author: SULLIVAN, J.

text:
    IN RE JORDAN T.

    (AC 30674)
    DiPentima, Robinson and Sullivan, Js.

      Argued December 2, 2009
    officially released March 9, 2010

      Richard P. Cahill, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Trudy Condio, for the minor child.

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

   Opinion

SULLIVAN, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights as to her minor child, Jordan T. On appeal, the respondent claims that the court improperly found that the petitioner, the commissioner of children and families, had proven by clear and convincing evidence that (1) she had not achieved a sufficient degree of personal rehabilitation and (2) termination of her parental rights was in the best interest of the child. In addition, the respondent claims that the court improperly prevented her from questioning Jordan’s foster parent concerning the future contact between Jordan and her biological family in the event that the court terminated the respondent’s parental rights.

The record reveals the following relevant facts and procedural history. The department of children and families (department) first became involved with Jordan after the respondent confessed to police that she had participated in the armed robbery of a Burger King restaurant. The respondent reported later that she had been intoxicated at the time and had been coaxed into participating by her boyfriend at the time. The respondent was arrested and taken into custody on December 30,2006. Following her arrest, the respondent remained incarcerated between December, 2006, and April, 2007, when she posted bond and was released pending trial.

At the time of the respondent’s arrest, she told the police about Jordan, who was then in the care of her maternal grandmother. The police notified the department, which invoked a ninety-six hour hold; see General Statutes § 17a-101g; after determining that the grandmother was not an appropriate placement due to her history of substantiated abuse and neglect allegations. The court granted an order of temporary custody to the petitioner on January 3, 2007. The department placed Jordan in a foster home, where she resided through the time of trial. Jordan was adjudicated neglected and committed to the care of the petitioner on March 22, 2007, and specific steps were implemented for the respondent to be reunified with Jordan.

While released on bond, the respondent worked on achieving the specific steps put in place for her, and the department’s plan for Jordan was reunification. The respondent found full-time employment and a suitable housing arrangement for herself and Jordan. Additionally, the respondent completed parenting education courses and began outpatient mental health and substance abuse counseling. The respondent visited with Jordan as often as possible, and she acted appropriately during those visits.

In November, 2007, the respondent pleaded guilty to robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and, on January 11, 2008, she was sentenced to ten years imprisonment, execution suspended after fifty-five months, with three years of probation. She began serving her sentence in January, 2008. Following the respondent’s incarceration, the petitioner changed her permanency plan to termination of parental rights and filed a petition to terminate the respondent’s parental rights. The petitioner alleged as grounds for termination that the respondent had failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) and had abandoned Jordan within the meaning of § 17a-112 (j) (3) (A). Following trial on the petition, on December 4, 2008, the court issued its memorandum of decision finding that the respondent had failed to achieve a sufficient degree of personal rehabilitation. The court did not reach the alleged ground of abandonment. In the dispositional phase, the court found that it was in Jordan’s best interest to terminate the respondent’s parental rights.

I

The respondent first claims that the court improperly determined (1) that she failed to achieve a sufficient degree of personal rehabilitation and (2) that termination is in Jordan’s best interest. The respondent argues that the evidence in the record does not support the court’s determinations. We disagree and, therefore, affirm the judgment of the court.

“Under § 17a-l 12, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the four grounds for termination of parental rights set forth in § 17a-112 [j] exists by clear and convincing evidence. The commissioner ... in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings ... in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. . . . Section [17a-112 (j)] carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. . . .

“If the trial court determines that a statutory ground for termination exists, then it proceeds to the disposi-tional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 688-89, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

A

We first address the respondent’s claim that the court improperly terminated her parental rights on the ground that she had failed to achieve a sufficient degree of personal rehabilitation. The respondent argues that the evidence did not support this determination and that the only basis for the finding was her incarceration. The court found that she substantially complied with the specific steps ordered on March 22, 2007, and she argues that this court should hold that incarceration alone cannot be sufficient to prove failure to achieve a sufficient degree of personal rehabilitation, analogous to the rule that incarceration alone cannot satisfy the burden of proof for abandonment. See In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645, 436 A.2d 290 (1980).

The court appointed David Mantell, a psychologist, to evaluate the respondent and Jordan and to present his expert opinion to the court. After the parties stipulated to his expertise as a clinical psychologist specializing in forensic evaluations in the area of child custody and family permanency, Mantell testified extensively concerning his evaluation and opinion of the respondent and Jordan. He testified that he would not recommend placement of Jordan with the respondent immediately following her release from prison and estimated that she would need to prove her reliability as a resource for at least one year upon her release. He also testified that the respondent had a history of parent-child relational problems with her own parents, an adult relational problem associated with her two most recent romantic partners, a history of alcohol abuse, antisocial behavior in committing the act of robbery and an adjustment disorder with mixed emotional features, including some depression, anxiety and paranoia.

There was extensive testimony concerning Jordan’s difficulty visiting the respondent in prison. A social worker, Lauren Delaney, assigned to the case by the department, testified that the department had been offering monthly visitation in prison, which had begun to be difficult for Jordan. Specifically, Delaney stated that after a visit in July, 2008, “it took Jordan about three or four weeks to recover from that visit. . . . [S]he was waking up . . . screaming during the middle of the night, crying. She was asking to stay in the home forever and to never leave. . . . She had started wetting the bed overnight. She was aggressive at school.” Delaney also described various strategies employed by the department in conjunction with the respondent and the foster parent to help Jordan with her anxieties related to visiting the respondent in prison.

Delaney testified that the prison setting and missing the respondent were partly the cause of Jordan’s negative reactions to the visits. Mantell agreed that the prison setting would be difficult for a child to adjust to, and he also testified that Jordan’s negative reactions to the prison visits could be attributed to a decreasing ability to wait for reunification. He testified that these negative reactions might, in another context, necessitate immediate reunification, but noted that that solution was not available here. He also testified that, absent some other cause, Jordan’s negative reactions to the visits strengthened his recommendation that she remain in the care of the foster mother and also may necessitate decreasing visitation with the respondent.

Following the trial, the court found, by clear and convincing evidence, that, on the date the petition for termination was filed, the respondent “was unable to satisfy even the minimal essential obligations of parenthood. . . . This inability to meet her parental obligations is largely a function of her incarceration. But it is also a function of ‘psychological conflicts, social adjustment problems, alcohol abuse and probable dependency, and probably also adjustment problems with depressed and anxious features, which have combined to cause her very substantial difficulties, dislocations and repeated disappointments,’ as . . . Mantell noted.” The court further noted that the respondent’s “multitude of unresolved childhood handicaps, her history of inappropriate male relationships, her unacknowledged issues with alcohol, her criminal conduct, which resulted in her incarceration, and her inability to meet her parental responsibilities,” provided the basis for its decision that the respondent had failed to achieve a sufficient degree of personal rehabilitation.

Our standard of review is well established. “[W]e review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Eden F., supra, 250 Conn. 705-706.

Section 17a-112 (j) provides in relevant part that the court may grant a petition for termination of parental rights “if it finds by clear and convincing evidence that . . . (B) the child . . . has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“Personal rehabilitation, as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and farther, that such rehabilitation must be foreseeable within a reasonable time.” (Intemal quotation marks omitted.) In re Eden F., supra, 250 Conn. 706.

The respondent argues that the evidence does not support the conclusions made by the court concerning her “childhood handicaps” because her parenting up to the time of her incarceration had not been impacted by these challenges. The respondent refers to testimony by Delaney that the department would not have become involved with the family had it not been for the respondent’s commission of the robbery. The court, however, made no finding concerning the suitability of the respondent’s parenting prior to the removal of Jordan from her care, and any evidence suggesting that the department would never have become involved would be purely speculative. The court did find that “[l]ittle information is available to [the department] about [the respondent’s] parenting between the child’s birth in August, 2005, and the child’s removal in December, 2006. The child did become very closely bonded with [the respondent] and with the extended family, especially [the respondent’s] younger sister.”

Even if we assume that the respondent had been appropriate in her parenting prior to her arrest, the court considered what impact her unresolved mental health issues had on the likelihood that she would achieve a sufficient degree of personal rehabilitation quickly enough to maintain a permanent and stable parenting role in Jordan’s life. The court relied on the opinion of Mantell in reaching the conclusion that the respondent had unresolved mental health issues owing to her own difficult childhood.

The respondent also argues that there was no evidence suggesting that she had used alcohol during the time she was released on bond, which would undermine the court’s reliance on her unwillingness to receive treatment for alcohol dependence. The court made no finding concerning the respondent’s use of alcohol during the several months she was released on bond, but it did address the unwillingness of the respondent to engage in treatment for alcohol dependence during that same time period and her unwillingness to admit, even when questioned at trial, that she had an alcohol abuse or dependency problem. Concerning her alcohol use, the court wrote that the respondent “had given self-reports of heavy drinking in the months before the robbery. She reported that on the night of the robbeiy she was severely intoxicated by alcohol. She gave a history of blackouts from drinking earlier in her life. Based upon this information, the [Hockanum Valley Community Council, Inc. (council)] clinic physician made a diagnosis of alcohol dependence. . . . [The respondent] reported a desire to stop her alcohol use but had been unsuccessful at quitting. The doctor prescribed a drug to reduce alcohol cravings. Another [council] clinician also made a diagnosis of alcohol dependence and recommended a relapse prevention program and participation in Alcoholics Anonymous. . . . [T]he clinic notified [the department] that [the

respondent] had stopped taking her anticraving medication. [The respondent] reported that she does not need the medication and disagreed with the diagnosis of alcohol dependence. . . . [The respondent] testified in court on November 20, 2008, illogically persistent as it may be, that T do not have a problem with alcohol.’ This denial certainly raises issues about her fitness to serve as a parent upon release from incarceration.”

The court placed great emphasis on the time frame for a possible reunification between the respondent and Jordan in reaching its conclusion that the petitioner had proven that the respondent had failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B). It noted Mantell’s assessment that the respondent would likely need one year to establish herself in the community and found that her earliest possible release date is January 11, 2010. Following her release, she would have sixty-five months of possible incarceration remaining and be under probation supervision for three years. The court further found that, at the time of trial, Jordan had already been in out of home care for nearly two years and that it would be at least another two years from the time of the court’s decision, or longer, before she could be reunited with the respondent. The respondent has not attempted to argue that the court’s conclusions concerning the time frame for reunification for Jordan were factually incorrect or improper under § 17a-112.

The court acknowledged that the department had planned to reunify the respondent with Jordan prior to the respondent’s incarceration. It also addressed the reality of the respondent’s incarceration, including the difficulty posed by the visitations in the prison, which the respondent had at one point agreed to stop due to the impact on Jordan. The court wrote, however, that “the respondent [mother’s] incarceration, in and of itself, does not dictate the determination that [she] has failed to achieve rehabilitation . . . .” (Internal quotation marks omitted.)

The respondent has asked this court to hold that incarceration alone cannot serve as the basis for a finding that a parent has failed to achieve a sufficient degree of personal rehabilitation and argues that the court in the present case made such a finding. Upon review of the court’s memorandum of decision, however, we cannot conclude that incarceration was, in the present case, the sole basis for the court’s conclusion, nor can we conclude that it was clearly erroneous for the court to find that the respondent had failed to achieve a sufficient degree of personal rehabilitation. The court centered its analysis on the respondent’s unwillingness to acknowledge that she had alcohol dependence, as well as on the amount of time that Jordan would be in foster care before the respondent could resume a constructive role in her life. The court relied on the evidence in the record, and despite the existence of any contrary evidence, we cannot substitute our judgment for that of the trial court.

B

The respondent next argues that the court improperly determined, in the dispositional phase of the trial, that termination was in the best interest of Jordan. The respondent argues that the evidence is insufficient to support the court’s determination that termination of her parental rights is in the best interest of Jordan. We hold that the court had sufficient evidence on which to base its decision and, therefore, affirm the judgment.

“In the dispositional phase of a termination of parent rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. On appeal, we will disturb the findings of the trial court in both the adjudication and disposition only if they are clearly erroneous.” (Internal quotation marks omitted.) In re Vanna A., 83 Conn. App. 17, 26-27, 847 A.2d 1073 (2004).

The court properly considered and made written findings on the factors delineated in § 17a-112 (k), but the respondent’s argument relies on evidence in the record tending to show that Jordan misses the respondent and is sad to be separated from her. She also refers to the report of Mantell that Jordan has several psychological parents, with the respondent being the first, the maternal aunt as the second and the foster mother as the third, and argues that the fact that Jordan is more closely bonded to the respondent shows that termination of the respondent’s parental rights is not in Jordan’s best interest.

Even if the evidence persuaded this court that termination was not in Jordan’s best interest, it failed to convince the trial court. The court reasonably relied on contrary evidence in the record, including the testimony of Mantell. Mantell testified that none of the options available to the court were ideal and that the question of Jordan’s best interest was one of minimizing harm. In light of that goal, Mantell testified that maintaining the security of Jordan’s foster placement, which was likely to become her permanent adoptive home upon termination, would do less harm than waiting for the possible eventual rehabilitation of the respondent. We, therefore, cannot conclude that the court’s determination of the best interest of the child was without the support of evidence in the record. We affirm the judgment of the court.

II

The respondent argues finally that the court improperly prevented her from questioning Jordan’s foster mother concerning whether she would allow contact with the biological family if she adopted Jordan. The respondent characterizes the court’s ruling as based on relevance, and she argues that, in light of the testimony that Jordan is strongly connected to her family, the question of whether postadoption contact would be allowed is highly relevant to the determination of Jordan’s best interest.

Mantell had testified that Jordan’s “ties to her biological family were really powerful and that she would sustain a huge loss if . . . those ties were severed.” He stated that the foster parent had told him that if she adopted Jordan, she would permit “static information exchanges in the forms of pictures and things of that sort, with no personal contacts.” He speculated that the foster parent’s reluctance to permit Jordan ongoing contact with her biological family could be attributed to insecurity about Jordan’s affections, a desire to protect Jordan from disappointments by unreliable family members or some combination of those factors.

Later in the proceeding, the respondent, through counsel, asked the foster mother, “[I]f you did in fact adopt her, what would be your plan for Jordan’s contact with her biological family?” The petitioner objected, stating, in part, “[T]he issue of postadoption contact is really outside of the scope of these proceedings.” The court sustained the objection. The respondent then argued that the evidence of continuing ties would be relevant to the court’s decision concerning Jordan’s best interest in light of the testimony by Mantell about the effect it would have on Jordan to sever ties with the biological family. The court replied, “I heard from . . . Mantell on that. That’s why I really don’t want to hear particulars from this witness.”

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing ... of substantial prejudice or injustice. . . . Additionally, it is well settled that even if the evidence was improperly admitted, the [party challenging the ruling] must also establish that the ruling was harmful and likely to affect the result of the trial.” (Internal quotation marks omitted.) In re Anna Lee M., 104 Conn. App. 121, 126, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).

Section 4-3 of the Connecticut Code of Evidence states: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” (Emphasis added.) “Evidence is cumulative if it multiplies witnesses or documentary matter to any one or more facts that were the subject of previous proof. . . . The court’s power in that area is discretionary. ... In precluding evidence solely because it is cumulative, however, the court should exercise care to avoid precluding evidence merely because of an overlap with the evidence previously admitted.” (Citations omitted.) Glaser v. Pullman & Comley, LLC, 88 Conn. App. 615, 627, 871 A.2d 392 (2005).

Although the department appeared to object on the basis of relevance and the court sustained the objection, the court later appeared to conclude that the proffered testimony would be cumulative of testimony already elicited from Mantell concerning the foster mother’s future plans for contact between Jordan and her biological family. Although the respondent now argues on appeal that she would have gone beyond just asking about what contact would be allowed, to determine the basis for the foster mother’s decision and therefore better inform the court of the possibility for Jordan to have continued contact with her biological family, no such argument was made at trial. The respondent only proffered to question the foster mother regarding her plans, and that is what the court excluded. We cannot, therefore, conclude that the court abused its discretion in excluding as cumulative the testimony by the foster mother concerning her future plans, should she adopt Jordan, for contact between Jordan and her biological family.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of Jordan’s father. Because he has not appealed, we refer in this opinion to the respondent mother as the respondent.

       General Statutes § 17a-112 (j) (3) (B) provides for the termination of parental rights when the child “has been found by the Superior Court or Probate Court, to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. . . .”

       As the petitioner notes, there was some evidence in the record that the respondent did continue drinking even after the robbery incident. The petitioner’s exhibit A, a letter from Katherine Paquette, a social worker at Hockanum Valley Community Council, Inc., which provided counseling to the respondent, states that the respondent “had continued to use alcohol intermittently despite its reported role influencing her decision to participate in the robbeiy last winter.”

      The respondent also argues that the dispositional determination was improper because it was based on an improper determination in the adjudicatory phase. This argument has no merit because we have already affirmed the court’s holding that the respondent had failed to achieve a sufficient degree of personal rehabilitation under § 17a-112.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    CONSERVATION COMMISSION OF THE TOWN OF FAIRFIELD v. SUSAN M. DIMARIA
    (AC 30244)
    Bishop, DiPentima and Harper, Js.

      Argued December 10, 2009
    officially released March 9, 2010

      Noel R. Newman, for the appellant (plaintiff).

      JohnR. Lambert, with whom, on the brief, was Susan M. DiMaria, pro se, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, the conservation commission of the town of Fairfield, appeals from the judgment of the trial court ordering the defendant, Susan M. DiMaria, to remove fill that had been deposited on a conservation easement. Specifically, it claims that the court improperly failed to remand the matter to the plaintiff to make any necessary orders and to allow the plaintiff to supervise the removal of the fill. We dismiss the plaintiffs appeal as moot.

The following facts and procedural history are relevant to our discussion. The defendant is the owner of property in Fairfield that is subject to a conservation easement. This easement prohibits excavation, filling, removal of vegetation or construction of buildings on a two-thirds of an acre portion of the property without the approval of the plaintiff. In the spring of 2005, the defendant began to construct a horse bam on her property. The defendant did not seek approval from the plaintiff.

On May 26, 2005, Marisa Anastasio, the plaintiffs compliance officer, issued a cease and desist order to the defendant with an order to show cause. The defendant did not receive the notice sent by Anastasio; nevertheless, a hearing was held on June 2, 2005, in the defendant’s absence. The plaintiff approved the cease and desist order that previously had been issued and issued a restoration order. The plaintiff, additionally, referred the matter to the attorney representing the town of Fairfield for the purpose of obtaining injunctive relief pursuant to General Statutes § 22a-44 (b). The plaintiff then commenced the present action seeking injunctive relief, civil penalties and attorney’s fees. The defendant responded that the construction of a horse bam and other activities were exempt activities pursuant to General Statutes § 22a-40 (a) (l) and, therefore, were permitted as a matter of right.

The court first concluded that the plaintiffs action was not void for lack of notice. It then found that the defendant’s proposed activity fell within the statutory definition of‘Tarming’’* ** and, therefore, was exempt pursuant to § 22a-40 (a) (1). The court determined, however, that the filling of the conservation easement did not constitute an exempt activity. See General Statutes § 22a-40 (a) (1). It further found that this fill, totaling approximately 350 cubic yards, was the result of inadvertence on the part of the defendant and not deliberate or wilful conduct. Nevertheless, the incidental filling of the conservation easement formed a sufficient basis for a remediation order.

As a result of these findings, the court issued the following orders: (1) that the defendant remove the fill that had been deposited within the conservation easement and to avoid any future filling of that area, and (2) that the plaintiff issue a declaratory ruling pursuant to § 4.4 of the Fairfield inland wetland and watercourses regulations that the defendant was engaged in an exempt activity within the meaning of § 22a-40 (a) (l). The court declined to impose any monetary penalty against the defendant or award attorney’s fees to the plaintiff.

Following the trial court’s decision and the appeal to this court, the defendant, acting pro se, filed a motion to terminate the appellate stay, or, in the alternative, to enforce the court order to issue a declaratory ruling with respect to the horse farming activities. On October 22,2008, the court granted the motion in part, permitting the defendant to remove the inadvertently deposited fill. The plaintiff subsequently filed a motion to reargue the court’s decision as to the termination of the stay. The defendant filed an objection and represented that the fill had already been removed. Following the hearing on the plaintiffs motion, the court found that the work on the easement had been completed and that the fill had been removed.

On appeal, the plaintiff claims that the court failed to remand the matter to the plaintiff to make any necessary orders and to allow the plaintiff to supervise the removal of the fill. It argues that the court failed to set any time limit for the defendant to remove the fill, or to allow the plaintiff to use its usual jurisdiction to set a reasonable performance bond, to approve a site monitor to oversee the remediation or to allow access to the property to inspect the removal of the fill in order to ensure compliance with the court’s order. We conclude that, because this court cannot afford the plaintiff any practical relief, the appeal must be dismissed as moot.

“Mootness implicates [the] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary.” (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 506-507, 970 A.2d 578 (2009).

We examine the complaint to determine the relief sought by the plaintiff. In its pleading, the plaintiff requested: (1) a temporary and permanent injunction prohibiting the defendant from undertaking any further work on her property; (2) a temporary and permanent injunction restraining any further violation of the statutes or Fairfield wetlands regulations; (3) an order directing that the violations be corrected or removed; (4) an assessment of civil penalties; (5) damages; and (6) such other relief as law and equity may appertain.

At the hearing, the court observed that the first request for relief was overbroad in that it would prevent the defendant from painting her home. Similarly, it concluded that the second requested relief was too vague and broad in scope. Turning to the third request for relief, the court stated: “[T]his one I can do, an order directing the violation be corrected and, or, removed.” Finally, the court indicated that civil penalties may be appropriate but that it had heard no evidence relating to money damages. In sum, the court concluded that the plaintiffs third, fourth and sixth requests for relief remained as viable options. In response, counsel for the plaintiff acknowledged: “Number three [the request that the violation be corrected or removed] pretty much covers the whole case.”

Our Supreme Court has stated that “the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief.” (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). The relief requested by the plaintiff was a court order to correct or to remove the violation of placing fill on the conseivation easement. The court awarded the plaintiff the precise relief requested. Additionally, at the postjudgment hearing on the plaintiffs motion to reargue the termination of the appellate stay, the court found that the defendant had removed the fill. The plaintiffs complaint did not seek the right to conduct an inspection or to approve a site monitor. Moreover, those issues were not raised during the trial. It was not until the hearing on the defendant’s motion to terminate a stay of the proceedings that the plaintiff first raised these matters to the trial court. Simply put, the court awarded the plaintiff the relief that it had requested in its complaint, and we cannot now supplement that relief with conditions that were not asked for in the complaint. Accordingly, we cannot afford the plaintiff any practical relief, and, thus, the appeal is moot.

The plaintiff also argues that the court was not justified in removing the plaintiff “from its usual jurisdiction and preventing it from exercising its usual powers.” We conclude, however, that due to the procedural posture of this case, the argument must fail. As the court observed, “[t]his is not an appeal of the cease and desist order, or decision of the [plaintiff] to . . . deny or grant a permit for a regulated activity. ” In other words, we are not presented with an appeal pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., or a zoning appeal pursuant to General Statutes § 8-8. With respect to these types of appeals, “ [normally, [w]hen agency action is overturned . . . because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration. ... A direct order to the commission is therefore legally unwarranted and the case must be remanded to the commission for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the . . . record.” (Internal quotation marks omitted.) United Jewish Center v. Brookfield, 78 Conn. App. 49, 63, 827 A.2d 11 (2003). An exception exists “when it appears as a matter of law that there is only one single conclusion that the [agency] could reasonably reach,” and, in that situation, “the trial court can direct the agency to take the action on remand.” (Internal quotation marks omitted.) Id.

The present case, however, is an appeal from the court’s decision to issue injunctive relief pursuant to § 22a-44 (b). This is a significant distinction because the rule stated in United Jewish Center v. Brookfield, supra, 78 Conn. App. 63, and relied on by the plaintiff, does not apply. Further, there was no agency action that was overturned; the court ordered the exact relief requested by the prevailing party, the plaintiff.

The appeal is dismissed.

In this opinion the other judges concurred.

       An associate of the defendant happened to be at the hearing and requested a continuance in order for the defendant to appear. The plaintiff did not act on this request.

       General Statutes § 22a-44 (b) provides in relevant part: “The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. . . .”

       General Statutes § 22a-40 (a) provides in relevant part: “The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation .... The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purpose of sale . . . .”

       General Statutes § 1-1 (q) provides in relevant part: “Except as otherwise specifically defined, the words ‘agriculture’ and ‘farming’ shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses .... The term ‘farm’ includes farm buildings, and accessory buildings thereto . . . .”

       In its appellate brief, the plaintiff presented several claims related to the issue of the declaratory ruling. On March 5,2009, in compliance with the judgment from a separate action; see DiMaria v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV-08-4025164-S (November 10, 2008); the plaintiff voted to issue the declaratory ruling.
      On February 9, 2009, the defendant filed a motion to dismiss the present appeal as moot. This court granted the defendant’s motion limited to the declaratory ruling claims.

       Attached to the plaintiffs motion was an affidavit from Thomas J. Steinke, the plaintiffs director. Steinke indicated that removal of the fill during the wet or rainy season presented a great risk to the integrity of the wetland. He also stated that if the fill was removed prior to the mid-spring of 2009, the potential harm could be reduced with (1) the appointment of a site monitor approved by both the plaintiff and defendant, (2) the posting of a performance bond and (3) the plaintiffs right to inspect and to observe the removal of the fill.

       Specifically, the defendant’s objection stated: “I have complied with the court order to the extent the court’s order has allowed me to remove the fill that was inadvertently deposited within the area covered by the conservation easement. A site monitor, frequently approved by the plaintiff, was present each day the work was performed.”

       The court compared this request for relief to an order that the defendant refrain from speeding “tomorrow when [she is] out in [her] vehicle.”

       We note that counsel for the plaintiff was aware of the posture of the present case. At one of the hearings following the court’s decision, the plaintiffs counsel stated: “It’s not ... an appeal from an administration agency. It’s ... a zoning enforcement action—I mean, it’s a wetlands enforcement action . . . .” He further indicated to the court that he did not believe the case to constitute an administrative appeal.


author: ALVORD, J.

text:
    HENRY W. PASCARELLA ET AL. v. COMMISSIONER OF REVENUE SERVICES ET AL.
    (AC 30526)
    Harper, Lavine and Alvord, Js.
    Submitted on briefs December 4, 2009
    officially released March 16, 2010

      Daniel W. Moger, Jr., filed a brief for the appellants (plaintiffs).

      Richard Blumenthal, attorney general, and Heather J. Wilson, assistant attorney general, filed a brief for the appellees (named defendant et al.).
   Opinion

ALVORD, J.

The plaintiffs, Henry W. Pascarella and Riversedge Partners, appeal from the judgment of the trial court dismissing, for lack of subject matter jurisdiction, their complaint seeking a declaratory judgment. We affirm the judgment of the trial court.

On March 24, 2008, the plaintiffs filed a complaint seeking a declaratory judgment that the reinstatement of R.S. Silver & Company, Inc., pursuant to General Statutes § 33-892, was based on a fraudulently induced statement by the commissioner of revenue services to the secretary of the state that back taxes owed by R.S. Silver & Company, Inc., had been paid. The plaintiffs named the commissioner of revenue services, the secretary of the state and R.S. Silver Enterprises, Inc.,* * as defendants. On June 23, 2008, the defendants, the commissioner of revenue services and the secretary of the state, moved to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction. They argued that the plaintiffs did not have standing. On October 30, 2008, the court granted the defendants’ motion. This appeal followed.

“It is axiomatic that aggrievement is a basic requirement of standing .... If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause. . . . There are two general types of aggrievement, namely, classical and statutory; either type will establish standing . . . .” (Citations omitted; internal quotation marks omitted.) Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91-92, 971 A.2d 1 (2009). “Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest. . . . [I]n cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. . . . [T]he existence of statutory standing . . . depends on whether the interest sought to be protected by the [plaintiffs] is arguably within the zone of interests to be protected or regulated by the statute . . . .” (Citations omitted; internal quotation marks omitted.) Gillon v. Bysiewicz, 105 Conn. App. 654, 659-60, 939 A.2d 605 (2008).

The plaintiffs are defendants in an unrelated action brought against them in 2006 by the defendant, R.S. Silver Enterprises, Inc. (2006 lawsuit).* *** The plaintiffs claim that they are aggrieved because they are forced to defend a lawsuit against R.S. Silver Enterprises, Inc., and argue that R.S. Silver Enterprises, Inc., would not be able to maintain its lawsuit if it had not been reinstated by the secretary of the state. We review the plaintiffs’ claim de novo; see id., 659; and conclude that the plaintiffs failed to provide evidence of aggrievement. The plaintiffs’ participation in an unrelated lawsuit does not establish classical aggreivement, and this court has held that § 33-892 does not extend statutory standing to third parties to challenge the general fitness of an applicant for reinstatement. See id., 661-62.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-175 (a) provides in relevant part: “If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency . . . decides not to issue a declaratory ruling . . . the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. . . .” The plaintiffs petitioned the defendant commissioner of revenue services for a declaratory ruling, and, on February 22,2008, the commissioner declined to issue the requested ruling.

       General Statutes § 33-892 (a) provides in relevant part: “A coiporation administratively dissolved may apply to the Secretary of the State for reinstatement after the effective date of dissolution. The application must . . . be accompanied simultaneously by an amendment of the certificate of incorporation which identifies an available name; and ... be accompanied by ... an up-to-date statement or statements from the Commissioner of Revenue Services and the administrator of the unemployment compensation law acting in their respective capacities, showing, to the best of their knowledge and belief, as of the date of such respective statements, either that such corporation has paid all its taxes and contributions or that it was not liable for any taxes or contributions, or that it has made adequate provisions, with such surety as shall be satisfactory to said commissioner and said administrator, for the future payment of any of its unpaid taxes and unpaid contributions as of the date of such respective statements provided . . . .”

       “On February 9,2006, pursuant to General Statutes § 33-892, the secretary issued a certificate of reinstatement and name change for R.S. Silver & Company, Inc., which reinstated the administratively dissolved corporation and changed the name of the company to R.S. Silver Enterprises, Inc.” Gillon v. Bysiewicz, 105 Conn. App. 654, 656-57, 939 A.2d 605 (2008).

       On July 9, 2008, the defendant R.S. Silver Enterprises, Inc., moved to adopt the motion to dismiss.

       The 2006 lawsuit is similar to one brought by R.S. Silver & Company, Inc., against the plaintiffs in 2003. The 2003 lawsuit was dismissed because the secretary of the state dissolved the corporate existence of R.S. Silver & Company, Inc. The 2006 lawsuit was commenced by R.S. Silver Enterprises, Inc., after R.S. Silver & Company, Inc., was reinstated and changed its name to R.S. Enterprises, Inc.

       Because we determine that the court lacked subject matter jurisdiction, we do not address the plaintiffs’ additional claim that, in this case, public policy required the court to entertain issuing a declaratory judgment.


author: FLYNN, C. J.

text:
    BRIAN CROTTY ET AL. v. TUCCIO DEVELOPMENT, INC.
    (AC 30417)
    Flynn, C. J., and Lavine and Beach, Js.

      Argued December 11, 2009
    officially released March 16, 2010

      John R. Williams, for the appellant (defendant).

      Robert P. Hanahan, for the appellees (plaintiffs).
   Opinion

FLYNN, C. J.

This appeal addresses issues arising from the trial court’s determination of probable cause in granting a prejudgment remedy in the amount of $1.7 million. The defendant, Tuccio Development, Inc., appeals from the court’s judgment granting the prejudgment remedy in favor of the plaintiffs, Brian Crotty and Peggy Crotty, upon a finding of probable cause that the defendant had breached a repurchase agreement. On appeal, the defendant claims that the court improperly (1) granted the prejudgment remedy where there was insufficient probable cause, (2) set the amount of the prejudgment remedy and (3) found that certain lots were owned by the defendant and were subject to attachment. We affirm the judgment of the trial court.

In October, 2005, the plaintiffs purchased from the defendant a newly constructed 8000 square foot home in the Whispering Glen subdivision, located in Brook-field, for the price of $1.5 million. The parties signed a sales contract presumably in March, 2005, but the contract was not dated. Paragraph fourteen of the sales contract contained a buyback provision. The parties dispute the exact content of the provision because some of the language was changed by crossing it out and writing in something else, and some additional language also was handwritten at the end of the paragraph containing the buyback provision. None of these handwritten changes contained the initials of the parties. The contract, with original signatures and the handwritten changes, was admitted into evidence by the court and by the stipulation of the parties. As amended by the handwritten alterations, paragraph fourteen provided: “Seller agrees that, in the event Buyer provides written documentation from Buyer’s employer of Buyer’s employment relocation to a place in excess of 45 miles from the property described on Schedule A during a period of time ending not later than three (3) years from the date of closing, time being of the essence, upon sixty (60) days written notice from the Buyer, Seller will repurchase the premises described herein for a price of one million six hundred thousand ($1,600,000.00) dollars. This obligation and agreement of the Seller is conditioned upon the premises being in substantially the same condition as of the date of closing, reasonable wear and tear excepted. The parties acknowledge that, if said written notice is not received by the seller, by 5:00 p.m. on the last day of the third (3rd) year period, this obligation shall be null and void and of no further force or effect. The parties shall execute, on the day of closing, an acknowledgment of the agreed upon expiration date of this obligation. This paragraph shall survive closing of title. After the first year for any reason whatsoever should the Buyer decide to sell, the Seller shall be obligated to purchase for the price set forth herein.”

By letter dated May 27, 2008, the plaintiffs sought to exercise their rights under paragraph fourteen of the sales contract, as they sought to have the defendant buy back the home. When the defendant rejected or ignored the plaintiffs’ request, the plaintiffs filed a complaint in the Superior Court alleging breach of contract and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), and they sought a prejudgment remedy in the amount of $1.7 million, to be secured by the attachment of several lots owned by the defendant.

The court held a hearing on the prejudgment remedy application on September 29, 2008, at which time four stipulated exhibits were entered into evidence by the plaintiffs. These exhibits included a certified copy of the warranty deed for the home, the Department of Housing and Urban Development settlement statement, the letter sent to the defendant in which the plaintiffs sought to exercise their rights under the buyback provision and the original contract. The defendant appeared through counsel, and no representative thereof testified at the hearing. Brian Crotty was the only person who testified at the hearing. In an October 1, 2008 memorandum of decision, the court found credible the testimony of Brian Crotty, and it found that there was probable cause to believe that the plaintiffs would be successful in prosecuting their complaint. Accordingly, the court granted the application for a prejudgment remedy, ordering that “the plaintiffs may attach to the value of $1.7 million lots 5, 6, 7, 8, 9, 10, 11 and 12 constituting a portion of the real estate of the defendant, which is more particularly described as the ‘schedules of real property’ in the plaintiffs’ application, and as more specifically described in ‘Schedule A’ appended hereto.” This appeal followed.

Initially, we set forth our standard of review. “A prejudgment remedy means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment .... General Statutes § 52-278a (d). A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff .... General Statutes § 52-278d (a) (1). . . . Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence. . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. . . . Under this standard, the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . .

“As for [the] standard of review [on appeal], [our Supreme Court has instructed that an appellate] court’s role on review of the granting of a prejudgment remedy is very circumscribed. ... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. ... In the absence of clear error, [a reviewing] court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . [On appeal], therefore, we need only decide whether the trial court’s conclusions were reasonable under the clear error standard.” (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 136-38, 943 A.2d 406 (2008). With this standard in mind, we address the defendant’s claims on appeal.

I

The defendant first claims that the court improperly found that there was probable cause to warrant the granting of the plaintiffs’ application for a prejudgment remedy. Specifically, it argues that “the issuance of the prejudgment remedy was based solely on the claim of the plaintiffs] that [uninitialed] handwritten changes made to a contract nevertheless represented the agreement of the parties thereto.” We are not persuaded.

The plaintiffs submitted a copy of the signed contract containing a buyout provision, and Brian Crotty testified that this was the copy of the contract that he had signed after his attorney had made the handwritten changes to it. He further testified that this contract then was sent to the defendant’s attorney so that signatures of the defendant’s representatives, Arthur J. Tuccio, Jr., president of the defendant corporation, and Edward J. Tuccio, vice president of the defendant corporation, could be obtained. After the Tuccios had signed the contract, it was returned to the plaintiffs’ attorney. Brian Crotty also testified that after he exercised his right under the buyout provision by sending a letter to the defendant, the defendant failed to respond.

Brian Crotty’s testimony was not contradicted during the hearing; the defendant presented no evidence, nor did anyone offer testimony or other evidence on the defendant’s behalf. The court found the testimony of Brian Crotty, the only person who testified at the hearing, to be credible, and it found sufficient probable cause to grant the prejudgment remedy. Our review of the record reveals nothing that would lead us to the conclusion that the defendant has met its burden of showing that the court’s approval of the application was clear error. Accordingly, the defendant has failed to demonstrate that it was improper for the court to have granted the plaintiffs’ application for a prejudgment remedy.

II

The defendant next claims that there was no evidence to support the issuance of a prejudgment remedy in the amount of $1.7 million because the plaintiffs still were living in the home and could not show that their damages exceeded that amount. We are not persuaded.

“Because a prejudgment remedy is a statutorily based remedy, we first examine the language of the statute. Section 52-278d (a) requires that a trial court make a probable cause determination as to both the validity of the plaintiffs claim and the amount of the remedy sought. See General Statutes § 52-278d (a); see also Union Trust Co. v. Heggelund, 219 Conn. 620, 625, 594 A.2d 464 (1991). In other words, to justify issuance of a prejudgment remedy, probable cause must be established both as to the merits of the cause of action and as to the amount of the requested attachment. That dual requirement ensures that a person is not deprived of the use of property without due process of law. . . . Kinsale, LLC v. Tombari, [95 Conn. App. 472, 482, 897 A.2d 646 (2006)] (Flynn, C. J., dissenting). Therefore, the party seeking the prejudgment remedy must present evidence that is sufficient to enable the court to determine the probable amount of the damages involved. Ledgebrook Condominium Assn., Inc. v. Lusk Corp., [172 Conn. 577, 585, 376 A.2d 60 (1977)]. Although the likely amount of damages need not be determined with mathematical precision . . . the plaintiff bears the burden of presenting evidence [that] affords a reasonable basis for measuring her loss.” (Internal quotation marks omitted.) Kosiorek v. Smigelski, 112 Conn. App. 315, 322-23, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009).

The defendant argues that even if a prejudgment remedy were found to be proper in this case, the plaintiffs’ injury, if any, necessarily would be “limited to the difference . . . between the fair market value of the property and the $1,600,000 repurchase price [of the home].” We are not persuaded by such an argument. In this case, the court specifically found that the plaintiffs had submitted sufficient evidence to demonstrate probable cause that the parties’ contract required the defendant to repurchase the home upon the plaintiffs’ exercise of such an option and that the defendant “failed to comply with its obligations under . . . the contract regarding the repurchase of the property . . . .” The repurchase price as established by the evidence was $1.6 million.

After reviewing the record in this case, including the application for the prejudgment remedy, the accompanying affidavit and complaint, as well as the evidence presented at trial, we conclude that the defendant has failed to demonstrate that it was clear error for the court to have granted the application for a prejudgment remedy in the amount of $1.7 million. In their application for a prejudgment remedy, the plaintiffs requested an attachment in the amount of $1.7 million, stating that there was probable cause that they would be successful in prosecuting their claims against the defendant in an amount equal to or greater than the amount sought in the prejudgment remedy. The plaintiffs’ complaint alleged against the defendant a breach of contract and a violation of CUTPA, and it sought money damages, statutory prejudgment interest, specific performance, punitive damages, attorney’s fees under General Statutes § 42-1 lOg and other equitable relief. In support of their application, the plaintiffs presented evidence of their contract with the defendant, which required the defendant to repurchase the plaintiffs’ residence for $1.6 million upon the plaintiffs’ timely request. They also presented evidence that they had exercised their option to have the defendant repurchase the property and that the defendant had failed to respond. The court credited all of this evidence and concluded that “there [was] probable cause to sustain the validity of the plaintiffs’ claims . . . .” The defendant has referred us to nothing in the record that would reveal that the court’s conclusions were unreasonable under the clear error standard.

Ill

The defendant next claims that the court improperly found that certain parcels of real property were owned by the defendant and were subject to attachment. It argues that the court ordered the attachment of these parcels without evidence to show probable cause that the defendant had any title interest in them and “in violation of due process of law.” It also argues that the court should have entered an order simply permitting attachment of the defendant’s assets, rather than the attachment of specific lots. We are not persuaded. Furthermore, insofar as the defendant attempts to raise a constitutional due process argument, such a claim is inadequately briefed, and we will not afford it review.

The plaintiffs argue that “[t]he transcript of the proceedings at the prejudgment hearing and the trial court’s decision do not reflect any such issue being raised before the trial court. Counsel for both parties told the [c]ourt that the defendant owned some remaining lots in the Whispering Glen subdivision. If the defendant does [not] own the lots, then any attachment recorded on the land records would not take effect against the lots. This claimed issue is of no consequence as a matter of basic title searching. An attachment will not take effect against real estate not owned of record by the defendant.” Reviewing the record and the court’s memorandum of decision, we agree with the plaintiffs.

In this case, the court specifically ordered “that the plaintiffs may attach to the value of $1.7 million lots 5, 6, 7, 8, 9, 10, 11 and 12 constituting a portion of the real estate of the defendant, which is more particularly described as the ‘schedules of real property’ in the plaintiffs’ application, and as more specifically described in ‘Schedule A’ appended hereto.” (Emphasis added.) Schedule A, attached to the court’s memorandum of decision, provides: “All those certain pieces or parcels of land, with all the improvements thereon, situated in the Town of Brookfield, County of Fairfield and State of Connecticut being shown as Lots 5, 6, 7, 8, 9, 10, 11 and 12 on a certain map entitled ‘TOWN OF BROOK-FIELD FAIRFIELD COUNTY, CONN. FINAL SUBDIVISION WHISPERING GLEN Date: August 7, 2002 Last revised 12-20-02 Scale: l[inch] = 100 [feet]’, which map is recorded in the Brookfield Town Clerk’s office as Map No. 893.

“Being a portion of the premises conveyed to [the defendant] by Craig L. Froehlich by Warranty Deed dated April 28, 2004 and recorded April 28, 2004 in Volume 481, Page 197 of the Brookfield Land Records.”

Reviewing the order of the court, we conclude that the order clearly permitted the attachment of a portion of the real estate of the defendant. Should the defendant not have had an interest in certain of the property set forth in the order, the order would not apply to that property, and the defendant would suffer no harm or infringement on its property rights. Accordingly, we find no merit to the defendant’s argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       There were many other handwritten changes throughout the contract as well, none of which contained the parties’ initials.