author: DALY, J.

text:
    DEBORAH BRANN v. ALAN SAVIDES
    (AC 16756)
    Schaller, Dupont and Daly, Js.
    Argued November 6, 1997
    officially released June 2, 1998

      Andrew S. White, for the appellant (defendant).

      Seymour A. Rothenberg, with whom, on the brief, were Amie C. Burtman and Stuart G. Rothenberg, for the appellee (plaintiff).
   Opinion

DALY, J.

The defendant appeals from the judgment of strict foreclosure of a judgment lien in favor of the plaintiff. The defendant claims that the trial court improperly (1) entered the judgment of strict foreclosure in favor of the plaintiff when her interest had been assigned to the state by operation of law, (2) entered a modified judgment of strict foreclosure, (3) failed to order a foreclosure by sale, (4) entered an order to open the judgment and set new law days on the basis of a motion to open that was filed under a family relations docket number involving the same parties and that appeared on the family docket instead of the civil foreclosure docket, (5) entered the order to open the judgment and set new law days based on a stale military affidavit, and (6) entered the order to open the judgment and set new law days based on a military affidavit executed by the plaintiff, not an indifferent person.

The following procedural history is undisputed. Following a paternity suit, the plaintiff obtained an award of child support in the amount of $179,775.36 on February 23, 1994. Thereafter, on March 16,1994, a judgment lien reflecting that judgment was recorded in the office of the Somers town clerk against real estate of the defendant located on Long Hill Drive, the value of which was appraised at $410,000.

The plaintiff commenced an action by writ returnable to the Superior Court on August 2,1994, seeking foreclosure of the judgment lien. On August 8,1994, the plaintiff filed a motion for default for failure to appear against the defendant. On August 26,1994, pursuant to Practice Book § 352, now Practice Book (1998 Rev.) § 17-20, the trial court clerk entered a default against the defendant for failure to appear. On May 10,1995, the plaintiff filed a motion for a judgment of strict foreclosure, and on May 22, 1995, the trial court granted that motion and set law days.

On June 8, 1995, the defendant’s attorney filed an appearance, and on June 9, 1995, the defendant filed a motion to open the judgment, arguing that the foreclosure should have been by sale rather than by strict foreclosure. On June 12, 1995, the trial court granted the defendant’s motion to open, rendered a modified judgment of strict foreclosure and set new law days.

On September 11,1995, the day before the expiration of the time limited for redemption in the June judgment of strict foreclosure, the defendant filed a petition in bankruptcy, which stayed the judgment of strict foreclosure. On November 20, 1996, the United States Bankruptcy Court dismissed the defendant’s bankruptcy petition in its entirety.

On November 22, 1996, the plaintiff moved to open the foreclosure judgment and set new law days. On December 9, 1996, a new attorney for the defendant filed an appearance. On December 16, 1996, the trial court granted the plaintiffs motion to open, rendered a modified judgment of strict foreclosure and set new law days. On December 27,1996, the defendant filed the present appeal from the judgment of strict foreclosure.

The defendant’s first claim challenges the plaintiffs standing on appeal on the ground that she had assigned to the commissioner of social services her right of support from the defendant upon her acceptance of aid for families with dependent children. See General Statutes § 17b-77. We need not consider this claim because there is no evidence that the plaintiff owes the commissioner the entire amount of support payments that the defendant owes the plaintiff. Some of that amount might be due the plaintiff. We conclude that the plaintiff has standing to pursue this claim.

The defendant’s second claim is that the trial court improperly rendered the modified judgment on December 16, 1996. The defendant argues that the filing of his attorney’s appearance on December 9, 1996, followed by the opening of the judgment on December 16, 1996, triggered the following provision in Practice Book § 352 (c): “If the defaulted party files an appearance in the action prior to the entry of judgment after default, the default shall automatically be set aside by the clerk. . . . ” That rule of practice is inapplicable here, however, because the appearance was not filed prior to the judgment after default. The judgment after default was entered on May 22, 1995, and no appearance for the defendant was filed prior to the entry of that judgment. That original judgment was modified twice after its entry, the second modification being that which the defendant now challenges. The portion of Practice Book § 352 on which the defendant bases his second claim is not invoked unless the appearance is filed “prior to the entry of judgment after default.” No appearance was filed prior to the entry of the judgment after default. Therefore, the defendant’s second claim is unavailing.

The defendant’s third claim is that a foreclosure by sale should have been ordered. General Statutes § 49-24 provides: “All liens and mortgages affecting real property may, on the written motion of any party to any suit relating thereto, be foreclosed by a decree of sale instead of a strict foreclosure at the discretion of the court before which the foreclosure proceedings are pending.” “Because [General Statutes § 49-15] vests discretion in the trial court to grant or to deny a motion to open [a judgment of strict foreclosure], the action of the trial court will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” Society for Savings v. Stramaglia, 225 Conn. 105, 110, 621 A.2d 1317 (1993).

“[Critical to the determination of whether the trial court has abused its discretion in rendering judgment of foreclosure by sale rather than strict foreclosure is whether there is substantial equity in the subject property, and whether the sale would generate enough cash to satisfy the junior creditors.” Lafayette Bank & Trust Co. v. Szentkuti, 27 Conn. App. 15, 18, 603 A.2d 1215, cert. denied, 222 Conn. 901, 606 A.2d 1327 (1992). “[I]f there is need of a sale to protect the just rights of the parties, we have little fear that the court will not order it.” (Internal quotation marks omitted.) Fidelity Trust Co. v. Irick, 206 Conn. 484, 491, 538 A.2d 1027 (1988). “In a foreclosure proceeding the trial court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner.” Id., 490. “Whether the subsequent encumbrancer is another lien-holder, the state or the owner, is of no material significance.” Id. “[A] mortgagee is only entitled to the payment of the debt owing him, including such incidental charges as he may add to it . . . .” (Internal quotation marks omitted.) Id., 489.

On May 22, 1995, the court found the total debt to be $203,585.61, and the fair market value of the property to be $410,000. Thus, the record reflects a possible windfall of more than $200,000 for the plaintiff. “Since a mortgage foreclosure is an equitable proceeding, either a forfeiture or a windfall should be avoided if possible.” Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d 1054 (1990); see Fidelity Trust Co. v. Irick, supra, 206 Conn. 484 (reversing judgment of strict foreclosure where foreclosing mortgagee would receive property, value of which exceeded by $17,150 amount of mortgage debt and expenses). “It has been held . . . that when the value of the property substantially exceeds the value of the lien being foreclosed, the trial court abuses its discretion when it refuses to order a foreclosure by sale.” Voluntown v. Rytman, 27 Conn. App. 549, 555, 607 A.2d 896, cert. denied, 223 Conn. 913, 614 A.2d 831 (1992). We conclude, on the basis of on the facts existing at the time of judgment, that a judgment of foreclosure by sale should have been ordered.

The remaining issues need not be addressed in view of our determination that the judgment of strict foreclosure should be reversed and because the defendant’s appearances on June 8, 1995, and again on December 9, 1996, obviate the necessity for any military affidavit.

The judgment is reversed and the case is remanded for further proceedings to determine the present fair market value of the property and whether a judgment of strict foreclosure or foreclosure by sale should be rendered.

In this opinion the other judges concurred.

       The trial court ruled on December 16,1996, that “[a]ll other prior orders not in conflict with this order shall remain in full force and effect.” Thus, the only change to the May 22,1995judgment of strict foreclosure effectuated by the December 16,1996 order was to set the law day for February 4,1997.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DANIEL CLARK
    (AC 15715)
    Foti, Landau and Daly, Js.

      Argued December 1, 1997
    officially released June 2, 1998

      Danielle DiBerardini-Albrecht, certified legal intern, with whom were Richard Emanuel, and, on the brief, Craig S. Meuser, certified legal intern, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Daniel Clark, appeals from the judgment of conviction, following a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A). On appeal, the defendant claims that (1) the trial court (a) abused its discretion with respect to eviden-tiary rulings and (b) improperly charged the jury, (2) the state failed to present evidence sufficient to convict the defendant of burglary in the first degree and (3) his federal and state constitutional rights to a fair trial were violated due to prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of Monday, September 26, 1994, the victim, a twenty-six year old woman, was living with her fourteen month old daughter in an apartment in Meriden. The defendant lived with his mother in an apartment in close proximity to that of the victim. The defendant entered the victim’s apartment uninvited at approximately 8:30 p.m. rubbed her shoulders and licked and kissed her cheek. Despite the victim’s protests, the defendant, who was much bigger than the victim, pushed her onto the couch and squeezed her breasts so hard that it hurt her and caused milk to be expressed. The victim’s daughter then began to cry, and the defendant ceased his attack and left the victim’s apartment. Two days later, after discussing the incident with a counselor whom she had known for five years, the victim reported the incident to the police. At the close of evidence, the defendant moved for a judgment of acquittal, which was denied. Following his conviction, the defendant appealed.

I

The defendant first claims that the trial court abused its discretion by permitting the prosecutor to cross-examine him improperly. We disagree.

The following additional facts and procedure are necessary for our review of the defendant’s claim. On direct examination, the investigating police officer testified that he had known the defendant for over twenty years and that he went to the defendant’s apartment on three occasions to talk to him about the subject incident. On each occasion, the officer did not find the defendant at home and left his business card in the door with a note asking the defendant to call him. The defendant never contacted the officer. On cross-examination, the officer testified that he did not know whether the defendant had received the business cards, but he assumed that the defendant had received them and had chosen not to respond to his requests. The officer also testified that in his experience, the response rate for someone being investigated is very low.

The defendant testified on his own behalf, but his direct testimony did not relate to the investigating officer or his business cards. The prosecutor did delve into the issue of the officer’s business cards, however, on cross-examination.

Defense counsel objected to the questions concerning the officer’s business cards as being outside the scope of direct examination. The trial court overruled the objection.

The prosecutor also asked the defendant a number of times whether he had been watching the victim and eavesdropping on her telephone conversations.* * The defendant testified that he saw the victim often because he lived next door. He also testified that a number of people had seen him talking to the victim prior to September 26, 1994, but that for a variety of reasons, none of the persons who saw him talking to the victim could come to trial to testify on his behalf.

“[0]ur review of a trial court’s evidentiary ruling is limited. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness .... Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).” (Internal quotations marks omitted.) State v. Nixon, 32 Conn. App. 224, 234, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). “It is well settled that the scope of cross-examination is limited to matters covered in the direct examination, except as they involve credibility. State v. Ireland, 218 Conn. 447, 590 A.2d 106 (1991). ‘The court has wide discretion to determine the scope of cross-examination.’ State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992).” State v. Nixon, supra, 234.

“When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word. . . . Matters which might not be strictly relevant on direct examination may be so on cross-examination where that matter is explored for the purpose of credibility. Given that function of cross-examination in shedding light on the credibility of the witness’ direct testimony, [t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony. ... A question is within the scope of the direct examination if it is intended to rebut, impeach, modify or explain any of the defendant’s direct testimony . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, supra, 224 Conn. 207.

The defendant relies on State v. Zdanis, 173 Conn. 189, 195-96, 377 A.2d 275 (1977), for the proposition that while “credibility may be attacked by contradiction, so long as the matter is in issue ... it may not be attacked by first introducing one version of an event through a witness for the prosecution and then cross-examining the defendant, who has not testified as to that event on direct, thus creating a retroactive contradiction of his testimony. [B.] Jones on Evidence (6th Ed.) § 25.2, pp. 111-12.”

Here, the trial court properly exercised its discretion in permitting the prosecutor to cross-examine the defendant with respect to the officer’s business cards and whether he had been watching the victim. The defendant testified on direct examination that his sexual encounter with the victim was consensual, which was contradictory to the testimony of the victim. The ultimate question before the jury was credibility. Therefore, the state was entitled to ask questions to rebut, impeach, modify or explain matters affecting credibility. See State v. Zdanis, supra, 173 Conn. 196.

The questions concerning the officer’s business cards were proper because they tended to rebut or impeach the defendant’s claim of innocence by demonstrating that he may have avoided contact with the police after his encounter with the victim. The questions in regard to the defendant’s watching the victim were appropriate in as much as the defendant admitted that he saw the victim often, that he knew her roommate had moved out and that only the victim and her child lived in the apartment. Clearly, there was evidence before the jury from which it could infer that the defendant was watching the victim.

II

The defendant’s second claim is that the trial court improperly charged the juiy with respect to the elements of § 53a-101 (a) (2) and the state’s burden of proof. The defendant’s claim is without merit.

The defendant did not submit a request to charge nor did he take exception to the charge given by the trial court. “We generally do not consider a claimed error regarding the giving of or failure to give an instruction unless the matter is covered by a written request to charge or exception has been taken . . . immediately after the charge is delivered. ... In addition, the exception taken must state distinctly the matter objected to and the ground of objection.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987). Therefore, the defendant seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In Golding, our Supreme Court held that “ ‘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. In the absence of any one of these conditions, the defendant’s claim will fail.’ ” (Emphasis in original.) State v. Hines, 243 Conn. 796, 817, 709 A.2d 522 (1998), quoting State v. Dash, 242 Conn. 143, 151, 698 A.2d 297 (1997). “ ‘An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.’ State v. Hill, [201 Conn. 505, 512, 523 A.2d 1252 (1986)], citing U.S. Const., amend XIV; Conn. Const., art. I, § 8; see In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984).” State v. Williams, supra, 202 Conn. 363.

“ ‘It is well settled that a jury instruction is to be examined in its entirety, and that the test to be applied is whether the charge as a whole presents the case to the jury so that no injustice will be done. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).’ State v. Lytell, 206 Conn. 657, 664, 539 A.2d 133 (1988); see also State v. Findlay, 198 Conn. 328, 346-47, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).” State v. Hines, supra, 243 Conn. 818-19. On our review of the entire instruction, we determine that there was nothing improper about the trial court’s charge to the jury. The defendant’s claims here do not meet the second prong of Golding in that no constitutional violation exists.

A

The defendant’s first claim with respect to the charge is that although the trial court correctly defined the element of “unlawfully entering or remaining,” it did not fully inform the jury of the state’s burden of proof with respect to this element. This claim is unfounded.

“ ‘It is the law of this state that a request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given. . . . It is, however, also the law of this state that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.’ ” State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980), quoting Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977).

Our review of the jury instructions reveals that the trial court instructed the jury no fewer than six times that the state had the burden of proving its case beyond a reasonable doubt, including a specific instruction that every element constituting the offense must be proven beyond a reasonable doubt. The charge also properly included an instruction on the meaning of reasonable doubt.

B

The defendant also claims that the trial court’s charge failed to explain how a lawful entry may become an unlawful remaining. Our review of the record proves otherwise.

The trial court first read the jury the statutory definition of “enters or remains unlawfully.” See General Statutes § 53a-100 (b), which applies to § 53a-101 (a). The trial court then instructed the jury that “even if a person enters a building lawfully, that is, he had the right or had been given permission and the right had been terminated or the permission withdrawn by someone who had a right to terminate or withdraw permission, you may find that there was unlawful remaining on the premises as the basis of burglary.” The trial court’s instruction was sufficient to guide the jury and was not improper.

C

The defendant’s last claim with respect to the charge is that the trial court improperly defined the element “bodily injury” by using the statutory definition of “physical injury.” The substance of the defendant’s claim is that bodily injury and physical injury are not the same. Our holding in State v. Phillips, 17 Conn. App. 391, 552 A.2d 837 (1989), is to the contrary.

“It is elementary jurisprudence that a jury charge is to be considered in its entirety and no part of it is to be critically dissected in order to find a technical inaccuracy in one portion, read in artificial isolation from the overall charge. State v. Jasper, 200 Conn. 30, 37, 508 A.2d 1387 (1986). ‘Jury instructions need not be “exhaustive, perfect or technically accurate,” as long as they are “correct in law, adapted to the issues and sufficient for the guidance of the jury.” ’ State v. Greene, 11 Conn. App. 575, 580, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). Microscopic examination of a jury charge in an effort to find error has been consistently discountenanced by our courts. State v. Mastropetre, 175 Conn. 512, 524, 400 A.2d 276 (1978); State v. Lopez, 5 Conn. App. 599, 604, 502 A.2d 418 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986).” State v. Phillips, supra, 17 Conn. App. 394-95. We hold that the trial court’s instructions were correct in law, adapted to the issues and provided sufficient guidance for the jury.

Ill

The defendant next claims that the state did not produce sufficient evidence to establish beyond a reasonable doubt that he entered or remained unlawfully in the victim’s apartment or that he had the requisite state of mind to commit burglary in the first degree. See General Statutes § 53a-101 (a). These claims are also without merit.

The following additional facts are necessary for our analysis. On the date in question, the victim came home at approximately 4:30 p.m. and did some household chores. She washed her kitchen floor with ammonia, opening the back door of the apartment to permit the ammonia fumes to escape. She then prepared supper, which she ate with her child. Between 6 and 7 p.m., the victim had an extended telephone conversation with a friend. At about 7 p.m., after she put her baby to bed, the victim washed laundry in the kitchen sink. The back door, which faced the defendant’s apartment, was open the entire time. At approximately 8:30 p.m., the victim was standing at the sink when the defendant entered her apartment and introduced himself. The victim did not know why the defendant, whom she had seen once or twice in the neighborhood, had entered her apartment, and she thought that he was just a neighbor seeking to borrow something. The defendant walked over to the victim and said, “I know you’ve been hurt in the past.” He then began to rub the victim’s shoulders and to kiss and lick her cheek. The victim tried to push the defendant away and said, “No,” and “No. Stop.”

“Our courts utilize a two part analysis when reviewing a challenge to the sufficiency of evidence. State v. Hen-ning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). ‘We first review the evidence in the light most favorable to sustaining the guilty verdict.’ Id. ‘We then determine, upon the facts thus established and the inferences reasonably drawn therefrom, whether any rational trier of fact could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ Id. In the review process, the probative force of the evidence is not diminished if it consists, in whole or in part, of evidence that is circumstantial rather than direct. Id., 420-21. Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).” State v. Paredes, 35 Conn. App. 360, 372, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).

A

The defendant claims that the evidence is insufficient to prove he entered the victim’s apartment unlawfully because the victim did not scream or place an emergency telephone call when she first became aware of the defendant’s presence in her apartment. The defendant also claims that he could not have remained unlawfully on the premises because he left when the victim asked him to go after her daughter began to cry. We are unpersuaded.

The jury reasonably could infer from the evidence that the defendant did not have permission to enter the victim’s apartment and that even if the victim did not initially protest his presence, she certainly let him know that he did not have permission to remain when she called out, “No,” and, “Stop.”

A finding of fact by the jury must stand if it is reasonably supported by the evidence or the reasonable inferences drawn therefrom. See State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). The jury could have reasonably found that the victim did not consent to the defendant’s entering, even though she left her door open and did not ask the defendant to leave. See State v. Gelormino, 24 Conn. App. 563, 571, 590 A.2d 480, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991). Furthermore, consent to enter or to remain in another’s private premises does not encompass consent to commit a crime therein. See id., 571-52. Here, the jurors, as the arbiters of truth; see State v. Walker, 33 Conn. App. 763, 774, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994); clearly could have inferred that the victim’s telling the defendant, “No,” and, “Stop,” apprised the defendant of the fact that he did not have permission to remain in her apartment.

B

The defendant’s second sufficiency claim is that the state’s evidence does not prove beyond a reasonable doubt that he “intentionally, knowingly or recklessly inflictfed] or attempted] to inflict bodily injury” on the victim. See General Statutes § 53a-101 (a) (2).

The gravamen of the defendant’s claim is that he did not have the state of mind to cause injury to the victim’s breasts because he did not know, nor could have known that because the victim was lactating, squeezing her breasts would result in physical injury or pain. The defendant misconstrues the law. “Short of homicide, [sexual assault] is the ultimate violation of self. It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. [Sexual assault] is very often accompanied by physical injury to the [victim] . . . .” (Internal quotation marks omitted.) State v. Coleman, 41 Conn. App. 255, 274, 675 A.2d 887 (1996), rev’d on other grounds, 242 Conn. 523, 700 A.2d 14 (1997); State v. Havican, 213 Conn. 593, 599 n.3, 569 A.2d 1089 (1990). Here, the victim testified that the defendant squeezed her breasts so hard that they hurt for a week. The evidence before the jury and the inferences to be drawn from it are sufficient to support the jury’s verdict.

IV

Finally, the defendant claims that he was denied due process and a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution in that the prosecutor went beyond the bounds of propriety (1) during cross-examination (a) by employing a retroactive contradiction and (b) by asking questions about facts not in evidence, and (2) during final argument (a) by referring to missing witnesses, (b) by commenting on facts not in evidence, (c) by expressing a personal opinion about the credibility of the parties and (d) by appealing to the emotions, passions and prejudices of the jury. We disagree.

In his brief, the defendant acknowledges that at trial his attorney failed to preseive a number of his claims of prosecutorial misconduct. He argues, however, that the prosecutor’s misconduct is reviewable by this court under State v. Golding, supra, 213 Conn. 233. See State v. Williams, 204 Conn. 523, 536, 529 A.2d 653 (1987). In the alternative, the defendant argues that his claims are reviewable under the plain error rule pursuant to Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5, because the prosecutor’s behavior constitutes one of those “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

In analyzing the defendant’s claims of prosecutorial misconduct, “we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. 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.” (Citations omitted; internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 376-77, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument; State v. Fullwood, [194 Conn. 573, 585, 484 A.2d 435 (1984)]; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, [194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985)]; see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra [1181]; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra [654]; and the strength of the state’s case. See United States v. Modica, supra [1181]; State v. Couture, supra, 564; State v. Glenn, [194 Conn. 483, 492, 481 A.2d 741 (1984)]. State v. Williams, [supra] 204 Conn. 539-40.” (Internal quotation marks omitted.) State v. Sherman, supra, 38 Conn. App. 377.

To prevail on an unpreserved claim of prosecutorial misconduct, the record must reveal a “pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994). Because we previously addressed the defendant’s evidentiary claims, our review of prosecu-torial misconduct is limited to the defendant’s claims concerning the prosecutor’s final argument.

As a threshold matter, we find it significant that the defendant’s trial attorney did not object to the state’s final argument. “Both this court and our Supreme Court have held that ‘where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge 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. State v. Lubesky, supra [484]; State v. Falcone, [supra, 191 Conn. 23 n.13]. State v. Tyler-Barcomb, [197 Conn. 666, 673, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986)]; State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986); State v. Bell, 13 Conn. App. 420, 426-27, 537 A.2d 496 (1988).’ (Internal quotation marks omitted.) State v. Kelly, 23 Conn. App. 160, 170-71, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).” State v. Eason, 47 Conn. App. 117, 121, 703 A.2d 130 (1997), cert denied, 243 Conn. 962, 705 A.2d 552 (1998).

“ ‘In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.’ (Internal quotation marks omitted.) State v. Villanueva, 44 Conn. App. 457, 461-62, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997), quoting State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).” State v. Shinn, 47 Conn. App. 401, 421, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).

A

The defendant’s claim that the prosecutor commented on facts not in the record, specifically that the defendant was watching the victim, is unsupported by the evidence. “ ‘While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.’ State v. Ferrone, 96 Conn. 160, 169, 113 A. 452 (1921). ‘When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.’ State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987).” State v. Sherman, supra, 38 Conn. App. 394-95.

A prosecutor is entitled, however, to comment on reasonable inferences to be drawn from the evidence. See State v. Prioleau, 235 Conn. 274, 320, 664 A.2d 743 (1995). Here, the jury well could have inferred from the evidence that the defendant was watching the victim on the night in question, and we view the prosecutor’s final argument as fair comment on the record. See State v. Oehman, 212 Conn. 325, 333, 562 A.2d 493 (1989).

B

The defendant next claims that the prosecutor improperly made reference to missing witnesses in violation of the rule enunciated in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The defendant properly points out that a prosecutor must seek and obtain an advance ruling from the trial court if he intends to argue to the jury that an unfavorable inference should be drawn from the absence of a defense witness at trial. See State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980). A prosecutor’s failure to secure the trial court’s permission to refer to missing witnesses, however, fails to reach constitutional magnitude. See State v. Taylor, 239 Conn. 481, 490, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

A review of the record reveals that the prosecutor’s reference to missing witnesses was not for the purpose of asking the jury to draw an adverse inference. The prosecutor did not request aSecondino charge and none was given. The central issue in this case was one of credibility. The prosecutor’s remarks were made for the purpose of drawing the jury’s attention to the defendant’s credibility. The state did not argue that the witnesses’ testimony would have contradicted that of the defendant, but argued that contrary to the defendant’s testimony, there were no witnesses who could testify. Therefore, the prosecutor’s comments were appropriate.

C

The defendant’s third claim of prosecutorial impropriety during final argument concerns the prosecutor’s statements about the defendant’s having watched and stalked the victim, and listened in on her conversations. “ ‘While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.’ State v. Ferrone, [supra, 96 Conn. 169]. ‘When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.’ State v. Floyd, [supra, 10 Conn. App. 364].” State v. Sherman, supra, 38 Conn. App. 394-95.

As we reasoned in this opinion in regard to the defendant’s evidentiary claims, there was evidence presented through the defendant’s own testimony that he had been watching the victim and that he was standing outside the door of the victim’s apartment prior to entering the apartment. Therefore, it was proper for the prosecutor to draw the jury’s attention to reasonable inferences to be drawn from the facts.

D

The defendant’s fourth claim of impropriety during the prosecutor’s final argument alleges that the prosecutor commented on the credibility of the parties. It is axiomatic that “ ‘[t]he prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses. United States v. Modica, supra, [663 F.2d 1181]; United States v. Drummond, 481 F.2d 62 (2d Cir. 1973); State v. Floyd, [supra, 10 Conn. App. 365]; ABA Standards for Criminal Justice (Second), The Prosecution Function § 3-5.8 (b) (1985) . . . .’ State v. Williams, supra, 204 Conn. 541. ‘The prosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses. United States v. Drummond, [supra, 62]; Harris v. United States, [supra, 402 F.2d 656].’ . . . State v. Williams, supra, [204 Conn.] 541 n.6.” State v. Sherman, supra, 38 Conn. App. 396. Because the prosecutor’s comments were directed to the inferences that could reasonably be drawn from the two very different versions of the incident before the jury, there was no misconduct.

E

The defendant’s last claim of misconduct on the part of the prosecutor is that the final argument appealed to the emotions, passions and prejudices of the jurors. As a rule, a prosecutor may not resort to such appeals. See id., 400. “ ‘This does not mean that a prosecutor may not present arguments with logical force and vigor. See Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 [1935].’ . . .” State v. Sherman, supra, 38 Conn. App. 401.

As previously noted, the defendant’s trial counsel did not object to the prosecutor’s final argument, and we also note that the trial court did not intervene to caution the prosecutor or to strike any of the prosecutor’s comments. “In considering this claim, we must adhere to the principle that ‘the action of the trial court is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful. See State v. Ubaldi, [190 Conn. 559, 563, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983)]; State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982); Downing v. State, 178 Ind. App. 144, 152, 381 N.E.2d 554 (1978).’ State v. Glenn, [supra, 194 Conn. 493].”State v. Sherman, supra, 38 Conn. App. 395. The court’s instructions to the jury did, however, include a charge that the jury’s verdict “should be based only on the evidence and that the statements of counsel during closing argument did not constitute evidence. Those instructions served to diminish the impact, if any, the remark[s] may have had on the jury. See State v. Flinter, 16 Conn. App. 402, 410, 548 A.2d 1 [cert. denied, 209 Conn. 829, 552 A.2d 1216] (1988).” State v. Sherman, supra, 395-96.

In conclusion, we hold that the state’s final argument did not so infect the trial with unfairness as to deny the defendant due process under either the federal or state constitutions and, therefore, that the defendant’s claims of prosecutorial misconduct do not meet the third prong of Golding. Because we also find that the prosecutor’s remarks did not impair the effectiveness or integrity of the judicial process, we similarly conclude that his claims are not reviewable under the plain error doctrine. See State v. O’Brien, 29 Conn. App. 724, 727-28, 618 A.2d 50 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

         The following colloquy took place during the prosecutor’s cross-examination of the defendant.
      “Q. And you were eavesdropping on the evening of September 26 to see if she was alone in there because her door was open. Is that a fact, sir?

        “A. No, that’s a lie because I knew she had a roommate and she moved out. I knew she lived there with just her and her child.
      “Q. That’s right, because you were checking her out.
      “A. I lived next door. I seen it all the time. I seen—
      “Q. You were watching her from next door.
      “A. Whatever you think. I know the facts. I seen her quite often—
      “Q. I think we all know the facts here, sir. That’s what we’re trying to find out.
      “A. That’s right.
      “Q. Now, Detective Gary Brandi—
      “A. Yeah.
      “Q. he left his card in your door at least—
      45 Ht ❖
      “Q. Isn’t it a fact, sir, that you never called Detective Brandi because you were avoiding him. You didn’t want to talk about this?”

       The state’s theory of the case was that the defendant had been watching the victim and listening to her telephone conversations because he knew things about the victim that she claims she never told him.

       The prosecutor’s cross-examination of the defendant included the following colloquy:
      “Q. Who else has ever seen you with [the victim]?
      “A. My neighbor, Kevin, but he had moved. I was looking for him. I don’t know where he’s at. My neighbor, Dennis, but he doesn’t want to come to court because our landlord is someone he works for so he did not want to get involved.
      “Q. Okay. So everybody has either moved out of town or doesn’t want to get involved who can say that you knew this young lady before the night that you went in and attacked her. Is that what your testimony is, sir?
      “A. No, because my mother knows I know, but my mother never saw me with her.

        “Q. Oh, okay, isn’t, that convenient. Give us some names, full names and addresses of these people who can come in here and say—
      “A. Kevin, I don’t know his last name, but he was a neighbor. Dennis, he knows. Um, Penny Milardi. Urn—
      “Q. Tell us where we can find these people who saw you with this girl, tell us!
      “A. There’s two people right now that are at work. If they could take off they’d be here. If I could get them to get subpoenaed, then they’d be here, but they just started new jobs so they don’t want to take the chance of losing their job because of this.”

       The defendant’s version of the incident differs from that of the victim in that he claims that he and the victim knew each other, having spoken to one another on several occasions prior to the subject incident. At approximately 4:30 p.m. on the day in question, while he was standing outside her apartment, the victim invited the defendant to come in, to share the evening meal and to watch television. During the time the defendant was in the apartment, he claimed he overheard the victim’s telephone conversation with a friend, listened to music, watched television, talked and “made out” with the victim. The defendant claimed that no physical activity between him and the victim was forced. The defendant left the apartment when the victim went to comfort her daughter when she began to cry.

       Our review of the transcript reveals that although the defendant’s counsel did not file a request to charge, he did participate in a charge conference in chambers and agreed, on the record, to the charge that the trial court proposed to instruct the jury.
      “The Court: Is there anything either side wishes to place on the record?
      “Defense Counsel: Yes, Your Honor. It’s regarding the jury instruction on request to charge.
      “The Court: All right. That’s another issue. As I understand it, your request to charge has not been formally filed, but it is a fact that we have gone over it at some length in chambers, the court’s charge, and what it is that both sides would request.
      “Defense Counsel: And we’ve reached an agreement as to the total request to charge in this matter.”
      When a defendant consents to an instruction to the jury, he waives his right to challenge the instruction on appeal. See State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989). Our rules of procedure do not allow a defendant to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. See State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987). To rule otherwise would permit trial by ambuscade. See State v. Prioleau, 235 Conn. 274, 311, 664 A.2d 743 (1995). An appellant cannot create a reviewable claim because his appellate counsel disagrees with the strategy of his trial counsel.

       General Statutes § 53a-100 (b) provides in relevant part: “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.”

       General Statutes § 53a-3 (3) provides: “ ‘Physical injury’ means impairment of physical condition or pain . . . .”

       The victim assumed that the defendant made the statement because he overheard the telephone conversation she had between 6 and 7 p.m. during which she discussed her father’s having abused her.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be held to answer for a capital, or otherwise infamous crime . . . nor be deprived of life, liberty, or property, without due process of law . . .

       The fourteenth amendment to the United States constitution provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law . . .

       Article first, § 8, of the Connecticut constitution provides in relevant pait: “No person shall be . . . deprived of life, liberty or property without due process of law

       The defendant has also requested that his claims of prosecutorial misconduct be reviewed under the second “exceptional circumstance” of State v. Evans, 165 Conn. 61, 71-73, 327 A.2d 576 (1973). Because Golding encompasses the exceptional circumstances of Evans, it is not necessary for us to review the defendant’s claims under Evans.

       During final argument, the prosecutor said, “Where I asked him, he said they talked. Yesterday he said that they talked, they had conversations and yet when I asked him, when I [asked] him to get us one name of the thirty or forty people he told us lived in those two houses, to give us one name of someone who had seen them talking—because she said they never talked. . . . Has somebody seen you? Oh, well, um, Joe—I don’t remember his last name, and this person moved away, and this person’s working, he just has a new job, and—ladies and gentlemen, there was nobody. There was nobody who saw them ever talking because they never talked. You cannot bring in people to verify something when it is a fairy tale, and you know that.”
      On rebuttal, the prosecutor said: “[The defendant testified that he and the victim] were friends, they talked. . . . Well, up here yesterday on the witness stand he named several names and a couple of them were at work, I think, he said. Of course, the last names, they were all vague and [I] couldn’t quite pin him down, but a couple of them were at work. . . . Those people, he named the names and they’re all fictitious characters out of a comic book somewhere. They don’t exist. No one saw them talking because they didn’t talk.”

       Our review of the record reveals that the prosecutor did not use the word stalk until rebuttal, after defense counsel had used the word in his final argument.


author: SPEAR, J. LAVERY, J.,

text:
    KENNETH SLOAN ET AL. v. MATTHEW KUBITSKY ET AL.
    (AC 16471)
    Lavery, Landau and Spear, Js.
    Argued December 2, 1997
    officially released June 2, 1998

      Lars Edeen, Jr., with whom, on the brief, was Steven P. Ciardiello, for the appellant-appellee (defendant Edward J. Winter).

      John H. Hanks, for the appellees-appellants (plaintiffs).

      Frank R. Grundman, for the appellee-appellant (named defendant).
   Opinion

SPEAR, J.

The plaintiffs, Kenneth C. Sloan and Patrick J. Romano, and the defendant-third party plaintiff Matthew F. Kubitsky brought suit against the defendant Edward J. Winter alleging a breach of Winter’s guarantee of a promissory note on which the corporate maker defaulted. Winter appeals from the judgment of the trial court in favor of the plaintiffs and the third party plaintiff. He claims that the court improperly (1) precluded his defense of recoupment on the ground that the claim that he sought to raise belonged to the debtor corporation, and (2) refused to allow him to “stand in the shoes” of the debtor corporation to raise the recoupment defense. The plaintiffs and Kubitsky filed cross appeals, claiming that the trial court improperly denied their requests for attorney’s fees on the basis of the absence of an express provision for such fees in the guarantee agreements. We affirm the judgment of the trial court as to the appeal, and reverse the judgment in part with respect to the cross appeals.

The trial court’s memorandum of decision sets out the factual and procedural history of the case, the relevant findings and the court’s conclusions of law. Winter was a majority shareholder of Atlease, Inc., a New York corporation. In 1984, Sloan and Romano, principal shareholders of Firstway Corporation, executed a guarantee of a promissory note that was made by Firstway for $500,000 in favor of Citytrust bank. Firstway operated a car rental business in Stamford. In 1985, Atlease purchased the stock of Firstway. As consideration for the stock, Atlease assumed Firstway’s obligation to pay the Citytrust note, and the defendants Atlease and Michael Inzitari executed a guarantee of the note.

Atlease subsequently defaulted on the note, and City-trust sued Sloan and Romano on their guarantee. After settling with Citytrust, Sloan and Romano commenced an action against the defendant and others on their agreement to indemnify the plaintiffs. Atlease did not appear at trial and was defaulted.

At trial, Winter alleged that prior to the 1985 sale of Firstway, the plaintiffs had fraudulently rolled back odometers on cars that were owned by Flrstway. The alleged effect of that action was to overvalue the cars, which had served as collateral for the Citytrust note that Atlease subsequently assumed and Winter personally guaranteed. In addition to raising several other special defenses, Winter attempted unsuccessfully to raise the common law defense of recoupment to reduce the amount of the judgment that was sought by the plaintiffs. The trial court ruled that because Winter was the majority stockholder, but not the sole stockholder, of Atlease, the special defenses, including the defense of recoupment, actually belonged to Atlease and not to Winter. The court determined that because mutuality of obligation between the parties was lacking, Winter could not assert a recoupment defense. The court rendered judgment in favor of the plaintiffs and the third party plaintiff against Winter in the amount of $173,899.56. The court denied the plaintiffs’ requests for attorney’s fees because the agreement that the defendant signed guaranteeing the Citytrust note did not expressly provide for such fees. This appeal and the cross appeals followed.

I

Winter first claims that the trial court improperly refused to allow him to raise the defense of recoupment with respect to the Citytrust note for which he was a personal guarantor. We disagree.

“Our courts [have] recognized the right of a person sued in an action upon contract, to recoup or cut back the amount which the plaintiff might recover, by showing a right of action for damages in himself arising out of the same contract or, in a qualified sense, transaction.” Boothe v. Armstrong, 76 Conn. 530, 531, 57 A. 173 (1904). For a valid contract defense such as recoupment to be asserted, however, there first must be an enforceable contract between the parties. It is well settled in this state that there must be mutuality of obligation between the parties to a contract for the contract to be enforceable. Hess v. Dumouchel Paper Co., 154 Conn. 343, 347, 225 A.2d 797 (1966); R.F. Baker Co. v. P. Ballantine & Sons, 127 Conn. 680, 683, 20 A.2d 82 (1941); Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 443, 6 A.2d 357 (1939). Specifically, “ ‘[t]he intention of the parties manifested by their words and acts is essential to determine whether a contract was entered into and what its terms were. . . . This determination requires a finding of mutuality of obligation.’ ” (Citation omitted.) Hydro-Hercules Corp. v. Gary Excavating, Inc., 166 Conn. 647, 652-53, 353 A.2d 714 (1974).

The trial court properly found that Atlease, and not Winter, would be the party entitled to assert a recoupment defense because Atlease, not Winter, was the actual purchasing entity that contracted to assume the obligation to repay the Citytrust note. We conclude that the trial court properly determined that mutuality of obligation was a prerequisite to raising the common law defense of recoupment.

II

Winter alternatively asserts that the trial court improperly prevented him from “standing in the shoes” of Atlease, the principal obligor, and raising the recoupment defense. Winter argues for the first time on appeal that the trial court neglected to address an exception to the mutuality requirement, available where the principal debtor fails to appear and raise available defenses because of insolvency. Restatement, Security § 133 (2) (1941); F. Childs, Law of Suretyship and Guaranty § 148 (1907). In such a case, the guarantor can then raise those defenses. The insolvent principal exception has been adopted by other courts; United States ex rel. Johnson v. Morley Construction Co., 98 F.2d 781, 790 (2d Cir.), cert. denied, 305 U.S. 651, 59 S. Ct. 244, 83 L. Ed. 421 (1938); In re Yale Express System, Inc., v. Nogg, 362 F.2d 111, 114-15 (2d Cir. 1966); and, in aproper case, this court could consider whether fairness dictates that we also adopt this exception. This is not that case because, as Winter concedes, the insolvency exception claim was never raised at trial nor was any evidence of Atlease’s insolvency or dissolution ever presented.

The dissent mistakenly asserts that our analysis should center on the law of suretyship instead of on the requirement for mutuality of obligation between the parties to a contract, which was the issue that was raised on appeal. We do not agree.

This court has previously concluded that “[a] party . . . has a right to fair notice that a court may render a judgment with respect to a given issue. . . . When the trial court surprises a party by deciding a case on a claim that was not presented to it, that party obviously is no longer in a position to counter the claim.” (Citations omitted; internal quotation marks omitted.) Haynes Construction Co. v. Cascella & Son Construction, Inc., 36 Conn. App. 29, 36-37, 647 A.2d 1015, cert. denied, 231 Conn. 916, 648 A.2d 152 (1994). Our Supreme Court has further stated that a court lacks jurisdiction to determine an issue that was not properly raised in the pleadings. See Gordon v. Tufano, 188 Conn. 477, 482, 450 A.2d 852 (1982).

The dissent focuses on an exception to the mutuality requirement, where both principal and surety are joined as defendants, that was not raised before the trial court and was neither argued to nor briefed for this court. In fact, Winter never advocated the adoption of any exception to the mutuality requirement until, on appeal, he argued for the first time that this court should adopt the insolvent principal exception to the mutuality of obligation requirement. Moreover, the special defense of set-off, which the dissent discusses in detail, was specifically disavowed by Winter in favor of pleading only the separate and distinct defense of recoupment.

It is well settled that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5. Moreover, this court subscribes to the “[long-standing] rule that absent certain exceptional circumstances . . . claims not distinctly raised at trial will not be reviewed on appeal.” (Internal quotation marks omitted.) In re Michael A., 47 Conn. App. 105, 110, 703 A.2d 1146 (1997), quoting Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). Our review of the record reveals that Winter was in no way precluded from raising the special defense of set-off in addition to the defense of recoupment. Nonetheless, he specifically declined to do so. Moreover, Winter had ample opportunity to urge the trial court to adopt any one of the recognized exceptions to the mutuality of obligation requirement. At trial, Winter not only failed to raise the specific exception that is addressed by the dissent, where both the principal and the surety are joined as defendants, but he failed to advocate the adoption of any exception to the mutuality requirement until, on appeal to this court, he argued for the adoption of the insolvent principal exception for the first time. Accordingly, because Winter did not raise this claim in any manner at trial, we will not address it on appeal.

Ill

The plaintiffs’ and Kubitsky’s cross appeals claim that the trial court improperly refused to award attorney’s fees because of the absence of a specific provision for such fees in the guarantee agreement. Specifically, the language in the agreement provided that the plaintiffs and Kubitsky would be indemnified “against all actions, proceedings, interest, damages, costs and expenses” related to the Citytrust note. While the trial court found the absence of an express provision regarding attorney’s fees to be dispositive, the plaintiffs and Kubitsky contend that the absence of such language does not preclude an award of attorney’s fees in this case. After reviewing our case law with respect to the interpretation of indemnity agreements, we are persuaded that the plaintiffs and Kubitsky are entitled to those attorney’s fees that were directly related to the defense of the original action on the note.

In support of their contention, the plaintiffs rely on Burr v. Lichtenheim, 190 Conn. 351, 460 A.2d 1290 (1983). In Lichtenheim, our Supreme Court acknowledged that where an indemnity agreement “makes no reference to attorney’s fees and limits its scope to ‘expenses . . . incurred with any action brought to enforce [the indemnitees’] rights’ (emphasis added) id., 364; that indemnity agreement “allows no reasonable interpretation other than that attorney’s fees would be limited to defense of the original action.” Id. Further, the court reiterated the general rule that “in the absence of express contractual terms to the contrary, allowance of fees is limited to the defense of the claim which was indemnified and does not extend to services rendered in establishing the right to indemnification.” Id., 363; see Bodner v. United Services Automobile Assn., 222 Conn. 480, 497, 610 A.2d 1212 (1992); Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140-41, 475 A.2d 305 (1984); Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 78-79, 504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). Implicit in these cases is the proposition that an agreement to indemnify against all expenses allows for attorney’s fees incurred in defense of the original action.

We conclude that the language in this indemnity agreement encompassed an award of attorney’s fees. Because there was no express provision for those fees in the indemnity agreement, only those attorney’s fees that were associated with the defense of the original action on the note may be awarded to the plaintiffs and Kubitsky. Accordingly, because the plaintiffs and Kubitsky are entitled to receive those attorney’s fees that were related to their defense of the Citytrust action on the note, we reverse in part the judgment of the trial court.

The judgment is reversed on the cross appeals only with respect to the award of attorney’s fees and the case is remanded for a hearing to determine what fees are attributable to the original action on the note.

In this opinion LANDAU, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion, which affirms the trial court’s decision to preclude the defendant Edward J. Winter from asserting recoupment as a defense. I disagree with the majority’s conclusion that the trial court properly found that Atlease, and not Winter, would be the proper party to assert a recoupment defense and that mutuality of obligation was a prerequisite for Winter to assert the recoupment defense in this case. I would conclude that Winter was a proper party to assert, and should have been allowed to assert, the defense of recoupment in this case for the reasons I present.

The majority and the trial court have misplaced then-focus on the requirement of mutuality of obligation instead of on the law of suretyship. The issue that is before us, and was before the trial court, is simply whether a guarantor such as Winter may assert the defenses of its principal in a suit brought by the beneficiary of the suretyship agreement. The hornbook law answer is yes on the facts of this case.

“As a general rule, when a creditor sues a guarantor and does not name the principal debtor in the action, the guarantor is not entitled to raise defensively the claims of the principal debtor against the creditor. . . . The rationale behind this rule is to protect the claims of the principal, since the guarantor may not be in the best position to assert them.” (Citations omitted.) First Texas Service Corp. v. Roulier, 750 F. Sup. 1056, 1060-61 (D. Colo. 1990). “Despite the general rule which prohibits the guarantor from asserting the principal’s claims, courts have recognized three exceptions. A guarantor may assert the independent claim of the principal to set-off the creditor’s claim against the guarantor where (1) the surety has taken an assignment of the claim or the principal has consented to the surety’s use of the claim, (2) both principal and surety are joined as defendants, or (3) the principal is insolvent. See Restatement of Security § 133 (2) at 360 (1941). See also Arctic Contractors, Inc. v. State of Alaska, 573 P.2d 1385 (Alaska 1978).” (Emphasis added.) Continental Group, Inc. v. Justice, 536 F. Sup. 658, 661 (D. Del. 1982). “The guarantor’s right to assert the principal’s claims under these exceptions is in the nature of setoff against the creditor’s claim on the guaranty; the guarantor may not recover affirmatively. . . . Thus, if the guarantor’s recovery on his counterclaims exceeds his liability under the guaranty, the guarantor may not recover this excess.” (Citation omitted.) First Texas Service Corp. v. Roulier, supra, 1061.

The Restatement of Security § 133 (2) (b), p. 360 (1941), states that “[t]he surety cannot set off against the creditor the principal’s claims against the creditor unless . . . the principal is made a party to the action instituted by the creditor . . . .” The Restatement of Suretyship and Guaranty (Third), § 34 (1), p. 143 (1995), states that “the secondary obligor may raise as a defense to the secondary obligation any defense of the principal obligor to the underlying obligation . . . .” “A surety, when sued with the principal, can set off or recoup any demand which would be available to the principal alone. ... As a general rule it may be said that, when the surety and principal are joined as defendants, a claim due from the creditor to the principal alone can be advanced as a set-off or by way of recoupment . . . .” F. Childs, Handbook of the Law of Suretyship and Guaranty (1907) § 148, p. 272; see L. Simpson, Handbook on the Law of Suretyship (1950) § 70, pp. 324—25; D. Pingrey, A Treatise on the Law of Suretyship and Guaranty (1913) § 144, p. 170; 74 Am. Jur. 2d 77-78, Surety-ship § 107 (1974); Great American Ins. Co. v. Fred J. Gallagher Const. Co., 16 Ariz. App. 479, 494 P.2d 379 (1972); Becker v. W.P. Northway, 44 Minn. 61, 46 N.W. 210 (1890); Raymond Bros. v. Green & Co., 12 Neb. 215, 10 N.W. 709 (1881).

This rule, allowing a surety to assert the defenses of the obligor, has even been expressed by our Supreme Court. “Because the surety’s contract is ancillary to that of the debtor, suretyship law has permitted the surety to assert the defenses or the discharge of his debtor unless the very purpose of the suretyship was to shift the risk of this event from the creditor to the surety.” (Emphasis added.) American Oil Co. v. Valenti, 179 Conn. 349, 352-53, 426 A.2d 305 (1979).

There is even a learned treatise that states: “Where the counterclaim, however, is in the nature of a mere recoupment or matter in mitigation constituting an entire or partial failure of the consideration of the debt for which the surety is bound, such counterclaim will ordinarily be available to the surety even though he is sued without his principal, and there has been no assignment or consent to the use of the counterclaim by the latter.” E. Spencer, The General Law of Suretyship (1913) § 194, p. 272.

In this case, the plaintiffs sold a car rental business to Atlease. The major assets of that business were automobiles that were held out for lease. The consideration given for the business was the agreement by Atlease to pay the remaining balance on a note owed by the plaintiffs payable to Citytrust. As part of the consideration, Winter signed a guarantee of this note assumed by Atlease.

Winter’s recoupment defense claims that the odometers of the automobiles purchased by Atlease were rolled back by the plaintiffs and, therefore, the value of the automobiles was less than what was originally represented to Atlease when the business was purchased. Thus, this claim alleges a failure of the consideration for the underlying debt. Arguably, Atlease has agreed to pay back a loan under false pretenses. Atlease, as the primary obligor, has a valid recoupment defense.

The plaintiffs brought suit against both Winter and Atlease. Therefore, both the primary obligor, Atlease, and the secondary obligor, Winter, were parties to this action. Atlease failed to appear and a default judgment was entered against it. Winter should have been allowed to raise the defense of recoupment belonging to Atlease against the plaintiffs. The failure of Atlease to appear and raise the recoupment defense itself does not prevent Winter from doing so. It would be inequitable to allow the plaintiffs to prevail without providing Winter the opportunity to present a recoupment defense.

The majority opinion denies Winter the opportunity to present the recoupment defense, which he is properly entitled to assert under the facts of this case. I would conclude that the trial court improperly precluded Winter, as the guarantor, from presenting the recoupment defense of Atlease, the primary obligor.

I would reverse the judgment of the trial court and remand this case for further proceedings.

       Sloan and Romano brought suit against Atlease, Inc., Michael Inzitari, Kubitsky and Winter claiming that each was liable for Sloan and Romano’s payment of the promissory note that was guaranteed by each defendant. Kubitsky filed a cross claim against the other defendants claiming a breach of their guarantees of the note. By the time of trial, Kubitsky and Inzitari had settled with Sloan and Romano, and Atlease, Inc., had been defaulted. The postare of the case at trial was that Sloan, Romano and Kubitsky each had a claim against Winter. Kubitsky’s claims against Inzitari and Atlease are not at issue here.

       In addition to Sloan and Romano, Kubitsky was also a principal in Firstway Corporation. Its stock was held by Firstway, Inc., a Delaware holding company.

       Kubitsky also executed a personal guarantee of the Citytrust note by separate document.

       See footnote 1.

       Winter did not raise fraud as an affirmative defense to the plaintiffs’ claim.

       Winter raised five special defenses, the first of which, challenging personal jurisdiction, was unsuccessful. The other four special defenses related to Winter’s claim that the plaintiffs had rolled back odometers on Firstway vehicles that became the properly of Atlease in the 1985 sale.

       This amount represents a principal sum of $97,500 plus interest, which was not challenged by Winter, in the amount of $76,399.56. Judgment also entered for $30,000 in favor of Kubitsky, another principal of Firstway, on his reformed complaint. The trial court’s memorandum of decision states that Kubitsky’s $30,000 judgment would subsequently be repaid to the plaintiffs by Kubitsky pursuant to a previous settlement agreement between the parties. Kubitsky’s request for attorney’s fees and prejudgment interest thereon was also denied by the trial court.

       At trial, Winter argued that New York law, which abrogates the requirement of mutuality of obligation, should apply to the present case. After the trial court declined to so adopt New York law, Winter made no argument with respect to the adoption of an exception to this state’s mutuality requirement.

       The plaintiffs acknowledge that they are entitled only to attorney’s fees that are directly related to the defense of the underlying action on the note. The parties have stipulated to the total amount of attorney’s fees incurred both in defending the Citytrust action and prosecuting this action, but have not agreed on the amount attributable to defending only the original Citytrust action. It is not clear from the record whether Kubitsky was involved in the Citytrust action. This opinion established his right to recover fees incurred in that action, but makes no comment on whether he, in fact, incurred any such fees.

       The majority argues that Winter did not properly raise this claim to the trial court. I disagree. Winter raised the defense of recoupment in his pleadings and, therefore, to the trial court. It is the trial court that ignored the law of suretyship and the established rule that when a guarantor and principal are joined together as defendants, the guarantor can assert the defenses of his principal. The trial court choose to focus only on mutuality of obligation. Under the facts of this case, where the guarantor and principal are joined as defendants, mutuality of obligation is not the issue.

       The defenses of recoupment and set-off are generally discussed together and used interchangeably throughout case law and treatises. “Recoupment is the act of rebating or recouping a part of a claim on which one is sued by means of a legal or equitable right resulting from a counterclaim arising out of the same transaction. ... In the absence of a statute providing otherwise, recoupment is purely defensive and not offensive, at least when employed in a court of law. It goes to the justice or existence of plaintiffs claim, and only to the abatement, reduction, or mitigation of the damages claimed by plaintiff.” 80 C.J.S. 5-6, Set-off and Counterclaim § 2 (1953). “A set-off is a counterdemand which a defendant holds against a plaintiff, arising out of a transaction extrinsic of the plaintiffs cause of action . . . 80 C.J.S. 7, Set-off and Counterclaim § 3 (1953). “Recoupment and set-off are distinguishable from each other as to origin, subject matter, pleading, and the judgment recoverable. . . . However, recoupment and set-off are closely related, and a recoupment is, in a sense, a set-off. In some jurisdictions, by virtue of code or statutory provisions, there is no longer any substantial difference between the two terms; and sometimes the terms are used interchangeably, or one is erroneously employed when the other is obviously intended.” 80 C.J.S. 19, Set-off and Counterclaim § 10 (1953).

       In Connecticut, General Statutes § 42a-l-201 (40) provides: “ ‘Surety’ includes guarantor.”

       The following cases are cited in L. Simpson, supra, § 70, p. 325 n.97 (1950). “Balsley v. Hoffman, 13 Pa. 603 [1850]; Aultman & Taylor Co. v. Hefner, 67 Tex. 54, 2 S.W. 861 (1886); Webb-Harris Auto Co. v. Industrial Acceptance Corporation, 164 Ga. 54, 137 [S.E.] 770 (1927); Himrod v. Baugh, 85 Ill. 435 (1877); Slayback v. Jones, 9 Ind. 470 (1857); Park v. Ensign, 66 Kan. 50, 71 P. 230, 97 Am. St. Rep. 352 (1903); Spencer v. Almoney, 56 Md. 551 (1881); Temple St. Cable Ry. v. Hellman, 103 Cal. 634, 37 P. 530 (1894); Waterman v. Clark, 76 Ill. 428 (1875); Elia v. Bavuso, 204 Ill. App. 314 (1917); Hayes v. Cooper, 14 Ill. App. 490 (1884); Reeves v. Chambers, 67 Iowa 81, 24 N.W. 602 (1885); Harrison v. Henderson, 4 Ga. 198 (1848); Peirce v. Bent, 69 Me. 381 (1879); [M’Hardy] v. Wadsworth, 8 Mich. 349 (1860); Van Etten v. Kosters, 48 Neb. 152, 66 N.W. 1106 (1896); Raymond Bros. v. Green & Co., 12 Neb. 215, 10 N.W. 709, 41 Am. Rep. 763 (1881); Mahurin v. Pearson, 8 N.H. 539 (1837); Springer v. Dwyer, 50 N.Y. 19 (1872); Gunnis, Barrett & Co. v. Weigley, 114 Pa. 191, 6 A. 465 (1886); Hollister v. Davis, 54 Pa. 508 (1867); Bell v. Campbell, 143 S.W. 953 (Tex. Civ. App. 1912); Boyd v. Beaudin, 54 Wis. 193, 11 N.W. 521 (1882).”

       Winter abandoned the defense of set-off raised in his pleadings. The terms set-off and recoupment are used interchangeably in the treatises and case law. See footnote 2. The majority misconstrues my discussion of the law of suretyship because it does not agree that the defense of recoupment is interchangeable with the use of the term set-off in the quoted passages.