author: SCHABLER, J.

text:
    JILL M. CARASSO v. STEPHEN S. CARASSO
    (AC 22965)
    Schaller, DiPentima and Mihalakos, Js.

      Argued September 12
    officially released November 25, 2003

      Campbell D. Barrett, with whom were Jonathan P. Budlong and, on the brief, C. Michael Budlong, for the appellant-appellee (defendant).

      Mark H. Swerdloff, with whom, on the brief, was IleenP. Swerdloff, for the appellee-appellant (plaintiff).
   Opinion

SCHABLER, J.

The defendant, Stephen S. Carasso, appeals and the plaintiff, Jill M. Carasso, cross appeals from the judgment of the trial court granting the plaintiffs motion for contempt, and granting in part the defendant’s motion to modify alimony and certain orders concerning health and life insurance. On appeal, the defendant claims that the court improperly (1) determined his earning capacity and (2) adjudged him in contempt. On cross appeal, the plaintiff claims that the court improperly determined that (1) her earning capacity had changed and (2) a change in circumstances existed. We affirm the judgment of the trial court.

The court found the following facts. The parties’ marriage was dissolved in December, 1998. The order of the court required the defendant to pay to the plaintiff $700 a week in alimony. The defendant also was required to maintain health insurance for the plaintiff “comparable to the coverage that [the defendant] maintains for himself . . . .’’In addition, the defendant was required to maintain a $500,000 life insurance policy on himself with the plaintiff listed as the beneficiary. In its memorandum of decision, the court stated: “At the time of dissolution the defendant . . . [represented that he] received net income of $1701 per week and paid total weekly expenses of $2123. [The defendant] also indicated that [he] had total assets of $493,591 and owed total liabilities of $100,537.” The defendant’s net income was $88,452 and total expenses were $110,396. Despite that disparity, the defendant agreed to the $700 per week, or $36,400 annually.

In 2001, the defendant allowed the life insurance and health insurance policies to lapse and stopped paying alimony to the plaintiff. The plaintiff filed a motion for contempt, and the defendant filed a motion for a modification. The court found that the defendant was in contempt and that a change in circumstances existed. The court modified the dissolution judgment, ordering the defendant (1) to pay alimony of $500 per week, (2) to pay an alimony arrearage of $19,700, (3) to obtain a life insurance policy naming the plaintiff as the beneficiary and (4) to maintain health insurance for the plaintiff. These appeals followed.

I

The defendant first claims that the court improperly determined his earning capacity. The defendant makes two separate arguments; first, he argues that the court improperly used his level of spending as a factor in determining his earning capacity, and second, he argues that the court’s determination of his earning capacity was based on speculation and conjecture. We disagree.

The following additional facts, found by the court, are necessary for the resolution of the defendant’s claim. At the time of dissolution, the defendant had total assets of $493,591. At the modification and contempt hearing, the defendant had total assets of $999,007. Part of the assets consisted of a beach club that the defendant owned wdth his extended family and 96 percent ownership in a New York City health club.

At the modification and contempt hearing, the defendant testified that he was experiencing financial difficulty. He testified that his expenses were $2852 per week and that he was operating at a net loss of $525 per week. He claimed that he did not draw a salary from either business.

The court did not find the defendant’s testimony credible. Regarding the value of the specific assets, the court held that the “defendant’s beach club and health club holdings were undervalued” because he had used a valuation of those assets from five years previously. Further, although the health club was not as profitable as it had been, it continued to pay “$315 per week toward the defendant’s personal expenses. This amounts to a total of $16,380 in annual payments, which are made on the defendant’s behalf. One of the expenses is for a Mercedes Benz automobile, which the [health club] leases for the defendant at the rate of $786 per month.” Additionally, the defendant received a distribution of approximately $20,000 per year from the beach club. The defendant also had approximately $500,000 that was left from the sale of real estate assets that originally produced a $2 million profit.

The court also found that the defendant had significant expenses that he was able to pay. The defendant was current on his $3612 per month mortgage payment for his six bedroom home. In addition, the defendant was current on all of his real estate tax obligations associated with the house. He also employed a maid, at approximately $80 per week, and a gardener, at approximately $8000 per season. The court found that the defendant paid $1837 per week in expenses. The court held that the defendant was personally paying approximately $60,000 per year in expenses with an additional amount being paid by the health club.

The court held that the “defendant earns, or has the present capacity to earn, approximate total gross income of at least $100,000 per year. The court [based] this finding on the following: (1) the level of the defendant’s annual spending, which exceeds $100,000 per year; (2) the evidence that the defendant historically receives $20,000 each year from the beach club profits; (3) the amount of money remaining in the defendant’s investment accounts, which the court finds could generate interest and dividend income of at least $18,000 per year if invested prudently; (4) the evidence that the defendant’s health club business has continued to pay $315 per week, or $16,380 per year, toward his personal expenses; and (5) the evidence concerning the defendant’s college degree [in finance] and extensive business and investment expertise, which leads this court to conclude that he could earn a gross salary of at least $60,000 per annum.” Those calculations led the court to conclude that the defendant was currently earning, or had the present capacity to earn, a net income of $70,000.

The standard of review is well established. On appeal, we will not disturb the factual findings of the court unless the findings are not based on evidence in the record and are clearly erroneous. See Werblood v. Birnbach, 41 Conn. App. 728, 730-31, 678 A.2d 1 (1996).

A

The defendant’s first argument, which is that the court improperly used his spending as a factor in determining his income, fails. “Lifestyle and personal expenses may serve as the basis for imputing income where conventional methods for determining income are inadequate.” McCormick v. McCormick, 159 Vt. 472, 477, 621 A.2d 238 (1993); see also Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979) (husband’s actual income must be higher than $173 when he was able to make support payments of $225); Palazzo v. Palazzo, 9 Conn. App. 486, 487, 519 A.2d 1230 (1987) (husband’s lifestyle, but not spending, used as factor in determining income). In McCormick, the Vermont Supreme Court upheld a trial court’s decision to impute income to a father on the basis of the father’s expenses. There, the trial court stated that “ ‘there is a significant discrepancy between the amount of income claimed by the [father] and his total expenses.’ ” McCormick v. McCormick, supra, 476. Further, the trial court found that the father’s testimony regarding his income was not credible. Id. The Vermont Supreme Court held that “[b]ecause the father’s evidence was not credible, we find no error in . . . the court’s decision to apply income imputation based on expenses.” Id., 477.

In this case, the court did not find the defendant to be credible with regard to his financial status, and specifically held that “the defendant undervalued his interest in the beach club and health club businesses . . . .” The court could not rely on conventional methods of determining income, e.g., pay stubs, because the defendant claimed that he did not draw a salary from his businesses. Because the court did not find the defendant credible, the court did not abuse its discretion when it used his spending level as a factor in determining his income in the absence of other methods of determining income. See McHenry v. McHenry, 424 A.2d 1067, 1068 (R.I.1981) (court examined defendant’s lifestyle, expenses In determining income when court believed defendant untruthful).

B

The defendant next argues that the court improperly based its determination of his earning capacity on speculation and conjecture. “In a marital dissolution proceeding, the court may base financial awards on earning capacity rather than actual earned income of the parties. . . . While there is no fixed standard for the determination of an individuars earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Citations omitted; internal quotation marks omitted.) Bleuer v. Bleuer, 59 Conn. App. 167, 170, 755 A.2d 946 (2000).

We conclude that the court properly determined the defendant’s earned income on the basis of the evidence before it. As set forth, the court was justified in relying on the defendant’s spending in determining his earning capacity. The court could rely on the historical production of the beach club to determine that it would continue to produce $20,000 per year. The court could reasonably base its finding of $18,000 in investment income on the evidence that the defendant still had $500,000 and had significant financial acumen. The court could consider the defendant’s ability to salvage $2 million in profit from the sale of assets in foreclosure and his college degree in finance as indicators of his financial acumen. The evidence regarding the health club’s payment of expenses was uncontested. Regarding the finding that the defendant could earn a gross salary of $60,000, the court reasonably could have based its conclusion on the fact that at one time, he had net earnings of approximately $88,000 per year. That conclusion was buttressed by the defendant’s financial sophistication and interest in the health and beach clubs.

No single piece of evidence alone would support the court’s holding; when the evidence is taken together, however, it provides the underpinning for the fair and reasonable conclusion that the defendant was either earning, or capable of earning, a significant amount of money. The court’s finding that the defendant was earning or could earn $100,000 was not clearly erroneous.

II

The defendant’s second claim is that the court improperly adjudicated him in contempt for failing to pay alimony to the plaintiff. The defendant argues that the court improperly determined that he could pay the contempt order because the court based its decision on the mistaken conclusion that he was earning or could earn $100,000. We disagree.

“ [0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the con-temnor, through no fault of his own, was unable to obey the court’s order.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998).

Because we have concluded that the court’s finding that the defendant was earning or could earn $100,000 was not clearly erroneous, we conclude that the court’s decision that he could pay the alimony arrearage was not improper. The defendant makes no other arguments in support of his claim.

Ill

On the cross appeal, the plaintiffs first claim is that the court improperly determined that her earning capacity had changed. The plaintiff argues that the court lacked the evidence to determine her earning capacity. We disagree.

The following additional facts, found by the court, are necessary for the resolution of the plaintiffs claim. At the time of the dissolution, the plaintiff represented that she had no employment earnings. Her only income was $675 weekly, which she received as pendente lite alimony. Her weekly expenses were $1026. The court stated in its memorandum of decision: “Her total assets were $436,485, and her total liabilities were $90,199.”

At the hearing, the plaintiff testified that after the dissolution, she began auditing business courses at Rice University. In addition, the plaintiff worked as a receptionist for six months and managed to earn $14,000 in that year. The plaintiff explained that she currently works as a personnel recruiter for her sister’s company. The plaintiff denied that she earned a salary and claimed to have made very little money in commissions. The plaintiff admitted that she had not listed some of her accounts on her financial affidavit. The financial affidavit did reveal, however, that the plaintiff earned $346 per week in interest from her investment accounts.

The court did not find the plaintiffs testimony in that regard to be credible. Rather than rely on the plaintiffs testimony, the court determined her earning capacity. The court found that the “plaintiff has the present capacity to generate a total gross income of approximately $38,000 per annum. . . . The plaintiff appears to be healthy and capable, and has held several jobs in the past. Based on the evidence presented . . . the court finds that she has the present capacity to earn gross income of $20,000 per year, or $384.61 per week. In addition, the plaintiff earns approximately $18,000 per year in interest income. Adjusting the combined gross income figure of $38,000 for state and federal tax, medicare and social security deductions, the court finds that the plaintiff has the present capacity to generate net annual income of $28,500, or $548 per week.”

As set forth in part I, we subject the court’s factual conclusions to a deferential review; we will overturn a court’s factual conclusions only if they are not based on evidence in the record and are clearly erroneous. See Werblood v. Birnbach, supra, 41 Conn. App. 730-31. “Earning capacity ... is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” Lucy v. Lucy, 183 Conn. 230, 234, 439 A.2d 302 (1981).

The court properly determined the plaintiffs income. The court had before it evidence that the plaintiff had earned approximately $14,000 per year. The court reasonably could have concluded that the plaintiff was more employable because of her increased education. The court’s conclusion that the plaintiff earned $18,000 per year in interest also is supported by the evidence. The plaintiffs financial affidavit revealed that she was receiving $346 per week in interest.

The plaintiff argues that this case is similar to Schmidt v. Schmidt, 180 Conn. 184, 190-91, 429 A.2d 470 (1980), in which our Supreme Court held that the trial court’s determination of earning capacity was improper because there was no evidence on which to base the amount of income. Schmidt is distinguishable from the present case because in this case, the court had specific evidence of the plaintiffs earnings. Although the evidence of earnings was dated, it still provided a basis for the court to determine the plaintiffs earning capacity. See McKay v. McKay, 174 Conn. 1, 2, 381 A.2d 527 (1977). The court’s determination that the plaintiff could earn a gross income of $38,000 per year was not clearly erroneous.

IV

The plaintiffs second claim is that the court improperly determined that changed circumstances existed. The plaintiff argues that the court’s determination of changed circumstances regarding alimony, and its determination that circumstances had not changed regarding health and life insurance are logically inconsistent. The plaintiff urges us to conclude that the court improperly made the initial finding of changed circumstances. We disagree.

On appeal, we review the court’s decision to determine whether the court abused its discretion. See Bleuer v. Bleuer, supra, 59 Conn. App. 169; see also LaBow v. LaBow, 13 Conn. App. 330, 345, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “[E]very reasonable presumption will be given in favor of the trial court’s ruling, and [n] othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Bleuer v. Bleuer, supra, 169.

The plaintiff misinterprets the court’s decision and the dissolution judgment. The court held that “the agreement, which was incorporated into the dissolution judgment, clearly stated that the defendant’s payments of medical insurance premiums ‘shall be considered as additional alimony.’ The court finds that the order requiring the defendant to maintain medical insurance for the plaintiff was in the nature of alimony . . . .” Similarly, the “defendant’s obligation to maintain life insurance coverage would continue during the term of his obligation to pay alimony. . . . [T]he court finds that the life insurance order was intended to secure an alimony obligation.”

In Borkowski v. Borkowski, 228 Conn. 729, 736-37, 638 A.2d 1060 (1994), our Supreme Court held that a trial court considering the modification of a dissolution decree may consider the same factors used to determine the initial award of alimony. General Statutes § 46b-82 gives the court discretion when determining the initial alimony award. As the insurance obligations were considered alimony substitutes, the court reasonably could decide to modify one aspect of the defendant’s alimony obligations, i.e., the money payments, without modifying other aspects, such as providing insurance. The court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that it is not clear whether the court was considering the defendant’s earning capacity or his actual undisclosed earnings. The difference is irrelevant for this analysis because in either situation, the court would have to impute income to the defendant on the basis of the evidence presented.

       The defendant reaped a profit of $2 million despite the fact that the assets had been in foreclosure.

       The defendant cites Miller v. Miller, 16 Conn. App. 412, 417, 547 A.2d 922, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988), and argues that stocks are too speculative to predict a rate of return. Miller is factually distinguishable; the Miller court was addressing the issue of the fluctuations of income from dividends. That is not the issue here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROBERT BOYD v. COMMISSIONER OF CORRECTION
    (AC 23325)
    Lavery, C. J., and Schaller and DiPentima, Js.
    Submitted on briefs October 30
    officially released November 25, 2003

      Richard C. Marquette, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, and James A. Killen and Linda N. Howe, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Robert Boyd, appeals following the denial by the habeas court of his petition for a writ of habeas corpus and his petition for certification to appeal. We dismiss the appeal.

This appeal stems from an incident that occurred in September, 1992, between the petitioner and his then girlfriend’s minor daughter. The defendant, subsequently, was arrested and charged with one count of kidnapping in the first degree in violation of General Statutes § 53a-92a (2) (a), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and one count of risk of injury to a child in violation of General Statutes § 53-21. The petitioner was able to post pond and was free until he pleaded nolo contendere, during jury selection, to one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and one count of risk of injury to a child in violation of § 53-21. The petitioner received an effective sentence of eight years in the custody of the respondent commissioner of correction, execution suspended after two years, with five years of probation. While the criminal prosecution was pending and through sentencing, the petitioner was represented by a public defender and a special public defender, in seriatim.

In 1998, the petitioner filed a petition for a writ of habeas corpus in which he alleged that (1) his plea of guilty was not voluntary due to abandonment of counsel, (2) his sentence was illegal, (3) there were trial irregularities because certain evidence was not introduced and (4) he received ineffective assistance of counsel. The habeas court denied the petition, primarily on the basis of the lack of credible evidence. The court also denied the petition for certification to appeal.

The petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right and, further, he has failed to sustain his threshold burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Cooper v. Commissioner of Correction, 53 Conn. App. 494, 496, 732 A.2d 778 (1999), quoting Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997).

The appeal is dismissed.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JAMES SERVELLO
    (AC 22759)
    Lavery, C. J., and Bishop and Mihalakos, Js.

      Argued September 8
    officially released December 2, 2003

      William B. Westcott, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, James Servello, appeals from the judgment of conviction, rendered after a jury trial, of three counts of perjury in violation of General Statutes § 53a-156, one count of forgery in the second degree in violation of General Statutes § 53a-139 and one count of fabricating physical evidence in violation of General Statutes § 53a-155. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction on the first count of perjury, (2) his conviction of forgery in the second degree and fabricating physical evidence violates constitutional prohibitions against double jeopardy, and (3) his conviction of three counts of perjury violates constitutional prohibitions against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 1, 1992, the defendant pleaded guilty under the Alford doctrine to one count of arson in the third degree in violation of General Statutes § 53a-113 (a) and one count of criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1). On October 16, 1992, he was sentenced to twelve years imprisonment under the terms of a plea agreement.

The defendant later filed a petition for a writ of habeas corpus, challenging his sentence and plea agreement. Specifically, the defendant alleged that the terms of his plea agreement were different from the terms to which he had agreed with his attorney. The defendant claimed that he was to plead guilty to the reduced charge of reckless burning in violation of General Statutes § 53a-114 and criminal mischief in the second degree in violation of General Statutes § 53a-116, and be sentenced to six years imprisonment, execution suspended after four years.

On September 23, 1997, a hearing was held on the defendant’s habeas petition. There, the defendant testified that (1) prior to his plea and sentencing, his then attorney, Patrick Wall, told him that in exchange for pleading guilty to charges of reckless burning and criminal mischief in the second degree, he would receive a sentence of six years, suspended after four years; (2) on August 31, 1992, at the Litchfield Superior Court, Wall handed him a letter that memorialized the plea agreement; and (3) on September 1, 1992, during his guilty pleas, as the courtroom clerk read different charges and a longer proposed sentence than he had earlier discussed with his counsel, he protested to his attorney, who told him not to be concerned because the agreement with the state for lesser charges and a lesser sentence was still intact. Additionally, the defendant claimed that attorney Wall had told him how to respond to the judge’s questions. At the habeas hearing, the defendant also placed in evidence a letter allegedly written by Wall, describing the plea agreement and sentence that he was to receive.

On September 18, 2001, in connection with the defendant’s habeas testimony, the state charged the defendant with three counts of perjury, one count of forgery in the second degree and one count of fabricating evidence. The defendant’s trial commenced on October 9, 2001. At trial, Wall testified that on September 1, 1992, he had extensive discussions with assistant state’s attorney David Shepack and the defendant regarding a possible plea arrangement to dispose of the charges against the defendant. Wall stated that all the parties had reached an agreement that the defendant would plead guilty to arson in the third degree and criminal mischief in the first degree for which he would receive an effective sentence of twelve years imprisonment. Wall further testified that in the plea discussions, neither the charge of reckless burning nor that of criminal mischief in the second degree was ever mentioned. He also denied writing the August 31,1992 letter that the defendant used in his habeas proceeding. Additionally, Wall testified that at no point during the plea canvass on September 1, 1992, did the defendant protest the charges recited by the courtroom clerk or the proposed sentence.

Connie Favuzza, Wall’s secretary, testified that neither she nor anyone else in Wall’s office produced the August 31, 1992 letter. She explained that all letters from Wall’s office on letterhead were written on bond paper whereas the August 31, 1992 letter, although on letterhead, was printed on plain copy paper. She also noted that both the typeface and the format of that letter were inconsistent with the typeface and format used by Wall’s office.

Shepack testified as to the September 1, 1992 plea negotiations with Wall. He stated that he never offered to reduce the charges against the defendant to reckless burning and criminal mischief in the second degree, and that he had been unwilling to reduce the defendant’s proposed period of incarceration to a term of less than twelve years. Last, Shepack testified that he watched the defendant during the plea canvass and did not see him turn to his attorney to question either the charges or the sentence that was being proposed. On October 15, 2001, the jury returned a verdict of guilty on all three counts of perjury, one count of forgery in the second degree and one count of fabricating physical evidence. Thereafter, on January 18,2002, the defendant was sentenced to a total effective term of fifteen years incarceration to serve and twenty years special parole.

I

The defendant first claims that there was insufficient evidence before the jury to sustain his conviction on the first count of perjury. Specifically, the defendant argues that there was insufficient evidence to corroborate the element of falsity. We disagree.

The standard of review we apply to a claim of insufficient evidence is well established. “In reviewing the sufficiency of the evidence to support a criminal conviction we 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 616, 682 A.2d 972 (1996).

“In reviewing the sufficiency of the evidence in a case involving a conviction for perjury . . . there is an additional inquiry: whether the evidence is sufficient to satisfy the requirements of the so-called one-witness-plus-corroboration rule. . . . Under this rule, a perjury conviction cannot be based solely upon the testimony of a single witness; it must also be based on corroborative evidence that tends to establish the falsity of the statement, independently of the principal] evidence that it corroborates.” (Citation omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 386, 796 A.2d 1191 (2002).

Viewed in the light most favorable to the state, we conclude that there was ample evidence to support the conviction on the first count of perjury. The state charged the defendant in count one of the information with having committed perjury at the habeas hearing by testifying that Wall had informed him in 1992 that he would be sentenced to six years incarceration, suspended after four years, on the charges of reckless burning and criminal mischief in the second degree. As proof of the element of falsity, Wall testified that he never told the defendant that he could plead to the lesser charge. Wall also testified that a lesser charge was never discussed during the plea negotiations. To corroborate that evidence, Shepack testified that he and Wall had never discussed a plea to reckless burning or criminal mischief in the second degree. Additionally, Shepack stated that he had never considered offering the defendant a prison term of less than twelve years. That evidence was sufficient to corroborate Wall’s testimony that the defendant’s testimony was false.

The defendant’s argument that Wall’s testimony could be corroborated only by direct evidence reflects a misunderstanding of the “one witness plus corroboration rule.” Although “[t]he purpose of the rule [is] to prevent ill-founded retaliatory attack by perjury prosecution upon a witness on no more than the contrary oath of another”; (internal quotation marks omitted) State v. Sanchez, 204 Conn. 472, 478, 528 A.2d 373 (1987); our case law does not require the kind of direct evidence that the defendant argues is necessary. See State v. Meehan, supra, 260 Conn. 387-88. Circumstantial evidence is sufficient to corroborate the element of falsity in perjury. Id. On that record, the jury reasonably could have found Shepack’s testimony corroborative of Wall’s testimony. Accordingly, the defendant’s first claim must fail.

II

We next turn to the defendant’s claim that his conviction of forgery in the second degree and fabricating physical evidence violates the prohibition against double jeopardy. The defendant claims that his conviction of both those offenses arose out of the same transaction or occurrence and constituted double punishment for the same offense. We disagree.

Because the defendant’s claim presents an issue of law, our review is plenary. See State v. Butler, 262 Conn. 167, 174, 810 A.2d 791 (2002). Although the defendant did not preserve his claim for appellate review, we find that it is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as the record is adequate for review, and the claim is of constitutional magnitude and of a nature that has been found to meet the Golding requirements automatically. See State v. Cotton, 77 Conn. App. 749, 764, 825 A.2d 189, cert. denied, 265 Conn. 911, 831 A.2d 251 (2003). The claim, however, fails to satisfy the third prong of Golding because no double jeopardy violation occurred.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb .... This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment.” (Internal quotation marks omitted.) State v. Sanchez, 75 Conn. App. 223, 232, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003). “[Our Supreme Court has] also held that the due process guarantees of article first, § 9, of the Connecticut constitution include protection against double jeopardy.” (Internal quotation marks omitted.) State v. Gonzalez, 74 Conn. App. 580, 595, 814 A.2d 384, cert. denied, 263 Conn. 915, 821 A.2d 771 (2003).

“In the context of a single trial, the double jeopardy analysis is a two part process. . . . First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged dimes are the same offense. . . . [T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. . . . The issue, though essentially constitutional, becomes one of statutory construction.” (Internal quotation marks omitted.) State v. Perez, 78 Conn. App. 610, 639, 828 A.2d 626 (2003).

Because it is undisputed that the charges arose out of the same act, we direct our inquiry to whether the charged crimes constitute the same offense. “The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. ... In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Internal quotation marks omitted.) State v. Cotton, supra, 77 Conn. App. 765.

In this instance, we conclude that the two offenses constitute the “same offense” under a Blockburger analysis because only one of the offenses requires proof of an additional fact that the other does not. State v. Otto, 50 Conn. App. 1, 19, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998). “Our analysis of double jeopardy claims does not end, however, with a comparison of the offenses. The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where . . . there is a clear indication of contrary legislative intent.” (Internal quotation marks omitted.) State v. Perez, supra, 78 Conn. App. 641. “The determinative question is whether the legislature intended the offenses to be separate.” State v. Braswell, 42 Conn. App. 264, 269, 679 A.2d 407 (1996), appeal dismissed, 243 Conn. 248, 701 A.2d 1057 (1997).

To answer that question, we first look to the language of each statute to determine if the legislature intended multiple punishments for each offense. See State v. Perez, supra, 78 Conn. App. 642. The clear language of the statutes does not indicate an express intent by our legislature that a person convicted of forgery in the second degree could not also be convicted of fabricating evidence for the same act. “Since the legislature has shown that it knows how to bar multiple punishments expressly when it does not intend such punishment”; State v. Greco, 216 Conn. 282, 295, 579 A.2d 84 (1990); the absence of similar language in those statutes provides evidence that the legislature intended cumulative punishments. See, e.g., State v. Perez, supra, 642 (noting numerous statutes in which legislature forbade multiple punishments for same transaction).

To further guide our inquiry, we next turn to the purpose of each statute. State v. Braswell, supra, 42 Conn. App. 270. The statute making criminal the fabricating of evidence is found in part XI of our Penal Code, which addresses offenses against the administration of justice. Statutes found in that section address crimes that effect a fraud or harm to the court. The purpose of those statutes is to punish those who interfere with the courts and our system of justice.

The statute making criminal the act of forgery, on the other hand, is found in part X of our Penal Code, which addresses forgery and related offenses. Statutes in that section address forgery in varying degrees as well as criminal simulation and the unlawful use of slugs. The purpose of those statutes is to prevent individuals from benefiting from fraud. Those statutes do not address fraud on the courts; therefore the interests to be protected by each statute are separate and distinguishable.

Furthermore, nothing in the legislative history surrounding the enactment of forgery or fabricating evidence reveals that our legislature intended a result different from the one we reach today. There was no discussion by our legislature that multiple punishments for forgery in the second degree or fabricating evidence were impermissible. Our Supreme Court has stated that when the legislature is silent, we will not infer legislative intent. State v. Kirsch, 263 Conn. 390, 420, 820 A.2d 236 (2003).

Upon review of the statutory language, the purpose of the two statutes and the legislative history, we conclude that forgery in the second degree and fabricating evidence are not the “same offense” for double jeopardy purposes. Accordingly, the defendant’s double jeopardy rights were not violated by his simultaneous prosecution for fabricating evidence and forgery, which arose from the same acts.

Ill

Last, we turn to the defendant’s unpreserved claim that his conviction of three counts of perjury violated the prohibition against double jeopardy. Although we find that his claim is reviewable under Golding, the defendant’s claim fails to satisfy the third prong of Golding, as there was no double jeopardy violation.

The defendant argues that his conviction of three counts of perjury resulted from a single act of perjury and, thus, constituted multiple punishments for the same crime in violation of the double jeopardy clause of the fifth amendment. Specifically, he alleges that his testimony constituted only one continuous lie, which the state unreasonably parsed into three distinct acts of perjury. That claim lacks merit.

This court has held that “distinct repetitions of a prohibited act, however closely they may follow each other . . . may be punished as separate crimes without offending the double jeopardy clause. . . . The same transaction, in other words; may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense. . . . [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute].” (Internal quotation marks omitted.) State v. Cotton, supra, 77 Conn. App. 766. Applying that test to the record at hand, the evidence supports the conclusion that the defendant committed three separate and distinct acts of perjury during his testimony in the habeas hearing.

Pursuant to § 53a-156, to convict the defendant of perjury, the state had the burden to prove beyond a reasonable doubt that in an official proceeding, under oath, the defendant testified falsely to a material statement that he did not believe to be true. Furthermore, not only did the state have to prove the defendant’s statements to be false, but the state also had to corroborate any testimony used to establish the falsity of the defendant’s statement. See State v. Meehan, supra, 260 Conn. 386.

A review of the information indicates that the charges arose from three separate false statements. Count one arose from the defendant’s testimony regarding an alleged conversation between himself and Wall in the Litchfield Superior Court lockup; count two arose from the defendant’s testimony that he had received a letter from Wall on August 31,1991, describing a plea arrangement involving reduced charges and a lesser sentence; and count three arose from the defendant’s testimony regarding an alleged conversation he had with Wall during the plea canvass. The testimony in support of the perjury counts revealed that the defendant did not merely reiterate the same false statement multiple times, but rather, he made three false statements involving different occurrences, and the state had to prove each of the defendant’s statements false by proof specific to each statement.

Furthermore, although we have no Connecticut decisional guidance directly on point, case law from other jurisdictions is instructive. Under federal law, separate and distinct false declarations in trial testimony properly may be charged in separate counts if they require different factual proof of falsity, even if they are all related and arise out of the same transaction or subject matter. See, e.g., United States v. Harrelson, 754 F.2d 1182, 1184 (5th Cir. 1985) (indictment for perjury not multiplicitous when it contains charges for “ ‘[s]eparate and distinct false declarations [even if] they are all related and arise out of the same transaction or subject matter’ ”); United State v. Molinares, 700 F.2d 647, 653 (11th Cir. 1983). Courts in several states also have reached the same conclusion. See, e.g., Commonwealth v. Gurney, 13 Mass. App. 391, 397, 433 N.E.2d 471 (1982); Matter of Di Lorenzo v. Murtagh, 36 N.Y.2d 306, 310-11, 327 N.E.2d 805, 367 N.Y.S.2d 761 (1975);State v. Warren, 229 Wis. 2d 172, 183-84, 599 N.W.2d 431 (Wis. App.), review denied, 228 Wis. 2d 176, 602 N.W.2d 762 (Wis. 1999).

We conclude that when each false sworn statement requires its own proof of falsity involving facts unique to that particular statement, a defendant may be convicted of multiple counts of perjury arising from testimony regarding the same general subject without violating the prohibition against double jeopardy. Accordingly, the defendant’s final claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-139 (a) provides in relevant part: “A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed: (1) A deed, will, codicil, contract, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status

       General Statutes § 53a-155 (a) provides: “A person is guilty of tampering with or fabricating physical evidence if, believing that an official proceeding is pending, or about to be instituted, he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding; or (2) makes, presents or uses any record, document or thing knowing it to be false and with purpose to mislead a public servant who is or may be engaged in such official proceeding.”

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial.” (Internal quotation marks omitted.) State v. Daniels, 248 Conn. 64, 66-67 n.2, 726 A2d 520 (1999).

       In Meehan, the defendant, then a police officer, was charged with having committed perjury after he testified to a grand jury that he had not used drugs during his time with the police department. To prove the charge of falsity, the state introduced testimony by a witness that the defendant approached him three times to buy drugs. Our Supreme Court held that testimony by another police officer that he found a small plastic bag typically used to carry drugs in the bathroom immediately after the defendant left was sufficient to corroborate the other witness’ testimony. State v. Meehan, supra, 260 Conn. 387.

       Under Golding, “[a] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Vasquez, 66 Conn. App. 118, 123, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001).

       Fabricating evidence requires that the defendant believe that an official proceeding is pending. We cannot conceive of a situation in which the defendant could alter a document with the intent to mislead a public servant and not also commit the crime of forgery in the second degree. See General Statutes §§ 53a-139, 53a-155.

       See, e.g., General Statutes §§ 53a-147, bribery; 53a-151, tampering with a witness; 53a-152, bribery of a,juror.

       See part II.


author: DRANGINIS, J.

text:
    LAWRENCE J. DUPONT v. ZONING BOARD OF APPEALS OF THE TOWN OF MANCHESTER
    (AC 23710)
    Foti, Schaller and Dranginis, Js.
    Argued September 8
    officially released December 2, 2003

      John F. Sullivan, assistant town attorney, for the appellant (defendant).

      David A. Golas, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendant, the zoning board of appeals of the town of Manchester (board), appeals from the judgment of the trial court sustaining the appeal by the plaintiff property owner, Lawrence J. Dupont, from the board’s denial of the plaintiffs application for a variance. On appeal, the board claims that the court improperly (1) found that the claimed hardship at issue was not created by the plaintiff and (2) substituted its judgment for that of the board in finding that there was a valid hardship necessitating the granting of the application for a variance. We agree with the board that the court improperly concluded that there was a hardship requiring a variance and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to our resolution of the board’s appeal. The subject lot is a single parcel in a residential AA zone with an area of approximately 30,000 square feet. It is at 134 Prospect Street in Manchester. On November 25,1981, the plaintiff purchased the property from Leo Dupont by a quitclaim deed. At that time, the Manchester zoning regulations required that each lot in a residential AA zone have a minimum of 18,000 square feet. On August 29, 2001, the plaintiff applied to the board for a variance to subdivide the lot into two parcels. According to the application, parcel A measured 18,118.98 square feet and parcel B, on which a single-family house currently stands, measured 12,336.65 square feet.

In his application for the variance, the plaintiff stated the reason for the hardship: “[T]he street line of Prospect Street cut and established by the town of Manchester adversely impacts this lot as it intersects with Hackmatack Street.” At a public hearing before the board on September 19, 2001, the plaintiff presented his application and various exhibits. The board, by a vote of three to two, voted in favor of granting the variance. The variance, however, was denied for failure to receive four affirmative votes in accordance with General Statutes § 8-7. The board, in denying the variance, provided no reason for its action, and none was furnished in the minutes of the meeting.

The plaintiff appealed to the trial court, claiming that the board’s decision was arbitrary, illegal and an abuse of discretion. In reversing the board’s decision, the court found that the hardship was not created by the plaintiff and directed the board to grant the application. This appeal followed.

The standard of review on appeal from a zoning board’s decision to grant or to deny a variance is well established. We must determine whether the trial court correctly concluded that the board’s denial of the variance was not supported by the record. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-206, 658 A.2d 559 (1995). “Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.” (Internal quotation marks omitted.) Id., 206.

“A variance is an authorization obtained from the zoning board of appeals to use property in a manner otherwise forbidden by the zoning regulations. . . . For a variance to be granted under General Statutes § 8-6 (3), two conditions must be fulfilled: (1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. . . . The zoning board’s action must be reasonably supported by evidence in the record. . . . The hardship must be different in kind from that generally affecting properties in the same zoning district.” (Citations omitted; internal quotation marks omitted.) Kelly v. Zoning Board of Appeals, 21 Conn. App. 594, 597-98, 575 A.2d 249 (1990).

“Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. ... A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.” (Citations omitted; internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 570, 785 A.2d 601 (2001). “The desire to subdivide property into [two] lots is a voluntary hardship created by the applicant requiring denial of a variance.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9.3, p. 186. “Where the claimed hardship arises from the applicant’s voluntary act ... a zoning board lacks the power to grant a variance.” (Internal quotation marks omitted.) Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 205, 557 A.2d 1265 (1989).

The board’s first claim, which is dispositive of its appeal, is that the court improperly found that the plaintiffs hardship was not self-created. The board relies on Aitken v. Zoning Board of Appeals, supra, 18 Conn. App. 206, for the proposition that a hardship that is self-created is never a proper ground for a variance. We agree that the plaintiffs desire to subdivide his property in this case is a self-created hardship that does not entitle him to a variance.

Because the board did not state the reasons for its decision, the court searched the record to find a basis for the board’s decision. See Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 532, 772 A.2d 624 (2001). The court concluded that “the hardships were created by the town of Manchester in laying out Prospect Street and in the zoning ordinance/zoning regulations in which the minimum lot requirement was raised to 15,000 square feet and then 18,000 square feet where parcel B is approximately 12,000 square feet, long after the plaintiff and his predecessors in title had taken title to the property and the dwelling had been built, which was in 1847.” (Emphasis in original.)

In finding that a valid hardship existed, the court relied on Hammond v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. 422752 (January 31,2000), which concluded that “[pjart of the owner’s legitimate expectation in ownership of the lot was the right to subdivide it.” That reliance was misplaced. Our examination of the record reveals no hardship that would entitle the plaintiff to a variance. Here, the applicant sought to subdivide a lot, which under current zoning regulations had no preexisting nonconformities, into two lots, one of which would have less than the required square footage. The facts in this case are similar to those in Aitken. In Aitken, the applicant sought and was granted a variance that reduced the minimum lot frontage from 130 feet to zero feet, permitting him to resubdivide his previously conforming single lot to establish a rear- building lot with zero frontage. Aitken v. Zoning Board of Appeals, 18 Conn. App. 196-97. The plaintiff claimed that the trial court improperly had found that there was sufficient hardship to support the granting of the variance. Id., 203-204. This court agreed, concluding that the applicant’s desire to subdivide his property into two lots was self-created and “therefore, not a sufficient reason to depart from the zoning regulations.” Id., 206.

If we were to entertain the proposition that a property owner has a right to subdivide his property simply because he owns it, then we would be undermining the policy identified by our Supreme Court that variances are to be granted only in limited circumstances. “[UJnless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted.” (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991). We conclude, as we did in Aitken v. Zoning Board of Appeals, supra, 18 Conn. App. 206, that when a property owner’s situation is self-created, that is not a sufficient reason to depart from the zoning regulations. Accordingly, the court improperly found that a valid hardship existed.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       In 1956, the Manchester zoning board amended its regulation to increase the size of a lot from 15,000 square feet to 18,000 square feet. Before 1950, each lot was required to have a minimum of 12,000 square feet.

       The record in this case is unclear as to whether there was a taking of the Prospect Street “cut.” The court found that the town had created the Prospect Street “cut” in 1838. The plaintiffs family originally acquired the property “at least” by 1847. The plaintiff acquired the property in 1981 and applied to subdivide his property twenty years later. The property was subject to the 18,000 square feet minimum lot requirement prior to his purchase, requiring the plaintiff to seek the variance. The only evidence of the taking provided by the plaintiff regarding the lot is a copy of the town assessor’s street card for 150 Prospect Street. At the hearing, the plaintiff stated: “I’d like to enter this [street card] as an exhibit for the fact that it shows there are in fact no references that I could find to [show] how the town took title to the median strip that it currently owns, which is 0.10 acres at the intersection of Prospect and Hackmatack [Streets].”

       “General Statutes § 8-7 requires the concurring vote of four members of a zoning board of appeals to grant a variance.” Pollard v. Zoning Board of Appeals, 186 Conn. 32, 36 n.5, 438 A.2d 1186 (1982).


author: DiPENTIMA, J.

text:
    RONNI S. BREITER v. JEFFREY R. BREITER
    (AC 22132)
    Lavery, C. J., and DiPentima and Mihalakos, Js.

      Argued September 24
    officially released December 2, 2003

      Steven R. Dembo, with whom, on the brief, was P. Jo Anne Burgh, for the appellant (plaintiff).

      Steven M. Ford, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

This appeal arises out of a dissolution of marriage action between the plaintiff, Ronni S. Breiter, and the defendant, Jeffrey R. Breiter. The plaintiff appeals from the trial court’s denial of a postjudgment motion. The plaintiff claims that the court improperly (1) interpreted the phrase “financial records,” as used in the parties’ separation agreement, which was incorporated into the judgment, when the parties did not ask for interpretation or construction of such language and when no evidence was introduced with respect to the parties’ intent in using such language, and (2) found that the plaintiff was not entitled to copies of financial records of the defendant’s business, the Center for Medical Research, LLC (center). We reverse the judgment in part and affirm it in part.

The court dissolved the parties’ marriage on September 7, 2000, and incorporated into the terms of the judgment a separation agreement reached by the parties on August 30, 2000. Section 4 (b) of that agreement states in relevant part: “The Husband shall pay to the Wife as additional alimony a sum equal to ten [percent] (10%) of the gross receipts . . . for medical research studies performed by the [center] . . . payable quarterly, in arrears, on March 31st, June 30th, September 30th and December 31st of each year. Each payment shall be accompanied by a quarterly statement of gross receipts of [the center] prepared by [the center’s] accountant. [The center’s] financial records shall be subject to review by Wife’s accountant up to four times per year. ...”

On May 11, 2001, the plaintiff filed a motion for modification or clarification, seeking to clarify that portion of the parties’ agreement that stated that the center’s “financial records shall be subject to review by Wife’s accountant up to four times per year. ...” The court held a hearing on the matter on June 13,2001. The court rendered an oral decision denying the plaintiff’s motion. In its decision, the court found the language in the agreement to be clear and unambiguous. The court, however, went on to address the term “financial records.” The court found that “financial records” were limited to gross receipts. Finally, the court stated that under the terms of the agreement the plaintiff wife was not entitled to copies of the records. This appeal followed. The plaintiff raises five issues on appeal, three of which need not be reached in light of this court’s decision on the first issue.

I

The plaintiff first challenges the propriety of the court’s finding as to the meaning of the center’s “financial records.” She posits that because her motion did not request an interpretation of “financial records,” the court improperly interpreted the term. We agree.

Our standard of review is well settled. “[A]n interpretation of the pleadings in the underlying action . . . presents a question of law and is subject to de novo review on appeal.” Davenport v. Quinn, 53 Conn. App. 282, 286, 730 A.2d 1184 (1999).

At the outset, we note that “[p]leadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them. . . . The purpose of a complaint or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise. . . . It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading], . . . Facts found but not averred cannot be made the basis for a recovery. . . . Thus, it is clear that [t]he court is not permitted to decide issues outside of those raised in the pleadings.” (Citations omitted; internal quotation marks omitted.) Moulton Bros., Inc. v. Lemieux, 74 Conn. App. 357, 361, 812 A.2d 129 (2002). “A judgment in the absence of written pleadings defining the issues would not merely be erroneous, it would be void.” Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982).

The plaintiffs motion and her testimony at trial make clear that the issue before the court was whether, under the separation agreement, the plaintiffs accountant was entitled to photocopy the center’s financial records and whether those copies would be made available to the plaintiff. There was no request for a judicial interpretation of the phrase “financial records.” In concluding that “those financial records are limited to gross receipts,” the court addressed an issue that was not properly before it. We conclude that the court improperly rendered judgment in part on its definition of the center’s “financial records,” a matter not pleaded by the plaintiff. Accordingly, we reverse that part of the court’s judgment that provides that financial records are limited to gross receipts.

II

The plaintiff also claims that the court improperly found that she was not entitled to copies of the center’s financial records. We disagree.

“An agreement between divorced parties . . . that is incorporated into a dissolution decree should be regarded as a contract.” Legg v. Legg, 44 Conn. App. 303, 306, 688 A.2d 1354 (1997). “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citations omitted; internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990). “[Where] . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) Zadravecz v. Zadravecz, 39 Conn. App. 28, 31, 664 A.2d 303 (1995).

As previously stated, § 4 (b) of the separation agreement states in relevant part that “[the center’s] financial records shall be subject to review by Wife’s accountant up to four times per year. ...” The court stated in its oral decision: “[T]he court finds no ambiguity in the agreement. [The plaintiff is] not entitled to the copies of the records.” Moreover, in its articulation of January 22, 2003, the court stated: “Section 4 (b) of the parties’ agreement does not provide the right of the plaintiff to obtain copies for her review. The agreement merely provides that her accountant can review the financial records. There is no provision in the agreement for providing the plaintiff with copies for her review.” Because the agreement is clear and unambiguous, the contract must be given effect according to its terms. Under the terms of the separation agreement, there is no provision entitling the wife to copies of “[the center’s] financial records.” Therefore, we conclude that the court acted properly. Accordingly, we affirm the decision of the court with respect to its determination that the plaintiff is not entitled to copies of the center’s financial records.

The judgment is reversed only as to the finding that the phrase “financial records” is limited to gross receipts and the case is remanded with direction to vacate that finding. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Because we conclude that the court improperly interpreted the phrase “financial records,” we need not reach other issues that the plaintiff raised: That the court’s interpretation was incorrect either under plenary review or the clearly erroneous standard of review and that the court’s decision was internally inconsistent.


author: PETERS, J.

text:
    HOPE M. CAPROOD v. ATLANTA CASUALTY COMPANY
    (AC 23572)
    West, DiPentima and Peters, Js.
    Argued September 9
    officially released December 2, 2003

      Thomas C. Simones, for the appellant (plaintiff).

      Mark J. Sheehan, with whom, on the brief, was F. Thomas Pachler, for the appellee (defendant).
   Opinion

PETERS, J.

This case concerns the quantum of proof that an injured insured person must present to a jury to recover damages under an automobile insurance policy covering hit and run drivers. A jury found that the injured insured had proven that her injuries resulted from the negligence of a hit-and-run driver. The trial court, however, granted the motion of the insurer to set aside the verdict in favor of the injured person and rendered judgment in favor of the insurer. The injured person has appealed. We reverse the judgment of the trial court.

The plaintiff, Hope M. Caprood, filed a complaint seeking damages from the defendant, Atlanta Casualty Company, under an insurance policy that provided coverage for accidents caused by hit-and-run drivers. She alleged that she and others had been injured in such an accident that occurred on November 5, 2000, in Norwich. The defendant did not dispute that the plaintiff was an insured under the policy. Similarly, the defendant did not dispute that the plaintiffs vehicle had been struck by a hit-and-run driver. The defendant denied that the plaintiff had been injured as a result of the negligent conduct of the hit-and-run driver. The defendant also filed three special defenses.

On October 8,2002, a jury returned a verdict awarding the plaintiff damages of $11,239.01 with a 16 percent reduction for her comparative negligence. On the defendant’s motion, the trial court set this verdict aside because, in its view, the plaintiff had presented no evidence as to what had caused the operator of the hit and run vehicle to collide with the plaintiffs vehicle. Accordingly, it rendered judgment for the defendant notwithstanding the verdict.

In the plaintiffs appeal from this adverse judgment, she argues that, for three reasons, the trial court improperly set aside the jury verdict in her favor. She claims that the court (1) undervalued the evidence of negligence that she presented at trial, (2) improperly instructed the jury and (3) deprived her of her constitutional right to trial by jury. Because we are persuaded by the plaintiffs first claim, we need not consider the other two.

We review the action of a trial court’s granting of a motion to set aside a jury verdict to determine whether the court abused its discretion or reached a result that is manifestly unjust. “A verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Carusillo v. Associated Women’s Health Specialists, P. C., 79 Conn. App. 649, 653, 831 A.2d 255 (2003).

It is undisputable that the verdict was proper only if the jury had sufficient evidence to find that the hit-and-run driver had been negligent. The trial court, in its memorandum of decision, outlined the facts that it found to have been established, as well as the shortcomings that it found in the plaintiffs evidentiary showing.

The court’s bottom line was that the plaintiff had “established only that there was a collision at the intersection of North Thames Street and West Main Street on November 5,2000, between the two vehicles in question and that the plaintiffs vehicle was struck on the passenger’s side after it had entered the intersection. The plaintiff established that the vehicle was struck with great force and violence and propelled across the intersection to a location on the opposite side of the street before it came to rest. There was no evidence as to what caused the operator of the [hit-and-run vehicle] to collide with the plaintiffs vehicle.”

In this recital of the evidence, the court impliedly accepted the proposition that the jury reasonably could have credited all the evidence about the collision that the plaintiff had presented at trial. It did not express any doubt about the credibility of the plaintiff, who was the only person to testify on that subject. The defendant offered no contrary evidence. What the court found lacking was direct evidence of causation.

The question remains, however, whether the plaintiff presented sufficient circumstantial evidence from which the jury reasonably could have inferred that the hit-and-run driver negligently caused the collision that injured her and damaged her car. A jury often must “rely on circumstantial evidence and draw inferences from it.” Blados v. Blados, 151 Conn. 391, 395, 198 A.2d 213 (1964). The drawing of inferences is “peculiarly a jury function, the raison d’etre of the jury system.” Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957).

We must therefore examine in detail what facts the jury reasonably could have inferred on the issue of causation. The court had instructed the jury that it could find for the plaintiff if she established either that the hit-and-run driver failed to keep a proper lookout or failed to keep proper control of his vehicle.

The jury reasonably could have inferred causation from the evidence describing the intersection at which the collision occurred. As the plaintiff testified, the intersection was well lit and unobstructed. A photograph that was an exhibit at trial depicted the intersection. The jury reasonably could have inferred that a driver keeping a proper lookout would have seen the plaintiffs vehicle, which was three-quarters of the way through the intersection. Contrary to the cases on which the defendant relies, and which the court cited, this is not a case in which “[t]here were so many possibilities as to the cause of the accident other than negligence in the operation of the car that a finding of negligence . . . could result in a verdict for the plaintiff based only on surmise, speculation and conjecture.” Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148 (1960).

The jury reasonably also could have taken note of the force of the impact, which pushed the plaintiffs vehicle a considerable distance and caused severe damage to its midsection. Another photograph at trial depicted the substantial damage that the passenger’s side of the plaintiffs car had sustained as a result of the collision. The jury reasonably could have inferred that the nature of the damage caused by the hit-and-run vehicle demonstrated a failure of the hit-and-run driver to keep control of his car, perhaps because of excessive speed or inattention.

The trial court did not discuss these possible inferences. In its consideration of the evidence on causation, however, the court did refer, in some detail, not only to the testimony that the plaintiff did present, but also to the evidence that the plaintiff did not present.

The trial court, in its memorandum of decision, and the defendant in its appellate brief to this court, placed some emphasis on five witnesses whom the plaintiff did not call to testify. These were the three passengers in the plaintiffs car and the two people who were identified in the police report as having been at the scene of the collision. The defendant did not, however, present any evidence that these witnesses were in fact available to the plaintiff at the time of trial.

The court and the defendant appear to have overlooked General Statutes § 52-216c, which permits fact finders in civil actions to draw negative inferences from a party’s failure to call a witness only under limited circumstances. A trial court’s failure to comply with a statutory mandate is plain error. State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995); Ipacs v. Cranford, 65 Conn. App. 441, 446, 783 A.2d 1044 (2001).

Section 52-216c provides in relevant part: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments . . . that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify.” (Emphasis added.) As far as the record shows, no evidence of availability was presented at trial with respect to the missing witnesses.

In this case, the court did not give an improper instruction to the jury. Nonetheless, we may assume that, despite the absence of a showing of availability, the court assigned some weight to the missing witnesses. Otherwise, it would not have referred to them in its memorandum of decision. From the brief filed by the defendant in this court, we may presume that the defendant urged the court to do so.

Although § 52-216c does not refer expressly to judicial fact-finding in response to a motion to set a jury verdict aside, it would be inconsistent with the policy behind the statute to permit a court to ignore its mandate. “[T]he legislature recognized the inherent unfairness and impropriety of allowing counsel to invite the jury to draw an adverse inference from one party’s failure to produce a particular witness at trial if that witness had died or for some other reason was unavailable to testify at trial.” Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 368, 805 A.2d 130 (2002). The court should not have considered possible testimony from the missing witnesses at all. Its recital of evidence that was not properly part of the fact-finding proceedings casts a shadow on its judgment in favor of the defendant.

At the end of the day, we may all agree that this is a close case. Exercising her constitutional right to do so, the plaintiff elected to have her case decided by a jury. We test the propriety of a motion to set aside a jury verdict in accordance with the principle that we give the evidence at trial “the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Carusillo v. Associated Women’s Health Specialists, P.C., supra, 79 Conn. App. 653. The “most favorable reasonable construction” must be given to circumstantial as well as to direct evidence of what actually transpired. We conclude, therefore, that the trial court improperly set aside the juiy’s verdict in favor of the plaintiff.

The judgment is reversed and the case is remanded with direction to render judgment consistent with the jury verdict in favor of the plaintiff.

In this opinion the other judges concurred.

       In its special defenses, the defendant claimed that (1) the plaintiff’s own negligence exceeded that of the unknown driver, (2) the plaintiffs own negligence caused the accident to occur’ and (3) the plaintiffs damages should be limited to the maximum policy limits of the coverage.

       In addition to the plaintiffs testimony, the plaintiff presented the testimony of her treating chiropractor. She also introduced documentary evidence in the form of a police report,. The police report noted that there had been three passengers in the plaintiffs vehicle. It further described the observations of two witnesses at the scene of the collision, neither of whom indicated any knowledge of why the collision had occurred.

       Under case law in our Supreme Court, which is binding on us, the jury was precluded from drawing an inference of negligence from the fact that the hit-and-run driver fled the scene. See Grzys v. Connecticut Co., 123 Conn. 605, 609-10, 198 A. 259 (1938). The jury was also precluded from drawing any inference from the fact that the headlights of the hit-and-run vehicle were not on when the collision occurred because the plaintiffs complaint did not contain such an allegation.

       General Statutes § 52-216c abolished the so-called Secondino rule; see Secondino v. New Haven Gas Co., 147 Conn. 672,165 A.2d 598 (1960); which had permitted an adverse inference to be drawn from a party’s failure to call a witness under certain specific circumstances. “The reasoning behind the missing witness rule was that [t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. ... To take advantage of [the] rule permitting an adverse inference, [however] the party claiming the benefit [of the rule was required to] show that he [was] entitled to it.” (Internal quotation marks omitted.) Raybeck v. Danbury Orthopedic Associates, P. C., 72 Conn. App. 359, 366, 805 A.2d 130 (2002).
      Our Supreme Court subsequently abandoned the Secondino rule in criminal cases. State v. Malave, 250 Conn. 722, 728-30, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).


text:
    J.K. SCANLAN COMPANY, INC. v. THE CONSTRUCTION GROUP, INC., ET AL.
    (AC 23486)
    West, DiPentima and Peters, Js.

      Argued September 9
    officially released December 2, 2003

      Glenn L. Formica, for the appellant-appellee (plaintiff).

      Gerald A. Del Piano, with whom was P. Jo Anne Burgh, for the appellees-appellants (named defendant et al.).
   Opinion

DiPENTIMA, J.

The plaintiff appeals and the defendants cross appeal from the trial court’s order of a prejudgment remedy. The plaintiff, the J.K. Scanlan Company, Inc., sought such a remedy incident to its action against the defendants The Construction Group, Inc. (Construction Group), Midstate Metal Building Company, LLC, Northeast Panel Company, LLC, and Bertrand Rompre. The court granted the plaintiffs application for a prejudgment remedy in the amount of $42,500. On appeal, the plaintiff claims that the court failed to award the full amount it requested on the basis of successor liability as alleged in the fourth count of the complaint.

On cross appeal, the defendants claim that the court improperly (1) found that the plaintiff sufficiently had established entitlement to a prejudgment remedy although the plaintiff failed to present evidence of probable damages, (2) found that the plaintiff sufficiently had established a fraudulent transfer although it presented no evidence of fraud, (3) granted the prejudgment remedy as to Rompre although no evidence was introduced to justify piercing the corporate veil, and (4) granted the prejudgment remedy as to Northeast Panel Company, LLC, and Midstate Metal Building Company, LLC. We affirm the judgment of the trial court in all respects.

The following facts and procedural history are relevant to resolve the issues raised on appeal and cross appeal. On July 21,1998, the plaintiff filed a cross claim against Construction Group, which was doing business as Midstate Metal Building Company (DBA Metal), in a Massachusetts action against the plaintiff regarding a dispute following a public works project for which the plaintiff had served as a general contractor. Construction Group did not appear, and on October 27, 1999, a default judgment in the amount of $85,301.54 was rendered against it in the Essex County trial court of the commonwealth of Massachusetts (Massachusetts judgment). As the general contractor, the plaintiff was required to pay the judgment for the negligence and breach of contract of Construction Group.

In January, 1998, Rompre, the president and sole shareholder of Construction Group, in effect transformed Northeast Panel Company into a limited liability company, Northeast Panel, LLC, and in February, 1999, Rompre likewise transformed DBA Metal into Midstate Metal Building Company, LLC. Rompre remained the controlling member, and the newly formed limited liability companies continued the businesses of their predecessor DBAs.

On December 29, 2001, the plaintiff brought a complaint on the Massachusetts judgment in the Hartford Superior Court. See J.K. Scanlan Company, Inc. v. The Construction Group, Inc. by its Mid-State Metal Building Company Division, Superior Court, judicial district of Hartford, Docket No. 0804527 (December 29, 2001). Construction Group filed an appearance but did not plead. The court, Schuman, J., rendered judgment against Construction Group for $103,189.74 after a hearing in damages (Connecticut judgment). The plaintiff was unsuccessful in its attempt to collect on the judgment.

On January 8, 2002, the plaintiff commenced the action at issue in this appeal. The plaintiff alleged that (1) the defendants had violated General Statutes § 52-552a et seq., the Uniform Fraudulent Transfer Act, (2) the defendants had violated General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act, (3) the defendants had committed fraud, and (4) that the defendants Midstate Metal Building Company, LLC, and Northeast Panel Company, LLC, were liable for the full amount of the Connecticut judgment as the successors in interest to Construction Group. On April 30, 2002, the plaintiff applied for a prejudgment remedy, and, on September 6, 2002, the court heard testimony and argument with respect to the application. On September 10, 2002, the court ordered a prejudgment remedy against Construction Group, Midstate Metal Building Company, LLC, Northeast Panel Company, LLC, and Rompre in the amount of $42,500. These appeals followed.

At the outset, we set forth the relevant portions of the prejudgment remedy statutes. General Statutes § 52-278d (a) provides in relevant part that a hearing on a prejudgment remedy “shall be limited to a determination of . . . whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff .... If the court, upon consideration of the facts before it and taking into account any . . . counterclaims . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiffs favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court. . . .”

The role of the court in considering an award of a prejudgment remedy is well established. “Pursuant to our prejudgment remedy statutes . . . the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiffs claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities.” (Citations omitted; internal quotation marks omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156, 595 A.2d 872 (1991).

“The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Three S. Development Co. v. Sant-ore, 193 Conn. 174, 175, 474 A.2d 795 (1984).

“Appellate review of a trial court’s broad discretion to deny or grant a prejudgment remedy is limited to a determination of whether the trial court’s rulings constituted clear error.” State v. Ham, 253 Conn. 566, 568, 755 A.2d 176 (2000). “It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.” Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991).

I

APPEAL

The plaintiff claims that the court improperly granted a prejudgment remedy of only $42,500 of the Massachusetts judgment on the basis of successor liability in the fourth count of the plaintiffs complaint. The court’s memorandum of decision is not clear as to which legal theory it applied, and because the plaintiff failed to file a motion for articulation, the issue of successor liability is not properly before us.

Our Supreme Court has held that where essential facts are undisputed and the claim involves a question of law, the record is adequate for review. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395-96, 757 A.2d 1074 (2000) (where de novo review applies and facts not disputed, precise legal analysis undertaken by trial court not essential to appellate review of issue). Thus, where a case presents a question of law, this court is required to provide de novo review. Unlike the situation in Community Action for Greater Middlesex County, Inc., the facts of the present case are not undisputed, and our analysis necessarily involves questions of fact.

Here, after a hearing in which the essential facts were in dispute, the court found that after the creation of Midstate Metal Building Company, LLC, and Northeast Panel Company, LLC, Construction Group was “allowed by the sole shareholder, defendant Rompre, to disengage from active business” and that “this action was taken by the defendant Rompre to hinder collection on a possible judgment by the plaintiff against Construction Group, Inc., DBA Metal.” The corut further found that “the Metal name and good will of the DBA were now allowed to develop in the [limited liability corporation]. There were lost opportunities for the DBA to earn funds to satisfy its creditors, including the plaintiff.” Thus, the essential facts are disputed, and the claim involves a question of fact. We must therefore turn to whether the record is adequate for review.

“[T]he appellant bears the burden of providing an appellate court with an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of decision . . . [or] to clarify the legal basis of a ruling . . . .” (Citations omitted; internal quotation marks omitted.) Id., 394.

“It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The . . . failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Citation omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 204, 819 A.2d 227 (2003); see also Practice Book §§ 61-10 and 66-5.

Our examination of the record discloses that although the plaintiff raised the issue of successor liability in a discussion with the court, the court did not address it in its memorandum of decision. In fact, the court did not state the legal premises on which it granted relief.

The court concluded, without application of legal theory, that the plaintiff met its probable cause burden by showing at the hearing that Construction Group was allowed by Rompre to “disengage from active business” and that such action was taken “to hinder collection on a possible judgment by the plaintiff against The Construction Group, Inc., DBA Metal.” The court further found that the plaintiff had failed to prove “that Rompre transferred funds out of DBA Metal or The Construction Group, Inc., to the Metal LLC,” but that the plaintiff had established that “the Metal name and the good will of the DBA were now allowed to develop in the new [limited liability corporation]. There were lost opportunities for the DBA to earn funds to satisfy its creditors . . . .”

The court could have based its decision on several possible theories of recovery, and a reading of the memorandum of decision does not reveal the particular legal reasoning on which the court relied. If the plaintiff intended to claim that the court should have considered successor liability as a basis for awarding a greater prejudgment remedy, it was its obligation to file a motion for articulation to create an adequate record for appellate review. See Practice Book §§ 61-10 and 66-5; Alliance Partners, Inc. v. Oxford Health Plans, Inc., supra, 263 Conn. 204. In the absence of a motion for articulation, we will not speculate as to the legal standard applied by the court and will not address the merits of the plaintiffs claim.

II

CROSS APPEAL

In their cross appeal, the defendants also raise issues that we cannot consider for lack of an adequate record. Like the plaintiff, the defendants failed to request that the trial court articulate its view of issues of law and fact. Accordingly, we decline to address the merits of the defendant’s claims that the court improperly (1) found that the plaintiff had sufficiently established a fraudulent transfer although the plaintiff presented no evidence of fraud, (2) granted the prejudgment remedy as to Rompre although no evidence was introduced to justify piercing the corporate veil, and (3) granted the prejudgment remedy as to Northeast Panel Company, LLC, and Midstate Metal Building Company, LLC.

The court does address the defendants’ claim that the trial court improperly granted the application for a prejudgment remedy because the plaintiff failed to present evidence of probable damages. There is sufficient evidence in the record to support the court’s finding of probable damages.

As stated in part I, we examine the court’s ruling under the clearly erroneous standard of review. The defendants claim that the only assets transferred from Construction Group to the limited liability companies were the names of the DBAs, assets that the defendants allege had no value. The defendants further assert that no evidence was presented to support the court’s ruling that “[t]here were lost opportunities for the DBA to earn funds to satisfy its creditors . . . .” After evaluating the testimony at the prejudgment remedy hearing, the court found to the contrary, as the plaintiff presented sufficient evidence on which to grant the application for a prejudgment remedy. Moreover, the court based its determination of the amount of the prejudgment remedy on “half of his Massachusetts judgment.” We conclude that the court’s determination was proper and therefore affirm the court’s ruling.

The judgment is affirmed.

In this opinion the other judges concurred.

       The granting or denial of a prejudgment remedy is deemed a final judgment for purposes of appeal. General Statutes § 52-2781 (a).

       The plaintiffs appeal concerns the judgment only as to count four of the complaint regarding the claim of successor liability. The defendants’ cross appeal addresses the judgment as to each count of the complaint.