author: BEAR, J.

text:
    RICHARD A. DANZIG, TRUSTEE v. PDPA, INC., ET AL.
    (AC 31456)
    Lavine, Alvord and Bear, Js.

      Argued September 20
    officially released November 30, 2010

      Ahmed A. Dadi, pro se, and Patricia E. Dadi, pro se, the appellants (defendants).

      Robert H. Weinstein, for the appellant (defendant Mortgage Company, L.L.C.).

      Timothy P. Pothin, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant Ahmed A. Dadi (Ahmed) appeals from the summary judgment and the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Richard A. Danzig, trustee for the Defined Benefit Pension Trust. The defendant Patricia Dadi (Patricia) also appeals from the summary judgment rendered by the trial court in favor of the plaintiff. On appeal, the defendants claim that the court improperly: (1) rendered summary judgment against them, as guarantors, despite the plaintiffs having withdrawn the complaint as to them, (2) granted the plaintiffs motions for summary judgment and for foreclosure despite the plaintiffs noncompliance with Practice Book § 17-44, (3) did not require the plaintiffs appraiser to testily and (4) exhibited judicial bias against Ahmed and all pro se parties in general. We affirm the judgment of the trial court.

The following relevant facts and complicated procedural history are gleaned from the record. On May 9, 2007, PDPA, Inc. (PDPA), and the plaintiff entered into a commercial arrangement. The plaintiff agreed to lend PDPA $1.3 million; PDPA signed a promissory note in that amount, which was secured by two parcels of land that it owned in Glastonbury, a 17.48 acre parcel and a 26.67 acre parcel (mortgaged property). Patricia, president and the alleged sole shareholder of PDPA, and Ahmed, vice president and agent for service of PDPA, executed a written guaranty of PDPA’s obligation on the note to the plaintiff. The note matured on May 8, 2008.

On July 28,2008, the plaintiff filed the present foreclosure action in Superior Court, alleging that PDPA had defaulted on the note and seeking a judgment of strict foreclosure of the mortgaged property and a deficiency judgment against PDPA and the defendants. The return date was August 12, 2008. On September 4, 2008, attorney Kevin L. Mason filed a general appearance for PDPA. On November 6,2008, the plaintiff filed a motion for default against PDPA for failure to disclose a defense. On November 7, 2008, the defendants each separately filed an answer, special defenses and a counterclaim to the plaintiffs complaint, and, on November 10, 2008, Patricia filed an answer and disclosure of defenses on behalf of PDPA. Although neither of the defendants is an attorney, they argued that they should be permitted to represent PDPA in the foreclosure action, and, although Mason previously had filed his appearance for PDPA, the defendants argued that he was not hired for purposes of litigation and that his representation was limited. The court denied the defendants permission to represent PDPA, but it did give them two weeks to secure different counsel. On December 8, 2008, it granted the plaintiffs motion for default for failure to disclose a defense as against PDPA.

On December 5, 2008, PDPA transferred by warranty deed its rights, title and interest in the mortgaged property to Ahmed. Also on that date, Ahmed moved to be substituted as the party defendant in place of PDPA, which motion was denied by the court on December 8, 2008. On December 29, 2008, Ahmed moved to be made a party defendant in addition to PDPA. On January 15, 2009, the plaintiff withdrew his complaint against the defendants, thus effectively removing them from the plaintiffs case, although the defendants each had a counterclaim that remained pending against the plaintiff. On May 6, 2009, the court granted the motion of Ahmed to be named a party defendant as the new record owner of the mortgaged property. Thereafter, on May 11, 2009, the plaintiff filed an amended complaint to reflect Ahmed’s ownership of the mortgaged property. On May 12, 2009, Ahmed, specifically as record owner of the mortgaged property, filed an answer, special defenses and a counterclaim. Ahmed, specifically as guarantor on the note, filed a separate amended answer, special defenses and a counterclaim in response to the plaintiffs amended complaint, although no claim was pending against him in his capacity as guarantor. On May 22, 2009, the plaintiff filed a motion for summary judgment against the defendants. On June 15, 2009, the plaintiff filed an amended motion for a judgment of strict foreclosure of the mortgaged property.

On June 17, 2009, attorney Steven M. Basche filed an appearance on behalf of PDPA in lieu of the appearance of Mason. The plaintiffs motion for a judgment of strict foreclosure appeared on the short calendar of June 29, 2009. On that day, Basche filed an answer, special defenses and counterclaim on behalf of PDPA. He also filed a motion to set aside the default for failure to disclose a defense. The court denied PDPA’s motion to set aside the default, granted the plaintiffs motion for summary judgment against the defendants and rendered judgment of foreclosure by sale, finding the debt to be $1,676,458. Subsequent motions to reargue or to reopen filed by the defendants and PDPA were denied by the court. This appeal followed.

I

On appeal, the defendants claim that the court improperly rendered summary judgment against them, as guarantors, despite the plaintiffs having withdrawn the complaint as to them. The plaintiff argues that the defendants misconstrue the ruling of the court, which was to render summary judgment against the defendants on their counterclaims against the plaintiff. We agree with the plaintiff.

Although the plaintiff had withdrawn his claim for a deficiency judgment against the defendants, the defendants each had filed a two count counterclaim against the plaintiff, one count asserting that each of the them was harmed by the loss of the sale of the mortgaged property, and the other count asserting a claim that the plaintiff had violated the covenant of good faith and fair dealing in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The counterclaims asserted by each of the defendants remained in the case until the court rendered summary judgment on those counts. Accordingly, we conclude that this claim has no merit.

II

The defendants next claim that the court improperly heard the plaintiffs motions for summary judgment and for strict foreclosure despite the plaintiffs noncompliance with Practice Book § 17-44 and that it improperly rendered judgment in favor of the plaintiff. We are not persuaded.

Practice Book § 17-44 provides in relevant part that “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. . . .” First, we note that the defendants incorrectly assert that the case had been assigned for trial by the court, Prescott, J., during the May 6, 2009 hearing. A review of the transcript makes it clear that Judge Prescott told the parties that the court would await further action by the plaintiff before any further scheduling would take place. After Judge Prescott granted Ahmed’s request to be made a party defendant during that hearing, it became compulsory that the plaintiff file an amended complaint naming Ahmed as a party. The record also demonstrates that no certificate of closed pleadings had been filed, and, in fact, the pleadings were not closed. Accordingly, the requirement that the plaintiff obtain permission of the court before filing a motion for summary judgment, pursuant to Practice Book § 17-44, simply did not apply.

Next, we consider the second part of the defendants’ claim, namely, that the court improperly rendered judgment in favor of the plaintiff. Although their brief is unclear, the defendants appear to argue that they were denied due process by the court’s rendering of judgment in favor of the plaintiff without a trial. They state in their brief that “[i]t is also fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.” They then argue that “there were several material issues of facts and law that needed to be heard at a meaningful time and in a meaningful manner with proper presentation of facts and witnesses on various issues . . . .”

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. • • • The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of [a] trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Antonino v. Johnson, 113 Conn. App. 72, 75, 966 A.2d 261 (2009).

In this case, on June 29,2009, the court held a hearing on the plaintiffs motion for summary judgment and his motion for a judgment of strict foreclosure. Any claim that the defendants were denied an opportunity to be heard is without merit. The record reveals that the court fully heard the arguments presented by both sides before rendering its decision. The transcript of this hearing is fifty pages long.

The plaintiff had filed a motion for summary judgment on May 22, 2009, against the defendants, asserting that he had established, through his affidavit, a prima facie case that the mortgage was in default, that a judgment of foreclosure should enter in his favor and that summary judgment against the defendants should be rendered in his favor. In support of his motion for summary judgment, the plaintiff submitted an affidavit, documentary exhibits and a memorandum of law to the trial court. In opposition, the defendants failed to submit any affidavit or other documentary evidence showing the existence of any material fact. Their memorandum of law also reveals that they presented no legal arguments addressing the question of the sufficiency of their counterclaims. After a full hearing on the merits of the plaintiffs motions, the court rendered judgment. On the basis of the record before us, we are unable to conclude that the court improperly rendered judgment in favor of the plaintiff.

Ill

The defendants’ next claim relates to the plaintiffs appraisal report and their own appraisal report. The entire claim, argument and analysis is as follows: “In any foreclosure, testimony of an appraiser of the property is mandatory if the opposing party disputes the appraiser’s value. Defendants-appellants disputed in their pleadings [the] plaintiffs appraised value of the premises from the very beginning of this case because the appraiser had based its appraisal on old, obsolete facts. The appraiser also had conflict of interest because he had done [an] appraisal of the same property about two years before for the defendants-appellants. [The court] denied defendants-appellants [an] opportunity to present their own current appraisal of the property, which would have shown the value of premises to be closer to $4 million.”

Because the defendants do not develop their claim with any citation to authority or legal analysis, we conclude that the claim is briefed inadequately. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) (“We are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived. ... In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice.” [Citations omitted; internal quotation marks omitted.]). Accordingly, we decline to afford it review.

IV

The final claim of this appeal is raised by Ahmed. He claims that the court was “prejudice [d] against [him] in particular and [against] pro se parties in general.” We begin by noting the inadequacy of Ahmed’s brief on this issue. The brief cites no law or standard by which an appellate court is to review a claim of judicial bias, nor does it contain any legal analysis. Rather, Ahmed merely points to one particular statement made by Judge Freed during the November 24, 2008 hearing in which the court heard argument on PDPA’s motion for additional time to secure a different attorney. The particular statement that Ahmed points to is: “If you think you’re just going to stall this around, you’re mistaken.” Ahmed then argues that this statement “clearly indicates [the] judge’s bias and presumption that [his] request... for additionfal] time to engage an attorney to represent and defend PDPA . . . was [an] intentional dilatory tactic by Ahmed . . . .” We conclude that this claim has no merit.

“Accusations of judicial bias . . . implicate the basic concepts of a fair trial. . . . The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification. . . . Canon 3 (c) (1) [of the Code of Judicial Conduct] provides in relevant part: A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party .... To prevail on [his] claim of a violation of this canon, the [defendant] need not show actual bias. The [defendant] has met [his] burden if [he] can prove that the conduct in question gave rise to a reasonable appearance of impropriety.” (Internal quotation marks omitted.) Watrous v. Watrous, 108 Conn. App. 813, 834, 949 A.2d 557 (2008).

Although Ahmed claims that the quoted statement of Judge Freed regarding stalling tactics demonstrates that the court was prejudiced against him, a review of the transcript of the hearing and of the court’s ruling on PDPA’s motion for additional time demonstrates that the court, although expressing its concern that Ahmed was attempting to stall the proceedings, listened to his argument and, in fact, granted him the additional two weeks that he had requested on behalf of PDPA to seek a different attorney. Ahmed has cited to only one sentence in a transcript of a case that has been pending in our courts since mid-2008 to prove his claim that the court was prejudiced or biased against him. Our own review of the record in this case reveals nothing that would demonstrate that the court’s conduct was inappropriate under the circumstances of this case. Accordingly, we find no merit to Ahmed’s claim of judicial bias.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants in the trial court were: PDPA, Inc. (PDPA); Ellen Rosenblit, trustee; and the Mortgage Company, L.L.C. These defendants are not parties to this appeal. PDPA, however, has filed a separate appeal, AC 31457. We will refer to Ahmed and Patricia individually by name and collectively as the defendants for purposes of this opinion.

       The defendants also claim that the court improperly: (1) did not permit either of them to represent PDPA, Inc. (PDPA), in the underlying foreclosure action, (2) did not permit attorney Stephen M. Basche to represent PDPA in the underlying foreclosure action, (3) denied PDPA’s motion to set aside the court’s order defaulting it for failure to set forth a defense and (4) upheld the default interest rate of 25 percent as set forth in the promissory note between the plaintiff and PDPA. We conclude that neither of the defendants has standing to raise these issues on appeal. These claims involve the rights of PDPA, a corporate entity. They do not involve the rights of the defendants, the appellants in this case. See generally Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546-47, 642 A.2d 62 (“The authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity. ... A corporation may not appear by an officer of the corporation who is not an attorney. . . . This is so, despite the fact that the officer may be the principal shareholder of that corporation.” [Citation omitted; internal quotation marks omitted.]), cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994); Triton Associates v. Six New Corp., 14 Conn. App. 172, 175-76, 540 A.2d 95 (“In Connecticut, a corporation may not appear pro se. . . . A corporation may not appear by an officer of the corporation who is not an attorney.” [Citation omitted; internal quotation marks omitted.]), cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988). Accordingly, we will not consider these claims.

       The plaintiff has brought to our attention the fact that the defendants have failed to provide this court with a signed transcript of the court’s oral decision. See Practice Book § 64^1 (a). “When the record does not contain either a memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for i1s decision, this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review. ... If there is an unsigned transcript on file in connection with an appeal, the claims of error raised by the plaintiff may be reviewed if this court determines that the transcript adequately reveals the basis of the trial court’s decision.” (Citation omitted; internal quotation marks omitted.) Solano v. Calegari, 108 Conn. App. 731, 734 n.4, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008). In this case, we conclude that the transcript adequately reveals the basis for the court’s decision.

       We note that for purposes of this claim, Patricia only has standing to raise a claim regarding the court’s rendering of summary judgment in favor of the plaintiff on her counterclaim. She has no standing related to the court’s rendering of the judgment of foreclosure. Because the defendants briefed their claims together, and because they make the same argument, we will consider the claims together.

       This is not to say that the court would not have had discretion to consider the motion for summary judgment had it been filed after trial had been scheduled. On the basis of the record before us, we need not rule on the propriety of such an action.

       On June 29, 2009, after a hearing, the court ordered a foreclosure by sale instead of the strict foreclosure requested by the plaintiff.

       On December 5, 2008, Ahmed filed a motion to disqualify Judge Freed. This motion was denied on December 8, 2008. Accordingly, this issue is preserved for our review.

       We point out that on November 24, 2008, PDPA was represented by Mason, who, on September 4,2008, had filed a general appearance for PDPA. On June 17, 2009, Basche filed an appearance on behalf of PDPA in lieu of the appearance of Mason. At all relevant times, therefore, PDPA was represented by counsel.

       Ahmed specifically had requested two additional weeks to secure substitute counsel. The court, although stating that it thought this was a stalling tactic, agreed to the request after making sure Ahmed understood that the case would move forward after that time:
      “The Court: If I thought anything would happen in two weeks, I would give him two weeks, but I don’t think anything is going to happen except he’s going to come up with something else.

        “Ahmed Dadi: No. We are going to have somebody representing to file pleadings for PDPA. . . . * ** *
      “The Court: Are you saying if I give you two weeks, you will come in here with another lawyer?
      “Ahmed Dadi: Yes.
      “The Court: And ready to go? Are you saying that? ... In two weeks, if I gave you two weeks, will you come into this court with another lawyer and be ready to do whatever you want to do with this case?
      “Ahmed Dadi: Yes, Your Honor.
      “The Court: And if you fail to do that, we will go ahead. You understand that?
      “Ahmed Dadi: Yes, I understand that.
      “The Court: All right. You can have two weeks and that’s all.”


source: Caselaw Access Project

license: Public Domain

text:
    RICHARD A. DANZIG, TRUSTEE v. PDPA, INC., ET AL.
    (AC 31457)
    Lavine, Alvord and Bear, Js.

      Argued September 20
    officially released November 30, 2010

      Steven M. Basehe, for the appellant (named defendant).

      Timothy P. Pothin, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant PDPA, Inc. (PDPA), appeals from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Richard A. Danzig, trustee for the Defined Benefit Pension Trust. On appeal, PDPA claims that the court improperly refused to allow it the opportunity to plead in response to the plaintiffs amended complaint. Additionally, the plaintiff raises questions about PDPA’s standing and whether the appeal has been taken from a final judgment. We affirm the judgment of the trial court.

The following relevant facts and complicated procedural history are gleaned from the record. On May 9, 2007, PDPA and the plaintiff entered into a commercial arrangement. The plaintiff agreed to lend PDPA $1.3 million; PDPA signed a promissory note in that amount, which was secured by two parcels of land that it owned in Glastonbury, a 17.48 acre parcel and a 26.67 acre parcel (mortgaged property). Patricia Dadi (Patricia), president and the alleged sole shareholder of PDPA, and Ahmed A. Dadi (Ahmed), vice president and agent for service of PDPA, executed a written guaranty of PDPA’s obligation on the note to the plaintiff. The note matured on May 8, 2008.

On July 28,2008, the plaintiff filed the present foreclosure action in Superior Court, alleging that PDPA had defaulted on the note and seeking a judgment of strict foreclosure of the mortgaged property and a deficiency judgment against PDPA and the Dadis. The return date was August 12, 2008. On September 4, 2008, attorney Kevin L. Mason filed a general appearance for PDPA. On November 6, 2008, the plaintiff filed a motion for default against PDPA for failure to disclose a defense. On November 7, 2008, the Dadis each separately filed an answer, special defenses and a counterclaim to the plaintiffs complaint, and, on November 10, 2008, Patricia filed an answer and disclosure of defenses on behalf of PDPA. Although neither of the Dadis is an attorney, they argued that they should be permitted to represent PDPA in the foreclosure action, and, although Mason previously had filed his appearance for PDPA, the Dadis argued that he was not hired for purposes of litigation and that his representation was limited. The court denied the Dadis permission to represent PDPA, but it did give them two weeks to secure different counsel. On December 8, 2008, it granted the plaintiffs motion for default for failure to disclose a defense as against PDPA.

On December 5, 2008, PDPA transferred by warranty deed its rights, title and interest in the mortgaged property to Ahmed. Also on that date, Ahmed moved to be substituted as the party defendant in place of PDPA, which motion was denied by the court on December 8, 2008. On December 29, 2008, Ahmed moved to be made a party defendant in addition to PDPA. On January 15, 2009, the plaintiff withdrew his complaint against the Dadis, thus effectively removing them from the plaintiffs case, although the Dadis each had a counterclaim that remained pending against the plaintiff. On May 6, 2009, the court granted the motion of Ahmed to be named a party defendant as the new record owner of the mortgaged property. Thereafter, on May 11, 2009, the plaintiff filed an amended complaint to reflect Ahmed’s ownership of the mortgaged property. On May 12, 2009, Ahmed, specifically as record owner of the mortgaged property, filed an answer, special defenses and a counterclaim. Ahmed, specifically as guarantor on the note, filed a separate amended answer, special defenses and a counterclaim in response to the plaintiffs amended complaint, although no claim was pending against him in his capacity as guarantor. On May 22, 2009, the plaintiff filed a motion for summary judgment against the Dadis. On June 15, 2009, the plaintiff filed an amended motion for judgment of strict foreclosure of the mortgaged property.

On June 17, 2009, attorney Steven M. Basche filed an appearance on behalf of PDPA in lieu of the appearance of Mason. The plaintiffs motion for a judgment of strict foreclosure appeared on the short calendar of June 29, 2009. On that day, Basche filed an answer, special defenses and counterclaim on behalf of PDPA. He also filed a motion to set aside the default for failure to disclose a defense. The court denied PDPA’s motion to set aside the default, granted the plaintiffs motion for summary judgment against the Dadis and rendered judgment of foreclosure by sale, finding the debt to be $1,676,458. Subsequent motions to reargue or to reopen filed by the Dadis and PDPA were denied by the court. This appeal followed.

I

Initially, the plaintiff argues that PDPA lacks standing to bring this appeal and that PDPA has not appealed from a final judgment. We do not agree.

A

Standing

The plaintiff raises a claim that PDPA does not have standing to maintain this appeal. Specifically, he argues that there is no “appellate jurisdiction where an appellant with no legal or economic interest in the mortgaged premises appeals from a judgment of foreclosure by sale . . . .” We are not persuaded.

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . This court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.” (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).

In the present case, at the time the action for foreclosure was commenced, PDPA was the record owner of the mortgaged property. After the property was transferred to Ahmed, PDPA remained a defendant in the case because it had executed the promissoiy note, and it remained liable for any potential deficiency judgment.

“We have observed that the procedure used to obtain a deficiency judgment [in a foreclosure action] is also part of the main action. . . . The defendant in the subsequent deficiency proceeding, however, cannot assert defenses properly addressed to the actual judgment of foreclosure. Any claims by the defendant that were made or could have been made in the foreclosure proceeding cannot be relitigated at the deficiency hearing. . . . This view is reinforced by the limited nature of the deficiency hearing. Our Supreme Court has held that [i]n the hearing contemplated under [General Statutes] § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and determines any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.” (Citations omitted; internal quotation marks omitted.) Vignot v. Bank of Mystic, 32 Conn. App. 309, 313, 628 A.2d 1339 (1993).

In this appeal, PDPA claims that the court improperly prohibited it from filing a responsive pleading after the plaintiff filed an amended complaint. In making this claim, it suggests that it was aggrieved by the ruling of the court because it had valid defenses to the claims that were asserted against it in the amended complaint. Reviewing the proposed defenses, it appears that they, at least in part, relate to the promissory note and the amount of the debt. Because PDPA would be unable to raise such issues in an appeal from a deficiency judgment; see id.; we conclude that, to the extent that PDPA’s claim potentially could have an impact on a future deficiency proceeding, it has standing to raise such a claim in the present appeal. See Nanni v. Dino Corp., 117 Conn. App. 61, 70, 978 A.2d 531 (2009) (“ [a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected” [internal quotation marks omitted]).

B

Final Judgment

The plaintiff next raises a claim that PDPA is attempting to appeal from a nonfinal judgment because the court rendered judgment as to liability only. He argues: “Entirely apart from the occurrence of a committee sale and its approval by the court, neither of which have yet occurred, there is the question of whether the plaintiff will elect to pursue a deficiency judgment against PDPA and, if so, whether one will be granted.” We are not persuaded.

Although the plaintiff asserts this as a final judgment claim, a close review of his argument leads us to conclude that he actually is arguing that PDPA is not yet aggrieved by the court’s judgment and, accordingly, that it does not have standing. We note that “deficiency proceedings are not, and never have been, independent actions on the debt. Rather, they are part of the main foreclosure suit.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 207, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995). Furthermore, a judgment of foreclosure constitutes an appealable final judgment when the court has determined the method of foreclosure and the amount of the debt. See Capp Industries, Inc. v. Schoenberg, 104 Conn. App. 101, 109 n.5, 932 A.2d 453 (“a judgment of foreclosure is not a final judgment until the trial court determines the method of foreclosure and the amount of the debt”), cert. denied, 284 Conn. 941, 937 A.2d 696, 697 (2007). In this case, the court rendered a judgment of foreclosure, which set forth the method of foreclosure and the amount of the debt. Therefore, it is a final judgment. Furthermore, having concluded in part I A of this opinion that PDPA has standing to appeal, we need not address this claim further.

II

On appeal, PDPA claims that the court was required, pursuant to Practice Book § 10-61, to allow it the opportunity to plead in response to the plaintiffs amended complaint. Specifically, PDPA argues: “By filing a request to amend its complaint ... on May 11, 2009, the [pjlaintiff gave PDPA ... an opportunity to plead to that amended complaint, regardless of whether [it] had previously been defaulted or had previously answered the complaint. . . . Pursuant to Practice Book § 10-61, when a pleading is amended, the adverse party may plead to the amended pleading within the time period set forth in Practice Book § 10-8.” The plaintiff argues that PDPA previously had been defaulted for failure to disclose a defense and that default had not been set aside or opened; therefore, he argues, the court properly exercised its discretion in not permitting PDPA to file an answer and disclose defenses in response to the amended complaint. We agree with the plaintiff.

Although PDPA argues that pursuant to Practice Book § 10-61, the court was required to permit it to file a responsive pleading, despite its previous default for failure to disclose a defense, we conclude that this was a matter within the sound discretion of the court. “ ‘[T]he design of [the] rules [of practice] being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.’ Practice Book § 1-8. Further, the ‘[r]ules of practice must be construed reasonably and with consideration of this purpose. . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding.’ . . . Tolland Bank v. Larson, 28 Conn. App. 332, 335, 610 A.2d 720 (1992).” Webster Bank v. Zak, 71 Conn. App. 550, 558 n.5, 802 A.2d 916, cert. denied, 261 Conn. 938, 808 A.2d 1135 (2002).

“[A] foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . This court must make every reasonable presumption in favor of the trial court’s decision when reviewing a claim of abuse of discretion. . . . Our review of the trial court’s exercise of legal discretion is limited to the question of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Id., 556-57.

In support of its argument that the court was required to permit it to file a responsive pleading, despite its default, PDPA relies on New Milford Savings Bank v. Jajer, 52 Conn. App. 69, 726 A.2d 604 (1999), and Mazulis v. Zeldner, 116 Conn. 314, 164 A. 713 (1933). After a careful review of these cases, we conclude that they are inapposite. In New Milford Savings Bank, we concluded that the court improperly had rendered a judgment of foreclosure when the plaintiff had filed its motion for judgment prior to the defendants having been defaulted, and the court rendered judgment before the defendants’ time to plead had expired. New Milford Savings Bank v. Jajer, supra, 83. In Mazulis, our Supreme Court concluded that if an amendment to a complaint, made after trial, substantially changes the cause of action originally set forth, the defendant should be permitted to file new or amended pleadings. Mazulis v. Zeldner, supra, 317. Neither opinion provides much guidance in the case presently before us.

The plaintiff argues that Webster Bank v. Zak, supra, 71 Conn. App. 550, controls this case. In Webster Bank, the plaintiff was compelled to file an amended complaint by the transfer of the mortgaged property from one entity to another entity, MFR of East Hampton, LLC (MFR). Id., 554. MFR, the entity to which the property had been transferred, had sought to be made a party defendant after judgment because it had become the record titleholder of the property. Id. MFR then claimed that the filing of the amended complaint resulted in the opening and vacating of the judgment of foreclosure, and it argued that the case should begin anew. Id., 556. On appeal, we explained that the plaintiff never would have had to have filed the amended complaint if MFR had not requested to be made a party defendant and that the filing of the amended complaint was compulsory. Id., 557. MFR, in reliance on Practice Book § 10-61, argued that it should be permitted to challenge liability and debt under the note. Id., 557-58. We concluded that Practice Book § 10-61 could not be read to require the court to open and to vacate its previous judgments in complete disregard of its judicial discretion. Id., 558. We specifically pointed out that the court had not vacated its prior judgment and that the purpose of ordering the amended complaint solely was to name MFR as the new record titleholder of the property. Id., 559. We then concluded that the court properly exercised its discretion in limiting the proceedings to amending the complaint for purposes of this substitution only. Id., 559-60. We agree with the plaintiff that Webster Bank is persuasive.

In the present case, PDPA was the record titleholder of the mortgaged property. Well after the foreclosure proceedings had been instituted, and three days before PDPA was defaulted for failure to disclose a defense, PDPA transferred its interest in the mortgaged property to Ahmed. In response to this transfer, Ahmed moved to be named a party defendant, which request the court eventually granted. The plaintiff then amended its complaint to allege that Ahmed had become the record owner of the mortgaged property. In response to this amended complaint, PDPA then sought to file an answer and disclosure of defense. PDPA, however, had been defaulted for failing to disclose a defense long before the filing of the amended complaint. As in Webster Bank, we conclude that the filing of the amended complaint was compulsory, caused by PDPA’s voluntary transfer of its ownership of the mortgaged property. The amending of the complaint did not serve to vacate the court’s earlier ruling; PDPA remained in default, and, on appeal, PDPA does not challenge the court’s denial of its motion to open the default. We conclude that the court properly exercised its discretion in not permitting PDPA to file a responsive pleading after the plaintiff amended his complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants in the trial court were: Ellen Rosenblit, trustee; the Mortgage Company, L.L.C.; and Ahmed A. Dadi and Patricia Dadi. These defendants are not parties to this appeal. The Dadis, however, have filed a separate appeal, AC 31456.

       Practice Book § 10-61 provides: “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”

       “Because the defendant was defaulted for failure to disclose a defense, the defendant’s liability on the mortgage conclusively was determined. . . . A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Citations omitted; internal quotation marks omitted.) Bank of America, FSB v. Franco, 57 Conn. App. 688, 692-93, 751 A.2d 394 (2000).


author: SCHALLER, J.

text:
    KRISTEN KOVALSICK v. JEFFREY KOVALSICK
    (AC 30791)
    Harper, Beach and Schaller, Js.

      Argued September 16
    officially released November 30, 2010

      Sarah D. Eldrich, with whom was Leslie I. Jennings-Lax, for the appellant (plaintiff).

      Robert K. Walsh, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Kristen Kovalsick, appeals from the judgment of the trial court dissolving her marriage to the defendant, Jeffrey Kovalsick, claiming that the trial court abused its discretion when it failed to award her alimony and any of the parties’ assets, yet held her responsible for the bulk of the marital debt. Because we conclude that the court abused its discretion in failing to award the plaintiff time limited or rehabilitative alimony under the facts presented in this case, we reverse in part the judgment of the trial court and remand the case for a new trial on the financial orders.

The following facts and procedural history are relevant to the plaintiffs claims. The parties were married in October, 2003. Their only child was bom in January, 2005. They resided together in an apartment in Hamden until August, 2007, when the plaintiff and the minor child went to live with the plaintiffs mother in Massachusetts. The plaintiff commenced the divorce action in December, 2007. The court heard testimony on October 28,2008, and issued a written decision on November 25, 2008, and an amended decision on January 22, 2009.

The court found the following facts. The plaintiff, age twenty-seven, holds a bachelor of arts degree. She has been employed in the field of early childhood development, primarily as a preschool teacher, and has worked in various day care facilities and as a family advocate for two nonprofit organizations. She earned between $13 and $15 per hour throughout the marriage, and she worked 37.5 hours per week at $13 per hour at the time of trial. The defendant, age thirty-five, holds a bachelor of science degree in finance and has been employed as a trader, earning an annual base salary of $98,500 and an average bonus over the prior three years of $22,430 gross per annum.

At trial, the plaintiff testified that she took care of the household responsibilities, including cooking, cleaning, food shopping and laundry, as well as the responsibilities of taking care of the couple’s child and dog. The plaintiff also testified that, out of her salary, she was responsible for paying day care for their child and for her own personal expenses, including her cellular telephone, student loans, car payment, credit card and, for a period of time, her own car insurance. Both she and the defendant paid for other expenses related to the child, including diapers, clothing and toys. She testified that when she did not have the necessary cash, she would charge those items on her credit card and that she used her credit card to pay for holiday gifts, birthday presents, family vacations and household items for the benefit of the defendant and their child. The plaintiff testified that communication in the marriage was poor and that the defendant did not always know the extent of her reliance on credit cards.

The court concluded that the plaintiffs spending was a prime source of contention and contributed significantly to the breakdown of the marriage. Specifically, the court found that her credit card expenditures revealed a pattern of retail shopping that was well in excess of the needs of a family of three and that the purchases went to nonessential items. The plaintiffs mother paid approximately $37,000 of the plaintiffs consumer debt, on the promise that the plaintiff would repay her. The court was not persuaded to divide this $37,000 liability equitably between the parties and ordered that each party would be responsible for his or her own debts.

The court found that the only marital property subject to equitable distribution pursuant to General Statutes § 46b-81 was the defendant’s retirement savings account, then valued at approximately $47,000, all but approximately $2000 of which was acquired during the marriage. Taking into consideration the defendant’s past contributions to the plaintiffs credit card debt, as well as the court’s conclusion that the accrual of debt caused the breakdown of the marriage, the court ordered that the defendant retain sole ownership of his retirement savings account.

Following the dissolution of the marriage, the plaintiff intended to enroll in a two year certificate program in nursing, which would increase her earning capacity to approximately $40,000 a year. The program required both day and evening classes, and she would be unable to work while enrolled. The plaintiff, accordingly, requested alimony of $220 a week for a period of three years, or for less time if she finished the nursing program sooner. According to the financial affidavit that the plaintiff filed with the court for trial in October, 2008, even with the pendente lite alimony that she was receiving at the time she filed the affidavit, the plaintiff was not meeting her obligations, which included the payments on the debt. Nonetheless, the court found that because the plaintiff is in good health and has a four year bachelor of arts degree, bilingual skills and a good work history, an award of alimony as claimed was inappropriate.

The plaintiff filed a motion to reargue and an amended motion to reargue, which raised several issues, including the denial of alimony, the award of all of the parties’ assets to the defendant, orders relating to the transportation of the minor child for the defendant’s visitation and orders relating to the defendant’s contribution to child care being dependent on the number of hours that the plaintiff worked. The court heard argument and modified its orders only as to the final issue such that the defendant’s contribution to child care was no longer dependent on the number of hours that the plaintiff worked. This appeal followed.

The plaintiff first claims that the court abused its discretion in failing to award her time limited alimony as she requested. She argues that the court abused its discretion by issuing financial orders designed to punish her for what the court perceived as her contribution to the breakdown of the marriage. The defendant, in response, relies on the broad discretion of the court in matters pertaining to alimony. We conclude that the court abused its discretion in failing to award to the plaintiff time limited or rehabilitative alimony under the facts presented in this case.

We first set forth our standard of review. “It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [Wjhere 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, these facts are clearly erroneous.” (Internal quotation marks omitted.) Guarascio v. Guarascio, 105 Conn. App. 418, 421, 937 A.2d 1267 (2008). “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 372, 999 A.2d 721 (2010).

“[General Statutes §] 46b-82 governs awards of alimony. That section requires the trial court to consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes §] 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment in ordering either party to pay alimony to the other. In awarding alimony, [t]he court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor. ... In particular, rehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency.” (Internal quotation marks omitted.) Dees v. Dees, 92 Conn. App. 812, 820-21, 887 A.2d 429 (2006).

With these principles in mind, we recognize that it is generally uncommon for a reviewing court to determine that the trial court has abused its broad discretion in deciding whether to award alimony and otherwise craft financial orders in a dissolution decree. “Reluctance to reverse the trial court’s exercise of discretion, however, should not mean that the door is entirely closed to successful appeals in dissolution cases.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 846, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). Our appellate courts have reversed excessive or inequitable financial orders. See Greco v. Greco, 275 Conn. 348, 356-60, 880 A.2d 872 (2005) (reversing financial orders when 98.5 percent of marital property and substantial alimony awarded to one spouse); Pellow v. Pellow, 113 Conn. App. 122, 129, 964 A.2d 1252 (2009) (reversing financial orders when orders consumed 90 percent of paying spouse’s income).

Our decision in Casey v. Casey, 82 Conn. App. 378, 844 A.2d 250 (2004), is instructive. In that case, the trial court awarded no alimony but distributed certain marital property. Id., 382. The trial court found that substantial proceeds from various home mortgages had been utilized to make “ ‘exorbitant’ ” expenditures toward two airplanes. Id., 385. Nonetheless, the trial court awarded certain airplanes to the husband and awarded the marital home, subject to a large mortgage, to the wife. Id. These awards were difficult to reconcile with the facts in light of the evidence that the husband had four times the earning capacity of the wife and the wife “would be unable to make the monthly payments and, therefore, faced the daunting prospect of defaulting on the mortgage or selling the property in the near future.” Id. We concluded that the financial orders were logically inconsistent with the facts found and ordered a new hearing on the financial orders. Id.

Similarly, this court has reversed an award of time limited alimony when the award is logically inconsistent with the facts found or the evidence before the court. See Ippolito v. Ippolito, 28 Conn. App. 745, 751-52, 612 A. 2d 131 (reversing trial court when decision to limit alimony to ten years found no factual support in record), cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992); O’Neill v. O’Neill, 13 Conn. App. 300, 313-14, 536 A.2d 978 (reversing trial court when decision to award rehabilitative alimony for two years conflicted with evidence that plaintiff would need four years to finish nursing training to obtain permanent employment), cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

In the present case, we are presented with the situation in which a party appeals because the court failed to award the time limited alimony sought. See Deteves v. Deteves, 2 Conn. App. 590, 592, 481 A.2d 92 (1984) (award of only lump sum alimony and no periodic or rehabilitative alimony was abuse of discretion when court concluded plaintiff could “ ‘get some employment using her skills in embroideiy and sewing’ ” despite finding she had never worked outside home in this country); cf. Bornemann v. Bornemann, 245 Conn. 508, 511, 539, 752 A.2d 978 (1998) (award of rehabilitative alimony to wife for eighteen months not abuse of discretion; marriage of less than four years duration and wife college educated although with limited work history); Gamble-Perugini v. Perugini, 112 Conn. App. 231, 237, 962 A.2d 192 (award of time limited alimony to wife not abuse of discretion even though wife earned modest income as real estate agent and also received property distribution), cert. denied, 291 Conn. 915, 970 A.2d 727 (2009); Dees v. Dees, supra, 92 Conn. App. 821-22 (award of time limited alimony not abuse of discretion even though wife had prior careers as high school teacher and as attorney).

The court found that the parties had “equal standing in their education level” and that the plaintiff had “additional skills” in the job market because she is bilingual. In declining to award time limited alimony, the court found that the plaintiff is “in good health, that she has obtained a four year bachelor of arts degree and has bilingual skills with a good work history . . . .’’Despite the evidence of actual earnings, the court appeared to equate the parties’ “equal standing in their education level” to equal earning capacity. The court, however, found that the plaintiff earned only $13 to $15 per hour throughout the marriage and that she was working 37.5 hours per week at only $13 per hour at the time of trial. The plaintiffs earnings from her employment never exceeded $25,000 per year while the defendant historically earned roughly five times that amount. No evidence was presented that would tend to show that the plaintiff could earn more than the salary that she earned throughout the marriage without additional education and training. In light of the court’s emphasis on “equal . . . education level” as opposed to actual historical earnings, we cannot conclude that it was reasonable for the court to decide as it did based on the facts found or the evidence presented.

We also note that, even with the pendente lite alimony that she was receiving at the time the plaintiff filed her financial affidavit with the court on October 28, 2008, there was evidence that the plaintiff was not able to meet her obligations, which included the payments on the debt. It is reasonably foreseeable that, if the court’s financial orders are allowed to stand and the plaintiff continues to be responsible for the entire debt but is unable either to increase her earning capacity or to receive alimony or a portion of the marital property, she could well be in dire financial straits. See Deteves v. Deteves, supra, 2 Conn. App. 593 (for state to assume burden of plaintiffs support would be at odds with very concept of alimony). “[W]hen invoking principles of equity, a court must examine both the public policy implicated and the basic elements of fairness.” Greco v. Greco, supra, 275 Conn. 363 (“Under the trial court’s order, the defendant was forced to the brink of abject poverty by his obligations to pay the required alimony and insurance premiums, and then stripped of any means with which to pay them by the disproportionate division of the marital assets. Such an order constitutes an abuse of discretion in light of the defendant’s age, poor health and compromised ability to work.”). Based on the instructive language of Greco, we are persuaded that the goal of fairness is not served by the outright refusal to order alimony under the facts of this case. Accordingly, under the circumstances present here, viewed in light of the remaining financial orders, we conclude that the trial court abused its discretion by failing to award time limited or rehabilitative alimony to the plaintiff.

The plaintiff next claims that the property division was inequitable because she not only received no portion of the parties’ assets but also bore the responsibility for the bulk of the marital debt. We note that “when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders.” (Internal quotation marks omitted.) Morris v. Morris, 262 Conn. 299, 307, 811 A.2d 1283 (2003). Accordingly, we need not decide the plaintiffs claim concerning property distribution because we have determined that the court’s order denying any alimony award was an abuse of discretion. See Pellow v. Pellow, supra, 113 Conn. App. 129-30 (declining to review claims concerning child support because court had already determined alimony award and property division were excessive).

The judgment is reversed only with respect to all financial orders, including the distribution of marital property, and the case is remanded for farther proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The trial court restored the plaintiff to her former name, Kristen Marie Gonzalez. For the purposes of this appeal, however, we will refer to her by her married name.

       This case is one of the exceptional dissolution cases in which a party successfully argues that the financial orders entered by the trial court exceed the broad discretion of the trial court. See Casey v. Casey, 82 Conn. App. 378, 844 A.2d 250 (2004).

       There was evidence that her hours would be reduced to thirty-three hours per week as of January 1, 2009.

       The court found that the marriage had broken down irretrievably, that the parties agreed to joint legal custody of the minor child and that it was in the child’s best interest that her primary residence be with the plaintiff. These orders and the orders concerning visitation are not challenged on appeal.
      The court also ordered that the defendant shall pay child support and 50 percent of the weekly child care expenses, and that the child shall be the beneficiary of the defendant’s medical and dental benefit plan and a life insurance policy. These orders are not challenged on appeal.

       This order ensured that the plaintiff was responsible for other debts not mentioned in the memorandum of decision, including a Chase consolidation loan with an outstanding balance of $8200, which was pleaded in the complaint and which, the plaintiff testified, she acquired during the marriage for the benefit of the family.

       The court found that in February, 2006, the defendant paid an outstanding credit card balance of approximately $2500 and that in March, 2006, the defendant paid another outstanding credit card balance of $13,000. In 2007, the defendant signed over his tax refund of approximately $3020 to the plaintiff for her to apply to her credit card debt.

       The court originally ordered that the defendant needed to contribute to the day care expenses for the minor child only “so long as the [plaintiff] is using the child care for employment purposes and is working at least 33 hours per week.” This effectively prevented the plaintiff from attending school even part-time. The court ordered this portion of the order to be deleted.

       Compare Rozsa v. Rozsa, 117 Conn. App. 1, 7-8,17, 977 A.2d 722 (2009) (both parties earned master’s degrees but had vastly different earning capacities based on their respective employment histories).

       Specifically, the plaintiff attested that she was making debt payments of $70 a week, $51 of which went to the Chase consolidation loan; see footnote 5 of this opinion; and the rest to her student loans and other personal debts. She did not attest to a weekly payment on the $37,000 debt to her mother. Her weekly expenses excluding the debt totaled $801. Her net weekly wage was $323. She was receiving $236 per week in pendente lite child support and $220 per week (reduced by $33 a week for federal income taxes) in pendente lite alimony. In sum, her weekly net income at the time of trial was $746 and her weekly expenses were $871, which did not include payments on the $37,000.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. ORAL H.

    (AC 30289)
    Harper, Bear and Mihalakos, Js.

      Argued September 21
    officially released November 30, 2010

      Jeffrey C. Kestenband, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Leonard C. Boyle, deputy chief state’s attorney, Matthew C. Gedansky, state’s attorney, and Elizabeth C. Learning, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PER CURIAM.

The defendant, Oral H., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and twenty-four counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2). The defendant claims that the court improperly (1) denied his motion to dismiss the sexual assault in the third degree counts because, at the time of his arrest, § 53a-72a (a) (2) was unconstitutional, (2) denied his motion to dismiss the sexual assault in the first degree count because the state’s filing of an amended information, including this count, violated the separation of powers doctrine, (3) denied his motion to dismiss the sexual assault in the third degree counts because the state engaged in selective prosecution with regard to these offenses and (4) admitted expert testimony without holding a Porter healing. We affirm the judgment of the trial court.

Briefly, we will set forth the relevant facts that the jury reasonably could have found. The defendant, who had a history of engaging in violent conduct toward his wife and children, began to engage in sexual conduct with the victim, his biological daughter, when she was approximately nine years old. On at least twenty-four occasions that occurred between February 5, 2002, and June 13, 2003, when the victim was between twenty and twenty-two years of age, the defendant and the victim engaged in sexual intercourse. On one occasion that occurred between January 21 and May 17, 2003, the defendant compelled the victim to engage in sexual intercourse with him in an automobile that was parked in a public park.

I

First, the defendant claims that the court improperly denied his motion to dismiss the twenty-four counts of the information alleging a violation of § 53a-72a (a) (2) (sexual assault in the third degree) because at the time of his arrest that statutory provision was deemed to be unconstitutional. We disagree.

By written motion to dismiss, the defendant argued that “[t]he prosecution [as to these charges] should be dismissed” because it was void ab initio. The defendant relied upon the following undisputed facts. In February, 2007, pursuant to a warrant, the defendant was arrested and charged with twenty-four counts of sexual assault in the third degree. Approximately ten months earlier, on April 11, 2006, this court officially released State v. John M., 94 Conn. App. 667, 894 A.2d 376 (2006), in which we held that § 53a-72a (a) (2) violated the guarantees of equal protection. On May 31, 2006, our Supreme Court granted the state’s petition for certification to appeal. State v. John M., 278 Conn. 916, 899 A.2d 622 (2006). On February 19, 2008, that court officially released its decision, in which it upheld the constitutionality of the statute. State v. John F.M., 285 Conn. 528, 545, 940 A.2d 755 (2008). The defendant argued that because he was charged after we had declared the statute unconstitutional but prior to the time that our Supreme Court upheld the constitutionality of the statute, the state was precluded from charging him under the statute, and the charges should be dismissed.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court .... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [decision to deny] . . . the motion to dismiss will be de novo.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 668, 998 A.2d 1 (2010).

The defendant’s argument rests upon the proposition that, as a matter of law, § 53a-72a (a) (2) was an unconstitutional legislative enactment as of the date of his arrest, and, thus, the state lacked the authority to prosecute him under that enactment. By operation of Practice Book § 84-3, however, a stay on the judgment of this court remained in effect until our Supreme Court rendered its final determination of the cause, upholding the constitutionality of the statute. Thus, the central premise of the defendant’s argument is legally flawed. The defendant has not demonstrated that any jurisdictional defect existed.

II

Next, the defendant claims that the court improperly denied his motion to dismiss the sexual assault in the first degree count because the state’s filing of an amended information, including this count, violated the separation of powers doctrine. We disagree.

The record reflects that, prior to trial, the prosecutor filed a substitute information that added a count charging the defendant with committing the crime of sexual assault in the first degree. On March 10, 2008, the defendant filed a motion to dismiss the substitute information on the ground that the prosecutor, an agent of the executive branch, added the sexual assault charge in the absence of a judicial determination that probable cause existed for that offense. At argument on the motion, the defense counsel argued that a finding of probable cause was a prerequisite to the bringing of the charge and that the filing of the substitute information violated the separation of powers doctrine. In an oral ruling, the court denied the motion to dismiss.

We have set forth the applicable standard of review in part I of this opinion. The defendant has not cited to any authority for the proposition that, in the absence of a judicial determination that probable cause exists, a prosecutor may not bring additional counts against a defendant. Practice Book § 36-17 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in its discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.” The defendant’s argument was not based upon prejudice, but upon the doctrine of separation of powers; the defendant argued that the filing of the substitute information, in essence, circumvented judicial review of whether the added count was supported by probable cause.

We readily reject the defendant’s novel argument. There was no procedural obstacle to the prosecutor’s filing of the substitute information; such filing was permitted under our rules of practice. The defendant is unable to demonstrate that any prejudice resulted from the filing or that the filing gave rise to any jurisdictional defect. Following the filing, the defendant had the right to file a motion to dismiss the information on the ground that the evidence was insufficient to justify the bringing of such information. See Practice Book § 41-8 (5). The defendant did not avail himself of this procedure. Furthermore, the defendant cannot now reasonably argue that probable cause did not exist with regard to the count at issue; the jury determined that the state proved beyond a reasonable doubt that the defendant had committed the offense.

Ill

Next, the defendant claims that the court improperly denied his motion to dismiss the charges of sexual assault in the third degree because the state engaged in selective prosecution with regard to these offenses, violating his right to equal protection of the law. We disagree that any jurisdictional defect existed.

Prior to the commencement of the trial, the defendant filed a motion to dismiss the counts at issue, arguing that the state had failed to prosecute the victim for the offenses at issue, despite the fact that the victim and the defendant were consenting adults who had engaged in the same criminal conduct. The defendant argues that his prosecution violated equal protection principles because he was prosecuted on the basis of his age and gender. The court heard argument on the motion, and the prosecutor, relying upon the evidence in the state’s file, made representations concerning the state’s decision to charge the defendant and not the victim with the crimes at issue. The court denied the motion without prejudice.

In denying the motion, the court relied upon the representations of the prosecutor that the defendant and the victim were not similarly situated and that, from the state’s point of view, the victim was not a willing sexual partner of the defendant. The prosecutor stated that the evidence tended to show that the victim had been sexually abused by the defendant, her biological father, since childhood and that the defendant was controlling of, and at times violent toward, his family members. The prosecutor argued that, as a result of this long pattern of conduct, the defendant exerted considerable influence over the victim such that she could not be considered a willing sexual partner of the defendant. Thus, the prosecutor argued that the decision to prosecute the defendant was not based upon the defendant’s age or gender.

The defendant claims that the court did not afford him an opportunity to conduct an evidentiary hearing on the motion. Our case law, however, reflects that such a hearing is not a matter of right; it is within the court’s discretion to grant such a hearing after a defendant has made a prima facie showing that a legitimate claim of selective prosecution exists. See State v. Perez, 82 Conn. App. 100, 110, 842 A.2d 1187, cert. denied, 269 Conn. 904, 852 A.2d 734 (2004). The record reflects that the court accepted as logical and true the representations of the parties concerning the relevant facts and denied the motion without prejudice to the defendant, explicitly affording the defendant an opportunity to revisit the issue and to convince the court that it should not rely upon the representations of the prosecutor. We have set forth the applicable standard of review in part I of this opinion. To prevail on a claim of selective prosecution, a defendant must demonstrate that he was singled out for prosecution on the basis of impermissible considerations. See, e.g., State v. Delossantos, 211 Conn. 258, 287-88, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). Here, there were ample factual representations before the court to support a determination that the state’s charging decision was based upon the defendant’s unique history of controlling and victimizing his biological daughter, not merely his age or gender. Although the court denied the motion to dismiss without prejudice, the defendant did not ask the court to consider any contrary evidence. On this record, we conclude that the court properly denied the motion to dismiss.

IV

Finally, the defendant claims that the court improperly admitted expert testimony without holding a Porter hearing. We disagree.

The victim’s delayed disclosure of sexual abuse was a subject of inquiry during her testimony. Thereafter, the state called Kathleen Garnet, a clinical psychologist, to testify with regard to the tendency of victims of sexual abuse to delay disclosing such abuse. Outside of the jury’s presence, defense counsel requested that the court conduct a Porter hearing related to Garnet’s proffered testimony. Following argument, the court denied the defendant’s request. Thereafter, Garnet testified before the jury.

We review the trial court’s evidentiary rulings for an abuse of discretion, affording such rulings a strong presumption of correctness. State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998). The defendant claims that Garnet’s expert testimony concerning delayed disclosure of sexual abuse constituted testimony of a technical or specialized nature that was subject to a test of admissibility under Porter. In State v. Porter, 241 Conn. 57, 61, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), our Supreme Court adopted the test for the admissibility of scientific evidence that was set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,125 L. Ed. 2d 469 (1993). In State v. Vumback, 68 Conn. App. 313, 327-32, 791 A.2d 569 (2002), affd, 263 Conn. 215, 819 A.2d 250 (2003), this court determined that evidence similar to that at issue in the present claim — expert testimony concerning delayed disclosure of sexual abuse — was not scientific evidence and, thus, was not subject to the Daubert standard of admissibility adopted in Porter. The defendant does not dispute that the testimony at issue was not scientific in nature. Rather, relying upon Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), which extended Daubert’s test for admissibility to technical and other specialized knowledge, the defendant urges us to conclude that the evidence at issue was subject to a Porter analysis. No appellate court in this state has adopted the approach set forth in Kumho Tire Co., Ltd., and we decline to do so here. Under the facts of this case, we are not persuaded that the court improperly admitted the challenged testimony without first conducting a Porter hearing.

The judgment is affirmed.

       The jury returned a not guilty verdict as to one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). The court imposed a total effective sentence of twenty-five years imprisonment, execution suspended after twenty years, followed by ten years of probation.

       See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).


author: PELLEGRINO, J.

text:
    STEPHEN SHELTON ET AL. v. FEMI OLOWOSOYO ET AL.
    (AC 31413)
    Gruendel, Flynn and Pellegrino, Js.
    Argued September 20
    officially released November 30, 2010

      Brendan J. O'Rourke, for the appellants-appellees (defendants).

      Joseph A. Kubic, for the appellees-appellants (plaintiffs).
   Opinion

PELLEGRINO, J.

The defendants, Femi Olowosoyo and Starlight Construction Company, Inc., appeal from the judgment rendered after a court trial, arising from a home construction contract with the plaintiffs, Stephen Shelton and Elizabeth Shelton, denying relief on all claims and counterclaims. On appeal, the defendants claim that the court improperly found that the payment terms of the contract had been modified based on the parties’ actions and that it failed to award damages. On cross appeal, the plaintiffs claim that the court improperly found that (1) they could not enforce the third amended completion date, (2) they were not entitled to damages and (3) the defendants had not been unjustly enriched. We affirm the judgment of the trial court.

The court found the following facts. In approximately 2003, the plaintiffs met with John Mastera, an architect, to consider renovating their house located at 16 Compo Road North in Westport. After a series of meetings with Mastera, the plaintiffs decided to demolish their home at the property and build a new house. By June, 2004, Mastera had prepared drawings and had given the plaintiffs an estimated project cost of $580,000, including fees. Because the plaintiffs intended to utilize a construction loan in the amount of $580,000, they could not afford a bid of $580,000 that did not include the kitchen and architectural fees. Eventually, they decided to alter the initial plans to reduce costs and, on September 4, 2004, entered into a contract with the defendants to build the home for a fixed price of $450,000. They executed the contract again on April 1, 2005. The contract was an “at cost” contract, meaning that the defendants would not realize a profit. The price negotiated included all labor and materials but did not include costs for the kitchen, driveway and architectural fees.

The contract initially provided for an estimated completion four months from the start date, and it included a payment schedule that obligated the plaintiffs to make the following payments: one third, or $150,000, as a retainer; one third, or $150,000, at the “commencement of the framing”; one sixth, or $75,000, at the “completion of the drywall”; and the remaining balance of $75,000 upon the completion of the project. Prior to signing the contract, the plaintiffs informed the defendants that a construction loan would be the source of their payments. After the contract had been signed, the plaintiffs learned of the draw schedule on their construction loan and, subsequently, informed the defendants as to the schedule, effectively putting the defendants on notice that the plaintiffs might not be able to follow the payment terms of the contract insofar as they failed to coincide with the terms of the draw schedule.

Although the contract stipulated that the first payment would be for $150,000, the first draw was for $112,000 and, on September 22, 2004, the plaintiffs paid $90,000 to the defendants. The defendants accepted the plaintiffs’ nonconforming payment and began working two months later, in November, 2004. In December, 2004, the town of Westport issued a cease and desist order because the defendants had begun work without obtaining the necessary permit authorizing demolition of the house. It was not until January 28, 2005, that the town finally issued a building permit authorizing the demolition of the house.

In March, 2005, the plaintiffs paid to the defendants $25,265 for additional change orders to remove trees, to install a new water meter, to clean the “ ‘old septic’ ” tank, to reinforce the foundation wall by increasing its thickness, to comply with framing notes and to provide a fireplace vent kit. In April, 2005, the parties met after both the stipulated payment and completion dates had not been met. The defendants provided the plaintiffs with an amended completion date of August 2, 2005. In May, 2005, as the foundation was nearing completion, the plaintiffs received another draw on their bank loan and paid $53,800 to the defendants. At that point, including the aforementioned paid change order, a total of $166,065 had been paid to the defendants.

In July, 2005, Olowosoyo contacted the plaintiffs and stated that the defendants did not have the necessary financial resources to continue with the construction. In order to attain additional funds, the plaintiffs refinanced their home at 9 Cedar Road in Westport. On August 25, 2005, the plaintiffs paid to the defendants an additional $86,000. By that time, the foundation had been completed, work on the basement had commenced, and the plaintiffs had paid a total of $252,065. In August, 2005, the defendants provided the plaintiffs with a schedule with a second amended completion date of December 31, 2005. On March 29, 2006, after the second amended completion date had not been met, the parties agreed to a third amended completion date of May 31, 2006.

On May 16, 2006, Olowosoyo e-mailed the plaintiffs and acknowledged that the defendants’ mistakes, the town’s cease and desist order and financial issues had contributed to the failure to meet the agreed on completion dates. On June 5, 2006, the plaintiffs e-mailed the defendants, “insisting . . . that the exterior structure (framing, sheeting, windows) be completed by June 30, 2006.” (Internal quotation marks omitted.) On July 12, 2006, after the deadline was not met, the plaintiffs unilaterally terminated the contract. In July, 2006, the plaintiffs hired Shoreline Builders, Inc. (Shoreline), to weatherproof the house. Shoreline was paid a total of $101,000 to complete the framing, to install the roof and additional sheathing and to replace rotted or weather-damaged wood. After Shoreline finished that work, the plaintiffs sold the property for $700,000.

On December 11, 2006, the plaintiffs commenced this action against the defendants in a five count complaint alleging breach of contract; violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; piercing of the corporate veil; conversion; and unjust enrichment. 6In response, the defendants filed an amended answer, special defenses and a five count counterclaim alleging breach of contract, promissory estoppel, fraud, unjust enrichment and a claim for a setoff pursuant to Practice Book § 10-54. The case was tried before the court over six days in December, 2008. The court found that the parties voluntarily had modified or waived the terms of the contract and that none of the parties were entitled to recover on any of their claims or counterclaims. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

The defendants claim that the court improperly interpreted the contract when it found that the payment provisions of the contract had been modified based on the parties’ actions. We disagree.

We begin by setting forth our standard of review. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... 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. . . . The court, as the sole arbiter of credibility, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citation omitted; internal quotation marks omitted.) Blacker v. Crapo, 112 Conn. App. 795,804-805,964 A.2d 1241, cert. denied, 291 Conn. 915, 970 A.2d 727 (2009).

“[Wjhether the parties to a contract intended to modify the contract is a question of fact. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense. . . . Modification of a contract may be inferred from the attendant circumstances and conduct of the parties.” (Citation omitted; internal quotation marks omitted.) Tsionis v. Martens, 116 Conn. App. 568, 577, 976 A.2d 53 (2009).

The court, in its thorough memorandum of decision, found that although specific payment provisions were set out in the contract, the parties modified the terms of the contract. Early on, the plaintiffs made it clear to the defendants that they could only make payments in line with the draw schedule on their construction loan. The first payment of $90,000 failed to conform with the payment requirement in the contract. Nevertheless, the defendants accepted the plaintiffs’ nonconforming payment and began demolition of the home two months later, as the contract stipulated. In May, 2005, the plaintiffs provided the defendants with a second payment for $53,800, bringing the total to $143,800, still several thousand dollars short of the contractually agreed retainer of $150,000. The defendants continued to work on the project. As the court found, it was not until July, 2005, that the payment schedule became an issue, at which time the plaintiffs refinanced their home and provided the defendants with another check in the amount of $86,000. Despite the plaintiffs’ continued failure to conform to the terms of the contract, the defendants continued to work at the home.

As the court explained in its memorandum of decision, “[i]t is clear from the . . . conduct of the parties that the payment terms of the contract were modified. The parties’ conduct evidences a mutual assent to modify the contract’s payment terms in accordance with the construction loan’s draw schedule. [The defendants] worked on the project for ten months before raising the issue of funding. Further, eight months after work commenced, the defendants were still not paid their full retainer under the original payment terms of the contract. It was not until the end of August, 2005, that the defendants were paid their full retainer. . . . The defendants’ failure to enforce the contract’s original payment terms, and assent to being paid pursuant to the terms of the draw schedule clearly evidence that the parties agreed to modify the contract’s original payment terms. Therefore, it cannot be said that the plaintiffs’ failure to adhere to the contract’s original payment terms is a material breach of the agreement.” (Citation omitted.)

Additionally, the defendants’ claim that they were entitled to damages is based on an interpretation of the original agreement that the trial court found and, we agree, was modified. Even if we are to ignore the modification of the payment schedule, which the defendants would have us do, the court found that there was no evidence that the defendants incurred costs beyond the payments they had received, which would be required to prove damages pursuant to an “at cost” agreement. We conclude that the court’s findings pertaining to a modification of the payment terms of the contract find support in the evidence and, therefore, are not clearly erroneous.

II

On cross appeal, the plaintiffs claim that the court improperly found that (1) they could not enforce the third amended completion date, (2) they were not entitled to damages and (3) the defendants had not been unjustly enriched. We disagree.

As we previously stated, under the applicable standard of review, we uphold factual findings unless they are clearly erroneous. As the court elucidated in its memorandum of decision, the acts and conduct of the parties made it clear that the completion date provisions of the contract had been waived.

“Waiver involves an intentional relinquishment of a known right. . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so. . . . Furthermore, whether a waiver has occurred is a factual question for the trier. . . . Thus, the inquiry in the present case is whether there was evidence from which the court reasonably could have found acts and conduct of the defendant consistent with waiver of the [completion date] provision.” (Citations omitted; internal quotation marks omitted.) Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn. App. 231, 239, 926 A.2d 1 (2007).

Although the contract imposed a completion date, the parties continued to work together and modified the completion date three times. As the court found, each time the defendants failed to meet the required completion date, the plaintiffs allowed them to continue working. Further, the plaintiffs failed to follow the agreed on payment schedule, which, according to the defendants, contributed to their failure to complete the project at the estimated completion dates. Accordingly, we conclude that the court’s finding that the parties waived the completion date provisions of the contract is supported by the record and, therefore, is not clearly erroneous.

Finally, the plaintiffs claim that the court improperly found that the defendants had not been unjustly enriched by the plaintiffs’ alleged overpayment. “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) Breen v. Judge, 124 Conn. App. 147,158-59, 4 A.3d 326 (2010).

The plaintiffs’ construction expert, Bjorn Wisecup, testified that 28.9 percent of the work had been completed at the time the plaintiffs terminated the contract. The plaintiffs argue that the defendants, therefore, are only entitled to 28.9 percent of the agreed upon $450,000 construction price, or a total of $130,050. The plaintiffs argue that, because they paid a total of $229,800, they effectively overpaid and unjustly enriched the defendants by $99,750. They assert that this court should rely on Wisecup’s testimony because the “reality is that [the] [defendants did not place into evidence any invoices, receipts or documents whatsoever evidencing costs and expenses for the [p]roject.”

The plaintiffs also failed to provide the court with “receipts, appraisals or testimony regarding the value of the labor and materials expended on the project up until the point the contract was terminated . . . .” Furthermore, the plaintiffs failed to demonstrate that the defendants received any benefit beyond the labor and costs associated with the work performed. Even if we were to assume arguendo that 28.9 percent of the work had been completed, there is no evidence in the record as to how much the defendants spent on labor and materials. Without those figures, we are left to speculate as to whether the defendants were unjustly enriched by the plaintiffs’ payments.

Because of the unique nature of this “at cost” contract, the court appropriately chose not to award damages using the mathematical formula advocated by the plaintiffs. The plaintiffs have failed to point us to any evidence in the record that would establish that the court improperly determined that the defendants were not unjustly enriched. Because the record lacks those findings of fact, we conclude that the court’s determination that the plaintiffs failed to prove that the defendants were unjustly enriched was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Olowosoyo is the founder and president of the defendant Starlight Construction Company, Inc.

       Adherence to the payment schedule was necessary in order for the defendants to have sufficient funds to obtain the necessary labor and materials to undertake and to complete the project in accordance with the parties’ agreement.

       The contract provided that the expected start date was to be two months from “contract acceptance.”

       The parties dispute whether the plaintiffs realized a profit or loss on the sale of the property, but the court made no finding of fact on that issue.

       The operative third amended complaint was filed on February 19, 2009, and included a fifth cause of action for conversion and a new sixth count seeking attorney’s fees pursuant to General Statutes § 42-150bb. On appeal, the plaintiffs have not pursued their claims alleging violation of CUTPA, piercing of the corporate veil and conversion.

       The plaintiffs further claim that the court improperly determined that they were not entitled to damages as a result of the defendants’ breach of the completion date provision of the contract. Because we conclude that the court properly found that the completion date provision of the contract was waived by the parties and, therefore, there was no breach by the defendants, we cannot conclude that the court improperly determined that the plaintiffs failed to prove that they were entitled to damages.