author: WEST, J.

text:
    FRANKLIN CREDIT MANAGEMENT CORPORATION v. THOMAS J. NICHOLAS ET AL.
    (AC 22186)
    Schaller, Flyxrn and West, Js.
    Argued September 20 —
    officially released December 3, 2002

      Matthew B. Woods, with whom, on the brief, was David F. Borrino, for the appellant (substitute plaintiff).

      Lloyd L. Langhammer, with whom, on the brief, was Richard Pascal, for the appellee (named defendant).
   Opinion

WEST, J.

In this mortgage foreclosure action, the substitute plaintiff, Mortgage Electronic Registration Systems, Inc., appeals from the judgment of the trial court rendered in favor of the defendant Thomas J. Nicholas. The plaintiff claims that the court (1) lacked personal jurisdiction over the parties pursuant to General Statutes § 51-183b and (2) improperly rendered judgment in favor of the defendant on the ground that the debt previously had been discharged. We affirm the judgment of the trial court.

The court found the following facts. On January 27, 1989, the defendant and his then wife, Ellen C. Brown, mortgaged the premises at 214 Lantern Road, Ledyard, to New London Federal Savings and Loan Association, the plaintiffs predecessor in interest (bank). The note was in the amount of $206,000. Beginning in May, 1991, the defendant and Brown defaulted on their monthly obligation under the note. In that year, the defendant and Brown separated, but the defendant continued to reside at the subject premises.

In 1994, the bank failed and was taken over eventually by Resolution Trust Corporation (Resolution Trust). At the end of 1994, Brown filed a petition in bankruptcy, listing the subject note as a debt to be discharged. On April 14, 1995, Resolution Trust issued an Internal Revenue Service (IRS) form 1099-C (form 1099-C) to both Brown and the defendant, notifying them that it had discharged the debt under the note. The defendant reported the cancellation of the debt, as indicated on the form 1099-C, in his 1995 income tax returns and incurred tax consequences.

In December, 1995, Franklin Credit Management Corporation (Franklin Credit) purchased the note from Resolution Trust, as part of a bulk transfer. At the time, Resolution Trust apprised Franklin Credit that all of the relevant documents may not be in the loan files and expressly disclaimed all warranties and representations regarding the defendant’s mortgage and note prior to their sale. In June, 1998, Franklin Credit commenced a mortgage foreclosure action against the defendant. In response, the defendant filed an answer, special defenses, a claim for setoff and multiple counterclaims, which Franklin Credit thereafter sought to strike. The court, Parker, J., granted the motion to strike, except as it pertained to the defendant’s special defense that the debt had been discharged and released pursuant to form 1099-C.

The matter was tried to the court, Hon. D. Michael Hurley, judge trial referee, on January 17 and 19, 2001. The court rendered its judgment in favor of the defendant, concluding that the defendant’s debt had been discharged. Franklin Credit filed a motion to set aside the judgment, which the court denied. Franklin Credit appealed. Additional facts will be set forth as necessary.

I

We first consider the plaintiffs claim that the court lacked personal jurisdiction over the parties to render its judgment because its decision was not issued within 120 days of the completion of trial in violation of § 51-183b. We disagree.

The following additional facts are necessary to our resolution of the plaintiffs claim. At the conclusion of evidence, the court directed the parties to submit simultaneous briefs by February 20, 2001. The parties filed their briefs as ordered. On April 11,2001, the defendant submitted an unsolicited supplemental brief (unsolicited brief), which the court accepted without comment. Franklin Credit did not object to the defendant’s unsolicited brief. The court rendered judgment in favor of the defendant on July 12, 2001. On July 23, 2001, Franklin Credit filed a motion to set aside the judgment and for a mistrial on the basis of the court’s having failed to render its judgment within 120 days of February 20, 2001. Furthermore, Franklin Credit argued that the court had not requested or ordered briefs subsequent to February 20, 2001, or requested an extension of the 120 day limit imposed by § 51-183b. The court denied the motion to set aside the judgment.

After Franklin Credit appealed, it filed a motion for articulation; see Practice Book § 66-5; which the court denied. Franklin Credit filed a motion for review. See Practice Book § 66-6. This court granted the motion for review and ordered the trial court to articulate its decision to deny the motion to set aside. In its articulation, the court noted that it had accepted the defendant’s unsolicited brief and that Franklin Credit had not objected to the brief, either in terms of its content or its effect on the timing of the decision. The court articulated that it had utilized the unsolicited brief, at least, in determining when its decision was due. The court cited several opinions from the appellate courts of this state in support of its conclusion that Franklin Credit had waived its right to object to a decision rendered within 120 days of April 11, 2001. See Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984); Northeast Savings, F.A. v. Scherban, 47 Conn. App. 225, 230-32, 702 A.2d 659 (1997), cert. denied, 244 Conn. 907, 714 A.2d 2 (1998); Ippolito v. Ippolito, 28 Conn. App. 745, 748-50, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992). We conclude that the court properly applied our case law in denying Franklin Credit’s motion to set aside.

General Statutes § 51-183b provides in relevant part: “Any . . . judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.” (Emphasis added.)

“Section 51-183b applies to all civil causes, and unless the parties waive its provisions, a trial court must render its decision within 120 days of the completion of the trial, which ends with the filing of the briefs when requested.” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Scherban, supra, 47 Conn. App. 231. Courts have “held that briefing of the legal issues [is] a component of the judicial gathering of the materials necessary to a well-reasoned decision. In related contexts, completion has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision.” (Internal quotation marks omitted.) Id.

“Cases interpreting the statute have established that the defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. . . . We have characterized a late judgment as voidable rather than as void . . . and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties. . . . Thus, if both parties simultaneously expressly consent to a late judgment, either before the judgment is [rendered], or immediately thereafter, the judgment is valid and binding upon both parties, despite its lateness. Express consent, however, is not required. If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied. . . . Because consent may be implied from a failure to object seasonably after a delayed judgment has been rendered, these cases do not support the [notion] that § 51-183b invariably requires the prior consent of both parties in order to waive the time limits the statute imposes.

“These implied consent cases establish that an unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void.” (Emphasis in original; internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 341-42, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).

This court has recognized that waiver of the 120 day requirement need not be express and may be implied from a party’s conduct. See Hargrove v. Zoning Board of Appeals, 64 Conn. App. 251, 254, 779 A.2d 856 (2001), citing Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App., 89, 96-97, 669 A.2d 620, cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996). “Whether a waiver has occurred is a factual question, reviewable under the clearly erroneous standard.” Ridgefield v. Eppoliti Realty Co., supra, 71 Conn. App. 340. “A finding is clearly erroneous 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.) L & R Realty v. Connecticut National Bank, 246 Conn. 1, 8-9, 715 A.2d 748 (1998).

The facts of this case are controlled by Ippolito v. Ippolito, supra, 28 Conn. App. 748-50. Here, as in Ippolito, one of the parties submitted an unsolicited brief subsequent to the time the court established for the submission of briefs after the close of evidence. In both cases, the opposing party did not object to the unsolicited brief or seek to strike the brief. Neither of the courts returned the briefs or asked the parties to agree to extend the time in which the decisions were to be rendered. In Ippolito, the failure of the opposing party to file an objection to the unsolicited brief constituted implied consent to extend the period of 120 days from the completion of evidence. Id., 750.

Here, we note that Franklin Credit not only failed to object to the filing of the unsolicited brief, but also failed to object when the court had not rendered a decision 120 days after the simultaneous briefs were due, i.e., February 20, 2001. Rather, it appears that Franklin Credit waited for the court’s decision. When it received an unfavorable decision, Franklin Credit filed a motion to set aside the judgment. By failing to raise a seasonable objection to the unsolicited brief or to the passage of 120 days from February 20, 2001, prior to the time the court rendered its judgment, Franklin Credit by implication waived the time provision of § 51-183b. The court’s finding was not clearly erroneous, and we, therefore, conclude that it properly denied the motion to set aside the judgment.

II

We now turn to the plaintiffs claim that the court improperly (1) concluded that the defendant had proved his special defense that Resolution Trust had intended to discharge the debt by issuing a form 1099-C, (2) shifted the burden of persuasion to Franklin Credit to prove that Resolution Trust did not intentionally cancel the debt, (3) determined that the form 1099-C was a signed writing and (4) denied foreclosure on general equitable grounds not pleaded by the defendant. We are not persuaded by the plaintiffs claims.

Mortgage foreclosure appeals are reviewed under an abuse of discretion standard. “A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Rosenblit v. Williams, 57 Conn. App. 788, 792, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000).

In a mortgage foreclosure action, “[t]o make out its prima facie case, [the foreclosing party] had to prove by a preponderance of the evidence that it was the owner of the note and mortgage and that [the mortgagee] had defaulted on the note.” Webster Bank v. Flanagan, 51 Conn. App. 733, 750-51, 725 A.2d 975 (1999). “At common law, the only defenses to an action of this character would have been payment, discharge, release or satisfaction ... or, if there had never been a valid lien.” (Emphasis added; internal quotation marks omitted.) Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

Franklin Credit alleged, among other things, that it is the owner of the note and that the note was in default. In response, the defendant asserted the special defense that “[t]he debt subject of the lawsuit was discharged and released, including as evidenced by Form 1099 issued by [Franklin Credit’s] predecessor to the right, title and interest in the debt instruments.”

In their briefs to the trial court and to this court, the parties cite General Statutes § 42a-3-604 (a) and cases interpreting it to support their positions as to the discharge and release of the note. The court relied on that statute, in part, when rendering its decision. General Statutes § 42a-3-604 (a) provides: “A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument (i) by an intentional voluntary act, such as surrender of the instrument to the party, destruction, mutilation, or cancellation of the instrument, cancellation or striking out of the party’s signature, or the addition of words to the instrument indicating discharge, or (ii) by agreeing not to sue or otherwise renouncing rights against the party by a signed writing.” (Emphasis added.) Our review of the court’s interpretation of the statute and the statute’s applicability to the facts of this case is plenary. See New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 599 n.7, 717 A.2d 713 (1998).

A

The plaintiff claims that the court improperly determined that the defendant had proven that Resolution Trust intentionally discharged the debt by sending him form 1099-C and required Franklin Credit to prove mistake. Although the plaintiff does not deny that the form 1099-C was sent to the defendant, it claims that the form was sent to the defendant in error and that Resolution Trust never intended to discharge the defendant’s debt. We disagree that the defendant failed to prove that Resolution Trust intentionally discharged the debt or that the court improperly placed the onus of proving mistake on Franklin Credit.

The following facts are relevant to our resolution of the plaintiff’s claim. Franklin Credit’s postevidence brief to the trial court, as well as the plaintiffs brief to this court, took the position that only subsection (ii) of § 42a-3-604 (a) is applicable to the defendant’s special defense. At page eight of its trial brief, Franklin Credit stated: “Only the provisions of [Uniform Commercial Code] § 3-604 (a) (ii) are relevant. None of the means of canceling a debt listed in Uniform Commercial Code § 3-604 (a) (i) are applicable to this case. . . . Therefore, [the defendant] can only prevail on his special defense by proving the defense of discharge by an agreement not to sue or some other renunciation of rights by a party entitled to enforce the note in a separate, signed writing . . . .” (Emphasis added.)

Section 42a-3-604 (a) provides in relevant part: “A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument . . . (ii) by agreeing not to sue or otherwise renouncing rights against the party by a signed writing.” The court determined that form 1099-C was a signed writing that discharged and released the defendant’s debt to the plaintiff. In rendering its decision, the court cited Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). We first note that the facts of Dowling are substantially different from the facts before us. In that case, the language of the statutory provision at issue was similar to § 42a-3-604 (a) (i). The question was whether the bank intended to cancel the debt when it mistakenly sent a note marked paid in full to the debtor. There was no question that there had been a mistake because the debtor himself actually brought certain facts to the bank’s attention. Later, when the bank attempted to collect the remainder of the debt, the debtor attempted to use the canceled note as a defense.

The court reasoned that “[t]he cancellation of a negotiable instrument generally has no effect when it is made by mistake. . . . Mistake is not readily susceptible of general definition. To the extent that a comprehensive definition of the term can be fashioned, it has been said that it signifies an erroneous mental conception which influences a person to act or to omit to act . . . .” (Citations omitted; internal quotation marks omitted.) Id., 379-80. Whether Resolution Trust sent the defendant form 1099-C on the basis of such an erroneous conception is a question of mental state or intent. A creditor’s intent to cancel a debt is an issue of fact to be determined by the trier of fact. Id., 380.

To prove his special defense of discharge and release, the defendant placed into evidence form 1099-C. The plaintiff claims that this was insufficient to prove that Resolution Trust intended to discharge the debt and, furthermore, that the court improperly shifted the burden of persuasion to Franklin Credit to rebut the presumption of the validity of the form 1099-C. The court concluded, however, that once the defendant put form 1099-C into evidence, it was prima facie evidence of Resolution Trust’s intent to discharge. See First State Bank of Bryson v. Johnson, 585 S.W.2d 917, 919 (Tex. App. 1979) (“Uncontradicted, a receipt establishes facts therein stated as a matter of law. ... A note introduced by a plaintiff in a suit thereon makes a prima facie case. A release for such note then being introduced makes a prima facie rebuttal. Plaintiff had the burden to go forward with rebuttal of such release.” [Citation omitted.]).

“[T]he term prima facie case has been utilized, according to [one commentator on the law of evidence] . . . where the proponent, having the burden of proving the issue . . . has not only removed by sufficient evidence the duty of producing evidence to get past the judge to the jury, but has gone further, and, either by means of a presumption or by a general mass of strong evidence, has entitled himself to a ruling that the opponent should fail if he does nothing more in the way of producing evidence.” (Emphasis in original; internal quotation marks omitted.) Berchtold v. Maggi, 191 Conn. 266, 270-71, 464 A.2d 1 (1983). The court found that after the defendant had put form 1099-C into evidence, Franklin Credit presented no evidence that the form was intended to discharge Brown’s debt alone. Franklin Credit presented no evidence of the practices and procedures of Resolution Trust or whether a mistake had occurred or how the mistake had occurred.

We therefore conclude that the court properly determined that, in the absence of any evidence to support the claim of mistake, the defendant had proven that the note was discharged, and that the court did not improperly shift the burden of persuasion to Eranklin Credit to prove mistake.

B

The plaintiff also claims that the court, citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 532, 457 A.2d 656 (1983) (letterhead or billhead satisfies signature requirement), improperly found that form 1099-C satisfied the writing requirement of § 42a-3-604 (a) (ii). The court stated that form 1099-C contains the names of the defendant and Brown, the amount of the debt that was discharged and Resolution Trust’s name, address and federal identification number. We agree that the contents of form 1099-C, as found by the court, constitute a signed writing and meet the requirements of § 42a-3-604 (a) (ii).

Our statutes define the term “signed” in accordance with the Uniform Commercial Code. “ ‘Signed’ includes any symbol executed or adopted by a party with present intention to authenticate a writing.” General Statutes § 42a-l-201 (39). Our conclusion that form 1099-C is a signed writing is consistent with the official comment of the Uniform Commercial Code. “The inclusion of authentication in the definition of ‘signed’ is to make clear that as the term is used in this Act a complete signature is not necessary. Authentication may be printed, stamped or written; it may be by initials or by thumbprint. It may be on any part of the document and in appropriate cases may be found in a billhead or letterhead. No catalog of possible authentications can be complete and the court must use common sense and commercial experience in passing upon these matters. The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing.” (Emphasis added.) American Law Institute, Uniform Commercial Code (2002) § 1-201, official comment (39). Common sense and commercial experience were the keys in the court’s analysis of the authentication of the form 1099-C at issue here.

As the court recognized, under federal law, a financial institution such as Resolution Trust must send a copy of form 1099-C to a debtor when it discharges a debt. The form 1099-C informs the debtor of the amount of the debt that has been discharged and that the debtor must generally report the discharged amount as income on his federal income tax return. The form 1099-C contains a box that, when marked, indicates that the creditor has made corrections to the form. Implicit in the instructions on the form is the threat of monetary fines and penalties if the debtor chooses not to declare the discharged debt as income to the IRS.

This court takes judicial notice of the fact that form 1099-C is preprinted so that a financial institution merely needs to supply the relevant information. The form is used in the ordinary course of business to inform debtors of the cancellation of debt. Form 1099-C, therefore, was prima facie evidence that the debt had been discharged.

Furthermore, that conclusion is consistent with the weight of authority as to intention to sign. The United States Court of Appeals for the Second Circuit upheld a bankruptcy referee’s construction of the term “signed” under § 42a-l-201 (39) in Benedict v. Lebowitz, 346 F.2d 120 (2d Cir. 1965). In Benedict, the petitioner in bankruptcy and her husband had signed a chattel mortgage in favor of the defendant, who “prepared a financing statement, State of Connecticut Standard Form UCC-1 used in connection with Uniform Commercial Code filings, by typing in the appropriate boxes thereon his name and address and the names and addresses of the [debtors]. He also obtained the signatures of the [debtors] at the bottom of the financing statement. He did not add his own signature, however, because of a misinterpretation of the instructions printed at the top of Form UCC-1. [The defendant] then forwarded the chattel mortgage, the financing statement, and a filing fee, to the Secretary of State.” Id., 121. The plaintiff bankruptcy trustee opposed the defendant’s reclamation petition because form UCC-1 was not signed.

The Second Circuit quoted from the referee’s decision, which had granted the reclamation petition and thereafter was confirmed by the United States District Court for the District of Connecticut. Id., 122. The referee “held that the act of [the defendant’s] secretary in typing his name on the financing statement at his direction, coupled with his subsequent act of filing the statement, constituted [the defendant’s] effort and indicated his intention to authenticate the statement, i.e., to establish it, so far as [the defendant] was concerned, as the genuine financing statement of the transaction. The referee noted that [the defendant] neglected to inscribe his signature at the bottom of the financing statement as well, only because of his misunderstanding of the instructions of Form UCC-1. The referee added that [the defendant’s] filing of the chattel mortgage . . . with the financing statement serves quite abundantly further to demonstrate that the financing statement was an honest, genuine statement of [the defendant]. ” (Internal quotation marks omitted.) Id.

In the case before this court, the plaintiff does not deny that the form 1099-C was sent to the defendant. It claims, however, that the defendant has not proved that form 1099-C was a signed writing. In keeping with the holding of Benedict v. Lebowitz, supra, 346 F.2d 120, Resolution Trust’s completion of form 1099-C and sending it to the defendant was sufficient to authenticate the document. See also In the Matter of Steven Horvath, 37 Conn. B. J. 578, 579 (1963) (“There was no direct evidence that [the creditor] intended its typed name to constitute its authentication or its evidencing of the genuineness of the statement. But, from all that has been before the court on this matter, it is clear that the bankrupt and [the creditor] did enter into a bona fide trust receipts financing arrangement; that the bankrupt signed the financing statement which bears the typed name of [the creditor] in the blank provided for the signature of the secured party; that the financing statement was filed with the Secretary of State to give notice of the asserted security interest of [the creditor]. From all this, common sense compels the conclusion that the typed name of [the creditor] on the statement could have been intended for no other purpose than to reflect a showing by [the creditor] that the statement was genuine and was to evidence a bona fide security interest obtained by it. Thus, that typed name constituted a sufficient signing to meet the loose, relaxed requirement of the Code.”).

The referee in Benedict also found support for his position in General Statutes § 42a-l-102, which provides in relevant part that “[t]his title shall be liberally construed and applied to promote its underlying purposes and policies ... to simplify, clarify and modernize the law governing commercial transactions.” (Internal quotation marks omitted.) Benedict v. Lebowitz, supra, 346 F.2d 122.

We therefore conclude that the court properly determined that form 1099-C was a signed writing discharging the defendant’s debt.

C

The plaintiffs final claim is that the court improperly determined that foreclosure should be denied on equitable grounds not pleaded by the defendant. We disagree.

As we set out at the beginning of part II, a mortgage foreclosure action is an equitable proceeding. What equity requires is a matter of discretion for the court. Rosenblit v. Williams, supra, 57 Conn. App. 792. “[T]he court may entertain such questions as are necessary to be determined in order that complete justice may be done. Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). In a foreclosure proceeding, the trial court may examine all relevant factors to ensure that complete justice is done.” (Internal quotation marks omitted.) Amresco New England II, L.P. v. Colossale, 63 Conn. App. 49, 55, 774 A.2d 1083 (2001).

In this case, the court examined the relevant factors and determined that foreclosure would be inequitable, particularly due to the consequences the defendant incurred as a result of form 1099-C. As we stated in part II B, the court found that under federal law, a financial institution such as Resolution Trust must send form 1099-C to a debtor when it discharges a debt. The instructions on form 1099-C imply the threat of a monetary fine and other penalties if the debtor elects not to declare the discharged debt as income to the IRS. In this instance, neither Resolution Trust nor the plaintiff has issued an amended form 1099-C to the defendant permitting him to file an amended tax return to avoid the tax consequences he incurred when he filed his 1995 tax returns. The court concluded that it would be inequitable for the defendant to incur tax consequences as a result of the form 1099-C and to permit the plaintiff to continue to hold him liable for the debt. We agree.

Finally, the court concluded that because the defendant’s debt had been discharged, Franklin Credit was forbidden to foreclose on the premises. “A note and a mortgage given to secure it are separate instruments, executed for different purposes and in this State action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in a foreclosure suit.” (Internal quotation marks omitted.) Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441 A.2d 593 (1981). In response to Franklin Credit’s complaint, the defendant alleged the special defense of discharge and release. The defendant proved his special defense with the unrebutted form 1099-C. “It is hornbook law that the mortgage follows the note. . . . The mortgage cannot survive the extinction of the debt.” (Citation omitted; internal quotation marks omitted.) Amresco New England II, L.P. v. Colossale, supra, 63 Conn. App. 55-56. For those reasons, the court properly denied foreclosure on equitable grounds.

The judgment is affirmed.

In this opinion the other judges concurred.

       Since the execution of the subject note, the name or the identity of the holder has changed several times. Mortgage Electronic Registration Systems, Inc., is the plaintiff in interest on appeal. We refer in this opinion to Mortgage Electronic Registration Systems, Inc., as the plaintiff.

       Ellen C. Brown was a defendant in the trial court. She is not a party to this appeal. We refer in this opinion to Nicholas as the defendant.

       The premises, where the defendant operates a bed and breakfast enterprise, are now owned by Lantern Hill Associates, LLC.

       Throughout its brief, the plaintiff represents that Franklin Credit filed the motion to set aside the judgment six days after the judgment was rendered. According to the court file, Franklin Credit’s motion was filed on July 23, 2001. Whether the motion was filed six days alter judgment was rendered or on July 23, 2001, is of no consequence in our decision.

       The plaintiff claims that the court rendered judgment 142 days after February 20, 2001.

       Query whether Franklin Credit would have filed a motion to set aside if the judgment had been rendered in its favor.

       In its statement of the issues to this court, Franklin Credit claimed that the trial court had shifted the burden of proof to it to prove that Resolution Trust did not intend to discharge the debt. In its brief and at oral argument, however, the plaintiff did not claim that the court applied anything other than the fair preponderance of the evidence standard to the facts at issue.
      “The concept of a burden of persuasion ordinarily applies to questions of fact, and ordinarily is expressed in one of three ways: (1) a preponderance of the evidence; (2) clear and convincing evidence; or (3) proof beyond a reasonable doubt. . . . The function of the burden of persuasion is to allocate the risk of error on certain factual determinations, and to indicate the relative social importance of the factual determination at issue.” (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 720, 780 A.2d 1 (2001).
      The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). “The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true.” (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981).

       Although we conclude that the defendant proved that Resolution Trust intended to discharge his debt, we do not imply that General Statutes § 42a-3-604 (a) (ii) required the defendant to prove that Resolution Trust intended to agree not to file an action or to otherwise renounce its rights against the defendant in a signed writing. We have not undertaken that statutory construction. Prior to the 1991 revision of article three of the Uniform Commercial Code, the discharge of a debt was codified in General Statutes (Rev. to 1991) § 42a-3-605. The relevant portion of the predecessor to § 42a-3-604 (a) (ii) provides: “or (b) by renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged.” General Statutes (Rev. to 1991) § 42a-3-605 (1). The language of § 42a-3-604 (a) is significantly different, i.e., “(ii) by agreeing not to sue or otherwise renouncing rights against the party by a signed writing.” For an interesting discussion of the statutory construction of §§ 3-604 and 3-605 of the Uniform Commercial Code, see Firstier Bank, N.A. v. Triplett, 242 Neb. 614, 623-24, 497 N.W.2d 339 (1993) (Grant, J., dissenting) and (Caporale, J., dissenting).
      The majority of the cases cited by the plaintiff in support of its intent argument are factually distinct from the facts here because in those cases, the holder of the note had committed acts that brought the case under what is now § 42a-3-604 (a) (i). In a few instances, the holder of the note, often a financial institution, discovered its mistake and commenced an action in replevin. Furthermore, none of the cases is a Connecticut case, and, except in Firstier Bank, N.A, the applicable Uniform Commercial Code provision was former § 3-605.

       The plaintiff correctly points out that the defendant did not allege the statute in its special defense, which is in disregard of Practice Book § 10-3 (a). The defendant does not disagree that General Statutes § 42a-3-604 (a) (ii) is the applicable statute.

       The predecessor to General Statutes § 42a-3-604 was General Statutes (Rev. to 1991) § 42a-3-605, which provides in relevant part: “(1) The holder of an instrument may even without consideration discharge any party (a) in any manner apparent on the face of the instrument or the endorsement, as by intentionally cancelling the instrument or the party’s signature by destruction or mutilation, or by striking out the party’s signature; or (b) by renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged.”

       In construing General Statutes § 42a-l-201, we note that intent refers to the act of authenticating the writing.

       See 26 U.S.C. § 6050P.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUIS SOSTRE
    (AC 21435)
    Foti, Mihalakos and Dranginis, Js.

      Argued September 24 —
    officially released December 3, 2002

      Sean K. Crowshaw, special public defender, for the appellant (defendant).

      Joseph T. Corradino, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Matthew C. Couloute, Jr., former assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Luis Sostre, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59. The sole issue on appeal is whether a remark made by the prosecutor in his rebuttal argument to the jury amounted to prosecutorial misconduct that deprived the defendant of a fair trial. We conclude that the defendant was not denied a fair trial and, therefore, affirm the judgment of the trial court.

The following procedural history and facts are pertinent to the defendant’s appeal. On September 29,1999, at or about 5:09 p.m., Noel Rodriguez was shot while standing near building seven at Marina Village in Bridgeport. The police later arrested the defendant and charged him with attempt to commit murder, assault in the first degree, carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a) and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). During the trial, upon the completion of the state’s case-in-chief, the court granted the defendant’s motion for a judgment of acquittal as to count three of the information. The state, accordingly, amended the information.

On September 14, 2000, after a full hearing, the jury returned a verdict of guilty on the counts of attempt to commit murder and assault in the first degree, and not guilty on the reckless endangerment count. On November 3, 2000, the court sentenced the defendant to a term of fifteen years imprisonment for attempt to commit murder and ten years imprisonment, suspended after five years with five years probation, for assault in the first degree. The sentences were to be served consecutively. This appeal followed.

The defendant claims that certain statements made by the prosecutor in the rebuttal portion of the state’s closing argument deprived the defendant of a fair trial under the due process clauses of both the United States and the Connecticut constitutions. The defendant argues that those statements were improper because the prosecutor speculated about what would have happened had other witnesses given testimony. The defendant concedes that he did not preserve the issue for appeal. Therefore, the defendant seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“The defendant seeks Golding review for his unpreserved [claim], as he must, because he failed to object to the comments at trial or to request a curative charge. . . . When one fails to do either of those, we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. . . . Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Johnson, 71 Conn. App. 272, 287-88, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002).

We review the claim because the record is adequate to do so, and an allegation of prosecutorial misconduct in violation of the defendant’s fundamental right to a fair trial is of constitutional magnitude. State v. L’Minggio, 71 Conn. App. 656, 675, 803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). We conclude, however, that the defendant’s claim fails under Golding’s third prong because the challenged remarks did not deprive him of a fair trial.

“Prosecutorial misconduct can occur in the course of closing argument. . . . Our standard of review of a claim of prosecutorial misconduct that allegedly results in an unfair trial is well established. [T]o deprive the defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . .

“The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. . . . In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) Id., 675-76; see also State v. Miller, 69 Conn. App. 597, 605, 795 A.2d 611, cert. denied, 260 Conn. 939, 802 A.2d 91 (2002).

“We have long held, however, that Golding review of such a claim will not result in reversal where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . because in such a case the claimed misconduct is insufficient to infect the fundamental fairness of the trial itself.” (Internal quotation marks omitted.) State v. Johnson, supra, 71 Conn. App. 288. Although the prosecutor’s remarks were improper, they were not blatantly egregious and were isolated and brief. Therefore, the defendant was not deprived of a fair trial.

A thorough review of the transcript and record compels us to conclude that the prosecutor’s rebuttal remarks did not so infect the trial with unfairness as to deny the defendant his right to a fair trial. First, the prosecutor’s rebuttal remarks were offered in direct response to statements made by defense counsel in her closing argument. Defense counsel, through her closing statement, invited the prosecutor to respond to her questions concerning why he did not or could not present witnesses to corroborate the victim’s story. As a result, the prosecutor’s remarks were not so blatantly egregious that they infringed on the defendant’s right to a fair trial.

Additionally, the challenged remarks were isolated. The remarks were made only once, during the rebuttal phase of the prosecutor’s closing argument. We note that defense counsel did not object to the prosecutor’s statement. Furthermore, defense counsel did not request a curative instruction.

This court realizes that the credibility of the witnesses was central to the case. “[The jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.” (Internal quotation marks omitted.) State v. Colon, 71 Conn. App. 217, 224-25, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). Moreover, the court instructed the jury that the arguments made by the attorneys were not evidence and should not be considered in deciding the facts of the case.

Because the defendant has failed to carry his burden under Golding of demonstrating that he was clearly deprived of his fundamental constitutional right to a fair trial, further review of his unpreserved prosecutorial misconduct claim is unwarranted. See State v. Atkinson, 235 Conn. 748, 768-70, 670 A.2d 276 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       Count three refers to the charge of carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a).

       In the prosecutor’s rebuttal argument, he made the following challenged remarks: “So, the question is, do you get it? And I think you do, and I think you understand why there aren’t any other witnesses that were brought in, and I think you understand why he was questioned that way, and I think you understand why there was a lot of statements in this case that weren’t allowed in because there are a lot of people who probably know about what happened and can probably corroborate that story, but we know why they’re not here. So, you’re left with Noel Rodriguez, and I want you to think about it."’

       The state did not present any eyewitnesses to the shooting other than the victim, Rodriguez. Further, the defendant offered only three witnesses who allegedly were present at the shooting: Tamarius Maner, who stated that the defendant was not the shooter, and Robin Martinez and Maria Lopez, who testified that they did not see anything.

       Defense counsel stated: “There was not — of all the people who live at Marina Village, and the police testified that it was a housing project, a lot of people lived there and, also a high crime area, shooting took place there a lot. There’s a problem with this case, and, um, where are all these people? Uh, did they see it? . . . Did you get the impression that you weren’t getting the whole picture from the state’s evidence? . . . The state is asking that you convict a man, basically, solely on this one witness’ version of what happened because nobody else was there who came in to testify even though Noel Rodriguez said, oh, six witnesses, three I know. There’s nobody to corroborate his story, and you’re expected — the state will get up here and demand that justice been done by convicting my client based on this one witness’ testimony of what happened there even though this one witness says there are other people to be gotten, nobody else came in for the state to corroborate it.”


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. NATA BOB
    (AC 21884)
    Lavery, C. J., and Dranginis and Freedman, Js.
    Argued September 9 —
    officially released November 12, 2002
   Per Curiam.

See State v. Hedman, 261 Conn. 390, 802 A.2d 842 (2002); State v. Valedon, 261 Conn. 381, 802 A.2d 836 (2002).

The judgment is affirmed.


text:
    CURT B. HIRSCH v. GEORGE A. NEGRO
    (AC 22388)
    Flynn, Bishop and West, Js.
    Submitted on briefs September 9 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JASPER MCFADDEN
    (AC 22072)
    Mihalakos, Flynn and Hennessy, Js.
    Argued September 11 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MARIO MENDELA-GANDHI
    (AC 22079)
    Lavery, C. J., and West and Peters, Js.
    Argued September 10 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RONALD SWINTON
    (AC 21574)
    Mihalakos, Bishop and Peters, Js.
    Argued September 12 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ARTHUR GAINEY
    (AC 22234)
    Lavery, C. J., and Foti and Dranginis, Js.
    Argued September 12 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JUAN SEABROOK
    (AC 22148)
    Foti, Dranginis and Flynn, Js.
    Argued September 13 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WILLIE ARNOLD
    (AC 21688)
    Mihalakos, Flynn and Dupont, Js.
    Argued September 17 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. TANAKA DAVIS
    (AC 22106)
    Flynn, Bishop and Landau, Js.
    Argued September 24 —
    officially released November 12, 2002
   Per Curiam.

The judgments are affirmed.


text:
    STATE OF CONNECTICUT v. FREDERICK CHIERO
    (AC 22071)
    SchaUer, Flynn and West, Js.
    Argued September 20 —
    officially released November 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATEWIDE GRIEVANCE COMMITTEE v. BARBARA S. SHEA
    (AC 22441)
    Mihalakos, Dranginis and Hennessy, Js.
    Argued September 25 —
    officially released November 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    LEE MARINO v. NEWINGTON AUTO PARTS, INC.
    (AC 22405)
    Foti, Mihalakos and Dranginis, Js.
    Argued October 21 —
    officially released November 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CURTIS SMITH
    (AC 21373)
    Lavery, C. X, and Schaller and West, Js.
    Argued October 23 —
    officially released November 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LARRY SMITH
    (AC 22459)
    Schaller, West and Hennessy, Js.
    Argued October 30 —
    officially released November 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    HANNA BELSKA v. KRZYSZTOF BELSKI
    (AC 21937)
    Mihalakos, Dranginis and West, Js.
    Submitted on briefs October 31 —
    officially released November 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JAMES LATTANZIO
    (AC 22614)
    Laveiy, C. J., and Bishop and Dupont, Js.
    Argued October 31 —
    officially released November 19, 2002
   Per Curiam.

The judgment is affirmed.


author: HENNESSY, J.

text:
    CESAR BRZEZINEK ET AL. v. COVENANT INSURANCE COMPANY
    (AC 22257)
    Mihalakos, Flynn and Hennessy, Js.
    Submitted on briefs September 16
    officially released December 10, 2002

      Jacek I. Smigelski filed a brief for the appellants (plaintiffs).

      Brian S. Driscoll filed a brief for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiffs, Cesar Brzezinek and Janina Brzezinek, appeal from the judgment of the trial court rendered upon the granting of the motion for summary judgment filed by the defendant, Covenant Insurance Company. The plaintiffs claim that the court improperly (1) ruled that they did not timely accept the defendant’s offer to form a contract to settle a potential action and (2) failed to conclude that the defendant was barred by the doctrine of equitable estoppel from refusing to execute the settlement agreement. We affirm the judgment of the trial court.

The record reveals the following facts. The plaintiffs alleged that they suffered injuries resulting from the negligence of the defendant’s insured in the operation of an automobile. On December 3, 1999, the defendant made a settlement offer in the amount of $30,000 to the plaintiffs’ attorney during a telephone conversation. According to a letter that was attached to the defendant’s motion for summary judgment, the plaintiffs’ attorney told the defendant during that conversation that he would discuss the offer with his clients, but the settlement offer “wasn’t enough.” On December 12, 1999, the plaintiffs signed releases evidencing their acceptance of the defendant’s offer and provided those releases to their attorney. The plaintiffs’ attorney did not transmit those releases to the defendant until February 14, 2000, and did not communicate the plaintiffs’ acceptance of the settlement offer to the defendant until that date. On December 28, 1999, the statute of limitations for the underlying tort action expired. Because of the expiration of the applicable statute of limitations prior to effective communication of acceptance of the defendant’s offer, the defendant claimed that the time for acceptance had expired and refused to perform.

On December 19, 2000, the plaintiffs filed a breach of contract action against the defendant, alleging breach of the settlement agreement. Thereafter, the plaintiffs and the defendant filed motions for summary judgment. The court granted summary judgment in favor of the defendant and denied summary judgment for the plaintiffs. In support of its judgment on the cross motions for summary judgment, the court concluded that to be effective, the plaintiffs’ acceptance of the defendant’s settlement offer would have needed to been communicated to the defendant prior to the expiration of the statute of limitations for the underlying claim. The court stated: “It is clear that the entire purpose ... in making its settlement offer, was to resolve extant claims. ... As of [the expiration of the statute of limitations] . . . the [plaintiffs’] claims were no longer viable. Under the circumstances, [the defendant’s] offer could have been accepted only prior to the running of the statute of limitations. . . . Here. . . the [plaintiffs’] claims were no longer enforceable since, by law, they were time barred. As a result, forbearance from suit did not amount to consideration for the contract.”

The court found that under the circumstances of this case, as a matter of law, once the statute of limitations had run, the settlement offer did not remain viable. We agree with the court’s reasoning and conclusion.

The court also rejected the plaintiffs’ estoppel argument, finding that the defendant did nothing that could be construed as misleading the plaintiffs that would have resulted in their injury. Rather, the court found that the delay in communicating their acceptance of the defendant’s offer was due to the lack of due diligence on the part of the plaintiffs’ attorney.

Our standard of review of a court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides in relevant part 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 test is whether a party would be entitled to a directed verdict on the same facts. ... On appeal, [w]e must decide whether the trial court erred in determining 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 for the [defendant] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Intemal quotation marks omitted.) Ramsay v. Camrac, Inc., 71 Conn. App. 314, 318, 801 A.2d 886, cert. denied, 261 Conn. 936, 806 A.2d 1066 (2002).

The first issue presented in this appeal is whether the court properly rendered summary judgment for the defendant on the ground that the defendant’s offer of settlement lapsed as a matter of law prior to the plaintiffs’ effective acceptance of that offer. The plaintiffs claim that the act of communicating their acceptance to their attorney and the act of signing the releases on December 12, 1999, formed a valid acceptance of the defendant’s offer. The plaintiffs, however, did not deliver the releases to the defendant at that time. The court correctly noted that the plaintiffs’ position is contrary to our law. “Acceptance is operative, if transmitted by means which the offeror has authorized, as soon as its transmission begins and it is put out of the offeree’s possession . . . irrespective of whether or when it is received by the offeror.” (Internal quotation marks omitted.) Lyon v. Adgraphics, Inc., 14 Conn. App. 252, 255, 540 A.2d 398, cert. denied, 208 Conn. 808, 545 A.2d 1103 (1988). The plaintiffs admit that the execution of the releases was not transmitted to the defendant until February 14, 2000. A contract was not formed, therefore, on December 12, 1999, because a transmission to the offeror did not occur.

In the alternative, the plaintiffs claim that the transmission of the releases on February 14, 2000, formed a valid contract because the acceptance was timely. It is undisputed that the settlement offer did not contain any express deadline by which it had to be accepted. “If no time is fixed in the offer within which acceptance must be made, it is a generally accepted rule of law that acceptance must be within a reasonable time.” 1 S. Williston, Contracts (4th Ed. Lord 1990) § 5:7, p. 658. “Ordinarily, what constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of each case.” Katz v. West Hartford, 191 Conn. 594, 598, 469 A.2d 410 (1983); Eaton Factors Co. v. Bartlett, 24 Conn. Sup. 40, 43, 186 A.2d 166 (1962); 1 S. Williston, supra, § 5:7, pp. 658-60. In determining what is a reasonable time, we must look to the act requested. “The purpose of the offeror, to be attained by the making and performance of the contract, will affect the time allowed for acceptance, if it is or should be known to the offeree. In such case there is no power to accept after it is too late to attain that purpose.” 1 A. Corbin, Contracts (Rev. Ed. 1993) § 2.16, p. 211.

The court examined the relevant circumstances surrounding the defendant’s offer and the plaintiffs’ purported acceptance of that offer. The court found that the purpose for the defendant in making the settlement offer was to resolve extant claims. The offer was made on December 3, 1999. The plaintiffs’ attorney failed to communicate acceptance of the offer to the defendant until February 14, 2000. As the court correctly stated, as of that date, the plaintiffs’ claims no longer were viable because the statute of limitations had expired on December 28, 1999. As a result, the plaintiffs would not be in a position at that time to offer consideration to the defendant to form a contract.

The tardiness of the eventual transmission of the release forms is underscored by the promptness with which the plaintiffs executed the releases and dispatched them to their attorney. The offer was made on December 10,1999, and the plaintiffs’ attorney received the signed releases two days later on December 12, 1999. That provided the plaintiffs’ attorney with more than two weeks within which to send the releases to the defendant and to accept the offer of a settlement. Moreover, the plaintiffs’ attorney himself indicated that, if not completely belated, the communication of the acceptance was later than might reasonably have been anticipated by the offeror.

The plaintiffs also claim that even if the transmittal of the release forms came too late to create a contract on that basis, the court nevertheless should have concluded that the plaintiffs’ actual forbearance from suit was sufficient consideration for the contract. It is axiomatic that the offeror is the master of the bargain and, as such, the offeror may include any conditions on the bargain as it sees fit. Thus, where the offeror requires that the offer be accepted in a particular manner, that requirement will control. See id., § 3.13, pp. 367-69.

This is not a situation in which the offeror invited acceptance by performance. It may appear that the essence of the consideration bargained for was forbearance from suit and, accordingly, that actual forbearance should be a perfect substitute for the mere promise to forbear. The defendant, however, was bargaining for a release of claims against it as opposed merely to forbearance from suit. “It is clear that if a promisor bargains for a promise of forbearance, and is given none . . . the fact that forbearance afterwards actually takes place is not an acceptance of the offer.” 2 A. Corbin, Contracts (Rev. Ed. 1995) § 5.22, p. 120.

Other states have made a distinction between forbearance and a promise to forbear. See Greenwood Associates, Inc. v. Crestar Bank, 248 Va. 265, 269, 448 S.E.2d 399 (1994) (“Mere forbearance, without an agreement to that effect, is not sufficient consideration for a promise, even though the fact of forbearance was induced by the promise. . . . The fact of forbearance to act does not establish consideration for the undertaking, unless there was an agreement, express or implied, that the plaintiff would forebear to act.” [Citations omitted.]); see also Trust Co. of Columbus v. Rhodes, 144 Ga. App. 816, 818, 242 S.E.2d 738 (1978); Carolina Eastern, Inc. v. Benson Agri Supply, Inc., 66 N.C. App. 180, 310 S.E.2d 393 (1984). There is nothing in the record to indicate that the defendant was bargaining for forbearance only and not for a promise to forbear in the form of a release. The plaintiffs’ brief states that “the intention of the defendant, while making that offer, was to obtain releases of all claims and liability for those injuries, and thereby avoid a costly defense of a potential lawsuit . . . .”

The plaintiffs’ second issue on appeal is a claim of equitable estoppel. The plaintiffs argue that the December 3, 1999 offer made by the defendant to settle was a promise that the plaintiffs relied on to their detriment. “There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.” (Internal quotation marks omitted.) W. v. W., 248 Conn. 487, 496-97, 728 A.2d 1076 (1999); see also Green v. Connecticut Disposal Service, Inc., 62 Conn. App. 83, 91-92, 771 A.2d 137 (“ ‘[t]here must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury’ ”), cert, denied, 256 Conn. 912, 772 A.2d 1124 (2001). The plaintiffs have not made any claim that the defendant engaged in fraudulent or deceptive conduct, only that they relied on the promise made by the defendant.

“[A] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance.” (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 162, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). The plaintiffs argue that they relied on the defendant’s offer of a promise of a settlement when they executed the releases. The plaintiffs’ attorney, however, failed to deliver those releases or to communicate their acceptance to the defendant. As previously discussed, the defendant was not aware that they had induced reliance. There would be no way for the defendant reasonably to have expected the settlement offer to induce reliance under the facts of this case without some communication from the plaintiffs.

The judgment is affirmed.

In this opinion the other judges concurred.

       According to the defendant, the plaintiffs only communication on December 3, 1999, was that the offer “wasn’t enough.” The defendant certainly would not be anticipating an acceptance of the offer based on that communication.

       The letter accompanying the eventual transmission of the release forms stated: “I apologize for the length of time that elapsed in getting these to you. I had surgery in December and was out of work and upon my return to the office I was swamped. I am just now getting back to my regular schedule.”


author: PER CURIAM.

text:
    SALVATORE ANNUNZIATA v. COMMISSIONER OF CORRECTION
    (AC 21986)
    Foti, SchaUer and West, Js.
    Submitted on briefs September 16
    officially released December 10, 2002

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Gerard P. Eisenman, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Salvatore Annunziata, appeals from the judgment of the habeas court denying his petitions for a writ of habeas corpus and for certification to appeal. Specifically, the petitioner claims that the court abused its discretion when it (1) denied his petition for certification to appeal from the denial of the petition for habeas corpus, and (2) denied his petition for a writ of habeas corpus in which he had alleged ineffective assistance of counsel on the bases of alleged coercion by his trial counsel to enter an Alford plea and counsel’s alleged failure to conduct a proper investigation. We dismiss the appeal.

On November 17, 1988, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the petitioner pleaded guilty to murder in violation of General Statutes § 53a-54a (a) and conspiracy to commit murder in violation of General Statutes §§ 53a-48a and 53a-54a. On November 25,1988, the petitioner was sentenced to a term of forty years on the murder conviction and twenty years on the conspiracy conviction, those terms of imprisonment to run concurrently for a total effective sentence of forty years. On January 31, 2001, the petitioner filed an amended petition for a writ of habeas corpus, alleging that he had been denied the effective assistance of counsel in violation of his state and federal constitutional rights. Specifically, the petitioner alleged that his counsel coerced him to enter the Alford plea, failed to conduct a proper investigation and deprived him of the opportunity to provide an alibi defense. Following a hearing, the court denied the habeas petition and the petitioner’s subsequent petition for certification to appeal.

We first set forth our standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To determine whether the habeas court abused its discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616, citing Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The petitioner first claims that the court abused its discretion when it denied his petition for certification to appeal from the denial of the habeas petition. After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right, and, further, we conclude that he has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done.

With respect to the petitioner’s claim of ineffective assistance of counsel, which was based on an allegedly coerced Alford plea, the court reviewed the transcript of the petitioner’s plea canvass and determined that the plea was voluntarily, knowingly and intelligently made. The court concluded that the petitioner’s claim that he had been coerced into pleading guilty was completely unsubstantiated. Furthermore, on direct examination at the habeas proceeding, the petitioner testified that he had perjured himself during the criminal trial of his codefendant. The court did not find credible the petitioner’s claim that his experienced trial counsel had advised the petitioner that he would serve only ten years of a recommended sentence of forty years, particularly in light of the fact that the petitioner faced a potential sentence of eighty years incarceration. The finder of fact, not this court, is the arbiter of credibility. Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997).

The petitioner next based his claim of ineffective assistance of counsel on an alleged failure by trial counsel to conduct a proper investigation. The petitioner, however, failed to brief that portion of the claim. We are not required to review claims that are inadequately briefed. State v. Beverly, 72 Conn. App. 91, 102, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002); State v. Vicente, 62 Conn. App. 625, 632, 772 A.2d 643 (2001). We therefore decline to address that portion of the petitioner’s claim and consider it abandoned.

After a review of the record and briefs, we conclude that the petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion. See Simms v. Warden, supra, 230 Conn. 612. Consequently, we cannot proceed under Simms to determine whether the judgment of the habeas court should be reversed on its merits. See id.

The appeal is dismissed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The petitioner withdrew his claim as to an alibi defense during the hearing on his habeas petition.

       Because the petitioner has failed to meet that initial burden, we cannot reach his second claim, which concerns whether the court improperly denied his petition for a writ of habeas corpus.

       The petitioner faced a maximum sentence of life, or sixty years, in prison pursuant to the murder conviction and twenty years in prison pursuant to the conspiracy conviction. The petitioner agreed with the state’s recommended sentence of forty years in prison for murder and twenty years for conspiracy to be served concurrently. The sentencing court, however, was not bound by the recommendation and could have sentenced the petitioner to eighty years in prison.


text:
    ANTHONY E. JAMES v. COMMISSIONER OF CORRECTION
    (AC 22226)
    Schaller, West and Dupont, Js.

      Submitted on briefs September 18
    officially released December 10, 2002

      Joseph Visone filed a brief for the appellant (petitioner).

      John A. Connelly, state’s attorney, John A. East III, assistant state’s attorney, and Maureen M. Keegan, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Anthony E. James, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he was not prejudiced by the failure of his trial counsel to object to the admission of certified copies of the petitioner’s previous arrest records during the prosecution’s rebuttal case at his criminal trial. The habeas court concluded that the trial court’s ruling on admissibility would have been upheld on appeal. The petitioner’s claim, therefore, requires this court to determine whether the state properly may introduce, for the first time, evidence of a criminal defendant’s prior convictions to impeach his credibility during the state’s rebuttal case, having failed to do so during cross-examination of the defendant. We affirm the judgment of the habeas court.

The court found the following facts. On May 25,1994, the petitioner was convicted, following a jury trial, of felony murder in violation of General Statutes § 53a-54c and burglary in the third degree in violation of General Statutes § 53a-103. The trial court sentenced the petitioner to a total effective term of fifty years imprisonment. On appeal, our Supreme Court affirmed the judgment of conviction. State v. James, 237 Conn. 390, 678 A.2d 1338 (1996).

The sole evidence linking the petitioner to the crimes was a written confession that he provided to the Waterbury police on January 15, 1993. The defense sought to establish that the confession was not voluntary because it allegedly was obtained through coercion. The credibility of the petitioner as it related to the circumstances surrounding his confession, therefore, was a central issue at trial. Prior to the commencement of testimony, the state’s attorney notified defense counsel and the court that the state intended to introduce certified copies of several of the petitioner’s out of state convictions as impeachment evidence if he chose to testily. The defense counsel objected to the introduction of the previous convictions on the grounds of remoteness and because their prejudicial effect outweighed their probative value. The court overruled that objection, but indicated that evidence of the convictions should not include references to the specific underlying offenses or sentences. Although the petitioner did testify on his behalf, the state failed to raise the prior convictions during its cross-examination of him.

Following the close of the petitioner’s case-in-chief, the court held a chambers conference with counsel. At that conference, the prosecutor declared the state’s intention to present the prior convictions during its rebuttal case. The defense attorney renewed her earlier objection concerning the prejudicial impact of the evidence and also objected to the use of such evidence on rebuttal. The court agreed with the state that the prior convictions were proper for use on rebuttal.

During the state’s rebuttal, when the state’s attorney sought to introduce the prior convictions to impeach the defendant’s testimony, the defense again objected. The defense did not, however, in open court, raise the objection that the convictions constituted improper rebuttal evidence. Rather, counsel objected to the evidence only on the ground that due to its remoteness, the probative value of the evidence was outweighed by its prejudicial impact. During her testimony at the habeas trial, defense counsel conceded that she had forgotten also to object to the use of the evidence by the state in rebuttal rather than during the cross-examination of the petitioner.

On July 13, 2000, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. On July 6, 2001, following a full hearing and the submission of posthearing briefs by the parties, the habeas court issued a written memorandum of decision denying the petition. This appeal followed.

The standard of review for a habeas court’s denial of a petition for a writ of habeas corpus based on ineffective assistance of counsel is well settled. “To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must set forth evidence establishing two elements. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). ... To establish prejudice, a defendant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Ramos v. Commissioner of Correction, 67 Conn. App. 654, 665, 789 A.2d 502, cert. denied, 260 Conn. 912, 796 A.2d 558 (2002).

The standard of review of a habeas court’s judgment is equally well established. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 68 Conn. App. 190, 192, 791 A.2d 588, cert. denied, 260 Conn. 910, 795 A.2d 544 (2002). In reviewing whether the trial court’s admission of evidence was proper, our inquiry must focus on whether the court abused its discretion in allowing the challenged evidence to be presented during rebuttal rather than during the cross-examination of the petitioner. See State v. Sauris, 227 Conn. 389, 410-11, 631 A.2d 238 (1993).

In the present case, the habeas court found that although the performance of the petitioner’s counsel fell below an objectively reasonable standard, the outcome of the trial was not affected by that performance. In coming to that conclusion, the court reasoned that in light of the trial court’s indication that it would allow the evidence, the only consequence of counsel’s failure to object to the admission of the proffered impeachment evidence on the ground that it constituted improper rebuttal evidence was the failure to preserve that claim for appeal. The habeas court then concluded that even if the issue had been preserved for appeal, the admission of the evidence would have been upheld on appeal. The petitioner argues, on the contrary, that on appeal, the evidence would have been ruled inadmissible. Because that issue goes to the very heart of the court’s conclusion that the defendant failed to satisfy the second prong of Strickland, we are compelled to resolve the matter. The sole question, then, is whether Sauris, which allowed a trial court to exercise its discretion to admit evidence of prior convictions of a prosecution witness for impeachment purposes during the defendant’s rebuttal, should be extended to allow impeachment of a defense witness, in this case, the petitioner himself, during the state’s rebuttal.

“Rebuttal evidence is that which is offered ‘to meet new matters raised in [a defendant’s case], to contradict prior testimony and to impeach or rehabilitate witnesses . . . .’ C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.3.1, p. 40.” State v. Turner, 252 Conn. 714, 723, 751 A.2d 372 (2000). The admission of rebuttal evidence lies within the discretion of the trial court. “The issue on appeal is not whether any one of us, sitting as the trial court, would have permitted the disputed testimony to be introduced. The question is rather whether the trial court . . . abused its discretion in . . . allowing the rebuttal testimony . . . .” (Internal quotation marks omitted.) Gomeau v. Gomeau, 242 Conn. 202, 209, 698 A.2d 818 (1997).

In reaching its conclusion on the harmlessness of the admission, the habeas court relied on State v. Sauris, supra, 227 Conn. 411-12. In that case, our Supreme Court declined to adopt the federal rule governing impeachment by proof of conviction, which limits the offer of such evidence to the cross-examination of the witness. Id., 411. As the petitioner correctly notes in his brief, the factual scenario facing the court in Sauris was the inverse of that involved in the present appeal.

In Sauris, it was the defendant who sought the admission of evidence of prior crimes to impeach a prosecution witness. We conclude, however, that the reasoning behind the court’s conclusion is equally applicable when the evidence is introduced by the prosecution to impeach a defendant testifying on his behalf. As our Supreme Court explained, the party against whom the impeachment evidence was to be introduced could have raised the prior convictions preemptively during the witness’ direct testimony, thereby softening the impact of the evidence. Id., 412. In the alternative, that party could have requested surrebuttal to rehabilitate the impeached witness. Id.

We are mindful that a criminal defendant has the benefit of certain fundamental constitutional rights, including the right to confront witnesses and the privilege against self-incrimination. Although the Sauris court referenced a defendant’s constitutional right of confrontation in support of its ruling, the court’s analysis makes it clear that the right of confrontation was not the sole, or even the most persuasive, rationale for its holding. We are not convinced that the propriety of allowing impeachment evidence on rebuttal should be restricted to the defendant. Indeed, the court’s rationale regarding the lack of prejudice arising from the introduction of impeachment evidence during rebuttal applies equally where the evidence is introduced by the defense or by the prosecution.

The petitioner argues that the introduction of impeachment evidence against him during the prosecution’s rebuttal case impinged on his fifth amendment right to be free from self-incrimination by placing him in the untenable position of having to choose either to exercise that right and to allow the impeachment evidence to go unchallenged or to abandon that right in order to rehabilitate his previous testimony. We are unpersuaded.

Although it is axiomatic that a criminal defendant possesses a privilege against self-incrimination, that privilege is not absolute. When the defendant takes the witness stand in his behalf, he waives the privilege and places himself on an equal footing with any other witness. Brown v. United States, 356 U.S. 148, 154, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958) (if defendant “testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness”); Fitzpatrick v. United States, 178 U.S. 304, 314-16, 20 S. Ct. 944, 44 L. Ed. 1078 (1900); Brown v. Walker, 161 U.S. 591, 597-98, 16 S. Ct. 644, 40 L. Ed. 819 (1896).

In the present case, the petitioner, having testified previously, opened the door to the introduction of the prior convictions as impeachment evidence. See Spencer v. Texas, 385 U.S. 554, 561, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967) (evidence of prior crimes admissible to impeach defendant’s credibility); State v. Turner, supra, 252 Conn. 723 (introduction of impeachment evidence proper on rebuttal). We see no reason to treat the petitioner in a manner different from any other witness during the rebuttal stage of the proceedings.

Our conclusion is bolstered by the fact that the petitioner was aware, prior to testifying, both that the prosecution intended to offer the challenged impeachment evidence and that the court had ruled preliminarily that such evidence was admissible. Thus, the petitioner had fair notice of the impeachment evidence to be presented and decided to testify regardless. See, e.g., State v. Sauris, supra, 227 Conn. 412. We cannot conclude that under that circumstance, the petitioner was unduly prejudiced by the introduction of evidence to which he willingly had exposed himself.

The petitioner also argues that it would be unfair to require him to retake the witness stand to rehabilitate his credibility because that action would expose him to additional questioning by the prosecution. We find that argument unpersuasive. We note that the prosecution could have introduced the impeachment evidence during its cross-examination of the petitioner and that he would have been required to respond to that evidence. Even if we assume that the convictions were a legitimate area of inquiry for the prosecution, it is not apparent how the timing of that inquiry produces the unfairness of which the petitioner now complains. Once a criminal defendant chooses to testify during the surre-buttal portion of the trial, the issues open to inquiry are circumscribed by the evidence introduced during the preceding rebuttal. See State v. Turner, supra, 252 Conn. 723-24. The petitioner’s exposure to questioning while testifying would, therefore, be limited accordingly.

The petitioner also argues that allowing impeachment evidence after the close of the defense case places him at a disadvantage because the trial court has the discretion to allow surrebuttai. The petitioner foresees a situation in which the prosecution introduces impeachment evidence against him during its rebuttal case, but he is denied the opportunity to present surrebuttai evidence to address the prosecution’s evidence. It is true that “there is no constitutional right to present surrebuttai evidence. . . . The presentation of surrebuttai evidence is a matter resting squarely within the discretion of the trial court. . . . The defendant must demonstrate some compelling circumstance and the proffered evidence must be of such importance that its omission puts in doubt the achievement of a just result.” (Internal quotation marks omitted.) Id., 724. Thus, the petitioner bears the burden of persuasion that surrebuttai is warranted. Where a criminal defendant is able to present a valid sixth amendment confrontation clause claim, however, we find it unlikely that a court would deny him the opportunity to address impeachment evidence during surrebuttai. Cf. State v. Kellman, 56 Conn. App. 279, 287, 742 A.2d 423 (defendant denied surrebuttai where he failed to show surrebuttai necessary to protect his due process rights), cert. denied, 252 Conn. 939, 747 A.2d 4 (2000); State v. Cavell, 34 Conn. App. 276, 284-89, 641 A.2d 426 (1994) (denial of defendant’s motion to present surrebuttai evidence based on lack of injustice reaching constitutional proportions), affd, 235 Conn. 711, 728-31, 670 A.2d 261 (1996) (surrebuttai denied based on failure of defendant’s offer of proof to adequately address rebuttal evidence). Moreover, our Supreme Court has intimated that a particular solicitude may be appropriate in allowing the rehabilitation of a witness whose credibility has been impeached by a prior conviction. See State v. Sauris, supra, 227 Conn. 412.

For the foregoing reasons, we conclude that the trial court did not abuse its discretion in admitting the prosecution’s rebuttal evidence regarding the petitioner’s out of state convictions. As a consequence, we agree with the habeas court’s conclusion that the admission of that evidence would have survived appellate review and, accordingly, that the result of the proceeding would not have been different absent the failure of the petitioner’s trial counsel to object to that evidence as improper rebuttal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent challenges the court’s conclusion that the performance of the petitioner's trial counsel was deficient. Because the second prong of Strickland is dispositive of that issue, however, we decline to review the court’s conclusion with respect to the first prong of the analysis. We note, however, that the court was aware that the petitioner had claimed that the convictions could not be used on rebuttal and faulted defense counsel only because she did not, in open court, raise that issue for appellate review.

       The Supreme Court in Sauris articulated its reasoning as follows: “The state’s argument that it would have been prejudiced by the admission of the documentary evidence of the conviction at the end of the defense case is unpersuasive. The state had the opportunity to make the jury aware of the conviction during [the witness’] direct examination. Furthermore, our rules of criminal procedure would not have precluded the state from requesting further rebuttal to rehabilitate [the witness] or prohibited the trial court from exercising its discretion to grant such a request. Practice Book § 874 [now § 42-35], which establishes the order of procedure in a criminal trial provides in subsection (3) that ‘[t]he prosecuting authority and the defendant may present rebuttal evidence in successive rebuttals, as required’ unless the trial court ‘for cause’ permits otherwise. . . . The state is allowed to rehabilitate a witness whose credibility has been impeached by a prior conviction by allowing that witness to explain the circumstances underlying the prior conviction . . . and may rebut such evidence by other evidence.” (Citations omitted.) State v. Sauris, supra, 227 Conn. 411-12.

       A criminal defendant, of course, may elect not to take the witness stand a second time to address the impeachment evidence if that appears to be the more sound trial strategy.

       In the case before us, however, the petitioner did not seek the opportunity to refute the state’s rebuttal evidence. The court, therefore, had no occasion to decide the issue of whether the circumstances warranted surrebuttal. Accordingly, we decline to speculate whether, under the circumstances of this case, it would have been an abuse of the court’s discretion to deny surrebuttal had it been requested.