastonbury argued that Julianne Steffens, president of the Red Hill coalition, lacked standing to appeal under § 22a-19 because Steffens had not intervened in the underlying administrative proceeding. Id., 715-16. The Supreme Court disagreed and concluded that “by joining the coalition’s appeal to the Superior Court . . . [Steffens was] not statutorily required to file a notice of intervention before the commission.” Id., 716.

We do not agree that the holding in Red Hill Coalition, Inc., is conclusive under the facts of this case. Red Hill Coalition, Inc., held that a person who had not intervened in the administrative proceedings could join a valid appeal initiated by other parties. The plaintiffs here have a more tenuous connection to the proceeding than did Steffens in Red Hill Coalition, Inc. They seek their own independent appeal to the Superior Court from a decision rendered without their participation at the administrative agency level and where no party to the administrative hearing brought an appeal. In essence, Red Hill Coalition, Inc., does not confirm whether entities or individuals, such as the plaintiffs, hold an independent right under § 22a-19 to appeal from an agency’s decision. Accordingly, even with the benefit of the ruling in Red Hill Coalition, Inc., we must independently review the applicability of § 22a-19 to the facts of this case.

“When interpreting a statute, courts should accord a statutory enactment its plain meaning. . . . Moreover, the meaning of statutory language must be determined from a reading of the statute as a whole. . . . We may not, by construction, read a provision into legislation that is not clearly stated therein.” (Citations omitted; internal quotation marks omitted.) Reliance Ins. Co. v. Reider, 54 Conn. App. 77, 83, 730 A.2d 1229, cert. denied, 250 Conn. 928, 738 A.2d 659 (1999). As we will discuss, the plain meaning of § 22a-19 does not permit this appeal.

In short, § 22a-19 allows any individual or entity to “intervene as a party” in certain proceedings or judicial review thereof to challenge harm to the environmental public trust. The plain meaning of the word “intervene” highlights the joining of an existing action, even when viewing the term as it was defined at the time our legislature enacted the EPA. “Intervene” is defined as “[t]o come between. To become a party to an action by way of intervention.” Ballentine’s Law Dictionary (3d Ed. 1969). Similarly, “intervention” is defined, inter alia, as “the proceeding by which one not originally a party to an action is permitted, on his own application, to appear therein and join one of the original parties in maintaining the action or defense . . . .’’Id. When discussed within the context of § 22a-19, the word “intervention” is similarly used. “Intervention allows one who was not a party in an original action to become a party upon his request. He has a derivative role by virtue of an action already shaped by the original parties.” Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 48, 526 A.2d 1329 (1987). In sum, “intervention” does not mean “initiate,” and it is a word in the statute that we cannot ignore. See Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 443, 589 A.2d 1229 (1991) (legislation to be interpreted to give meaning to every word). Section 22a-19 does not grant the plaintiffs the right to initiate their own appeal without having first participated in the administrative proceedings or having joined in an existing appeal by other parties.

Furthermore, the plaintiffs did not intervene in a “proceeding” as required by § 22a-19. As with our previous analysis, we start with the plain meaning of the term proceeding in construing the statute. See Reliance Ins. Co. v. Reider, supra, 54 Conn. App. 83. “[T]he term proceeding, as ordinarily used, is generic in meaning and broad enough to include all methods involving the action of courts . . . .” (Internal quotation marks omitted.) State v. Ventola, 122 Conn. 635, 639, 191 A. 726 (1937); Second Injury Fund v. Lupachino, 45 Conn. App. 324, 346 n.15, 695 A.2d 1072 (1997); Regs., Conn. State Agencies § 22a-3a-2 (a) (1); 1 Am. Jur. 2d, Actions § 3 (1994). Other definitions are similarly broad. A “proceeding” is defined as “any application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object.” Ballentine’s Law Dictionary (3d Ed. 1969).

Simply put, the plaintiffs could not intervene in any proceeding under § 22a-19 because no proceeding existed for the plaintiffs to join. Proceeding means “the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them of opposing judgments and of executing.” (Emphasis added; internal quotation marks omitted.) Fairfield v. Connecticut Siting Council, 37 Conn. App. 653, 665, 656 A.2d 1067 (1995), rev’d on other grounds, 238 Conn. 361, 679 A.2d 354 (1996). “Ordinary proceedings intend the regular and usual mode of carrying on a suit by due course of common law.” (Internal quotation marks omitted.) Statter v. United States, 66 F.2d 819, 822 (9th Cir. 1933). In April, 1998, the commission approved the subdivision application of Jacques. Because no party to the proceeding chose to appeal from the commission’s decision, the decision ended the proceeding. Accordingly, the plaintiffs do not have standing to appeal because no proceeding under § 22a-19 existed at the time the plaintiffs attempted to appeal from the commission’s decision.

Furthermore, the legislative history of § 22a-19 reveals no intention different from what the statute, in its plain meaning, instructs. See H. Johnson, supra, 46 Conn. B.J. 422-31. Legislators discussing the precursor of § 22a-19 described the provision in a straightforward manner. “In this measure, we are granting individual citizens some powerful weapons, the right to seek injunctions, the right to intervene in proceedings.” 14 S. Proc., Pt. 3, 1971 Sess., p. 1083, remarks of Senator Thomas F. Dowd, Jr. “In Section 6 [of the forerunner of the EPA], in all the administrative and licensing procedures and any Judicial view, any of the parties previously mentioned, may intervene.” Id., p. 1092, remarks of Senator Stanley J. Pac. Accordingly, the legislative history of the EPA, discussing the relevant section in plain teims, supports our interpretation of § 22a-19.

Not only does the plain language of § 22a-19 not permit what the plaintiffs seek, but our Supreme Court has implicitly recognized the limitation of § 22a-19 that we articulate here. The court, even when expanding § 22a-19 to its farthest reaches, has never authorized an independent right to appeal by a nonparty to the administrative proceeding where no party has appealed from the agency’s decision. “[The EPA] allows a member of the general public to intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action.” Connecticut Water Co. v. Beausoleil, supra, 204 Conn. 44-45. If a person participates in the administrative proceeding under § 22a-19, then that person may bring an appeal under § 22a-19 for the limited purpose of raising environmental issues. Red Hill Coalition, Inc. v. Conservation Commission, supra, 212 Conn. 715-16. Ten years after Red Hill Coalition, Inc., the court affirmed that principle in Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 276 n.9, 740 A.2d 847 (1999), stating: “Because the plaintiffs filed a notice of intervention at the commission hearings in accordance with § 22a-19 (a), they had standing to appeal the environmental issues associated with that commission’s decision.” In this case, participation by the plaintiffs at the administrative level is lacking.

The absence of appellate access through § 22a-19 to an administrative agency proceeding without prior intervention or the joining in an existing appeal does not inhibit the broad intention of the legislature in enacting the EPA. For example, § 22a-16 provides an original remedy to the plaintiffs. Indeed, the plaintiffs noted at oral argument to this court that they have such an action presently pending. Our decision does not slam the door on environmentally concerned citizens and other entities, but rather promotes the simple task of intervening in a proceeding at the administrative agency level to secure the right to appellate review.

We acknowledge that “[a] statute should not be interpreted in any way to thwart its purpose. ” Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498 (1975). In construing the meaning of a statute, however, “courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it”; (internal quotation marks omitted) Szczapa v. United Parcel Service, Inc., 56 Conn. App. 325, 330, 743 A.2d 622, cert. denied, 252 Conn. 951, 748 A.2d 299 (2000); and “[i]t is well settled that a statute must be applied as its words direct.” (Internal quotation marks omitted.) All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989); see also General Statutes § 1-1 (a). The words of § 22a-19 direct citizens and other entities to protect the public trust of Connecticut’s environmental resources through intervention in proceedings or judicial review. Section 22a-19 simply does not permit entities or individuals such as the plaintiffs to conduct an independent, nonparty appeal where no parties from the underlying proceeding are appealing themselves and where the entities or individuals seeking to appeal did not participate in the underlying proceeding.

II

The plaintiffs also contend that the trial court improperly denied their motion for a continuance. We disagree.

A trial court holds broad discretion in granting or denying a motion for a continuance. “Appellate review of a trial court’s denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances.” (Internal quotation marks omitted.) State v. DeCaba, 42 Conn. App. 141, 143, 679 A.2d 35, cert. denied, 239 Conn. 915, 682 A.2d 1008 (1996). “An abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary.” State v. Bradley, 39 Conn. App. 82, 87, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). It is not appropriate for us to decide whether we, as trial judges, would have reached a different result, but, rather, whether the trial court abused its discretion in denying the continuance. See State v. Hamilton, 228 Conn. 234, 240-41, 636 A.2d 760 (1994) (listing numerous factors relevant to trial court’s discretion regarding continuances).

One relevant factor that a court may consider in evaluating a motion for a continuance is the perceived legitimacy of the reasons proffered in support of the motion. Id., 240. The plaintiffs in their motion stated that a continuance was necessary because opposition to the defendants’ motions to dismiss required matters of record that occurred before the commission that had not yet been delivered to the plaintiffs.

Although the absence of similar materials may be quite relevant under certain circumstances, the court’s denial of the motion for a continuance does not constitute an abuse of discretion. In short, the defendants’ motions to dismiss were not bound up in fact-laden issues that demanded a complete factual record. The issue before the court regarding the motions to dismiss was whether the plaintiffs had independent standing under § 22a-19 to pursue an appeal from the commission’s decision when they did not participate in the proceeding before the agency—a question of law, not fact. It was not an abuse of discretion for the court to conclude that acquisition of that record would not materially aid resolution of the relevant issues. Accordingly, the decision to deny the continuance to obtain those facts does not constitute an abuse of the court’s broad discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Melody Hyllen-Davey, Animal Welfare and Rights Entity, Inc., and Animal Rights Front, Inc.

       The defendants are the plan and zoning commission of the town of Glastonbury, Zella D. Ferrando and Rejean Jacques doing business as Rejean Realty, Inc.

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       The court in Red Hill Coalition, Inc., also concluded that Thomas Fitzgerald, another plaintiff, had standing. Red Hill Coalition, Inc. v. Conservation Commission, supra, 212 Conn. 716. Because Fitzgerald was an abutting landowner of the challenged subdivision, however, he was considered “traditionally aggrieved”; (internal quotation marks omitted) id.; and is thus less important to our discussion. Unlike Fitzgerald, Steffens did not possess traditional aggrievement and claimed standing solely under § 22a-19.


text:
    HARRY V. KEEFE, JR. v. NORWALK COVE MARINA, INC., ET AL.
    (AC 18261)
    Lavery, Landau and Dupont, Js.

    Argued January 11
    officially released May 9, 2000

      John J. Ryan, with whom, on the brief, was Nancy D. Gallagher, for the appellant-appellee (named defendant).

      Brendan J. O’Rourke, for the appellee-appellant (plaintiff).

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

   Opinion

LAVERY, J.

The named defendant, Norwalk Cove Marina, Inc. (marina), appeals from the judgment of the trial court awarding damages in a breach of contract case. On appeal, the marina claims that the trial court improperly found that a valid contract existed between the parties. It specifically argues that the contract lacked consideration and that the agreement violated the statute of frauds. The plaintiff, Harry V. Keefe, Jr., in his cross appeal, contends that the court improperly (1) failed to award him maintenance, transportation and cost of sale expenses arising from the contract, (2) awarded a $30,000 setoff for moneys withheld and (3) found that the defendant James Gardella, an officer of the marina, was not personally liable for the debts of the corporation. We affirm in part and reverse in part the judgment of the trial court.

The trial court found the following facts. In the fall of 1993, the plaintiff read an advertisement in a trade magazine about an Azimut motor yacht (yacht) that was being built in Italy. The plaintiff flew to Italy, met with the manufacturer, Vitelli, and agreed to purchase the yacht for $1,725,000. Vitelli advised the plaintiff that the marina was its dealer and agent in the United States, and would be responsible for coordinating the purchase and shipment of the yacht to the United States and for performing any warranty work on the yacht. The marina and Gardella played no role in the negotiations for the purchase, which were conducted directly between the plaintiff and the manufacturer in Italy. The marina, at the plaintiffs request, shipped certain items to Italy for installation on the yacht. In June, 1994, the Italian manufacturer paid the marina a $300,000 commission in connection with the plaintiffs purchase of the yacht.

The plaintiff and Gardella first met in February, 1994, to discuss the purchase of the yacht and the trade-in of the plaintiffs own motor yacht, a 1991 model fifty-two foot Hatteras (Hatteras). In April, 1994, the plaintiff and the marina signed a written agreement. The agreement provided that the sale price of the yacht was $1,725,000 plus optional equipment and transportation charges. The agreement also provided that the marina was giving the plaintiff an “allowance” for the used boat trade-in, which totaled $653,900. This trade-in figure was used by the plaintiff to calculate and pay the Connecticut sales tax on the yacht. The sales tax was thus based on the sales price of $1,725,000 less the allowance of $653,900 for the trade-in.

The April, 1994 agreement did not fully reflect what actually occurred in the transaction. The plaintiff paid the Italian manufacturer the full purchase price without deducting the trade-in allowance, and the marina never took title to the Hatteras or paid the plaintiff any money. The plaintiff withheld $30,000 from the purchase price pending certain alterations and changes to the yacht. When those were completed, the plaintiff refused to pay the $30,000.

After the Hatteras was brought to the marina, from April, 1994, until October, 1995, the marina used its best efforts to sell the Hatteras, including advertising and displaying it at several trade shows. The marina performed some minor repairs on the Hatteras, but overall it was in good working order when it arrived at the marina. In the meantime, the market for yachts the size of the Hatteras took a downturn, and the marina was not successful in selling the Hatteras. In October, 1995, the plaintiff, with the permission of the marina, sent the Hatteras to Florida, where it was listed with a broker at $775,000. The Hatteras ultimately sold for $525,000 in April, 1996. The plaintiff netted $480,000 after paying a sales commission of $40,000 and a survey adjustment of $4200. The plaintiff incurred costs of approximately $56,000 in transporting the Hatteras to Florida and docking it there for six months until the boat was sold, as well as the costs of labor, taxes, fuel and insurance.

In his complaint, the plaintiff alleged that the defendants had breached the parties’ agreement by failing to pay him the trade-in allowance of $653,900 for the Hatteras and by failing to pay him interest on that amount from the date of the agreement. The defendants .filed a counterclaim for damages in the amount of $30,000 arising from the plaintiffs failure to pay for alterations made to the yacht prior to its shipment from Italy. At trial, Gardella testified that the defendants had agreed only that they would use their best efforts to sell the Hatteras and that they would pay the plaintiff whatever the boat sold for. According to Gardella, the figure of $653,900 was only an estimate of the anticipated sales price.

The court found that the defendants had agreed to a trade-in allowance of $653,900. It also found that the plaintiff was entitled to recover the difference between that guaranteed trade-in pnce and the eventual gross sales price of the Hatteras. The court rejected the plaintiffs claim that he should receive the difference between the trade-in allowance and the net amount he received, that he was entitled to a credit for the expenses that he incurred in connection with selling the boat in Florida, and that he was entitled to interest on the $653,500 trade-in allowance. On the counterclaim, the court found that the plaintiff had breached the agreement by refusing to pay the defendants $30,000 for alterations to the yacht. The court awarded the plaintiff the sum of $128,900, which is the difference between the trade-in allowance for the Hatteras and its eventual sales price, less $30,000 for work done on the yacht, for a total judgment of $98,900. The court rendered judgment against the marina only, having found that Gardella acted as an officer of the marina at all pertinent times and that there was no basis on which to hold him individually liable.

I

“As an appellate court, our review of trial court decisions is limited to determining whether their legal conclusions are legally and logically correct, supported by facts set out in the memorandum of decision. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 563, 559 A.2d 241 (1989). Whether a contract or a subsequent modification exists is a question of fact for the court to determine. [Harris Calorific Sales Co. v. Manifold Systems, Inc., supra, 563]; see also Three S. Development Co. v. Santore, 193 Conn. 174, 177-78, 474 A.2d 795 (1984); Randolph Construction Co. v. Kings East Corp., 165 Conn. 269, 277, 334 A.2d 464 (1973); Ther moglaze, Inc. v. Morningside Gardens Co., 23 Conn. App. 741, 745, 583 A.2d 1331, cert. denied, 217 Conn. 811, 587 A.2d 153 (1991). If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Harris Calorific Sales Co. v. Manifold Systems, Inc., supra, 563.” (Internal quotation marks omitted.) New England Rock Services, Inc. v. Empire Paving, Inc., 53 Conn. App. 771, 775, 731 A.2d 784, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).

A

The marina argues that the court improperly found consideration in an agreement where none existed. We disagree.

“The doctrine of consideration is of course fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable. In defining the elements of the rule, we have stated that consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. . . . An exchange of promises is sufficient consideration to support a contract.” (Citations omitted; internal quotation marks omitted.) Osborne v. Locke Steel Chain Co., 153 Conn. 527, 530-31, 218 A.2d 526 (1966).

Simply put, the agreement between the plaintiff and the marina is enforceable because consideration does exist. The marina received the benefit of a $300,000 commission for the sale of the yacht to the plaintiff, when in fact it did very little to consummate the deal, as the plaintiff dealt primarily with the manufacturer. In exchange for this consideration, the plaintiff received a promise from the marina that it would guarantee a sale “trade-in” price of no less than $653,900 on the ultimate sale of the Hatteras. He also received a credit that reduced the Connecticut sales tax that otherwise would be due.

The fact that the marina never took title to the Hatteras throughout the transaction does not affect this result. The agreement between the parties, not just as reflected in the agreement, but as fully contemplated by them, did not require that the marina take possession or title of the Hatteras. As the court stated in its memorandum of decision: “In reality, the plaintiff paid the manufacturer in Italy the full purchase price without any credits, and the defendants never took title to the Hatteras or paid the plaintiff any money. The defendants, however, prepared the April [1994 written] agreement, which provided for a specific trade-in allowance for the Hatteras, as if the Hatteras had in fact been traded in, and the sales tax was calculated on the difference between that figure and the total purchase price. The agreement did not require that the defendants take title to the Hatteras or provide for what would happen if the Hatteras was sold for a price less than the specified trade-in. The court believes that the defendants are bound by this contract and the obligation therein to pay a specific trade-in allowance.”

We agree with the trial court and conclude that sufficient consideration existed between the plaintiff and the marina to form a contract.

B

We also conclude that this agreement incorporates the nonwritten details of the trade-in agreement without violating the statute of frauds or the parol evidence rule. As noted here and previously, the written agreement did not fully reflect what the parties contemplated regarding the transaction. The use of nonwritten information outside the four comers of an agreement implicates the statute of frauds. The statute of frauds states that agreements must be in writing if certain conditions are present. General Statutes § 42a-2-201 (1). “To comply with the statute of frauds an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof, or from a reference contained therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement.” (Internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 92, 439 A.2d 1066 (1982). The essential terms of the contract, and not every single term of the contract, must be set forth therein. Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 38 Conn. App. 420, 426, 662 A.2d 129 (1995), aff'd, 237 Conn. 123, 676 A.2d 369 (1996). Our courts prefer interpretations that find agreements sufficiently definite to satisfy the statute of frauds. Id., 427.

The essentials of the agreement between the plaintiff and the marina are present in the written contract. The contract states, among other things, the subject of the sale, its terms, the relevant parties, the price and the value of the trade-in allowance. The contract therefore satisfies the statute of frauds.

Furthermore, the nonwritten understanding regarding the details of the trade-in agreement is part of the agreement and does not violate the parol evidence rule. “The parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract. Giorgio v. Nukem, Inc., 31 Conn. App. 169, 173-74, 624 A.2d 896 (1993); see also 2 Restatement (Second), Contracts § 213 (1981).” (Internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 733, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Although extrinsic information may not be used to vary or contradict certain written agreements, it may be used, as it is here, to aid in ascertaining the meaning of the parties’ contract. Harris v. Clinton, 138 Conn 657, 662, 88 A.2d 542 (1952); Fernandez v. Thompson, 104 Conn. 366, 369, 132 A. 895 (1926); Foley v. Huntington Co., supra, 734; Shawmut Bank Connecticut, N.A. v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 275, 670 A.2d 880, cert. denied, 236 Conn. 915, 673 A.2d 1143 (1996). The non-written details of the trade-in agreement were not used to vary or contradict the terms of the contract, but to ascertain the meaning of its terms and determine the intent of the parties.

II

In his cross appeal, the plaintiff contends that the court improperly calculated damages regarding the difference between the guaranteed trade-in allowance and the amount actually received from the sale of the Hatteras. We agree.

The trial court has broad discretion in determining damages, and we will not overturn its decision unless it is clearly erroneous. Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724 (1998). “[WJhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Id. The plaintiffs cross appeal attacks the legal conclusions of the trial court as being legally and logically incorrect.

The court concluded that the plaintiff should recover $128,900, the difference between the trade-in allowance of $653,900 and the ultimate sale price of $525,000. The court did not award the plaintiff $44,200 incurred in selling the Hatteras or $56,696 in expenses relating to the maintenance of the Hatteras. These costs were incurred when the plaintiff took control of the Hatteras and made his own attempts to sell it when efforts by the marina had failed.

“[C]ontract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of the bargain by awarding a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed.” (Internal quotation marks omitted.) Colby v. Burnham, 31 Conn. App. 707, 721, 627 A.2d 457 (1993); see also Frederick Raff Co. v. Murphy, 110 Conn. 234, 242, 147 A. 709 (1929). Such damages, moreover, are to be determined at the time of the breach. Colby v. Burnham, supra, 721. The non-breaching party has a duty to minimize any damages as a result of the breach. Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 229, 676 A.2d 844 (1996); Moore v. Sergi, 38 Conn. App. 829, 843, 664 A.2d 795 (1995). Furthermore, a nonbreaching party who attempts to mitigate his losses may recover his expenditures toward that goal from the breaching party. 22 Am. Jur. 2d, Damages § 608 (1988).

The court stated in its memorandum of decision: “The evidence disclosed that over the course of the next year and a half, beginning in April, 1994, when the Hatteras was brought to Cove Marina, the defendants used their best efforts to sell the Hatteras, including advertising and displaying it at several trade shows. ... In October, 1995, the plaintiff, with the acquiescence of the defendants, sent the Hatteras to Florida, where it was listed for sale by a broker at $775,000 and ultimately sold for [the gross selling price of] $525,000 in April of 1996.”

“Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time.” (Internal quotation marks omitted.) Colby v. Burnham, supra, 31 Conn. App. 715. The marina made reasonable efforts over a reasonable time to attempt to sell the Hatteras, but failed to do so. The plaintiff prudently took the matter into his hands with the acquiescence of the marina, took possession of the boat and attempted to sell the Hatteras on his own. The plaintiff maintained the boat during that time and transported it to Florida with the hope that the marketplace there would be more receptive to his offer to sell.

The failure of the court to award the plaintiff his transportation and maintenance costs as damages prevented him from receiving the benefit of his bargain and compensation for the expenses incurred by him when he attempted to mitigate any damages by selling the yacht. Such damages are appropriate where a party seeks to complete the agreement and to minimize the financial harm arising out of the transaction. We therefore conclude that the failure of the court to award cost of sale and expense damages in the amount of $44,200 and maintenance damages in the amount of $56,696 was clearly erroneous.

Ill

The plaintiff, in his cross appeal, further contends that the court improperly awarded a $30,000 setoff to the marina for moneys held back by the plaintiff pending the completion of work due on the yacht. We disagree.

Applying the appropriate standard of review; see New England Rock Services, Inc. v. Empire Paving, Inc., supra, 53 Conn. App. 775; we conclude that the court’s decision should not be reversed on this ground. “The concept of setoff allows entities that owe each other money to apply their mutual debts against each other, thus avoiding the absurdity of making ‘A’ pay ‘B’ when ‘B’ in fact owes ‘A.’ ” OCI Mortgage Corp. v. Marchese, 56 Conn. App. 668, 676, 745 A.2d 819, cert. granted on other grounds, 253 Conn. 903, 753 A.2d 937 (2000). The court stated in its memorandum of decision: “The . . . issue is whether the plaintiff is obligated to pay the defendants $30,000 as asserted in their counterclaim. The April 11, 1994 agreement provides that ‘[the plaintiff] also will hold back $30,000 pending completion of work by Azimut prior to shipment from Italy to U.S. per agreement with Jack Haight.’ This work was completed, so the defendants have sustained their burden of proof on their counterclaim.”

The agreement to purchase the yacht was arranged directly between the plaintiff and Vitelli, the Italian manufacturer. Vitelli advised the plaintiff, however, that the marina was its dealer and agent in the United States, and would be responsible for coordinating the purchase of the yacht and its shipment to this country. In other words, the marina is the manufacturer’s agent and is the proper recipient for any moneys due on the purchase of the yacht. The marina, as the manufacturer’s agent and dealer in the United States, has a duty to collect funds for the manufacturer that are due the manufacturer from sales of its products. See Bond Rubber Corp. v. Oates Bros., Inc., 136 Conn. 248, 251, 70 A.2d 115 (1949); Carrier v. McLlarky, 693 A.2d 76, 78-79 (N.H. 1997); 2 Restatement (Second), Agency § 427, p. 296 (1958). Accordingly, the $30,000 held back by the plaintiff pending completion of work due on the yacht was properly awarded as a setoff to the marina.

IV

Finally, the plaintiff contends in his cross appeal that the court improperly found that Gardella was not individually liable for the marina’s debts. We disagree.

This conclusion is not clearly erroneous. See New England Rock Services, Inc. v. Empire Paving, Inc., supra, 53 Conn. App. 775. The court stated in its memorandum of decision: “This judgment is not entered against the individual defendant, James Gardella, as he was acting as an officer of the defendant corporation, Cove Marina, at all pertinent times, and there is no basis to suggest he is individually liable for the debts of the corporation.” Sufficient facts exist to support this conclusion. The agreement to purchase the yacht was signed by Jack Haight as a representative of the marina. No evidence exists that Haight held the authority to bind Gardella personally upon this act.

In the plaintiffs first request for admissions, the plaintiff asked the defendants to admit “[t]hat James Gardella personally promised [the plaintiff] a trade-in allowance on Plaintiffs Harteras on the purchase of a yacht named Azimut’ by Plaintiff through Norwalk Cove Marina, Inc.” The defendants in their answer admitted that that statement was true.

The court’s conclusion that this admission does not make Gardella personally liable for the debts of the marina is not clearly erroneous. The plaintiff attempts to use this admission to bind Gardella by making him, in essence, a personal guarantor of the marina’s actions. The admission, however, does not concede such personal liability and makes no mention of any status of Gardella as guarantor. In effect, the plaintiff asks us to hold Gardella personally liable by piercing the marina’s corporate veil of protection against shareholder liability. See Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 552-54, 447 A.2d 406 (1982). Courts pierce the corporate veil only under “exceptional circumstances”; id., 557; and we decline to apply this remedy here.

The judgment is reversed on the plaintiffs cross appeal only as to the trial court’s calculation of damages and the case is remanded for further proceedings to recalculate the award of damages consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff also pleaded fraudulent misrepresentation and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. These allegations were rejected by the trial court, and its rulings with respect to them are not challenged on appeal.

       It was noted at oral argument that one apparent reason for this “hybrid agreement” without a direct trade-in was that the marina did not have sufficient funds to pay the plaintiff the appropriate credit for the yacht.


author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. JUAN R. TORRES
    (AC 19820)
    O’Connell, C. X, and Zarella and Dupont, Js.

    Argued January 12
    officially released May 9, 2000

      Richard Hustad Miller, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were MarkS. Solak, state’s attorney, and Vincent J. Dooley, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

ZARELLA, J.

The defendant, Juan R. Torres, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). On appeal, the defendant claims that the trial court improperly allowed the state (1) to present evidence of other misconduct and (2) to make the jury aware that his separately tried accomplice was imprisoned. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a longtime friend of Julio Santiago and Jose Ortiz. Ortiz was employed at the Big A auto parts store in Windham. Ortiz informed the defendant that Big A was profitable and that at the end of the business day, several thousand dollars in proceeds usually were taken from the registers and placed in the store’s safe. Additionally, Ortiz revealed that the safe generally was unlocked during business hours until fifteen minutes prior to closing, when the day’s proceeds were counted and deposited in the safe.

The defendant and Santiago devised a plan to rob the store just prior to closing, when the day’s proceeds had been counted and deposited in the safe. As part of that plan, the defendant and Santiago agreed to disguise themselves with ski masks and to rob the store at gunpoint.

On February 14, 1996, Ortiz left work at Big A at approximately 6:15 p.m. and returned home at 6:20 p.m. The defendant telephoned Ortiz to tell him that the robbery was about to occur and that he would call Ortiz after it was completed with instructions on where to meet him and Santiago after the robbery.

The owner of Big A, Glen Gabriele, was working at the store on February 14, 1996. At approximately 6:40 p.m., Gabriele’s friend, Doug Hoyle, entered and Gabriele asked him to watch the front of the store while he went to the bathroom. The only other person in the store at that time was Alan Fenrow, a Big A employee.

A man entered the store and announced, “This is a stickup!” The man was thin, approximately five feet, ten inches tall, and was wearing dark clothing, gloves and a black ski mask. Hoyle asked the man if he was serious, and the man thrust a gun at Hoyle’s face. A second robber, who was thin and approximately five feet, four inches tall, then entered the store.

The taller robber placed his gun to Hoyle’s back and forced him to he on the floor. The shorter robber stood guard over Hoyle while the taller robber approached Fenrow, who was unaware that a robbery was occurring because he was busy repairing a computer. The taller robber put his gun to Fenrow’s back and said, “This is a stickup!” He forced Fenrow to guide him to the safe, which the taller robber then emptied. Fenrow was forced to the floor, and the robbers warned him and Hoyle to remain on the ground. The robbers then fled.

Gabriele returned from the bathroom and discovered that the store had been robbed. After the police were called, neither Hoyle nor Fenrow could describe the robbers’ faces. Both agreed, however, that the taller robber had a semiautomatic handgun. Also, Hoyle informed the police that the shorter robber carried a semiautomatic weapon that was smaller than the one carried by the taller robber.

Sometime after 7 p.m., the defendant, using a cellular telephone, called Ortiz and instructed him to go to a deserted cornfield one to two miles from Big A and wait for Santiago and the defendant to arrive. Ortiz immediately drove to the cornfield to meet the two men. Upon arriving, the defendant and Santiago entered Ortiz’s car, and the defendant told Ortiz that he had buried both guns and his mask in the snow in the cornfield. The defendant and Santiago gave Ortiz specific details describing the robbery. Santiago openly displayed the money stolen from Big A, and the two robbers complained to Ortiz that they had only obtained $152 and some rolled coins from the safe. Ortiz drove Santiago to his sister’s house and then went with the defendant to a fast-food restaurant. Ortiz drove the defendant back to the cornfield a few days later, and the defendant retrieved the guns and the mask he had buried.

The defendant and Santiago next planned to rob a McDonald’s restaurant in Mansfield, and Ortiz agreed to be the driver of the getaway car. On February 23, 1996, nine days after the Big A robbery, Ortiz dropped the two men off near the McDonald’s restaurant and then drove to a nearby spot on a limited access highway beneath the Route 195 overpass to wait for them. At 11:30 p.m., state police Trooper Robert Peasley, who was on duty, spotted the parked car. He approached the car, believing that it was abandoned, and discovered Ortiz lying across the front seat. Ortiz was visibly nervous and gave Peasley evasive responses to his questions. Ortiz claimed that his car had overheated. Peasley was suspicious and radioed for assistance. Three troopers arrived and discovered that the car was in good working condition.

Despite their suspicions about Ortiz, the troopers could not justifiably detain him and allowed Ortiz to drive away. The troopers then received a call on the radio dispatch reporting the robbery of a nearby McDonald’s restaurant. The troopers went to the McDonald’s and discovered that two masked men had robbed the restaurant at gunpoint and fled on foot. Two of the troopers began tracking the robbers with the assistance of a dog. The dog led the troopers to a spot beneath the highway overpass where they had encountered Ortiz. The dog then led the troopers past the overpass to a large bush. Underneath the bush the troopers found a nine millimeter pistol, a .380 caliber pistol, a black ski mask and several money bags. The robbers were not found.

After his encounter with the troopers, Ortiz went home and received a telephone call from the defendant, asking why Ortiz had not met him at the overpass. Soon thereafter, the police went to Ortiz’s home and took him into custody. The police took Ortiz to the McDonald’s, where Ortiz discovered that Santiago also was in custody. Ortiz gave the police a statement that implicated the defendant, Santiago and himself in the robbery of the McDonald’s. The defendant also confessed to the McDonald’s robbery. Two days later, Ortiz was interviewed by two detectives while awaiting arraignment in connection with the McDonald’s robbery. Ortiz gave a statement implicating the defendant, Santiago and himself in the Big A robbery. Ortiz testified at the Big A robbery trial for the prosecution.

I

The defendant first claims that the court improperly allowed the state to present evidence concerning the McDonald’s robbery during his trial in connection with the Big A robbery. We disagree.

The following additional facts are necessary for the resolution of this issue. During the defendant’s trial, the state submitted a motion to admit evidence about the McDonald’s robbery. The state sought to introduce the evidence for the limited purpose of establishing a course of conduct and the defendant’s identity. The grounds for the state’s motion were the signature crime and identity exceptions to the general rule prohibiting the admission of other misconduct evidence.

After a hearing outside the presence of the jury, the court agreed that the evidence of the McDonald’s robbery was admissible, but disagreed that it was admissible under either the signature crime or identity exceptions. Instead, the court concluded that the evidence of the McDonald’s robbery was admissible to prove an element of the crime of robbery in the first degree. The court stated that the McDonald’s evidence was admissible for the limited purpose of establishing the identity of the two handguns and the ski mask. The court determined that the probative value of the evidence outweighed its prejudicial effect. The court also ruled that the defendant’s confession to the McDonald’s robbery was admissible, but that the evidence of his conviction for that crime was inadmissible.

Before the jury heard any evidence pertaining to the McDonald’s robbery, the court gave the jury a cautionary instruction. The state then presented the testimony of several witnesses, including Ortiz, regarding the planning, execution and aftermath of the McDonald’s robbery. The state also offered into evidence the two guns used in the McDonald’s robbery, the ski mask and the defendant’s confession.

Defense counsel objected to the admission of the testimony concerning the McDonald’s robbery. In overruling the defendant’s objection, the court gave the jury an additional cautionary instruction. A final cautionary instruction also was given during the court’s charge to the jury.

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.” (Citations omitted.) State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994). Exceptions to the general rule exist, however, “if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 191-92, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997); see State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995). “We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Internal quotation marks omitted.) State v. Kulmac, supra, 61; see State v. Figueroa, supra, 162.

“The primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” State v. Kulmac, supra, 230 Conn. 61; see State v. Figueroa, supra, 235 Conn. 162; State v. Mooney, 218 Conn. 85, 127, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

Under the first prong of our analysis, our examination of the proffered evidence reveals that the court properly admitted the evidence of the McDonald’s robbery because the evidence was relevant to prove an element of the crime charged in connection with the Big A robbery. An essential element of robbery in the first degree, pursuant to § 53a-134 (a) (4), is that the accused “displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” The evidence concerning the McDonald’s robbery was, therefore, relevant to show ownership of the guns and mask used in the robberies.

To show this, the court allowed testimony tracing the possession of the guns used in the McDonald’s robbery to the defendant through testimony of the state troopers involved in investigating the robbery, as well as through the testimony of Ortiz and through the defendant’s own confession to the McDonald’s robbery. The court also allowed testimony that established that the guns used by the defendant in the McDonald’s robbery were the same as those used in the Big A robbery. We conclude, therefore, under the first prong of our analysis that the evidence concerning the McDonald’s robbery was relevant to an element of the Big A robbery.

Having determined that the court properly found the challenged evidence to be relevant, we must next review whether the court abused its discretion in weighing the probative value of the evidence against its prejudicial effect. See State v. Figueroa, supra, 235 Conn. 166. “Relevant evidence of prior uncharged misconduct that is prejudicial in nature is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.” (Internal quotation marks omitted.) State v. Ortiz, 40 Conn. App. 374, 380, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996).

“Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). The court, however, was aware of the potential prejudicial effect of the evidence and carefully instructed the jury three times concerning the limited use for which the evidence was being admitted. See State v. Figueroa, supra, 235 Conn. 167. On three separate occasions, the court took specific steps to instruct the jury that the evidence of the McDonald’s robbery could not be used to suggest that the defendant had a bad character or a propensity for criminal behavior. Furthermore, the court specifically instructed the jury that the evidence was to be used for the limited purpose of establishing the defendant’s knowledge or possession of the means to commit the Big A robbery.

Under these circumstances, we conclude that the court did not abuse its discretion in determining that the probative value of the evidence exceeded its prejudicial effect. Accordingly, we conclude that there was no abuse of discretion in the court’s decision to admit evidence concerning the McDonald’s robbery.

II

The defendant next claims that the court improperly allowed the state to make the jury aware that his separately tried accomplice, Santiago, had been imprisoned. The defendant argues that verbal references concerning Santiago’s incarceration and his appearance at trial in prison garb were the equivalent of the defendant himself appearing at trial in prison garb and, therefore, the defendant’s constitutional right to a fair trial was violated. We will address the issue of the prison garb and the verbal references separately.

The defendant acknowledges that he failed to preserve his claim of a constitutional deprivation arising out of Santiago’s appearance and requests review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). If the defendant fails to meet any one of the four prongs of Golding, his claim will fail. Id., 240. The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim. State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998); State v. Askew, 55 Conn. App. 34, 38, 739 A.2d 274, cert. denied, 251 Conn. 918, 740 A.2d 866 (1999).

We conclude that the defendant has not satisfied the first prong of Golding and, therefore, we decline to review his claim. A defendant may not be compelled to appear in court wearing the distinctive attire of a prisoner. State v. Williamson, 206 Conn. 685, 704, 539 A.2d 561 (1988). Further, an incarcerated witness cannot be required to appear in court during the course of a trial in the distinctive attire of a prisoner. Practice Book § 44-7. An adequate record of this issue on appeal, therefore, must include evidence that the witness appeared in court wearing prison clothing.

Because the defendant failed to object to Santiago’s appearance in court in prison garb, the court never addressed the issue. No description of Santiago’s attire was placed on the record and, consequently, the record is inadequate for consideration of the defendant’s unpreserved claim.* See State v. Golding, supra, 213 Conn. 240. “The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” Id. We therefore decline to review this unpreserved claim.

The defendant also claims that he was deprived of a fair trial as a result of certain statements made by the prosecutor during the course of comparing Santiago’s height with that of the defendant during Ortiz’ testimony. The following colloquy and testimony took place:

“[The Prosecutor]: I’d ask that [Santiago] be brought out and the defendant be asked to stand next to him for the purposes of showing the height differential?

“The Court: All right. Mr. Sheriff, if you would remove the chair next to [the defendant]? I think you want them to stand next to each other.

“[The Prosecutor]: Yes.

“[The Prosecutor]: And that’s Mr. Santiago that they just let out of the lockup?

“[Witness]: [Testifying as to the identity of Santiago] Yes.

“[The Prosecutor]: And he’s the same individual . . . that was involved in both the Big A—

“[Witness]: Yes.

“[The Prosecutor]:—and the McDonald’s robberies?

“[Witness]: Yes.”

The defendant acknowledges that he failed to pursue this claim at trial and again seeks Golding review. The first two prongs of Golding are satisfied, as the record is adequate and the claim is of constitutional magnitude alleging a violation of a fundamental right. See State v. Kenney, 53 Conn. App. 305, 320, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999). The third prong of Golding requires that the alleged constitutional violation clearly exist and clearly deprived the defendant of a fair trial. State v. Golding, supra, 213 Conn. 240. In the present case, the prosecutor’s verbal references to Santiago’s incarceration did not clearly deprive the defendant of a fair trial.

In State v. Tucker, 226 Conn. 618, 629, 629 A.2d 1067 (1993), our Supreme Court held that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial after inadvertently referring to the defendant as “the prisoner.” The court reasoned that the jurors “knew that the defendant had been arrested and that, at some point, [the defendant] must have been in police custody. ... It certainly could not have surprised the jury, therefore, to have heard the defendant referred to as ‘the prisoner’ and, if the reference registered with the jury at all, its meaning would in all likelihood have been ambiguous. Moreover, the court provided both preliminary and final instructions concerning the presumption of innocence that the jury is presumed to have followed. Included in those instructions was an admonition that no inference was to be drawn from the defendant’s arrest. . . . We are unpersuaded that this isolated reference to the defendant as ‘the prisoner’ in the overall context of carefully crafted instructions and overwhelming evidence of guilt infected the trial with unfairness and contributed to the verdict.” (Citations omitted.) Id., 628-29.

In the present case, the defendant claims that references about Santiago’s incarceration, and not his own, deprived him of a fair trial. Prior to Santiago’s appearance in court, however, the jury already had been informed that the defendant, Ortiz and Santiago had been arrested in connection with the McDonald’s robbery. Additionally, the jury was aware that Ortiz was incarcerated after having pleaded guilty to the robberies at McDonald’s and Big A. Having been made aware that Ortiz, Santiago and the defendant had been arrested in connection with the McDonald’s robbery, that Ortiz and the defendant had confessed to the McDonald’s robbery and that Ortiz had been incarcerated, the jury could not have been surprised by the minor references to Santiago’s incarceration.

Further, the court instructed the jury several times that it was not to presume the defendant’s guilt on the basis of testimony concerning the defendant’s involvement in the McDonald’s robbery. We therefore con-elude that the isolated and minimal references to Santiago’s incarceration, viewed in the overall context of the court’s instructions and the trial as a whole, did not clearly deprive the defendant of a fair trial and, therefore, the third prong of Golding has not been satisfied.

The judgment is affirmed.

In this opinion the other judges concurred.

       Both witnesses described the color of the gun used by the taller man as different from the color of the guns entered into evidence from the robbery of a McDonald’s restaurant that the defendant, Santiago and Ortiz participated in nine days after the robbery at the Big A store.

       The court instructed the jury as follows: “Before the questioning begins— this witness and there will be other witnesses that are going to be testifying relative to another robbery. A robbery of a McDonald’s in Mansfield. The purpose of this is not to show that the defendant is an evil person or [that he] has an evil penchant or that because he had been involved in one robbery he must have been involved in the robbery here.
      “The purpose of this is for a limited reason. This is to show how certain items were retrieved, which have a bearing on the case in question, [and it] can only be used for that purpose. To show that certain items that the state is going to be offering—where they came from, how they were handled, why they were retrieved and what their connection is with this case.
      “So, I want to caution you that you will not be able to use . . . the allegations that [the defendant] was involved in another robbery to determine his guilt or innocence in this robbery as a pferson of a criminal mind. We’re only doing it to determine how certain items may have been recovered and [to] use it for that purpose.”

       The court instructed the jury as follows: “Again, this testimony concerning the McDonald’s incident is not to show that [the defendant] is the kind of person that repeatedly commits crimes, that just because you might have committed one crime you must have committed others. But it’s to—[its] limited purpose is to show how these items were recovered, and the state is trying to show that these items were the same items that were used in the Big A robbery. And [the testimony is] for that purpose only.”

       The court gave the jury the following instructions: “Now, whenever evidence was admitted for a limited purpose, you must not consider it for any other purpose. And I called your attention to these matters when the evidence was admitted. And I just remind you of one instance that there was evidence offered by the state—a whole sequence of evidence offered by the state—of other acts of misconduct of [the defendant] regarding the robbery of the McDonald’s restaurant in Mansfield. And again, that evidence was not admitted to prove the bad character of [the defendant] or his tendency to commit criminal acts. Such evidence was admitted solely to show or establish the defendant's knowledge or possession or the means to commit the Big A robbery—that is, the weapons and ski mask, [state’s exhibits] B, C and D—for the commission of the crime that’s charged here— the Big A robbery and kidnapping at, the auto parts store. And to corroborate crucial prosecution testimony with regard to those items and Mr. Ortiz. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you believe it and further find that it logically, rationally and conclusively supports the issues for which it is being offered by the state. But only as it may bear here on the issues of the identity and recovery of the weapons and the ski mask allegedly used by the defendant, and his accomplice in the Big A robbery, by means of the McDonald’s robbery.
      “On the other hand, if you do not believe such evidence or even if you do not find that it logically, rationally and conclusively supports the issue for which it’s being offered by the state, then you may not consider that testimony for any purpose. For this reason you may consider this evidence only on the issues of identity and recovery and use of the pistols and the ski mask—and to corroborate Mr. Ortiz’ version with regard to those weapons and the ski mask, and for no other purpose.”

       Furthermore, we conclude that the proffered evidence was relevant to prove a common scheme of criminal activity. In State v. Mandrell, 199 Conn. 146, 152, 506 A.2d 100 (1986), our Supreme Court held that even though two robberies occurred five years apart, the melhods used in 1he robberies were sufficiently similar and unique to warrant a reasonable inference that the defendant committed both crimes. The similar methods in Mandrell included the fact that both robberies took place in liquor stores close to one another on the same street in Hartford, both were committed by two black males, the robber used profanity in both robberies and exhibited aggressive, violent behavior, the store clerk in both was forced to lie down on the floor in the back room and was struck in the head with a liquor bottle. Id. Similarly, in State v. Braman, 191 Conn. 670, 678-81, 469 A.2d 760 (1983), our Supreme Court held that the trial court justifiably decided that the common features of two robberies supported the reasonable belief that the same person or persons committed both robberies. The common features in Braman included the fact that, both robberies occurred at bars in adjoining towns, two people participated in each robbery and used a shotgun with a cut-down configuration and a small automatic pistol, in both instances the robber with the shotgun took the leadership role, the people inside the two bars were ordered into the back rooms and the robberies occurred close in time. Id., 678.
      In the present case, there were many common features to the McDonald’s and Big A robberies, including the fact, that both occurred at night in nearby towns, both occurred within a ten day time frame, both were committed by two men, one tall and one short,, the robbers wore dark clothing and face masks, in both robberies the taller robber was armed with a large caliber semiautomatic handgun and the shorter robber had a smaller caliber semiautomatic handgun, the taller robber in both instances was the leader and forced an employee to show him to the safe, the robbers ignored the cash registers in both robberies and focused solely on the money in the safes, and the robbers in both instances fled on foot and planned to meet a third party. These similarities in the methods used in the two crimes are sufficient to warrant the admission of the proffered evidence to show a common scheme.

       See footnotes 3 through 5.

       At trial, the prosecution produced Santiago for the purpose of conducting a height comparison between Santiago and the defendant. Santiago did not testify.

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.)

       For purposes of the discussion of this issue, we need not decide if Santiago was a witness within the terms of Practice Book § 44-7 or Estelle v. Williams, 425 U.S. 501, 512-13, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).

       Furthermore, the defendant filed a motion for rectification and articulation dated December 14, 1998, seeking, inter alia, a factual finding that Santiago appeared at the trial in prison clothing. This motion was denied because the court had no recollection as to Santiago’s attire. A subsequent motion for review was filed by the defendant and, although the Supreme Court granted review during a period when the appeal was pending before that court, the relief sought was denied.

       See footnotes 3 through 5.


author: DALY, J.

text:
    IN RE STEVEN N. ET AL.*
    (AC 19123)
    Lavery, Mihalakos and Daly, Js.

    Argued December 16, 1999
    officially released May 9, 2000

      William R. Kinloch, for the appellant (respondent mother).

      Michael J. Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, 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.

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

   Opinion

DALY, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her two minor children, M and S. The respondent claims that the court improperly determined that the department of children and families (department) (1) did not prevent the respondent from maintaining a relationship with her children and (2) provided appropriate reunification services. Both of these claims are based on the findings of the trial court required by General Statutes (Rev. to 1997) § 17a-112 (e), now (d). We affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent, who has a history of psychiatric illness, was unable to care for or control her children, who have significant problems of their own. The household was marked by chaos, substance abuse, extreme domestic violence and infidelity. The children were unkempt and uncontrollable. S also suffers from psychiatric disorders and has inflicted injuries on himself. M is not so disturbed.

The children were placed in foster care in June, 1994, after the department’s efforts to work with the children and their parents failed. On March 26, 1996, both children were adjudicated neglected because the respondent was unable to provide proper care and attention, and the children were living in conditions injurious to their well-being. They were committed to the custody of the petitioner, the commissioner of children and families (commissioner). On June 9, 1997, the commissioner filed petitions to terminate the respondent’s parental rights with respect to the children.

The amended petitions alleged three bases for terminating the respondent’s parental rights: (1) the children were found in a prior proceeding to have been neglected or uncared for, and the respondent 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 children, she could assume a responsible position in their lives; (2) the children were denied by reason of an act or acts of commission or omission by the respondent the care, guidance or control necessary for their physical, educational, moral or emotional well-being; and (3) there was no ongoing parent-child relationship with respect to the respondent that ordinarily develops as a result of a parent’s having met on a continuing day-to-day basis the physical, emotional, moral and educational needs of the children, and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the children (no ongoing parent-child relationship).

Trial was held on three days in late August and early September, 1998. The court concluded that there was clear and convincing evidence that the respondent had failed to achieve sufficient personal rehabilitation, failed to meet the children’s needs by acts of commission or omission, that there was no ongoing parent-child relationship and that it was in the best interests of the children to terminate the respondent’s parental rights. At the time, M and S were eight and nine years of age, respectively. The respondent appealed.

“ Termination of parental rights’ means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child’s parent or parents . . . .” General Statutes § 45a-707 (8). “Termination of parental rights is ‘a most serious and sensitive judicial action.’ ” In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990). “Since termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well, courts must require strict adherence to the statutory standards.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

On appeal, “[w]e will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record.” In re Romance M., 229 Conn. 345, 353, 641 A.2d 378 (1994). “[G]reat weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.” (Internal quotation marks omitted.) Rummel v. Rummel, 33 Conn. App. 214, 221, 635 A.2d 295 (1993). “ ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ ” In re David E., 4 Conn. App. 653, 656, 496 A.2d 229 (1985). “[0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).

I

On appeal, the respondent’s first claim is that the court improperly found, pursuant to § 17a-112 (e) (7), that the department did not prevent her from maintaining a relationship with her children. The respondent believes that the department’s curtailing of her visits with the children diminished her relationship with them. We disagree.

The following additional facts are necessary to our resolution of this claim. Bruce Freedman, a clinical psychologist with a specialty in family studies, was engaged to evaluate the family in August, 1994, June, 1996, and June, 1998. In Freedman’s opinion, the respondent is not psychologically capable of caring for the children or raising them to maturity. The respondent lacks insight as to her limitations and told Freedman that she does not need professional help, and that there is nothing anyone can do to help her. She does not have the ability to understand or control S. According to Freedman, there is no bond between the respondent and the children, and the respondent’s ability to care for them is a fantasy on her part. The respondent is unable to comprehend or provide for her children’s special needs. The respondent’s own psychiatrist, Kinsom Lee, found that she did not make progress in group therapy and was discharged from treatment.

The court found that the respondent had not visited with her children since October, 1996, and that the decision to terminate visitation was not made by her voluntarily. The department made the decision to end visitation to protect the children from the negative consequences of seeing the respondent. Renae Vitale, a licensed clinical social worker, conducted visitation sessions between the respondent and the children in 1996. The children were anxious during the visits. M refused to see his mother again. Vitale observed the respondent tell S that he had to behave and be good so that they could visit again; in other words, the respondent placed the blame for the situation on the shoulders of her disturbed and psychiatrically vulnerable child. Vitale saw no bond between the respondent and the children, concluded that continued visits between S and the respondent would adversely affect his coping skills and recommended that visitation cease.

The court found that the department took many steps to encourage the respondent to achieve personal rehabilitation and to have a meaningful relationship with the children. The respondent was not able to accomplish either goal. The department’s conduct in terminating visitation was not inappropriate. The court concluded that problems concerning visitation were not due to the respondent’s being separated from her children, but were the result of her inability to come to terms with her own personal problems and to learn how to be a parent to her children.

After reviewing the record, reading the briefs of the parties and hearing them at oral argument, we hold that the trial court did not abuse its discretion in finding that the department did not prevent the respondent from maintaining a relationship with the children by terminating supervised visitation.

II

The respondent’s second claim is that the court improperly found that the department provided reunification services pursuant to § 17a-112 (e) (1). We disagree.

The court found that the department provided or attempted to provide numerous services to the respondent and the children. The court specifically found that the department provided intensive family preservation programs, counseling, child guidance counseling, Rescue Head Start, a preschool intervention program, an infant toddler program and the PEDAL program at the former Newington Children’s Hospital, a parent aide, parenting classes, respite care, visitation and transportation assistance. The respondent embarked on these programs but failed to complete any of them.

We conclude that the court properly found that the department provided the respondent and the children with timely and appropriate rehabilitative services. The respondent was unable or unwilling to take advantage of the services provided to her. The respondent does not challenge the court’s ultimate conclusion that termination of her parental rights is in the best interests of the children.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the children’s father also were terminated. Only the respondent mother has appealed, and we refer to her in this opinion as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 (e), now (d), provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent ... (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of 1he other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”