author: MIHALAKOS, J.

text:
    IN RE JESSICA M. ET AL.

    (AC 22373)
    Mihalakos, Bishop and Daly, Js.

      Argued March 22 —
    officially released August 6, 2002

      Eugene P. Falco, for the appellant (petitioner).

      Kenneth A. Graham, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (commissioner of social services).

      Cecilia Buck-Taylor, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

MIHALAKOS, J.

In this action to terminate her parental rights, the petitioner mother appeals from the judgment of the trial court denying her petitions to terminate her parental rights in regard to her three minor children. The court rendered the judgment after a trial de novo in relation to an appeal by the commissioner of social services (commissioner) from the Probate Court’s decree granting termination. On appeal to this court, the petitioner claims that the trial court improperly (1) exercised its subject matter jurisdiction when it determined that the commissioner had standing to pursue an appeal from a Probate Court decree and proceeded to trial while related proceedings were pending in the Waterbury Probate Court, and (2) denied her petitions to terminate her parental rights despite her consent. We affirm the judgment of the trial court.

The record reveals the following relevant facts and intricate procedural history. On June 7, 1999, the petitioner filed three applications with the New Milford Probate Court seeking to terminate her parental rights with respect to her three minor children on the grounds of consent and abandonment. The petitioner’s children are the product of her tumultuous, abusive and violent relationship with the children’s father that began in 1988. The children’s father has been arrested for domestic violence incidents involving alcohol on several occasions. The three children were bom between 1989 and 1992. From July, 1991, to July, 1993, and again from September, 1994, to January, 1995, the petitioner received monthly state assistance from department of social services (social services) to help care for her children. The petitioner received that assistance under both the state’s aid to families with dependent children program and its temporary assistance for needy families program, otherwise known as AFDC and TANF or TFA benefits, respectively. To maintain her eligibility during the first period of assistance, the petitioner averred that the children’s father did not live with the family although he, in fact, did at that time.

Following an episode of domestic violence in 1993, where the father kicked the petitioner and broke her ribs, the petitioner separated herself and her children from the father. In May, 1995, she contacted the department of children and families and agreed to place the children in foster care for a period of sixty days or less. The department of children and families returned the children to the petitioner on June 20,1995, but she then voluntarily turned the children over to their father and his family. After some initial visits with her children, the petitioner stopped visiting them, despite having the ability and the legal right to do so. Until the date of trial, the petitioner had not seen her children for more than six years.

In March, 1999, the father placed the children on the state medical assistance program and asked social services to seek child support from the petitioner. In August, 1999, the father secured full financial assistance for the children from social services. Pursuant to the father’s wishes, social services sought child support from the petitioner, who then declared her intent to petition for termination of her parental rights so that social services would not pursue child support from her. In response, social services initiated a support action against the petitioner in May, 1999, and soon discovered that on June 7,1999, she had filed applications to terminate her parental rights in the New Milford Probate Court.

At about the same time, a family support magistrate issued a temporary child support order against the petitioner on June 2, 1999, and modified that order on August 18, 1999. On December 15, 1999, the petitioner, who was represented by counsel, agreed to permanent child support orders based on her net weekly earnings of $242 per week in “current” support and $18 per week to be paid toward an arrearage. Since the date of those orders, the petitioner has made only four payments, all toward her arrearage.

On March 29, 2000, the children’s father and paternal aunt petitioned the Waterbury Probate Court for guardianship of the children. Although the petitioner was notified of those proceedings, she did not attend, and the court awarded temporary custody and guardianship of the children to their aunt. On April 12, 2000, the aunt placed the children back on state assistance, receiving $124 per week from social services. Since then, the father has visited the children only sporadically, and their aunt has supervised his visits.

On April 19, 2000, the New Milford Probate Court issued a decree terminating the petitioner’s parental rights as to her three children. Following that decree, the “current” child support order of the family support magistrate became inactive so that the petitioner would not be charged for “current” support as of that date. The earlier arrears order, however, remained in effect. Social services then filed a motion, supported by the department of children and families, for reconsideration and to open the decree with the New Milford Probate Court, which was denied. On June 21, 2000, however, the New Milford Probate Court granted social services’ motion for appeal from probate, and an appeal was timely brought before the trial court.

After denying the petitioner’s subsequent motion to dismiss the appeal for lack of standing on January 26, 2001, the court held a trial de novo because no transcript had been made of the underlying Probate Court hearing. The court found that termination of the petitioner’s parental rights would harm the minor children financially by reducing their weekly child support by nearly half, from $242 to $124 per week. Further, the court implicitly found that termination would harm the children emotionally because, as the court expressly stated, it would sever a relationship that the children strongly wanted to continue and did not want the court to end. The court ultimately found that termination of the petitioner’s parental rights was not in the children’s best interests; the court also found that the petitioner had failed to meet her burden of proof to show that termination was in the children’s best interests. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The petitioner’s claim implicates the trial court’s subject matter jurisdiction in two ways. We begin our analysis by noting our scope of review. “[Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.” (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). Finally, “[b]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002).

A

The petitioner first challenges the court’s subject matter jurisdiction by claiming that it improperly determined that the commissioner had standing to pursue an appeal from the New Milford Probate Court’s decree terminating her parental rights. In support of that claim, the petitioner argues that the commissioner acted solely out of the financial interest of social services in obtaining child support payments from her and not in the best interests of the children. Finally, she contends that this financial interest cannot be the basis for standing or aggrievement.

By contrast, the commissioner argues that she is aggrieved by the decree of the New Milford Probate Court to terminate the petitioner’s parental rights because the decree effectively cancels the “current” child support order issued by the family support magistrate. Consequently, the commissioner asserts that she has standing because the decree adversely affects her statutory right to reimbursement from the petitioner of the state assistance social services formerly afforded to and currently provides for her children. We agree with the commissioner.

“It is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” Ganim v. Smith & Wesson Corp., 258 Conn. 313, 346, 780 A.2d 98 (2001). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subj ect matter of the controversy.” (Internal quotation marks omitted.) Webster Bank v. Zak, supra, 259 Conn. 774. Accordingly, “[o]ur standing jurisprudence consistently has embodied the notion that there must be a colorable claim of a direct injury to the [party] . . . .” Ganim v. Smith & Wesson Corp., supra, 346.

We have ruled previously that the right to appeal from a Probate Court decree, or standing to do so, is statutorily conferred by General Statutes § 45a-186, which determines standing by whether a party is aggrieved by that decree. See Adolphson v. Weinstein, 66 Conn. App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002); see also In re Michaela Lee R., 253 Conn. 570, 606, 756 A.2d 214 (2000) (appeal from probate is absolute right of aggrieved person). “[T]he absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal.” (Internal quotation marks omitted.) Adolphson v. Weinstein, supra, 595. Section 45a-186 (a) provides in relevant part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise spe-daily provided by law, may appeal therefrom to the Superior Court . . . .” In relation to appeals from Probate Court decrees, we have ruled that “[a]ggrievement requires only the existence of a cause of action on which a party’s plea for relief may rest. . . . The concept of aggrievement turns on whether there is a possibility, as distinguished from a certainty, that the Probate Court’s order or decree has adversely affected some legally protected interest that the [party] has in the subject matter of the decree or order or in the estate.” (Citation omitted.) Id., 596.

More than one decade ago, our Supreme Court had occasion to address specifically the issue of whether a state agency has standing to appeal from a decision of the Probate Court that has an impact on the state’s right to reimbursement of assistance payments. See Dept. of Income Maintenance v. Watts, 211 Conn. 323, 326-27, 558 A.2d 998 (1989). In Watts, the state agency that was the predecessor to social services appealed from a Probate Court decision approving “the disclaimer, by a conseivator of an incapable person receiving state assistance, of his ward’s interest in a testamentary trust, in view of the prohibition . . . against dispositions of the property of state aid recipients.” Id., 324. Examining the state’s financial interest, our Supreme Court stated that the legally protected interest affected by the Probate Court decision “may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant.” Id., 326. Citing General Statutes § 17-83e, the statutory predecessor to General Statutes § 17b-93, our Supreme Court ultimately held that the state had standing to appeal because it had the right to reimbursement of assistance, and the Probate Court decision could possibly adversely affect that right. Id., 326-27. Although we recognize that the factual undeipinnings in Watts may differ from those of the present case, the ultimate legal principle illuminated in that case is no less applicable to the scenario at hand.

In this case, the petitioner received monthly state assistance from social services, in the form of AFDC and TANF benefits, to help care for her children. Under § 17b-93, the commissioner has the statutory right to seek reimbursement of that assistance from the petitioner, i.e.,from the legal parent of an aid to dependent children beneficiary ora temporary family assistance beneficiary. See General Statutes § 17b-93 (a). As a result, it is clear that the Probate Court’s decree terminating the petitioner’s parental rights possibly adversely affects the commissioner’s right to reimbursement because it eradicates the petitioner’s status, along with the rights and responsibilities pertaining thereto, as the legal parent of the children. Accordingly, the commissioner qualifies as an aggrieved person and has standing to pursue her appeal.

B

The petitioner next claims that the court improperly exercised its subject matter jurisdiction because it proceeded to trial while related proceedings, of which it was aware, were pending before the Waterbury Probate Court. More specifically, the petitioner argues that the trial court should have dismissed the commissioner’s appeal because it knew that the Waterbury Probate Court already had before it an application from the children’s father to restore his guardianship of the children. We decline to review that claim.

In claiming that the trial court should have dismissed the commissioner’s appeal because of an action pending before the Waterbury Probate Court, the petitioner appears to be raising the prior pending action doctrine for the first time on appeal. The prior pending action doctrine is properly raised via a motion to dismiss before the trial court. See Gaudio v. Gaudio, 23 Conn. App. 287, 294, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). We also note that the prior pending action doctrine “does not truly implicate subject matter jurisdiction. ... It may not, therefore, as is true in the case of classic subject matter jurisdiction, always be raised at any time.” (Citation omitted.) Id., 294-95. Here, the petitioner’s motion to dismiss the appeal raised only the issue of standing. Moreover, even if the petitioner’s claim had been properly raised at the trial level, the parties have not provided this court with an adequate record for review because the record does not contain a copy of the pleadings from the Waterbury Probate Court that we may compare with the pleadings of this case. Cf. Modzelewski v. William Raveis Real Estate, Inc., 65 Conn. App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001). For those reasons, we decline to review the issue and turn to the petitioner’s next and last claim.

II

The petitioner’s final claim is that the court improperly denied her petitions to terminate her parental rights despite her consent. Specifically, the petitioner asserts that the court based its decision as to what is in her children’s best interests solely on her finances. She argues that in doing so, the court improperly expanded our Supreme Court’s holding in In re Bruce R., 234 Conn. 194, 214-15, 662 A.2d 107 (1995), by making financial considerations the sole determinative issue in whether a consensual termination of parental rights petition is granted rather than just a factor in such a decision. In support of her claim, the petitioner contends that the court had no factual basis on which to find that her children’s best interests would be better served by an indirect relationship with their mother through her provision of child support rather than no relationship with her and no provision of child support. We do not agree.

The following additional facts and procedural history are relevant to our determination of the petitioner’s claim. It is undisputed that the petitioner filed knowing and voluntary consensual petitions to terminate her parental rights as to her three minor children, and the court so found during the trial. Notwithstanding that, the petitioner insisted at trial that she did not file her petitions to avoid paying child support, but then also claimed that she could not be available “for anybody or anyone financially or emotionally.” By contrast, the petitioner admitted that despite having secured and then lost a number of jobs, she became financially and emotionally stable enough to handle time away from work and to pay a lawyer to proceed with the termination of her parental rights. She stated that she decided to pursue the termination at a time “when I felt that I was financially set and medical insurance had finally kicked in, and that I was starting to go on with my life.”

Further, the petitioner acknowledged that she understood that she was not being asked to “become intimately involved with the children on a daily basis.” She also stated that even if the court hypothetically could guarantee her safety from the children’s father and end any contact between her and her children, except for paying child support, she would not agree to pay the child support. Nonetheless, an investigation supervisor from social services testified that on the basis of the petitioner’s present financial circumstances, she could successfully request to modify the family support magistrate’s order to pay $242 per week for child support plus $18 per week in arrears to $183 per week for child support plus $37 per week in arrears. The supervisor further stated that the children were then receiving only $124 per week from the state.

During the trial, the court interviewed the children in camera to determine whether they wanted to sever their relationship with the petitioner. The court then clearly stated on the record its findings from that interview. Detailing each child’s responses from the interview, the court referred to their statements and drawings about how much they missed their mother. The court summarized the children’s feelings by stating that there was “absolutely no question that these kids want mother to remain in their lives, want to reconnect with mother and definitely oppose, each and every one of them, terminating mom’s parental rights.” Those findings also are undisputed in this appeal.

On September 14, 2001, in preparing to announce its findings on the record, the court stated, “It is painfully obvious . . . that petitioner has assigned tending to her own selfish needs as her top priority in life.” The court then stated that its duty was to consider the needs of the children. The court then found that the petitioner’s motivation in seeking termination was her “desire to maintain financial independence and a desire to get even with the state for terminating her benefits.” The court further found that the children did not want the petitioner’s parental rights terminated. Moreover, the court found that the children had been severely penalized by the decree of the New Milford Probate Court terminating the petitioner’s parental rights.

Recognizing that it could not force the petitioner to reconnect emotionally with her children, the court stated that it could “utilize [the] petitioner’s demonstrated earning capacity to improve the children’s financial health.” The court also found that from the petitioner’s perspective, “[i]t’s about the money and it should be about the children.” In accordance with that, the court stated that it would not allow the petitioner to “pull off [a] ruse or sham.” The court then announced its finding that by clear and convincing evidence, the petitioner had failed to satisfy her burden of proof that termination of her parental rights would be in the best interests of the children. Finally, the court declared the decree of the New Milford Probate Court null and void, and it denied the petitioner’s petitions to terminate her parental rights.

“The standard for review on appeal [in a termination of parental rights case] is whether the challenged findings are clearly erroneous.” (Internal quotation marks omitted.) In re Alissa N., 56 Conn. App. 203, 207, 742 A.2d 415 (1999), cert. denied, 252 Conn. 932, 746 A.2d 791 (2000). Thus, “[o]n appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Gary B., 66 Conn. App. 286, 289, 784 A.2d 412 (2001); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 35, p. 161 & (Cum. Sup. 2001) § 35, p. 149.

We are mindful as well of our Supreme Court’s holding in In re Bruce R. that “[t]he termination of parental rights ... is a drastic solution; it severs all ties between parent and child, including the parent’s duty to support his or her children. As such, parental rights should not be terminated solely to advance the convenience and interests, either emotional or financial, of the parent. . . . Such petitions seek judicial imprimatur on a parent’s own, voluntary abandonment of his or her parental responsibility. This court cannot condone such actions without a careful consideration of the financial condition of the parents as part of judicial review. Therefore, trial courts should grant consensual petitions only in those rare situations where, after considering the totality of the circumstances, including the financial condition of the parents, granting that petition truly would be in the best interest of the child. ” (Citation omitted.) In re Bruce R., supra, 234 Conn. 214.

The petitioner claims that the court’s determination was solely based on her financial situation and that, as such, it contravenes the mandate of our Supreme Court. Simply put, that is a clear mischaracterization of the court’s findings and the bases for them. In making its findings, the court referred to the petitioner’s motivation in seeking termination, the feelings the petitioner’s children had about terminating her parental rights, and the financial ability of the petitioner to pay child support, despite her desire to end her relationships, legal or otheiwise, with her children. The court noted that it believed she wanted to pull off a ruse on it, her children and the state’s taxpayers. The court’s multifaceted approach demonstrates that it considered the totality of the circumstances based on all the testimony and exhibits, and not just the petitioner’s financial means. In accordance, it is clear that the court did not expand the meaning of our Supreme Court’s holding in In re Bruce R.

It also is evident from our thorough review of the record that the trial court’s findings are, in light of the evidence in the entire record, not clearly erroneous. The petitioner stated that rather than using her financial means to provide for her children, she preferred to seek the termination of her parental rights and responsibilities. Nonetheless, the commissioner offered evidence that the petitioner could successfully modify the amount of child support she would have to pay and that this would still benefit the children in comparison to what benefits they received from the state. Moreover, the children demonstrated in an interview with the court that they strongly wanted to keep a relationship with their mother. Rather than allowing the petitioner to pull off a sham on the court and to divest herself of her responsibilities to her children, which would directly undermine our law, the court determined, on the basis of the entire record, that the petitioner had failed to meet her burden of proving that termination of her parental rights was in the children’s best interests. Making every reasonable presumption in favor of the court’s ruling, we conclude that the court’s findings were legally correct and factually supported and, thus, not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       See In re Jessica M., 47 Conn. Sup. 42, 774 A.2d 1097 (2001).

       The decree terminating the petitioner’s parental rights, if it were allowed to stand, would have completely severed the legal relationship between the petitioner and her children, including all rights and responsibilities she would have had relative to her children, such as providing child support. See General Statutes § 45a-707 (8); In re Bruce R., 234 Conn. 194, 214, 662 A.2d 107 (1995).

       General Statutes § 17b-93 (a) provides in relevant part: “If a beneficiary of aid under the . . . aid to families with dependent children program [or] temporary family assistance program . . . has or acquires property of any kind or interest in any properly, estate or claim of any kind, except moneys received for the replacement of real or personal property, the state of Connecticut shall have a claim subject to subsections (b) and (c) of this section, which shall have priority over all other unsecured claims and unrecorded encumbrances, against such beneficiary for the full amount paid, subject to the provisions of section 17b-94, to him or in his behalf under said programs; and, in addition thereto, the parents of an aid to dependent children beneficiary . . . or a temporary family assistance beneficiary shall be liable to repay, subject to the provisions of said section 17b-94, to the state the full amount of any such aid paid to or in behalf of either parent, his spouse, and his child or children. The state of Connecticut shall have a lien against property of any kind or interest in any property, estate or claim of any kind of the parents of an aid to dependent children beneficiary, in addition and not in substitution of its claim, for amounts owing under any order for support of any court or any family support magistrate, including any arrearage under such order . . . .”

       Although the commissioner also contends that she has standing to appeal on the basis of notice requirements, an assignment of rights by the petitioner and under General Statutes § 45a-131, which provides in relevant part that the commissioner may fully participate in Probate Court proceedings, we need not address those alternative arguments.

       Although the concepts of standing and aggrievement are not legally identical, the question of aggrievement is in essence a question of standing. See Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 255, 773 A.2d 300 (2001). As to the present issue, therefore, if the commissioner was aggrieved by the decree, of the Probate Court, then she has standing to mount an appeal of that decree, and the trial court may exercise its subject matter jurisdiction over that appeal.

       See footnote 3.

       “We have explicated the prior pending action doctrine as follows: The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . The rule forbidding the second action is not, however, one of unbending rigor, nor of universal application, nor a principle of absolute law .... We must examine the pleadings to ascertain whether the actions are virtually alike.” (Internal quotation marks omitted.) Modzelewski v. William Raveis Real Estate, Inc., 65 Conn. App. 708, 713-14, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001).

       Although we cannot review the issue, we note that on its face, the petitioner’s prior pending action claim appears to be fatally flawed because none of the elements of the doctrine seem to apply to the facts of this case. For example, the present matter was filed on June 7, 1999, but the “prior” pending action was filed nearly ten months later on March 29, 2000. Moreover, the Waterbury proceeding involved different parties (the children’s father and paternal aunt) and appears not to have been brought to obtain the same end or object (the guardianship of the children as opposed to the termination of the petitioner’s parental rights).


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    WEBER’S NURSERY, INC. v. PAUL PRIOR ET AL.
    (AC 21232)
    Mihalakos, Drangims and Hennessy, Js.
    Argued January 10 —
    officially released August 6, 2002

      Jason E. Pearl, for the appellant (plaintiff).

      Martin McQuillan, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Weber’s Nursery, Inc., appeals from the judgment of the trial court denying its claim for moneys owed to it by the homeowner defendants, Paul Prior and Sally Prior, for landscaping work performed on their premises. The plaintiff claims that the court improperly (1) made findings of fact that were unsupported by the evidence before it and (2) denied the plaintiffs motion for articulation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff and the defendants, without a written contract, agreed that the plaintiff would perform certain landscaping work on the defendants’ premises. The plaintiff subsequently brought an action seeking the unpaid balance owed to it for the work performed. The defendants filed a counterclaim to recover for damage resulting from the allegedly negligent manner in which the plaintiff performed the landscaping. The matter was referred to a fact finder pursuant to General Statutes § 52-549n. The threshold legal question addressed by the fact finder and the parties was whether the Home Improvement Act (act), General Statutes § 20-418 et seq., barred the plaintiff from any recovery in the absence of a written contract. The fact finder issued a report finding that the act applied and concluded that the plaintiff was barred from any recoveiy. Pursuant to General Statutes § 52-549s, the clerk scheduled the report for the court’s consideration. The plaintiff filed an objection to the court’s acceptance of the report pursuant to § 52-549s, claiming that the fact finder had exceeded his authority by ruling on a question of law regarding whether the act applied and thereby barred recovery. The court agreed with the plaintiff, stating that it is clear that the fact finder was limited to making findings of fact and was without authority to decide a question of law. The court, then, pursuant to § 52-549s (a) (5), which permits the court to “take any . . . action the court may deem necessary,” heard argument about whether the act applied and, without regard to the fact finder’s conclusion, decided that the act applied and barred the plaintiffs claim. Thereafter, the plaintiff filed this appeal.

I

The plaintiff first claims that the court improperly made findings of fact without hearing from a single witness or taking any evidence. The plaintiff bases this claim on 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996), in which our Supreme Court stated that a “finding of fact is clearly erroneous when there is no evidence . . . to support it . . . .” (Internal quotation marks omitted.)

We agree with the plaintiff that a finding of fact, without any evidence to support it, is clearly erroneous. This court has so held in Record Journal Publishing Co. v. Meriden, 51 Conn. App. 508, 517, 722 A.2d 291 (1999). We disagree, however, with the plaintiffs assertion that there was no evidence in the present case to support the findings of fact that led to the court’s conclusion that the act applied. We note at the outset that the plaintiff joined with the defendants and requested the fact finder to decide prehminarily the issue of whether the act applied to the facts of the case. Once the issue was resolved in favor of the defendants, the plaintiff objected to the acceptance of the fact finder’s report. Pursuant to § 52-549s (a), the court is required to consider the fact finder’s report and any objections to the acceptance of the findings of fact. The plaintiff objected to the report on the ground that the fact finder found that the act applied and made a conclusion of law, thereby exceeding his statutory authority. The court agreed and, pursuant to the authority granted it under § 52-549s (a) (5) to “take any other action the court may deem necessary,” ordered counsel “to appear for additional argument on [the] applicability of [the] Home Improvement Act.” Without objection by the parties, the court heard argument on the issue and considered counsel’s briefs with a view toward deciding the threshold legal issue itself, without regard to the fact finder’s conclusion.

The plaintiff, in its complaint, alleged that it had set forth a proposal in response to the defendants’ solicitation for nursery services on their premises. There is no written contract in evidence, and the defendants deny that one exists. Therefore, if the work performed by the plaintiff is found to be a home improvement rather than the construction of a new home, the act applies and the judgment of the court must be affirmed. In this case, the court found, relying on the reasoning set forth in Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 678, 657 A.2d 1087 (1995), that the landscaping work was not “so interrelated, temporarily or otherwise, that [it] constituted an integral part of ‘[t]he construction of a new home.’ ” The court concluded that the work performed was a home improvement to which the act applies.

The court had before it the fact finder’s report, which contained the finding that “nothing in the proposal referenced new home construction or specified performance at a certain stage of the home construction.” The court heard argument by counsel, considered the parties’ briefs on the issue, and reviewed the pleadings, the plaintiffs proposal for landscaping, the certificate of occupancy and the performance bond. In support of its conclusion that the landscaping was not an integral part of the construction of a new home, the court considered the fact that a certificate of occupancy was issued before the landscaping was begun and the fact that the plaintiff was not the general contractor building the house, nor was the plaintiff working for the general contractor.

The plaintiff, however, contends that the fact that the town of Berlin required the defendants to acquire a performance bond to ensure that certain grading and fence work be done is proof that this work is part of the construction of the house. The court concluded that the grading and fence work performed by the plaintiff may have had some incidental relation to the defendants’ satisfaction of the requirement and release of the performance bond, but “represents only a tiny [portion] of the work” done by the plaintiff for the defendants. It did not transform the landscaping into “the construction of a new home.”

On the basis of the pleadings, documents, arguments and briefs, we conclude that the court’s determination that the landscaping work was not an integral part of the construction of the defendants’ house was not clearly erroneous.

II

The plaintiff also claims that the court improperly denied its motion for articulation. The court denied the motion for articulation without comment. The plaintiff timely filed a motion for review of the denial with this court. We granted review but denied the relief requested. The matter has been reviewed, therefore, in accordance with Practice Book § 66-6. The plaintiffs claim, in which the plaintiff is requesting that, in effect, we again review its motion for articulation is dismissed as being improperly presented before us.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court referred the issues on the counterclaim to a fact finder for resolution, and those issues are not part of this appeal.

       General Statutes § 52-549n provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the Superior Court, except claims under insurance contracts for uninsured and or underinsured motorist coverage, in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than fifty thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the certificate of closed pleadings has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.”

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor . . . .”

       General Statutes § 52-549s (a) provides: “Not less than fourteen days after the filing of the finding, the clerk shall schedule the matter for consideration by the court. The parties may file objections to the acceptance of the finding of fact in accordance with rules established by the judges of the Superior Court. The court may (1) render judgment in accordance with the finding; (2) reject the finding and remand the case to the fact-finder who originally heard the matter for a rehearing on all or part of the finding of fact; (3) reject the finding and remand (he matter to another fact-finder for a rehearing; (4) reject the finding and revoke the reference or (5) take any other action the court may deem necessary.”


author: SHEA, J.

text:
    ATC PARTNERSHIP v. TOWN OF WINDHAM ET AL.
    (AC 21325)
    Mihalakos, Flynn and Shea, Js.

      Argued November 30, 2001 —
    officially released August 6, 2002

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellant (plaintiff).

      Richard S. Cody, town counsel, with whom were Lisa Silvestri and, on the brief, Jason Westcott, for the appellees (defendants).
   Opinion

SHEA, J.

The plaintiff, ATC Partnership, appeals from the judgment of the trial court in favor of the defendants in an action of replevin to regain possession of certain machinery and equipment. The plaintiff claims that the court improperly (1) concluded that the plaintiffs property was not wrongfully detained because the defendant town of Windham (town) seized that property pursuant to an alias tax warrant, (2) concluded that the replevin action was barred by the doctrine of sovereign immunity and (3) concluded that because the subject property was fixtures, the plaintiff could not maintain an action of replevin pursuant to General Statutes § 52-515. In its action of replevin, in which the plaintiff also relied on the common-law doctrine of conversion, the plaintiff claimed that it is the rightful owner of the machinery, furnishings, equipment and other personal property contained in several factory buildings constituting the former American Thread Company (American Thread) complex in Willimantic. The plaintiffs claim of ownership arises from its purchase in 1987 of the forty acres on which are situated the buildings containing the personal property claimed by the plaintiff as the rightful owner.

The amended revised complaint alleges that the plaintiff is a general partnership with a place of business in New Haven and is the owner of certain personal property located at the former American Thread complex in Willimantic. It alleges further that the town, acting through the defendant Northeast CT Economic Alliance, Inc. (Northeast), condemned the real estate owned by the plaintiff on or about August 12, 1994, with a certificate of taking filed on or about September 9,1994, and that, located in the premises taken through the condemnation proceeding, was personal property as set forth in schedule A attached to the complaint. The complaint alleges that Northeast conveyed the real property to the defendant Windham Mills Development Corporation (Windham Mills), that one or more of the defendants are directly or indirectly in possession of or in control of the personal property and that there may be a claim that Windham Mills is, in fact, in possession of the personal property described in schedule A attached to the complaint.

The complaint further alleges that the defendants are wrongfully detaining the plaintiffs property, and have failed, neglected and refused to return it to the plaintiff, all to the plaintiffs special loss and damage, and have prevented the plaintiff from removing it from the real estate. It is alleged further that the plaintiff is the lawful owner of the personal property over which the defendants have maintained possession and that the plaintiff has the right to immediate possession of the personal property.

The court, in its memorandum of decision filed September 29, 2000, characterized the plaintiffs revised complaint as a replevin action. General Statutes § 52-515 provides: “The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.” The memorandum of decision notes that “[p]rior to the filing of the plaintiffs complaint on December 19, 1994, the town had commenced an action for injunctive relief against [the plaintiff] on May 19, 1994, in which it alleged that although the parties had agreed to cooperate in order to obtain financial assistance from the state for the rehabilitation and redevelopment of the American Thread mill complex, [the plaintiff] had ‘breached the agreement by removing and continuing to remove valuable and historic property from the complex.’ ” The court file also contains a letter from counsel for the plaintiff dated May 19, 1994, stating that his clients had not removed anything from the premises, have no immediate plans to do so and that without a court order, his clients agree not to remove any contents until there is a hearing in regard to the matter. Although a hearing was scheduled for October 6,1994, the injunction action was withdrawn by the town on September 29, 1994. The court, consequently, had no occasion to decide the issues raised by the town’s claim that the plaintiff had breached the agreement to cooperate and had removed some property from the former American Thread complex.

I

On May 18,1994, the tax collector for the town issued an alias tax warrant pursuant to General Statutes (Rev. to 1993) § 12-162. Section 12-162 provides in relevant part that “[u]pon the nonpayment of any property tax when due, demand having been made therefor as prescribed by law for the collection of such tax, an alias tax warrant may be issued by the tax collector, which may be in the following form: ‘To the Sheriff of the County of [Tolland], his deputy or any constable of the Town of [Windham] within said county, Greeting: By authority of the state of Connecticut you are hereby commanded to collect forthwith from [ATC Partnership] of [New Haven] the sum of.... dollars, the same being the amount of a tax with interest or penalty and charges which have accumulated thereon, which tax was levied by [the town of Windham] upon [the personal property] of said [ATC Partnership] as of the .... day of.....In default of payment of said amount you are hereby commanded to levy for said tax or taxes, including interest, penalty and charges, hereinafter referred to as the amount due on such execution, upon any goods and chattels of such person and dispose of the same as the law directs . . . and, after having satisfied the amount due on such execution, return the surplus, if any, to him; or you are to levy upon the real estate of such person and sell enough thereof to pay the amount due on such execution and give to the purchaser a deed thereof; or you shall make demand upon the main office of any banking institution indebted to such person, subject to the provisions of section 52-367a, as if judgment for the amount due on such execution had been entered, for that portion of any type of deposit to the credit of or property held for such person, not exceeding in total value the amount due on such execution; or you are to garnishee the wages due such person from any employer, in the same manner as if a wage execution therefor had been entered, in accordance with section 52-36la.’ ”

In its memorandum of decision, the court notes that the alias tax warrant issued by the tax collector expressly states that its purpose was “ ‘to protect fixtures and other material of historic value.’ ” No provision of § 12-162 or any other statute authorizes the use of such a warrant for that purpose. At trial, David Page, then a Windham County deputy sheriff, identified the tax warrant that he had served at the direction of the tax collector for the town, and testified that the tax collector had told him that the town was concerned about the machinery and equipment being taken out of the mill complex, and that she had directed him to seize the property “in lieu of taxes” and to prevent the property from being removed from the premises. Page testified that he did nothing except to secure and to protect the property, and to post a public notice of the seizure, and that he did not make a final return of service until March 31, 1997. The court made no finding of whether any taxes were owed to the town by the plaintiff, let alone the amount thereof, and also overlooked the absence of any statutory provision allowing an alias tax warrant to be used “ ‘to protect fixtures and other material of historic value.’ ”

The last sentence of § 12-162, authorizing a levy on any goods and chattels of the plaintiff and disposing of the same as the law directs, and, after satisfying the amount due on such execution, directing that any surplus be returned to the plaintiff, has been totally ignored. No finding has yet been made of the amount of delinquent taxes claimed to be owed to the town by the plaintiff. Nevertheless, the court concluded that the doctrine of sovereign or governmental immunity barred the plaintiff from pursuing the statutory remedy of replevin and that equitable relief should also be denied “based upon considerations of public policy because it would interrupt the collection of taxes, one of the most important attributes of the sovereign power [and] one of its most vital functions.” See Arnold v. Middletown, 39 Conn. 401, 406 (1872).

We conclude that the requirements of § 12-162 concerning the procedure to be followed in collecting taxes claimed by a town to be delinquent cannot be disregarded so cavalierly. Sovereign immunity cannot be invoked to justify conduct that violates a statute of this state, such as the failure of the town to follow the procedures prescribed by § 12-162 for collecting delinquent taxes and its use of an alias tax warrant to seize the plaintiffs property for purposes other than the collection of such taxes. Accordingly, we reverse the judgment of the trial court, which held that the plaintiffs action was barred by the doctrine of sovereign immunity.

II

In addition to its misplaced reliance on the doctrine of sovereign immunity, the court also held that the items the plaintiff claimed as its property, which were housed in the American Thread factory buildings, were fixtures and, therefore, were not “goods or chattels” in which the plaintiff has a general or special property interest as required by § 52-515 for a statutory action of replevin. It appears that the court wholly ignored the plaintiffs claim of ownership of the machinery and other contents of the former American Thread complex, although it never made any determination that the town, which never asserted such a claim, was the rightful owner.

The assumption of the court that because much of the personal property claimed by the plaintiff as the rightful owner was affixed or fastened to the floors or walls of the buildings, that that property constituted fixtures that had become part of the real estate the town had acquired in the condemnation proceeding, is unsupported by anything in the record concerning the condemnation proceeding. The plaintiff could not have lost its rights as owner of the machinery and other personal property in the buildings unless the record of the condemnation proceeding reasonably would support such a conclusion. We note, again, that the town has not asserted any such claim. Accordingly, we reverse the judgment of the trial court with respect to that issue.

Ill

The basis for the plaintiffs claim of ownership of the contents of the buildings comprising the former American Thread complex is its purchase, in 1987, of a parcel in the town consisting of about forty acres with the buildings thereon, which had been owned and operated as a textile mill for many years by American Thread for the manufacture of thread, yam and string products until the company terminated its manufacturing operations at that site in 1985. On December 5, 1985, American Thread sold the property to Eastern Connecticut Industrial Park Associates (Eastern), which sold the property to the plaintiff in 1987 for $2.7 million. The machinery that had been used by American Thread, most of which was fastened to the floors of the buildings, as well as the tools, conveyer belts, workbenches and other furnishings used in manufacturing thread and yam became the property of Eastern and ultimately became the property of the plaintiff when it purchased from Eastern the forty acre parcel with the buildings and their contents thereon. No manufacturing or other business or commercial activity was conducted on the site by the plaintiff or anyone else while the plaintiff owned the property.

On September 9,1994, Northeast, acting as the statutory implementing agency and condemning authority for the town, filed a certificate of taking by eminent domain for the forty acres comprising the former American Thread complex and awarded the plaintiff $1 as compensation for the property it had purchased from Eastern in 1987 for $2.7 million. The plaintiff, not surprisingly, appealed from the statement of compensation, and a hearing was conducted before the court to determine the fair market value of the property taken. After a lengthy hearing at which several appraisers testified, the court concluded that the fair market value of the property taken was $1,675 million and, accordingly, rendered judgment for the plaintiff to recover that amount from the town.

The record clearly supports the plaintiffs claim of ownership of the machinery and other contents of the former American Thread complex, which were included in its purchase of the forty acres from Eastern in 1987. The defendant town, however, has not presented any basis to support a claim of ownership of the contents of those buildings. In fact, it has not asserted any such claim of ownership and apparently relies on its possession of the contents to justify its refusal to permit the plaintiff to remove its claimed property from the buildings. The value of the contents of the former American Thread complex never was considered during the condemnation proceeding in which both the plaintiff and the town participated.

We conclude that the judgment of the court must be reversed. That judgment leaves the plaintiff, which is the undisputed owner of the contents of the buildings, without any recourse for recovering its property, which now is held in the possession of the town, which never in the course of this litigation has even claimed any ownership interest in that property. Possession is not equivalent to legal ownership. The court, apparently, assumed that the machinery and other equipment in the former American Thread complex were fixtures and thus had become part of the real estate that the town had acquired in the condemnation proceeding. That conclusion, however, ignores the plaintiffs interest as owner of the contents of the buildings.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       In addition to the defendant town of Windham, Northeast CT Economic Alliance, Inc., and Windham Mills Development Corporation are defendants and are parties in this appeal.

       General Statutes § 52-515 provides: “The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.”


author: DRANGINIS, J.

text:
    CADLE COMPANY v. ROBERT ERRATO ET AL.
    (AC 20268)
    Foti, Dranginis and Hennessy, Js.
    Argued November 30, 2001 —
    officially released August 6, 2002

      Thomas G. Benneche, for the appellant (named defendant).

      PaulN. Gilmore, with whom, on the brief, were Bruce J. Gelston and Patrick M. Bimey, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

In this action involving a default on a promissory note, the defendant Robert Errato appeals from the judgment of the trial court, following a trial to the court, in favor of the plaintiff, Cadle Company. On appeal, the defendant claims that the trial court improperly (1) concluded that the plaintiff was a holder in due course of the promissory note when (a) the copy of the promissory note presented at trial should have been excluded under the best evidence rule and as impermissible hearsay evidence and (b) the plaintiff failed to produce at trial the original promissory note, (2) concluded that the plaintiffs action was not time barred by the applicable statute of limitations and (3) admitted into evidence a document under the business record exception to the hearsay rule. We affirm the judgment of the trial court.

The trial court found the following facts. On May 17, 1991, the defendant and Paul Denz, his then business partner, executed a commercial promissory note in favor of the Bank of New Haven (bank) in the amount of $93,000 on demand, with monthly payments of principal and interest at a rate of 9.5 percent per annum. The defendant and Denz subsequently defaulted on their payments on the promissory note.

The bank demanded payment on the note, and on December 13, 1991, the defendant and Denz met with Joanne Miller, a loan officer at the bank. At the meeting, in order to meet their financial obligation to the bank, the defendant and Denz proposed payments of $500 per month on the principal with no payments of interest. The bank accepted the proposal in a letter dated March 23, 1992, in which it stated that the monthly payments were to begin on April 10, 1992. Although there was no written modification of the original note, the parties intended for this agreement to provide temporary relief to the defendant and Denz until their financial condition improved.

The bank received a check for $500 from Denz on April 1,1992. Denz attached a letter to the check stating his intent to send a check for that sum each month to reduce the principal of the $93,000 debt owed. A copy of that letter was sent to the defendant. Denz sent another check for $1000 to the bank in June, 1992, credited on July 30, 1992, which reduced the principal to $91,500.

On September 15, 1994, the plaintiff entered into a loan and sale agreement with the bank for the purchase of its loans. The bank assigned its rights to the promissory note executed by the defendant and Denz to the plaintiff. On March 2, 1998, the plaintiff instituted this action as a holder in due course. Following a trial to the court, the court rendered judgment in favor of the plaintiff in the amount of $91,500 plus interest. This appeal followed. Additional facts will be set forth where pertinent to the issues raised.

I

The defendant first claims that the trial court improperly denied his motion for judgment of dismissal at the close of the plaintiffs case because the plaintiff failed to prove prima facie that it was a holder in due course of the promissory note at issue. Specifically, the defendant contends that because the plaintiff presented only a copy of the note at trial and failed to produce the original note, it could not demonstrate that it possessed, and thus was a holder of, the promissory note. We are not persuaded.

The following additional facts are pertinent to our resolution of this claim. During its direct examination of Miller, the plaintiff introduced into evidence a copy of the note. The defendant objected to its admission under the best evidence rule and claimed that to bring an action on the note, the plaintiff must produce the original note. The plaintiff informed the court that the original was attached to the complaint and was held at their main office in Ohio. In response, the court concluded that so long as the plaintiff could establish that the note “was made in the regular course of business and it was the practice [of the plaintiff] to make it at or about the time I think under the statute it would become admissible even though it’s a copy.”

The plaintiff then ascertained from Miller that the note was produced in the regular course of business and that it was the bank’s practice to create such documents. The defendant then objected to the admission of the note on hearsay grounds. The trial court overruled the defendant’s objections, stating that the objection “goes to the weight, not the admissibility,” and permitted the copy of the note to be admitted into evidence.

Later in the trial, the plaintiff called Nicholas Valorie, an account manager for the plaintiff, to testify as to the plaintiffs ownership of the note. When the plaintiff introduced into evidence a copy of the purchase and sale agreement between itself and the bank during Val-orie’s testimony, the defendant objected to the admission of the copy on the grounds of the best evidence rule and because it failed to meet the business record exception to the hearsay rule. The trial court overruled the objections.

At the close of the plaintiffs case, the defendant moved for a judgment of dismissal based on the plaintiffs failure to establish a prima facie case. The defendant moved for a judgment of dismissal because “[t]he plaintiff has failed to introduce the original note being sued on, has failed to introduce competent evidence as to what is, but the principle basis of the motion, Your Honor, is they do not have the debt instrument actually referenced in the complaint and being sued on today. . . . [T]hey failed to carry their burden of proof as to their holder [in] due course status. They don’t have the document. They are suing basically on a purchase and sale agreement. That’s not a negotiable instrument. That’s no proof of debt. That’s proof that maybe [the plaintiff] purchased this loan, but it’s not proof that they are a holder of this note.”

The trial court denied the defendant’s motion. In denying the motion, the court stated that for purposes of the motion it was required to view the evidence in the light most favorable to the plaintiff. The court concluded, on the basis of the reasonable inferences drawn from the evidence, that the plaintiff established that it was a holder in due course of the promissory note.

The defendant now contends that the court improperly denied his motion for judgment of dismissal because the plaintiff failed to present the original note at trial and thus could not establish a prima facie case that it was a holder of the note. In raising this issue, however, the defendant invokes an underlying eviden-tiary claim. Specifically, the defendant maintains that the trial court improperly admitted the copy of the note in the first place because the copy failed to satisfy the best evidence rule or to qualify under the business record exception to the hearsay rule pursuant to General Statutes § 52-180. We, therefore, will first address this evidentiary claim as it pertains to the admissibility of the note.

A

We review the trial court’s evidentiary rulings under an abuse of discretion standard. State v. Pearl, 28 Conn. App. 521, 535, 613 A.2d 304 (1992). “As defined by our Supreme Court, the best evidence rule requires a party to produce an original writing, if it is available, when the terms of that writing axe material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also B. Holden & J. Daly, Connecticut Evidence (1988) § 82 (a). The basic premise justifying the rule is the central position which the written word occupies in the law. Brookfield v. Candlewood Shores Estates, Inc., supra, quoting C. McCormick, Evidence (1984) § 230; see also Coelm v. Imperato, 23 Conn. App. 146, 150, 579 A.2d 573 (1990); Morales v. Saint Francis Hospital & Medical Center, 9 Conn. App. 379, 382, 519 A.2d 86 (1986), cert. dismissed, 202 Conn. 807, 520 A.2d 1287 (1987).” (Emphasis in original; internal quotation marks omitted.) O’Sullivan v. DelPonte, 27 Conn. App. 377, 384-85, 606 A.2d 43 (1992). The best evidence rule is a preferential, rather than an exclusionary rule. Brookfield v. Candlewood Shores Estates, Inc., supra, 12. Under the particular circumstances of this case, we, however, conclude that the copies were properly admitted into evidence regardless of the best evidence rule.

Despite the defendant’s objection to the introduction of the copy, the defendant offered no evidence that the copy was not accurate, nor, in fact, did he dispute the contents of the copy. See O’Sullivan v. Delponte, supra, 27 Conn. App. 385; Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 381-82, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). In response to the plaintiffs complaint, the defendant admitted that he had executed a promissory note in favor of the bank and that the contents of the document spoke “for itself. ” More significantly, the defendant actually testified that he and Denz had signed a promissory note payable to the bank on May 17, 1991, in the amount of $93,000. This is the exact information contained in the copy of the note. “[W]here the terms of a document are not in actual dispute, it is inconvenient and pedantic to insist on the production of the instrument itself.” (Internal quotation marks omitted.) Farr v. Zoning Board of Appeals, 139 Conn. 577, 582, 95 A.2d 792 (1953). The court, therefore, properly concluded that the copy of the promissory note was admissible.

We apply the same rationale with respect to the admission into evidence of the copy of the loan and sale agreement between the bank and the plaintiff. Again, the defendant failed to proffer any evidence demonstrating that the copy of the loan and sale agreement was inaccurate, nor did he present any evidence indicating that the bank did not enter into such an agreement with the plaintiff. Moreover, both Miller and Valorie testified that the bank and the plaintiff entered into such an agreement. We, accordingly, conclude that the court properly admitted into evidence the copy of the loan and sale agreement. While it would have been preferable for the plaintiff to have presented the original note and loan and sale agreement, under certain circumstances, such as the situation before us, where the authenticity of the copy is not challenged, the terms are conceded to, or are uncontradicted, and the defendant has not presented any evidence blemishing the copy’s reliability, a party can properly proffer the copy. See id., 582-83; Guaranty Bank & Trust Co. v. Dowling, supra, 4 Conn. App. 382.

The defendant additionally argues that the court improperly admitted the copies of the note and loan and sale agreement in violation of the business record exception to the hearsay rule. The business record exception to the hearsay rule does not apply to the introduction into evidence of a promissory note being sued on and also to contracts, such as the loan and sale agreement here. See 2 C. McCormick, Evidence (5th Ed. 1999) § 249, p. 100 (“[w]hen a suit is brought for breach of a written contract, no one would think to object that a writing offered as evidence of the contract is hearsay”). Given that the defendant did not properly invoke the business record exception to the hearsay rule, we conclude that this claim is without merit. Accordingly, the trial court properly admitted into evidence the copies of the note and the loan and sale agreement in accordance with the best evidence rule.

B

After concluding that the trial court properly admitted into evidence the copy of the promissory note, we now turn to the issue of whether the presentation of the copy sufficiently proved the plaintiffs status as a holder in due course. The defendant raises this claim as an appeal from the trial court’s denial of his motion for a judgment of dismissal, and we will accordingly first set forth the appropriate standard of review.

Practice Book § 15-8 provides that upon a defendant’s motion, a trial court may dismiss a plaintiffs cause of action for failure to establish a prima facie case following the plaintiffs presentation of evidence. “A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact. 9 J. Wigmore, [Evidence (4th Ed. 1974)] § 2494, p. 379. In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. ... In evaluating [the denial of] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.” (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). Whether the plaintiff has established a prima facie case is a question of law, over which our review is plenary. Middletown Associates v. Family Dollar Stores, Inc., 47 Conn. App. 723, 726, 706 A.2d 1376 (1998).

In correlation with our inquiry, we must also decide whether the trial court properly found that the plaintiff presented sufficient evidence to establish a prima facie case. See Loiseau v. Board of Tax Review, 46 Conn. App. 338, 342, 699 A.2d 265 (1997). The trial court’s determination that the plaintiff is a holder in due course is a finding of fact, which we review under a clearly erroneous standard. SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 569, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998). “A finding is clearly erroneous when, even though the finding is supported by some evidence, the reviewing court, on the basis of all the evidence, is left with the definite and firm conviction that a mistake has been committed by the fact finder.” (Internal quotation marks omitted.) Cadle Co. v. Ginsburg, 51 Conn. App. 392, 397, 721 A.2d 1246 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).

“To prevail in an action to enforce a negotiable instrument, the plaintiff must be a holder of the instrument or a nonholder with the rights of a holder. See General Statutes § 42a-3-301; Donnelly v. Garvan, 111 Conn. 626, 629, 151 A. 168 (1930).” Ninth RMA Partners, L.P. v. Krass, 57 Conn. App. 1, 6, 746 A.2d 826, cert. denied, 253 Conn. 918, 755 A.2d 215 (2000). Only a holder in due course may enforce a negotiable instrument. Cadle Co. v. Ginsburg, supra, 51 Conn. App. 396. Pursuant to General Statutes § 42a-3-301, a “ ‘[p]erson entitled to enforce’ an instrument [such as a promissory note] means . . . the holder of the instrument . . . .” (Emphasis added.)

General Statutes § 42a-3-302 (a) provides in relevant part that a “ ‘holder in due course’ means the holder of an instrument if . . . (2) The holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in section 42a-3-306, and (vi) without notice that any party has a defense or claim in recoupment described in section 42a-3-305 (a).” Moreover, General Statutes § 42a-1-201 (20) defines the term holder, with respect to a negotiable instrument, as meaning “the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. . . .” (Emphasis added.)

As a general rule, “[t]he possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there.” (Internal quotation marks omitted.) SKW Real Estate Ltd. Partnership v. Gallicchio, supra, 49 Conn. App. 571. Therefore, to establish a prima facie case, the plaintiff was required to demonstrate that it possessed the note, and further that it satisfied the elements of a holder in due course. Id.

The defendant, in essence, contends that because the plaintiff presented only a copy of the promissory note, and not the original, it could not prove the possession element and thus failed to establish a prima facie case that it was a holder in due course of the note. Therefore, the defendant argues that the plaintiff was not entitled to enforce the note and to receive payment. We conclude that although the plaintiff presented only a copy of the note, under the circumstances of this case, the failure to present the original did not preclude a finding that the plaintiff was a holder in due course of the note and thus the plaintiff met the requirements for a prima facie case.

In addition to introducing a copy of the note at trial, the plaintiff also presented Valorie, an account manager for the plaintiff, as a witness to testify about the plaintiffs possession of the note. Valorie testified that the plaintiff purchased the promissory note from the bank in a loan and sale agreement in 1994. To support this statement, the plaintiff introduced into evidence a copy of the loan and sale agreement between itself and the bank. Valorie provided that the plaintiff was the owner and possessor of the note and that the plaintiff was engaged in the business of purchasing promissory notes. Further, Valorie stated that had the plaintiff assigned the note to another party, he would have been informed about that transaction. During her testimony, Miller also revealed that the bank had sold the note to the plaintiff.

Significantly, the defendant failed to present any evidence demonstrating that the plaintiff was not in possession of the note or casting any doubt on the plaintiffs status as a holder in due course. Moreover, it is worth reiterating that the defendant does not challenge, or contradict, the terms contained in the copy of the note presented before the trial court. Rather, during trial, the defendant conceded to all of the terms that the copy established.

“[T]he trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility. . . . This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony.” (Citation omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 878, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

After thoroughly reviewing the record and transcript, we cannot conclude that the trial court’s finding that the plaintiff was a holder in due course of the note was clearly erroneous. Despite the absence of the original note, sufficient evidence existed, through the copy of the note presented, the testimony of Valorie and a copy of the loan and sale agreement with the bank, to support a finding that the plaintiff possessed the note. On the basis of the evidence presented at trial, it is difficult to draw any other inference from the facts. See SKW Real Estate Ltd. Partnership v. Gallicchio, supra, 49 Conn. App. 570-71. Moreover, our conclusion here is further buttressed by the fact that at the conclusion of the trial, the plaintiff filed a motion to open the evidence to introduce the original note.

We further note, in support of our conclusion, that this court has held on previous occasions that the production of a photocopy of a note, rather than the original, may suffice to establish a plaintiffs status as a holder in due course. In Cadle Co. v. Ginsburg, supra, 51 Conn. App. 392, the plaintiff produced only a copy of the promissory note. While we did not directly address the exact issue now pending before this court, we affirmed the trial court’s finding that the plaintiff was indeed a holder in due course of the promissory note being sued on, despite the fact that the plaintiff produced only a copy of the note at trial. Id., 406-407.

We, therefore, conclude that the court properly determined as a matter of law that the plaintiff established a prima facie case that it was a holder in due course of the note.

II

The defendant next contends that the court improperly concluded that this action was not time barred by the applicable statute of limitations, as set forth in General Statutes §§ 42a-3-118 and 52-576 (a). Specifically, the defendant contends that the court’s finding that he acknowledged the debt after the bank demanded payment, thereby tolling the statute of limitations, was clearly erroneous. We are not persuaded.

As stated previously, pursuant to General Statutes § 42a-3-118 (b), “if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand. ...” The defendant argues that because the bank demanded payment of the debt on December 13, 1991, and the plaintiff 'did not bring this action until March 11, 1998, this case is time barred by the applicable six year statute of limitations as set forth in §§ 42a-3-118 (b) and 52-576 (a). Further, the defendant claims that his actions in this case did not constitute an acknowledgment of the debt and therefore did not toll the six year statute of limitations.

“The Statute of Limitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account. . . . Whether partial payment constitutes unequivocal acknowledgment of the whole debt from which an unconditional promise to pay can be implied thereby tolling the statute of limitations is a question for the trier of fact. ... As with other questions of fact, unless the determination by the trial court is clearly erroneous, it must stand.” (Citations omitted; internal quotation marks omitted.) Zapolsky v. Sacks, 191 Conn. 194, 198, 464 A.2d 30 (1983).

“A general acknowledgment of an indebtedness may be sufficient to remove the bar- of the statute. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute. . . . But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the Statute of Limitations.” (Citations omitted.) Dwyer v. Harris, 128 Conn. 397, 400, 23 A.2d 147 (1941). “[A] general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor’s presence and he did not contradict the assertion.” Potter v. Prudential Ins. Co., 108 Conn. 271, 281, 142 A. 891 (1928).

Relevant to our analysis of the issue raised here, we further note that where there are joint obligors on a promissory note, the partial payment, or acknowledgment, of the debt by one joint debtor will not necessarily toll the running of the statute of limitations with respect to the other joint debtor. Apuzzo v. Hoer, 125 Conn. 196, 202-203, 4 A.2d 424 (1939). “The mere fact that one knows that another, also obligated to pay the debt, has made payments upon it, without his authorizing, consenting to, or participating in such payments, is not a sufficient basis upon which to base such a recognition [of debt].” Broadway Bank & Trust Co. v. Longley, 116 Conn. 557, 563-64, 165 A. 800 (1933).

In its memorandum of decision, the court found that “[b]oth defendants were involved in the financial arrangement and the payments made to the Bank of New Haven, and thus the statute of limitations was tolled as to both defendants.” Accordingly, to resolve this issue, we must determine whether the court’s finding that the defendant’s own actions constituted an acknowledgment of the debt, thereby tolling the statute of limitations, was clearly erroneous.

We review the trial court’s finding here under a clearly erroneous standard. As set forth in part I of this opinion, “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Internal quotation marks omitted.) Giulietti v. Giu-lietti, supra, 65 Conn. App. 837.

We note that “[w]here there is conflicting evidence . . . we do not retry the facts or pass upon the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine. ... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Pizza Connection, Inc., 55 Conn. App. 488, 498, 740 A.2d 408 (1999).

Miller testified that she met with both the defendant and Denz after they defaulted on the note. Miller stated that during the meeting, which occurred on December 13, 1991, “[the defendant and Denz] said that they did not have the cash flow to make the payments and asked that we reduce the payment amount. ... I don’t actually recall what their request was, but we agreed to five hundred dollars per month which would be applied to principal. . . . They [also] asked that it [the principal amount of the note] be reduced to fifteen thousand dollars, and we declined.” The plaintiff also introduced into evidence, as exhibit two, a letter written by the bank, dated March 23, 1992, to the defendant and Denz confirming its acceptance of their proposal of payments of $500 per month. The letter was written to and addressed to both the defendant and Denz. Moreover, the plaintiff entered into evidence the letter that accompanied Denz’s April 1, 1992 payment of $500 to the bank. At the bottom of that letter, Denz referenced the defendant and also sent a copy of the letter to the defendant. Evidence was also submitted demonstrating that Denz made additional payments through the summer of 1992. Thus, the underlying action was commenced in the spring of 1998, within a six year period from the summer of 1992.

The defendant contends that the bank, through Miller, demanded full payment of the note at the December 13, 1991 meeting. He argues, however, that he never authorized any payments toward the debt, nor did Denz make any payments on the defendant’s behalf. Therefore, the defendant claims, Denz’s actions had no effect on the tolling of the statute of limitations with respect to his own interests, and thus the plaintiffs suit is time barred.

In support of his argument that the trial court’s finding was clearly erroneous, the defendant relies on his testimony that he never negotiated with Miller about making arrangements to repay the note and that he was not involved with, nor did he have knowledge of, Denz’s subsequent payments. The defendant also refers to Denz’s testimony at trial that they had parted ways and that Denz negotiated with the bank only on his behalf.

After carefully reviewing the record and transcripts in this matter, we conclude that the court’s finding that the defendant was “involved in the financial arrangement and the payments made to the bank,” thereby tolling the statute of limitations, was not clearly erroneous. Sufficient evidence exists in the record to support the trial court’s determination that the defendant acknowledged the debt and consented to Denz’s subsequent payments on the note, thereby tolling the statute of limitations. In particular, the letter from the bank to the defendant and Denz, dated March 23, 1992, demonstrates the defendant’s recognition of the debt and his participation in satisfying the amounts owed. At the time the defendant received the letter, he did not contradict or deny its content.

As stated previously, “a general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor’s presence and he did not contradict the assertion.” Potter v. Prudential Ins. Co., supra, 108 Conn. 281. Under the circumstances of this case, we cannot conclude that the trial court’s finding that the defendant was “involved in the financial arrangement and the payments made to the bank,” thereby tolling the statute of limitations, was clearly erroneous. Accordingly, the defendant cannot prevail on this claim.

Ill

The defendant finally claims that the court improperly admitted into evidence, as exhibit three, an internal memorandum, dated January 11,1993, written by Miller documenting that the defendant and Denz “recently requested a $15,000 release” because the memorandum did not meet the criteria to satisfy the business record exception to the hearsay rule. Specifically, the defendant contends that Miller’s memorandum, written in 1993, constituted inadmissible hearsay because it referred to events that occurred in March, 1992, and therefore failed to meet the contemporaneous requirement of the business record exception to the hearsay rule.

“To admit evidence under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was in the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter. ... To qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met. . . . Section 52-180 is to be liberally construed, and our review is limited to determining whether the trial court abused its discretion in admitting the challenged evidence.” (Citations omitted; internal quotation marks omitted.) Ninth RMA Partners, L.P. v. Krass, supra, 57 Conn. App. 9.

“It is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) State v. Tinsley, 59 Conn. App. 4, 10, 755 A.2d 368, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000). “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. ” (Internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn. App. 98, 108, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 768 A.2d 441 (2001). Moreover, “[i]t is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Internal quotation marks omitted.) Ludington v. Sayers, 64 Conn. App. 768, 778, 778 A.2d 262 (2001).

Assuming arguendo that the trial court improperly admitted this document into evidence, we conclude that the defendant, nonetheless, cannot satisfy his burden of demonstrating harm. The information contained in the memorandum was not dispositive of any of the issues before the trial court. Its admission did not affect the result of this case, nor does it appear that the court particularly relied on the memorandum in arriving at its decision. The statement about whether the defendant and Denz requested a $15,000 release on their debt was merely cumulative of pertinent evidence already before the court regarding their execution of the promissory note with the bank and their acknowledgment of their debt after default. Moreover, the defendant fails to specifically demonstrate how the admission of this memorandum prejudiced the results of this trial. We, accordingly, conclude that if any error occurred, it was of a harmless nature, and thus the defendant cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff originally filed this action against Robert Errato and his joint obligor on the promissory note, Paul Denz. Denz entered into a stipulated judgment with the plaintiff regarding the present matter and thus is not involved in this appeal. We refer in this opinion to Errato as the defendant.

       In its memorandum of decision, the court states that the meeting occurred on December 31, 1992. After the trial court rendered judgment, the defendant filed a motion to reargue. Responding to the motion to reargue, the court noted that the date of December 31, 1992, was a typographical error, and that the correct date of the meeting with Miller was December 13, 1991.

       On the day before the defendant’s trial for this matter, Denz entered into a stipulation with the plaintiff. Denz was indebted to the plaintiff regarding three promissory notes, including the note at issue here. The stipulation provided that with respect to the note at issue here, “judgment shall enter in favor of the plaintiff in the principal amount of $91,500 in damages, $1955 in attorneys fees, $243.20 in costs, and prejudgment interest of $48,997.74. . . . Judgment as to [all three notes] shall be considered satisfied if the defendant pays the plaintiff the principal sum of $50,000, plus postjudgment interest at the rate of 9 [percent] per year . . . .”

       During trial, the defendant questioned the accuracy of the copy solely because he felt that the signature on the document did not look like his own. The court then asked to see the defendant’s driver’s license to compare signatures. The court found the two signatures to be the same.
      Moreover, in “an action with respect to an instrument, the authenticity of, an authority to malee, each signature on the instrument is admitted unless specifically denied in the pleadings. ... In the absence of such specific denial the signature stands admitted, and is not in issue.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. Ginsburg, 51 Conn. App. 392, 406, 721 A.2d 1246 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999); see General Statutes § 42a-3-308 (a). In its complaint, the plaintiff attached a copy of the promissory note. The defendant, in his answer, admitted that he had executed the promissory note in favor of the bank and stated that he neither admits nor denies the remaining allegations in the complaint as the “document speaks for itself.” Pursuant to § 42a-3-308 (a), the defendant’s response constitutes an admission that he signed the promissory note.

       The trial court denied the motion, and the plaintiff does not now challenge that decision on appeal.

         General Statutes § 42a-3-118, entitled “Statute of limitations,’’ provides in relevant part: “(b) Except as provided in subsection (d) or (e), if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand. ...”

       Pursuant to General Statutes § 52-576 (a), “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”

       The letter written by Miller to the defendant and Denz provides in relevant part:
      “Dear Paul [Denz] and Robert [Errato]:
      “The Bank of New Haven has considered your proposal on the above referenced loan.
      “Due to the reduced cash flow on the property and your overall financial condition, your proposal has been accepted. Payments of $500.00 per month will be applied to principal.
      “Please forward your payment to me in the enclosed envelope by April 10th. You will be billed monthly thereafter for the $500.00. If you have any questions, please call me at .... ”

       Although in its memorandum of decision the trial court lists Miller’s document as part of the evidence presented, the court did not appear to further depend on, or refer to, the information contained therein in arriving at its determination.