author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. BEN B. OMAR
    (AC 32705)
    DiPentima, C. J., and Beach and Borden, Js.

      Argued March 13
    officially released June 5, 2012

      Daniel J. Krisch, special public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Jason Germain, senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Ben B. Omar, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (b) and 53a-48 (a), sale of a controlled substance within 1500 feet of a school zone in violation of General Statutes § 21a-278a (b) and possession of a controlled substance within 1500 feet of a school zone in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that: (1) the trial court improperly denied his for cause challenges to three venirepersons; and (2) he was denied his constitutional right to a fair trial due to prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 25, 2009, Waterbury police Lieutenant Edward Apicella led an undercover team to the intersection of North Main Street and West/East Farm Streets in Waterbury, a location known as the “Sugar Bowl,” in order to try “to purchase narcotics from any individual who would solicit.” Apicella designated Officer Dedrick Wilcox of the Seymour police department to be the undercover purchaser because it was likely that he would not be recognized by the Waterbury street dealers as a police officer. As Wilcox was driving, a black female, later identified as Ida Mae Smith, nodded to him, and Wilcox pulled over. Smith asked, “[W]hat do you need?” and Wilcox responded, “I need twenty of base,” which meant $20 worth of crack cocaine. Smith then held up two fingers and yelled across the street to the defendant, “I need two.” Wilcox then handed Smith the money, at which point the defendant walked to a nearby mailbox, reached into his pocket and placed two items on the top of the mailbox. Smith walked across the street and handed the money to the defendant, who pointed Smith toward the mailbox. Smith then walked to the mailbox, grabbed the items and handed Wilcox the items — two bags of crack cocaine — and said, “[Y]ou’re all set.” Wilcox then left the scene and radioed to the surveillance team that the deal was done and met the officers at a prearranged location. The police did not immediately arrest the defendant because they did not want to jeopardize Wilcox’s safety or cover for future ongoing undercover operations. Instead, the defendant was arrested six weeks later in May, 2009. Additional facts will be set forth as necessary.

I

The defendant first claims that he was forced to exercise his peremptory challenges to strike certain potential jurors during voir dire because the court improperly denied three for cause challenges. He claims specifically that, as a result of using his peremptory challenges to strike potential jurors who should have been stricken for cause, he was left with an insufficient number of peremptory challenges with which to strike venire-persons K.S. and E.C. In response, the state argues that the defendant’s claim is not reviewable because the defendant did not seek an additional peremptory challenge. We agree with the state that, because the defendant did not seek an additional peremptory challenge, the claim is not reviewable.

The following additional facts are relevant to the resolution of this issue. During voir dire, the defendant moved to excuse three venirepersons for cause. The court denied each motion, and the defendant then exercised peremptory challenges on the first two challenged venirepersons, S.H. and B.M. The defendant exhausted his peremptory challenges when he excused B.M. The third challenged juror, K.S., was accepted as an alternate, and later was made a regular juror because, as the defendant acknowledged, he did not “have any peremptory challenges left” and therefore was unable to excuse K.S. The defendant neither sought, nor was denied, an additional peremptory challenge for that juror. A final alternate, E.C., was also accepted after the defendant acknowledged that a for cause challenge would be baseless. Although claiming that he would have used a peremptory challenge on this juror had he not already used all such challenges, the defendant neither sought, nor was denied, an additional peremptory challenge for that seated alternate.

“[I]t is reversible error for a trial court to force an accused to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” (Emphasis added; internal quotation marks omitted.) State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992). Since Esposito, our courts steadfastly have applied this standard in determining whether such claims are reviewable. See State v. Ross, 269 Conn. 213, 231-32, 849 A.2d 648 (2004) (“we agree with numerous other courts throughout the nation that ‘it is reversible error for atrial court to force an accused to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied’ ” [emphasis in original]); State v. Kelly, 256 Conn. 23, 32 n.8, 770 A.2d 908 (2001) (“our rule remains in accordance with the vast majority of jurisdictions that have considered this issue, which have required a defendant to exhaust his peremptory challenges before claiming error in the trial court’s denial of his challenges for cause”).

In the present case, after exhausting his peremptory challenges, the defendant did not seek to exercise an additional peremptory challenge against a specific juror. The defendant exhausted his peremptory challenges on the morning of the last day of voir dire. Later that day, after the parties had questioned K.S., defense counsel noted that “we don’t have any peremptory challenges left” and then moved to remove K.S. for cause, which the court denied. The defendant never requested an additional peremptory challenge, nor did the court ever deny such a request. Simply stating that he had exhausted his peremptory challenges does not constitute a request to the court for additional challenges. See State v. Mourning, 104 Conn. App. 262, 281, 934 A.2d 263 (defense counsel’s statement that he is out of peremptory challenges and subsequent reluctant acceptance of juror does not constitute request for additional challenges), cert. denied, 285 Conn. 903, 938 A.2d 594 (2007).

Furthermore, in his reply brief, the defendant argues that applying Esposito to this case ignores the rationale of its holding. More specifically, the defendant argues that the fact that he made it clear to the court that he would have used peremptory challenges to excuse K.S. and E.C. if he had any left serves the purpose of the Esposito rule, regardless of whether the defendant made an explicit request for additional peremptory challenges. We are not persuaded by this argument. Had the court in Esposito, and its progeny, intended that it would be considered sufficient for the mere expression that a peremptory challenge would be used, then language appropriate to effectuate that intention would have been crafted.

II

The defendant also claims that he was denied his constitutional right to a fair trial due to prosecutorial impropriety. Specifically, he claims that the prosecutor committed impropriety at trial by eliciting (1) evidence of the defendant’s subsequent drug arrest during the direct examination of Apicella and cross-examination of the defendant, and (2) a statement of Smith, a cocon-spirator, during the examination of Apicella, and referring to that evidence during closing argument. In response, the state contends that the defendant’s claims are not reviewable because they are merely evidentiary claims disguised as claims of prosecutorial impropriety. We agree with the state’s characterization of the defendant’s claims as evidentiary rather than constitutional claims of prosecutorial impropriety under the specific facts of this case. Accordingly, we will not review the merits of the defendant’s claim.

The following additional facts are relevant to the resolution of this claim. During cross-examination of Apicella, a state’s witness, defense counsel introduced as a full exhibit the arrest warrant application for the defendant. Paragraph eight of the warrant application contained portions of the defendant’s criminal history, including prior arrests and convictions of possession of narcotics and sale of narcotics. During questioning, defense counsel asked Apicella whether he ever had personally searched for or found drugs on the defendant. In response to those inquiries, Apicella testified that he never had found drugs on the defendant but did once find a gun on him for which he was arrested. Regarding the six week gap between the undercover drug sale in March, 2009, and the defendant’s arrest in May, 2009, defense counsel asked, “So, you left [the defendant] there for another month or so to continue to sell drugs?” to which Apicella replied: “That [would] depend on [the defendant’s] conduct.”

On redirect examination, the prosecutor engaged in the following colloquy with Apicella:

“[The Prosecutor]: Now, you indicated [in] your answers to [defense counsel] that you would hope that [the defendant] wouldn’t sell drugs. Isn’t it a fact that [the defendant] was arrested for drugs within that same area on August 12, 2009?
“[The Witness]: In August, right in that area, sir, yes.
“[The Prosecutor]: And that was also by the vice and intelligence unit, correct?
“[The Witness]: It was, sir.
“[The Prosecutor]: That was based on an undercover buy with a [confidential informant], correct?
“[The Witness]: A confidential buy, yes sir.
“[The Prosecutor]: And he was arrested after [the defendant] sold to a confidential informant?
“[Defense Counsel]: I’m going to object. The state is leading the witness and testifying. That’s not asking a question. . . .
“[The Prosecutor]: Tell me about [the defendant’s]— I’ll withdraw, Your Honor — August 12, 2009 arrest, sir?
“[The Witness]: As a result of a drug investigation that was conducted on [the defendant], a search warrant was obtained for [the defendant]. In fact, he was apprehended at North Main and Division, which is right there. I believe he also was apprehended with a quantity of drugs.”

On recross-examination of Apicella, defense counsel revisited the defendant’s August, 2009 arrest and again sought to establish that the defendant did not have a drug history:

“[Defense Counsel]: Okay. And you indicated that [the defendant] had been arrested in August of 2009, but this incident here occurred in March. Have you arrested him prior to March? Have you arrested him prior to March for narcotics?
“[The Witness]: Yes, ma’am.
“[Defense Counsel]: For the sale of narcotics?
“[The Witness]: Me, personally, no. He’s been arrested before, but not by me.”

On redirect examination of Apicella, the state referred to the defendant’s arrest warrant, which was marked as defendant’s exhibit E, and elicited that the defendant had been convicted of several felonies, including charges for the sale and possession of narcotics. Thereafter, during the state’s cross-examination of the defendant, he denied that he had ever been stopped by the police in the area of the undercover buy. The prosecutor then asked whether the defendant was arrested in that area on August 12, 2009. Defense counsel objected on the ground of relevance, and the court sustained the objection. The state made no reference during closing argument to the defendant’s August arrest.

As to the evidence concerning the statements of Smith, during the cross-examination of Apicella, defense counsel sought to establish that Apicella could not be certain that money or drugs were exchanged between Smith and the defendant at the time of the drug buy. As part of that inquiry, defense counsel elicited evidence regarding the statement that Smith had given to the police as follows:

“[Defense Counsel]: Did you ever see [the defendant] hand any drugs to Mrs. Smith?
“[The Witness]: I did not, personally, no, ma’am.
“[Defense Counsel]: Did you personally see Mrs. Smith hand [the defendant] money?
“[The Witness]: I saw her hand him something.
“[Defense Counsel]: You don’t know what it was?
“[The Witness]: Yes, I do. It was actually money.
“[Defense Counsel]: How do you know it was money? Could you see the money?
“[The Witness]: I know it from the observations of another officer. I know it from his coconspirator’s statement; I know that to be money.
“[Defense Counsel]: You’re relying on statements of others. You didn’t see money in his physical hand?
“[The Witness]: No, ma’am. I’m relying on the direct digital observation of others, coconspirator’s statements, and that’s how I come to my conclusion. Plus, I saw [her] own actions myself. And I would reasonably conclude that what she just handed him, based on all of the information, the totality of the circumstances, it was money.”

On redirect examination, the state addressed the topic of Smith’s statement in the following colloquy with Apicella:

“[The Prosecutor]: Now, there were questions about how you know [the defendant] did actually make this transaction with Mrs. Smith and Officer Wilcox. You indicated there was a statement taken from Mrs. Smith, who was also arrested in this case?
“[The Witness]: That’s correct.
“[The Prosecutor]: To your knowledge, was she also convicted?
“[The Witness]: Yes. . . .
“[The Prosecutor]: Showing you what’s been marked state’s exhibit 12 for identification purposes, could you identify that for the record please, sir?
“[The Witness]: Yes. The statement was given by Ida Mae Smith on May 7.
“[The Prosecutor]: Does that indicate that she was working as a runner with [the defendant]?
“[The Witness]: She says yes, I am [a] runner.
“[The Prosecutor]: And that’s Mrs. Smith’s statement?
“[The Witness]: Yes. She said the dealer I usually work for is a black guy who I also know as Belay.
“[The Prosecutor]: And is [the defendant] also known as Belay?
“[The Witness]: [The defendant] is Belay.
“[The Prosecutor]: I offer it as a full exhibit.
“The Court: Do you have an objection?
“[Defense Counsel]: I object to it being a full exhibit. She’s not here to cross-examine. It was her statement. It shouldn’t come in as a full exhibit. It’s prejudicial and we have no way to cross-examine her as to the statement [or] the conditions under which the statement was given. It’s signed May 7 after she was arrested. We don’t know if there was anything given in exchange for her statement.
“[The Prosecutor]: Your Honor, she brought it up. It was brought up through her cross-examination. I will withdraw the offer, Your Honor.”

Thus, any objections that the defendant made during these colloquies were either sustained or resulted in the objected to offer being withdrawn. Furthermore, defense counsel made no objections dining the state’s closing argument to the jury when the prosecutor referenced the statements of Smith.

It is apparent to us from a review of the record that the defendant is attempting to assert his unpreserved and nonconstitutional evidentiary claims through the guise of claims of prosecutorial impropriety with constitutional implications. See State v. Blango, 103 Conn. App. 100, 113, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007). “Although our Supreme Court has held that unpreserved claims of prosecutorial impropriety are to be reviewed under the [factors of State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)], that rule does not pertain to mere evidentiary claims masquerading as constitutional violations.” State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007); see also State v. Rowe, 279 Conn. 139, 149, 900 A.2d 1276 (2006) (unpreserved and unreviewable evidentiary claim cannot be transformed into one of prosecutorial impropriety). The defendant has not removed the unobjected to testimony, which he attempts to transform into pros-ecutorial impropriety, from the realm of purely eviden-tiary claims. Accordingly, we decline to review these claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       See State v. Kelly, 256 Conn. 23, 30 n.4, 770 A.2d 908 (2001) (“[w]e use the initials of . . . venirepersons to protect their privacy”).

       During the state’s closing argument, the prosecutor referred to Smith’s statements as follows: “But in this case you have [Officer Eric] Medina and Apicella indicate to you that in the drug trade people use runners. And when Lieutenant Apicella was asked by defense counsel, attorney [Stephanie L.] Evans, asked, what other evidence do you have besides the officer’s testimony in this case, he says, and I quote, ‘we have Mrs. Smith give a statement that says she was working as a runner for [the defendant].’ That’s accessory. That’s conspirator. But their testimony is crucial. Tell you about the customary practices of drug dealers, why they use other individuals to avoid detection. And you will have that testimony. If you need it read back, have it read back. But that is the customary practice to avoid detection — use other people. One person orders, takes the order, the other person holds the product, holds the money and the transactions are done.”

       It should also be noted that evidentiary claims do not merit review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because they are not of constitutional magnitude. “[Rjobing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. ” (Internal quotation marks omitted.) State v. Rosario, 99 Conn. App. 92, 99 n.6, 912 A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    ANEES U. RANA v. HARRY TERDJANIAN
    (AC 33428)
    Lavine, Robinson and Bear, Js.

      Argued March 20
    officially released June 5, 2012

      Harold J. Geragosian, for the appellant (defendant).

      William B. Wynne, with whom, on the brief, was Lawrence H. Adler, for the appellee (substitute plaintiff).
   Opinion

ROBINSON, J.

The defendant, Harry Terdjanian, appeals from the trial court’s judgment rendered in favor of the substitute plaintiff, Rana Automaster, LLC, for conversion, statutory theft and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and from the court’s subsequent award of offer of judgment interest and attorney’s fees. The defendant claims that the court improperly (1) denied his motions to dismiss the action, (2) determined that the defendant had committed statutory theft under General Statutes § 52-664, (3) awarded the plaintiff attorney’s fees, (4) concluded that the defendant was not shielded from liability by his limited liability company, (5) determined that the defendant converted funds and (6) determined that the defendant violated CUTPA. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review. In 2001, the defendant, through a limited liability company, owned two auto repair businesses, each operating under the name Automaster Service Center. One business was located in Wethersfield; the other was located in Southington. American Express Company (American Express) authorized the defendant’s businesses to accept American Express credit card payments and assigned each business its own unique “establishment number.”

In July, 2001, the plaintiff purchased the Wethersfield business from the defendant. After the sale, the defendant neglected to advise American Express of the sale and to cancel the establishment number assigned to the Wethersfield business. The plaintiff meanwhile obtained its own authorization from American Express to accept American Express credit card payments, and American Express issued the plaintiff a new establishment number for the Wethersfield business. Because the defendant never cancelled the old establishment number associated with the Wethersfield business, the plaintiff continued to receive statements associated with the old establishment number from American Express. Nevertheless, because the company that processed payments from American Express to the plaintiff had the plaintiffs correct establishment number and associated bank account number, no issues initially arose as a result of the failure to cancel the old establishment number.

The plaintiff, however, changed credit card processing companies in August, 2006. Anees U. Rana, who operated the Wethersfield business for the plaintiff, completed the application required by the new processing company. In so doing, Rana mistakenly referred to one of the statements containing the defendant’s old establishment number and listed that old establishment number on the application as the establishment number for the current Wethersfield business. Because of that mistake, between August, 2006, and July, 2007, the new processing company deposited American Express payments for work done at the plaintiffs Wethersfield business into the defendant’s bank account because that was the account associated with the old establishment number. Rana did not notice the error until May, 2007, at which time he contacted American Express. After conducting an investigation, American Express acknowledged that payments had been deposited erroneously into the defendant’s bank account. American Express was able to transfer $961.31 associated with a June 14, 2007 payment from the defendant’s account to the plaintiffs account, but it advised the plaintiff that it was not authorized to make any additional transfers because of its standard agreement with American Express merchants.

Rana contacted the defendant seeking repayment of $5133.96 in additional deposits that the processing company erroneously had paid into the defendant’s bank account. Rana provided the defendant with documentation for the erroneous deposits, including statements from American Express, and met with the defendant on several occasions to resolve the matter and to secure repayment of the misdirected funds. The defendant, however, would not agree to reimburse the plaintiff.

In March, 2008, Rana commenced this action against the defendant in small claims court as a self-represented party. In July, 2008, the defendant had the matter transferred to the regular docket of the Superior Court pursuant to Practice Book § 24-21. Rana obtained counsel, who filed a four count complaint alleging conversion, statutory theft, unjust enrichment and a CUTPA violation. On April 21, 2010, Rana filed an offer to settle his claims against the defendant for $5000 pursuant to General Statutes § 52-192a, but the defendant did not accept the offer within the applicable statutory time frame.

The case was tried to the court over the course of three days between October 6 and November 9, 2010. On the second day of trial, during cross-examination of Rana by the defendant, it was brought to light that the operative complaint incorrectly alleged that Rana had obtained the Wethersfield business from the defendant in 2006, when, in fact, the business had been obtained in 2001 by the plaintiff, not by Rana. Rana further testified that his wife, Farhana Y. Syed, was the plaintiffs sole member, and that he operated the business and was the plaintiffs agent for service. After the close of Rana’s case-in-chief, the court, citing General Statutes §§ 34-134 and 34-187, raised, sua sponte, the issue of whether Rana had standing to bring the action on behalf of his wife’s limited liability company. The court gave counsel until October 22, 2010, to file a memorandum explaining “how it is that [Rana] has standing to bring this action in his individual capacity.”

On October 22,2010, rather than briefing the standing issue, Rana’s counsel filed a motion pursuant to General Statutes § 52-109 and Practice Book § 9-20 seeking to substitute the plaintiff and Syed for Rana as the real parties in interest and for leave to amend the complaint. A proposed fourth amended complaint was submitted along with the motion. According to the motion, Rana was in charge of the plaintiff’s finances, he was the agent for service, and he ran “all managerial aspects of the business.” The motion further provided that Rana had a good faith belief that he was a part owner of the business and, thus, was personally entitled to seek repayment from the defendant. Rana’s counsel indicated that he also had had a good faith belief that Rana was the proper plaintiff based on Rana’s representations to him and the fact that Rana’s name appeared on credit card and bank documents. Finally, Rana’s counsel provided that the proposed substitution was necessary “for the determination of the real matter in dispute” because it now was apparent that the plaintiff was owed the monies erroneously transferred into the defendant’s account.

On October 28, 2010, the defendant filed an objection to the motion to substitute. He also filed a motion to dismiss pursuant to Practice Book § 10-30 et seq., claiming that the court lacked subject matter jurisdiction and a motion to dismiss pursuant to Practice Book § 15-8 claiming that Rana had failed to make out a prima facie case because he had “no individual right of action.” On November 1, 2010, the court denied the defendant’s motions to dismiss without comment and granted Rana’s motion to substitute Rana Automaster, LLC, as the plaintiff and for leave to amend the complaint. The court indicated that it had jurisdiction to consider the motion to substitute despite the fact that a motion to dismiss for lack of standing was pending. The court determined that Rana had commenced the small claims action in his own name by mistake, on the basis of an honest conviction, entertained in good faith, that he was the proper party to commence the action. The court further concluded that because the funds at issue in the case were payable to the plaintiff, the requested substitution was necessary for a determination of the real matters in dispute. The court found that the defendant would not be prejudiced by the substitution because the causes of action alleged in the complaint had not changed and the defendant’s ability to defend against the allegations therefore was unaffected.

The trial resumed on November 9, 2010, with the defendant’s presentation of evidence. On March 17, 2011, the trial court issued a memorandum of decision finding in favor of the plaintiff on the conversion, statutory theft and CUTPA counts. The court rendered judgment for the defendant on the unjust enrichment count. The court found that the plaintiff had proven damages of $5133.96, and awarded the plaintiff treble damages on the statutory theft count of $15,401.85 plus interest and attorney’s fees to be determined by the court after a hearing on April 4, 2011. On April 5, 2011, the court issued a decision in which it awarded the plaintiff an additional $1174.76 in offer of judgment interest and $10,000 in attorney’s fees. The defendant filed a motion to reargue and for reconsideration. The court reconsidered its decision, but it saw “no reason to depart from its conclusions in that decision.” This appeal followed.

I

The defendant first claims that the court improperly denied his motions to dismiss. According to the defendant, once it was raised by the court and in his motions to dismiss that Rana lacked the requisite legal standing to commence this action, the court lacked the authority to do anything other than to rule on the motions to dismiss, and the court exceeded its authority when it simultaneously considered and granted the motion to substitute the plaintiff as the real party in interest. The plaintiff argues that the court properly substituted it for Rana, thereby negating any standing problem that may have existed and, accordingly, properly denied the motions to dismiss. For the following reasons, we agree with the plaintiff.

The standard of review we apply when determining whether a court properly denied a motion to dismiss for lack of subject matter jurisdiction is well settled. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. . . . When the trial court draws conclusions of law, appellate review is plenary, and the reviewing court must decide whether the trial court’s conclusions are legally and logically correct.” (Citation omitted.) Bloom v. Dept. of Labor, 93 Conn. App. 37, 39, 888 A.2d 115, cert. denied, 277 Conn. 912, 894 A.2d 992 (2006). We farther recognize that “[t]he decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court. ... In reviewing the trial court’s exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness . . . and only if its action discloses a clear abuse of discretion is our interference warranted.” (Internal quotation marks omitted.) Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 760, 596 A.2d 1331 (1991).

As noted by the defendant, courts in this state repeatedly have stated that “[t]he issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010). It is similarly well settled that “[o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995); see also Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982) (“[w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction” [internal quotation marks omitted]).

In the present case, the court first raised the standing issue and asked the parties to submit briefs on the issue. Rather than submit a brief, Rana’s counsel filed a motion to substitute the plaintiff for Rana pursuant to § 52-109. The issue of lack of standing clearly was raised prior to the filing of the motion to substitute and, according to the defendant, the court was required to resolve the standing issue and, if standing was lacking, as it appears to have been in the present case, to dismiss the action for lack of subject matter jurisdiction rather than taking the “further step” of considering the motion to substitute. We conclude that § 52-109 permits the court to consider a motion to substitute in the face of a pending motion to dismiss.

In DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 998 A.2d 730 (2010), our Supreme Court discussed in some detail § 52-109, which provides: “When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.” The Supreme Court noted that “[o]ur rules of practice . . . permit the substitution of parties as the interests of justice require. . . . These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law .... General Statutes § 52-109 and [what is now] Practice Book § [9-20] allow a substituted plaintiff to enter a case [w]hen any action has been commenced in the name of the wrong person as plaintiff . . . .Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.” (Citation omitted; emphasis added; internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 150. The court further recognized that our rules regarding substitution of parties are analogous to the federal rules and that federal courts have observed “that [when] the change is made on the plaintiffs side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading. ... As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added .... Thus, an amendment substituting a new plaintiff [will] relate back if the added plaintiff is the real party in interest.” (Citation omitted; internal quotation marks omitted.) Id., 150-61. The DiLieto court also favorably cited federal law for the proposition that the substitution of a real party in interest as the plaintiff cures the lack of standing of the original plaintiff. Id., 151.

“[R]emedial statutes such as [§ 52-109] were intended to soften the otherwise harsh consequences of strict construction under the common law: Over-technical formal requirements have ever been a problem of the common law, leading [legislative bodies] at periodic intervals to enact statutes . . . [that], in substance, told the courts to be reasonable in their search for technical perfection. . . . Under § 52-109, substitution is permitted only when the trial court determines that the action was commenced in the name of the wrong plaintiff through mistake, which properly has been interpreted to mean an honest conviction, entertained in good faith and not resulting from the plaintiffs own negligence that she is the proper person to commence the [action]. . . . [0]nce such a determination is made . . . the substituted party is let in to carry on a pending suit, and is not regarded as commencing a new one. After he is substituted he is . . . treated and regarded for most purposes just as if he had commenced the suit originally. The writ, the complaint, the service of process, attachment made, bonds given, the entry of the case in court, the pleadings if need be, in short all things done in the case by or in favor of the original plaintiff . . . remain for the benefit of the plaintiff who succeeds him, as if done by and for him originally and just as if no change of parties had been made. So far as the defendant is concerned, the same suit upon the same cause of action, under the same complaint and pleadings substantially in most cases, goes forward to its final and legitimate conclusion as if no change had been made.” (Citations omitted; internal quotation marks omitted.) Id., 151-62.

On the basis of the Supreme Court’s discussion in DiLieto of the remedial purpose underlying § 52-109, we conclude that it is well within the authority of a court to permit a substitution of plaintiffs in lieu of dismissing an action provided that the court determines that the conditions set forth in § 52-109 have been met. We also agree with the reasoning of a number of trial court decisions that have considered the same jurisdictional conundrum now before us that “if § 52-109 is to have the ameliorative purpose for which it was intended, then even assuming that the specter of subject matter jurisdiction rears its head, the statute is meant to give the trial courts jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs.” (Internal quotation marks omitted.) Wilson v. Zemba, 49 Conn. Sup. 542, 553, 896 A.2d 862 (2004), citing DiLieto v. County Obstetrics & Gynecology Group, P.C., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-97-0150435-S (January 31, 2000) (26 Conn. L. Rptr. 345), rev’d on other grounds, 265 Conn. 79, 828 A.2d 31 (2003). As the trial court in DiLieto aptly stated in its decision: “The legislature’s provision of this statutory remedy would be completely undermined by any rule requiring the immediate dismissal for lack of subject-matter jurisdiction of any action commenced in the name of the wrong person as plaintiff. The statute, as an exercise of the legislature’s constitutional authority to determine [our court’s] jurisdiction; [Conn. Const., art. V, § 1]; must be seen as an extension of that jurisdiction for the limited purpose of deciding a proper motion to substitute.” DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 26 Conn. L. Rptr. 348.

In the present case, the court found in its November 1, 2010 decision that the criteria necessary to permit a substitution pursuant to § 52-109 were satisfied. The court found that Rana had commenced the small claims action in his name by mistake, in ignorance of General Statutes §§ 34-134, 34-186 and 34-187. On the basis of the evidence of Rana’s extensive role in operating the plaintiffs Wethersfield business, the court found that he had an honest conviction, entertained in good faith and not resulting from his own negligence, that he was the proper party to commence the action. The court found that because the funds allegedly being withheld by the defendant were payable to the plaintiff, the requested substitution certainly was necessary for a determination of the real matters in dispute. Finally, the court found that allowing a substitution in this case would not prejudice the defendant because the causes of action alleged in the complaint would not change and the defendant’s ability to defend against the allegations would not be affected. The defendant has provided nothing from which we can determine that the court’s findings were clearly erroneous. Once the plaintiff was substituted for Rana, the standing issue that the court had identified and on which the defendant had relied as the basis for his motions to dismiss was remedied. Accordingly, we conclude that the court’s decision to deny the defendant’s motions to dismiss was both legally and logically correct.

II

The defendant next claims that the trial court erred by finding him liable for statutory theft pursuant to § 62-564. Specifically, the defendant argues that there was no evidence presented at trial of a theft in this case or that the defendant had stolen property from the plaintiff or knowingly received or concealed stolen property, and, therefore, the court erred by imposing liability for statutory theft. We disagree.

The following standard of review is applicable in cases in which a party challenges the sufficiency of the evidence. “[W]e must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in fight of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Citations omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 322, 796 A.2d 516 (2002).

Section 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.” We consistently have held that “[s]tatutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119.” (Internal quotation marks omitted.) Blackwell v. Mahmood, 120 Conn. App. 690, 700, 992 A.2d 1219 (2010); see also Lauder v. Peck, 11 Conn. App. 161, 165, 526 A.2d 539 (1987) (“[t]he word ‘steals’ as used in ... § 52-564 is synonymous with the definition of larceny under . . . § 53a-119”). “A person commits larceny within the meaning of ... § 53a-119 when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. An owner is defined, for purposes of § 53a-119, as any person who has a right to possession superior to that of a taker, obtainer or withholder. General Statutes § 53a-118 (a) (5).” (Internal quotation marks omitted.) Blackwell v. Mahmood, supra, 700. “Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant’s conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” (Internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn. App. 517, 521, 705 A.2d 215 (1998).

In order to prove liability for statutory theft, therefore, the plaintiff was not required to present evidence that the funds in question had been stolen by the defendant or anyone else; it only had to show that the defendant had engaged in conduct that was synonymous with a larceny. Section 53a-119 (4) provides in relevant part that “[a] person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of larceny if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to it.” Accordingly, the defendant could be found liable for statutory theft if he wrongfully withheld funds that rightfully belonged to the plaintiff with the intent to deprive it of those funds or to appropriate the funds for himself or his business.

Here, the court found that the defendant had possession of funds that rightfully belonged to the plaintiff as compensation for services performed at the plaintiffs Wethersfield business. That finding is supported by the American Express documents entered into evidence and the testimony of an American Express representative, both of which established that monies for services performed at the plaintiffs Wethersfield business that should have been deposited into the plaintiffs account mistakenly had been deposited into the defendant’s business account. The court noted that the defendant’s initial possession of those funds may not have been wrongful and, in fact, partly was due to Rana’s negligence in providing the processing company with the defendant’s former establishment number; nevertheless, it concluded that the defendant wrongfully refused to return the money even after being provided with documentation by Rana that established beyond any doubt that the funds at issue had been deposited in error into the bank account of the defendant’s limited liability company. Rana testified that he had met with the defendant on several different occasions prior to commencing this action and had provided the defendant with documents showing the erroneous deposits and that the defendant had even spoken with an American Express representative about the funds misdirected to his account. The court found that, given the defendant’s knowledge concerning the source and disposition of the funds in question, the defendant’s continued failure to return the funds to the plaintiff constituted an intentional decision on his part to deprive the plaintiff of its use of the funds. Our review of the record reveals that the factual findings of the court, as set forth in the court’s memorandum of decision, are supported by evidence presented at trial and, as a matter of law, are sufficient to support the imposition of liability for statutory theft.

III

The defendant’s third claim on appeal is that the trial court improperly awarded the plaintiff $10,000 in attorney’s fees. In particular, the defendant suggests that the plaintiff had sought attorney’s fees pursuant to only § 52-192a, which limits the award of attorney’s fees to $350, and that the court erred in awarding attorney’s fees pursuant to General Statutes § 52-251a. The defendant’s arguments are without merit.

“We review the award of attorney’s fees for a clear abuse of discretion. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. . . . [W]e may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion . . . .” (Internal quotation marks omitted.) Krack v. Action Motors Corp., 87 Conn. App. 687, 694-95, 867 A.2d 86, cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005).

As the defendant correctly sets forth in his brief, “[a]s a substantive matter, [t]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” (Internal quotation marks omitted.) Maris v. McGrath, 269 Conn. 834, 844, 850 A.2d 133 (2004). The defendant argues that the plaintiff filed an offer of compromise pursuant to § 52-192a and that, pursuant to § 52-192a, “[i]f the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiffs offer of compromise . . . [t]he court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars . . . .” General Statutes § 52-192a (c). The defendant suggests that the offer of compromise was the only pleading filed by the plaintiff pursuant to which the court could have awarded attorney’s fees, and, therefore, the court abused its discretion by awarding $10,000 in attorney’s fees, which greatly exceeded the three hundred fifty dollar limit.

In the ad damnum clause of the operative complaint, however, the plaintiff expressly sought an award of attorney’s fees pursuant to both General Statutes §§ 52-251a and 42-1 lOg (d). The court, in its decision awarding attorney’s fees, expressly found that the plaintiff was entitled to reasonable attorney’s fees pursuant to § 52-251a, which provides: “Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney’s fees to be taxed by the court. ” The present action was commenced as a small claims matter and was transferred to the regular docket pursuant to the defendant’s motion.

The court found that, by transferring the case from small claims to the regular docket, the matter was transformed from a relatively straightforward case to a “pitched legal battle,” which is precisely what § 52-251a was intended to deter. Krack v. Action Motors Corp., supra, 87 Conn. App. 697; see also Burns v. Bennett, 220 Conn. 162, 169, 595 A.2d 877 (1991) (“[§] 52-251a thus creates a substantial and effective disincentive for a defendant who might otherwise raise defenses bordering on the frivolous in an effort to gain a tactical advantage over a plaintiff by obtaining a transfer of a case from the Small Claims division”). As the court found in its memorandum of decision on the merits, the small claims complaint “simply prayed for the return of [the mistakenly deposited] funds,” but, once transferred to the regular docket, the matter was transformed into a four count action with a counterclaim. Although the court declined to find that the matter was transferred in bad faith, it did conclude that the defendant’s defenses bordered on frivolous. The defendant does not challenge the reasonableness of the attorney’s fees awarded, only that the court lacked the authority to make such an award. Because the plaintiff prevailed at trial, we conclude that it was well within the court’s discretion under § 52-251a to award the plaintiff reasonable attorney’s fees.

IV

The defendant next claims that the court improperly found that the defendant individually was liable to the plaintiff despite the fact that he operated his business through a limited liability company. In support of his claim, the defendant primarily relies on General Statutes §§ 34-133 (a) and 34-134. The defendant maintains that it was the legislature’s intent to eliminate individual liability for members of limited liability companies, except in cases in which the limited liability companies provide professional services. We disagree. Rather, we agree with the court that the defendant was not shielded from liability by his limited liability company.

Whether the defendant personally could be found hable under the facts of this case in the face of §§ 34-133 and 34-134 is an issue of statutory construction over which our review is plenary. See C. R. Klewin Northeast, LLC v. State, 299 Conn. 167, 175, 9 A.3d 326 (2010). Section 34-133 (a) provides in relevant part that “a person who is a member or manager of a limited liability company is not hable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.” Section 34-134 provides in relevant part that “[a] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company . . .

Our Supreme Court has held that the legislature’s enactment of §§ 34-133 and 34-134 “evinces no legislative intent to eliminate the right to impose liability on a member or manager of a limited liability company who has engaged in or participated in the commission of tortious conduct. Rather, the statute merely codifies the well established principle that an officer of a corporation does not incur personal liability for [the corporation’s] torts merely because of his official position.” (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 137, 2 A.3d 859 (2010). It is equally well established, however, that when “an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is hable to third persons injured thereby. . . . Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is hable to third persons injured thereby, even though liability may also attach to the corporation for the tort.” (Internal quotation marks omitted.) Id., 132, citing Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 141-42, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006).

In the present case, a review of the operative complaint shows that the plaintiff sought to impose liability on the defendant on the basis of his personal conduct. The court found that this case did not involve “pierc[ing] the corporate veil” because it involved tortious conduct on the part of the individual defendant. Specifically, the court found that even after the plaintiff presented the defendant with documentation that “demonstrated beyond a doubt that the funds had been deposited to the bank account of the limited liability company through which [the defendant] operated the Southington business,” the defendant wrongfully chose to withhold repayment of the misdirected funds. The court also noted the defendant’s testimony that he had unfettered access to the bank account of his limited liability company.

We conclude that the court did not violate §§ 34-133 or 34-134. Under the facts of the present case, we cannot conclude that it was reversible error for the court to hold the defendant personally hable when it was wholly within the defendant’s power to return the misdirected funds to the plaintiff and he wrongfully chose not to do so.

V

The defendant next claims that the court erroneously found that the defendant committed conversion because he never made an “absolute and unqualified refusal” to return the plaintiffs funds, and all he ever wanted was for American Express to supply him with written confirmation “to clear the smoke and confusion that engulfed him even through the trial, all of which was created by the plaintiff and not him.” The defendant’s claim is without merit.

When a defendant is claiming that the record does not contain sufficient evidence to support a finding of conversion, “[t]he applicable standard of review is whether the court’s conclusion that the evidence supported the finding of conversion was clearly erroneous.” Aubin v. Miller, 64 Conn. App. 781, 796, 781 A.2d 396 (2001). “Conversion occurs when one, without authorization, assumes and exercises the right of ownership over property belonging to another, to the exclusion of the owner’s rights.” (Internal quotation marks omitted.) Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994). It is possible for a conversion to arise subsequent to an initial rightful possession. Id.

The evidence that supported the court’s conclusion that the defendant was hable for statutory theft, discussed earlier in this opinion, also supports the court’s finding of conversion. Although the court found that the defendant’s initial possession of the funds at issue was not wrongful, it also found that the defendant’s continued possession after Rana provided him with documentation establishing that the funds had been deposited into his business’ bank account in error was wrongful and amounted to an unauthorized possession of those funds. The defendant claims that to be found hable for conversion he needed to make an “absolute and unqualified refusal” to return the plaintiffs funds. It is undisputed that “[w]here goods originally in the rightful possession of a person are wrongfully retained by him without the exercise of dominion over them, a demand and its refusal afford the necessary evidence of a conversion.” Molski v. Bendza, 116 Conn. 710, 711, 164 A. 387 (1933). The court in the present case specifically found that Rana, the plaintiffs agent, on several occasions demanded the return of the money, and the defendant’s failure to return the funds evinced his unqualified refusal to comply. The court’s conclusion that the evidence supported the finding of conversion was not clearly erroneous.

VI

Finally, the defendant claims that the court improperly found that there was a CUTPA violation. In addition to restating his argument that he is immune from liability by virtue of his limited liability company, which we already have rejected, the defendant asserts that he “was completely passive and engaged in no action that may be deemed to be immoral, unethical, oppressive or unscrupulous . . . .” We disagree with that assertion.

“It is well settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Chamlink Corp. v. Merritt Extruder Corp., 96 Conn. App. 183, 189, 899 A.2d 90 (2006).

“[General Statutes §] 42-110b (a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. ... All three criteria do not need to be satisfied to support a finding of unfairness.” (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010).

The court found that the plaintiff had proven a CUTPA violation because “[t]he defendant’s theft of the plaintiffs funds violates the statutes proscribing conversion and theft and, by any standard, qualifies as ‘immoral, unethical, oppressive [and] unscrupulous.’ ” Having already concluded that the court properly determined that the defendant was liable for statutory theft and conversion, we cannot conclude that the court erroneously relied on the same as the basis for its finding that the defendant had committed an unfair or deceptive act as proscribed under CUTPA.

The judgment is affirmed.

In this opinion the other judges concurred.

       As discussed later in the opinion, although this action originally was commenced by the named plaintiff, Anees U. Rana, the trial court later granted a motion to substitute Rana Automaster, LLC, as the real plaintiff in interest in accordance with General Statutes § 52-109. Accordingly, we refer to Rana Automaster, LLC, as the plaintiff throughout this opinion.

       According to the record, an establishment number is the account number that American Express assigns in order to identify each merchant and to aid in the processing of payments to the merchant.

       The defendant filed a counterclaim alleging invasion of privacy and a CUTPA violation. The court, following the defendant’s presentation of evidence in support of his counterclaim, rendered judgment on the counterclaim in favor of the plaintiff. The defendant does not challenge the court’s judgment on the counterclaim as part of this appeal.

       General Statutes § 34-134 provides: “A member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member’s or manager’s right against or liability to the limited liability company or as otherwise provided in an operating agreement.”

       General Statutes § 34-187 (a) provides: “Except as otherwise provided in an operating agreement, suit on behalf of the limited liability company may be brought in the name of the limited liability company by: (1) Any member or members of a limited liability company, whether or not the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in interest of the members, unless the vote of all members shall be required pursuant to subsection (b) of section 34-142; or (2) any manager or managers of a limited liability company, if the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote required pursuant to section 34-142.”

       The defendant raised the issue of Rana’s standing as a special defense, but he never filed a motion to dismiss on that basis prior to the court’s raising the issue at trial.

       The underlying premise for both of the defendant’s motions to dismiss was that Rana was not the proper party to commence the action before the trial court. According to the defendant, Rana’s lack of standing prevented the trial court from acquiring subject matter jurisdiction and also meant that Rana could not have established a prima facie case as to the causes of actions alleged. On appeal, the defendant briefed the court’s denial of his motions to dismiss as a single claim, focusing on Rana’s lack of standing. The defendant does not address the evidence presented or any aspect of a failure to make out a prima facie case in accordance with Practice Book § 15-8. Accordingly, in reviewing the court’s denial of the defendant’s motions to dismiss, we limit our review to the issue of standing.

       It was not until after Rana’s motion to substitute was filed that the defendant filed his motions to dismiss.

       In addressing this claim, the defendant also raises his belief that the court erred in determining that he had committed conversion because the plaintiff had unclean hands. The defendant, however, does nothing more than state that claim. To obtain appellate review, claims require adequate briefing, and “[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Dichello v. Holgrath Corp., 49 Conn. App. 339, 348 n.8, 715 A.2d 765 (1998).


author: SCHALLER, J. ROBINSON, J.,

text:
    ALETA DEROY v. ESTATE OF EDITH BARON ET AL. GLEN BARON v. ALETA DEROY ET AL.
    (AC 32902)
    (AC 33659)
    Robinson, Alvord and SchaUer, Js.

      Argued February 1-
    officially released June 5, 2012

      Beth A. Steele, for the appellant in both cases (defendant Jeanne Baron).

      Nancy E. Wildes, for the appellee (plaintiff in the first case, defendant in the second case).

      Glen Baron, pro se, the appellee (defendant in the first case, plaintiff in the second case).
   Opinion

SCHALLER, J.

The defendant Jeanne Baron appeals from the judgments of the trial court disallowing admission of a will executed by her mother, the decedent, Edith Baron, due to lack of testamentary capacity. On appeal, the defendant contends that the trial court applied a higher legal standard to the question of testamentary capacity than is required under Connecticut law. We agree with the defendant and, accordingly, reverse the judgments of the trial court.

The following facts and procedural history are relevant to the present appeal. The decedent died on July 20, 2006. She was survived by three children: Aleta Deroy, Jeanne Baron and Glen Baron. Two documents were submitted to the Probate Court purporting to be the last will and testament of the decedent. The first will, dated February 12, 2002, devised the entirety of the decedent’s estate, including the decedent’s interest in an eighty-six acre farm located at 2247 Glasgo Road in the town of Griswold, to Deroy and Glen Baron in equal shares. The second will, dated July 3, 2002, devised the decedent’s interest in the farm to Jeanne Baron and provided that the residue and remainder of her estate should be distributed equally to each child. Deroy and Glen Baron contested the admission of the second will, arguing, inter alia, that the decedent lacked testamentary capacity on July 3, 2002. The Probate Court disagreed and, accordingly, admitted the second will as the last will and testament of the decedent. Deroy and Glen Baron filed separate appeals from that decision to the trial court.

The trial court revisited the question of testamentary capacity in a de novo proceeding. A two day trial commenced on November 3, 2010. At the conclusion of those proceedings, the court issued a brief oral decision concluding that the decedent was “incompetent” to execute a will on July 3, 2002. The court explained its decision as follows: “On June 10, 2002, at the request of the decedent’s attorneys, Dr. Christopher Tolsdorf, a highly qualified neuropsychologist, conducted a very thorough examination of the decedent to determine whether she was competent to make her own legal decisions. Dr. Tolsdorf concluded his report by saying: ‘Given her cognitive impairments, it is unlikely that she would be able to make fully informed, thoughtful judgments regarding complex financial issues.’ On the [witness] stand, he testified, based upon my questioning of him after he completed his testimony, that he felt that she was incompetent on June 10 and also was incompetent on July 3, the date of the execution of her will. He also felt that she needed a conservator, which is obviously an indication of incompetency. Based on the foregoing, the court finds that the decedent was incompetent on July 3, 2002, when she executed her win.”

On appeal, the defendant claims that the trial court applied an incorrect standard of law to the question of testamentary capacity. Specifically, the defendant claims that the trial court applied a legal standard that would require a testator to possess the mental acuity necessary to make decisions regarding “ ‘complex financial issues.’ ”

“[Wjhether the court applied the correct legal standard is a question of law subject to plenary review.” (Internal quotation marks omitted.) Emrich v. Emrich, 127 Conn. App. 691, 702, 15 A.3d 1104 (2011); see also Schirmer v. Souza, 126 Conn. App. 759, 764, 12 A.3d 1048 (2011); Wieselman v. Hoeniger, 103 Conn. App. 591, 598, 930 A.2d 768, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). When an incorrect legal standard is applied, the appropriate remedy is to reverse the judgment of the trial court and to remand the matter for further proceedings. See St. Joseph’s Living Center, Inc. v. Windham, 290 Conn. 695, 765, 966 A.2d 188 (2009) (Schaller, J., concurring in part and dissenting in part).

The standard for testamentary capacity is well established. “To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of a will, at the very time she executed it.” (Internal quotation marks omitted.) Sanzo’s Appeal from Probate, 133 Conn. App. 42, 50, 35 A.3d 302 (2012); see also Atchison v. Lewis, 131 Conn. 218, 219-20, 38 A.2d 673 (1944). In Stanton v. Grigley, 177 Conn. 558, 418 A.2d 923 (1979), our Supreme Court stated: “The burden of proof in disputes over testamentary capacity is on the party claiming under the will. . . . While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with his proof, and only then does the burden shift to the opponents to prove incapacity.” (Citations omitted.) Id., 564.

It is equally clear that an individual may possess the mental capacity necessary to make a will although incapable of transacting business generally. See Turner’s Appeal, 72 Conn. 305, 317, 44 A. 310 (1899) (“Some courts have held the mental ability to execute a valid deed or contract to be the proper measure of testamentary capacity. . . . Others, that the possession of sufficient mind and memory for the transaction of ordinary business is the true test of capacity to make a valid will. ... In this State one may make a valid will though mentally incapable of transacting business generally.” [Citations omitted.]); see also 95 C.J.S., Wills § 7 (2011) (“A will is not a contract. In evaluating mental capacity, the courts apply different standards for contracts and for testamentary instruments. The minimum level of mental capacity required to make a will is less than that necessary to make a contract or a deed .... Likewise, less mental capacity is required for the testator to make a will than to carry on business transactions generally, or ordinary business affairs. Thus, the ability to transact business is not a true test of testamentary capacity; the ability to transact complicated or important business, or even ordinary business, is not the legal standard of testamentary capacity. A person may execute a valid will, even if he or she is not competent to transact ordinary, everyday affairs.”); 79 Am. Jur. 2d, Wills § 63 (2002) (“The law recognizes degrees of mental unsoundness, and not every degree of mental unsoundness or mental weakness is sufficient to destroy testamentary capacity. Absolute soundness of mind and memory in every respect is not essential to testamentary capacity. There is no particular degree of mental acumen which may be set up to serve as a standard for testamentary capacity. Testamentary capacity is not the same as the ability to transact ordinary business, or the capacity to execute a deed or contract.”).

In the present case, the trial court’s conclusion that the decedent was “incompetent” on July 3, 2002, was premised entirely on Tolsdorfs conclusion that the decedent was unable “ ‘to make fully informed, thoughtful judgments regarding complex financial issues’ ” and on Tolsdorfs belief that the decedent needed a conservator to manage her affairs. While the standard applied by the trial court was not explicitly stated in its decision, the court’s exclusive recitation of and reliance on Tolsd-orfs conclusions demonstrate that the court applied an incorrect standard to the question of testamentary capacity, namely, a standard that requires a testator to be able to comprehend “ ‘complex’ ” financial transactions. This standard is inconsistent with the requirements for testamentary capacity set forth by our Supreme Court. See Turner's Appeal, supra, 72 Conn. 317.

Although the dissent is correct to note that, under some circumstances, the failure of an appellant to seek an articulation requires the presumption that “the trial court considered all of the facts before it and applied the correct legal standard”; State v. Mathis, 59 Conn. App. 416, 422 n.3, 757 A.2d 55, cert. denied, 254 Conn. 941, 761 A.2d 764 (2000); the application of this presumption has been limited by our Supreme Court to cases in which the trial court’s reasoning is unclear or ambiguous. See Walton v. New Hartford, 223 Conn. 155, 164, 612 A.2d 1153 (1992) (applying presumption when “there is nothing in the record to indicate that the court did not consider the appropriate principles of law governing easements in Connecticut”); Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482, 586 A.2d 1157 (1991) (“[w]here an appellant has failed to avail himself of the full panoply of articulation and review procedures, and absent some indication to the contrary, we ordinarily read a record to support, rather than to contradict, atrial court’s judgment” [emphasis added]). No ambiguity exists in the present case. The trial court concluded that the decedent was “incompetent” because she was unable to make decisions with respect to complex financial transactions and needed a conservator. The trial court’s implicit — and exclusive — adoption of this reasoning sufficiently demonstrates that the correct legal standard was not applied to the issue of testamentary capacity. The defendant, under such circumstances, had no duty to file a motion for articulation.

The judgments are reversed and the cases are remanded for further proceedings consistent with this opinion.

In this opinion ALVORD, J., concurred.

ROBINSON, J.,

dissenting. I respectfully dissent from the majority’s decision to reverse the trial court’s judgment disallowing the admission of the will of the decedent, Edith Baron, dated July 3, 2002. I believe that because the court did not set forth the standard it applied in determining that the decedent lacked testamentary capacity and because it is not clear from the record as to which standard the court actually applied, we should presume that the court was cognizant of the appropriate standard and applied it correctly. I also conclude that the court’s determination that the decedent lacked testamentary capacity when she executed a will on July 3,2002, was not clearly erroneous. I would therefore affirm the judgment of the trial court.

“What constitutes testamentary capacity is a question of law.” City National Bank & Trust Co.’s Appeal, 145 Conn. 518, 521, 144 A.2d 338 (1958). When a claim presents a question of law, our review is plenary. State v. Brown, 299 Conn. 640, 650, 11 A.3d 663 (2011).

I believe that we should presume that the trial corut was cognizant of the proper standard to apply in determining whether the decedent had testamentary capacity when she executed her will on July 3, 2002. See State v. Koslik, 116 Conn. App. 693, 704, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009). “Our Supreme Court has directed that where the factual or legal basis of a trial court’s decision is unclear, the appellant should file a motion for articulation. In the absence of such action, the reviewing court should presume that the trial court considered all of the facts before it and applied the correct legal standard.” State v. Mathis, 59 Conn. App. 416, 422 n.3, 757 A.2d 55, cert. denied, 254 Conn. 941, 761 A.2d 764 (2000).

The majority asserts that we should presume that the trial court was cognizant of the appropriate standard only where the trial court’s reasoning was unclear or ambiguous, and concludes that no such ambiguity exists in this case. While I agree with this assertion in general, in this specific case, however, I believe that there was an ambiguity in the court’s decision and, therefore, the presumption is not applicable. The court did not specifically set forth the standard it used in determining whether the decedent had testamentary capacity when executing her will. Rather, in its oral decision, the court simply noted elements of the testimony of Christopher Tolsdorf, a neuropsychologist, in reaching its conclusion that the decedent lacked testamentary capacity. Although the court did recite certain elements of Tolsdorf s testimony in its oral decision, this does not mean that it did not consider the remainder of the evidence presented and did not apply the correct testamentary capacity standard. On the basis of the record presented, it is unclear what standard the court applied and how the court evaluated Tolsdorf s testimony in regard to such standard. Further, no motion for articulation or motion for reconsideration was filed after the court issued its decision. In the absence of a motion for articulation, “the reviewing court should presume that the trial court considered all of the facts before it and applied the correct legal standard.” Id.

Simply noting elements of Tolsdorf s testimony on the record is insufficient to demonstrate that the court applied the wrong standard for establishing testamentary capacity. The majority fails to note the other evidence presented to the court, namely, that the decedent was suffering from severe dementia, did not understand that she could not dispose of her property evenly while still giving her daughter, Jeanne Baron, the largest asset and that the will signing was brought to a halt when there was a question of the decedent’s testamentary capacity. Simply because the court did not reference this evidence in its short oral decision does not mean that the court did not consider it and that it did not impact the court’s determination. When the record does not reveal the basis of the Superior Court’s decision, “[w]e do not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary.” (Internal quotation marks omitted.) State v. Baker, 50 Conn. App. 268, 275 n.5, 718 A.2d 450, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). Because I believe that the standard the court employed in reaching its decision is unclear, I would presume that the court was cognizant of the appropriate standard to be applied in determining testamentary capacity.

Because I conclude that the court was cognizant of the appropriate standard to apply, I next address Jeanne Baron’s claim that the court’s determination that the decedent lacked testamentary capacity when she executed a will on July 3,2002, was clearly erroneous based on the evidence presented at trial. “To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of a will, at the very time she executed it. . . . Whether she measured up to this test is a question of fact for the trier.” (Citation omitted.) City National Bank & Trust Co.’s Appeal, supra, 145 Conn. 521. “Questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence . . . we give great deference to its findings.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).

There is sufficient evidence in the record to support the court’s determination that the decedent lacked testamentary capacity on July 3, 2002. Tolsdorf testified that the decedent suffered from “significant dementia” and that she could not manage her affairs or her bills on her own. Tolsdorf s testimony also indicated that the decedent seemed confused about the distribution of her estate. Specifically, Tolsdorf testified that he asked the decedent “what her plans were regarding her bounty, and she said, well, all her three children were going to share in it equally, and then she indicated that the farm was going to go to one of the children, and I said, well, is the farm the biggest thing you own? And she said, yes, and I said, well, how are you then going to divide things equally if you give it all to one child? She didn’t see a problem with that. She didn’t understand why that would be difficult or problematic.” Further, when asked if an individual suffering from dementia would have some days that were different from others, Tolsdorf responded that “[tjhat degree of variability shrinks as the dementia progresses, and the further along you get in the dementia, the less variability you’re going to see on that. . . . But at the stage she was in, I think she was approaching that stage where the degree of day-to-day variability was already shrinking. I would not expect to see a lot of day-to-day variability with that.” Tolsdorf further testified that “[i]t’s my professional opinion that given the degree of her cognitive impairment, she would have not been able to fully understand the implications of what she was doing in terms of signing something like a will.” When asked by the court if the decedent was incompetent on the day he examined her, Tolsdorf responded in the affirmative. Tolsdorf also testified that the decedent was likely incompetent on July 3, 2002, as well, the day the second will was executed.

Furthermore, Louis Button, the attorney present at the will signing on July 3, 2002, also testified before the trial court. Button testified that he stopped the will signing “because I had an impression that there was some confusion on [the decedent’s] part.” Button testified that after halting the will signing, he spoke with another attorney in his firm to voice his concern about the decedent. The other attorney questioned the decedent about the will and apprised Button that he could have the decedent sign the will, which he did. On the basis of the foregoing, I cannot conclude that the court’s determination, that the decedent lacked testamentary capacity when she executed a will on July 3, 2002, was clearly erroneous. I would therefore affirm the judgment of the trial court.

For the foregoing reasons, I respectfully dissent.

       On December 3, 2008, Aleta Deroy, a daughter of the decedent, Edith Baron, filed an appeal in the Superior Court, challenging the decision of the Probate Court to admit her mother’s -will, dated July 3, 2002. Deroy asserted, inter alia, that her mother lacked the legal capacity to make that will. Jeanne Baron and Glen Baron, children of the decedent, and Elias Baron, the son of Jeanne Baron and grandson of the decedent, also were parties to that appeal.
      In a separate appeal to the Superior Court, Glen Baron on December 2, 2008, also challenged the Probate Court’s admission of his mother’s July 3, 2002 will. Deroy and Jeanne Baron also were parties to Glen Baron’s appeal. The Superior Court consolidated both appeals and issued a ruling in each appeal. Thereafter, Jeanne Baron filed separate appeals to this court, which we consolidated.

       The decedent did not possess a fee simple interest in the farm on the date of her death. On February 3, 2002, the decedent executed a deed transferring her interest in the farm to Jeanne Baron and herself in survivor-ship. Nine days later, the decedent quitclaimed her interest in the property to John Duggan, an attorney, who immediately transferred the same interest back to the decedent. Consequently, on the date of the decedent’s death, Jeanne Baron and the decedent owned the farm as tenants in common. See General Statutes § 47-14c (“a conveyance of any interest or interests in any joint tenancy by less than all of the joint tenants to a person or persons other than one of the remaining joint tenants severs the joint tenancy as to the interest or interests so conveyed and the grantee or grantees thereof shall hold the interest or interests as tenant or tenants in common with the remaining joint tenant or tenants”); see also Liscio v. Liscio, 204 Conn. 502, 505-506, 528 A.2d 1143 (1987) (joint tenant’s quitclaim deed to third party extinguished joint tenancy).

       The record reveals the following details regarding the underlying cause of the disagreement between the parties and the origin of the decedent’s two wills. The decedent’s husband, Eugene Baron, died unexpectedly on December 30,2001. In January, 2002, the relationship between Jeanne Baron and Deroy deteriorated after Jeanne Baron failed to attend Eugene Baron’s funeral. At about the same time, the decedent moved from the marital residence to the home of her daughter, Deroy. While she lived at this location, the decedent entered into various real estate transactions relating to the farm; see footnote 2 of this opinion; and executed the will dated February 12, 2002. In April, 2002, the decedent returned to the marital residence to live with her daughter, Jeanne Baron. Two months later, on July 3, 2002, the decedent executed the second will.

       The majority concludes that a motion for articulation was unnecessary because the decision was not ambiguous. I believe, however, that the decision was ambiguous, and that an articulation would have been beneficial in this case due to the claim that the trial court applied the wrong standard in determining testamentary capacity. I disagree with the majority’s conclusion that the standard that the court used in making its determination is clear from the record presented, as the court issued an oral decision consisting of only a few sentences and at no point stated the standard to be applied.