author: ROBINSON, J.

text:
    ROBERT L. PETERSON v. LAURIE SYKES-PETERSON
    (AC 32314)
    Robinson, Espinosa and Sheldon, Js.

      Argued December 1, 2011
    officially released February 21, 2012

      Jon L. Schoenhom, for the appellant (plaintiff).

      Steven D. Ecker, with whom wasM. CaitlinS. Anderson, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Robert L. Peterson, appeals following the dissolution of his marriage to the defendant, Laurie Sykes-Peterson, from the trial court’s prejudgment determination that the parties’ prenuptial agreement had expired during the pendency of the dissolution action pursuant to a provision rendering the agreement void on the seventh anniversary of the parties’ marriage (sunset provision). The plaintiff claims that (1) the court improperly determined that the prenuptial agreement was unenforceable on the basis of the sunset provision because (a) the language of the sunset provision was ambiguous in light of other provisions and the pending divorce action and (b) enforcement of the sunset provision violated public policy, and (2) even if the sunset provision was applicable, the court should not have enforced it against the plaintiff because the defendant had breached the agreement when she asked the court to enter pendente lite financial orders. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties married on July 14,2000. Three days prior to the marriage, at the plaintiffs request, the parties entered into a prenuptial agreement. The prenuptial agreement contained a sunset provision, Article XII, which provided in its entirety: “This Agreement shall become null and void and of no further force and effect upon the seventh (7th) anniversary of the parties’ marriage.” The seventh anniversary of the parties’ marriage was July 14, 2007.

Oh March 1, 2007, the plaintiff commenced this dissolution action. The complaint stated that the parties’ marriage had broken down irretrievably. By way of relief, the plaintiff sought dissolution of the parties’ marriage and such other relief as the court deemed equitable. The complaint did not allege the existence of the parties’ prenuptial agreement or ask the court to enforce any such agreement.

On June 11, 2007, the defendant filed an answer and cross complaint for dissolution of the marriage. The defendant also moved for a pendente lite award of alimony, attorney’s fees and exclusive possession of the marital home. On August 6, 2007, the parties entered into a stipulated agreement, approved by the court, in which they reached a temporary agreement as to the relief requested in the pendente lite motions. They also agreed to submit written memoranda to the court addressing the enforceability of their prenuptial agreement “as such relates to both the pendente lite and permanent application of such agreement.”

On August 30, 2007, the plaintiff filed a motion for a temporary and a permanent injunction against the defendant. The motion noted that, in response to a request for admission, the defendant acknowledged executing a prenuptial agreement but reserved her right to challenge the validity of the agreement, which the plaintiff contended was in direct violation of the agreement. The plaintiff asked the court “to enter a temporary and permanent injunction forbidding the defendant to take any further steps seeking to invalidate said agreement.” The plaintiff filed identical motions on February 19 and June 17, 2008, none of which were acted on by the court.

On August 8, 2008, the parties filed briefs addressing the enforceability of the prenuptial agreement. One of the defendant’s arguments against the enforceability of the agreement was that the existence and applicability of the prenuptial agreement was not pleaded in the complaint. On October 2, 2008, the plaintiff amended his complaint to include a second count seeking enforcement of the parties’ prenuptial agreement. The defendant filed an answer and special defenses to the new complaint in which she denied the plaintiffs allegation that the prenuptial agreement was enforceable.

The court heard argument from counsel regarding the enforceability of the prenuptial agreement on October 7, 2008, and the parties each submitted a posthearing brief. On March 4, 2009, the trial court issued a memorandum of decision in which it found that the sunset provision of the prenuptial agreement was unambiguous, and, despite the pending divorce proceedings, the prenuptial agreement had become unenforceable as of July 14,2007. The court also rejected the plaintiffs argument that the sunset provision was unenforceable as a matter of public policy because it acted as an incentive to the plaintiff to seek a divorce. The matter proceeded to a trial, following which, the court issued a memorandum of decision dissolving the parties’ marriage and rendering various financial orders. This appeal followed.

I

A

The plaintiff first claims that the trial court improperly determined that the prenuptial agreement was invalid on the basis of the sunset provision because the language of the sunset provision was ambiguous in light of other provisions in the agreement and the pending divorce action. We disagree.

Prenuptial agreements are contracts and “are to be construed according to the principles of construction applicable to contracts generally.” (Internal quotation marks omitted.) Crews v. Crews, 295 Conn. 153, 159, 989 A.2d 1060 (2010). “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . [T]he mere fact that the parties advance different inteipretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous. ... If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 183, 2 A.3d 873 (2010).

Article XII of the prenuptial agreement, the sunset provision, provides in its entirety: “This Agreement shall become null and void and of no further force and effect upon the seventh (7th) anniversary of the parties’ marriage.” The plaintiff argues that it was unreasonable for the court to have applied the sunset provision because the plaintiff had filed the dissolution action in March, 2007, several months prior to the parties’ seventh wedding anniversary on July 14, 2007. The plaintiff suggests that if the sunset provision is read in the context of the entire agreement, it is clear that the parties intended that the agreement should expire only if the parties were still happily married and actually celebrating then-seventh wedding anniversary, rather than in the midst of divorce proceedings. The defendant responds that the court properly construed the sunset provision, which sets forth in clear and unambiguous language that the prenuptial agreement would become null and void if the parties remained married on July 14, 2007. We agree with the defendant.

The trial court correctly determined that the language used in the sunset provision is unambiguous. Affording the language used by the parties its common and ordinary meaning, it is clear that the parties’ intention was to create a date certain on which the prenuptial agreement would become void and unenforceable against either party. We cannot and will not import ambiguity into the parties’ choice of using their seventh wedding anniversary as the end date for the agreement. If, as the plaintiff argues, the parties’ use of the words “upon the seventh (7th) anniversary of the parties’ marriage” was meant to convey their intent that the sunset provision should only be effective if the parties were in fact still happily married and actually celebrating their seventh wedding anniversary, the parties could have chosen language that indicated such an intent. For example, they could have added that the agreement would become unenforceable on the parties’ seventh wedding anniversary provided that the parties remained married and living together and there was no pending separation or divorce action We conclude that the court properly determined that the prenuptial agreement was unenforceable on the basis of the sunset provision.

B

The plaintiff also claims that the court erred in enforcing the sunset provision because that provision acted as an incentive to divorce and therefore violated public policy. We disagree.

General Statutes § 46b-36d, which governs the content of prenuptial agreements entered into after October 1,1995, provides in relevant part that no provision “may be in violation of public policy or of a statute imposing a criminal penalty.” General Statutes § 46b-36d (b). “[A]ntenuptia! agreements that promote, facilitate or provide an incentive for separation or divorce are generally opposed to public policy and of dubious enforceability. . . . Thus, a provision of an antenuptial agreement waiving the right to defend against a future divorce action, or one creating a substantial economic advantage upon dissolution irrespective of fault, or one relieving one spouse of the duty to support the other during the marriage, has been said to contravene public policy.” (Citations omitted.) McHugh v. McHugh, 181 Conn. 482, 488-89, 436 A.2d 8 (1980). As previously stated, prenuptial agreements are contracts and therefore must be construed.as such. See Crews v. Crews, supra, 295 Conn. 159. “[W]hether a contract provision violates public policy is a question of law subject to plenary review.” Dougan v. Dougan, 114 Conn. App. 379, 402, 970 A.2d 131 (2009), aff'd, 301 Conn. 361, 21 A.3d 791 (2011).

We cannot conclude on the basis of the record before us that the sunset provision in the present case violated any public policy. Provisions terminating a prenuptial agreement after the parties are married for several years commonly are included in agreements drafted in Connecticut. See A. Rutkin et al., 8A Connecticut Practice Series: Family Law and Practice with Forms (2010) § 48:8, p. 86. As we already determined, the parties intended the sunset provision to provide a date certain after which time the terms of the prenuptial agreement would expire. After the sunset date, if the parties’ marriage ended in divorce, there would be an equitable distribution of the marital estate in accordance with General Statutes § 46b-81. Such a provision understandably could be a useful tool to parties negotiating the terms of a prenuptial agreement in which the proponent might have a valid apprehension about the financial effect of a divorce should the marriage quickly break down, but in which the parties nevertheless could foresee a time in the future when a prenuptial agreement would no longer be necessary or even equitable. The plaintiff suggests that because he clearly stood to benefit more financially from the enforcement of the prenuptial agreement than from an equitable distribution of the marital assets, the existence of the sunset provision actually encouraged him to seek a divorce before the sunset provision took effect. There is no language in the sunset provision itself, however, that directly encourages or incentivizes the filing of a divorce action. The plaintiff has not provided, nor have we found ourselves, any authority from this jurisdiction or any other suggesting that the existence of a sunset provision in a prenuptial agreement encourages divorce and therefore violates public policy. We are not persuaded that the sunset provision in the present case provided such an incentive to divorce so as to warrant the conclusion that it violated public policy.

II

Finally, the plaintiff claims that, even if the sunset provision was applicable, the court should not have enforced that provision against him because the defendant had breached the agreement. The plaintiff argues that the defendant breached the prenuptial agreement when she moved the court for an order of pendente lite alimony and attorney’s fees, which action the plaintiff contends was prohibited under the agreement. Having breached the agreement herself, the plaintiff argues, the court should not have allowed the defendant to take advantage of the agreement’s sunset provision. We decline to review the plaintiffs claim.

Although the plaintiff raised this argument in his prehearing memorandum of law to the trial court in support of the enforceability of the prenuptial agreement, he did not provide any legal analysis supporting his argument and the issue hardly was mentioned at the hearing before the trial court. The court did not address the argument in its memorandum of decision finding the prenuptial agreement unenforceable. The plaintiff did not file a motion for reconsideration or reargument asking the court to address his argument that the sunset provision somehow was rendered inoperable by the defendant’s alleged breach, and the plaintiff did not file a motion for articulation asking the court whether it considered that argument in determining that the prenuptial agreement was unenforceable.

It is well settled that “[t]his court is unable to review claims that were not expressly addressed by the trial court.” Miller v. Miller, 124 Conn. App. 36, 40, 3 A.3d 1018 (2010). It is the appellant’s responsibility to move for an articulation “[when] the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... orto ask the trial judge to rule on an overlooked matter.” (Emphasis in original; internal quotation marks omitted.) Id. Here, the trial court did not address the plaintiffs breach of the agreement argument in its decision finding the prenuptial agreement unenforceable, and the plaintiff did not file a motion for articulation asking the court to address that argument. Accordingly, we decline to review the claim on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that there were many provisions of the agreement that were so qualified. For example, § 9.6 provided that the plaintiff would pay the defendant $50,000 for each year the parties were married “until the commencement of such action for a divorce, dissolution of marriage, legal separation or annulment.” Section 9.3 provided that each party would be restored to his or her separate property “[u]pon the filing by either party of a petition for divorce, dissolution of marriage, legal separation or annulment . . . .” Section 9.8 provided that the parties would not seek relief contrary to the agreement, “[i]n the event of any action between the parties for divorce, dissolution of marriage, legal separation or annulment . . . .”

       The plaintiffs breach argument was mentioned only briefly by the defendant’s counsel, who then quickly discounted the argument on the basis of a stipulation he had obtained from the plaintiffs counsel at the beginning of the hearing. The stipulation indicated that the plaintiff had breached the prenuptial agreement by failing to fund annually an investment account for the defendant.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE v. FRANCIS DELMASTRO ET AL.
    (AC 33236)
    Beach, Alvord and Pellegrino, Js.

      Argued November 16, 2011
    officially released February 21, 2012

      Gerald L. Garlick, with whom, on the brief, was Katherine E. Abel, for the appellant (plaintiff).

      George J. Kelly, Jr., for the appellee (defendant Mary Lou DelMastro).
   Opinion

BEACH, J.

The plaintiff, Deutsche Bank National Trust Company, as trustee, appeals from the trial court’s determination of priorities rendered in connection with a judgment of strict foreclosure on property owned by the defendant Francis DelMastro. On appeal, the plaintiff claims that (1) the court erred by failing to apply the doctrine of equitable subrogation, (2) the court erred by failing to apply general equitable principles in order to find that the plaintiffs mortgage was prior in right to the mortgage of the defendant Mary Lou DelMastro and (3) Mary Lou DelMastro’s mortgage was void for lack of consideration. We affirm the judgment of the trial court.

The following facts are undisputed. The property at issue was located at 26 Pamela Court in Tolland (property) and was owned by Francis DelMastro, a son of Mary Lou DelMastro. On February 14, 2007, Francis DelMastro obtained a loan from New Century Mortgage Corporation, which was secured by a $650,000 mortgage on the property. On or about June 15, 2007, Francis DelMastro executed a second mortgage on the property in favor of Mary Lou DelMastro in the amount of $325,000, after she agreed to provide a mortgage on her home in Wethersfield as security for two loans Francis DelMastro had obtained from a business associate. The $325,000 mortgage was recorded on June 19,2007, in the Tolland land records. At the time Mary Lou DelMastro obtained the $325,000 mortgage, she knew that there was a prior mortgage on the property. On or about August 6, 2007, Francis DelMastro refinanced the New Century mortgage on the property by executing a note and mortgage to Saxon Mortgage, Inc., in the amount of $749,999. The mortgage of February 14, 2007, was released on August 15, 2007. The Saxon Mortgage, Inc., mortgage was subsequently assigned to the plaintiff and is the subject of this action.

In April, 2008, the plaintiff commenced a foreclosure action against Francis DelMastro. Among those named by the plaintiff as claiming an interest prior in right was Mary Lou DelMastro. On September 15, 2008, the court rendered a judgment of strict foreclosure, setting the debt at $827,002.89, the fair market value of the property at $688,000 and law days beginning on January 12,2009, for the named defendant and two other defendants who were subsequent encumbrancers. The plaintiff thereafter filed a motion to open the judgment of strict foreclosure in order to add Mary Lou DelMastro as an additional defendant, which motion was granted by the court, Sferrazza, J. The plaintiff subsequently claimed in its amended complaint that Mary Lou DelMastro’s $325,000 mortgage was subsequent to its mortgage pursuant to equitable subrogation. On April 7, 2009, the plaintiff moved for summary judgment on that ground. The plaintiff reasoned that through inadvertence or mistake, no one discovered or advised Saxon Mortgage, Inc., that Mary Lou DelMastro’s mortgage had been recorded in June, 2007, and an inequitable windfall would result if the court did not apply equitable subrogation. The court, Sferrazza, J., denied the motion, finding that genuine factual issues existed as to the parties’ intentions and whether consideration was exchanged and that “equitable subrogation claims are usually unsuitable for resolution by summary judgment.”

Subsequently, a hearing was held on the issue of the relative priority of the mortgages. On January 6, 2010, the court, Hon. Lawrence C. Klaczak, judge trial referee, determined that Mary Lou DelMastro held the first priority hen on the property. The plaintiff appealed from that decision. This court dismissed the plaintiffs appeal for lack of a final judgment on the ground that the appeal was taken before a new judgment of foreclosure was rendered by the court. Subsequently, on March 7, 2011, the court, Sferrazza, J., granted the plaintiffs motion for a judgment of strict foreclosure, setting the law day for April 11, 2011. The court found the fair market value of the property to be $522,000 and the debt to be $1,041,455.27. It also awarded attorney’s fees in the amount of $1395. On March 11, 2011, the plaintiff filed the present appeal. Additional facts will be set forth as necessary.

I

The plaintiff first argues that the court erred by failing to conclude that Mary Lou DelMastro’s mortgage was subsequent to its mortgage under the doctrine of equitable subrogation. We disagree.

The following additional facts are relevant. On January 6,2010, the court, Hon. Lawrence C. Klaczak, judge trial referee, issued a memorandum of decision finding that Mary Lou DelMastro held the first priority hen on the property. Among the facts that the court found was that “[t]he plaintiff had a title search done on the property on or about May 30, 2007, which predated the date of Mary [Lou DelMastro’s] $325,000 mortgage (June 15, 2007). The title [search] company . . . was not asked to do a bring down after its May 30th search.” The court continued as fohows: “The plaintiff claims its mortgage has priority over Mary Lou DelMastro’s mortgage under a theory of equitable subrogation. The court disagrees for the following reasons. Mary Lou DelMastro was not shown to be complicit in any unethical or inappropriate behavior. Her son, Francis [DelMastro], was having financial problems in his business dealings. . . . Mary Lou [DelMastro] agreed to provide security [for her son’s loans] by providing a mortgage to [her son’s business associate] on her home in Wethersfield for the full $325,000. Ultimately ... as guarantor, she was forced to put a mortgage on her Wethersfield home and liquidate her own savings to pay off [her son’s business associate]. On June 15, 2007, Francis [DelMastro] gave Mary Lou [DelMastro] amortgage deed and note for the $325,000 on his Tolland home. Under these facts, this court cannot see how it would be equitable to subordinate Mary [Lou DelMastro’s] mortgage to [the plaintiff]. There is no evidence that Mary Lou DelMastro was neglectful, fraudulent, confused or that she acted unfairly. She is entitled to the protection of the recording statutes. See Independence One Mortgage Corp. v. Katsaros, 43 Conn. App. 71, 76, 681 A.2d 1005 (1996).”

We begin by noting that courts apply equitable subrogation sparingly. “Our review of a decision rendered in equity is limited. The determination of what equity requires in a particular case ... is a matter for the discretion of the trial court. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. . . .

“The law relating to the priority of interests has its roots in early Connecticut jurisprudence. A fundamental principle is that a mortgage that is recorded first is entitled to priority over subsequently recorded mortgages provided that every grantee has a reasonable time to get his deed recorded. . . . The doctrine of equitable subrogation provides an exception to the first in time, first in right rule and has been applied in certain limited circumstances to rearrange the priorities of parties in a case. . . . The object of [equitable] subrogation is the prevention of injustice. . . . Where fairness and justice require, one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior hen against the holder of an intervening hen of which he was ignorant.” (Citations omitted; internal quotation marks omitted.) Equicredit Corp. of Connecticut v. Kasper, 122 Conn. App. 94, 96-97, 996 A.2d 1243, cert. denied, 298 Conn. 916, 4 A.3d 831 (2010). “WTiether or not a plaintiff will be barred of remedy in equity against the effect of a mistake because of his neghgence depends to a large extent upon the circumstances of the particular case.” Home Owners’Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 242, 193 A. 769 (1937). “Equity always looks to the substance of a transaction and not to mere form.” Connecticut National Bank v. Chapman, 153 Conn. 393, 397, 216 A.2d 814 (1966).

To support its claim that the court should have apphed equitable subrogation to find that its mortgage was prior in right to Mary Lou DelMastro’s mortgage, the plaintiff relies on Connecticut National Bank. Specifically, the plaintiff relies on Connecticut National Bank for the proposition that in the application of equitable subrogation, there is no requirement that the holder of the lien sought to be subrogated must have acted in any particular way, such as neglectfully, fraudulently or unfairly. In Connecticut National Bank, our Supreme Court held that equitable subrogation may be applied when the intervening lienholder would be otherwise unjustly enriched. Id., 399. In upholding the application of equitable subrogation, the court in Connecticut National Bank noted that “[i]t is not necessary, in order to create an obligation to make restitution or to compensate, that the party unjustly enriched should have been guilty of any tortious or fraudulent act.” Id. Although such an act is not required for the application of equitable subrogation, it does not follow that the presence or absence of such an act is necessarily entirely irrelevant and inconsequential. Whether a party engages in or is complicit in wrongdoing is a factor that the court may consider, as the court did in the present case. The circumstances of the particular case determine whether equitable subrogation applies; see Independence One Mortgage Corp. v. Katsaros, supra, 43 Conn. App. 75-76 (“[t]he determination of what equity requires in a particular case, the balancing of the equities is a matter for the discretion of the trial court” [internal quotation marks omitted]); and the court must weigh the equities. We emphasize that the court exercises a broad discretion, and we cannot conclude that it unreasonably considered the absence of any neglectful, fraudulent or unfair behavior on the part of Mary Lou DelMastro.

Additionally, the plaintiff challenges the court’s reliance on Independence One Mortgage Corp. v. Katsaros, supra, 43 Conn. App. 71. It claims that the distinction between intervening lienholders and existing lienholders in that case lacks any basis in the case law. In that case, this court declined to apply equitable subrogation to an existing lienholder, reasoning, in part, that “[t]he doctrine of equitable subrogation is not intended as a means of circumventing the rights of existing hen holders who have properly recorded their mortgage instruments.” Id., 74. The court in that case weighed the equities as it was required to do. Included in that analysis was the consideration that a defendant mortgagee was an existing lienholder who had properly recorded his mortgage. Id. We decline the plaintiffs invitation to abandon the well reasoned decision in Independence One Mortgage Corp.

Mary Lou DelMastro relies on Equicredit Corp. of Connecticut v. Kasper, supra, 122 Conn. App. 96, in which this court declined to apply equitable subrogation in hght of the trial court’s finding in that case that the plaintiff “was not ignorant of the defendants’ hen, and its mistake in releasing its first mortgage was not based on any fraud by the defendants and did not result in any windfall to the defendants.” The court in Equicredit Corp. of Connecticut determined that “[t]he plaintiff admitted that it had actual or constructive notice of the defendants’ mortgage and was not ignorant of the defendants’ hen. The [trial] court found that the defendants’ conduct was not improper in any way. There was no evidence that the defendants ever intended or agreed to be subordinated to a new encumbrance on the property, and the defendants did not receive an undue advantage as the result of the plaintiffs mistake.” Id., 98-99.

In the present case, Mary Lou DelMastro’s hen was recorded prior to the August 6, 2007 refinancing. Although the plaintiff conducted a title search on or about May 30, 2007, the court made a finding that the plaintiff did not do a “bring down” after that date. An updated search would have disclosed Mary Lou DelMastro’s mortgage, which had been recorded approximately seven weeks prior to the refinancing. Under these circumstances, the plaintiff was not ignorant of Mary Lou DelMastro’s hen; regardless of whether there was alack of actual notice, the plaintiff had constructive notice because the hen was recorded. See Equicredit Corp. of Connecticut v. Kasper, supra, 122 Conn. App. 98 (noting that plaintiff admitted it had actual or constructive notice of defendants’ mortgage and was not ignorant of hen). We likewise do not conclude that Mary Lou DelMastro received “an undue advantage” or inequitable windfall. See id., 98-99. Although the plaintiff asserts that Mary Lou DelMastro “knew that she was obtaining a second mortgage and is now seeking to obtain a windfall by claiming that her mortgage is a first mortgage on the [property,” the court found that although she was aware of the $650,000 mortgage and of the fact that her mortgage was subordinate to it, she was unaware of the subsequent $749,999 mortgage and never consented to subordinating her mortgage to it. Therefore, we conclude that the court did not abuse its discretion by declining to apply equitable subrogation.

II

The plaintiff next argues that general equitable principles dictate that the plaintiffs mortgage should be superior to Mary Lou DelMastro’s mortgage. The plaintiff advances the argument that Mary Lou DelMastro “must have been aware of her son’s various transactions with regard to [the] property” because of her relationship with her son, her role as bookkeeper in her son’s businesses and the closing attorney’s knowledge of the prior lien. The court explicitly found that Mary Lou DelMastro “was not shown to be complicit in any unethical or inappropriate behavior” and that “[t]here is no evidence that Mary Lou DelMastro was neglectful, fraudulent, confused or that she acted unfairly.” The court heard the evidence, including testimony of an account specialist at Saxon Mortgage, Inc., the attorney who conducted the title search for the property in 2007, Francis DelMastro and Mary Lou DelMastro. “[T]he trial court is the sole arbiter of witness credibility.” Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). The only legal support that the plaintiff offers for its argument that general equitable principles should apply is the legal principle that “foreclosure is an equitable proceeding and the court ‘may examine all relevant factors to ensure that complete justice is done.’ ” There is no indication that the court incorrectly weighed the equities, and we decline to disturb the court’s decision.

HI

The plaintiff finally argues that Mary Lou DelMastro’s mortgage is void for lack of consideration. The plaintiff bases this argument on (1) the stipulated fact that Mary Lou DelMastro received no financial benefit from the mortgages that she granted to her son’s business associate, which mortgages were the basis for Francis DelMastro’s granting the $325,000 mortgage to Mary Lou DelMastro and (2) the stipulated fact that at the time that Mary Lou DelMastro obtained the $325,000 mortgage, she had not advanced or loaned any of the money secured by that mortgage. Implicit in the court’s finding that Mary Lou DelMastro’s lien had first priority was that her mortgage was supported by consideration.

“[Consideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee .... Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. ” (Internal quotation marks omitted). General Electric Capital Corp. v. Transport Logistics Corp., 94 Conn. App. 541, 546-47, 893 A.2d 467 (2006). “The consideration does not necessarily have to move from the mortgagee to the mortgagor.” Molk v. Micklewright, 151 Conn. 606, 609, 201 A.2d 183 (1964). “Whether an agreement is supported by consideration is a factual inquiry reserved for the trier of fact and subject to review under the clearly erroneous standard.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 442, 927 A.2d 843 (2007). The conclusion drawn from the facts so found, i.e., whether a particular set of facts constitute consideration in the particular circumstances, is a question of law; see Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307-308, 407 A.2d 971 (1978); and accordingly is subject to plenary review. See Santoro v. Santoro, 132 Conn. App. 41, 47, 31 A.3d 62 (2011).

It is undisputed that Mary Lou DelMastro did not receive a financial benefit from the mortgages and that she “asserts that she received the benefit of trying to help her son.” Significantly, she also incurred a detriment by assuming the role of guarantor to the mortgage. Indeed, the court found that “[ultimately, with [her son’s business associate] demanding payment from her as guarantor, she was forced to put a mortgage on her Wethersfield home and liquidate her own savings . . . .” Mary Lou DelMastro was, therefore, obligated to secure Francis DelMastro’s debt, and the court properly treated her mortgage from Francis DelMastro as enforceable.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       The defendants in this action are Francis DelMastro, Kristen DelMastro, Newgate Corporation and Mary Lou DelMastro. Mary Lou DelMastro is the only defendant who has filed a brief or appeared at oral argument.

       The subsequent encumbrancers were the defendants Kristen DelMastro and Newgate Corporation.

       The plaintiff subsequently filed a motion for articulation, in which it sought to have the trial court address the three issues before this court. The court denied the motion. The plaintiff then filed a motion for review of the court’s denial of its motion for articulation. This court granted the motion for review but denied the relief requested therein.

       The plaintiff argues that the reasoning underlying Connecticut National Bank v. Chapman, supra, 153 Conn. 393, applies and that Equicredit Corp. of Connecticut v. Kasper, supra, 122 Conn. App. 94, is inconsistent with Connecticut National Bank. Although the factual scenarios are similar, there are procedural and substantive distinctions. Notably, from a procedural standpoint, the plaintiff in Connecticut National Bank sought in the trial court to reinstate its original mortgage and to foreclose the original mortgage, to which the intervening mortgagee had been subject until its inadvertent release. In the present case, the plaintiff sought to foreclose its second mortgage, to which the intervening mortgagee had never been subject. The court in Connecticut National Bank noted that the bank, although not appreciating the intervenor’s mortgage, which it should have done, was able to gain priority over the innocent intervenor. Additionally, in Connecticut National Bank, the court held that failure to apply equitable subrogation would have resulted in unjust enrichment of the intervening lienholder, who would have held the property free and clear of any encumbrances because the foreclosure action would have foreclosed the plaintiffs subsequent mortgage and the plaintiffs first mortgage was mistakenly released. Connecticut National Bank v. Chapman, supra, 399. In contrast, in Equicredit Corp. of Connecticut, rather than being free and clear of encumbrances, the issue was the determination of the priorities of the relevant security interests. Equicredit Corp. of Connecticut v. Kasper, supra, 96. Relatively minor factual differences may, in the court’s discretion, make a difference in the weighing of equities.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. MAHENDRA NARAIN
    (AC 32398)
    DiPentima, C. J., and Alvord and Foti, Js.

      Argued November 15, 2011
    officially released February 21, 2012

      Elizabeth M. Inkster, senior assistant public defender, with whom was Mario Cerame, certified legal intern, for the appellant (defendant).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Jayne Kennedy, assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Mahendra Narain, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a) (3), conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48 and 53a-102 (a), and conspiracy to commit larceny in the third degree in violation of General Statutes § 53a-48 and General Statutes (Rev. to 2007) § 53a-124 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to convict him of the crimes of conspiracy to commit burglary in the first degree and conspiracy to commit burglary in the second degree, (2) the trial court improperly precluded him from cross-examining Kowsila Singh about her daughter’s place of residence and (3) the court improperly denied his motion in limine to preclude the state from presenting evidence as to the value of certain stolen jewelry. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 4, 2008, Singh and her son left her apartment on Lounsbury Street in Waterbury to visit her brother, who lived nearby, to watch fireworks. Singh’s ailing mother remained at the apartment. Shortly after arriving at her brother’s home, Singh realized that she had forgotten to bring her purse. She decided to return to her apartment, and her son wanted to accompany her to retrieve his cellular telephone charger. At approximately 9 p.m., Singh’s sister drove them back to Singh’s apartment. Upon arrival, Singh’s son exited the vehicle and started up the stairs of the five-family apartment house. At that point, Singh heard a voice saying, “run, run,” and she looked up to her window on the second floor and saw two individuals exiting from the window. The area was well lit by a streetlight located in front of the building.

Singh exited the vehicle, and she watched the two individuals as they ran away from the apartment. Both males were slim in build, and one was bare-chested and had a white T-shirt hanging from his shoulder. The other male was wearing a brown and white striped shirt. She moved toward the male with the white T-shirt, who was not the defendant, and he kicked her as she grabbed him by his jeans. As the perpetrators fled the area, Singh called 911 to report the incident. While Singh was waiting for the police to respond, the two males circled back and argued with her. She could clearly see their faces, and she knew they were the same individuals who had been in her apartment because they were wearing the same clothing. They left again, before the police arrived, and subsequently drove past her in a gray, four door Nissan Maxima with a smashed front end. Singh’s sister was able to see the Connecticut license plate number of their vehicle.

In the meantime, Singh’s son brought Singh’s mother downstairs from the apartment. Singh’s mother had been unaware of the entry even though she had been present during the entire incident. Officer John Praleikas of the Waterbury police department then arrived, and Singh went upstairs to her apartment with him. She noticed several garbage bags filled with her possessions. Her jewelry box was located on the porch outdoors, but her jewelry had been taken. Praleikas determined that the perpetrators had gained entry by prying a screen window from its frame and forcing open a window into the bedroom. Singh gave a statement to Praleikas, including a description of the two males. Singh’s sister gave a description of the vehicle and the license plate number to Praleikas, who forwarded the information to fellow officers over his police radio. Praleikas also ran the license plate number through the National Crime Information Center system databases, and obtained the address of the vehicle’s registered owner on Pond Street in Waterbury. The vehicle was registered to Somdat Narain, the defendant’s brother.

Praleikas drove to the address on Pond Street, which was located a short distance from Lounsbury Street. When he arrived, he observed the subject vehicle in a side driveway. After requesting backup officers, Praleikas spoke with the defendant, the defendant’s brother and one female at that location. The males matched the description of the perpetrators given by Singh and her sister. The female was Premwattie Ramdat, Singh’s seventeen year old daughter. When Praleikas found a black trash bag filled with jewelry in the trunk of the subject vehicle, he contacted Singh and requested that she come to the Pond Street address for a possible identification of the perpetrators. Shortly thereafter, Singh arrived and positively identified the defendant and his brother as the two men who had broken into her apartment. She identified Ramdat as her daughter, whom Singh had not seen since September 5, 2007, when Ramdat left home to live in New York. Praleikas showed Singh the contents of the bag from the trunk, and she confirmed that it was her jewelry from the apartment.

The defendant was arrested and taken to the Waterbury police department. The following morning, the defendant was advised of his Miranda rights by Detective Robert Liquindoli of the Waterbury police department. Although the defendant was not willing to give a written statement, he indicated that he was willing to talk about the incident that led to the charged offenses. The defendant stated that his brother and Ramdat, his brother’s girlfriend, arrived from New York to visit him on July 4, 2008. During the visit, Ramdat mentioned that she and her mother, Singh, did not get along. She also informed them that her mother kept a large quantity of jewelry at her apartment. At some point during the conversation, the three of them decided that they would “steal the jewelry” from Singh’s residence. According to Liquindoli, the defendant stated that “[he], his brother and his brother’s girlfriend broke into the brother’s girlfriend’s mother’s home and robbed some jewelry.”

Shortly before jury selection, the defendant filed a motion in limine seeking to preclude the state from presenting any evidence relative to the value of the jewelry taken from Singh’s apartment. The defendant claimed that the subject jewelry, formerly in the possession of the Waterbury police department, had been returned to Singh and that he had not stipulated to the admission of secondary evidence as to its value. The defendant argued that he would have retained an expert appraiser to assess the value of the jewelry and that he had been deprived of his due process right to present a defense. After a hearing held on December 16, 2009, the trial court denied the defendant’s motion.

During a four day trial, Singh testified as to the value of the jewelry. Additionally, a photograph of the plastic bag containing the jewelry and photographs of selected pieces of the stolen jewelry were admitted into evidence as exhibits. After the jury reached its verdict, which was accepted by the court, the defendant was sentenced to two years of incarceration, execution suspended, and two years of conditional discharge. This appeal followed.

I

The defendant first claims that there was insufficient evidence to support his conviction of the crimes of conspiracy to commit burglary in the first degree and conspiracy to commit burglary in the second degree. Specifically, he argues that the state failed to prove beyond a reasonable doubt that a conspirator unlawfully entered Singh’s apartment, which is an element of the crime of burglary. According to the defendant, the evidence demonstrated that Ramdat and the defendant’s brother were the two individuals who entered Singh’s apartment. Because Ramdat is the daughter of Singh and was a minor at the time of the incident, the defendant argues that the mother’s residence was also Ramdat’s legal residence and that the state failed to prove that Ramdat did not have the right to enter and invite others into that residence.

“We apply a two part test in reviewing sufficiency of the evidence claims. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jennings, 125 Conn. App. 801, 805-806, 9 A.3d 446 (2011).

To establish the crime of conspiracy under § 53a-48, the state was required to prove that there was an agreement between two or more persons to engage in conduct constituting a crime and that one of the conspirators committed an overt act in furtherance of the crime agreed upon. Proof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense. See State v. Douglas, 126 Conn. App. 192, 202-203, 11 A.3d 699, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011). The defendant claims that to convict him of the crimes of burglary in the first degree and burglary in the second degree, as the commission of those crimes was alleged in the state’s information, the state bore the burden of proving beyond a reasonable doubt that he entered or remained unlawfully in a dwelling. The defendant argues that the state failed to demonstrate an agreement to intentionally enter Singh’s apartment unlawfully because Ramdat, by virtue of being the minor daughter of Singh, could legally enter her mother’s residence. We are not persuaded.

The defendant’s argument relies on the premise that it was Ramdat and her boyfriend, the defendant’s brother, who entered Singh’s apartment. The jury, however, reasonably could have found that the defendant and his brother had broken into the apartment. Singh testified that she saw two males exit from her window on the second floor and that she saw them clearly as they fled the scene. Further, the defendant stated to Linquindoli that he, his brother and Ramdat decided to “steal” the jewelry and that they “broke into” Singh’s apartment. According to Praleikas, they entered the apartment not through a door but by prying a screen window from its frame and forcing open a window into the bedroom. This conduct, contrary to the defendant’s argument, reasonably could lead the jury to conclude that the entry by the perpetrators was believed to be, and was indeed, unlawful.

The defendant cites no case law supporting his position that a runaway minor lawfully can allow other individuals to forcibly break into the dwelling of his or her parent for the purpose of committing a planned crime. “[I]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 153, 921 A.2d 622 (2007). On the basis of the evidence and the reasonable inferences drawn therefrom, we conclude that there was sufficient evidence to support the defendant’s conviction of conspiracy to commit burglary in the first degree and conspiracy to commit burglary in the second degree.

II

The defendant’s next claim is that the court improperly precluded him from cross-examining Singh about Ramdat’s place of residence. Defense counsel asked Singh whether Ramdat was still a resident of her home on July 4,2008. The prosecutor objected, on the grounds that it was beyond the scope of direct examination and not relevant, and the objection was sustained by the court. The defendant argues that he intended to elicit testimony that Ramdat “was a legal resident of the dwelling; she could invite people inside as a legal resident, vitiating the state’s claim that there was an unlawful entry.” As a result of the court’s having precluded this line of questioning, the defendant claims that he was deprived of his constitutional right to present a defense.

“It is well established that [t]he federal constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 634, 1 A.3d 1051 (2010). “[T]he determination of whether a matter is relevant to a material issue [in the proceeding] . . . rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Wright, 273 Conn. 418, 424-25, 870 A.2d 1039 (2005).

In the present case, defense counsel asked Singh whether Ramdat was still a resident of Singh’s apartment when Ramdat came back to Waterbury on July 4, 2008. Singh responded: “No.” The prosecutor objected: “Objection. Beyond the scope, relevance, and I — I’ve had discussions with counsel about this, that I would like to have the jury excused, please.” The jury was excused, and counsel presented their arguments to the court. During that discussion, the prosecutor maintained that even if Ramdat could invite another person into her mother’s apartment, she could not legally invite that other person inside for the purpose of committing a crime. Defense counsel responded: “And I agree with that, Your Honor. But that’s not the question that was asked of this witness. The question was simply whether she has the right to invite people in. If the invitation was for the purpose of committing a crime, I agree that she doesn’t have the authority to do that.”

On appeal, the defendant claims that, through his cross-examination of Singh, he wanted to establish that Ramdat was a legal resident of Singh’s apartment. The defendant argues that as a legal resident, Ramdat could invite people into her residence and the state would be unable to prove an unlawful entry. Thus, the defendant’s position, as articulated to the court, was dependent upon Ramdat’s being a legal resident of that apartment. The defendant’s argument fails for several reasons.

Although the prosecutor objected to defense counsel’s question as to Ramdat’s legal residence, Singh already had answered the question. She stated that Ramdat was not a resident of her apartment as of July 4, 2008. After the court ruled, sustaining the state’s objection, the jury returned to the courtroom, and the court indicated that the objection had been sustained. The state never moved to strike Singh’s response, and the court did not do so.

Moreover, Singh previously had indicated, during direct examination, that Ramdat did not reside with her. The prosecutor asked: “And was [Ramdat] living with you on July 4 of 2008?” Singh responded: “No.” The prosecutor then asked: “When was the last time before that date that you had seen her?” Singh responded: “September 5, 2007.” Singh’s responses, therefore, unequivocally established that Ramdat was not a resident of her mother’s apartment on July 4, 2008. Further, after defense counsel conceded that Ramdat did not have the authority to invite other people into her mother’s apartment for the purpose of committing a crime, the court immediately sustained the state’s objection because the line of questioning was beyond the scope of direct examination and not relevant: “At this point in time, I don’t see it [as] relevant. ... I have not heard any evidence at this point that [Ramdat] was living at the residence or authorized to invite anyone into the residence . . . .” The court also stated, however, that should the defendant rely on a defense necessitating such testimony, Singh needed to remain available so that the defendant could call her in his case-in-chief.

For the foregoing reasons, we conclude that the defendant has failed to demonstrate that the court abused its discretion by precluding that line of questioning during his cross-examination of Singh. “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Stephenson, 131 Conn. App. 510, 528, 27 A.3d 41 (2011). Here, we cannot conclude that the court improperly determined that the defendant failed to establish the relevance of the offered testimony. Accordingly, the court’s decision to preclude it on that basis did not violate his constitutional right to present a defense.

Ill

The defendant’s final claim is that the court improperly denied his motion in limine to preclude the state from presenting evidence as to the value of Singh’s stolen jewelry. Specifically, he argues that because the jewelry was returned to Singh before he had the opportunity to have an expert appraise its value, he was deprived of his constitutional right to present a defense. We disagree.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claim. After Praleikas discovered Singh’s jewelry in the trunk of Somdat Narain’s vehicle, the jewelry was bagged and labeled by police officials and kept as evidence at police headquarters. The jewelry was returned to Singh, however, when the cases against the defendant’s co-conspirators were resolved. The defendant claims that he was not notified of any request to return the jewelry and that he did not stipulate to the use of secondary evidence to establish its value. See General Statutes § 54-36a (b). On that basis, shortly before jury selection, the defendant filed his motion in limine to preclude the state from presenting any evidence as to the value of the stolen jewelry. The court denied the motion, concluding that the submission of secondary evidence would go to the weight and not the admissibility of such evidence, and that the defendant would have “every opportunity to cross-examine and challenge any value claimed by the state.”

At trial, the state questioned Singh as to the value of her jewelry, and it submitted into evidence one photograph of the garbage bag filled with Singh’s jewelry and three photographs of selected pieces of that jewelry. Singh described several pieces of the stolen jewelry, testifying as to when they were purchased and the price that she paid for them. She also testified that she had a bracelet custom made for her in New York that was worth more than $500. Singh estimated the total value of the stolen jewelry to be more than $10,000, although she acknowledged that she had told Praleikas on July 4, 2008, that the jewelry was worth more than $5000. During cross-examination, defense counsel questioned her regarding the discrepancy between her estimated value of the jewelry at the time of the incident and at trial. He asked no questions pertaining to the purchase price of the various pieces of jewelry or her description of select diamond bracelets and gold anklets. The defendant did not challenge Singh’s competency to testify as to the value of her jewelry, nor did he challenge the lower estimate of $5000 as being excessive.

In order for the defendant to be convicted of conspiracy to commit larceny in the third degree, the state had to prove beyond a reasonable doubt that the value of the stolen property exceeded $1000. See General Statutes (Rev. to 2007) § 53a-124 (a) (2). Because the state did not present the original pieces of the stolen jewelry, the defendant claims that he “could not refute the value element of the charged crime by presenting credible, reliable testimony of an independent appraisal.” The defendant argues that the court should have precluded the admission of secondary evidence, even though that would have prevented the state from establishing one of the elements of the charged offense, because the procedure set forth in § 54-36a (b) had not been followed.

There is no Connecticut case law that is completely on point with the case at bar. There is, however, a case that is instructive. In State v. Stephenson, supra, 131 Conn. App. 510, the defendant filed a motion to dismiss the charges against him, claiming that the state had deprived him of a fair trial and due process by returning merchandise alleged to have been stolen by him to the stores from which it had been taken. A photograph of the merchandise, consisting of clothing and eyeglasses, had been taken by the police department prior to its return. The defendant argued that the state intentionally had disposed of that evidence and that it was critical to his defense. The state responded that it properly had returned the stolen merchandise pursuant to § 54-36a. The defendant countered that the state did not comply with the provisions of that statute, and, therefore, the return was not proper. The trial court denied the defendant’s motion to dismiss and the case proceeded to trial, resulting in the defendant’s conviction.

This court upheld the trial court’s determination. We concluded that even if the merchandise had not been properly returned pursuant to the statute, the defendant nevertheless failed to establish that his constitutional rights had been violated. We noted that he had the ability, through cross-examination and extrinsic evidence, to make the points argued in his motion to dismiss regarding the unavailability of the evidence and that he had not shown that he suffered prejudice by the return of the items. Id., 525-26.

In the present case, there is no claim that the state concealed, suppressed, lost or destroyed Singh’s jewelry. “Only an intentional or deliberate suppression of evidence is a per se violation of due process sufficient to reverse or nullify a conviction.” State v. Green, 194 Conn. 258, 264 n.6, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Davis, 10 Conn. App. 130, 133, 521 A.2d 1051 (1987). The evidence inadvertently was returned to its owner when the cases against the defendant’s co-conspirators were resolved. Although the defendant’s case had been pending since July, 2008, no motion addressed to the evidence was filed until November, ,2009.

Further, Singh was a state’s witness, and there is no indication that the subject jewelry could not have been subpoenaed for trial. The defendant did not argue that Singh was not competent to testify as to the value of her property or that the photographs of the jewelry, as admitted into evidence, were not accurate representations of the stolen pieces. When the court denied the defendant’s motion in limine to preclude the use of secondary evidence, the court stated that the defendant would have “every opportunity to cross-examine and challenge any value claimed by the state.” Despite this opportunity, the defendant never challenged Singh’s testimony at trial with respect to the price she paid for the jewelry or her description of the diamond and gold bracelets and anklets. He did point out the discrepancy in her estimation of its value, which had been approximately $5000 at the time of the incident and $10,000 at trial. Significantly, however, he never challenged the lower estimate of $5000, and the state only had the burden of proving that the value of the stolen jewelry was more than $1000.

Given these factors, we cannot conclude that the defendant has established any prejudice by the return of the jewelry or that he has been harmed by the lack of an opportunity to have an independent appraisal of the jewelry. Accordingly, the court did not improperly deny the defendant’s motion in limine to preclude the state from presenting evidence as to the value of the stolen jewelry.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of the charges of accessory to burglary in the first degree in violation of General Statutes §§ 53a-8 and 53a-101 (a) (3), accessory to burglary in the second degree in violation of §§ 53a-8 and 53a-102 (a), and larceny in the third degree in violation of §§ 53a-8 and 53a-124 (a) (2).
      We note that § 53a-124 (a) (2) was amended in 2009 to require the value of the stolen property to exceed $2000, increased from the previously required $1000. See Public Acts 2009, No. 09-138, § 3, codified at General Statutes (Sup. 2010) § 53a-124 (a) (2). For convenience, we refer to the 2007 codification of the statute, which was the one that was in effect at the time of the offense in the present case. All references to § 53a-124 (a) (2) are to the 2007 revision.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant argues that the jury did not believe that testimony because it “returned verdicts of not guilty on all substantive burglary and larceny counts.” This court, however, must view the evidence in the light most favorable to sustaining the verdict. State v. Jennings, supra, 125 Conn. App. 805. Moreover, the defendant’s argument fails even if the jury’s verdicts on the burglary and larceny charges could be considered factually inconsistent with its verdicts on the conspiracy charges. “ [A] factually inconsistent verdict will not be overturned on appeal.” State v. Ramirez, 292 Conn. 586, 590, 973 A.2d 1251 (2009), aff'd 107 Conn. App. 51, 943 A.2d 1138 (2008).

       The defendant’s argument that the court improperly failed to allow him the opportunity to question Singh outside the presence of the jury likewise fails. As previously discussed, the defendant conceded that Ramdat could not invite other people into her mother’s apartment for the purpose of committing a crime. Accordingly, the court reasonably could have concluded that that concession rendered the proposed line of questioning irrelevant.

       General Statutes § 54-36a (b) (2) provides in relevant part: “If the seized property is stolen property, within ten days of the seizure, the law enforcement agency seizing the property shall notify the owner of the property if known . . . and, on a form prescribed by the Office of the Chief Court Administrator, advise the owner of such owner’s rights concerning the property and the location of the property. Such written notice shall include a request form for the return of the property. The owner may request the return of the property by filing such request form with such law enforcement agency, and upon receipt of such request, the law enforcement agency shall forward it to the clerk of the court for the geographical area in which the criminal offense is alleged to have been committed. The clerk of the court shall notify the defendant or defendants of the request to return the property. The court shall order the return of the property within thirty days of the date of filing such return request by the owner, except that for good cause shown, the court may order retention of the property for a period to be determined by the court. Any secondary evidence of the identity, description or value of such property shall be admissible in evidence against such defendant in the trial of such case. The fact that the evidence is secondary in nature may be shown to affect the weight of such evidence, but not to affect its admissibility. . . .”

       In fact, in the defendant’s brief on appeal, he states that “[t]he state enjoyed continuing access to [Singh’s] jewelry.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. CHARLES F.

    (AC 32608)
    DiPentima, C. J., and Beach and Foti, Js.
    Argued October 21, 2011
    officially released February 21, 2012

      Auden Grogins, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Terence D. Mariani, senior assistant state’s attorney, Maureen Platt, state’s attorney, and, on the brief, John A. Connelly, former state’s attorney, and Nancy L. Walker, former special deputy assistant state’s attorney, for the appellee (state).

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

   Opinion

FOTI, J.

The defendant, Charles F., appeals from the trial court’s denial of his motion to correct an illegal sentence. On appeal, the defendant claims that his untimely receipt of the presentencing investigation report caused the sentencing court to rely on inaccurate information. We disagree and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the present case. On October 17, 2006, local police discovered over fifty images in the defendant’s possession depicting naked minor children engaged in sexual intercourse with adults. By way of an information dated March 20, 2007, the defendant was charged with possession of child pornography in the first degree in violation of General Statutes (Rev. to 2005) § 53a-196d. On June 3, 2008, the defendant entered a plea of guilty to this charge pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

After accepting the defendant’s plea, in accordance with our rules of practice, the court ordered the preparation of a presentence investigation report (report) by the office of adult probation. See Practice Book § 43-3. The report contained the following statements relevant to the present appeal. Under the heading “offender’s version,” the report states: “At the advice of his attorney, the offender reserved the right to address the [c]ourt at the time of sentencing.” Under the heading “relationships/children” the report conveys the following statement made by the defendant’s daughter: “I know my dad. He acts like a little kid. He horse plays but he knows his age limit. I still talk to his son (one of the victims in [the defendant’s] pending case) and he told me that none of that stuff happened.”

The defendant was sentenced on September 19,2008. At the hearing, the prosecution made the following statement: “I think that the [report] largely speaks for itself. It paints a very dim picture of [the defendant] as an individual. He has an extensive criminal record that goes back a number of years. I counted up in the neighborhood, I think, of thirty prior convictions for felonies. For misdemeanors. He’s even got federal convictions, where he did a substantial amount of jail time.”

Shortly before imposing sentence, the court stated: “The [report], from the perspective of your personal life, and your history, certainly is not a good one. You had a long and serious history. Multitude of convictions for assaults, and threats and larcenies, burglaries, criminal impersonation. One conviction for a sexual assault in the fourth degree. That involved a nolle of a risk of injury, clearly involved an underaged child. And a telecommunications fraud, violations of protective order, and other federal crimes. Obviously, a very serious history. And, as the state pointed out, there is pending here, a sexual assault in the first degree, with allegations involving sex with a child. That unfortunately is consistent with the type of photos that were on the computer.” The court then sentenced the defendant to twenty years of incarceration, execution suspended after twelve years, followed by fifteen years of probation.

On June 1, 2010, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. In this motion, the defendant argued that he did not receive the report forty-eight hours before sentencing as required by Practice Book § 43-7 and that, as a result of this untimely receipt, he was unable to correct several inaccuracies, including (1) the statement in the report that the defendant did not want to include an “offender’s version,” (2) the statement in the report that the defendant’s son was “one of the victims in [the defendant’s] pending case” and (3) the prosecution’s statement that the defendant had committed thirty felonies. A hearing on this motion was held on June 11, 2010. On June 14, 2010, the court denied the defendant’s motion. This appeal followed.

On appeal, the defendant claims that the trial court abused its discretion in denying his motion to correct an illegal sentence. The state responds that the trial court lacked subject matter jurisdiction to consider the defendant’s motion. In the alternative, the state argues that the trial court did not abuse its discretion by denying the defendant’s motion because the sentencing court did not rely on the purportedly inaccurate pieces of information identified by the defendant.

I

The state argues that the trial court lacked subject matter jurisdiction over the defendant’s motion to correct. Because the state’s argument raises a threshold issue which must be considered before the merits of the appeal may be reached, we address this issue first. See Johnson v. Commissioner of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002) (“[o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented” [internal quotation marks omitted]). For the reasons listed below, we conclude that the trial court had subject matter jurisdiction over the defendant’s motion.

We begin our analysis of this issue by setting forth the applicable standard of review. “We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010).

“The Superior Court is a constitutional court of general jurisdiction. ... In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. ... [A] generally accepted rule of the common law is that a sentence cannot be modified by the trial court ... if the sentence was valid and execution of it has commenced. (Citation omitted; internal quotation marks omitted.) State v. Parker, 295 Conn. 825, 834, 992 A.2d 1103 (2010). “Because this jurisdictional limitation presupposes a valid sentence, it long has been understood that, if a court imposes an invalid sentence, it retains jurisdiction to substitute a valid sentence.” (Emphasis in original.) Id., 835. “In Connecticut, [Practice Book] § 43-22 sets forth the procedural mechanism for correcting invalid sentences.” Id., 836. Section 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

In State v. McNellis, 15 Conn. App. 416, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), this court stated: “An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [a] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Citations omitted; internal quotation marks omitted.) Id., 443-44. Our Supreme Court later adopted these definitions, noting only that “the examples cited in McNellis are not exhaustive and the parameters of an invalid sentence will evolve.” State v. Parker, supra, 295 Conn. 840.

In the present case, the defendant’s motion alleged that the sentencing court relied on three inaccurate pieces of information. Such a claim falls squarely within the common-law jurisdiction of the Superior Court. See State v. Osuch, 124 Conn. App. 572, 579, 5 A.3d 976 (“[The defendant] alleges that the court relied on inaccurate information in sentencing him . . . based on a report that was prepared by a probation officer who never met with him. Accordingly, the defendant contends that he was denied the right to be sentenced by a judge who was relying on accurate information. . . . [T]he defendant is entitled to file this motion under Practice Book § 43-22 and . . . the court possessed jurisdiction to entertain it.”), cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010). Consequently, we conclude that the trial court possessed jurisdiction over the defendant’s motion.

II

The defendant claims that the trial court abused its discretion by denying his motion to correct an illegal sentence because the sentencing court relied on three “inaccurate” pieces of information: (1) the statement in the report that the defendant did not want to include an “offender’s version” (2) the statement in the report that the defendant’s son was “one of the victims in [the defendant’s] pending case” and (3) the prosecution’s statement that the defendant had committed thirty felonies. We disagree.

We begin by setting forth our standard of review. “[A] claim that the trial court improperly denied a defendant’s motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard.” (Internal quotation marks omitted.) State v. Santos, 125 Conn. App. 766, 770, 9 A.3d 788 (2011). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only, if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Carter, 122 Conn. App. 527, 532, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011).

“To prevail on such a claim as it relates to a presentence report, [a] defendant [cannot] . . . merely alleg[e] that his presentence report contained factual inaccuracies or inappropriate information. . . . [He] must show that the information was materially inaccurate and that the [sentencing] judge relied on that information.” (Emphasis in original; internal quotation marks omitted.) State v. Parker, supra, 295 Conn. 843. “A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence.” (Internal quotation marks omitted.) Id., 843 n.12.

In the present case, the trial court properly concluded that the sentencing court did not rely on inaccurate information. First, the sentencing court did not reference or otherwise indicate that it was relying on the report’s assertion that the defendant did not wish to include an offender’s version. Second, although some ambiguity may have been created by the report’s statement that the defendant’s son was “one of the victims in [the defendant’s] pending case,” there is no evidence to indicate that the sentencing court believed that the word “pending” referred to the charges of child pornography. To the contrary, the sentencing court’s own use of the term “pending” belies this conclusion. Third, the sentencing court’s piecemeal recitation of the defendant’s prior convictions indicates that it properly relied on the accurate representation of the defendant’s criminal history contained within the report rather than the abstract estimate given by the prosecution prior to sentencing. Given the presence of this evidence in the record, the trial court could have reasonably concluded that the sentencing court did not rely on inaccurate information and that the defendant’s sentence was therefore not imposed in an illegal manner. Consequently, we conclude that the trial court did not abuse its discretion by denying the defendant’s motion to correct an illegal sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) § 53a-196d (a) provides: “A person is guilty of possessing child pornography in the first degree when such person knowingly possesses fifty or more visual depictions of child pornography.”

       “Under North Carolina v. Alford, [supra, 400 U.S. 25], a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless. ” (Internal quotation marks omitted.) State v. Pentland, 296 Conn. 305, 308 n.3, 994 A.2d 147 (2010).

       The state also had charged the defendant with sexual assault in the first degree in a separate proceeding. This second case, which remained pending when the defendant was sentenced in the present case, was premised on allegations that the defendant had abused his son sexually.

       The defendant argues that this statement implies, incorrectly, that his son was depicted in the child pornography seized by the police.

       Our Supreme Court’s ruling in Parker is not, as the state suggests, inconsistent with this conclusion. In Parker, our Supreme Court held that the trial court lacked subject matter jurisdiction over the defendant’s motion to correct an illegal sentence because “[t]he defendant’s claimed constitutional basis for jurisdiction — the right not to be sentenced on the basis of inaccurate information — [was] predicated entirely on his claim that the rules of practice and the statutes afford him a personal right to review, and an opportunity to seek corrections to, the presentence report, a claim that we have rejected. In his motion to correct, he did not advance an independent constitutional claim that the purported inaccuracies were materially false and that the sentencing court actually had relied on them in sentencing him. . . . Therefore, all we are left with is the defendant’s claim as it relates to the conduct of his counsel.” State v. Parker, supra, 295 Conn. 849-50. In the present case, the defendant’s motion identified specific inaccuracies and argued that they were relied on by the sentencing judge.

       Although the defendant’s original motion argues, at least nominally, that this statement represents an “inaccuracy” upon which the sentencing court relied, the gravamen of this claim appears to be that the omission of the offender’s version from the, report violated the defendant’s right to speak in mitigation of his own punishment. This claim must also fail. The defendant does not dispute that he explicitly was provided an opportunity to speak on his own behalf at sentencing. Indeed, at that time the defendant made the following statement to the court: “[The prosecution] made it sound like [the contraband was] all on my computers. There was nothing on my computers whatsoever. There was nothing ... to indicate that. I’m the one that let these officers know there was a disk in my trunk, of child pom. There was no child pom anywhere else on the computers. He’s making it sound like I enjoyed — I never even saw the stuff on here. That’s all I wanted to say.”

       As we have previously noted, the sentencing court stated: “And, as the state pointed out, there is pending here, a sexual assault in the first degree, with allegations involving sex with a child. That unfortunately is consistent with the type of photos that were on the computer.”


author: PER CURIAM.

text:
    EDWARD BLASCO v. COMMERCIAL LINENS, LLC, ET AL.
    (AC 31649)
    Alvord, Espinosa and Pellegrino, Js.

      Argued November 9, 2011-
    officially released February 21, 2012

      Christopher G. Winans, for the appellant (plaintiff).

      Thomas W. Beecher, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Edward Blasco, appeals from the judgment of the trial court rendered in favor of the defendants, Commercial Linens, LLC, and John J. Royce. On appeal, the plaintiff claims that the court improperly found that he failed to prove the claim as alleged in his complaint that the defendants breached the terms of their commercial lease by failing to pay a water bill that they were obligated to pay pursuant to the terms of the lease. We disagree with the plaintiff and, accordingly, affirm the judgment of the court.

These facts are not in dispute. In December, 2000, the plaintiff leased to the defendants space in a commercial building that he owned in the city of Danbury (city). Under the terms of their written lease, the defendants were to pay for all water used and consumed on the leased premises. The plaintiff was obligated to install a separate water meter in the premises occupied by the defendants. With the exception of one tenant in the building, Connecticut Photographies, which had its own water meter, the other tenants, including the defendants, did not have a separate meter measuring the actual water consumed in their individual leased premises, nor did the plaintiff install a separate meter in the defendants’ premises as he was obligated to do pursuant to the lease.

Throughout the course of the lease, when the plaintiff received a quarterly water bill from the city, he would estimate the defendants’ share of the bill by deducting the actual meter amount used by Connecticut Photographies, and then, after deducting 20,000 gallons of water that he estimated all of the other tenants in the building consumed, he would calculate the balance of the bill as the obligation of the defendants. The defendants consistently paid their estimated share of the water bill until the city issued in March, 2007, its quarterly bill for the period of October 18, 2006, through January 23, 2007, in the amount of $65,167.98, which was four times greater than any past comparable period. The defendants refused to pay the substantial increase in the water bill estimated by the plaintiff on the ground that their water usage did not change for that period and instead paid to the city the amount of $13,014.08, which they believed was the amount due based on their calculation of the water consumed in their leased premises for that period.

By a complaint dated January 2, 2008, the plaintiff commenced this action, alleging that the defendants failed to pay for the water consumed on their premises for the period in question. The trial court found that the plaintiff failed to offer any credible evidence that demonstrated how much, if any, excess water was used by the defendants and not by the other unmetered tenants. This appeal followed.

It is the plaintiffs burden to prove the allegations of its complaint. See Rivera v. Meriden, 72 Conn. App. 766, 772, 806 A.2d 585 (2002). “An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. As we have often stated: The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Internal quotation marks omitted.) Brennan Associates v. OBGYN Specialty Group, P.C., 127 Conn. App. 746, 753, 15 A.3d 1094, cert. denied, 301 Conn. 917, 21 A.3d 463 (2011).

The plaintiff specifically claims that the court failed to consider or to credit evidence that a separate water meter installed by the defendants established that the defendants were responsible for the high water bill. We disagree. The court considered this evidence but found that the meter that the defendants installed was not a reliable measure of their water usage because it was never read or monitored during the period in question. The plaintiff merely had provided a photograph of the meter, which was taken more than ten months after the period in controversy and almost sixteen months after the meter was installed. In the absence of contemporaneous meter readings and expert testimony to estimate usage, or any other evidence attributing the excessive water use to the defendants, the court found that the plaintiff did not sustain his burden of proof as to the cause of action against the defendants. Because these findings are amply supported by the evidence and the reasonable inferences drawn therefrom, we conclude that the court’s factual findings were not clearly erroneous.

The judgment is affirmed.

       The plaintiff also claims that the court improperly failed to address his claim with respect to an $8831.16 water invoice issued by the city of Danbury in June, 2007. The trial court, as it indicated in its articulation, did not reach this issue because the plaintiff failed to include this allegation in his complaint. In its articulation, the court stated: “At the hearing, both sides concurred that this $8831.16 invoice was not included in the allegation of the complaint and was, thus, outside the scope of the pleadings. The court had reached this conclusion as well which is the reason there is no mention of it in the memorandum of decision.” (Emphasis added.) On appeal, the plaintiff claims that this statement is inaccurate. The trial court’s articulation of its decision is clear. Because the plaintiff has failed to provide this court with the transcript of the hearing on the articulation, and furthermore, failed to file a motion for review with this court in accordance with Practice Book §§ 66-5 and 66-7, there is no basis in the record before this court for reversing the trial court’s decision. See Ramondetta v. Amenta, 97 Conn. App. 151, 167-68, 903 A.2d 232 (2006) (“ [i]t is axiomatic that the appellant must provide this court with an adequate record for review”); Practice Book § 61-10.