author: DRANGINIS, J.

text:
    MICHAEL BRAHAM v. COMMISSIONER OF CORRECTION
    (AC 21993)
    Foti, Dranginis and West, Js.

      Argued June 3
    officially released August 27, 2002

      Judith M. Wildfeuer, deputy assistant public defender, for the appellant (petitioner).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael Gailor, assistant state’s attorney, for the appellee (respondent).
   Opinion

DRANGINIS, J.

The petitioner, Michael Braham, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that (1) he had effective assistance of counsel, and (2) his guilty plea was knowingly, intelligently and voluntarily made. We affirm the judgment of the habeas court.

The facts underlying the petitioner’s arrest and subsequent guilty plea are as follows. On June 24, 1996, in the area of 104 Westboume Parkway in Hartford, the petitioner shot and killed Jeffrey Murphy. The petitioner and the victim had attended a cookout that day where the petitioner consumed beer and smoked marijuana. The petitioner and the victim had engaged in an argument that began the previous night over a sale of drugs. The petitioner testified at the habeas trial that he had been angry about the continuing argument with the victim.

According to the petitioner, the victim threatened that he would “see” the petitioner when the petitioner did not have his gun. The petitioner interpreted that to mean that he and victim were “at war now.” He then withdrew his gun and tried to strike the victim with it, but the victim ran away. The petitioner proceeded to fire shots in the direction of the victim. One of the bullets struck the victim and killed him. The victim’s cousin, Troy Murphy, witnessed the shooting and gave a statement to the police. The police seized the petitioner’s shirt, which later tested positive for gunpowder.

On July 2,1996, the petitioner was charged with murder in violation of General Statutes § SSa-SJa. The state filed a part B information on August 25, 1997, charging the petitioner with commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. Attorney Joseph S. Elder represented the petitioner on all charges. He met with and telephoned the petitioner on numerous occasions during the course of his representation.

On January 22, 1998, the petitioner entered a guilty plea under the Alford doctrine to the charge of murder. The trial court accepted the plea as knowingly and voluntarily made and sentenced the petitioner to a term of thirty-two years incarceration pursuant to a plea agreement. On June 29, 2000, the petitioner filed an amended petition for a writ of habeas corpus. The habeas court dismissed the petition and granted certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

The standard of review of a habeas court judgment is 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). “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 66 Conn. App. 850, 851, 785 A.2d 1225 (2001).

I

The petitioner first claims that the habeas court improperly concluded that he had effective assistance of counsel. The petitioner’s ineffective assistance of counsel claim is twofold. First, the petitioner argues that Elder was not reasonably competent in his knowledge, investigation and advice concerning the affirmative defense of extreme emotional disturbance and the use of voluntary intoxication to negate the element of intent in the crime of murder. Second, the petitioner argues that Elder’s representation was deficient in that he allegedly informed the petitioner that he would be eligible for parole after serving 50 percent of his sentence when, in fact, there is no parole eligibility for murder. We do not agree with the petitioner’s claims.

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. “First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Guadalupe v. Commissioner of Correction, 68 Conn. App. 376, 380-81, 791 A.2d 640, cert. denied, 260 Conn. 913, 796 A.2d 557 (2002).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [jjudicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [CJounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 317-18, 759 A.2d 118 (2000).

When the ineffective assistance of counsel claim arises from the plea negotiation process, the prejudice requirement is satisfied if the petitioner proves that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Daniel v. Commissioner of Correction, 57 Conn. App. 651, 665, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000).

A

The petitioner first argues that he had ineffective assistance of counsel because Elder was not reasonably competent in his knowledge, investigation and advice concerning the defense of extreme emotional disturbance and the use of voluntary intoxication to negate intent. We do not agree.

The affirmative defense of extreme emotional disturbance is set forth in § 53a-54a, which states in relevant part that “it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .” The court held that the petitioner had failed to prove any deficiency by Elder in his knowledge, investigation or advice concerning the defense of extreme emotional disturbance. At the habeas trial, both the petitioner and Elder testified. The court found Elder’s testimony credible as to the reasons why he did not pursue the extreme emotional disturbance defense. That determination was based on Elder’s fifteen years of experience practicing criminal law. Furthermore, the court found that Elder was aware of the possibility of an extreme emotional disturbance defense because the petitioner’s mother had informed counsel of some emotional issues that the petitioner had. Elder discussed with the petitioner the possibility of an extreme emotional disturbance defense, but made a decision not to pursue that defense.

The court found that the following reasons proffered by Elder justified his trial strategy not to pursue an extreme emotional disturbance defense. First, Elder had examined the contents of a letter from the petitioner to a friend written one month after the killing. The letter, dated July 29,1996, indicated premeditation, a lack of remorse and even possible threats to potential witnesses. Second, the state had a strong case consisting of eyewitness testimony and forensic evidence consisting of the shirt seized from the petitioner on which there was gunpowder. Third, Elder believed that a successful extreme emotional disturbance defense would require the petitioner to testify at trial, which would allow the state to impeach him with his prior criminal record. Finally, Elder believed that even if the extreme emotional disturbance defense was successful, the petitioner would be found guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, which carries a possible forty year sentence. Elder believed that if the petitioner were convicted of manslaughter in the first degree with a firearm, the best sentence that the petitioner reasonably could hope for would be forty years because of his prior criminal history, a possible violation of probation, the part B information and the state’s hard-line position against the petitioner.

Elder reasoned that the thirty-two year plea offer was better than the risk of trial where the petitioner faced a possible sixty year sentence if convicted of murder and, at best, a forty year sentence if the extreme emotional disturbance defense succeeded and the petitioner was found guilty of manslaughter in the first degree with a firearm. In considering all of those factors, Elder decided not to pursue an extreme emotional disturbance defense at trial.

We conclude that the court properly found that Elder was reasonably competent in his knowledge, investigation and advice concerning the extreme emotional disturbance defense. Taking into account all of the factors and reasons that the habeas court found to be credible, this court must review counsel’s performance with a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” and that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Guadalupe v. Commissioner of Correction, supra, 68 Conn. App. 381. On the basis of our review of the record, we agree with the habeas court that Elder’s decision concerning an extreme emotional disturbance defense was not deficient and fell within the realm of a reasonably competent criminal defense attorney’s trial strategy.

The court also found that the petitioner offered no evidence at the habeas trial that he was intoxicated. That is a factual finding that we must review under the clearly erroneous standard. Jackson v. Commissioner of Correction, supra, 68 Conn. App. 192. General Statutes § 53a-7 in relevant part defines intoxication as a “substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.” The court noted that the petitioner testified that he had consumed a substantial amount of alcohol and smoked marijuana, but determined that no evidence of intoxication had been presented.

We conclude that the court properly found that Elder was not ineffective by failing to proffer evidence of intoxication to negate intent. Our review of the record supports the court’s conclusion that there was no evidence of intoxication. Therefore, the allegation that Elder was ineffective in failing to pursue, investigate or advise the petitioner concerning the use of intoxication to negate intent must fail.

B

The petitioner’s second ineffective assistance of counsel argument is that Elder’s representation was deficient in that he allegedly informed the petitioner that he would be eligible for parole after serving 50 percent of his sentence when, in fact, there is no parole eligibility for murder. We disagree.

During the habeas trial, the petitioner testified that Elder had informed him that he would be eligible for parole on the thirty-two year plea offer after serving 50 percent of the sentence and that he had relied on that representation in deciding to plead guilty. The petitioner also cites to a portion of the January 22, 1998 sentencing transcript to support his claim. He cites Elder’s statement to the trial court: “And I’ve encouraged [the petitioner] to look at some other options, like pardon, board of parole board. But I’ve explained to him that he’s going to really do some hard work in terms of rehabilitating himself and changing his life around while incarcerated if he wants to get some consideration later down the road.” Elder denied that he ever told petitioner that he would have to serve only sixteen years of the agreed thirty-two year sentence.

The conflicting testimony of the petitioner and Elder required the habeas court to determine the credibility of each witness. The court is the sole determiner of the credibility of witnesses and the weight to be given to the testimony of each witness. Johnson v. Commissioner of Correction, supra, 66 Conn. App. 851. We conclude that the court properly found that Elder’s representation was not deficient when it credited his testimony that he did not improperly advise the petitioner concerning parole eligibility. We do not find that the court’s finding was clearly erroneous. Therefore, the petitioner cannot succeed in his argument that he was misinformed about his parole eligibility.

C

Because we agree with the court’s determination that Elder’s performance was effective, we conclude that the petitioner failed to satisfy the first requirement of the Strickland test for ineffective assistance of counsel. We therefore do not need to analyze the prejudice prong of that test; see Guadalupe v. Commissioner of Correction, supra, 68 Conn. App. 385; and hold that the court was correct in dismissing the petitioner’s amended habeas petition for failure to establish the claim of ineffective assistance of counsel.

II

The petitioner next claims that the court improperly dismissed his amended petition because it did not find that his plea was knowingly, intelligently and voluntarily made. We do not agree.

Due process requires that a guilty plea must be knowingly and voluntarily entered. See State v. Benitez, 67 Conn. App. 36, 42, 786 A.2d 520 (2001), cert. denied, 259 Conn. 922, 792 A.2d 855 (2002). “[B]efore accepting a defendant’s plea, a trial court must inform him of three core constitutional rights: His right to be free of compulsory self-incrimination, and his rights to a jury trial and to confront his accusers.” (Internal quotation marks omitted.) Id. That requirement is set forth in Practice Book § 39-19, although strict compliance with that rule is not required. See State v. Lugo, 61 Conn. App. 855, 862, 767 A.2d 1250, cert. denied, 255 Conn. 955, 772 A.2d 153 (2001).

Although the court in its memorandum of decision did not explicitly decide the due process claims, they nonetheless were addressed in the court’s determination that there was effective assistance of counsel. “A habeas court need not . . . separately address due process claims subsumed by claims of ineffective assistance of counsel. The habeas court’s finding that the petitioner was not prejudiced by any of the alleged improprieties of . . . counsel necessarily disposed of the petitioner’s due process claims as well.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 61 Conn. App. 825, 833-34, 767 A.2d 790, cert. denied, 256 Conn. 903, 772 A.2d 596 (2001).

First, the petitioner claims that his plea was accepted in violation of his due process rights because of Elder’s alleged misrepresentation about parole eligibility for a murder conviction. Specifically, the petitioner asserts that his plea was entered unknowingly because he believed he would have to serve only 50 percent of his sentence. The court, however, concluded that such a misrepresentation was not made by Elder. Because there was no ineffective assistance of counsel during the plea negotiation and no erroneous advice was given, the petitioner’s first due process claim must fail.

Finally, the petitioner argues that the trial court had an affirmative duty to advise him of his ineligibility for parole during the plea canvass to ensure that his plea conformed with due process. The record reflects, however, that the court complied with the due process requirements set out by the United States Supreme Court and Practice Book § 39-19. In addition, our Supreme Court has held that “due process does not require a trial court to advise the defendant of his statutory parole ineligibility during a plea canvass.” State v. Andrews, 253 Conn. 497, 512, 752 A.2d 49 (2000). Due process also does not impose on the trial court “a duty to discover and dispel any unexpressed misapprehensions that may be harbored by a defendant.” (Internal quotation marks omitted.) Id., 509. Because the habeas court found that Elder did not misinform the petitioner concerning parole eligibility, any belief that the petitioner may have had concerning parole was not due to error by Elder,, but was an “unexpressed misapprehension” that the trial court did not have a duty to correct. We therefore conclude that the habeas court properly found that the petitioner’s plea was knowingly, intelligently and voluntary made.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.”
      The petitioner initially was charged with murder in violation of § 53a-54a, carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a) and recMess endangerment in the first degree in violation of General Statutes § 53a-63. The case then was transferred to part A of Hartford Superior Corut on July 2, 1996, where the petitioner was charged solely with murder.

       General Statutes § 53-202kprovides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”
      At the sentencing hearing, the state chose not to pursue an enhanced sentence under § 53-202k.

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

       General SI atutes § 53a-7 provides: “Intoxication shall not be a dei'ense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

       See General Statutes § 53a-35a (4).

       The potential maximum sentence for murder in violation of General Statutes § 53a-54a is life imprisonment. General Statutes § 53a-35a (2). A life sentence is a definite sentence of sixty years. General Statutes § 53a-35b.

       General Statutes § 54-125a (b) (1) provides that there is no eligibility for parole on a murder conviction.

       At trial, the petitioner failed to assert under Practice Book § 39-27 his due process claims concerning his guilty plea. He also did not pursue them on direct appeal. The habeas action is the first time that the petitioner has alleged due process violations. We note that generally, unpreserved constitutional claims pursued for the first time by means of a habeas petition are not reviewable unless good cause and prejudice are shown. See Bowers v. Commissioner of Correction, 33 Conn. App. 449, 450-51, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994). We also are aware that the habeas court made no express determination whether those two requirements were met here. Because the due process claims are subsumed in the court’s determination of the ineffective assistance of counsel claim and were briefed by both parties, we dispose of those claims. See Evans v. Commissioner of Correction, 37 Conn. App. 672, 693, 657 A.2d 1115 (“habeas court need not, therefore, separately address due process claims subsumed by claims of ineffective assistance of counsel”), cert. denied, 234 Conn. 912, 660 A.2d 354 (1995).

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       The trial court advised the petitioner of his rights and ensured that the plea was entered voluntarily and knowingly. The court found that the petitioner was twenty-three years old and had a high school education. The petitioner stated he was not under the influence of alcohol, drugs or medication. The petitioner stated that he had had enough time to discuss the plea with his attorney and that he was satisfied with counsel’s legal advice. The petitioner stated that he was entering the plea of his free will without having been threatened or forced to do so. The court then advised him of the constitutional rights he was waiving, including the right to plead not guilty, the right to have the state prove his guilt beyond a reasonable doubt at trial, the right to confront and to cross-examine witnesses, the right to present any defenses to the charge and the privilege against self-incrimination. The court also recited the elements of murder and the maximum and minimum sentences for murder. Finally, the court stated that there would be a sentence of thirty-two years imposed. The petitioner agreed that this was his understanding of the agreement and that it was the basis for his plea.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    F. GLENN CHRISTIAN v. JOANNE A. GOULDIN, EXECUTRIX (ESTATE OF NORMAN H. GOULDIN), ET AL.
    (AC 21657)
    Foti, Schaller and Flynn, Js.

      Argued April 25
    officially released August 27, 2002

      Thomas F. McDermott, Jr., for the appellant (plaintiff).

      Gary A. MacMillan, for the appellees (named defendant et al.).
   Opinion

FOTI, J.

This appeal arises from a dispute over a partnership agreement between the plaintiff, F. Glenn Christian, and Norman H. Gouldin, Angelo L. Miglietta and James M. Belcher. The plaintiff appeals from the judgment of the trial court granting the defendants’ motion for summary judgment as to the first count of the plaintiffs complaint. The plaintiff argues that the court improperly (1) granted the motion for summary judgment and (2) declined to equitably estop the defendants from raising a defense relative to their claim of limitation of partnership liability. We affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. The plaintiff, Gouldin, Miglietta and Belcher formed Keene Industries Company, a general partnership, in June, 1988. The partnership owned Keene Industries, Inc. In May, 1989, the partnership restated and amended its partnership agreement. That partnership agreement (May agreement) stated that upon termination of a partner’s employment, the departing partner’s interest in the partnership would be liquidated in an amount calculated according to the terms of the May agreement.

Specifically, the May agreement provided that the amount to be paid to a departing partner included three components consisting of a pro rata share of the partnership’s income, an amount based on the departing partner’s capital account and a guaranteed payment based on the partnership’s determined value. Under the agreement, the income and capital portions were to be paid within 180 days of termination, and the guaranteed amount was to be paid quarterly over four years in equal installments. Regardless of that schedule, however, the May agreement also included a limiting provision that allowed the partnership to defer payments to withdrawing partners on a per capita basis in the event that total payouts to such partners exceeded $650,000 in any given fiscal year.

The plaintiffs employment with Keene Industries Company and Keene Industries, Inc., terminated on December 31,1991, triggering liquidation. On that date, the plaintiffs income and capital portions of the liquidation payments equaled $94,597.28, and his guaranteed payment was $900,000.

On January 1, 1992, after some negotiation between the plaintiff and the other partners, the partners presented the plaintiff with a proposed new agreement (letter agreement) expressly referencing the plaintiffs termination and subsequent payout. The plaintiff executed that letter agreement on January 15, 1992. The letter agreement specified the exact amounts owed to the plaintiff using the May agreement’s method of calculation. The guaranteed payout installments, however, would now be disbursed monthly during a five year period. Further, any payments thirty days or more overdue would accrue interest at a rate of 10 percent per annum. Additionally, the letter agreement provided that all payments to the plaintiff would be from the partnership’s funds without any personal liability on the part of individual partners. By his signature, the plaintiff also agreed to a general release and discharge of the partnership, its partners and the corporation from all other claims.

On September 29,1999, the plaintiff filed a two count complaint for breach of contract due to nonpayment of the guaranteed payment portions of the liquidation payout. The first count named the individual partners, and the second count named the partnership. The defendants filed an answer on November 1,1999, asserting as a special defense for the individual partners the signed general release and nonrecourse provisions of the letter agreement. On July 28, 2000, the defendants filed a motion for summary judgment as to count one against the individual partners, claiming that there were no genuine issues of material fact in dispute regarding the liability of the individual defendants named in the first count of the complaint.

In the plaintiffs objection, filed October 3, 2000, he argued that there remained disputed issues of fact as to what effect the letter agreement had on the defendants’ obligations under the May agreement, whether the letter agreement was supported by consideration and whether defendants should be estopped from raising the letter agreement as a defense to personal liability. Finding no genuine issue of material fact regarding the validity or construction of the letter agreement, the court granted the defendants’ motion for summary judgment as to count one of the plaintiffs complaint. The plaintiff now appeals from that ruling.

We begin by stating our well settled standard of review of a court’s decision to grant a motion for summary judgment. “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 [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .” (Citations omitted; internal quotation marks omitted.) Yancey v. Connecticut Life & Casualty Ins. Co., 68 Conn. App. 556, 558-59, 791 A.2d 719 (2002).

Moreover, “[a] defendant’s motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).

I

The plaintiff first claims that the court improperly granted the defendants’ motion for summary judgment because the pleadings and his affidavit filed in opposition to the motion showed that a genuine issue of material fact exists concerning (1) the proper interpretation of the letter agreement’s effect on the liability of the individual partners and (2) whether the letter agreement was supported by valid consideration. Keeping in mind our standard of review, we address separately each of those arguments.

A

Because the court granted summary judgment largely on the basis of its interpretation of the letter agreement, we must decide whether the court’s interpretation of that agreement was legally and logically correct. Our review, therefore, requires us to first set forth the applicable principles of contract law.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Citations omitted; internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995). “[T]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face.” Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000), quoting 11 S. Williston, Contracts (4th Ed. Lord 1999) § 30:6, pp. 77-80. “Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion.” Paul Revere Life Ins. Co. v. Pastena, 52 Conn. App. 318, 322, 725 A.2d 996, cert. denied, 248 Conn. 917, 734 A.2d 567 (1999), citing Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998).

“A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” Marcolini v. Allstate Ins. Co., 160 Conn. 280, 284, 278 A.2d 796 (1971). “When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract . . . .” (Internal quotation marks omitted.) Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn. App. 109, 113, 679 A.2d 372 (1996).

The plaintiff claims that the court improperly concluded that the parties had intended the letter agreement to modify or to supplant the May agreement and that the parties intended to give effect to the letter agreement’s nonrecourse provision. The plaintiff argues that his affidavit in support of his opposition to the motion for summary judgment raised some factual disputes relating to the inteipretation of the letter agreement. The plaintiff contends that the court, in granting the motion for summary judgment, erroneously decided material issues of fact instead of reserving them for the trier of fact. We disagree.

The court reviewed the letter agreement and concluded that it contained “clear and decisive” language and was unambiguous on its face. The plaintiff never expressly claimed in his pleadings or affidavit that the language of the letter agreement was ambiguous. Although the plaintiffs affidavit purported to provide alternative purposes and effects of his signing the letter agreement, “the puiposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used.” (Internal quotation marks omitted.) Levine v. Massey, supra, 232 Conn. 279.

The relevant language of the letter agreement, when read in context, is clear: “You hereby agree that all amounts due by the Partnership to you pursuant to this Letter Agreement shall be satisfied from the assets of the Partnership and shall be without recourse to any of its Partners, as such term is defined in the Partnership Agreement.” The plaintiff argues that because that sentence purports to release individual partners only from liability on “amounts due by the Partnership,” the release is ineffective in releasing the partners from amounts due on the basis of their original individual obligations under the May agreement.

We decline to afford that provision such a tortured inteipretation. The plaintiffs affidavit, while providing his alternative legal conclusions as to the effect and purpose of the letter agreement, raised no issues of material fact relevant to the court’s interpretation of the letter agreement. The plaintiff provides no other evidence or reason why the trial court or this court on appeal should look beyond the four comers of the letter agreement. Further, the plaintiffs other arguments, i.e., that language in individual provisions suggests meanings other than those found by the trial court, results from his dissecting the contract in ways we have shown are not in conformity with normal contract inteipre-tation.

It is clear that the purpose of the letter agreement was to adopt the May agreement’s payout calculations while altering other terms of the payout agreement, including liability for failing to make timely payments. The defendants’ motion properly raised the letter agreement as a defense for the individual partners, claiming that the letter agreement had created a release of the individual partners from any personal liability they may have had under the May agreement. Because there is no reasonable basis for a difference in opinion as to the interpretation of the agreement, the court correctly determined its meaning as a matter of law.

On the basis of our plenary review of the record, we conclude that the court properly found that the letter agreement had effectively released the individual partners from personal liability on debt arising from the plaintiffs liquidation from the partnership. Consequently, no genuine issue of material fact exists regarding the interpretation of the letter agreement.

B

The plaintiff next argues that the court improperly determined that he had “received consideration in exchange for his promise to seek payment only from the assets of the partnership without recourse to the individual partners” because a genuine issue of material fact remained as to that issue. We disagree.

Consideration consists of “a benefit to the party promising, or a loss or detriment to the patty to whom the promise is made.” Finlay v. Swirsky, 103 Conn. 624, 631, 131 A. 420 (1925). Although an exchange of promises usually will satisfy the consideration requirement; Taft Realty Corp. v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959); “a promise to do that which one is already bound by his contract to do is not sufficient consideration to support an additional promise by the other party to the contract.” New England Rock Services, Inc. v. Empire Paving, Inc., 53 Conn. App. 771, 776, 731 A.2d 784, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). “A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do.” (Internal quotation marks omitted.) Id.

Nevertheless, “[t]he doctrine of consideration does not require or imply an equal exchange between the contracting parties. . . . The general rule is that, in the absence of fraud or other unconscionable circumstances, a contract will not be rendered unenforceable at the behest of one of the contracting parties merely because of an inadequacy of consideration.” (Citations omitted.) Osborne v. Locke Steel Chain Co., 153 Conn. 527, 532-33, 218 A.2d 526 (1966); see also 1 Restatement (Second), Contracts § 79, p. 200 (1981) (“[i]f the requirement of consideration is met, there is no additional requirement of . . . ‘mutuality of obligation’ ”).

After reviewing the facts of the present case, we conclude that the court reasonably determined that the provision in the letter agreement to pay interest on late payments was a promise by the defendants to do something they had not agreed to in the May agreement. Additionally, because the letter agreement now is the operative document regarding payout, the plaintiff no longer is subject to a potential reduction in his payouts due to the May agreement’s payout cap. Our review of the documents leads us to agree with the court’s determination.

Either of those changes to the original agreement could potentially benefit the plaintiff, and each falls within the definition of consideration previously set forth. The fact that the plaintiff may have given up substantial rights under the May agreement in exchange for concessions that in hindsight may seem less valuable does not make the consideration inadequate. Further, there is nothing in the record that suggests fraud or unconscionable behavior on the part of the partnership in negotiating the agreement. Therefore, we agree with the court that the letter agreement was supported by proper consideration.

II

Finally, the plaintiff argues that the court should have equitably estopped the defendants, as authors of the letter agreement, from employing the letter agreement’s limitation on individual partnership liability because a certain clause .in the letter agreement itself induced the plaintiff to believe that his signature merely would reaffirm his rights to collect under the May agreement. We decline to review that claim because the court did not address that issue.

It is the appellant’s duty to provide an adequate record on which to base an appeal. See Practice Book §§ 60-5, 61-10. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Bradley v. Randall, 63 Conn. App. 92, 96, 772 A.2d 722 (2001).

The court noted the plaintiffs claim of equitable estoppel in its memorandum of decision. The court did not, however, address the claim. Accordingly, we are unable to review any factual or legal conclusions drawn by the court concerning that claim. The plaintiff was free to file a motion for articulation with regard to that issue. Practice Book § 66-5. The plaintiff did not do so and, therefore, we have no basis on which to review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Joanne A. Gouldin is the executrix of the estate of Norman H. Gouldin. Norman H. Gouldin was a founding partner of Keene Industries Company and died testate on August 11, 1998. Keene Industries, Inc., and Keene Industries I Limited Partnership, the successor in interest of Keene Industries Company, also are named as defendants as to the second count of the complaint, but are not parties in the present appeal. In this opinion, we refer to Joanne A. Gouldin, executrix of the estate of Norman H. Gouldin, and Miglietta and Belcher as the defendants.

       Although there were additional agreements governing the repurchase of Keene Industries, Inc., stock, receipt of those payments is not at issue.


text:
    JADWICA SOWINSKI v. LUDWIK SOWINSKI
    (AC 21997)
    Foti, Mihalakos and Bishop, Js.
    Submitted on briefs June 7
    officially released August 27, 2002

      Robert L. Fisher, Jr., and Denise M. Cloutier filed a brief for the appellant (defendant).

      Steven H. Levy filed a brief for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, Ludwik SowinsM, appeals from the judgment of the trial court in this action for the dissolution of the parties’ marriage. On appeal, the defendant claims that the court improperly admitted hearsay regarding the value of certain real property and that in relying on such hearsay, it found the value of such property to be $59,900. We reverse the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our disposition of the defendant’s appeal. The parties were married in New York on May 20, 1986. It was the second marriage for both parties, and there were no children bom of their marriage. Prior to and during the marriage, the defendant owned two residential properties, one in Salisbury, Connecticut, and the other in Copake, New York. At the time of the dissolution, the defendant, who was retired, resided at the Copake residence, and the plaintiff, who wanted to retire but was still working, resided at the Salisbury residence.

The court found that both parties shared responsibility for the breakdown of the marriage, but also found that the defendant was “primarily at fault” for the breakdown. The court did not award alimony to either party, and it ruled that each party would be responsible for its own insurance and medical expenses. In addition to making other financial orders incidental to its dissolution judgment, the court valued the Salisbury property at $75,000 and ordered that it be sold. The court ordered the proceeds of the sale to be divided such that 70 percent would be given to the plaintiff and the remaining 30 percent would be given to the defendant. In the alternative, the court afforded the plaintiff the option of purchasing the Salisbury property, prior to its listing for sale, by paying the defendant $20,000. The court valued the Copake property at $59,900 and awarded that property to the defendant. Additional facts will be set forth as necessary.

On appeal, the defendant specifically challenges the court’s finding with regard to the fair market value of the Copake property and requests that we reverse the court’s financial orders. He points out that the parties disputed the value of the Copake property at trial despite the fact that they had stipulated to the value of the Salisbury property. The defendant argues that the court improperly admitted hearsay as to that issue and that the court relied on such hearsay, in the absence of any other competent evidence in support of its finding, when arriving at its valuation of the Copake property. We agree.

The following additional facts are pertinent to the defendant’s claim. On his financial affidavit, the defendant valued the Copake property at $28,000. At trial, the defendant elicited expert testimony from James San Emeterio, a licensed appraiser assistant qualified to conduct appraisals of real property in the state of New York. San Emeterio valued the property at $28,000. The court also admitted into evidence San Emeterio’s written appraisal report. The plaintiff did not elicit expert testimony on that issue. As part of his cross-examination, the plaintiff’s counsel inquired of San Emeterio in relevant part as follows:

“Q. Okay. Now, the town appraises these properties for tax — real estate tax purposes, doesn’t it?
“A. Yeah, that’s correct.
“Q. And the people who appraise the property for real estate tax purposes, are they licensed appraisers?
“A. No, that’s not — my understanding some are, some are not. They are required to take limited classes.
“Q. Do you have any idea one way or another with regard to this particular subject property?
“A. As to?
“Q. Whether they’re licensed or not licensed.
“A. I have no idea whether the town of Copake appraisers are or not.
“Q. Did you research tax reports as part of your appraisal?
“A. We pulled them to get the tax amount, which is put into the form. We do not use that number value as an opinion of value in our report.
“Q. I understand. Because that would be somebody else’s opinion of value?
“A. That’s correct.
“Q. And what is the opinion of value associated with this piece of property for real estate tax purposes?
“A. The town of Copake has it according to the letter that you just presented to me—
“[Defendant’s Counsel]: Objection, Your Honor.
“The Court: Counsel, okay, if this is going to come in, then why don’t we get it into evidence, then the witness can testify from it.
“[Plaintiffs Counsel]: I will offer what has been marked as plaintiffs exhibit seven, Your Honor. Again, all of these exhibits have been previously shared with counsel at the trial management.
“The Court: Any objection?
“[Defendant’s Counsel]: Same objection. I’m — I voiced my objection to [the plaintiff’s counsel] when we met two weeks ago. Anything stated on this document is hearsay. And I do not—
“The Court: Okay. Explain to me why that would not be an exception to the hearsay rule as a business record.
“[Defendant’s Counsel]: There has been no foundation that this is a business record of anybody. This is not an appraiser’s business record. Presumably, this is a town business record. I just don’t know.
“[Plaintiffs Counsel]: The testimony, Your Honor, is that this appraiser utilized these same records and reviewed them when he was making up his opinion of value.
“The Court: The objection is overruled. Plaintiffs [exhibit seven] should be marked. And a description, please?
“ [Plaintiff s Counsel]: I think it’s a tax bill dated March 31, 2000.
“The Court: Okay.
“[Plaintiffs Counsel]: Addressed to the defendant.
“[Defendant’s Counsel]: And, for the record, Your Honor, I object to any statement of value that appears on that document.
“The Court: Your exception, counsel, is noted.
“[Defendant’s Counsel]: Thank you. . . .
“[Plaintiffs Counsel]: Sir, what is the opinion of value as far as the town of Copake is concerned for real estate tax purposes?
“A. Fifty-nine thousand, nine hundred.”

We first set forth our standard of review relative to the defendant’s claim. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties to the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

“[I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and eveiy reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 90-91, 699 A.2d 1029 (1997). It is axiomatic that a court’s factual finding must have an evidentiary basis.

Our review of the record discloses that the document, admitted as exhibit seven, was the only evidence admitted at trial that supported the court’s $59,900 valuation of the Copake property. We must inquire whether the court improperly admitted that evidence and, if it did, whether such ruling constituted harmful error requiring a reversal of the judgment and a remand for reconsideration of all of the court’s financial orders.

Our review of claims of alleged error in evidentiary rulings is limited. The issue before us is whether the court’s admission of the document was an abuse of discretion. See State v. Sierra, 213 Conn. 422, 434-35, 568 A.2d 448 (1990).

A statement, other than one made by the declarant while testifying at the proceedings, offered in evidence to establish the truth of the matter asserted, constitutes hearsay. Conn. Code Evid. § 8-1 (3). A statement may be an oral or written assertion. Id., § 8-1 (1) (A). An out-of-court statement that is not offered for the truth of the matter asserted therein is not hearsay. State v. Ober, 24 Conn. App. 347, 357, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 260 (1991).

There appears to be no serious claim that the plaintiff did not offer the tax receipt to prove the truth of what it purported to represent, i.e., that the Copake property was valued at $59,900. The court subsequently valued the Copake property at that precise amount, absent any other evidence as to that amount.

The tax receipt is hearsay. After reviewing the record, we conclude that no hearsay exception applies. Despite the fact that the court appears to have admitted that document under the business records exception to the rule against hearsay, the plaintiff failed to lay any foundation whatsoever to demonstrate the applicability of that exception. See Conn. Code Evid. §§ 8-3 (7) and 8-4(a)._

The plaintiff argues that she did not offer the document to prove the truth of what it represented. Rather, she claims that she offered the document to “to impeach the testimony of the defendant’s expert witness” and that the document was a proper subject of cross-examination because San Emeterio had “reviewed the records of the property” to form his opinion. Our review of the record fails to disclose that the plaintiffs offer was limited for any such propose. Further, the record reflects that when asked whether he used such tax reports as part of his method of appraisal, San Emeterio replied: “We pulled them to get the tax amount, which is put into the form. We do not use that number value as an opinion of value in our report.” That testimony constituted clear evidence that San Emeterio did not rely on the tax receipt in appraising the Copake property.

Having concluded that the court improperly admitted the document into evidence, we next consider what remedy, if any, this court should afford the defendant. We are mindful that “[t]he issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). In the present case, it is clear that the court relied on the document and that such reliance had an effect on the court’s distribution of all of the marital assets. Accordingly, we must reverse the judgment with respect to all financial orders and order that such issues be reconsidered on remand.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues in accordance with law.

In this opinion the other judges concurred.

       “To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in . . . [General Statutes] § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of business to make such a record, and that, it was made at the time of the act described in the report, or within a reasonable time thereafter. ... In applying the business records exception, the statute [§ 52-180] should be liberally interpreted.” (Internal quotation marks omitted.) Calcano v. Calcano, 257 Conn. 230, 240, 777 A.2d 633 (2001). Further, “[t]o qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met.” Ninth RMA Partners, L.P.
        v. Krass, 57 Conn. App. 1, 9, 746 A.2d 826. cert. denied, 253 Conn. 918, 755 A.2d 215 (2000). The plaintiff did not produce any such evidence, and San Emeterio’s testimony did not support introduction of the document under the exception.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. LEO BORDELEAU
    (AC 21479)
    Spear, Flynn and Daly, Js.

      Argued March 27
    officially released September 3, 2002

      Barry J. Ward, with whom, on the brief, was Juri E. Taalman, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Mark A. Stabile, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Leo Bordeleau, appeals from the judgment of the trial court revoking his probation. On appeal, he claims that the court improperly (1) imposed an additional period of probation that exceeded the statutory maximum, (2) determined that he had fair notice of the charges against him, (3) denied his motion to dismiss, (4) determined that he had no right to a jury trial, (5) failed to make a finding that the beneficial ends of probation no longer were being served before revoking probation and (6) determined that there was sufficient evidence to prove that he had struck the alleged victim or that, even if he had done so, his actions were wilful.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On August 9,1996, the defendant was convicted of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). The defendant was sentenced to a term of thirty months imprisonment, execution suspended, with five years probation. On September 7, 1997, the defendant was arrested and charged with reckless endangerment in the first degree in violation of General Statutes § 53a-63 and assault in the third degree in violation of General Statutes § 53a-61. The defendant was charged on July 17, 1998, with violation of his 1996 probation. On October 15, 1998, the court denied the defendant’s motion to dismiss the charge of violation of probation, and, on April 23,1999, following an evidentiary hearing, the court found that the defendant had violated his probation. The court sentenced the defendant on June 17, 1999, to a term of thirty months imprisonment, execution suspended after ninety days, and five years probation. Additional factual and procedural background will be set forth as necessary.

I

First, the defendant claims that the court improperly imposed an additional period of probation that exceeded the statutory maximum. We agree.

The defendant was arrested and charged in July, 1998, with having violated his probation, at which time he already had served twenty-three months of the five year probationary term that had been imposed in August, 1996. Upon revoking probation, the court sentenced the defendant to serve thirty months, execution suspended after ninety days, and five years probation.

The defendant concedes that this issue was not raised at his sentencing and, therefore, requests plain error review. “Plain error review is reserved for 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. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 12, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). “A trial court commits plain error when it fails to apply a clearly relevant statute to the case before it.” (Internal quotation marks omitted.) State v. Guckian, 27 Conn. App. 225, 246, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993).

General Statutes § 53a-32 (b) provides that once a probation violation is established, the court may extend the period of probation provided the original period with any extension shall not exceed the periods authorized by General Statutes § 53a-29. Section 53a-29 (d) provides in relevant part: “The period of probation . . . shall be as follows: (1) For a felony . . . not more than five years . . . .”

The defendant originally was convicted of possession of marijuana with intent to sell for which the maximum term of probation is five years. At the time that the defendant was arrested for violating his probation, he already had served twenty-three months of his five year probationary term. At the time of sentencing, the court was required to give the defendant credit for the twenty-three months of probation already served and, therefore, was authorized to order a maximum of thirty-seven months probation. The state agrees that the defendant should be credited with the twenty-three months of successful probation completed and, hence, that his probation should be reduced to thirty-seven months. Accordingly, we remand the case to the court for resen-tencing consistent with this opinion.

II

The defendant next claims that he did not have fair notice of the charges against him because the information charging him with violating his probation was at variance with the evidence presented at the probation revocation hearing. We do not agree.

The defendant concedes that his claim is unpreserved and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Clark, 69 Conn. App. 41, 46, 794 A.2d 541 (2002). We conclude, however, that the claim fails under the third prong of Golding because the defendant has not established that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

The following additional facts are relevant. The arrest application dated July 8,1998, states that the defendant was arrested on September 7, 1997, and charged with reckless endangerment in the first degree and assault in the third degree in connection with events that occurred on June 13, 1997. The short form information dated July 9,1998, states that the violation of probation occurred on or about July 8,1998. Following an eviden-tiary hearing, the court found that the defendant had violated the conditions of his probation as a result of the events of June 13, 1997.

In State v. Baxter, 19 Conn. App. 304, 563 A.2d 721 (1989), the defendant was arrested and charged with having violated the terms of his probation. The information in that case was at variance with the affidavit in support of the arrest warrant. Id., 305. This court held that the defendant was not prejudiced by the variance between the information and the affidavit because “[t]he defendant’s conduct of his defense was based on the warrant and its accompanying affidavit, as was the state’s presentation of its case for the revocation of the defendant’s probation. The affidavit on which the warrant was based was extremely specific, and the hearing was held based on the allegations in the affidavit. The defendant, therefore, was not prejudiced by the lack of specificity in the information.” Id., 308-309.

In this case, the affidavit on which the warrant was based was specific, and the hearing was based on the allegations in the affidavit. The evidence presented by both the state and the defendant related to the defendant’s conduct on June 13,1997. In addition, the defendant did not raise an objection or request a continuance because of any confusion regarding the date he was alleged to have violated his probation.

We conclude, therefore, that the defendant had fair notice of the charges against him and that he was not prejudiced by the variance between the information and the evidence presented at his probation revocation hearing.

Ill

The defendant next claims that his motion to dismiss should have been granted because the state’s attorney initiated the probation revocation proceedings and not the office of adult probation in violation of General Statutes § 53a-32 and Practice Book § 43-29. We do not agree.

“We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts. . . . Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 308, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

At the hearing on the motion to dismiss, the defendant’s probation officer, Tina Merchant, testified that she had filed a motion with the court, notifying the court that the office of adult probation intended to charge the defendant with having violated his probation. She testified that prior to filing the notice with the court, she had a conversation with an assistant state’s attorney but that the conversation had no influence on her decision. Probation Officer Alan B. Chub-buck testified that he prepared the arrest warrant at the direction of his supervisor and that he had no discussion with anyone from the state’s attorney’s office prior to preparing the warrant.

An examination of the record also discloses that on July 8,1998, Chubbuck prepared and signed the affidavit for the arrest warrant, which was reviewed by the chief probation officer. The warrant was signed by the assistant state’s attorney on July 9,1998, and granted by the court that same day.

On the basis of our review of the record, we conclude that the revocation of probation proceedings were initiated by the office of adult probation rather than the state’s attorney in accordance with the statutory requirements of § 53a-32. Accordingly, we conclude that the court properly denied the defendant’s motion to dismiss.

IV

The defendant also claims that he should have been given the option to have a jury determine whether he violated a condition of his probation. Specifically, he claims that § 53a-32 violates article first, § 8, of the constitution of Connecticut, which guarantees a jury trial in all criminal prosecutions by information, including a probation revocation proceeding. That claim has no merit.

This identical claim was rejected in State v. Wright, 24 Conn. App. 575, 579-80, 590 A.2d 486 (1991). In Wright, this court held that although article first, § 8, provides that in all criminal prosecutions by information, the accused shall have a right to a jury trial, a probation revocation hearing is not a criminal prosecution. Id., 580. Accordingly, in this case, the defendant’s constitutional right to a jury trial was not violated.

V

The defendant next claims that in the dispositional phase of the probation revocation proceeding, the court failed to make the findings that the beneficial ends of probation no longer were being served and that he constituted a danger to himself and to others before it revoked the probation and imposed sentence. We do not agree.

“Under General Statutes § 53a-32, a probation revocation hearing is comprised of two distinct components. . . . The trial court must first determine by a fair preponderance of the evidence whether the defendant has in fact violated a condition of probation. . . . If a determination is made that a violation has been established, the trial court then determines whether the defendant’s probation should be revoked.” (Citations omitted.) State v. Pierce, 64 Conn. App. 208, 212-13, 779 A.2d 233 (2001).

“On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 67 Conn. App. 25, 28-29, 787 A.2d 43 (2001).

On the facts of this case, we conclude that the court did not abuse its discretion in revoking the defendant’s probation. The court considered the entire record, listened to the arguments, requested an updated presen-tence investigation report, found that the defendant had violated his probation three other times and had exercised poor judgment in not backing off from any encounter. The court acted well within the bounds of its discretion in concluding that the rehabilitative purposes of the defendant’s probation were not being met.

VI

The defendant’s final claim is that there was insufficient evidence to support the court’s finding that he had struck the alleged victim or that, even if he had done so, his actions were wilful. We disagree.

“[T]o support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. McElveen, 69 Conn. App. 202, 205, 797 A.2d 534 (2002).

In this case, the defendant was charged with the crime of assault in the third degree, stemming from an incident on June 13, 1997, in which the state alleged that he had struck the victim with his car. At the time of that incident, the defendant was on probation and, as a condition of probation, he was not to violate any laws of this state.

At the probation revocation hearing, the victim testified that the defendant struck him with his car as he was walking along a street. A neighbor also testified that she saw the defendant’s car go toward the victim and that she saw the victim fall to the ground. In addition, a police officer who responded to the scene testified that he observed the victim’s injuries, which were consistent with the victim’s account of the events. The defendant denied that he struck the victim with his car and presented a witness who corroborated his version of the events. Even though there was conflicting testimony at the hearing, it is the sole province of the court, as the trier of the facts, to weigh and to interpret the evidence before it, and to pass on the credibility of the witnesses. See State v. Breckenridge, 66 Conn. App. 490, 498, 784 A.2d 1034, cert. denied, 259 Conn. 904, 789 A.2d 991 (2001); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219.

The defendant also claims that the court failed to find any wilful conduct on his part. That claim has no merit because our Supreme Court has held that wilfulness is not an element of a probation violation under § 53a-32. State v. Hill, 256 Conn. 412, 424, 773 A.2d 931 (2001).

On the basis of our review of the record, it is clear to us that the court based its finding that the defendant violated the terms of his probation on the credibility of the witnesses, which is solely within the province of the court as the trier of the facts. We therefore conclude that the court’s finding that the defendant violated his probation as a result of having violated the laws of this state was not clearly erroneous.

The judgment is reversed only as to the defendant’s sentence and the case is remanded for resentencing in accordance with this opinion.

In this opinion the other judges concurred.

       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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge . . . .”
      Practice Book § 43-29 provides in relevant part: “ [Proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of the defendant’s probation . . .


text:
    HAROLD COHN & COMPANY, INC., ET AL. v. HARCO INTERNATIONAL, LLC, ET AL.
    (AC 22093)
    Foti, Mihalakos and Bishop, Js.

      Argued June 6
    officially released September 3, 2002

      John H. Lindsay, for the appellants (defendants).

      Christopher J. McCarthy, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The defendants, Harco International, LLC (Harco), and Christopher Komondy, appeal from the judgment of the trial court rendered in favor of the plaintiffs, Harold Cohn and Company, Inc. (Cohn), Prairie Dog Trading Company, Inc. (Prairie Dog), and Robert W. Dickerson. On appeal, the defendants claim that the court improperly (1) admitted evidence in violation of the parol evidence rule and (2) found that the plaintiffs had proven fraud in the inducement. We affirm the judgment of the trial court.

The court found the following facts. At all times relevant, Dickerson was the president of both Cohn and Prairie Dog. Cohn manufactures and sells supplies for stamp and coin hobbyists. In 1997, Cohn conducted its business from leased premises in Wisconsin. In November of that year, Dickerson was diagnosed with liver cancer and given a prognosis of six months to live. At that time, Dickerson owed past due rent payments. He decided to sell Cohn.

In January, 1998, Komondy, who was in the business of buying and liquidating distressed businesses, learned of Dickerson’s problems and contacted him. During the next two months, they negotiated the sale of Cohn’s assets.

On April 4, 1998, Komondy and Dickerson met at Cohn’s Wisconsin factory so that Komondy could inspect the factory and its contents. On April 15, 1998, the parties agreed on a purchase price of $160,000. The following day, Komondy contacted the Hartford economic development commission (commission). The commission, among other things, funded businesses that wanted to expand in Connecticut by offering them state-backed loans for that purpose. At the time that he agreed to purchase Cohn, Komondy needed additional capital for the purchase and wanted to acquire that capital by means of a state-backed loan.

Thereafter, between April and July of 1998, Komondy formed Harco, a Connecticut limited liability company, for the sole purpose of transacting the Cohn purchase. Komondy was the sole member of Harco. On July 18, 1998, Komondy spoke with Dickerson. He informed Dickerson that he would travel to Dickerson’s home in Texas with two promissory notes totaling $160,000 and a bill of sale.

On July 21, 1998, Komondy submitted a preapplication form to the commission in which he sought a loan of $290,000 to buy and operate the business. On that form, he listed the cost of machinery and equipment as $175,000. Komondy declared that he had supplied true and correct information on the application. Together with his request, Komondy submitted information, including photographs of Cohn’s assets, as well as Cohn’s past tax returns. Komondy failed to provide other information, including a business plan, projected financial statements and balance sheets, which were required by the commission.

On July 22, 1998, Komondy traveled to Texas. Prior to the meeting, Komondy and Dickerson had agreed that Komondy would bring two promissory notes, one for $120,000 and one for $40,000. When Komondy arrived, he presented Dickerson with one note for $120,000, payable when Harco received a loan from the commission. Instead of presenting Dickerson with a second note for $40,000, however, Komondy presented him with a “consulting agreement.” By means of that agreement, Komondy agreed to compensate Prairie Dog in the amount of $40,000 in exchange for Prairie Dog’s assistance in operating the business and for consulting in a number of regards. The agreement farther provided that it would last for three years and that Komondy would pay Prairie Dog $1000 per month, with a $4000 bonus at the end of the agreement’s term.

The agreement surprised both Dickerson and his wife, Carol Dickerson, who was at the meeting. Dickerson and his wife reminded Komondy of Dickerson’s illness and prognosis. Komondy assured them that the agreement merely was for bookkeeping purposes to allow him to make partial payments over time. He also told them that he had obtained the state-backed loan from the commission and that it would be processed once he submitted the signed documents. He further stated that the loan would be processed in two weeks and that he would pay the promissory note at that time. When asked what would happen if the loan did not receive final approval, Komondy stated that he had enough resources to pay the purchase price. Dickerson signed the bill of sale, the promissory note and the consulting agreement. He would not have done so, however, were it not for Komondy’s representations.

The commission did not approve Komondy’s loan application. Komondy never paid the purchase price for Cohn. After the purchase was transacted, Dickerson entered into an oral agreement to travel to Wisconsin and assist Komondy in operating the business. Dickerson began treatment for his illness and was able to fulfill the agreement by working with Komondy for eight months. Komondy paid Dickerson for his services. Thereafter, the plaintiffs brought this action sounding in breach of contract, fraudulent inducement, unjust enrichment, breach of the covenant of good faith and fair dealing, and for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

The court concluded that the defendants had committed fraudulent inducement and that they both were liable for the plaintiffs’ injuries. The court further found that the defendants had violated CUTPA, but declined to award punitive damages or attorney’s fees to the plaintiffs. The court awarded the plaintiffs $151,907.49 in damages after allowing a total setoff of $8092.51. This appeal followed.

I

The defendants first claim that the court improperly admitted certain portions of Dickerson’s testimony in violation of the parol evidence rule. We disagree.

Dickerson testified that the parties had agreed on a purchase price of $160,000 for Cohn’s assets. The defendants argue that the written contract contained a purchase price of $120,000 and that the contract, which contained a merger clause, was fully integrated. The defendants further argue that Dickerson’s testimony in that regard, which varied the terms of the written agreement, was inadmissible.

We first set forth our standard of review. Ordinarily, “[o]n appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Jurgensen, 42 Conn. App. 751, 754, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).

Because the parol evidence rule is not an exclusionary rule of evidence, however, but a rule of substantive contract law; Security Equities v. Giamba, 210 Conn. 71, 78, 553 A.2d 1135 (1989); Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); the defendants’ claim involves a question of law to which we afford plenary review.

The parol evidence rule is one “premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony ... to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme. . . .

“The par ol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four comers of the contract concerning matters covered by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant ... to show mistake or fraud. . . . [This] recognized [exception is] of course, only [an example] of [a situation] where the evidence (1) does not vary or contradict the contract’s terms, (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud.” (Citations omitted; internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 780-81, 653 A.2d 122 (1995).

Fraud vitiates all contracts, written or otherwise; no mle of law, including the parol evidence rule, deprives a trial court of the power to allow oral testimony to prove fraud. See Presta v. Monnier, 145 Conn. 694, 700, 146 A.2d 404 (1958).

A defrauded party has the option of seeking rescission or enforcement of the contract and damages. “Fraud in the inducement of a contract ordinarily renders the contract merely voidable at the option of the defrauded party, who also has the choice of affirming the contract and suing for damages. ... If he pursues the latter alternative, the contract remains in force . . . .” (Citation omitted.) A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 472, 262 A.2d 159 (1969).

In light of the claims before the court, it properly admitted Dickerson’s parol evidence for the purpose of demonstrating the defendants’ fraudulent inducement. The plaintiffs’ attorney clearly sought the admission of that testimony on such ground. The court was free to consider and to accept as true Dickerson’s testimony in that regard because the misrepresentation proven thereby undermined the agreement’s validity in the first instance. That evidence tended to demonstrate that Komondy fraudulently misrepresented the terms of the agreement to Dickerson. We further conclude that the court’s findings of fact relative to Dickerson’s testimony are not clearly erroneous. We do not retry the matter or evaluate the credibility of the witnesses, but must defer to the trier of fact who has had firsthand observation of the conduct, demeanor and attitude of those witnesses. See State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

II

The defendants next claim that the court improperly found that the plaintiffs had proved fraud in the inducement of the contract. We disagree.

“Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact. . . . The trier of facts is the judge of the credibility of the testimony and of the weight to be accorded it.” (Citation omitted; internal quotation marks omitted.) Maturo v. Gerard, 196 Conn. 584, 587-88,494 A.2d 1199 (1985). When the trial court finds that a plaintiff has proven all of the essential elements of fraud, its decision “will not be reversed or modified unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole.” Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997).

“The essential elements of a cause of action in fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. ... All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery. . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal.” (Citations omitted; internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 275-76, 721 A.2d 1197 (1998).

As to the first element of fraud, the court specifically found by clear and satisfactory evidence that Komondy had stated that (1) he had obtained the state-backed loan, (2) the consulting agreement was for bookkeeping purposes only and (3) even without the state-backed loan, he still would be able to purchase Cohn.

As to the second element of fraud, the court found by clear and satisfactory evidence that Komondy knew that those representations of fact were untrue. The court noted that Komondy himself testified that he never had secured the state backed loan. Komondy also testified that he intended to uphold the consulting agreement with Dickerson, thereby demonstrating that he did not believe that it was solely for bookkeeping purposes. Finally, the court found that Komondy “either never intended to use his personal assets [to purchase Cohn] or that he did not have enough assets to do so.”

As to the third element of fraud, the court found that Dickerson would not have signed the documents but for Komondy’s false statements of fact. In reaching its decision, the court considered the testimony of Dickerson and his wife that they had originally “balked at the idea of the consulting agreement” and that Komondy had made false promises to assuage their concerns. The court specifically stated that it did not find credible, and that the evidence did not support, Komondy’s testimony that Dickerson wanted Komondy to buy the company and “worry about the payment later.”

Finally, the court found that Dickerson had acted on the false representations to his injury. In support of its finding, the court cited to Komondy’s testimony that after the parties had signed the sale documents, all of Cohn’s assets, except one machine, were moved from Wisconsin to Connecticut. The evidence further showed that the plaintiffs received only $1000 of the agreed on purchase price for the assets.

The defendants concede in their principal brief that “[t]his is an issue of fact, and review is limited to clear error.” The defendants argue, however, that “[t]he [trial] transcript is replete with contradictory testimony,” and “[i]n light of the extremely high burden of proof, the trial court erroneously found that fraud had been committed by the defendants.” We disagree.

We conclude that the plaintiffs proved by clear and satisfactoiy evidence all four of the elements needed to establish their claim of fraudulent inducement. The court’s findings of fact are not clearly erroneous. Each of the court’s subordinate findings in regard to Komon-dy’s fraudulent representations and Dickerson’s reliance thereon to his detriment were clearly, precisely and unequivocally supported by clear and satisfactory evidence adduced at trial. The court’s ultimate legal conclusion on the basis of those subordinate facts found was legally and logically correct.

The judgment is affirmed.

In this opinion the other judges concurr ed.

       By permitting the plaintiffs to recover on the contract alter finding fraudulent inducement, the court obviated the need to consider the other causes of action pleaded by the plaintiffs.

       The defendants argue that had the court excluded that testimony, it would have rendered a judgment for the plaintiffs, if at all, of no greater than $120,000, less setoffs.

       The defendants argue in their reply brief that there are “no exceptions” to the parol evidence rule. Even if we were to agree with that representation, we might conclude as we have by determining that the parol evidence rule does not apply when fraud in the inducement of the contract is pleaded and proven.