text:
    STATE OF CONNECTICUT v. WILLIAM P. MORRISSETTE, JR.
    (AC 28709)
    Gruendel, Lavine and Foti, Js.
    Argued November 27, 2007
    officially released February 12, 2008

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, William P. Mor-rissette, Jr., appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), arson in the first degree in violation of General Statutes § 53a-lll (a) (4), arson in the second degree in violation of General Statutes § 53a-112 (a) (1) (B) and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1). On appeal, the defendant claims that the trial court improperly restricted from evidence testimony supporting the defendant’s third party culpability claim. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant and his family lived in the same trailer park as the victim, Jack Barthelomy. The victim was the defendant’s neighbor, and the defendant parked one of his cars on the victim’s property. Also living with the defendant was his friend, William Lee, an African-American man. On September 19, 1997, the defendant, his wife and Lee were in the defendant’s trailer, drinking wine. According to Lee, the defendant said that he was going to the victim’s trailer because the victim had money and the defendant wanted some of it. The defendant then left his trailer. A while later, in response to a request from the defendant’s wife, Lee left the defendant’s trailer to look for the defendant. Standing outside with a view of the victim’s trailer, Lee saw the defendant inside the victim’s trailer pacing back and forth. Lee called to the defendant, and the defendant left the trailer carrying a white plastic shopping bag. Lee testified that the defendant told him that he gave the victim “a good whipping” but that the victim was okay. Lee could not see what was inside the bag, but the defendant told him it was $60 to $70 worth of pennies and a computer keyboard. The defendant left the bag outside his trailer and left the trailer park. He returned early the next morning but left again and was not seen by Lee at the trailer park until the early morning of September 22, 1997, when Lee awoke to the defendant’s presence in the defendant’s trailer. Lee further testified that he had never met the victim.

At 5 a.m. on September 22,1997, around the time the defendant came back to his trailer, firefighters responded to a fire in the victim’s trailer. While putting out the fire, firefighters found the body of the victim. An autopsy later revealed that the victim’s death was not caused by the fire but, rather, was caused by significant blunt trauma to the right side of his neck. An investigation of the fire revealed that it was set intentionally, and the police eventually arrested the defendant for the crimes committed.

During his trial, the defendant sought to establish a third party culpability defense that Lee, and not the defendant, was the perpetrator of the crimes. The defendant sought to develop his defense through several witnesses, including Lee; Charles Doolittle, the then owner of a package store that the victim and Lee had frequented prior to the victim’s death; and Anne Cushman, a woman who had allowed Lee to live with her and her family prior to Lee’s moving in with the defendant.

The court heard a proffer of a portion of Cushman’s testimony from defense counsel. Part of Cushman’s testimony was that immediately prior to living with the defendant, Lee lived with Cushman and her family in their trailer home. About one month after living in Cush-man’s home, Cushman discovered that Lee was stealing from her and using the money to buy alcohol and illicit substances. Cushman confronted Lee, told him he would have to leave and put his belongings on the front lawn. While Lee was removing his belongings from Cushman’s lawn, the two were arguing, and Lee told Cushman, “you had better shut the fuck up or I’m going to come back here and, in the middle of the night, bum down your trailer and kill all of you motherfuckers.”

The court also heard a proffer of testimony from Doolittle. Doolittle’s proffered testimony was that in 1997, he was the owner of Kathy’s Packy and Liquor Store and that he knew the victim as a customer. Just about every other day the victim would visit his store and would purchase a 1.75 liter bottle of Majorska vodka and three packs of Salem cigarettes. At some time during August and September, 1997, Doolittle sold Majorska vodka and Salem cigarettes to an African-American man who was approximately thirty years old and had dreadlocks or com rows. Doolittle specifically asked the man if he was making a “packy run” for the victim, and the man indicated that he was. The man purchased the items for the victim a few times. Further, when Doolittle testified before the jury, he testified that the man who purchased the items for the victim would leave the liquor store on foot in the direction of the trailer park in which the victim lived. Doolittle also testified that no other African-American individuals lived in this neighborhood.

The court allowed the defendant to elicit the testimony of Doolittle that tended to show that Lee knew the victim and, as such, discredited Lee’s testimony that he had never met the victim. The court, however, ruled that the portion of Cushman’s proffered testimony in which she indicated that Lee had stolen from her to buy alcohol and illicit substances and threatened to bum down her trailer with her and her family in it was inadmissible to show third party culpability, as it failed to connect directly Lee to the crimes committed against the victim. On appeal, the defendant claims that the court improperly excluded this portion of Cushman’s testimony, as it would have supported his theory that Lee had committed the crimes with which the defendant had been charged.

“We begin our analysis of the defendant’s claim by setting forth the applicable legal principles. The federal constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded. . . .

“We have recognized consistently that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged. . . . The defendant must, however, present evidence that directly connects a third party to the crime .... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . .

“The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. . . . Relevant evidence is evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . We previously have stated that [r]elevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Finally, [t]he trial court’s ruling on the relevancy of third party inculpatory evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. West, 274 Conn. 605, 624-26, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

The defendant argues that Cushman’s proffered testimony would have established Lee’s motive and opportunity and that, when considered in conjunction with Doolittle’s testimony, would have provided sufficient circumstantial evidence connecting Lee to the crimes with which the defendant had been charged. As the state points out, however, Cushman’s proffered testimony had a tendency to show only Lee’s purported propensity to steal, issue threats and commit arson. The alleged threat to Cushman and the alleged larceny of her property in no way established a motive or opportunity for Lee to commit the same crimes against the victim. As the court pointed out, “if Mr. Lee had told Ms. Cushman that Mr. Lee was going to bum down [the victim’s] trailer for some reason, that would probably be enough for . . . the jury to hear it.” That, however, was not the case. There was no proffered evidence of a direct connection, indeed any connection, between the crimes committed against the victim and any dealings Lee may have had with Cushman. The threat and alleged misconduct arose under different circumstances and were directed at a person other than the victim. See State v. Hernandez, 224 Conn. 196, 203, 618 A.2d 494 (1992) (court did not abuse discretion in failing to admit evidence that state’s witness had threatened to kill former girlfriend and her family ten months after murder of victim, as court reasonably could have determined proffered evidence too remote in time from murder, circumstances factually dissimilar and evidence did not directly connect witness to murder). For these reasons, the court did not abuse its discretion in failing to admit Cushman’s proffered testimony into evidence. Furthermore, no injustice was done because the defendant was allowed to develop his defense, including Lee’s motive and opportunity to commit the crimes, through Lee and Doolittle.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court did permit the defendant to call Cushman as a witness to testify that Lee had lived with her and her family prior to Lee’s living with the Morrissettes and allowed Cushman to testify as to Lee’s reputation for truth and veracity.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    QUESTECH FINANCIAL, LLC v. BENNI’S, LLC
    (AC 28334)
    Bishop, Harper and Foti, Js.

      Argued October 18, 2007
    officially released February 12, 2008

      Robert E. Kaelin, with whom were Michael H. Levison and, on the brief, Amanda F. Lawrence and Ronald S. Beacher, for the appellant (plaintiff).

      Stuart B. Ratner, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, QuesTech Financial, LLC, appeals from the judgment of the trial court, which granted the plaintiff the right to replevin certain goods and chattels in the possession of the defendant, Benni’s, LLC, while reserving for the defendant an opportunity to redeem, repurchase or bond those goods and chattels. We reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. The defendant owns and operates a Bennigan’s Grill and Tavern restaurant in Stamford. In 2002, the parties executed a note and security agreement by the terms of which the defendant became indebted to the plaintiff in the amount of $375,000. The agreement also contained a clause by which the defendant granted the plaintiff a “first priority security interest in and lien of’ the following assets: “All personal property, including (without limitation) all . . . equipment, inventory, goods, accounts, accounts receivable, contract rights, chattel paper, documents, fixtures, furniture, investment property, general intangibles, instruments, cash, deposit accounts, reserves, credits and any other funds due or to become due to [the plaintiff] . . . present and future attachments, accessories and accessions, spare parts, replacements, substitutions and exchanges or trade-ins with respect to, in connection with or generated by any of the foregoing . . . the products, proceeds, offspring, rents and profits of all of the foregoing, including insurance proceeds payable in respect of loss or damage to any of the foregoing and all other proceeds in whatever form . . .” (collateral). The defendant subsequently defaulted on the terms of the agreement, and the plaintiff accelerated the balance due thereupon. The plaintiff thereafter filed a replevin action pursuant to General Statutes § 52-515, seeking the immediate possession of the collateral in the defendant’s possession.

On February 8, 2005, the court entered a default against the defendant for failure to comply with certain discovery orders. On July 29, 2005, the plaintiff filed a motion for judgment seeking, inter alia, the authority to remove the collateral from the defendant’s restaurant. On July 13, 2006, the court granted the plaintiff’s motion for judgment, stating in relevant part that the plaintiff had “moved to immediately replevin the collateral in which it has a security interest, and consisting of goods and chattels located in Bennigan’s .... The plaintiffs motion for a judgment of replevin is granted . . . but is stayed for thirty (30) days to give the defendant an opportunity to redeem, repurchase or bond the goods and chattels located at Bennigan’s . . . ,” (Emphasis added.) The plaintiff subsequently filed a motion for reconsideration, arguing that “[n]o legal support exists under Connecticut law for [the court’s decision] to provide [the defendant] with the right to redeem, repurchase, or bond the [c]ollaterai.” The court denied the plaintiffs motion. This appeal followed.

The plaintiffs sole claim on appeal, which we will review under a plenary standard or review, is that the court improperly granted the defendant an opportunity to redeem, repurchase or bond the collateral. In so claiming, the plaintiff has renewed its argument that there was no basis in law on which the court could grant such an opportunity to the defendant. We agree with the plaintiff.

The defendant claims that the court’s authority is derived from its equitable powers. The defendant argues that a replevin action is the personal property equivalent of a foreclosure proceeding, and “Lj]ust as a mortgage foreclosure has been determined to be an equitable proceeding ... so must a replevin action be considered an equitable proceeding.” (Citation omitted.)

Unfortunately for the defendant, while “[foreclosure is peculiarly an equitable action”; Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966); “[i]n Connecticut, an action of replevin is purely statutory in nature.” Angrave v. Oates, 90 Conn. App. 427, 430, 876 A.2d 1287 (2005). The statute giving rise to an action of replevin, § 52-515, provides that “[t]he action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.” Section 52-515 unambiguously provides for the recovery of goods or chattels upon the proof of certain, specified criteria; nowhere does it provide an opportunity for redemption once those criteria have been established. All of the criteria were established in this case by way of the court’s entry of a default. See DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982) (“entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint”). Therefore, the court lacked a legal basis on which to grant the defendant an opportunity to redeem, repurchase or bond the goods or chattels subject to replevin.

The judgment is reversed only as to its affording the defendant an opportunity to redeem, repurchase or bond the goods or chattels subject to replevin and the case is remanded with direction to award the plaintiff the immediate and unconditional possession of the goods and chattels to be replevied. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We emphasize that the court restricted its judgment to the “goods and chattels” located at the defendant’s restaurant. To the extent that the plaintiff asserts that the court’s judgment encompassed all of the items in which it claims a security interest, we question whether all of those items are “goods and chattels” that are amenable to replevin. See General Statutes § 52-515. Nevertheless, the parties have not raised that issue, and, thus, it is not before us.

       “We afford plenary review to . . . questions of law.” Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 215, 821 A.2d 269 (2003).


author: McLACHLAN, J.

text:
    HIGHSTEAD FOUNDATION, INC. v. EDWARD W. FAHAN ET AL.
    (AC 27318)
    McLachlan, Gruendel and Dupont, Js.
    Argued November 14, 2007
    officially released February 12, 2008

      Neil R. Marcus, with whom was Barbara M. Schel-lenberg, for the appellants (named defendant et al.).

      Edward V. O’Hanlan, with whom was Thomas J. Donlon, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendants Edward W. Fahan and Heloise L. Fahan appeal from the judgment of the trial court quieting title to a 1.29 acre triangular parcel of undeveloped land located in Redding (disputed parcel) in favor of the plaintiff, Highstead Foundation, Inc. The defendants claim that (1) the court applied an incorrect standard of review in evaluating the parties’ title dispute and (2) the evidence did not support the court’s conclusion that the defendants had no right, title or interest in the disputed parcel. We affirm the judgment of the trial court.

The facts that follow were either found by the court or are not in dispute. The plaintiff is a nonprofit organization that owns and runs the Highstead Arboretum. The plaintiff and the Harvard University forest project collaborate on research projects and on the dissemination of information pertaining to conservation issues. In 1999, the plaintiff decided to purchase an additional parcel of land in Redding to increase the size of its holdings for such activities. In connection with that purchase, the seller, Hjalmar Anderson, had an A-2 survey prepared by Charles Farnsworth, a licensed land surveyor. The survey indicated that the area of the parcel to be purchased was 14.323 acres. The plaintiff took title to the property in July, 2000, by warranty deed referencing the Farnsworth survey.

The defendants own a tract of land adjacent to and on the westerly side of the property that the plaintiff purchased from Anderson in 2000. Edward W. Fahan initially purchased his property from Howard C. Platt in 1951. He took title by warranty deed, which indicated that the land was five acres in size, more or less. By straw deeds recorded in 1954, title to the property was conveyed to the defendants in survivorship. In 1986, Edward W. Fahan quitclaimed a portion of that property, “two and one-half . . . acres, more or less,” to Heloise L. Fahan. Accordingly, at the time of trial, a portion of the original tract conveyed to Edward W. Fahan in 1951 was held by the defendants in survivor-ship, and a portion of that tract was held by Heloise L. Fahan individually.

At some point in 2003, the defendants became aware of the Farnsworth survey, which indicated that their eastern border ran in a southwesterly direction. They retained the services of a surveyor, Paul Brautigam, to determine the easterly boundary line of their property, which they claimed ran in a southeasterly direction. At about that time, they began to post “no trespassing” signs in the disputed area and cleared a path through mountain laurel along their claimed boundary line. When those activities were brought to the plaintiffs attention, the plaintiff was concerned that the disturbances would compromise the ongoing research projects in that area. The plaintiff commenced this action, seeking a declaratory judgment that the defendants had no right, title or interest in the disputed parcel and a temporary injunction preventing them from entering the disputed parcel while the case was pending before the court. The defendants filed a counterclaim, alleging trespass in the first count and adverse possession in the second count.

During the course of a four day trial, the court heard testimony from several expert and fact witnesses for the plaintiff and the defendants. It also admitted numerous exhibits, including deeds and survey maps from both chains of title. Following trial, the court issued a memorandum of decision, ruling that the plaintiff was the record owner of the disputed parcel and that the defendants had not proved adverse possession.

In that decision, the court found that each side relied on a chain of deeds going back to the nineteenth century. The court noted, however, that at some point, there are inaccuracies in both chains. The “acreage calls” are understated if the disputed parcel is included in the land owned by the plaintiff or the defendants. If the defendants own the disputed parcel, their property would be 6.74 acres, more or less, instead of the five acres referenced in the 1951 and subsequent deeds. If the plaintiff owns the disputed parcel, its property would be 14.323 acres in size instead of eight acres, more or less, as recited in the deeds in its chain of title prior to the 1999 Farnsworth survey.

After noting the substantial tracing efforts of the parties, the court found that the “irreconcilable theories of ownership . . . stand in relative equipoise.” In resolving the impasse, the court found that the 1986 quitclaim deed from Edward W. Fahan to Heloise L. Fahan was a critical piece of evidence that supported the plaintiffs position. The court found that three references in that quitclaim deed, when considered in totality, indicated that the defendants believed in 1986 that their property consisted of five acres with its eastern border running in a southwesterly direction. Accordingly, the court concluded that the plaintiff was the record owner of the disputed parcel. The court rendered judgment in favor of the plaintiff, and this appeal followed.

I

The defendants first claim that the court applied an incorrect legal standard in evaluating the parties’ title dispute. Specifically, the defendants argue that the court relied almost exclusively on the 1986 quitclaim deed in its determination that they had no legal interest in the disputed parcel. According to the defendants, the court virtually ignored the evidence of their title as indicated in several warranty deeds and focused instead on a less reliable quitclaim deed.

The defendants mischaracterize the court’s finding with respect to the quitclaim deed as being the improper application of a legal standard. In this quiet title action, the plaintiff was obligated to establish its title claim to the disputed parcel by a preponderance of the evidence. See Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 797, 716 A.2d 141 (1998). The defendants do not claim that the court applied a different standard for its evidentiary review. Instead, they claim that the court’s reliance on one quitclaim deed to determine title was an improper placement of more weight on that piece of evidence than on the other exhibits they submitted to establish title.

Whether a disputed parcel of land should be included in one or another chain of title is a question of fact for the court to decide. Feuer v. Henderson, 181 Conn. 454, 458, 435 A.2d 1011 (1980). In such a determination, it is the court’s duty to accept the testimony or evidence that appears more credible. Id. It is well settled that we review the court’s findings of fact under the clearly erroneous standard. “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 . . . .” (Internal quotation marks omitted.) Palmieri v. Cirino, 90 Conn. App. 841, 846, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005).

The 1986 quitclaim deed was submitted as a joint exhibit at trial. It, therefore, properly was before the court for its consideration in determining record title to the disputed parcel. The defendants argue, however, that the court should not have relied so heavily on that exhibit when it had more compelling evidence establishing title, i.e., the warranty deeds they submitted as full exhibits. This argument fails for several reasons.

The defendants cite no persuasive authority for their proposition that a quitclaim deed is “not nearly as reliable a tool for determining title as is a warranty deed.” They simply recite the definition of a quitclaim deed as set forth in Black’s Law Dictionary and indicate that a warranty deed, unlike a quitclaim deed, conveys title with covenants. Here, contrary to the defendants’ claim, the court did not rely solely on the quitclaim deed in evaluating the parties’ title dispute. The court specifically referred to the tracing efforts of the parties with a chain of deeds going back to the nineteenth century. It was the 1986 quitclaim deed, however, that tipped the scales in favor of the plaintiffs claim to the disputed parcel.

The court found the 1986 quitclaim deed to be persuasive evidence in favor of the plaintiff. Noting that the grantor is one defendant and the grantee is the other defendant, the court indicated that the language in the deed constitutes an admission by the defendants. Our case law supports the court’s finding. See Aczas v. Stuart Heights, Inc., 154 Conn. 54, 59, 221 A.2d 589 (1966); U.S. Bank National Assn. v. Palmer, 88 Conn. App. 330, 336-38, 869 A.2d 666 (2005); Koennicke v. Maiorano, 43 Conn. App. 1, 19-20, 682 A.2d 1046 (1996).

The court then noted that there were three references in the quitclaim deed that militated against the defendants’ claim that they owned the 1.29 acre disputed parcel. First, the 1986 deed refers to the two and one-half acre parcel being conveyed as being “part of the property conveyed to the Grantor Edward W. Fahan by Warranty Deed dated February 21, 1951 . . . .” The 1951 warranty deed, admitted as an exhibit at trial, described the property as being five acres, more or less. Second, the 1986 deed refers to a 1974 map of the “Falassa” property, which adjoined that of the defendants. That map was admitted as an exhibit at trial and contains a dotted line showing the apparent eastern boundary on the defendants’ property running in a southwesterly direction, which supports the plaintiffs claim as to the location of that boundary. Third, the 1986 deed states that the easterly boundary of the property being conveyed is the center line of the wood road that “bisects” the tract as conveyed to the grantor in 1951. The court noted that the term “bisect,” as defined in Webster’s Third New International Dictionary, generally means to divide in two equal parts.

Although none of the three references could be considered completely unambiguous, the court found that, when considered together, it made it more likely than not that in 1986, the defendants believed their property to be approximately five acres in size with the eastern border running in a southwesterly direction. That was at a time when no property dispute existed between the plaintiff and the defendants. It was approximately seventeen years later, when the defendants became aware of the Farnsworth survey, that they took a different position and claimed at trial that the eastern border ran in a southeasterly direction.

“In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.” (Internal quotation marks omitted.) Torgerson v. Sarah Tuxis Residential Services, Inc., 81 Conn. App. 435, 440-41, 840 A.2d 66, cert. denied, 269 Conn. 903, 852 A.2d 737 (2004). We conclude that the court correctly took into consideration the language of the 1986 quitclaim deed, together with the attendant circumstances of the parties, and that its conclusions were not clearly erroneous.

II

The defendants next claim that the evidence did not support the court’s conclusion that they had no right, title or interest in the disputed parcel. Specifically, they argue that they presented evidence demonstrating that the only reasonable way to draw the boundaries of the properties at issue was in accordance with the survey prepared by their land surveyor, Brautigam. They claim that, given the testimony of their experts and the language in the deeds they submitted at trial, their evidence was more comprehensive and more persuasive.

“The trial court’s finding that the [disputed] tract was included in the deeds under the plaintiffs’ claim . . . must stand if there was reasonable evidence to support it, provided the court violated no rule of law or logic.” Feuer v. Henderson, supra, 181 Conn. 460. A substantial amount of evidence was presented by the parties at trial, consisting of more than forty exhibits, including maps, surveys, photographs and deeds together with considerable testimony from expert and fact witnesses. The defendants do not claim that there was no evidence to support the court’s conclusions; instead, they claim that their evidence was more substantial and comprehensive.

“[I]t is the function of the trial court to weigh the evidence and the credibility of the parties and to find the facts; we cannot retry the case on appeal.” Riscica v. Riscica, 101 Conn. App. 199, 207, 921 A.2d 633 (2007). Here, the court was faced with descriptions of the parties’ properties, which, prior to the 1999 Farnsworth survey and the 2004 Brautigam survey, traced their boundaries by reference to abutting landowners. The 1999 Farnsworth survey is an A-2 survey. It was prepared in connection with the sale of the property from Anderson to the plaintiff and not as an exhibit to be used in litigation. The 14.323 acre parcel includes the 1.29 acre triangular tract now claimed by the defendants. The 2004 Brautigam survey, prepared after the issue of ownership of the disputed parcel arose, is a compilation plan prepared for the express purpose of depicting the eastern border of the defendants’ property. The plaintiffs expert, an attorney who specialized in real estate examination, abstraction and certification, testified that in his opinion, the plaintiff was the record owner of the disputed parcel.

The thrust of the defendants’ argument is that the court should have credited their evidence and found in their favor. We conclude that the record contains ample evidence to support the court’s conclusion as to the ownership of the disputed parcel and that its factual determinations were not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

APPENDIX

       Armondo Bonsignore and Mary Bonsignore also were named as defendants in this action. Mary Bonsignore died before the complaint was filed. The plaintiff filed an amended complaint after the trial commenced in which it withdrew its claims against Armondo Bonsignore. The defendants’ counsel filed an amended answer, special defenses and counterclaim in response to the amended complaint, in which he withdrew the counterclaim of Armondo Bonsignore. The Bonsignores were no longer parties at trial and axe not parties to this appeal. We therefore refer in this opinion to the Fahans as the defendants.

       See the accompanying sketch in the appendix. The sketch is not drawn to scale. It is provided solely as a visual aid for the reader.

       The parties entered into a stipulated agreement shortly after the action was commenced, which was approved by the court, granting the plaintiffs application for a temporary injunction that restricted the defendants’ access to the disputed parcel on certain terms and conditions. The agreement specifically provided that the terms of the agreement were not admissible at trial and could not be deemed admissions by the parties.

       In this appeal, the defendants do not challenge the court’s determination that they failed to prove their adverse possession claim.

       An “acreage call” is the designated quantity of land specified in a deed. U.S. Bank National Assn. v. Palmer, 88 Conn. App. 330, 331 n.1, 869 A.2d 666 (2005).

       The defendants claim that the court ignored the warranty deeds they submitted at trial. The memorandum of decision does not state specifically what reliance the court placed on those deeds, although it does mention the tracing efforts of the parties. If the defendants believed the decision was unclear in this respect, they should have filed a motion for articulation with the trial court.

       The parties agreed at trial that the proper spelling of the last name is “Falasca.”

       Edward W. Fahan testified at trial that the 1986 deed was executed to facilitate possible future development of the parcel with respect to zoning issues. He also testified that the wood road did not divide the original tract in half. For those reasons, the defendants argue that the general definition of “bisect” does not apply under the circumstances of this case.

        The court chose not to credit that testimony. “[T]o the extent that the court’s findings of fact are dependent on its assessment of the credibility of witnesses, we will not second-guess those findings. The sifting and weighing of evidence is peculiarly the function of the trier. [NJothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Menard v. Gaskell, 92 Conn. App. 551, 557, 885 A.2d 1254 (2005).


author: PER CURIAM.

text:
    CITIBANK (SOUTH DAKOTA), N.A. v. LESLIE T. MANGER
    (AC 27773)
    DiPentiina, Harper and Foti, Js.
    Submitted on briefs November 15, 2007
    officially released February 12, 2008

      Christopher G. Winans filed a brief for the appellant (defendant).

      Donald E. Frechette and Joseph R. Geoghegan filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Leslie T. Manger, appeals from the summary judgment rendered by the trial court in favor of the plaintiff, Citibank (South Dakota), N.A. The defendant claims that the court applied an improper summary judgment standard and improperly failed to recuse itself after exhibiting bias toward the defendant at oral argument. We affirm the judgment of the trial court.

The following facts are not contested by the defendant. Prior to the commencement of this litigation, the defendant obtained an AT&T Universal credit card account from the plaintiff. The defendant subsequently accrued a balance of $12,777.29 on the account. Although the defendant made payments on this balance for a time, the balance eventually grew to $19,501.32. The plaintiff sent the defendant monthly statements evidencing the balance due. Prior to the commencement of this lawsuit, the defendant did not dispute the balance due listed on any of these statements. After the defendant failed to make payments in accordance with the credit card agreement, the plaintiff commenced this lawsuit sounding in account stated. The plaintiff thereafter filed a motion for summary judgment, which was supported by an affidavit alleging the foregoing facts. Although the defendant filed an objection to the plaintiffs motion, the objection was not supported by an affidavit or other evidence. The court granted the plaintiffs motion and thereafter rendered judgment in the amount of $19,501.32. This appeal followed.

The defendant’s primary claim on appeal is that the court improperly granted the plaintiffs motion for summary judgment because the plaintiff failed to demonstrate the nonexistence of a genuine issue as to each and every fact alleged in its complaint.

The defendant first argues that the corporate identity of the plaintiff and the residence of the defendant remain in dispute. The defendant has misconstrued our standard for summary judgment in making this argument. “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 of material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Bragdon v. Sweet, 102 Conn. App. 600, 604, 925 A.2d 1226 (2007). “Although facts may be in dispute, the disputed facts must be material. That is, the facts must satisfy the elements [of the alleged cause of action].” Carnemolla v. Walsh, 75 Conn. App. 319, 323-24, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003). Neither the identify of the plaintiff nor the residence of the defendant are material, as they are not elements of a cause of action based on an account stated and, thus, were not relevant for the plaintiff to prevail on its motion for summary judgment.

The defendant next argues that a genuine issue of material fact existed as to the plaintiffs allegation that “the [defendant] was extended credit.” On appeal from the granting of a motion for summary judgment, “[w]e must decide whether the trial court [incorrectly determined] that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment ... as a matter of law, our review is plenary and we must decide whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn. App. 762, 766, 886 A.2d 1248 (2005).

Contrary to the defendant’s contention, the court in its ruling on the plaintiffs motion for summary judgment concluded that no genuine issue of fact existed as to the averment in the plaintiffs affidavit, submitted by the plaintiff in support of that motion, that unambiguously stated that “[o]n January 20, 1999, the [defendant utilized $12,777.29 in convenience checks” and, as a result, became indebted to the plaintiff. Furthermore, the defendant failed to submit any evidence to rebut the evidence submitted by the plaintiff. “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). The court’s conclusion that there was no genuine issue that the plaintiff had extended the defendant credit was thus legally and logically correct.

The judgment is affirmed.

       We decline to review the defendant’s second claim because “[i]t is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial”; Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); which the defendant failed to do.

       “The delivery by the [creditor] to the [debtor] of each statement of the latter’s account, with the [documentation] upon which the charges against [the debtor’s account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute^] an account stated which is prima facie evidence of the correctness of the account.” General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932).

       Rather, these facts relate to the court’s jurisdiction, which the defendant has not contested.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. LINDA HOWARD
    (AC 27786)
    Gruendel, Lavine and Stoughton, Js.

      Argued October 23, 2007
    officially released February 12, 2008

      Leo E. Ahem, for the appellant (defendant).

      Christopher T. Godialis, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Annemarie L. Braun, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Linda Howard, was convicted, after a trial to the jury, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119 (1) and 53a-122, and larceny in the second degree in violation of General Statutes § 53a-123 (a) (5). She has appealed from the judgment of conviction rendered after the guilty verdict. Her only claim on appeal is that the court improperly excluded from evidence a document that she characterizes as a statement of David D. Seymour, the victim of the larcenies. We affirm the judgment of the trial court.

From the evidence offered at the trial, the jury reasonably might have found facts as recited herein. The defendant lived in Seymour’s house between January 1, 2000, and July 9, 2003, as his resident health care aide. Seymour was then in his eighties, having been bom on December 14,1917. The defendant cooked and cleaned for Seymour and assisted him with his personal hygiene. Seymour had worked as a tool and die maker for many years and had saved a few hundred thousand dollars for retirement. The defendant, having developed apersona! relationship with Seymour, used his signature stamp to make more than $300,000 worth of checks drawn on his bank accounts payable to herself and others. She used the proceeds for her benefit and to benefit some of her relatives. On July 9, 2003, Seymour was transported to Griffin Hospital in Derby where he learned, to his evident surprise and distress, that he was without funds. He was obliged to obtain financial assistance from the state and never returned to his home. He died in a nursing home on April 7, 2004. The defendant claimed that all of the checks were made with Seymour’s knowledge and consent.

Although she did not testify, as a part of her defense, the defendant attempted to introduce a writing that she characterized as a statement of Seymour. Her unsuccessful attempt is the subject of this appeal. Outside of the presence of the jury, in an offer of proof, the defendant called as a witness Tawanna Page, her daughter. Page testified that while she was at work on January 1, 2003, the defendant telephoned and asked her to type a letter for her. The defendant dictated and Page wrote down in longhand the defendant’s dictation. Page then typed the dictation and made copies and took them to the defendant, who was with Seymour in his room. The writing is as follows:

“January 1, 2003

“To Whom it May Concern:

“I, David D. Seymour, being of sound mind am writing to inform the necessary parties of the liquidation of my assets. These funds were slowly distributed to [the defendant], my caretaker. She has proven to be faithful, committed, caring, loving, patient, and honest to my late wife and me. I appreciate her for keeping me in my home until I am no longer able to stay here. I have no regrets for all that I have given her. I willingly write and sign this letter in case of any disputes, between or from family members, regarding the whereabouts of my assets. [The defendant] has done all she could to fulfill my request to stay at home and I am especially grateful.

“Sincerely,

“X /s/ David D. Seymour

“David D. Seymour.”

Above the name and next to the X is what is purported to be the signature of Seymour. Page testified that she gave the copies of the document to the defendant, who read it out loud and gave the copies to Seymour. Page testified that Seymour began to look at them and put them on a table and began to sign them. She testified on cross-examination that she did not put the X on the writing and did not know who had put it there.

The defendant contends in her brief that the statement was offered to show Seymour’s state of mind at the time when the prosecution alleged that she was embezzling money from him. The state objected to the admission of the writing on the ground of hearsay and further that it lacked authentication. The following discussion ensued:

“The Court: What is your objection?

“[The Prosecutor]: My objection is lack of authenticity, and I also object on the grounds of hearsay. . . . The hearsay is that this is a statement by the victim. He’s unavailable and . . . unless it fits into a colorable hearsay exception . . . but there is not a hearsay exception that covers this. This is certainly not state of mind. . . . The letter is past looking . . . the state of mind exception requires [the statement to be] present or forward looking.”

The defendant did not take issue with the prosecution’s assertion that the information in the letter constituted hearsay but claimed that the writing was nevertheless admissible pursuant to an exception to the rule against hearsay because it showed Seymour’s then present state of mind.

The court sustained the hearsay objection on the grounds that the statement was past looking and not reliable. Specifically, the court stated: “Well, the problem is . . . you’re trying to get this statement in through the person who was called on the phone to type a letter. . . . [Page] gets a call from her mother, the defendant, to type a letter for her. It is a past looking statement. I’m not aware of any hearsay exception that it falls under. . . . It’s not in [Page’s] regular course of business to type up letters on behalf of her mom and . . . Seymour. She also—I think she testified in the offer of proof, I believe, ‘my mom and . . . Seymour needed something in writing.’ She doesn’t remember the X being put on the letter. For all those reasons, it’s not reliable. It’s hearsay, and I will not allow [it].”

The defendant, on appeal, does not challenge the state’s characterization of the statement as hearsay but, instead, argues that the court improperly excluded the letter because, she asserts, the letter was admissible pursuant to the state of mind exception to the rule prohibiting the admission of hearsay evidence, and the letter was properly authenticated by Page’s testimony.

The state of mind exception to the hearsay rule is set forth in § 8-3 (4) of the Connecticut Code of Evidence and permits a statement of a declarant’s then existing mental or emotional condition. Specifically, § 8-3 (4) provides that “[a] statement of the declarant’s then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future, provided that the statement is a natural expression of the condition and is not a statement of memoiy or belief to prove the fact remembered or believed” is not excluded on the basis of hearsay.

The court excluded the contents of the letter as not satisfying the state of mind exception on two independent grounds—that it consisted of past looking statements and that the statements were unreliable. The defendant challenges the first ground relied on by the court in its determination to exclude the letter, namely, that the letter consisted of wholly past looking statements. She then provides an abbreviated analysis asserting that the letter was properly authenticated, stating in her appellate brief: “[Page] testified that she saw . . . Seymour read and sign the statement. This witness with knowledge of the direct facts is sufficient authentication of the document to support its admission. . . . Cross-examination is the mechanism to test what weight it ought to be given.” (Citations omitted.) Thus, the defendant asserts that the court’s determination was based, in part, on the defendant’s failure to authenticate the letter properly.

Despite the assertion of the defendant, the record reveals that the court did not exclude the evidence on the ground that she failed to authenticate the writing adequately, as is required pursuant to § 9-1 of the Connecticut Code of Evidence but, rather, on the ground of its determination that the contents of the writing were not sufficiently reliable to satisfy the hearsay exception. Because the defendant has failed to challenge one of the grounds relied on by the court to exclude the evidence, we decline to review the challenge to the court’s determination. See State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007) (claim not raised on appeal deemed abandoned); Doe v. Christoforo, 87 Conn. App. 359, 365, 865 A.2d 444 (when court excludes evidence on multiple grounds, appellant does not prevail by refuting only one ground), cert. granted on other grounds, 273 Conn. 920, 871 A.2d 1027 (2005) (appeal withdrawn October 13, 2005).

The defendant has also claimed that the writing is admissible pursuant to the residual exception to the hearsay rule found in § 8-9 of the Connecticut Code of Evidence. This claim was not raised in the trial court. We have consistently declined to review claims not raised in the trial court; State v. Gebhardt, 83 Conn. App. 772, 778, 851 A.2d 391 (2004); and, accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court, B. Fischer, J., subsequently merged counts one and two at sentencing.