author: FOTI, J.

text:
    IN RE AMANDA A. ET AL.

    (AC 19810)
    Foli, Landau and Pellegrino, Js.
    Argued March 27
    officially released June 27, 2000

      Raymond J. Rigat, for the appellant (respondent mother).

      Carmel A. Motherway, 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.

   Opinion

FOTI, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her three minor children. On appeal, the respondent claims that (1) the court improperly found that the department of children and families (department) made reasonable efforts at reunification, (2) she was denied her constitutional rights in having her parental rights terminated solely because of her mental illness, (3) the court failed to order a competency evaluation and to appoint a guardian ad litem and (4) her attorney rendered ineffective assistance by not moving for a competency evaluation and the appointment of a guardian ad litem. We affirm the judgments of the trial court.

The following facts and procedural histoiy are relevant to this appeal. On December 19,1996, the children were adjudicated uncared for and committed to the care and custody of the department. On December 9, 1997, the commissioner of children and families (commissioner) filed petitions for the termination of parental rights of the respondent with respect to her three children.

On the basis of the testimony and evidence offered at trial, as interpreted in light of the children’s prior record with the department, and with judicial notice taken of all prior court actions, the court made certain findings of fact. The court found that the respondent “has had a history of mental health problems of varying severity since her adolescence, which have been compounded by her use of cocaine. She is herself a [person] who was placed in foster care when she was six, after her mother died. For her, the child protection system failed in its promise to protect and nurture children, as she was abused and neglected in the foster home in which she was placed. Her mental health and other adjustment difficulties led her to a brief placement with relatives, which was disrupted in part due to her acting-out, and then to residential placement until she reached the age of majority. It is a background of disruption and gross parental failures, which ill prepared and equipped her for parenting when she became a mother herself. Indeed, some of the professionals evaluating her see the intergenerational difficulties as having significant impact on [the respondent’s] life and the lives of her three children.”

Furthermore, the court found that the respondent has been uncommunicative and hostile toward the department because of its involvement in her life, and that there is not a great amount of information about the circumstances of her life during the time when her children were conceived. From the outset, the respondent has had ongoing mental health and drug use problems that led to the placement of the children with the department on a number of occasions. Because it appeared that the respondent had the capacity to improve her parenting and to provide for her three children, they were returned to her after each removal under the condition that she would parent them. Unfortunately, the respondent was not able to do so adequately. Consequently, the children were last removed from the respondent on January 30,1996, and have been in foster care since that time.

During the trial proceedings, the commissioner alleged that the respondent has failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, taking into consideration the age and needs of her children, she could assume a responsible position in their lives. At trial, the respondent filed a motion to dismiss contending that the department failed to comply with a May 19, 1998 court order permitting the respondent to have therapeutic visitation with her children. After the trial concluded on January 15, 1999, the court granted the termination petitions as to the respondent, finding that the reunification efforts “continued well past beyond the time it was excruciatingly clear that [the respondent] could not and did not benefit from such efforts.” The court denied the respondent’s motion for a dismissal or a continuance. This appeal followed. Additional facts will be set forth where necessary.

I

The respondent first claims that the court improperly found that the commissioner proved by clear and convincing evidence that reasonable efforts at reunification had been made. We do not agree.

“It is axiomatic that in seeking to terminate parental rights, the commissioner must prove by clear and convincing evidence that the department made reasonable efforts to reunify the parent and child as required by [General Statutes] § 17a-112 (c) (1). See In re Eden F., 250 Conn. 674, 695 n.23, 741 A.2d 873 (1999). We also note that ‘[t]he statutory criteria must be strictly complied with before termination can be accomplished. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 13, 438 A.2d 801 (1981); In re Juvenile Appeal (Anonymous), [177 Conn. 648, 672, 420 A.2d 875 (1979)].’ In re Michael M., 29 Conn. App. 112, 119, 614 A.2d 832 (1992).” In re Savanna M., 55 Conn. App. 807, 811, 740 A.2d 484 (1999).

On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported; every reasonable presumption is made in favor of the trial court’s ruling and we will disturb the findings of the trial court in either the adjudication or disposition phases only if they are clearly erroneous. In re Tabitha T., 51 Conn. App. 595, 599, 722 A.2d 1232 (1999).

“Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the [children with the] family. The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in aparticular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Antonio M., 56 Conn. App. 534, 546, 744 A.2d 915 (2000).

The respondent claims that it “was cruel and outrageous to allow her the custody of her children throughout long periods of this time [1990-99], whereupon her bond with the children was nurtured and encouraged, only to have her children taken away at intervals where incomplete and nonexistent services were offered her for purposes of rehabilitation.” She further alleges that because she has had “psychotic episodes with hallucinations,” it is unfair to place any burden on her to seek mental health treatment without “being guided to it by the appropriate mental health agencies which exist in our state for this very purpose.”

During the five day trial, the court heard testimony from the department’s social workers, two psychologist evaluators, the foster parents of the children, the director of a substance abuse treatment agency who had completed a drug evaluation of the respondent, a community parent educator, a detective from the New Haven police department, the therapists who conducted therapeutic supervised visits with the respondent and the three children in two separate programs, and from the respondent. The court also had many exhibits, including transcripts of another psychologist’s evaluation and the respondent’s mental health therapist.

The court’s memorandum of decision is replete with findings, supported in the record, concerning the department’s efforts at reunification. There existed various in-home reunification services in place in 1995 when the children were returned to the respondent, including a parent educator, services for the respondent from Milford Mental Health, and Birth to Three services. The department, following the children’s removal in 1996, attempted to assist the respondent in building a therapeutic support team to deal with her ongoing mental health and drug problems. The respondent also was provided with supervised therapeutic visitation with the children at Southern Connecticut State University Family Counseling; she absented herself from these visits for approximately ten months in 1997 and 1998.

We are not persuaded, considering the circumstances of this case, that the court’s conclusion that the department made reasonable efforts to reunite the family was clearly erroneous. There was clear and convincing evidence that the department did all it reasonably could do to reunify the respondent with her children and that it was the conduct of the respondent that led to the failure of those efforts.

II

The respondent next alleges that she was deprived of equal protection under the law because the department failed to provide and coordinate adequate mental health services to her. She claims that “because greater services were not provided . . . with respect to her mental disability, the application of the failure to rehabilitate ground was unconstitutional as it applied to the respondent.” She seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), but has failed to furnish a record adequate for this claim to be reviewed. While the record does disclose claims, disputes and denials of mental illness, the record is insufficient as to any findings of fact that the respondent’s condition, if it existed, amounted to a “mental disability” protected under article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments. The respondent’s unsupported assertion of a constitutional violation, therefore, cannot be reviewed. We, as a reviewing court, “cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found.” (Internal quotation marks omitted.) State v. Clark, 160 Conn. 555, 556, 274 A.2d 451 (1970).

Ill

The respondent next claims that the court violated her due process rights by not, sua sponte, ordering a competency examination and appointing a guardian ad litem for her prior to the termination petitions being filed by the commissioner. While the respondent does cite one case in her brief on this issue, the five sentences composing this claim are deemed inadequate, lacking factual assertions, analysis and substantive discussion. “Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned.” In re Shyliesh H., 56 Conn. App. 167, 181, 743 A.2d 166 (1999). The respondent’s claim is inadequately briefed and is deemed abandoned.

IV

Lastly, the respondent claims that she was denied due process of law because her attorney rendered ineffective assistance by failing to request that a guardian ad litem be appointed for her and that a competency hearing be ordered prior to and during the termination proceedings.

“In Connecticut, a parent who faces the termination of his or her parental rights is entitled, by statute, to the assistance of counsel. General Statutes § 45a-717 (b). Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel. State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979). In determining whether counsel has been ineffective in a termination proceeding, we have enunciated the following standard: The range of competence . . . requires not errorless counsel, and not counsel judged ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in [that particular area of the] law. ... Id. The respondent must prove that her attorney fell below this standard of competency and also that the lack of competency contributed to the termination of parental rights. Id.” (Internal quotation marks omitted.) In re Alexander V., 223 Conn. 557, 569-70, 613 A.2d 780 (1992).

“In order for counsel to be deemed ineffective, the evidence of incompetency must be substantial enough to support the conclusion that requesting a competency hearing was the only course of action a reasonably effective lawyer would have pursued.” Id., 570. Our review of the record fails to disclose that the evidence was sufficient to have necessarily raised a reasonable doubt in the mind of the trial judge as to the respondent’s ability to understand the nature of the proceedings or to assist her attorney in his representation of her. We, therefore, must also conclude that the record does not support the claim that her attorney was ineffective, if the evidence would not have necessarily prompted a lawyer of ordinary training and skill to raise the issue of the respondent’s competency.

As in In re Alexander V., the respondent here first claims that “[t]he evidence of incompetency in this matter is substantial enough to support the conclusion that ... a competency hearing was the only course of action a reasonably effective lawyer would have pursued,” and then alludes to a claim that her counsel was ineffective because a better record of incompetency could have been developed setting forth other facts to make an adequate trial record for review. While we may decline to review a claim that the respondent fails to articulate legal authority for or fails to show how the alleged incompetency of her trial counsel contributed to the termination of her parental rights; In re Michael L., 56 Conn. App. 688, 700, 745 A.2d 847 (2000); where there is nothing in the record to support a claim that a respondent lacked the ability to understand the nature of the proceedings or to assist her attorney in his representation of her, our review is summary. As an appellate court, we are limited to the record before us in deciding the merits of an appeal. Insofar as the respondent in this termination proceeding presents a general claim of “ineffective assistance of counsel, ” the record is inadequate in that it lacks evidence as to a standard of competency, that is, the range of competence displayed by lawyers with ordinary training and skill in this field of law. The record also does not show whether her counsel’s actions fell below that range and, if so, whether her counsel’s conduct contributed to the termination of the respondent’s parental rights. Such evidence could be developed through an adversarial hearing allowing for cross-examination similar to that of a habeas corpus proceeding. See In re Alexander V., supra, 223 Conn. 571 n.12.

The judgments are affirmed.

In this opinion the other judges concurred.

       Only the respondent mother has appealed, and we refer to her in this opinion as the respondent.

       Other grounds were alleged but were abandoned.

       The motion, alternatively, requested that the matter be continued to permit future visitation and that the department be required to fulfill its obligation pursuant to the court’s order. The motion to dismiss was consolidated with the termination petitions for trial.

       The respondent argues for the first time on appeal that none of the services provided by the department were sufficient in that she has an underlying psychiatric illness. She claims review for this and all other “referenced constitutional claims” not raised directly in the trial court under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). She also claims that this issue goes to the heart of her ineffective assistance of counsel claim.

       The record shows that there was a complete reunification team with people in the respondent’s home two or three times a week, providing assistance twenty-four hours a day for housing, transportation, funding, clothing and food, in addition to the mental health services that were provided to the respondent.

       The respondent was admitted into the hospital on an emergency basis in the spring of 1996 for cocaine and alcohol abuse.

       The respondent cites to article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments, which provides in relevant part: "No person shall be denied the equal protection of the law . . . because of . . . mental disability.”

       Throughout the five day trial, the respondent took the position that she was not mentally ill and that she failed to follow recommendations that she seek treatment in that area because she did not need it. She argues for the first time on appeal that she was mentally ill and that the department should have provided greater services. See footnote 4.

       Under Golding “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. In the absence of any one of these conditions, the defendant’s claim will fail. 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.) State v. Golding, supra, 213 Conn. 239-40; see also State v. Lasky, 43 Conn. App. 619, 631 n.5, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

       “[AJmendment twenty-one’s protection for those possessing physical and mental disabilities identifies the members of this class as a group especially subject to discrimination and requires the application of the highest standard of review . . . that standard requires strict scrutiny of the challenged government action.” Daly v. DelPonte, 225 Conn. 499, 515, 624 A.2d 876 (1993).

       The respondent states: “In In re Alexander V., 223 Conn. 557, 567, 613 A.2d 780 (1992), our . . . Supreme Court concluded that ‘under certain circumstances, due process requires that a hearing be held to determine the legal competency of a parent in a termination case.’ ”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    PATRICK P. BRIA v. VENTANA CORPORATION ET AL.
    (AC 17561)
    Landau, Hennessy and Mihalakos, Js.
    Argued February 29
    officially released June 27, 2000

      John J. LaCava, for the appellant (plaintiff).

      Daniel J. Klau, with whom were Stephen B. Harris, and, on the brief, Peter M. Wendzel, for the appellee (defendant United Resources, Inc.).
   Opinion

LANDAU, J.

This is an appeal by the plaintiff, Patrick P. Bria, from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant United Resources, Inc. (United), on the plaintiffs claim that United tortiously interfered with his contract of employment. On appeal, the plaintiff claims that the court improperly (1) found that United did not tortiously interfere with his contract of employment with the named defendant, Ventana Corporation (Ventana), (2) failed to find that a management consultant hired by United had acted as its agent in tortiously interfering with the plaintiffs employment and (3) failed to grant the plaintiffs motion to amend his complaint during trial. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff was an employee of Ventana prior to 1991 and was responsible for the finances of this relatively small company, which specialized in designing electrical energy conservation systems for large buildings. In 1991, United became interested in the energy conservation field and decided to invest funds in Ventana, which was in need of additional capital. As a prerequisite to this investment, Ventana was required to enter into employment contracts with key employees, including the plaintiff, and a written employment contract was entered into on May 8,1991. The financial condition of Ventana, however, continued to deteriorate, and according to a provision in the debt agreement between Ventana and United, control of Ventana’s board of directors was taken over by United. The newly formed board of directors hired Rosemarie Rourke to be a management consultant and to oversee the daily operations of Ventana.

In December, 1992, Rourke recommended to the president of Ventana, William Cratty, that the plaintiff be terminated for incompetence because he had not met a standard of excellence. Cratty refused and asked Rourke to work with the plaintiff concerning any perceived shortcomings. Rourke, however, did not comply with Cratty’s request and a few weeks later, again recommended the plaintiffs termination. On January 30, 1993, the plaintiff was verbally terminated by Cratty in the presence of Rourke “for cause.” No documentation was ever prepared describing the basis for the termination. The plaintiff thereafter commenced the present action.

I

In his first claim, the plaintiff asserts that the trial court improperly found that Rourke had not acted with an “improper motive” and did not use “improper means” in recommending the plaintiffs termination. We disagree.

“This court has long recognized a cause of action for tortious interference with contract rights or other business relations. . . . While our cases have not focused with particularity on what acts of interference are tortious, we have made it clear that not every act that disturbs a contract or business expectancy is actionable. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. . . . Blake v. Levy, 191 Conn. 257, 260-61, 464 A.2d 52 (1983). In Blake, we also determined that [i]n an action for intentional interference with business relations . . . the better reasoned approach requires the plaintiff to plead and prove at least some improper motive or improper means.” (Citations omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983).

In the second count of the plaintiffs amended complaint, he alleged that United tortiously interfered with his employment contract with Ventana in that Rourke, acting as the agent of United, caused him to be terminated by Ventana in an attempt to save Ventana the cost and expense of the plaintiffs salary.

In its memorandum of decision, the court found that the plaintiff failed to sustain his burden of proving that his firing was improperly motivated by a wish to save the expenses of his employment. The plaintiff had introduced documentation to the effect that the company intended to “slim down by four or five people” and had “identified eight candidates with a total payroll amounting [to] up to $400,000.” The court found that the eight candidates never were identified and that it would be only surmise or conjecture to conclude that the plaintiff was one of the four or five individuals who were the subject of Ventana’s intention to “slim down” its operations. The court further found that the hiring of a replacement for the plaintiff at a lower salary did not make it more probable than not that the motive for the plaintiffs firing was to save money. Although the court found that Rourke wrongfully had expected a higher standard of performance from the plaintiff than was required under his employment contract, this was relevant to the breach of contract claim, not to the tortious interference claim. Because the plaintiff failed to prove that he was terminated for cost cutting reasons as alleged in his amended complaint, the court rendered judgment in favor of United on the second count.

In an articulation, the court discussed certain of the findings of fact in its memorandum of decision. The court reiterated that the actions of Rourke were motivated by her expectation of a higher standard of performance than was required under the plaintiffs contract rather than by some improper means, as is required to establish liability under a tortious interference theory. The court concluded that while Rourke certainly persuaded Cratty to discharge the plaintiff for his shortcomings as she perceived them, the plaintiff failed to sustain his burden of proof that her actions were “wrongful by some measure beyond the fact of the interference itself.” (Internal quotation marks omitted.) Blake v. Levy, supra, 191 Conn. 262.

Unhappy with the trial court’s adverse factual findings, the plaintiff invites this court to abandon its appellate function, assume the role of trier of fact and find that Rourke acted tortiously. It is well settled that we do not find facts. Fukelman v. Middletown, 4 Conn. App. 30, 31, 492 A.2d 214 (1985). Traditionally, questions of fact are subject to appellate review under the clearly erroneous standard. Citicorp Mortgage, Inc. v. Weinstein, 52 Conn. App. 348, 358, 727 A.2d 720 (1999). We will not overturn the trial court’s factual findings unless, after a review of the entire record, we are left with a “definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Weisman v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995).

The plaintiff premised his appeal on the proposition that the court unduly restricted the scope of what constitutes wrongful conduct for the propose of a tortious interference claim. Our careful and complete review of the entire record leads us to conclude that the court appropriately considered every type of improper motive or means that the plaintiff asked it to consider. We conclude that the court’s factual findings were not clearly erroneous.

II

The plaintiffs final argument is that the court improperly exercised its discretion in denying his motion, filed in the midst of trial, to amend his complaint. In the proposed amended complaint, the plaintiff alleged that United was directly liable for Ventana’s breach of his employment contract under an “alter ego” theory.

Although the plaintiff correctly notes that this claim is reviewed under an abuse of discretion standard; see Roberto v. Honeywell, Inc., 33 Conn. App. 619, 624, 637 A.2d 405, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994); we fail to find any articulation by the trial court of any reasons for its denial of the plaintiffs motion to amend his complaint during trial. As the appellant, it is the plaintiffs burden to provide an adequate record on appeal; Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999); and he has failed to sustain that burden. Without an articulation of the trial court’s reasoning, we can only guess or surmise the grounds for its conclusion. This we will not do. We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       We do not address the plaintiffs second claim because we affirm the court’s judgment that United did not tortiously interfere with the plaintiffs contract of employment.

       The plaintiff filed a five count amended complaint, alleging in count one, breach of contract as to Ventana; in count two, tortious interference with contractual relations as to United; in count three, intentional infliction of emotional distress as to both defendants; in count four, unpaid wages as to Ventana; and in count five, breach of the covenant of good faith and fair dealing as to Ventana. The court during trial dismissed the third count and subsequently found in favor of the plaintiff as to counts one and five, and in favor of United and Ventana as to counts two and four, respectively. The court also found in favor of the plaintiff as to two counterclaims Ventana had filed. On appeal, the plaintiff challenges the court’s judgment in favor of United on count two.


author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. RUFUS SPEARMAN
    (AC 18194)
    Spear, Zarella and Healey, Js.
    Argued February 29
    officially released June 27, 2000

      Norman A. Pattis, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Rufus Spearman, appeals from the judgment of conviction, rendered after a jury trial, of two counts of arson in the first degree in violation of General Statutes § 53a-lll (a) (2) and (4) and one count of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-lll (a) (4). On appeal, the defendant claims that (1) the evidence at trial was insufficient to support his conviction of first degree arson or conspiracy to commit arson, (2) his right to confront the state’s witness was denied in violation of the sixth amendment to the United States constitution and (3) the court abused its discretion in admitting consciousness of guilt evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of October 23, 1996, a fire occurred at a three family home located at 16 Clover Place in New Haven as a result of arson. Earlier that morning, Katherine Hutchings was walking to a store and witnessed the defendant with Terrance Newton walking toward the area located between 16 and 18 Clover Place. The two men were carrying a large object with a handle that resembled a bucket or jug. Hutchings called out to the defendant and Newton as they went toward the back of the houses to ask them why they were up so early. She continued walking when they did not respond.

While walking home from the store, Hutchings heard a “big boom,” and when she turned the corner she saw that the house at 16 Clover Place was on fire. She also saw the defendant and Newton on Clover Place running toward Truman Street. Newton was wearing a coat that was on fire. Hutchings saw Newton drop the coat onto the ground as he ran.

Edith Hunter, who lived at 18 Clover Place, also heard a loud sound that she described as “a big boom.” Hunter ran to her front porch and saw Newton stumbling and running from the porch of the house that was on fire wearing or carrying a smoldering coat. Although Hunter did not see the defendant running from the house, she did see the two men together that morning and she saw the defendant on Clover Place after the fire started, but before the fire department arrived.

At approximately 7:45 a.m., Napoleon Gunn, an off-duty firefighter, noticed smoke coming from 16 Clover Place. Gunn shouted to a passerby to call 911 as he attempted to enter the burning house. The New Haven fire department responded to the fire immediately. There was a tremendous volume of fire, which began to ignite the Hunter’s home next door. Lieutenant James Robinson testified that the volume of the fire in such a short period of time indicated that it was the work of an arsonist.

Lieutenant Thomas Heinz and two firefighters went into the burning house equipped with bottled oxygen and air masks. Heinz testified that even through his oxygen mask, he could detect a strong odor of gasoline in the house. The men made their way up to the third floor where a firefighter fell through the floor that had been weakened by the fire. He was trapped momentarily until the other firefighters eventually pulled him from the hole in the floor. The firefighters then were forced to retreat from the third floor. Heinz also testified that the use of an accelerant like gasoline increases the risk posed to firefighters because it accelerates the rate of bum, causes floors to weaken more quickly when poured onto them, and causes the flames to explode and flare when hit with water.

New Haven Fire Marshal Frank Dellamura also responded to the fire. He discovered four or five areas in 16 Clover Place where gasoline had been poured but did not ignite. Additionally, in three rooms on the first floor, Dellamura found six or seven plastic milk containers that were partially melted with scorch marks near each of them. Dellamura opined that the fire was the result of an arsonist who had attempted to cause an explosion and to bum the house down. Dellamura also opined that because the fire originated in several areas, it must have been set by more than one person.

The defendant was charged by information with arson in the first degree and conspiracy to commit arson in the first degree. The defendant and Newton were tried together. The defendant moved for a judgment of acquittal at the end of the state’s case. The motion was denied, and the defendant was subsequently convicted. This appeal followed.

I

The defendant first claims that the evidence is insufficient to sustain his conviction of arson in the first degree and conspiracy to commit arson in the first degree. We are unpersuaded and conclude that the evidence is sufficient to support his conviction of both crimes.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.....

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997).

A

We first examine the claim that the evidence is insufficient to support the defendant’s conviction of arson in the first degree.

Hutchings saw the defendant with Newton very early on the morning of October 23, 1996, carrying a bucket between the houses at 16 and 18 Clover Place. Soon after, Hutchings heard a “big boom,” and when she approached 16 Clover Place, she saw the defendant and Newton running toward Truman Street. She also observed that Newton’s coat was on fire. Hunter also identified Newton as the person she saw running from the porch at 16 Clover Place wearing or carrying a smoldering coat.

The fire marshall testified that the evidence at the fire scene demonstrated that more than one person was involved in setting the fire. There was also sufficient testimony that a firefighter fell through the weakened flooring while fighting the fire and that the firefighters were subjected to a substantial risk of bodily harm. The jury reasonably could have found, on the basis of the evidence presented and the reasonable inferences drawn therefrom, that the state had met its burden of proving beyond a reasonable doubt each of the elements of the crime of arson in the first degree.

B

The defendant also attacks the sufficiency of the evidence with respect to his conviction of the crime of conspiracy to commit arson in the first degree. We are again persuaded that the evidence is legally sufficient to support the verdict of the jury.

To establish the crime of conspiracy in violation of § 53a-48, the state must prove beyond a reasonable doubt that two or more individuals agreed to act in concert to commit an illegal act and that any one of the participants committed an overt act in furtherance of the conspiracy. State v. Haggood, 36 Conn. App. 753, 764, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995). “The state is also obligated to prove that the accused intended that conduct constituting a crime be performed.” Id.

“The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. . . . Conspiracy is an inchoate offense the essence of which is an agreement to commit an unlawful act. . . . The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object. . . . Conspiracy is an anticipatorial offense distinguished by a corrupt agreement by two or more persons to commit a specific objective crime.” (Citation omitted; internal quotation marks omitted.) State v. Hooks, 30 Conn. App. 232, 242, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); see also State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986).

The state is not obligated to prove the existence of a formal agreement among the conspirators; State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330 (1991); but must prove that the conspirators knowingly engaged in a mutual plan to commit a forbidden act. State v. Wideman, 36 Conn. App. 190, 200, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). As a consequence, circumstantial evidence may be used to provide the proof necessary to establish the existence of the agreement “because conspiracies, by their very nature, are formed in secret and only rarely can be proved by other than circumstantial evidence.” State v. Sweeney, 30 Conn. App. 550, 559, 621 A.2d 304, cert. denied, 225 Conn. 927, 625 A.2d 827 (1993); see also State v. Wideman, supra, 201.

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence presented to the jury was sufficient to have permitted it to find the defendant guilty of the crime of conspiracy. Because we already have determined that the jury had before it evidence sufficient to support its determination that the defendant was guilty of the underlying crime, the overt act requirement has been satisfied.

Next, we consider whether there was sufficient evidence of an agreement between two or more persons to act in concert. The testimony of Hutchings that she saw Newton and the defendant carrying a bucket together between the two houses early in the morning supports the inference that they had agreed to act in concert. This is further strengthened by the testimony of the fire inspector that two people had ignited the building on different floors, and Hutchings’ testimony that she saw both men fleeing the scene. Hutchings’ testimony was corroborated in part by the testimony of Hunter who also saw Newton flee the building with a burning coat. The reasonable inferences that the jury could draw from the evidence presented at trial were sufficient to support the verdict on the conspiracy charge.

II

The defendant also claims that he was denied his sixth amendment right to confront the only witness that was able to place him at the scene of the fire. We disagree.

The following additional facts are necessary for the resolution of this issue. Prior to the commencement of trial, the state filed a motion in limine seeking to restrict the defendant and Newton from cross-examining Hutchings. Specifically, the state requested that the defendant and Newton be prohibited from eliciting any testimony suggesting that Hutchings is a police informant. The defendant’s trial counsel timely objected to the state’s motion, raising the claim that, if the state’s motion was granted, the defendant’s sixth amendment right would be violated.

At trial, out of the presence of the jury, the court first permitted Newton’s attorney to voir dire the witness with respect to this issue. Trial counsel for the defendant was then permitted to conduct voir dire. During the course of voir dire, the court permitted defense counsel to inquire extensively into the relationship that Hutchings had with the police. This inquiry included questions with respect to payments made to Hutchings by the police over the course of years.

After voir dire was completed, the state’s attorney set forth, on the record, his objections, and the court ruled in part that “the fact that she did give information to the police in three other arson matters, that you may inquire into; and that her, apparently her niece said something about the niece’s father, that is hearsay, and that is out; and that she did use crack cocaine years ago, that is out; and whether she has been involved in robberies, her answer was no, and that ends that, so that is out; and the police looking the other way, you have to ask the police that question, not her, so that is out.”

The defendant claims that the court improperly refused to permit his counsel to inquire as to what the payments made to Hutchings by the state were for and as to what was expected of Hutchings by the police in exchange for the payments. We have examined the transcript in detail, including both the voir dire of Hutchings as well as testimony before the jury, and we conclude that no ruling by the court in any way restricted defense counsel from such an inquiry. In fact, the contrary is true. Defense counsel elicited, before the jury, the fact that Hutchings received payments from the police on numerous occasions. Defense counsel further elicited from Hutchings the fact that she acted as an informant for the police on numerous occasions. The transcript does not support the defendant’s contention that the court restricted cross-examination into this area of inquiry.

The defendant argues that the court took over the voir dire of the witness and inquired into this subject matter, and that this questioning by the court failed to probe deeply enough and left the ultimate question of why the police were paying the witness unanswered. By the court inquiring as it did, defense counsel could readily determine that the area of inquiry was not considered inappropriate by the court. If defense counsel felt that it was beneficial to inquire further, he could have done so. He did not. Nor did he assert at any time that the defendant’s right to confrontation was being abridged in any way. We, accordingly, conclude that the defendant’s sixth amendment rights were not violated.

Ill

The defendant’s final claim is that the court abused its discretion in permitting consciousness of guilt evidence to be admitted when such evidence was based on the conduct of a person other than the defendant. We decline to address this claim.

On November 20, 1997, Hutchings testified out of the presence of the jury that on November 18,1997, a white car pulled up in front of her house. Hutchings testified that this occurred sometime in the afternoon. She further testified that she saw the defendant in the back seat. Hutchings was scared and contacted a police officer whom she knew. She also testified that she was reluctant to testify because of the incident. Further, Hutchings testified that the car returned later that evening. The man driving the car- yelled to Hutchings to mind her own business.

The defendant objected to Hutchings’ testimony as hearsay and also claimed that “she never claims that she seen [sic] Mr. Spearman.” Subsequently, Hutchings clarified that she did see the defendant in the car when the car first appeared in front of her house. The defendant did not offer any additional objections after this issue was resolved.

The defendant, therefore, failed to object to the consciousness of guilt evidence during the trial and now seeks to argue on appeal that its admission was improper. “Ordinarily, we will not review a claim that was not distinctly raised before the trial court.” (Internal quotation marks omitted.) State v. Perez, 57 Conn. App. 385, 389, 748 A.2d 384 (2000). In addition, the defendant has failed to raise a claim of entitlement to the extraordinary review provided under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” (Internal quotation marks omitted.) State v. Perez, supra, 389.

Practice Book § 60-5 provides in relevant part that “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Moreover, we have held that “[wjhere a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Domian, 235 Conn. 679, 692, 668 A.2d 1333 (1996). The defendant has not sought review of the court’s judgment on the basis of plain error, and we do not perceive any such basis. We therefore decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (2) any other person is injured, either directly or indirectly; or . . . (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The right of confrontation guaranteed by the sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . .

       The following colloquy occurred during the voir dire of Hutchings:
      “[Defense Counsel]: You work as an informant for the police in cases where you haven’t testified, you haven’t testified in court, you have been paid money?
      “Katherine Hutchings: To do what?
      “Q. Provide the police with information?
      “A. No, not to tell them. If I tell them something, it’s not, I don’t get paid for telling them something, it’s if I go do something, then I get paid for that. See, it’s two different things.
      “Q. What do you get paid for?
      “A. That’s irrelevant. I’m not going to answer that. That doesn’t have nothing to do with arson.
      “[Defense Counsel]: Well, I would claim that, Your Honor.
      “[Assistant State’s Attorney]: Your Honor, this is the problem. I don’t think there has been a showing that would necessitate the witness talking about the specific work that she has done for the police in the past.
      “The Court: The question is whether or not she receives money to give information to the police.
      “[Assistant State’s Attorney]: And I think her testimony was she does not.
      “Katherine Hutchings: No, I do not.
      “[Defense Counsel]: But, you know, Your Honor, there is an interrelationship between what her—concerning her relationship with the police, I think

        that we need to know, and this jury needs to know the essence of it, what the relationship, nature of the relationship is.
      “The Court: Counsel, the question was asked did she receive money in exchange for giving the police information. Her answer is no.
      “[Defense Counsel]: No, she testified money for other tilings, and I think we—
      “The Court: Well, that question hadn’t been posed yet.
      “[Defense Counsel]: Well—Mrs. Hutchings, you—what did you get paid— withdraw the question. You have been paid by the police department, isn’t that correct?
      “Katherine Hutchings: Okay.
      “[Defense Counsel]: What type of work do you get paid to do?
      “[Assistant State’s Attorney]: I object to that.
      “[Defense Counsel]: Your Honor, I’m not asking for specific details, or to her to name any defendants or people that she may provide information about. I’m just asking what type of—what type of activities does she get paid for.
      “[Assistant State’s Attorney]: Except the type of activity, once it is named, is going to be pretty apparent, what it entails, and who is involved, and I see nothing to do with these defendants, Your Honor.
      “The Court: Well, there may well be some relevancy that she is receiving money from the police department.
      “[Assistant State’s Attorney]: I don’t quarrel with that. My problem is to get into what exactly she has done in the past, naming specifically what it’s been, I don’t think is—what does that—what is that probative of, nature of what she has done in the past?
      “[Defense Counsel]: What she expects to get out of her testimony or any other information she has provided to the police.
      “The Court: Well, that question you can ask.
      “[Defense Counsel]: Well, Your Honor, I’m asking her what she has been paid for in the past, which may be a motive for her having come forward to the police or providing information to the police.
      “Katherine Hutchings: Doesn’t have anything to do with this, nothing to do with this. I have not received no money for this right here, or know— even know if they plan on giving me any for this right here.
      “[Defense Counsel]: I think that is for the judge to decide, Your Honor, not the witness to decide.
      “Katherine Hutchings: Well—
      “The Court: No, it’s partially responsive. But ma’am, the police have paid you money?
      “Katherine Hutchings: In the past, yes.
      “The Court: Yes. And when was the last time, approximately?
      “Katherine Hutchings: Maybe—I haven’t done anything for them like that in about [a] year or more.

        “The Court: Okay.
      “Katherine Hutchings: I haven’t worked with them or nothing.
      “The Court: Counsel, there should be some information regarding not the cases but, well, you have indicated you do not, you have not received money from the police in exchange for giving them information?
      “Katherine Hutchings: No.
      “The Court: Is that correct?
      “Katherine Hutchings: Uh-huh. Yes.
      “The Court: Okay.
      “[Counsel for Newton]: On this case we’re talking about now?
      “The Court: No, no. Generally?
      “Katherine Hutchings: In general on all cases?
      “The Court: But at times, the police have paid you money?
      “Katherine Hutchings: Yes.
      “The Court: Okay. Have you received that money that the police have paid you, was that for you to testify?
      “Katherine Hutchings: No, at no time.
      “The Court: Was it for you to give signed statements?
      “Katherine Hutchings: No.
      “The Court: It was not to give information?
      “Katherine Hutchings: No.
      “The Court: Well, generally, what was it for, without naming names of people, was it to pay your rent?
      “Katherine Hutchings: No, no. It was for me to purchase things.
      “The Court: Oh. All right. To purchase things. Okay. All right.
      “[Defense Counsel]: Have you received other compensation from the police?
      “Katherine Hutchings: Besides money?
      “[Defense Counsel]: Have you ever received drugs from the police? “Katherine Hutchings: No.”

       On cross-examination by the defendant, Hutchings testified that the first incident occurred at 2:30 in the afternoon. The defendant objected to her testimony because court was in session that day and Hutchings was then asked whether she was certain about the time. Hutchings explained that she was certain only that it was sometime in the afternoon. When the court clerk confirmed that court had adjourned at 3:30 p.m. on November 18, the defendant withdrew his objection “as to Tuesday afternoon.”

        Golding 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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: PER CURIAM.

text:
    UNION TRUST COMPANY v. BARBARA ROTH ET AL.
    (AC 18499)
    Schaller, Mihalakos and Dupont, Js.
    Submitted on briefs April 25
    officially released June 27, 2000

      Howard A. Lawrence and W. Bradley Morehouse filed a brief for the appellant (named defendant).

      Matthew B. Woods filed a brief for the appellee (substitute plaintiff).
   Opinion

PER CURIAM.

In this mortgage foreclosure action, the owner of the equity of redemption appeals from the trial court’s denial of her motion to reopen the judgment and to extend the sale date. Whether to grant a motion to open rests in the discretion of the trial court. Hartford Federal Savings & Loan Assn. v. Stage Harbor Corp., 181 Conn. 141, 143, 434 A.2d 341 (1980). The court did not abuse its discretion in this case.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    JOSEPH JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 18963)
    (AC 19060)
    SchaUer, Mihalakos and Dupont, Js.
    Argued April 25
    officially released June 27, 2000

      David B. Rozwaski, for the appellant (petitioner).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Donna Mambrino, assistant state’s attorney, and John J. Dropick, former assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Joseph Johnson, appeals from the habeas courts’ denials of his petitions for writs of habeas corpus following the denial of his petition for certification to appeal in each case. The petitioner claims that the habeas courts improperly rejected his claims that his trial counsel and habeas counsel provided ineffective assistance.

In the criminal proceeding underlying the petitioner’s petitions for writs of habeas corpus, the petitioner was convicted, after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and larceny in the first degree in violation of General Statutes § 53a-122 (a) (3). The petitioner was sentenced to a total effective term of thirty-five years incarceration. This court affirmed the judgment of conviction. State v. Johnson, 29 Conn. App. 394, 615 A.2d 512 (1992). After granting certification to appeal, our Supreme Court dismissed the appeal. State v. Johnson, 227 Conn. 611, 630 A.2d 69 (1993).

Thereafter, the petitioner filed two petitions for writs of habeas corpus. In AC 18963, the petitioner alleged ineffective assistance of trial counsel. The court, Sfer-razza, J., dismissed the petition, and the petitioner did not file a timely appeal from the dismissal. The petitioner thereafter filed a second petition, AC 19060, in which he alleged ineffective assistance of trial and habeas counsel. The court, Corrigan, J., denied the petition. On the basis of a stipulation of the parties, however, the court reinstated the petitioner’s light to appeal from the decision in the first habeas action. Both habeas courts denied the petitioner’s petitions for certification to appeal. On January 12, 1999, this court granted the petitioner’s motion to consolidate the two appeals. Our examination of the record and briefs persuades us that the judgments of the habeas courts should be affirmed.

In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review is plenary as to whether the facts as found by the habeas court constitute a violation of a petitioner’s constitutional right to effective assistance of counsel. Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 695 A.2d 183 (1995). For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s mistakes, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). The petitioner has not satisfied this burden.

In the first petition, AC 18963, the habeas court’s dismissal of the petition for a writ of habeas corpus was based on a review of the petitioner’s claims and the court’s finding that, given the evidence against the petitioner, he failed to meet his burden of proving that the decision of trial counsel not to offer two letters into evidence before the jury created a reasonable probability that the result of the trial would have been different. In the second petition, AC 19060, the habeas court’s dismissal of the petition was based on a review of the petitioner’s claims and the court’s findings that trial counsel’s advice that the petitioner not testify was not ineffective in view of his prior felony convictions and that counsel’s advice concerning the presentation of mitigating information at sentencing was proper.

After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that both habeas courts had before them sufficient evidence to find as they did and that they did not abuse their discretion in denying the petitions for certification to appeal.

The appeals are dismissed.


author: PETERS, J.

text:
    RAYMOND TOOLEY v. METRO-NORTH COMMUTER RAILROAD COMPANY
    (AC 19429)
    Foti, Mihalalcos and Peters, Js.

      Argued April 25
    officially released June 27, 2000

      Lewis H. Chimes, with whom, on the brief, was Jennifer Willcox, for the appellant (plaintiff).

      Adam S. Bozek, with whom, on the brief, were Mary C. Dollarhide and Carol S. Barnett, for the appellee (defendant).
   Opinion

PETERS, J.

In Shortt v. New Milford Police Dept., 212 Conn. 294, 304, 562 A.2d 7 (1989), the Connecticut Supreme Court held that a trial court lacks subject matter jurisdiction to hear an employee’s claim for wages under General Statutes § 31-72 until the employee has exhausted his or her administrative remedies by complying with the grievance procedure specified in an applicable collective bargaining agreement. The principal issue in this appeal is whether this jurisdictional barrier is overcome by an employer’s partially affirmative response to an employee’s informal grievance that does not comply with the procedures specified in a collective bargaining agreement. Despite such conduct by the employer, the trial court in this case concluded that the employee had failed to exhaust his administrative remedies and that the court therefore had no subject matter jurisdiction to proceed. We agree.

I

PROCEDURAL AND FACTUAL HISTORY

The plaintiff, Raymond Tooley, filed a two count complaint in which he alleged that the defendant, Metro-North Commuter Railroad Company, by denying him access to overtime work, had violated its duties to pay him wages to which he was entitled. In count one, relying on a collective bargaining agreement between the defendant and the plaintiffs union, the plaintiff alleged that § 31-72 gave him a statutory right to receive the wages that he had lost for lack of overtime work. In count two, the plaintiff alleged that, apart from the collective bargaining agreement, he had a common-law right to recover lost wages as damages for breach of contract by the defendant. The defendant filed a motion to dismiss in which it claimed that the trial court lacked subject matter jurisdiction to entertain the plaintiffs complaint. According to the defendant, because the plaintiff had failed to exhaust his administrative remedies under the collective bargaining agreement as required both by the Railway Labor Act, 45 U.S.C. § 151 et seq. and General Statutes § 31-72, federal law preempted the plaintiffs complaint and required its dismissal. The court held an evidentiary hearing on the merits of the defendant’s motion.

The trial court's memorandum of decision and the record as a whole reveal the following facts. The plaintiff, a longtime employee of the defendant, held the position of assistant supervisor from 1993 to 1997. As a member of Local 1573 of the International Brotherhood of Electrical Workers (union), the plaintiffs employment was governed by a collective bargaining agreement (agreement). Section 4-M-l (a) of the agreement provided: “A claim or grievance must be presented by an employee or on his behalf by his union representative to the employee’s General Foreman or other designated official and the director-labor relations within thirty (30) days from the occurrence on which the claim is based.” (Emphasis added.)

The plaintiff was an hourly employee of the defendant. He claimed that, because the defendant had deprived him of the opportunity to have a fair share of overtime work, he had been denied wages to which he was entitled.

On July 27, 1993, he first voiced his claim by submitting to his union representative a document entitled “Grievance.” Although he sent copies of this document to several persons who qualified as “designated officials” under the agreement, he failed to send such a copy to the director-labor relations.

On December 1, 1996, the plaintiff again complained to his union in writing about unfair distribution of access to overtime work. As had been the case with the earlier “Grievance,” he sent copies to certain “designated officials” but not to the director-labor relations. Early the following year, a union representative asked the defendant’s deputy chief engineer for a meeting to discuss the plaintiffs claim.

On March 1,1997, the plaintiff wrote to Frank Torre, one of the defendant’s assistant chief engineers, to request certain overtime assignments. Again, he failed to send a copy to the director-labor relations. Nevertheless, on March 17,1997, Torre wrote a memorandum to Thomas Maroselli, senior engineer, and Joseph Cleary, general supervisor, directing them to involve the plaintiff in “catenary supervisor overtime rotation.” The plaintiffs position as supervisor ended in June, 1997.* *

The plaintiff testified that he had received oral assurances from the defendant that his claims for overtime compensation had been granted. Because this testimony was vague and lacked documentary support, the trial court declined to find it credible. It is not disputed, however, that the defendant never informed the plaintiff in writing that his claims had been denied.

Witnesses for both parties agreed that, despite the provisions of the agreement, the defendant had not always insisted on notice to the director-labor relations as a condition for acting on an otherwise meritorious employee complaint. The defendant’s witness on this issue was its labor relations representative, who worked for the director. The plaintiff so testified on his own behalf.

On this record, the trial court concluded that, because the plaintiff had never given proper notice of his claim for overtime wages to the director-labor relations, as required by the collective bargaining agreement, the plaintiff had failed to exhaust his administrative remedies. The court further concluded that, in the absence of exhaustion of the plaintiffs administrative remedies, he could not prevail on either count of his complaint. Finally, the court concluded that the federal Railway Labor Act preempted the plaintiffs breach of contract claim, which raised issues closely related to those encompassed by the collective bargaining agreement. Accordingly, the court granted the defendant’s motion to dismiss.

The plaintiff has appealed from the judgment of dismissal on three grounds. He maintains that the trial court improperly concluded that (1) he had failed to exhaust his administrative remedies and therefore could not prevail on his statutory claim for wages, (2) he had failed to demonstrate that his breach of contract claim was not inextricably intertwined with his rights under the collective bargaining agreement and therefore was preempted by the federal Railway Labor Act and (3) the defendant had responded appropriately to the plaintiffs requests for pretrial discovery. We are not persuaded by any of the plaintiffs claims.

II

STANDARD OF REVIEW

In 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), we recently reviewed the well established rules that govern an appeal from a judgment dismissing a complaint for lack of subject matter jurisdiction. “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. ... 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. . . . [B]ecause [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).” (Citations omitted; internal quotation marks omitted.) Taft v. Wheelabrator Putnam, Inc., supra, 362; see Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998); Johnson v. Dept. of Public Health, 48 Conn. App. 102, 107-108, 710 A.2d 176 (1998).

We adhere to these principles today. The plaintiff does not challenge the accuracy of the two principal factual findings made by the trial court in support of its dismissal of his complaint. He does not question the fact that, in his various communications with his employer, he never sent a copy of his alleged grievance to the director-labor relations. Similarly, he does not question the fact that, as a union member, he was bound by the terms of the agreement between the union and the defendant. Because the claims on appeal challenge principally the legal conclusions drawn by the trial court, we must undertake a plenary review of the basis for the trial court’s judgment of dismissal.

Ill

THE STATUTORY WAGE CLAIM UNDER § 31-72

The plaintiffs appeal from the dismissal of his statutory cause of action under § 31-72 does not dispute the basic proposition that a trial court lacks subject matter jurisdiction to hear his claim until he has exhausted the administrative remedies to which he has access. Shortt v. New Milford Police Dept., supra, 212 Conn. 304. Instead, he maintains that functionally, if not precisely, he did exhaust the administrative remedies afforded to him by the grievance procedures contained in the agreement between his union and the defendant. Specifically, he argues that the trial court improperly concluded that (1) his correspondence with the defendant did not constitute a grievance, (2) the defendant’s response to that correspondence did not prevent him from further pursuit of the grievance process and (3) the defendant’s conduct throughout did not obstruct his access to the grievance process.

Before we address these specific claims, we must put them into context. “[J]urisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.” (Internal quotation marks omitted.) Simms v. Warden, 229 Conn. 178, 180, 640 A.2d 601 (1994); Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); see also Practice Book § 10-33. To prevail in his appeal, it is, therefore, not enough for the plaintiff to show that the facts of record establish that the defendant, by its conduct, waived the requirement of exhaustion of remedies. He must show, instead, that such conduct demonstrates the plaintiff’s compliance with that requirement. This is a difficult assignment. We are persuaded that the plaintiff has not made the requisite showing.

First, the plaintiff argues that his communications to the defendant on July 27, 1993, December 1, 1996, and March 1, 1997, initiated the grievance process, despite his failure to notify the director-labor relations, because the defendant never issued a written denial notifying the plaintiff that his grievance had been rejected. The short answer to that argument is that the plaintiff has not identified any provision of the collective bargaining agreement that imposes such a duty whenever the defendant receives a document denominated “Grievance.” Only proper notification triggers the defendant’s obligation affirmatively to deny a grievance.

Second, the plaintiff argues that, the defendant, by agreeing to implement the plaintiffs claim for overtime work, in effect accepted the grievance and was bound to follow through on that acceptance. This argument is difficult to distinguish from a claim of waiver. Furthermore, nothing in the agreement requires the defendant to channel, through the grievance process, all of its responses to employee complaints about working conditions. As a matter of good employer-employee relations, the defendant retained the option to search, informally, for a workplace accommodation for any complaint, even though the complaint did not qualify as a formal grievance. The fact that such an accommodation proved to be unsatisfactory to the plaintiff did not convert an improperly filed grievance into one that complied with unambiguous procedural requirements in the collective bargaining agreement. Accordingly, such an accommodation does not demonstrate that the plaintiff properly exhausted the administrative remedies contained in that agreement.

Third and finally, the plaintiff argues that the defendant’s conduct, in acknowledging the legitimacy of his complaint, constituted the acceptance of his grievance. Once the defendant accepted a grievance, the grievance procedures specified in the agreement were concluded. Under the agreement, the acceptance of a grievance precluded an employee from further access to its second or third steps. According to the plaintiff, because the defendant’s conduct precluded him from further review of his grievance, he has fulfilled the requirement of exhaustion of remedies. See Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 330-31, 89 S. Ct. 548, 21 L. Ed. 2d 519 (1969); Hunt v. Prior, 236 Conn. 421, 432, 673 A.2d 514 (1996). We disagree with this argument for much the same reasons as we have just discussed in the previous paragraph. The plaintiff has failed to demonstrate that the defendant’s conduct must be characterized as an acceptance of a formal grievance. Nothing that the defendant said or did prevented the plaintiff from filing a proper grievance on the ground that, although he had been promised the right to have overtime work, he had never received any wages to compensate him for the defendant’s failure to follow through on that promise. The defendant’s conduct, therefore, did not interfere with the plaintiffs access to the grievance procedures specified in the agreement and did not excuse his failure to exhaust his administrative remedies.

In conclusion, the trial court properly granted the defendant’s motion to dismiss the first count of the plaintiffs complaint. The requirement of exhaustion of administrative remedies as a prerequisite to judicial relief under § 31-72; Shortt v. New Milford Police Dept., supra, 212 Conn. 304; was not satisfied by the plaintiffs submission of a document denominated “Grievance.” By the express terms of the collective bargaining agreement, notification of the director-labor relations was an integral part of a proper submission. Because the plaintiff failed to give such notification, he never filed a proper grievance and, therefore, did not exhaust his administrative remedies.

IV

THE COMMON-LAW CLAIM FOR BREACH OF CONTRACT

The plaintiff also appeals from the judgment of the trial court dismissing the second count of his complaint, in which he alleged a common-law right to recover damages for breach of contract from the defendant. The trial court concluded that this count also was juris-dictionally defective because it was preempted by provisions of the federal Railway Labor Act that required exhaustion of administrative remedies as a prerequisite to access to judicial intervention. 45 U.S.C. § 152. Despite the plaintiffs arguments to the contrary, we affirm the judgment of the trial court.

The plaintiff alleges that the defendant acknowledged the merits of his claim to receive an equitable share of overtime and wrongfully failed to compensate him for the overtime to which he was entitled. The principal factual basis for this claim was a memorandum written by Frank Torre on March 17, 1997. That memorandum mandated that “[the plaintiff] be involved in catenary supervisor overtime rotation.” It asked its addressees to make “recommendations by March 31, 1997 as to how much [the plaintiff] is owed.” The plaintiff alleged that the defendant wrongfully failed to perform its contract obligation to pay him for lost overtime.

In reaching its conclusion that, regardless of the substantive merits of the plaintiffs claim, it was jurisdictionally preempted by the Railway Labor Act, the trial court made two factual and legal determinations that are not challenged on appeal. First, the plaintiff does not contest the fact that, as an hourly employee of the defendant, he is subject to the provisions of the Railway Labor Act. Second, he does not challenge the proposition that the Railway Labor Act requires the submission to grievance processes of so-called minor disputes that involve the interpretation or application of existing labor agreements. 45 U.S.C. § 151a (4) and (5) (Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-56, 114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994). The applicable test is often articulated as an inquiry into whether the dispute concerns a claim that is “inextricably intertwined with consideration of the terms of the labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985).

The focus of the plaintiffs argument on appeal is that, in this case, his common-law claim for wages was not “inextricably intertwined” with the collective bargaining agreement between his union and the defendant. Conceding that his right to overtime derived from the agreement, he argues, nonetheless, that he has stated an independent claim for lost wages because the claim does not require inteipretation or application of the agreement but is based instead on the representations made by the defendant. As did the trial court, we find this argument unpersuasive.

The difficulty with the plaintiffs position is that it assumes that the representations upon which he relies can be divorced from the agreement to which they relate. The plaintiff testified that his breach of contract claim was based partially on the agreement. He has not alleged any basis for Torre’s memorandum other than the agreement. Without reference to the agreement, there would be no way to determine the amount of wages that the defendant allegedly owed him as a result of Torre’s memorandum. See Fry v. Airline Pilots Assn., International, 88 F.3d 831, 836 (10th Cir. 1996) (plaintiffs allegations are not dispositive in determining whether plaintiffs claims in some manner arise under collective bargaining agreement).

The cases upon which the plaintiff principally relies for a contrary view are distinguishable. Neither of them involves claims of a union member that cannot be resolved without reference to a collective bargaining agreement.

In Foy v. Pratt & Whitney Group, 127 F.3d 229, 236-37 (2d Cir. 1997), the United States Court of Appeals for the Second Circuit concluded that a common-law action for misrepresentation was not preempted because the alleged misrepresentation concerned a promised opportunity for transfer under circumstances not covered by the collective bargaining agreement. By contrast, the plaintiffs own complaint, in paragraph thirteen, alleged that “[t]he overtime available to Catenary Department Supervisors constituted ‘wages’. . . . “ Indisputably, the plaintiffs collective bargaining agreement addressed wages. E.g., Rules 4 and 11 of the collective bargaining agreement.

In Hernandez v. Conriv Realty Associates, 116 F.3d 35, 40 (2d Cir. 1997), the same court concluded that an employee could pursue, without preemption, a common-law action for breach of contract premised on three allegations. One was an alleged promise to pay the employee for work beyond the ordinary scope of his duties. Id., 39. The second was an alleged promise to pay the employee, if he withdrew from his union, the same benefits that he had received as a union member. Id. Although enforcement of this second promise would require reference to the terms of a collective bargaining agreement, the court characterized the required consultation as tangential because the terms of the agreement were not in dispute. Id. The third was an allegation of intentional fraud undertaken with an intent to deceive. Id.

Although the distinction between the present case and Hernandez is a close call, we are persuaded by the defendant’s argument that Hernández is inapposite. Unlike Hernandez, the plaintiff does not seek to enforce a wage claim for work outside the scope of the collective bargaining agreement. Also unlike Hernandez, the plaintiff does not seek to enforce a promise for benefits that became payable when he was no longer a union member. Finally, unlike He?nandez, the plaintiffs complaint contains no claim of intentional misrepresentation. See footnote 12.

Our conclusion that the plaintiffs contract claim is inextricably intertwined with the terms of his collective bargaining agreement finds support in other federal court decisions. It is not dispositive that these cases arise in federal circuits other than our own. Although, for prudential reasons, we often pay special attention to the decisions of the Second Circuit interpreting and applying federal law; Schnabel v. Tyler, 230 Conn. 735, 743, 646 A.2d 152 (1994); Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739 n.7, 610 A.2d 1238 (1992); we are bound only by the decisions of the United States Supreme Court. Other federal courts have held, for example, that federal law preempts state common-law claims that concern severance payments; Wheeler v. St. Louis Southwestern Railway Co., 90 F.3d 327, 330 (8th Cir. 1996); or seniority rights; Kollar v. United Transportation Union, 83 F.3d 124, 126 (5th Cir. 1996); even though these claims are couched in terms of breach of contract or common-law fraud.

V

CLAIM OF INSUFFICIENT DISCOVERY

The plaintiffs final claim is that he was prevented from fully responding to the defendant’s motion to dismiss because the defendant improperly “refused to provide any substantive discovery prior to the evidentiary hearing.” The defendant disputes this claim as lacking factual validity or legal propriety.

The plaintiff makes the unarguable claim that he was entitled to an evidentiary hearing, and to discovery as needed, in order to establish that the trial court had jurisdiction to hear his complaint. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). Such an evidentiary hearing was held. The plaintiff has not cited to us any place, at that hearing, in which he claimed that he needed further time to present evidence or to pursue further discovery. As far as the record discloses, he never alerted the trial court to the claim of inadequate discovery.

The plaintiff apparently recognizes that the defendant provided some documents and proffered some witnesses who testified at the evidentiary hearing. He therefore couches his claim as an absence of “substantive discovery before the evidentiary hearing.” He has not identified which of his unanswered discovery requests fell into this latter category. He has not identified any court ruling to compel production. He does not dispute the defendant’s assertion that no objection was ever taken to the defendant’s motion for a protective order.

On this record, the claim of insufficient discovery cannot be sustained. It suffices to note that, because the foundation for the claim is imperfectly articulated, the claim has been briefed inadequately. Accordingly, we decline to consider its merits. Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 820, 730 A.2d 1149 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-72 provides in relevant part: “Civil action to collect wage claim, fringe benefit claim or arbitration award. When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive . . . such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action. ...”

       Title 45 of the United States Code, § 152 provides in relevant part: “All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute. . . .”

       See Shortt v. New Milford Police Dept., supra, 212 Conn. 310.

       The plaintiff has not challenged the validity of the termination of his employment as supervisor. According to an affidavit filed on behalf of the defendant, the department in which the plaintiff worked was reorganized in June, 1997. The plaintiff applied for, but was not selected for, a supervisory job in the reconstituted department. He selected a foreman’s job in accordance with his seniority.

       On August 3,1993, the plaintiffs union representative filed aprocedurally proper grievance, but that filing did not assert any right to overtime compensation. The plaintiff provided the trial court with no documentation supporting his allegation that he had subsequently filed additional written grievances.

       See footnote 4.

       The court observed that notification of the director-labor relations was a significant part of the grievance process because the absence of such notification meant that “[the defendant’s] labor relations department never learned of [the plaintiffs] ‘Grievance’ and consequently never became involved in the grievance process with respect to that document.” The plaintiff has not challenged the accuracy of the court’s observation. He does not claim that, apart from the manner in which the defendant responded to this document and to similar past filings, he had substantially complied with the requirements of the grievance process. Similarly, he does not claim any ambiguity in the grievance process as spelled out in the agreement. Finally, he points to nothing in the agreement that imposes upon other management employees the duty to notify the director-labor relations of pending grievances.

       We disagree with the contention of both parties that the trial court made findings of fact when it determined that the plaintiff had failed to exhaust his administrative remedies and had failed to file aproper grievance. Because these determinations required the application of facts to legal constructs, they were mixed questions of law and fact requiring plenary review. State v. Pinder, 250 Conn. 385, 410, 736 A.2d 857 (1999).

       Both parties have briefed the defendant’s claim that the plaintiffs state cause of action under § 31-72 was preempted by the federal Railway Labor Act. We need not decide this preemption issue. If the plaintiffs claim is jurisdictionally defective as a matter of state law, it is irrelevant that it also may be jurisdictionally defective as a matter of federal law. See Buonocore v. Branford, 192 Conn. 399, 401, 471 A.2d 961 (1984).
      It is noteworthy that each statute precludes any remedy for a litigant who has failed to demonstrate his or her exhaustion of administrative remedies.

       Although the plaintiff asserts that the defendant gave him verbal assurances that he would be paid for overtime work, the trial court made a finding of fact that this assertion had not been proven. The plaintiff has not demonstrated that this finding was clearly erroneous. He does not dispute that the assertion was supported only by his own testimony, which the trial court, had the authority to discredit. State v. Santiago, 252 Conn. 635, 640, 748 A.2d 293 (2000).

       The agreement outlined a three step process for dealing with grievances. First, a grievance is initiated by the employee or his union by notifying the appropriate official in writing within thirty days of the occurrence on which the claim is based. A copy of the written grievance must also be sent to the director-labor relations. Once the written grievance is received, the official has thirty days to notify the employee or his representative of whether the grievance was allowed or disallowed. If there is no such response, the grievance is considered allowed and is listed with the director-labor relations. Second, if the grievance has been allowed it will be discussed at a monthly meeting with the local committee. If the grievance has been disallowed, the employee may, within thirty days, list it for such discussion. When a grievance is denied after discussion, the director-labor relations must notify the employee of the reason for the denial within thirty days after the grievance was discussed. If no written denial is provided within the thirty days, the grievance is considered allowed. Third and finally, an employee may seek arbitration when a grievance has been denied. When a claim has been allowed, the employee will be notified in writing of the amount and payroll involved.

       The plaintiff alleges, inter alia, that his failure to exhaust his administrative remedies “should be excused . . . because of the defendant’s repeated and apparently wilful failure to follow its own grievance procedures.” The plaintiffs complaint did not allege wilful misconduct. The trial court’s memorandum of decision made no ruling with respect to wilful misconduct. It is too late to make such a claim now. Practice Book § 60-5; Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996).

       See footnote 2.

       Title 45 of the United States Code, § 151a provides in relevant part: “The purposes of the Act are . . . (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.”