source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    GARY B. TRAYSTMAN v. LISA M. TRAYSTMAN
    (AC 34025)
    DiPentima, C. J., and Beach and Bishop, Js.

      Argued January 4
    officially released April 9, 2013

      Adam A. Laben, with whom, on the brief, was Denise Ansell for the appellant (defendant).

      Drzislav Coric, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this marital dissolution action, the defendant, Lisa Mei Traystman, appeals from the judgment of the trial court with respect to (1) several of the court’s financial orders, (2) its decision to hold her in contempt for violating the automatic stay provisions contained in Practice Book (2010) § 25-5, (3) its ruling on aspects of her discovery requests and (4) its denial of her motion for disqualification of the trial judge. We reverse the judgment, in part, and remand the matter for a new hearing as to all of the financial orders.

The record reveals the following relevant facts and procedural history. The plaintiff, Gary B. Traystman, and the defendant were married on December 5, 1984, in New London. On August 31, 2011, the court rendered judgment dissolving the parties’ marriage and entered related financial orders. An issue in the dissolution trial before the court was the determination of the true extent of the plaintiffs earnings and assets, which the defendant alleged were significantly greater than represented by the plaintiff. The plaintiff is a member of the law firm Traystman & Coric, LLC (firm). The other members of the firm were the plaintiffs father, Harry Traystman, and Drzislav “Dado” Coric, who represented the plaintiff in this dissolution proceeding. The firm also employed one associate. Harry Traystman owned a 45 percent equity stake in the firm, the plaintiff owned 30 percent, and Coric owned 25 percent. Each member drew a salary of $1000 per week, and the firm’s profits were shared in accordance with the members’ respective ownership interests. The firm handled diverse matters; the plaintiff specialized in family law matters.

Determining the value of the firm proved challenging. The defendant enlisted John Villano, a certified public accountant, to analyze the plaintiffs personal cash flow as well as to review the firm’s financial records. Villano’s efforts to place a value on the firm allegedly were complicated by the plaintiffs objection to the disclosure of certain financial documentation on the ground that it was protected by the attorney-client privilege. Ultimately, Villano testified that he was unable to form an opinion as to the value of the firm.

Villano did testify that, based upon his analysis of the firm’s billing records, the plaintiff averaged forty billable hours per week and billed his clients $300 per hour. This testimony formed the basis of the court’s attempt to calculate the plaintiffs earnings. The court accepted Villano’s uncontroverted estimate that 35 percent of the plaintiffs fees were uncollectible. There was no testimony regarding the firm’s overhead expenses; thus, the court utilized two different methods for estimating this figure. The court first noted that, in its experience, small firms generally have overhead expenses constituting 50 to 60 percent of gross revenue. In this case, the court chose to apply an overhead expense rate of 60 percent because Harry Traystman drew a salary and shared in the firm’s profits, but he did not generate significant revenue. The court then conducted a second calculation by averaging the firm’s overhead expenses as a percentage of gross revenue, as reflected in the firm’s 2008, 2009 and 2010 tax returns. The average overhead expenses from these three years was 73 percent of gross revenue. Using these two figures for overhead expenses — 60 and 73 percent — the court established a range — $95,659.20 to $131,040 — for the plaintiffs estimated net contribution to the firm.

The court noted that the plaintiffs contribution to the firm’s revenue was not reflected by his reported compensation; his amended 2010 tax return reported his adjusted gross income as $58,937. Accordingly, the court concluded that its financial orders were more appropriately based on earning capacity than on actual reported earnings. The court ultimately found that the plaintiffs earning capacity was $120,000 per year. The court found the defendant’s earning capacity was $30,000 per year.

Using these figures, the court made the following findings and financial orders relevant to this appeal: the defendant was awarded $500 per week in periodic alimony; the defendant incurred legal fees and related costs totaling $66,150, which the court found to be fair and reasonable; and the defendant was found to be in contempt for withdrawing approximately $60,000 from a home equity line of credit in violation of the automatic orders in effect at the time. See Practice Book (2010) § 25-5 (b).

Pursuant to Practice Book § 11-11, the defendant filed two postjudgment motions for articulation and reconsideration, which raised the following claims: the court had made significant computational errors in determining the plaintiffs earning capacity; the court had failed to distribute one of the parties’ retirement accounts; and the court’s finding that the defendant was in contempt was improper because the money she withdrew from the home equity line of credit was used for legal expenses incurred during the proceedings, which expenses the court found to be reasonable, and for basic living expenses.

The plaintiff opposed the motions arguing that “[t]he [c]ourt’s [financial orders] are clearly not based on any one calculation, nor on any one fact, rather they are the result of a multifaceted inquiry with carefully drawn conclusions therefrom.” In light of this “multifaceted inquiry,” the plaintiff argued that precisely how the court computed the plaintiffs earning capacity was inconsequential.

The court denied the defendant’s motions. The court acknowledged the underlying computational errors, but stated that they did not undermine the reasonableness of its estimate of the plaintiffs earning capacity. It “[found] no reason to alter its decision relative to the alimony based on [this] regrettable, but simple typographical error.” As to the retirement account that was unaccounted for in the financial orders, the court stated that this omission was deliberate because the plaintiffs retirement assets were “relatively minor” and because the plaintiffs alimony obligations had no term limitation. The court declined to reconsider its orders related to attorney’s fees. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court’s determination of the plaintiffs earning capacity was undermined by computational errors, which resulted in an inequitable alimony award and amounted to an abuse of discretion. The plaintiff concedes that the court made arithmetic errors, but argues, as he did in opposing the defendant’s postjudgment motions for reconsideration, that the court’s alimony determination nevertheless was, on balance, reasonable. We agree with the defendant.

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) de Repentigny v. de Repentigny, 121 Conn. App. 451, 460, 995 A.2d 117 (2010); see General Statutes §§ 46b-81 and 46b-82. “Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders, and [jJudicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) Casey v. Casey, 82 Conn. App. 378, 383, 844 A.2d 250 (2004).

This deferential standard of review is not, however, without limits. There are “rare” cases in which the trial court’s financial orders warrant reversal because they are, for example, “logically inconsistent”; see id., 379; or simply mistaken; see Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 423-24, 479 A.2d 826 (1984). We cannot countenance financial orders that are the product of mistake, even if they ultimately may be seen to be reasonable. “A decision that accidentally falls within allowable limits of discretion because of a computation error by the court cannot be allowed to stand. To stretch the concept of limited appellate review in [such cases] in order to find no error because the amount awarded may have been fair, would require this court to usurp the fact finding function of the trial court.” Id., 424.

The court’s computations underlying its estimation of the plaintiffs earning capacity were flawed. The court found that the plaintiff generated approximately $624,000 in annual fees for his firm, and then purportedly applied a 35 percent discount for uncollected fees. Applying this discount, the court calculated that the firm would collect $218,400. As the defendant correctly pointed out in her postjudgment motion, if 35 percent of the plaintiffs fees were not collected, he would realize $405,600 in fees. Continuing with the court’s method of calculation, deducting 60 percent for overhead expenses results in $162,240 in net income to the firm. Applying overhead expenses of 73 percent, as the court did in its alternative calculation, the plaintiffs work would result in $109,512 of net income. These figures differ significantly from those arrived at by the court— $95,659.20 with 73 percent overhead, and $131,040 with 60 percent overhead, compared with correctly computed figures of $109,512 and $162,240, respectively. If the court’s reasoning were consistent, the imputed earning capacity using the corrected figures would be approximately $146,000 rather than $120,000.

When this error was brought to the court’s attention in the defendant’s postjudgment motions, the court declined to alter its financial orders. Instead, it noted that the correct calculations, applying overhead expenses of 73 percent, resulted in a contribution to the firm of $109,512. This figure, the court asserted, was “in line with” the earning capacity it had assigned to the plaintiff. With respect to the retirement assets that the court had neglected to allocate, the court attributed its decision not to divide them to the terms of the plaintiffs alimony obligations.

The court’s failure to reconsider its financial orders, after being apprised of these significant errors, was an abuse of discretion. Once it was clear that the basis for the orders was flawed, they could not be salvaged by the court’s assertion that the errors were inconsequential. See Ehrenkranz v. Ehrenkranz, supra, 2 Conn. App. 422-24 (reversal required when there was error in computation underlying financial award, even though trial court claimed that disputed computation was “only ... a starting point” [internal quotation marks omitted]). The defendant was “entitled to overall financial orders which reflect the court’s discretion and are based upon the facts elicited and the statutory criteria.” Id., 424.

“[W]hen an appellate court reverses atrial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999); see also Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989) (where trial court miscalculated plaintiffs earning potential by 46 percent, remand only for reconsideration of alimony award inadequate because, “[t]o limit the remand . . . would impede the trial court’s ability to weigh the statutory criteria for financial orders to achieve an equitable result”). The rationale for requiring a reexamination of all of the aspects of the financial orders is their inherent interdependence. See Smith v. Smith, supra, 277. Indeed, this state’s appellate courts “have often described financial orders appurtenant to dissolution proceedings as entirely interwoven and as a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Id.

Therefore, on remand the court must reassess all of the financial orders, including its rejection of the defendant’s request for attorney’s fees. See General Statutes § 46b-62 (“the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82”); see also Utz v. Utz, 112 Conn. App. 631, 641-42, 963 A.2d 1049 (court’s allocation of attorney’s fees to defendant appropriate where spouses had disparate earning capacities and where requiring plaintiff to pay her own attorney’s fees would have “undermine [d] the purposes” of other financial orders), cert, denied, 291 Conn. 908, 969 A.2d 173 (2009).

II

We next address the defendant’s claim that the court erred by holding her in contempt for violating the automatic stay provisions imposed in dissolution proceedings by withdrawing money from the parties’ home equity line of credit for living expenses and legal fees incurred during the pendency of the proceedings. See Practice Book (2010) §§ 25-5 (a) (1) and (2). Specifically, the defendant argues that § 25-5 (a) (1) permits a party to dispose of marital assets for “reasonable attorney’s fees in connection with [the dissolution] action,” and that the court found the legal fees and costs incurred by the defendant to be “fair and reasonable given the litigation.” We agree with the defendant.

The following additional facts are relevant to the disposition of this claim. During the proceeding, the plaintiff twice filed motions for contempt, alleging that the defendant had borrowed approximately $60,000 against the parties’ home equity line of credit in violation of the automatic orders. In its memorandum of decision, the court granted the motions, but granted no further relief. The court made clear, however, that the contempt finding influenced its financial orders. The court noted that its decision to hold the parties responsible for their own attorney’s fees was “reflective of the order regarding the defendant’s contempt . . . .” The court also asserted that it was denying the defendant’s request for attorney’s fees on the ground that her legal expenses were offset by the amount of money she had withdrawn from the home equity line of credit. Thus, the defendant’s claim is that, although there was no practical relief granted with respect to the contempt order, the order in some fashion influenced, to her detriment, the court’s determination of whether she was entitled to attorney’s fees.

“The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. ... A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Brody v. Brody, 136 Conn. App. 773, 796, 61 A.3d 1121, cert. granted, 307 Conn. 910, 63 A.3d 998 (2012).

Practice Book (2010) § 25-5 (a) provides in relevant part: “The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage .... (1) Neither party shall sell, transfer, encumber (except for the filing of a lis pendens), conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.” Additionally, during the pendency of a dissolution action, “[n] either party shall incur unreasonable debts . . . including, but not limited to, further borrowing against any credit line secured by the family residence . . . Practice Book (2010) § 25-5 (a) (2).

The defendant argues that, in the absence of pendente lite alimony orders, she needed to borrow against the home equity line of credit for living expenses and attorney’s fees. She further states that it was the parties’ practice to use the equity line of credit to pay for household expenses. The court alluded to this practice in its memorandum of decision. Thus, the defendant contends, her borrowing was consistent with the parties’ “usual course of business” with respect to the home equity line of credit and was not in violation of the automatic orders.

The defendant additionally argues that the court’s contempt finding was improper because the automatic orders expressly approve the disposal of marital assets for reasonable legal expenses incurred during a dissolution proceeding. The court found that the defendant’s request for attorney’s fees, which totaled more than $66,500, was reasonable, but declined to award any portion of the request because she had purportedly violated the automatic orders.

The court’s contempt order was an abuse of discretion. It was inconsistent for the court to hold the defendant in contempt for withdrawing funds from the home equity line of credit, when the amount withdrawn was less than her attorney’s fees and the court determined the fees were reasonable. Moreover, in the absence of pendente lite alimony orders, and in light of the court’s finding regarding the defendant’s minimal income, it is not clear how she could have paid her own living and legal expenses independently. Under the circumstances, the court’s granting of the motion for contempt, and then using the contempt in fashioning the financial orders, was an abuse of its discretion.

in

The defendant’s next claim is that the court did not order sufficiently comprehensive discovery related to the finances of the plaintiffs firm. Specifically, the defendant claims that the court ordered inadequate discovery regarding the firm’s IOLTA account, thus precluding an accurate appraisal of the finances of the plaintiffs firm. We disagree.

The following additional facts are relevant to the resolution of this claim. Valuing the plaintiffs firm was a contentious issue at trial. One issue of particular concern was the firm’s use of its IOLTA account, which use the court characterized as “somewhat questionable.” The account was used to pay salaries to temporary employees who were family members, to pay bonuses to staff, and as a “personal account for Harry Traystman.” Harry Traystman testified, for example, that he had used the IOLTA account for “business ventures,” which were unrelated to the firm’s activities.

Shortly after the defendant retained new counsel on January 5,2011, she filed two motions to compel discovery. The plaintiff complied with all aspects of the motions to compel, except for the requests related to the IOLTA accounts, to which he objected. The court heard arguments on these discovery issues on February 3, 2011. At the hearing, the parties agreed that the plaintiff would produce three years of bank statements related to the IOLTA accounts. On February 18, 2011, as additional questions surfaced regarding the accounts, the court ordered that copies of cancelled checks for the same period be produced for in camera review. The court additionally requested that the defendant provide the court with a list of issues that should guide its review of the checks. After this review, the court issued an order on March 30, 2011, which was clarified on April 1, 2011, that the checks were to be produced to the defendant. The court required that “ [appropriate measures to protect client confidentiality can and should be taken.” Accordingly, any information identifying clients was redacted before the checks were produced. Checks that were payable to individuals or entities other than clients — for example, the firm’s members, employees and lenders — were not altered.

“With respect to the appropriate standard of review [regarding the court’s ruling on discovery], Practice Book § 13-14 (a) provides in relevant part that a trial court may, on motion [to compel production], make such order as the ends of justice require. Consequently, the granting or denial of a discovery request rests in the sound discretion of the court . . . and can be reversed only if such an order constitutes an abuse of that discretion. The ultimate issue in our review is, therefore, whether the trial court reasonably could have concluded as it did.” (Internal quotation marks omitted.) Shaw v. Freeman, 134 Conn. App. 76, 88-89, 38 A.3d 1231 (2012).

The court did not abuse its discretion in allowing the redaction of certain information from the documentation produced from the IOLTA accounts. The plaintiff disclosed three years of bank statements from the firm’s IOLTA accounts, along with the cancelled checks related to those statements. Analysis of this information led to the amendment of the firm’s and the plaintiffs tax returns. Moreover, the court allowed the defense witness, Villano, to testify regarding irregularities that he discovered in his review of the checks that were produced and the consequences of those irregularities on the firm’s value and income. Therefore, we cannot say that the court abused its discretion.

IV

The defendant finally claims that the court erred by denying her motion for disqualification of the trial judge, which was filed after the court issued its decision. See Practice Book § 1-23. Specifically, the defendant argues that the court erred by not recusing itself from deciding whether to award the defendant attorney’s fees to prosecute an appeal.

The defendant did not argue in her postjudgment motion, nor does she argue on appeal, that all of the proceedings should be vacated; her bias claim relates only to the corut’s decision regarding her request for attorney’s fees to prosecute an appeal. The defendant’s bias claim fails because it is, in essence, a claim that the sum of the court’s errors demonstrates bias. It is axiomatic, however, that an adverse or unfavorable ruling is not, in itself, evidence of judicial bias against a litigant. See Burns v. Quinnipiac University, 120 Conn. App. 311, 317, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010). “Moreover, the fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias.” (Internal quotation marks omitted.) Id. Although we reverse several rulings of the court, these rulings do not evince judicial bias against the defendant.

The judgment is reversed as to the financial orders and the contempt order and the case is remanded for further proceedings as to all of the financial orders; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff testified that he had “no idea” what percentage of his fees were collected, as he did not keep records related to this issue.

       The court defined overhead as business deductions, excluding depreciation and the compensation of officers.

       The court additionally ordered that the plaintiff pay the defendant’s health insurance costs for three years, or until she obtained her own insurance coverage. The court stated that these costs should be considered additional alimony.

       The court did not recalculate what the plaintiffs contribution to the firm would have been using the lower rate of overhead expenses (60 percent) that it had also utilized in its memorandum of decision.

       Apparently the plaintiffs retirement income could be useful in helping to fund alimony obligations.

       During the pendency of the proceedings, there were no pendente lite alimony orders in effect. See General Statutes § 46b-83.

       The automatic stay provisions that were in effect at the time of the service of process of the complaint in the present dissolution proceeding were revised, effective January 1, 2012. We therefore refer to the stay provisions of Practice Book (2010) § 25-5.

       The plaintiff failed to address this issue in his brief.

       In his motions for contempt, the plaintiff had requested that the court order the defendant to pay the attorney’s fees and costs of maintaining the contempt action.

       The court noted that, according to the defendant’s financial affidavit and her financial records, she was earning $165 a week from her business as a personal trainer.

       Rules of Professional Conduct 1.15 (a) (5) provides in relevant part: “ ‘IOLTA account’ means an interest- or dividend-bearing account, established by a lawyer of law firm for clients’ funds at an eligible institution from which funds may be withdrawn upon request by the depositor without delay. An IOLTA account shall include only client or third person funds, except as permitted by subsection (h) (6) [of the Rules of Professional Conduct].”

       The defendant also claims that the court’s perception of the tense relationship between the plaintiff and the defendant’s attorney, Denise Ansell, somehow caused the court to disfavor the defendant. Nothing in the court’s acknowledgment of a strained relationship between the plaintiff and Ansell is evidence of judicial bias.


author: ALVORD, J.

text:
    LITTLE MOUNTAINS ENTERPRISES, INC. v. DAVID GROOM ET AL.
    (AC 34287)
    Gruendel, Beach and Alvord, Js.

      Argued January 7
    officially released April 9, 2013

      Alan R. Spirer, for the appellant (plaintiff).

      Robert A. Fuller, with whom was George C. Guidera, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Little Mountains Enterprises, Inc., appeals from the judgment of the trial court, following a bench trial, in this breach of contract action against the defendants, David Groom, Dwight Groom and Thomas Groom, as trustees of the McKinney charitable trust, and David E. Groom, as ancillary executor of the estate of J. Donald McKinney. Although judgment was rendered in its favor, the plaintiff claims that the court failed to apply the proper measure of damages. We agree and, accordingly, reverse in part the judgment of the trial court.

The following facts were found by the court or are not disputed. On August 13, 2004, the parties entered into a written contract in which the defendants, as owners, agreed to sell undeveloped real property located in Weston (the premises) to the plaintiff for $1.26 million. A rider attached to the contract provided that the defendants “represent and warrant that the [premises consists of two building lots each approved for a five bedroom single family dwelling.” In making this representation, the defendants relied on the opinion of Robert P. Turner, the town’s zoning enforcement officer, that the division of the premises into two lots did not require subdivision approval. In reliance on the representation that the premises consisted of two building lots, the plaintiff purchased the premises and recorded the deeds conveying title on September 9, 2004.

By letter dated February 9, 2005, which was five months after the closing, Turner notified the plaintiff that he had received additional information regarding a previous division of the premises that affected the “subdivision status” of the two lots. Turner advised that he would be unable to issue any zoning permits for the premises until the matter was resolved. The plaintiff, without notifying the defendants about the zoning issues raised by Turner, applied to the town’s planning and zoning commission (commission) for approval of a two lot subdivision. On June 20,2006, the commission’s approval of the plaintiff’s application became final. At that point in time, the defendants still had no knowledge that the premises had not been divided properly and that the plaintiff had made expenditures, which it claimed totaled $262,987.23, in obtaining subdivision approval.

On September 14, 2007, the plaintiff filed the present action against the defendants. In its operative four count complaint, the plaintiff alleged breach of contract, fraudulent misrepresentation, negligent misrepresentation and innocent misrepresentation. The defendants filed an answer and five special defenses. During the two day trial in June, 2011, the plaintiff withdrew its claim of fraudulent misrepresentation. Following the submission of posttrial briefs, the court issued its memorandum of decision on December 6, 2011. In that decision, the court concluded that the defendants had breached the sales contract by failing to convey two building lots, each approved for a five bedroom single-family dwelling, as promised to the plaintiff. Although the defendants’ representation regarding the subdivision status of the premises was false, the court determined that the misrepresentation was made innocently, not negligently, in reasonable reliance on Turner’s opinion prior to the conveyance of title. The court further concluded that the defendants failed to prove their special defenses by a fair preponderance of the evidence. Neither the plaintiff nor the defendants have challenged those determinations.

The sole issue on appeal is whether the court’s calculation of damages for that breach of contract was appropriate. A careful review of the opinion reveals that the court took several factors into account in determining the amount to be awarded the plaintiff: (1) the plaintiff failed to notify the defendants of Turner’s letter dated February 9, 2005; (2) the defendants testified that they would have assisted the plaintiff in curing any defect related to zoning if they had been aware of the problem; (3) the plaintiff neglected to provide the defendants with “a reasonable chance to cure the defect in a cost effective manner”; (4) the plaintiff unilaterally “underwent costly measures to fix the problem itself’; (5) the plaintiff did not have the right “to accrue large amounts of damages because of the fact that the defendants [breached] the parties’ contract”; (6) the defendants “may have been able to fix the problems in a more cost effective manner” if the plaintiff had informed them of the zoning issues; (7) the plaintiff failed to provide the court with sufficient evidence regarding the difference in the value of the premises actually sold by the defendants and the value of the premises as represented; (8) the plaintiff sought $262,987.23 in damages, which was the amount it claimed it expended to cure the problems associated with the subdivision issues, but it was “not appropriate to award a large amount of damages based on cost of repair when the diminished value of the property [was] a low amount . . . effectively zero because the plaintiff [had] not carried its burden of proof on that issue”; and (9) a large damages award, as claimed, was particularly inappropriate because the defendants’ false statement was an innocent misrepresentation. In light of those stated considerations, the court awarded damages from the period September 9, 2004, when title passed to the plaintiff, to February 9, 2005, when the plaintiff became aware of the fact that it did not obtain two approved building lots. The court’s total damages award of $77,741.60 included surveying and engineering fees, real estate taxes and interest paid on the plaintiffs bank loans. This appeal followed.

The plaintiff claims that the court improperly declined to award the $262,987.23 in costs that it reasonably incurred in curing the problem that arose from the defendants’ breach of the contract. The plaintiff argues that the costs to cure the problem furnished a reasonable approximation of the diminished value of the premises as represented and as conveyed. The plaintiff maintains that the award of damages should have been calculated from September 9, 2004, the date title was transferred to the plaintiff, through June 3, 2006, when the breach was cured by the commission’s approval of a two lot subdivision. Although we do not agree precisely with the claims as presented by the plaintiff, we nonetheless remand this case for a redetermination of damages.

We begin our analysis with a statement of the standard of review. “The trial court has broad discretion in determining damages, and we will not overturn its decision unless it is clearly erroneous. . . . [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 set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 609, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000).

“[C]ontract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of the bargain by awarding a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed. . . . Such damages, moreover, are to be determined at the time of the breach. . . . The nonbreaching party has a duty to minimize any damages as a result of the breach.” (Citations omitted; internal quotation marks omitted.) Id., 610. “The standard measure of damages for breach of a contract for sale is the difference between the contract price and the market value of the property at the time of the breach . . . .” (Citations omitted.) Williams v. Breyer, 21 Conn. App. 380, 384, 573 A.2d 765, cert. denied, 215 Conn. 812, 576 A.2d 542 (1990). “The plaintiff has the burden of proving the extent of the damages suffered. . . . Although the plaintiff need not provide such proof with [m]athematical exactitude . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.” (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 224, 990 A.2d 326 (2010).

In Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978), our Supreme Court addressed the scope of a defendant seller’s liability for his innocent misrepresentation with respect to the condition of the house he sold to the plaintiff purchaser. After the conveyance, the house settled because of improper fill placed on the lot prior to construction, resulting in major foundation displacements and other damages. Id., 98-99. The trial court had determined that the defendant had no knowledge of the problem prior to the sale, either actual or constructive, but, nevertheless, found him hable; id., 99; and awarded $5000 in damages to the plaintiff. Id., 104. The Supreme Court concluded that, on the facts of the case, liability for innocent misrepresentation was entirely appropriate. Id., 102.

Both parties in Johnson challenged the amount of the damages awarded by the trial court. The plaintiff claimed that the award was inadequate because it did not measure damages by the cost of repairs. The defendant argued that the award was excessive because it did not measure the difference between the values of the property as warranted and as sold. Id., 104. Our Supreme Court first recited the general rule for contract damages as being such compensation as would place the prevailing party in the same position he would have enjoyed had the property been as warranted. The court then referenced its prior decision in Levesque v. D & M Builders, Inc., 170 Conn. 177, 365 A.2d 1216 (1976), in which it adopted a rule that limited the damages award to the diminished value of the building whenever the cost of repairs is dramatically larger than the difference in value. Johnson v. Healy, supra, 176 Conn. 105. Referring to the rule, the court stated: “Although the costs of repair may more precisely place the injured party in the same physical position as full performance, policy dictates limitation to diminution of value to avoid unreasonable economic waste. . . . Contract restraints are particularly appropriate when damages are awarded, as in this case, for misrepresentations which, though actionable, are totally innocent.” Id., 105-106. The court concluded that “[t]he proper test for damages was the difference in value between the property had it been as represented and the property as it actually was.” Id., 106.

In the present case, the plaintiff presented no evidence as to the difference in the values of the premises as warranted and as sold. Without that evidence, the court had only the costs of securing the subdivision approval as the plaintiffs claimed measure of damages. The court, however, without actually stating that such costs would constitute economic waste, did comment that the plaintiff did not provide the defendants with an opportunity to cure the defect in “a cost effective manner,” that the plaintiff “underwent costly measures” to obtain subdivision approval and that it had accrued “large amounts of damages” to remedy the breach. Not having evidence of the diminution in value and unwilling to award the $262,987.23 in costs claimed by the plaintiff, the court essentially awarded the damages that would have been recoverable had the plaintiff elected to rescind the contract when it learned of the zoning problems on February 9, 2005. Such an award, under the circumstances of this case, is clearly erroneous.

It is true that the plaintiff could have sought rescission of the contract as a remedy in this action. Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract. See State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 167, 70 A.2d 109 (1949). The material misrepresentation, when made in connection with the sale of land, may be an innocent misrepresentation. Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 298, 478 A.2d 257 (1984), overruled in part on other grounds by Kaczynski v. Kaczynski, 294 Conn. 121, 130-31, 981 A.2d 1068 (2009); see 17 S. Williston, Contracts (4th Ed. Lord 2000) § 50.29, p. 364. The party defrauded has the option of electing either to rescind the contract or to claim damages for breach of the contract. See Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 409-10, 456 A.2d 325 (1983). “The remedy of rescission and restitution is an alternative to damages in an action for breach of contract. . . . Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract. . . . Restitution is [a]n equitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she would have been, had the breach not occurred.” (Internal quotation marks omitted.) DeMattia v. Mauro, 86 Conn. App. 1, 11, 860 A.2d 262 (2004).

Here, the trial court awarded damages from the date the property was conveyed to the plaintiff until the date it learned that the property had not been properly divided into two building lots. In essence, the court treated the situation as if the plaintiff had rescinded the contract and awarded it restitution damages. The defendants argue that the court acted properly because the plaintiff, by failing to notify the defendants of the zoning issues and to afford them the opportunity to cure the defect, failed to mitigate its damages. They claim that the plaintiff should have rescinded the contract in order to mitigate its damages. This argument fails, however, because the plaintiff, as the non-breaching party, had the choice of rescinding the contract or claiming damages for breach of contract. The plaintiff chose to bring an action for breach of contract. It did not seek the remedy of rescission in its complaint, and, at trial, it expressly acknowledged that it never sought to rescind the contract. The defendants cite no authority, and we are aware of none, that would permit a court to force a nonbreaching party to rescind a contract and to accept restitution damages as its remedy. Accordingly, the trial court failed to apply the proper measure of damages for the defendants’ breach of the sales contract.

The judgment is reversed as to the award of damages only and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       None of the defendants received a copy of Turner’s letter.

       The plaintiff sought to recover all of the real estate taxes it had paid on the property from the time it took title in September, 2004, until the time of subdivision approval in June, 2006.

       Following the issuance of the court’s memorandum of decision on December 6,2011, the plaintiff moved for an award of attorney’s fees pursuant to paragraph 37 of the parties’ sales contract. The court awarded the plaintiff $22,522.50. The defendants have not challenged that ruling in this appeal.

       “This court has long recognized liability for innocent misrepresentation. The elements of this cause of action are (1) a representation of material fact, (2) made for the purpose of inducing the purchase, (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant and (5) damages.” (Internal quotation marks omitted.) Matyas v. Minck, 37 Conn. App. 321, 333, 655 A.2d 1155 (1995).

       The court noted that reasonable costs of repair may sometimes furnish a reasonable approximation of diminished value. Johnson v. Healy, supra, 176 Conn. 106.

       “The burden is on the claimant to present evidence which affords a reasonable basis for measuring loss.” Gerrety Co. v. Palmieri, 11 Conn. App. 226, 230, 526 A.2d 555 (1987).


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. JOSEPH MOORE
    (AC 33101)
    DiPentima, C. J., and Gruendel and Alvord, Js.
    Argued January 9
    officially released April 9, 2013

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, was Matthew C. Gedansky, state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

Following a trial, a jury found the defendant, Joseph Moore, guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and commission of a class B felony with a firearm in violation of General Statutes § 53-202k. The defendant then stipulated, in response to a part B information, that the aforementioned offenses were committed while on release in violation of General Statutes § 53a-40b. The defendant also pleaded guilty to a second part B information charging him with being a persistent felony offender in violation of General Statutes § 53a-40 (f). The court rendered a judgment of conviction in accordance therewith, from which the defendant now appeals.

On appeal, the defendant claims that (1) the court improperly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient to establish that he threatened the use of a firearm at the time of the robbery and (2) his sentence enhancement pursuant to § 53a-40 (f) runs afoul of the rule set forth in Apprendi v. New Jersey, 630 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 p.m. on July 13, 2009, the defendant entered the New Alliance Bank in Columbia wearing a white tank top and dark sweatpants. Branch manager Penny Ritchie and tellers Maria DePietro and Michelle LaLiberty, who were working at the bank that day, observed the defendant approach the check writer station. The defendant then asked another patron, David Woodward, where the withdrawal slips were located, at which point the defendant took a slip from the station and began to write on it. Photographs from the bank’s security cameras introduced into evidence depict the defendant writing on a piece of paper at the check writer station and then approaching the teller station with the piece of paper in his hand.

The defendant approached Ritchie and handed her a deposit slip that read, “Give cash. I have gun.” When Ritchie explained that she was not a teller, the defendant ordered her to “ ‘[g]ive me the cash. Give it now.’ ” Ritchie then slid the deposit slip to DePietro, who unlocked her teller drawer. As she did, the defendant demanded, “ ‘[hjurry up, hurry up,’ ” and reached over the counter. DePietro then handed the defendant $3600 in cash.

The defendant immediately exited the bank and Woodward followed. As Ritchie locked the bank’s doors and DiPietro called 911, LaLiberty closed the bank’s drive-through window. As she did, she saw the defendant walking at the rear of the bank to a grassy strip between the drive-through lane and an adjacent firehouse. LaLiberty wrote down a description of the defendant at that time. Approximately six hours later, the Connecticut state police apprehended the defendant in a grassy area near Route 66 in Columbia. The defendant subsequently reviewed and executed a waiver of Miranda rights form and agreed to speak with Detective Derek Kasperowski. The defendant then admitted to robbing the bank and stated that he remembered “smoking crack before going into the bank, going to the bank teller and telling her to give him money.” Although no firearm was found on the defendant’s person or the surrounding area, the $3500 in cash was recovered.

The defendant was arrested and charged, by substitute information, with robbery in the first degree in violation of § 53a-134 (a) (4) and commission of a class B felony with a firearm in violation of § 53-202k. The defendant also was charged, in separate part B informa-tions, with committing those offenses while on release in violation of § 53a-40b and with being a persistent felony offender in violation of § 53a-40 (f). After a trial, the jury found the defendant guilty of both robbery in the first degree and the commission of a class B felony with a firearm. The court subsequently found, consistent with the written stipulation entered into by the defendant, that the defendant committed those offenses while on release in violation of § 53a-40b. In addition, the defendant pleaded guilty to being a persistent felony offender in violation of § 53a-40 (f). The court sentenced the defendant to a total effective term of thirty-four years incarceration, and this appeal followed.

I

The defendant claims that the court improperly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient to establish that he threatened the use of a firearm during the commission of the robbery. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. St. Cyr, 100 Conn. App. 189, 194-95, 917 A.2d 578, cert. denied, 282 Conn. 915, 924 A.2d 140 (2007).

To convict the defendant of robbery in the first degree, § 53a-134 (a) (4) required the state to prove beyond a reasonable doubt that the defendant, while “in the course of the commission of the crime of robbery . . . displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” Similarly, § 53-202k required the state to prove that the defendant committed “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 . . . .” The defendant in this appeal does not contest the jury’s finding that he committed the robbery in question. Rather, his sole claim is that the evidence does not support a finding that he represented by his words or conduct that he possessed a firearm during the course of that robbery.

Contrary to the defendant’s contention, we conclude that a reasonable view of the evidence plainly exists that supports the jury’s finding that the defendant threatened the use of a firearm while committing the robbery. Ritchie, DiPietro and LaLiberty all testified at trial that the defendant entered the bank, proceeded to the check writer station and wrote on a deposit slip, which he then handed to Ritchie. Security cameras at the bank produced photographs of the defendant engaging in that act, which were introduced into evidence. The deposit slip, which contained the handwritten message “Give cash. I have gun,” also was introduced into evidence. Ritchie, DiPietro and LaLiberty all verified in their testimony at trial that the deposit slip introduced into evidence was the same note that the defendant handed to Ritchie during the commission of the robbery. They further testified that because the defendant had indicated that he possessed a gun, they immediately complied with his demand in order to prevent him from shooting anyone. On that documentary and testimonial evidence, which the jury was free to credit; see State v. Wortham, 80 Conn. App. 635, 642, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004); the jury reasonably could conclude that the defendant threatened the use of a firearm when, through his words and conduct, he represented that he possessed a firearm and demanded cash from bank employees.

The defendant nevertheless posits that “[a]s a matter of law, the defendant could not be convicted of robbery in the first degree, or of an enhanced sentence, when the state failed to prove that he was armed during the commission of the robbery.” He is mistaken. Under Connecticut law, the state is not required to prove that a defendant actually possessed a firearm to obtain a conviction under § 53a-134 (a) (4). Our appellate courts repeatedly have rejected that contention. See, e.g., State v. Dolphin, 195 Conn. 444, 449, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Moore, 100 Conn. App. 122, 132-33, 917 A.2d 564 (2007). As our Supreme Court held in State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978), under § 53a-134 (a) (4), “a defendant need not have an operable firearm; in fact, he need not even have a gun. He need only represent by his words or conduct that he is so armed.” (Emphasis in original.) Accord State v. Bradley, 39 Conn. App. 82, 93 n.10, 663 A.2d 1100 (1996) (“[a] conviction [under § 53a-134 (a) (4)] can result whether [or not] the defendant possessed a gun”), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). The Supreme Court rejected a similar challenge to sentence enhancements pursuant to § 53-202k, noting that the state need not prove that a defendant possessed a firearm “capable of discharging a shot.” State v. Brown, 259 Conn. 799, 810, 792 A.2d 86 (2002). As the court explained, § 53-202k contains two elements: “The first element is that the defendant has committed a class A, B or C felony. . . . The second element ... is that the defendant used, was armed with and threatened the use of, displayed, or represented by his words that he possessed a firearm as ‘firearm’ is defined in § 53a-3 (19).” Id., 807-808. The court ultimately held that a violation of § 53-202k may be proven by the representations of a defendant when no proof exists that the defendant actually possessed an operable firearm. Id., 810.

In light of the foregoing, the defendant’s claim fails. Accordingly, we conclude that the court properly denied his motion for a judgment of acquittal.

II

The defendant also maintains that his sentence enhancement pursuant to § 53a-40 (f) runs afoul of the rule set forth in Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny. The defendant failed to preserve this claim before the trial court and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review his claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Reynolds, 126 Conn. App. 291, 298, 11 A.3d 198 (2011).

The following additional facts are relevant to this claim. On December 14, 2010, the defendant appeared before the court for sentencing. At that time, he pleaded guilty to being a persistent felony offender in violation of § 53a-40 (f). As the court clerk stated: “[PJursuant to § 53a-40 (f) . . . Matthew C. Gedansky, state’s sttor-ney for the judicial district of Tolland, complains that [the defendant] is a persistent felony offender and charges that the [defendant] stands convicted of a felony other than a class D felony and has been at separate times prior to the commission of the present felony twice convicted of a felony other than a class D felony; to wit, on March 26, 2008, in the Superior Court [geographical area number fourteen] in Hartford the [defendant] was convicted of possession of narcotics in violation of . . . General Statutes § 21a-279 (a). On January 31,1996, in the Superior Court, judicial district of Hartford, the [defendant] was convicted of risk of injury [to a child] in violation of . . . General Statutes § 53-21. On February 6, 1996, in the Superior Court [geographical area number twelve] in Manchester, the [defendant] was convicted of sale of narcotics in violation of . . . General Statutes § 2 la-277 (a) and failure to appear in the first degree in violation of . . . General Statutes § 53a-172. On July 29, 1985, in the Superior Court, judicial district of Hartford, the [defendant] was convicted of robbery in the first degree in violation of ... § 53a-134 (a) (4). How do you plead, guilty or not guilty?” The defendant answered, “Guilty.” The court then thoroughly canvassed the defendant. The defendant at that time specifically indicated that he understood that, by entering his plea, he was giving up, inter alia, his rights to a jury trial, to confrontation and to remain silent. The defendant also indicated that he understood that the sentence enhancement under § 53a-40 (f) would increase his exposure from twenty to twenty-five years incarceration for the offense of robbery in the first degree. After canvassing the defendant, the court concluded that the defendant’s plea “is voluntary and understandably made with adequate assistance of counsel and strong factual basis.”

On appeal, the defendant contends that his constitutional rights, as articulated in Apprendi and its progeny, were violated “when the court rather than the jury considered factors, other than the defendant’s previous convictions” that allegedly “contributed to the increase of the defendant’s sentence beyond that approved by the jury verdict or guilty plea alone.” We readily reject that claim because it is well established that when a defendant knowingly, voluntarily and intelligently pleads guilty to a sentence enhancement provision, that defendant waives any right to a jury trial thereon.

For example, in Apprendi, the United States Supreme Court distinguished its earlier decision in Almendarez-Torres v. United States, 523 U.S. 224, 239, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), noting that “[b]ecause Almendarez-Torres had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own — no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court.” (Emphasis in original.) Apprendi v. New Jersey, supra, 530 U.S. 488. Likewise, in Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the court emphasized that “[o]ur precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.'” (Emphasis in original.)

In State v. Michael A., 297 Conn. 808, 819-21, 1 A.3d 46 (2010), the Connecticut Supreme Court expressly relied on that federal precedent in concluding that a defendant who pleads guilty to a sentence enhancement pursuant to the persistent felony offender statute, § 53a-40, necessarily waives any right to have a jury make the requisite factual findings thereunder. As the court explained, “[b]y entering his plea of nolo contendere, the defendant waived his right to a jury trial under the entire persistent serious felony offender statutory scheme — a scheme exclusively related to sentence enhancement. . . . Under the defendant’s plea, therefore, he waived his right to a jury trial . . . .” (Citation omitted.) Id., 821; see also State v. Velasco, 253 Conn. 210, 224, 751 A.2d 800 (2000) (“in pleading guilty to a persistent offender charge, the accused waives several constitutional rights, including the right to a jury determination of ultimate facts that trigger the enhanced sentence” [internal quotation marks omitted]); State v. Reynolds, supra, 126 Conn. App. 294 (“[w]e conclude that the defendant’s guilty plea on the persistent serious felony offender charge set forth in part B of the information necessarily and validly waived his right to a jury determination as to ... his guilt under part B of the information”).

The record substantiates the court’s finding that the defendant knowingly, intelligently and voluntarily pleaded guilty to being a persistent felony offender in violation of § 53a-40 (f), and the defendant does not argue otherwise in this appeal. As a result, he cannot demonstrate that a constitutional violation clearly exists, as required under Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       In the written stipulation signed by the defendant and dated October 25,2010, the defendant acknowledged that “[b] efore July 13,2009, at approximately 1:13 p.m., the defendant had been arrested and released pursuant to [General Statutes] §§ 54-63a to 54-63g inclusive, or §§ 54-64a [to] 54-64c inclusive, other than in violation of [General Statutes] § 53a-222, on two other charges and those charges remained pending on July 13, 2009, which would expose the defendant, if he is found guilty, to the enhancement pursuant to General Statutes § 53a-40b, to wit: On May 18, 2009, the [defendant] was arrested by the East Hartford police department and released pursuant to General Statutes § 54-63c; or On June 10, 2009, the [defendant] was arrested by the Connecticut state police and released pursuant to General Statutes § 54-63c.”

       The defendant claims that, in State v. Tomlin, 266 Conn. 608, 623, 836 A.2d 12 (2003), our Supreme Court held that any conviction for robbery in the first degree requires proof that a defendant actually possessed a firearm. Tomlin does not stand for that broad proposition, nor does it concern the offense of robbery; Tomlin involved a conviction for manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a (a) and 53a-55 (a) (3). Id., 610. In its discussion of lesser included offenses, Tomlin quotes State v. Dolphin, 203 Conn. 606, 617-18, 525 A.2d 609 (1987), as follows: “Robbery in the second degree requires that in the course of the commission of the crime [of robbery] or of immediate flight therefrom, [the accused] or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument. . . . Robbery in the first degree . . . however, requires that a person or another participant, in committing a robbery or in immediate flight therefrom, be armed with a deadly weapon.” (Internal quotation marks omitted.) State v. Tomlin, supra, 623. Yet, the actual language of Dolphin indicates that the aforementioned proposition applies to prosecutions under § 53a-134 (a) (2), as the full quote from that decision states that “[rjobbery in the first degree in violation of § 53a-134 (a) (2), however, requires that a person or another participant, in committing a robbery or in immediate flight therefrom, be aimed with a deadly weapon.” (Emphasis added.) State v. Dolphin, supra, 518; see also State v. Bradley, 39 Conn. App. 82, 93, 663 A.2d 1100 (1995) (possession of operable firearm “is a necessary element of robbery pursuant to § 53a-134 [a] [2]”), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). That precedent plainly is inappo-site to the present case, which concerns a prosecution under § 53a-134 (a) (4).

       In Apprendi, the United States Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, supra, 530 U.S. 490. Apprendi “thus applies to factual findings that serve to enhance a defendant’s maximum sentence beyond that allowable under the verdict alone.” State v. Walker, 90 Conn. App. 737, 742, 881 A.2d 406, cert. denied, 275 Conn. 930, 883 A.2d 1252 (2005).


author: DiPENTIMA, C. J.

text:
    DEAN FUSCO v. ROBBIN L. AUSTIN
    (AC 33723)
    DiPentima, C. J., and Beach and Sheldon, Js.

      Argued December 12, 2012'
    officially released April 9, 2013

      Richard F. Paladino, for the appellant (defendant).

      Ann Grunbeck Monaghan, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant, Robbin L. Austin, appeals from the judgment of the trial court ordering the partition by sale of certain residential real property jointly owned by the defendant and the plaintiff, Dean Fusco. On appeal, the defendant argues that the court erred in concluding that it had no statutory authority, absent a finding of “minimal interest,” to allow the defendant the opportunity to buy out the plaintiffs interest in the property. We disagree and, accordingly, affirm the judgment of the trial court.

The plaintiff commenced this action seeking a partition of certain residential real property owned by the parties as well as the return of certain personal property. The plaintiff also sought recovery for breach of contract and unjust enrichment. The defendant filed an answer, special defenses and a counterclaim alleging breach of contract, statutory theft, breach of the covenant of good faith and fair dealing and breach of fiduciary relationship.

Following trial, the court found the following facts. “The parties, who began dating in May, 1979, engaged in a long term romantic relationship but never married. On June 9, 1986, the parties purchased a single-family home located at 57 Nehantic Trail in Old Saybrook, Connecticut (hereinafter ‘the property’) as joint tenants with rights of survivorship. The parties purchased the property for $113,000 subject to a $98,000 mortgage held by Northeast Savings. The plaintiff contributed $11,000 at the closing while the defendant contributed $5790.48. As part of the closing on the property, the parties entered an agreement dated June 6, 1986, that involved their relative rights and responsibilities relating to the property (hereinafter ‘the partnership agreement’).

“The partnership agreement was handwritten by the plaintiff . . . who may have consulted the parties’ closing attorney, Haiman Clein, in its preparation. The partnership agreement provides, inter alia, that if the property is sold, the defendant will receive 55 percent of the net proceeds and the plaintiff will receive 45 percent of the net proceeds, subject to either party’s - claim for verified costs for property improvements. The partnership agreement also provides that the parties would ‘agree to rewite a new partnership agreement after 12 months from the date of closing .... If at that time an agreement cannot be realized between [the parties] then the property and dwelling will be placed for sale . . . .’ Over the course of the next twenty-three years, the parties never rewrote the partnership agreement, nor did they list the property for sale as required by the partnership agreement. The parties refinanced the property in 1994 and [at the time of trial, there remained] less than $18,750 due on the first mortgage.

“During the course of the parties’ cohabitation, the plaintiff procured several lines of credit on the property without the defendant’s permission or knowledge. [At the time of trial], the only line of credit [that remained] outstanding [bore] a debt of $108,000, for which the plaintiff stipulate[d] he [was] wholly responsible. The plaintiff voluntarily vacated the property in April, 2009. He attempted to return in June, 2009, but the defendant stipulate[d] that she denied him access to the [property]. The parties are no longer involved in a romantic relationship and . . . are currently incapable of cohabiting or maintaining a functional relationship.

“During the course of the parties’ cohabitation, the defendant was primarily responsible for satisfying the financial obligations involving the property while the plaintiff bore most of the responsibility for maintaining and improving the property. The plaintiff retained receipts over the course of the parties’ cohabitation, which were introduced into evidence at trial, representing almost $96,000 in costs he claimfed] he incurred related to improvements to the property. The evidence demonstrate^] that during the period of the parties’ cohabitation, their contributions ... to the property were relatively equal. The evidence demonstrate [d] that, with the exception of the line of credit for which the plaintiff . . . stipulated he bears full responsibility, the parties operated in good faith in relation to each other and that neither party engaged in illegal or unethical behavior as it related to the property and its contents during the period of their cohabitation.” The court further found the fair market value of the property to be $378,000, on the basis of the testimony of the plaintiffs appraiser.

At trial, the defendant argued that the court should order an equitable distribution of the property rather than ordering a sale, essentially requiring the defendant to pay the plaintiff the fair market value of his interest in the property in exchange for the transfer of the plaintiffs interest in the property to the defendant. The court found that this type of distribution is available only when the court finds that the party seeking partition holds a “minimal interest” in the property. Because this was not such a case, the court determined that a partition by sale was the only remedy that would suit the interests of the parties. Accordingly, the court ordered that the property be sold at auction, determined the priority of the sale proceeds and ordered that the remaining proceeds, if any, be divided equally between the parties. The defendant then filed the present appeal.

On appeal, the defendant argues that the court erred in concluding, as a matter of law, that it had no statutory authority, absent a finding of “minimal interest,” to allow the defendant the opportunity to buy out the plaintiffs interest in the property. The defendant essentially argues that General Statutes § 52-500 and Fernandes v. Rodriguez, 255 Conn. 47, 55, 761 A.2d 1283 (2000), do not preclude the court from allowing the defendant to buy out the plaintiffs interest in the property, within the realm of a partition by sale. We disagree.

We begin by setting forth our well settled standard of review regarding statutory interpretation. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . .

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextua! evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citation omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008).

“The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he become [s] such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it maybe exercised. Therefore the law affordfs] to every owner with another relief by way of partition . . . .” (Internal quotation marks omitted.) Fernandes v. Rodriguez, supra, 255 Conn. 55. “Historically, partition in kind has been the remedy of choice where owners of property do not want to be bound to each other through that ownership. Nonetheless, there [exist] circumstances in which physical partition is not feasible; therefore, [i]n Connecticut, an act extending the power of our courts to order a sale in partition proceedings was enacted in 1844.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 852-53, 784 A.2d 905, certs. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

In Fernandes v. Rodriguez, supra, 255 Conn. 54, our Supreme Court considered whether, when terminating the ownership relationship between the parties in a partition action, a court is limited to rendering a judgment of partition in kind pursuant to General Statutes § 52-495 or partition by sale pursuant to § 52-500. Specifically, the Supreme Court considered whether this court had properly determined that the trial court could order, as relief, the payment of money to the named defendant by the plaintiff, and an order that the defendant execute and deliver to the plaintiff a quitclaim deed to the subject property. Id., 48-49. The court concluded that “in a partition action, one joint tenant or tenant in common cannot dispossess another except by partition in kind or partition by sale.” (Emphasis in original.) Id., 54-55. In reaching its conclusion, the court stated: “On the basis of the history of the right to partition, and in light of the legislative treatment of that right, we have held repeatedly that in resolving partition actions, the only two modes of relief within the power of the court are partition by division of real estate and partition by sale. [A] court is limited to rendering a judgment of either partition in kind or by sale of the real property . . . thus terminating the ownership relationship between the parties. . . . Accordingly, remedies that fall outside the realm of partition in kind or partition by sale are not legally permissible . . . and a court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 57-58.

At the time that Fernandes was decided, General Statutes (Rev. to 1999) § 52-500 (a) provided: “Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interest of the owners.” Subsequent to Fernandes, the legislature enacted Public Acts 2004, No. 04-93, § 1, which added the following sentence to General Statutes (Rev. to 2005) § 52-500 (a): “If the court determines that one or more of the persons owning such real or personal property have only a minimal interest in such property and a sale would not promote the interests of the owners, the court may order such equitable distribution of such property, with payment of just compensation to the owners of such minimal interest, as will better promote the interests of the owners.” According to the defendant, the statute as amended does not preclude a right to buy out within the realm of a partition by sale. We conclude, however, on the basis of the clear and unambiguous language of the statute, that the court correctly held that such a remedy is available only where the court finds that the party seeking partition holds a minimal interest in the property.

As amended, § 52-500 (a) permits the court to order an equitable distribution of the property if it determines that one or more of the persons owning the property have only a minimal interest in the property and a sale would not promote the interest of the owners. Under these circumstances, the court may order the payment of just compensation to the owners of the minimal interest, as will better promote the interests of the owners. The court in the present case disagreed that the plaintiffs joint tenancy constituted a minimal interest in the property, particularly in view of the fact that he lived on the property for twenty-three years and acquired his interest at the same time the defendant acquired her interest. In its findings of fact, the court specifically found that during the period of the parties’ cohabitation, their contributions to the property were relatively equal. This finding has not been challenged on appeal. Because the statutory prerequisites necessary to ordering an equitable distribution of the property were not present in this case, the court properly concluded that this matter was controlled by Fernandes v. Rodriguez, supra, 255 Conn. 47. Although the court indicated that “some sort of equitable distribution is clearly . . . the best solution under the circumstances,” the court nonetheless properly held that it was without the power to order such a solution and properly ordered a sale as the only available remedy that would suit the interests of the parties.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court separately numbered each finding of fact. For convenience, these numbers have been omitted in this opinion. The substantive findings of fact are unchanged.

       On appeal, the defendant indicates that she is not requesting an order of equitable distribution; rather, she indicates that she is requesting the opportunity to redeem her interest in the property, by way of paying the plaintiff the amounts ordered by the court, within the realm of the partition by sale. In support of this argument, the defendant relies, in part, on those cases noting the authority of the trial court to order a private rather than a public sale in a partition action. See Rissolo v. Betts Island Oyster Farms, LLC, 117 Conn. App. 344, 351-52, 979 A.2d 534 (2009); Giulietti v. Giulietti, 65 Conn. App. 813, 852-53, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). In the present case, however, the defendant did not request a private sale at trial. The defendant argued, pursuant to General Statutes § 52-500, that the plaintiff had only a minimal interest in the property and, therefore, the court should order an equitable distribution of the property.

       In addition, the court rendered judgment in favor of the plaintiff, in part, on his claim for return of certain personal property, and in favor of the defendant on the plaintiffs remaining claims. The court also rendered judgment in favor of the plaintiff on the defendant’s counterclaim. It appears, however, that the court previously had granted the plaintiffs motion for summary judgment with regard to counts two (statutorytheft), three (breach of the covenant of good faith and fair dealing) and four (breach of fiduciary relationship) of the defendant’s revised counterclaim. Neither party has raised this as an issue on appeal.

       The defendant also argues that the court erred in failing to exercise its equitable powers when, after ordering a partition by sale, it failed to further order that the defendant be allowed to refinance and buy out the plaintiffs determined interest in the property, prior to any auction and in avoidance thereof, when the plaintiff had only an economic interest in the property and the defendant wished to remain in the home. Because that claim is inextricably intertwined with the defendant’s first claim, we need not separately consider this issue.

       General Statutes § 52-495 provides: “Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in tail. The court may appoint a committee to partition any such property. Any decrees partitioning entailed estates shall bind the parties and all persons who thereafter claim title to the property as heirs of their bodies.”

       General Statutes (Rev. to 1999) § 52-500 (a) provides: “Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.”


author: PER CURIAM.

text:
    THOMAS F. DESTEPH v. DEPARTMENT OF BANKING
    (AC 34465)
    Graendel, Alvord and Flynn, Js.
    Argued March 4
    officially released April 9, 2013

      Thomas F. DeSteph, pro se, the appellant (plaintiff).

      Patrick T. Ring, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

In this case, the plaintiff, Thomas F. DeSteph, filed an appeal from the final decision of the defendant, Howard F. Pitkin, commissioner of the department of banking, which made permanent a cease and desist order issued to the plaintiff relating to the sale of securities in violation of the Connecticut Uniform Securities Act, General Statutes § 36b-2 et seq., and regulations promulgated thereunder, and imposed a fine of $30,000 for three violations of it. The trial court rendered judgment dismissing the appeal.

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgment should be affirmed. On the facts of this case, the issues properly were resolved in the complete and well reasoned memorandum of decision by the trial court, Cohn, J. See DeSteph v. Dept. of Banking, 52 Conn. Sup. 550, 72 A.3d 470 (2012). We therefore adopt it as the proper statement of the relevant facts, issues and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See Nestico v. Weyman, 140 Conn. App. 499, 500, 59 A.3d 337 (2013).

The judgment is affirmed.


text:
    OSCAR MELENDEZ v. COMMISSIONER OF CORRECTION
    (AC 33513)
    Graendel, Beach and Alvord, Js.
    Argued January 7
    officially released April 9, 2013

      Mary H. Trainer, special public defender, for the appellant (petitioner).

      SusannE. Gill, supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Oscar Melendez, appeals following the denial of his petition for certification to appeal from the habeas court’s judgment denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and committed plain error when it refused to grant his oral request to withdraw his habeas petition. We dismiss the appeal.

In December, 2000, the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a) in connection with a 1998 incident. He was sentenced to thirty years incarceration. The petitioner’s conviction was affirmed on direct appeal. State v. Melendez, 74 Conn. App. 215, 811 A.2d 261 (2002), cert. denied, 262 Conn. 951, 817 A.2d 111 (2003).

The petitioner filed a writ of habeas corpus in 2004, and withdrew it. In July, 2008, the then self-represented petitioner filed a second writ of habeas corpus. In July, 2009, the petitioner’s motion for appointment of counsel was granted. In January, 2011, the petitioner, through counsel, filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of his trial counsel.

Trial was scheduled to commence on April 27, 2011. On that day, the court began by asking if there were any preliminary matters before the start of evidence. The petitioner stated that he wanted to “withdraw” and proceeded to explain to the court that his habeas counsel had not effectively communicated with him. During the canvass that followed, the petitioner asked: “Pit’s not withdrawing the whole habeas in totality, but it’s withdrawing from my attorney, right?” The court responded that it would not discharge the petitioner’s attorney because there had been no motion to that effect and because it was the day of trial. The petitioner continued: “I don’t want to lose out on my habeas, do you understand?” He further stated: “I more or less want to withdraw — you know, so I will be able to have another lawyer represent me . . . .” The court interpreted these statements as a request to discharge counsel and to continue the case. The court denied that request. The court reasoned that the petitioner had a histoiy of attempting to delay his case by discharging attorneys, and that he had filed a motion to withdraw counsel in a prior habeas action and then had withdrawn the petition.

The court stated, “[w]e shall go forward with the case,” and asked the petitioner’s counsel if he wanted to call witnesses. The petitioner interrupted: “I’m not going through with this. I can’t go through with it. I’m not going through with this.” The following exchange then occurred:

“[The Petitioner’s Counsel]: I believe my client wishes to withdraw, Your Honor, at this point.

“The Court: All right, well we’ve kind of been through this. I’m not convinced that he wants to withdraw, but I will ask him the questions again. Although, I think we are just going in circles here. Mr. Melendez, do you want to withdraw this habeas petition?

“The Petitioner: I want to withdraw from my attorney. ...

“The Court: Sir, I have already ruled on this. The question is: Do you want to go forward with the petition today or do you want to withdraw the petition?

“The Petitioner: See, that’s not what I’m understanding.

“The Court: Those are your options, sir.

“The Petitioner: I’m not understanding, sir. If it could be explained to me, I’m not understanding it.

“The Court: I think I did explain it to you and your attorney has explained it to you, sir. I have denied your motion to continue the case. So-

“The Petitioner: So, in order for it to be over, I could just withdraw and I’m out of here?” (Emphasis added.)

The court explained to the petitioner that he could withdraw his petition, but explained that if he later tried to refile a petition, he likely would encounter significant difficulties. The court, very plainly and patiently, asked the petitioner if he wanted to withdraw his petition at that time or to proceed with his petition. The petitioner again showed his confusion and stated that he wanted to “withdraw.” The court asked again if he wanted to withdraw his petition. The petitioner responded: “Yes, I want to withdraw from my lawyer, but I can’t do that that’s been denied; so it’s obvious my petition, sir.” The court then again canvassed the petitioner. The court asked the petitioner if he wanted to withdraw his petition, to which the petitioner responded: “Yes.” The court asked the petitioner if he was withdrawing his petition voluntarily, to which the petitioner said: “Yes, but I wanted to withdraw my lawyer that was my whole thing.” When the court asked if anyone was forcing him to choose to withdraw his petition, the petitioner stated: “I don’t feel comfortable making the choice I’m making because I would like to have an attorney . . . .” The court concluded that it was not accepting the withdrawal because it was not voluntary and the court did not want to force the petitioner to withdraw his petition.

The court stated that the habeas trial would proceed that day and that the petitioner, through counsel, may call any witnesses he would like. The petitioner, who was the only witness his counsel intended immediately to call to the witness stand, refused to testify. The respondent, the commissioner of correction, did not present any evidence. The court denied the habeas petition because no evidence had been presented to prove the petitioner’s claims. The petitioner filed a petition for certification to appeal, which the court denied. This appeal followed.

The petitioner claims that the court erred in denying his petition for certification to appeal. He also claims that the court committed plain error when it refused to grant his oral request for withdrawal because he had an absolute right to withdraw his habeas petition pursuant to General Statutes § 52-80, and that no exception to this absolute right applied. The petitioner further argues that, at the April 27, 2011 hearing, he knew what he was requesting and that he requested to withdraw his habeas petition. The petitioner requests that this court correct the record to reflect a withdrawal, rather than a decision on the merits.

“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion .... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... 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.” (Citation omitted; internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn. App. 860, 853-64, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 696 (2012).

The petitioner has not demonstrated that the court’s denial of his petition for certification to appeal was an abuse of discretion. The petitioner did not raise his claim regarding § 52-80 before the habeas court and did not raise his claim of plain error in his petition for certification to appeal; rather, he asserted error as follows: “1. Habeas court abused its discretion in denying the claims of ineffective assistance of counsel. 2. Attorney failed to include all claims.” The court could not abuse its discretion in denying the petition for certification about matters that the petitioner never raised. See Mercado v. Commissioner of Correction, 85 Conn. App. 869, 872, 860 A.2d 270 (2004) (habeas court did not abuse discretion in denying certification to appeal where petitioner did not raise claim of plain error in petition for certification), cert. denied, 273 Conn. 908, 870 A.2d 1079 (2005).

Additionally, reversal is not warranted in the circumstances of this case under the plain error doctrine. “[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine 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. . . .

“[When] we review claims of plain error . . . [f]irst, we must determine whether the court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the [party seeking plain error review] simply to demonstrate that [his] position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .

“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Citation omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009).

Section 52-80 provides in relevant part: “The plaintiff may withdraw any action . . . before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action . . . only by leave of court for cause shown.” If the requisite hearing has not commenced, then the plaintiffs right to withdraw is “absolute and unconditional.” (Internal quotation marks omitted.) Daigneault v. Consolidated Controls Corp./Eaton Corp., 89 Conn. App. 712, 714, 875 A.2d 46, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006). If, however, a hearing on an issue of fact has commenced, then, the action cannot be withdrawn without the court’s permission. Grimm v. Grimm, 74 Conn. App. 406, 409, 812 A.2d 152 (2002), cert. denied, 263 Conn. 911, 821 A.2d 766 (2003).

Here, there is a lack of clarity as to whether a “hearing on the merits” had commenced at the time the request to withdraw the habeas petition was finally denied. The case was scheduled to begin to be heard on its merits, and, as argued by the respondent, the court did not finally deny the request until after it had called for the testimony of the first witness. In addition, if any error occurred, it also was not plain error because it is not clear and obvious from the record what the petitioner was requesting. When the court inquired as to the petitioner’s first request, the petitioner asked, “[I]t’s not withdrawing the whole habeas in totality, but it’s withdrawing from my attorney, right?” He further stated: “I more or less want to withdraw — you know, so I will be able to have another lawyer represent me . . . .” The court interpreted this request as one to discharge counsel and to continue the case.

In the context of the second request, when the court asked the petitioner if he wanted to withdraw his habeas petition, after the court had asked for the first witness to testify, the petitioner stated: “I want to withdraw from my attorney.” The petitioner indicated numerous times that he was confused with the choices presented to him of proceeding with the hearing or withdrawing his petition. At one point, the petitioner stated: “Yes, I want to withdraw from my lawyer, but I can’t do that that’s been denied; so it’s obvious my petition, sir.” During the canvass, the petitioner answered affirmatively when the court asked him if he wanted to withdraw his petition, but stated that he wanted to discharge counsel because “that was my whole thing.” Even aside from the canvass, which the petitioner argues infringed on a claimed absolute ability to withdraw his petition, the petitioner’s responses were less than clear. The court quite clearly was attempting to preserve the petitioner’s ability to have his case decided on the merits. The effort to preserve the ability to proceed on the merits quickly came to naught only because the petitioner refused to testify.

The petitioner contends that the response, “Yes, I want to withdraw from my lawyer, but I can’t do that that’s been denied; so it’s obvious my petition, sir,” should be interpreted as a clear request to withdraw his habeas petition. This isolated portion of the transcript supports the proposition that the petitioner wanted to withdraw the petition; the transcript as a whole, however, shows vacillation and lack of appreciation of the consequences. Because the request was not clear nor was it clear that the hearing had not commenced, there was no clear error. In addition, in the circumstances here, the court’s action was not “fundamentally unfair or manifestly unjust.” Crawford v. Commissioner of Correction, supra, 294 Conn. 206. The plain error doctrine is invoked sparingly and is reserved for truly extraordinary situations. Id., 204. The petitioner’s claim does not present the type of extraordinary circumstances that would warrant application of the plain error doctrine.

The appeal is dismissed.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    CITY OF BRIDGEPORT v. CHARLES E. HARE ET AL.
    (AC 34667)
    Gruendel, Sheldon and Sehaller, Js.
    Argued February 5
    officially released February 26, 2013
   Per Curiam.

The judgment is affirmed.


text:
    TROY WESTBERRY v. COMMISSIONER OF CORRECTION
    (AC 33936)
    Beach, Alvord and Pellegrino, Js.
    Argued February 6
    officially released February 26, 2013
   Per Curiam.

The judgment is affirmed.


text:
    EUGENE BRYANT v. COMMISSIONER OF CORRECTION
    (AC 33673)
    DiPentima, C. X, and Gruendel and Harper, Js.
    Argued February 7
    officially released March 6, 2013
   Per Curiam.

The appeal is dismissed.


text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 4, LOCAL 1186 v. BOARD OF EDUCATION OF THE CITY OF NEW BRITAIN ET AL.
    (AC 34283)
    Robinson, Bear and Borden, Js.
    Argued February 13
    officially released March 5, 2013
   Per Curiam.

The judgment is affirmed.


text:
    CHRISTIAN D. WILLIAMS v. CATHIE CATON
    (AC 34767)
    DiPentima, C. J., and Gruendel and Harper, Js.
    Argued February 7
    officially released March 5, 2013
   Per Curiam.

The judgment is affirmed.


text:
    ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION v. RALPH ARCAMONE, JR., ET AL.
    (AC 34633)
    Beach, Robinson and Bishop, Js.
    Submitted on briefs February 4
    officially released March 5, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. STEPHEN JAMES MORAVSKY
    (AC 32551)
    Lavine, Alvord and Pellegrino, Js.
    Argued February 13
    officially released March 5, 2013
   Per Curiam.

The judgment is affirmed.


text:
    CARLTON T. MARTIN v. COMMISSIONER OF CORRECTION
    (AC 34194)
    Lavine, Robinson and Bear, Js.
    Submitted on briefs February 15
    officially released March 5, 2013
   Per Curiam.

The judgment is affirmed.


text:
    KENNETH GELORMINO v. COMMISSIONER OF CORRECTION
    (AC 32962)
    Robinson, Bear and Borden, Js.
    Argued February 13
    officially released March 5, 2013
   Per Curiam.

The appeal is dismissed.


text:
    ELIZABETH A. GAARY v. PATRICK J. GILLIS
    (AC 32980)
    DiPentima, C. J., and Lavine and Bishop, Js.
    Argued February 19
    officially released March 12, 2013
   Per Curiam.

The judgment is affirmed.


text:
    TROY GORDON v. COMMISSIONER OF CORRECTION
    (AC 33892)
    Gruendel, Robinson and Borden, Js.
    Argued March 5
    officially released March 26, 2013
   Per Curiam.

The appeal is dismissed.


text:
    ARTUR STRZALKOWSKI v. RENATA STRZALKOWSKI
    (AC 33984)
    DiPentima, C. J., and Bear and Flynn, Js.
    Argued March 6
    officially released March 26, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. TITO WADEN
    (AC 34304)
    DiPentima, C. J., and Bear and Sheldon, Js.
    Argued March 7
    officially released March 26, 2013
   Per Curiam.

The judgment is affirmed.


text:
    VINCENT A. CIMINO v. DRUCAS BUILDERS, LLC, ET AL.
    (AC 34282)
    DiPentima, C. J., and Gruendel and Borden, Js.
    Argued March 13
    officially released April 9, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RONALD A. SWINTON
    (AC 33613)
    Robinson, Alvord and Pellegrino, Js.
    Argued March 13
    officially released April 9, 2013
   Per Curiam.

The judgment is affirmed.